President Donald Trump’s failed, haphazardly planned war on Iran has shaken his political support and bolstered the opposition. Even so, losing the war, like his other setbacks, won’t change his readiness and power to continue doing what he wants.
Trump’s calamitous Mideast misadventure is only the latest and most portentous exercise of the powers of the president as he understands them—an approach that America’s framers believed they had put to rest. It’s the same view of the presidency that animates his mass-arrest and deportation programs, his efforts to disfranchise voters who oppose him, and his drive to remake the capital in his image with a gilded White House ballroom, an American flag-blue reflection pool, and a triumphal arch. This view is used to justify his designs to siphon $1.8 billion from taxpayers to his supporters and bar the Internal Revenue Service from auditing his and his family’s tax returns. It’s even the same approach to the presidency that he believes validates his insider stock trading, crony capitalist government contracting, and the Trump family’s crypto schemes.
They are all part of a unified theory of power embodied in Donald Trump’s presidency.
The key lies in an American president’s historic prerogative to reach beyond the authority articulated in law and the Constitution—but only under limited and clear circumstances. Under norms that go back centuries and respected by his predecessors, a president can tap his unarticulated powers only when necessity demands it to preserve and protect the people and the nation. Trump’s radical innovation has been to detach the president’s prerogative powers from necessity and overriding national purpose and use them without those constraints.
Jefferson and His Discontents
The origins of presidential prerogative are found in John Locke’s Second Treatise of Government, where he described the executive’s prerogative as the power “to act according to discretion for the public good, without the prescription of the law, and even against it.” With Locke, the founders knew that the Constitution and laws could never anticipate every contingency that would require prompt action in the nation’s interest. Thomas Jefferson, perhaps the framers’ most strict constructionist on the government’s powers, wrote in 1810,
The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation (than “a strict observance of the written laws”). To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.
Jefferson himself used his prerogative power in ways that shaped the country’s development. In 1803, when Napoleon sent word he was prepared to sell the vast Louisiana territory—double the country’s size at the time—Jefferson first drafted a constitutional amendment to authorize it. But when Jefferson and his advisors became concerned that Napoleon might withdraw his offer, the president acted without legal authority because it was necessary for the public good. Only after the deal was done did Congress bless it by ratifying a treaty that set out the terms and appropriating the money to pay Napoleon.
An American president’s prerogative authority was fundamentally different from the royal prerogative English kings enjoyed, acting outside the law or against it, for any reason. In a republic, the prerogative power extends only to what is necessary to preserve and protect the country. It’s there in Article II: Alongside the chief executive’s duties to “Take Care that the Laws be faithfully executed” and act as commander-in-chief, the Constitution vests the president with the general “executive power” and the duty to “preserve, protect and defend the Constitution.” Locke extended prerogative authority to “even act against” the law, but that was a step too far for America’s Framers.
Trump’s war on Iran is the instance du jour of his radical view. Congress alone has the constitutional authority to declare war, and the president commands the armed forces. A president’s wartime decisions can be grounded in laws or in necessity. When those decisions extend beyond what the law allows, they must be explained and justified to the people and their representatives, and they become legitimate when the people and the other branches accept their necessity.
Trump’s two immediate predecessors ran this democratic gauntlet before taking military actions abroad. George W. Bush asked for and received congressional authorization before launching the Iraq War in 2003. When he drew on his prerogative powers to order the troop surge in 2007, he addressed the nation to explain that it was necessary to separate Sunni and Shiite paramilitary groups verging on civil war and defeat an al-Qaeda-led insurgency. Barack Obama similarly respected democratic constraints before initiating his 2009 troop surge in Afghanistan, a conflict authorized by Congress following the attacks on the U.S. on September 11, 2001. Obama addressed the nation and pledged it was a temporary, counterinsurgency effort to stabilize major population areas and “disrupt, dismantle, and defeat” al-Qaeda.
In both cases, presidents called the shots; public support and congressional majorities accepted the claims that the military actions were necessary; and explaining and justifying them bound the exercise of the president’s prerogative power to the people and the nation.
That’s not how Trump rolls. The president announced the “Operation Epic Fury” war on Iran after the attacks had begun by posting an eight-minute speech to his social media platform. He sought no prior authorization, nor has Congress authorized it since. He said the war was necessary because Tehran was close to building a nuclear weapon and might soon deploy ICBMs capable of reaching the United States. Eight months earlier, he boasted that U.S. and Israeli strikes had “obliterated” Iran’s nuclear capacity. His Director of National Intelligence, Tulsi Gabbard, had repeatedly stated there was no evidence that Iran’s leaders were pursuing a nuclear weaponization program. And nine months earlier, his Defense Intelligence Agency had reported that Iran was a decade away from an ICBM that could threaten the United States.
Unsurprisingly, 10 days into the war, 64 percent of Americans said Trump had not explained the objective, and a substantial plurality disapproved—and that was before gasoline prices passed $3.50 per gallon.
Trump finally addressed the nation a full month after he launched the war. He hailed the armed forces’ battlefield successes and attacked Obama’s 2013 diplomatic agreement to limit and monitor Iran’s uranium enrichment, peremptorily discarded by Trump in his first term. He invoked necessity by raising a specter of a nuclear-armed Iran while insisting that his actions had “systematically dismantled the regime’s ability to threaten America or reject (sic) power beyond its border.” Since then, Congress has been reduced to a bystander. More than 15 weeks after Trump launched Operation Epic Fury and a week after he and Iranian President Masoud Pezeshkian formally ended hostilities by remotely signing the Islamabad Memorandum, the Senate joined the House in adopting a resolution giving Trump a choice: End the war or seek congressional authorization. Finally, Congress took a stand, but not with the force of law, since that would require Trump’s signature. The point is not to debate Trump’s debacle in Iran but to highlight his singular and self-serving approach to a president’s unstated powers. All presidents are democratically bound to do what’s necessary to protect the people and nation. For Trump and only Trump, the decisions are untethered from necessity and detached from the preservation of the nation and its people. As he sees it, as president, the only limits on his global powers are “My own morality. My own mind. It’s the only thing that can stop me.”
Lincoln Pushes the Limit
Abraham Lincoln made the most sweeping use of prerogative powers of any president in our history—and yet he provides the clearest contrast to Trump. With Congress out of session when the Confederacy attacked Fort Sumter on April 12, 1861, Lincoln, on his own authority, moved to call up the militia and expand the Army and Navy, blockade Southern ports, suspend habeas corpus along the military transport corridor from Washington to Philadelphia, and engage private agents to spy on Confederate movements.
In his July 4, 1861, message to Congress, Lincoln acknowledged the democratic constraints on his powers, writing that his actions “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then as now that Congress would readily ratify them.” Echoing Jefferson and Locke, he famously asked, “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”
By mid-August, Congress had declared that the president’s military acts were valid “as if they had been issued and done under the previous express authority and direction of the Congress.” When the Court ruled two years later that Congress alone could suspend the writ of habeas corpus, Congress ratified Lincoln’s actions after the fact.
In the run-up to World War II, President Franklin D. Roosevelt also exercised prerogative powers and respected their democratic terms. In September 1940, as Hitler waged the Battle of Britain aerial campaign to destroy the Royal Air Force and set the stage for a seaborne invasion of England, FDR issued an executive agreement transferring 50 U.S. Navy destroyers to Great Britain in exchange for rights to lease British bases in Newfoundland, Bermuda, and the Caribbean. The order violated, or perhaps technically ignored, a provision of the 1939 Neutrality Act that allowed arms sales to European democracies only on a “cash-and-carry” basis.
In FDR’s message to Congress the next day, he echoed the classical terms of a president’s prerogative power to describe his decision as “an epochal and far-reaching act of preparation for continental defense in the face of grave danger … an inalienable prerogative of a sovereign state … essential to the maintenance of our peace and safety.” He even cited Jefferson’s signature act of prerogative power, calling it “the most important action in the reinforcement of our national defense that has been taken since the Louisiana Purchase.” Seven months later, Congress formally authorized the president to lend or lease war supplies to Allied nations.
Trump is trying to turn his signature domestic program of mass arrests, detentions, and deportations of immigrants into exercises of presidential prerogative. He has legal authority to arrest and detain “removable” noncitizens under the Immigration and Nationality Act (INA), and, eight days into his second term, he signed the Riley-Laken Act, directing the arrest and detention of noncitizens who have been arrested, charged, or convicted of serious crimes.
