United States President Donald Trump’s recent proclamation conditioning H-1B visas on an additional payment is not his first assertion of unilateral executive power.

During his term, he issued more than 200 executive orders, alongside numerous proclamations and memoranda. The pace itself raises a constitutional question larger than visas: is it really so easy for the President of the United States (POTUS) to alter law and policy with the stroke of a pen?

The US Constitution is brief where it matters most. Article II declares:

“The executive Power shall be vested in a President of the United States of America.”

Unlike Congress, whose powers are itemised in detail, the President’s grant is terse.

At the founding, many feared an over-mighty executive: the Articles of Confederation had avoided one altogether and memories of monarchy were fresh. The presidency was designed to be energetic, but bounded by separation of powers, legislative control over finance and law-making, and judicial review.

Yet, that very brevity gave space for interpretation. Over time, presidential power has been drawn from two sources. First, through constitutional grant, as Article II expressly empowers the President to execute laws, command the armed forces, appoint officers (with Senate consent), grant pardons and conduct foreign relations. In practice, Presidents have also invoked “inherent powers,” particularly in times of crisis. Abraham Lincoln defended the Emancipation Proclamation, which declared enslaved African Americans in rebel states free, as a war measure under his Commander-in-Chief powers. Franklin Roosevelt, during the second World War, issued sweeping wartime orders mobilising the industry and direct the wartime economy.

Second, through statutory delegation, as Congress has repeatedly given Presidents wide discretion. The Immigration and Nationality Act, 1952 (INA), for instance, authorises them to suspend entry of non-citizens or impose restrictions. Trump’s H-1B proclamation relies on this provision. Similar delegations exist in trade and emergency statutes.

Presidential power also expands when the occupant of the White House enjoys a majority in Congress. Trump’s first two years in office, when Republicans controlled both Houses, illustrate this well: legislative backing enabled him to push through tax reform and regulatory rollbacks at a pace that no executive order alone could achieve. In such moments, the President’s constitutional and statutory authority converge with political strength, producing the most far-reaching changes.

Unchecked, such powers would collapse the constitutional balance. The Supreme Court has occasionally drawn lines. The classic case is Youngstown Sheet & Tube Co. v. Sawyer (1952), where the Court invalidated President Truman’s attempt to seize steel mills during the Korean War.

Justice Robert Jackson’s celebrated concurrence offered a tripartite framework that remains canonical:

• Presidential power is at its maximum when acting with Congress’s authorisation.

• It is in a zone of twilight when Congress is silent.

• It is at its weakest when acting against Congress’s expressed will.

This flexible scheme has guided judicial review ever since. Even in Trump v. Hawaii (2018), upholding a travel ban, the Court relied on the fact that Congress had explicitly delegated power in the INA, thus placing the action in Jackson’s first category. The message is clear: presidential initiative is tolerated, even sweeping, so long as it can be anchored to statute or necessity.

India’s Constitution speaks in a different idiom. Article 53 vests the executive power of the Union in the President. But, crucially, it must be exercised “in accordance with this Constitution.” In practice, this means the President acts on the aid and advice of the Council of Ministers headed by the Prime Minister. The “real executive” is the Cabinet, collectively responsible to Parliament.

Here too, power divides into two streams:

Legislative substitute (ordinances)

Article 123 authorises the President to promulgate ordinances when Parliament is not in session and immediate action is needed. Ordinances carry the force of law but lapse unless approved by Parliament. Courts have repeatedly underscored their temporary and exceptional nature, striking down routine re-promulgation as unconstitutional.

Ordinary executive power

Day-to-day governance flows through statutory authority. Visa regimes, for instance, are managed under the Foreigners Act, 1946 and the Passports Act, 1967. The Union government issues notifications and rules within that framework. Large-scale orders of the kind familiar in the United States are rare in India; major policy change almost always begins in Parliament and cascades down through rules and subordinate legislation.

Both constitutions disperse authority, but differently. The United States separates power across three branches and made the President the real executive, trusting courts and Congress to check excess. By adopting a parliamentary system, India embedded executive authority within a parliamentary frame: the Cabinet governs, tethered to Parliament, while the President remains a constitutional figurehead.

This was a deliberate choice. The framers of India’s Constitution studied the American model but rejected it, fearing both an over-powerful presidency and the paralysis of divided government. They opted for parliamentary responsibility: an executive that could act energetically, but only through a Cabinet accountable to the legislature.

Trump’s H-1B proclamation is the latest episode in a long history of Presidents stretching the scope of Article II, often with statutory cover, sometimes at the edges of constitutional design.

India’s framers, by contrast, ensured that executive energy would flow through Parliament, not around it. That is why sweeping personal decrees are part of the American experience, while in India, executive orders remain tethered, temporary and ultimately answerable to Parliament.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy