National security, presidential power and the law

Liberal historians and scholars who praise Andrew Jackson’s, Abraham Lincoln’s, Theodore Roosevelt’s, and Franklin Roosevelt’s expansive approach to executive power under Article II of the Constitution, condemn that same approach when Donald Trump does it. Trump’s use of Executive Orders and his unilateral approach to national security issues, and the resistance to Trump by members of the federal judiciary have created, liberals claim, a “constitutional crisis” which is shaking the very foundation of the Republic. The liberal New Yorker calls Trump’s approach to presidential power an “attack on the rule of law.” It is, in reality, no such thing. Trump, like all strong presidents before him, is attempting to use his Article II powers to implement a policy agenda that voters approved in the 2024 election, and that he has determined is essential to the protection of the country and its citizens.

This is especially true in the area of national security policy, an area where the Constitution vests the president with his most awesome and, in some cases, almost unfettered, powers. That is what our Founders intended. Alexander Hamilton in The Federalist Papers wrote that “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” He wrote further: “A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for bad execution; and a government ill executed, whatever it may be in theory, must be in practice, a bad government.”

One of the dangers that an energetic executive was needed to counter, Hamilton wrote, was “invasions of external enemies.” An energetic president, Hamilton explained, must at times act with “[d]ecision, activity, secrecy, and despatch.” President Trump formally declared that the influx of illegal immigrants into our country is an “invasion” which endangers the citizens of the United States. In other words, it is a matter of national security, an area where presidential power is paramount under the Constitution. In Trump’s January 20, 2025, Executive Order titled “Protecting the American People Against Invasion,” he noted that many of the illegal aliens “present significant threats to national security and public safety,” including crimes against American citizens and espionage and terrorist activities.

Trump formally determined that enforcing the country’s immigration laws “is critically important to the national security and public safety of the United States.” The Supreme Court in Martin v. Mott (1827), a case that involved a militiaman’s refusal to obey President James Madison’s order calling out the militia during the War of 1812, used broad language to construe a president’s power during wars and crises. “[T]he authority to decide whether [an] exigency has arisen,” the Court wrote, “belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”

Thirty-five years later, the Court in The Prize Cases, upheld President Abraham Lincoln’s unilateral decision to impose a naval blockade of Southern ports and the seizure of ships. The Court explained that “The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed . . . [and] is “Commander-in-Chief of the Army and Navy of the United States.” In repelling an invasion or combatting an insurrection, the Court wrote, the president alone “determine[s] what degree of force the crisis demands.” The judiciary, the Court continued, should not interfere with the decisions and actions of “the political department of the Government to which the power was entrusted.”

Lincoln, of course, acted as a virtual military dictator during the Civil War: suspending habeas corpus in the face of court rulings against him; ordering the arrest of state legislators in Maryland to ensure that the state didn’t vote for secession; allowing his secretary of state and secretary of war to effectuate the military arrests of more than 14,000 citizens; authorizing U.S. Marshals to arrest and imprison “any person or persons who may be engaged by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States.” Lincoln issued a proclamation which provided that persons “discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to the rebels” would be subject to “trial and punishment by courts-martial or military commissions.”

Lincoln revealed in a letter to a Kentucky newspaper editor his approach to presidential power in times of national security crisis: “[M]y oath to preserve the Constitution to the best of my ability imposed upon me the duty of preserving, by every indispensable means, that government—that nation, of which the Constitution was the organic law.” “I felt,” wrote Lincoln, “that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.”

Theodore Roosevelt had an equally expansive view of presidential power under Article II, writing in his autobiography that as a “steward of the people” he declined “to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it.” Roosevelt believed that it was the president’s “duty to do anything the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.”

Courts refused to resist Woodrow Wilson’s abuses of presidential power related to enforcement of the Espionage Act and Franklin Roosevelt’s abuses of presidential power prior to and during the Second World War—abuses that Jonah Goldberg rightly termed “liberal fascism.” But Wilson and FDR are liberal “heroes” whose lamentable actions are excused as wartime exigencies and regrettable incidents in otherwise stellar presidencies.

It was during FDR’s presidency that the Supreme Court in United States v. Curtiss-Wright Corp. (1936) explained the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” This decision harkened back to Thomas Jefferson’s statement that foreign policy is primarily the job of the president, and Chief Justice John Marshall, who, before joining the Court, wrote that the president “is the sole organ of the nation” in foreign policy “. . . [and] possesses the whole Executive power . . . [and] holds and directs the force of the nation.”

But the judiciary has abandoned its usual deference to presidential power in the areas of national security and public safety when it comes to Donald Trump. Federal district judges, in some instances with the concurrence of a majority of the Supreme Court, have taken upon themselves to oppose President Trump’s policies, including immigration enforcement, the composition of our armed forces, and the direction of foreign aid, that directly impact the nation’s national security. They have ignored the president’s determination that the influx of illegal immigrants into the country—including very dangerous illegal aliens—constitutes an “invasion” that must be repelled and reversed. A nation’s control of its borders is the very essence of sovereignty, and such control is a matter of national security, and judges have no constitutional power to shape national security policy.

One judge famously believed he could order a plane carrying an illegal alien to El Salvador to turn around in flight and return to the United States because he disagreed with Trump’s immigration policies. Another judge ruled that President Trump’s proclamation and invocation of the 1798 Alien Enemies Act to deport illegal alien members of the violent criminal Tren de Argua gang was unlawful despite acknowledging precedential case law that affirms the president’s broad and unfettered powers to determine the existence of exigencies and crises that require executive actions. This interference with a president’s national security policies and foreign policies is judicial hubris on steroids. Another judge imposed a nationwide order blocking Trump’s Defense Department from implementing the president’s decision to ban transgender people from serving in the armed services, despite the fact that the president, not the judiciary, is the commander-in-chief of the armed services. Another judge barred the Trump administration from withholding federal funds from so-called “sanctuary cities” that seek to protect illegal aliens from lawful deportation. There are plenty more examples of judicial opposition to Trump’s policies.

Alexander Hamilton in Federalist 78 characterized the judiciary as the “least dangerous branch” of government. He was wrong. As one scholar has noted, “The modern judiciary is not merely a reflective body but plays a crucial role in shaping national governance through judicial review and strategic rulings.” It is no longer the “least dangerous branch,” because of its unconstitutional role in “shaping policy through judicial review, politicized appointments, and nationwide orders.”  The nation’s defense and protection should not rest with an unelected judiciary that attempts to substitute its political views for the president’s policies on issues of national security.

In letters written in 1821 and 1823, Thomas Jefferson, who as president had his own battles with the judiciary, wrote that the great object of his fear was the federal judiciary, which far from being “harmless members of the government,” has “become the most dangerous” and its decisions have “sapped . . . the foundations of the constitution.” In its overtly political resistance to President Trump’s national security, defense and foreign policies, some members of the judiciary have unfortunately confirmed Jefferson’s greatest fear.