But when Department of Homeland Security (DHS) agents arrested 238 Venezuelan migrants and summarily transferred them to the notorious CECOT prison in El Salvador as members of the notorious Tren de Aragua gang, Trump invoked the 1798 Alien Enemies Act as his authority. It was the first step in recasting immigration enforcement as a wartime issue and establishing presidential authority to detain any immigrant without due process. The statute, enacted when war with France seemed imminent, empowers the president to arrest, restrain, and deport anyone from a nation at war with the United States or carrying out or threatening an “invasion” or “predatory incursion” of the United States.
Trump has long cast immigration as “the largest invasion in the history of our country,” to use his wartime powers under the Alien Enemies Act. In a proclamation on January 20, 2025, his first day back in office, he formally declared that “an invasion is ongoing at the southern border, which requires the Federal Government to take measures to fulfill its obligation to the States.” The same day, he issued an Executive Order declaring a national emergency based on an invasion of immigrants who are part of “cartels, criminal gangs, known terrorists, human traffickers, smugglers … (causing) widespread chaos and suffering in our country.”
A federal court disagreed and ordered the government to turn the plane around that was headed for El Salvador. The Supreme Court subsequently held that immigrants designated for deportation have 24 hours to file a writ of habeas corpus and appeal their order. The Court did not rule on whether an immigrant invasion had occurred and triggered the wartime presidential powers to deport foreign-born people under the Alien Enemies Act. The Fifth Circuit Court of Appeals is currently considering that question. In oral arguments, Judge James Ho opined it’s up to the president to decide whether an invasion has occurred, while Chief Judge Jennifer Elrod called Trump’s declaration of an invasion “fanciful.”
If the Supreme Court upholds Trump’s proclamation of invasion, it could trigger Article I, Section 9 of the Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” We know from a recent investigation by The New York Times that the White House has considered suspending the writ for undocumented immigrants. Article I, however, describes Congress’s authority, so courts in the past have held that it, and not the president, has the authority to suspend the writ. But Trump could claim, as Lincoln did, that the president has a prerogative power to suspend the writ when necessity demands it.
Trump’s inaugural day proclamation and executive order detailed a case for necessity: The undocumented immigrants in America are “the worst of the worst” and threaten the American people.
This case for necessity is as flimsy as his claims about his war on Iran. A DHS internal analysis obtained by CBS News found that 86 percent of some 400,000 immigrants arrested by ICE had never been charged or convicted of any crime. Another analysis of ICE arrest data by the CATO Institute found that 73 percent of those arrested were never convicted of any offense, however minor, and 95 percent were never convicted of a violent crime. And only one-quarter of 1 percent of those arrested by ICE have been convicted for murder or rape—the “worst of the worst”—which is a smaller share than the portion of all American adults with those convictions.
Despite an inability to show imminent danger, the program operates day-to-day outside or beyond numerous federal laws and regulations—as if it were an exercise of his prerogative powers. Immigration arrests are supposed to require reasonable suspicion, but roving ICE agents regularly arrest people based on profiling or being in a parking lot where people seeking day work congregate. There is also no legal or administrative basis for arresting people while they are complying with a court order. Still, ICE agents regularly arrest immigrants showing up for their court hearings or scheduled check-ins at ICE offices.
Federal regulations direct officers to identify themselves when asked, but thousands of DHS agents in masks and plain clothes refuse. Federal law and regulations also stipulate that arresting an immigrant requires an administrative warrant naming the arrestee, so ICE supervisors routinely accompany agents during roundups and sign the warrants after the arrests. Federal agents also cannot enter people’s homes without their consent, even with administrative warrants. Still, ICE officials regularly ignore the requirement or use special warrants to enter people’s homes forcibly. At the direction of the White House, ICE is also now permitted to carry out immigration raids and arrests at schools, hospitals, and places of worship.
The most telling sign that Trump has cloaked his immigration program in the prerogatives of the executive is the broad legal immunity granted to its agents. An estimated 344,000 people (86 percent of 400,000) have been arrested and detained without cause. From September 2025 to February 2026, DHS agents shot at least 14 people, including the fatal killings of Minnesotans Renee Macklin Good and Alex Pretti. In January 2026 alone, six people held in detention centers died in immigrant detention centers in Texas, Pennsylvania, Georgia, and California. When citizens released videos of ICE agents beating people, dragging them from their cars, breaking into their homes, and shooting people, the White House and DHS officials labeled the victims terrorists and insisted the agents acted in self-defense. Amid these hundreds of thousands of instances, no DHS agent has faced federal prosecution.
