N.B.: Below is part 2 of my upcoming talk this weekend at the 2025 South-North Exchange on Theory, Culture, and Law at the Universidad Autónoma de Ciudad de México:

Is there a link between Gödel’s Loophole and President Trump’s tariffs? To explore this possibility, we first have to take a step back and take a closer look at Trump’s legal strategy in defense of his trade war. To the point, as of today (see here, for example) President Trump has signed 21 executive orders, four memoranda, and three proclamations related to trade and tariffs since he re-assumed the office of president earlier this year. On each of these occasions, Trump has officially declared a “national emergency” and has claimed legal authority for his trade war policies under the International Emergency Economic Powers Act (IEEPA).

In other words, a clear legal pattern has emerged: President Trump’s legal theory in support of his trade war is to invoke the IEEPA by declaring a national emergency and then claim that he is acting under the authority of that law. Of course, this strategy is a risky one: the Congress could, in theory, amend or repeal the IEEPA, or a court could declare one or more of Trump’s executive orders — or even the IEEPA itself — unconstitutional, but with every passing day it looks like that is a calculated gamble or strategic risk Trump is willing to take. In the meantime, until Congress acts or until the Supreme Court joins the fray, Trump’s tariff playbook reminds me of the common law defense of necessity in ordinary civil and criminal cases.

In brief, the necessity defense allows you to break the law when you are confronted by an emergency: it operates as a justification or an excuse of an otherwise illegal action when taken to avoid a greater harm. (Consider, for example, the two famous trolley problems in moral philosophy.) But does the doctrine of necessity operate as a blanket justification, i.e. does it “legalize” an otherwise illegal act? Or does it operate as a mere excuse, i.e. the bad act in question is still illegal but the actor cannot be punished for taking it during the emergency? What interests me here, however, is not the underlying rationale of the necessity defense, i.e. whether it operates as a justification or an excuse. What interests me is how Trump’s tariff playbook — invoking a national emergency to bypass both judicial and legislative checks on his trade policies — sheds light on a deep constitutional puzzle called Gödel’s loophole. I will explain why next …