N.B.: The blog post below is based on the last part of my talk this weekend at the 2025 South-North Exchange on Theory, Culture, and Law at the Universidad Autónoma de Ciudad de México (UACM):

Previously, I drew a connection between the doctrine of necessity in law and the “state of exception” in the political arena, between Trump’s ingenious legal strategy in defense of his trade wars — i.e. declare an emergency or “state of exception” and then proceed to suspend ordinary constitutional rules under the pretext of that declared emergency — and the well-established legal doctrine of necessity, a doctrine that can be traced back to the Roman law maxim necessitas non habet legem (“necessity knows no law”).

Today, I want to explain why the doctrine of necessity may also capture the true essence of what I have called “Gödel’s Loophole.” In brief, this supposed constitutional loophole refers to a possible “inner contradiction” in the U.S. Constitution, one that could produce a legalized dictatorship. But what if the loophole is not inside the Constitution but outside out it? Consider, for example, the first sentence of Carl Schmitt’s 1922 book Political Theology (available here): “Sovereign is he who decides on the exception.” In other words, it is the state of exception that defines the legal order, not the other way around, or in the immortal words of Schmitt himself: “The exception is more interesting than the rule. The rule proves nothing; the exception proves everything …”

Although the ideas of this great German legal philosopher are often discounted or swept under the rug because of his subsequent ties with the Nazis (see here, for instance), the contemporary Italian philosopher Giorgio Agamben has shown why Schmitt’s famous dictum (“Sovereign is he who decides on the exception”) is more relevant than ever today. Among other things, Agamben cites Schmitt dozens of times in his 2005 monograph State of Exception (available here) and explains why Schmitt’s dictum presents a double paradox, for a state of exception not only creates a legal vacuum in which actions are not bound by the law; it also suspends or annuls the rule of law in the name of protecting the legal order. The Schmittian sovereign — the person who gets to decide what constitutes an emergency necessitating a state of exception — thus stands outside the law and at the same time is its ultimate source.

For my part, building on the ideas of Giorgio Agamben and Carl Schmitt, I now want to present a new and improved version of Gödel’s loophole. Simply put, if X has the lawful power to declare an emergency or state of exception, then by definition he has the lawful power to suspend ordinary legal and constitutional rules during the duration of the emergency — that is, by definition X is a lawful dictator. I have left open (for now) an important second-order problem: can X’s emergency-declaring power be reviewable by the courts or can it be subject to a legislative veto? However this second-order question is answered, my revised version of Gödel’s constitutional loophole describes Trump’s legal playbook in the tariff cases to a “T” (pun intended): Trump is not only suspending the normal rules of constitutional law under the pretext of his declared emergencies; one could further argue that, as president, he has the inherent authority to do so!