There has been pushback. Minnesota county district attorneys charged an ICE officer with two counts of second-degree assault and another with four counts of assault over the shooting of Julio Sosa-Celis. In addition, federal district courts in California, Oregon, and Illinois rejected Trump’s attempts to deploy National Guard troops over governors’ objections, ostensibly to protect ICE personnel. The Supreme Court blocked the deployment of National Guard troops in Chicago, because “the government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.”
Presidents have invoked prerogative powers for domestic policy purposes in the past. Grover Cleveland sent troops to Chicago in 1894 over the Illinois governor’s objection to enforce an injunction against the Pullman rail strike, much as Trump tried to do to round up immigrants in Illinois. President Cleveland won his argument when the Supreme Court agreed that his use of the troops was necessary and so justified to protect interstate commerce and mail delivery. President Trump’s case is in limbo because the courts have not yet accepted the argument that immigrants constitute an invasion that requires federal troops to round them up.
The President’s Private Justice Department
FDR also drew on prerogative when he declared a bank holiday in March 1933 without clear legal authority, and Congress endorsed its necessity three days later by retroactively approving it in the Emergency Banking Act. But President Harry S. Truman had to confront the limits of his powers in domestic affairs, as has Trump. When a bitter strike closed the nation’s steel factories during the Korean War, Truman cited his inherent powers and sent in troops to operate the plants. Truman lost his argument not because he lacked the power to protect the economy when truly necessary, but because the Taft-Hartley Act provided a statutory process to keep factories operating when necessary.
Trump’s powers as president, it appears, are matters of his personal choice, and whatever history and the Constitution teach, demonstrable necessity and national interest have become immaterial. In his scheme, the unitary executive theory is merely an operational manual for implementing the president’s prerogatives.
This view, unmooring prerogative powers, is also evident in Trump’s directives to the Department of Justice to investigate and prosecute his opponents, based on the radical proposition that, because the criminal laws serve the president, however his subordinates go about it, it is a lawful exercise of his authority. To him, it’s also his prerogative to tap the Treasury to reward his January 6 supporters, build a 250-foot triumphal arch and a gilded ballroom, and celebrate his birthday with an eight-sided Octagon cage for ultimate fighting matches, surrounded by arena seating for 5,000 and topped by a 600-ton, 90-foot steel arch, on the South Lawn of the White House.
Trump’s most brazen use of prerogative power involves his wildly successful schemes to enrich himself, his family, and his friends. Since his reelection, Trump has granted pardons and overseen government contracts for individuals and companies willing to invest billions of dollars in his and his family’s crypto ventures. He appointed his son-in-law, Jared Kushner, and business associate Steve Witkoff to negotiate U.S. foreign policy with leaders whom they have successfully solicited for large investments in their private businesses. Recently, Trump has also reported thousands of stock purchases and sales timed to benefit from his personal endorsements or favorable federal government news, often involving no-bid contracts announced directly by him.
And there’s no legal accountability. The Court’s extreme holding on presidential immunity precludes criminal liability for anything touching on a president’s official acts, which covers virtually everything Trump does in office. The Justice Department, headed by Trump’s former personal lawyer and Attorney General nominee, Todd Blanche, has also precluded financial liability for any past acts by declaring that the Internal Revenue Service is “forever barred and precluded” from examining, filing claims, or seeking monetary penalties related to tax returns filed by Donald Trump, his children, or their trusts, businesses, or subsidiaries before May 19, 2026.
Prerogative power, detached from necessity and accountability, comes perilously close to the classic definition of a tyrant or a modern strongman.
We’re not there yet. The courts can still thwart rule by presidential prerogative. Trump’s hold on federal and state judges remains weak, and they regularly hold his administration’s unvalidated actions unlawful. The Supreme Court is a more ambiguous player. The current majority has supported Trump on numerous issues outside a president’s prerogative powers, including borderline reactionary decisions on racial preferences and federal regulation. The Court also invalidated President Trump’s “emergency” tariffs.
The ultimate brake on a would-be strongman is free and fair elections, and the Court’s record here is equivocal. Trump spent months publicly pressuring legislatures in red states to eliminate Democratic districts by redrawing their boundaries mid-decade, and the Court accommodated his strategy by endorsing partisan redistricting that breaks up minority-majority districts so long as racial discrimination is not the state legislature’s stated goal.
But the same justices rebuffed Trump’s challenges to his 2020 defeat, which followed his naked efforts to use prerogative powers to undo the election, including strongarming state officials to shift electoral votes, pressuring Vice President Mike Pence to throw the election into the House of Representatives, and firing up the January 6 mob.
The pivotal challenge, denied by the Court, was filed by Texas Attorney General Ken Paxton to invalidate the electoral votes of Pennsylvania, Georgia, Michigan, and Wisconsin, and was supported by Trump, 18 other Republican attorneys general, and 128 Republican members of Congress. The Paxton pleading invoked Bush v. Gore, in which a five-Justice majority determined the outcome of the 2000 election by asserting their own form of prerogative to do what they saw as the public good by directing Florida’s Supreme Court to end a statewide recount.
Checks that Balance
Trump is not on the ballot this year. Even so, he has taken extraordinary steps to prevent Democratic control of Congress next year. He presses Senate Republicans to pass his Save America Act, which would require documentary proof of citizenship to vote, including original birth certificates for those registering under a married name. It could pass the Senate only if the majority suspended the filibuster, and so far, not enough GOP senators have gone along.
Trump’s backup gambits draw on his extreme view of a president’s prerogative powers and scapegoating of immigrants. After federal judges struck down a March 2025 executive order requiring federal certification of citizenship before anyone could vote, he issued another executive order this March directing the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to compile a federal, state-by-state list of “eligible voters.” The current executive order also directs the U.S. Postal Service (USPS) to use the new state lists to screen mail-in ballots and bar their delivery to or from anyone not on the list—and orders the Attorney General to prosecute any election official, mail carrier, or anyone else who sends or retrieves a ballot from anyone deemed ineligible to vote based on the DHS list.
A federal judge initially declined to block the new order as premature, and since then, USPS has issued its proposed rules for mail-in ballots. The 2025 order fell because it directly conflicted with Article I, Section 4 of the Constitution, which stipulates that only state legislatures and Congress can prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives.” It seems likely that the 2026 order also will fall to challenges based on Article I, Section 4.
If so, Trump and his associates may be preparing other options. The DOJ is aggressively pursuing evidence of past voter fraud that might be used to buttress challenges to selected election results this fall. The FBI has executed search warrants to seize ballots and other 2020 records in Georgia, Arizona, and Nevada. DOJ also has sought 2020 voter records from officials in Colorado, Connecticut, Ohio, Minnesota, Arizona, and Nevada; demanded unredacted voter rolls from 44 states and the District of Columbia; and sued 30 states and the District of Columbia for turning back its demand. The DOJ has acknowledged using the data in a joint effort with DHS to identify noncitizen voters.
The administration’s dogged search for noncitizen voters is another Trump-prescribed project, unmoored from necessity. Thus far, Louisiana is the only state to use the DOJ/DHS filter to verify the citizenship status of its 2.9 million registered voters. State officials applied the model to past election records and found a total of 79 cases of non-citizens voting from the 1980s to the present, which statistically is equivalent to zero.
Of course, necessity is beside the point for President Trump. His associates in selected states could cherry-pick the records seized and analyzed by the Departments of Justice and Homeland Security for evidence of a pattern of voter fraud to bolster specious claims of fraud in a handful of close House elections in November and perhaps call on Speaker Mike Johnson and GOP House members to refuse to seat the winners.
Whatever these elaborate efforts by the White House come to, they bespeak a recognition that fair elections can pose a mortal threat to a leader intent on ruling by personal prerogative, as they have in Hungary and Poland.
For most of President Trump’s time in office, he has adopted an approach to his powers that is disconnected from the practices and values of a democratic republic. In matters of war and peace, domestic order, public monuments, and personal enrichment, he consistently draws on prerogative powers unmoored from necessity and a president’s duty to protect and preserve the nation.
A strongman doesn’t simply arise in a republic. Americans handed the government to Donald Trump in 2024 with full knowledge of his character, propensities, and crimes, and the wreck of his presidency is a testament to our carelessness and national divisions. So now we need to rebalance the three branches of government and recover the spirit of moderation necessary to preserve the republic.
