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From the time he took office in January 2025, Trump and his cronies have not simply challenged laws or constitutional provisions. They have acted as if the Constitution doesn’t exist.
That’s an important distinction. The former accepts the constitutional order by working within it to challenge it. The latter rejects the constitutional order entirely.
Their actions align with the strategy of Nazi political theorist Carl Schmitt, whose writings seem lately to have captivated leaders on the American right. Schmitt opposed liberal democracy, in which the state enables individuals to determine their own fate. Instead, he argued that true democracy erases individual self-determination by making the mass of people one with the state and exercising their will through state power. That uniformity requires getting rid of opposition. Schmitt theorized that politics is simply about dividing people into friends and enemies and using the power of the state to crush enemies. As J.D. Vance described Schmitt’s ideas in 2024: “There’s no law, there’s just power.”
Much of Schmitt’s philosophy centered around the idea that the power of a nation that is based in a constitution and the rule of law belongs to the man who can exploit emergencies that create exceptions to the constitutional order, enabling him to exercise power without regard to the law. Trump—who almost certainly has not read Schmitt himself—asserted this view in August 2025 to justify deploying troops to American cities. “I have the right to do anything I want to do,” he said. “I’m the president of the United States. If I think our country’s in danger—and it is in danger in the cities—I can do it.”
Although the Republicans have control of both the House of Representatives and the Senate—meaning Trump should be able to get his agenda passed according to the normal constitutional order—since retaking office he has operated under emergency powers. Back in April, Ben Diamond of Lawfare noted that Trump is on track to issue six and a half times more emergency orders in his second term than any other president this century issued during his entire term. That number, Diamond suggests, is probably an underestimate because many of Trump’s orders do not include the keyword “emergency” and so fly under the radar.
Trump’s imposition of a new round of tariffs on products from more than 60 countries, making up 99.4% of trade with the U.S., is a flashing red light.
In April 2025, the administration imposed high tariff rates on countries around the world, claiming legal authority under the International Emergency Economic Powers Act (IEEPA), which permits the president to respond quickly to economic threats during a national emergency. On the same day he announced the tariffs, Trump declared “that foreign trade and economic practices have created a national emergency.”
When the Supreme Court struck down those tariffs as unconstitutional, Trump immediately announced he would find “other alternatives…to replace the ones that the court incorrectly rejected. We have alternatives,” he said. “Great alternatives.” The administration turned to Section 122 of the Trade Act of 1974, which allows the president to impose tariffs in the case of an international financial emergency.
Those tariffs are limited to 150 days. When that deadline hit on Friday, Trump announced he was imposing tariffs under section 301 of the Trade Act of 1974, which permits the president to impose tariffs on countries that are using forced labor. A senior administration official told reporters that the tariffs were not an attempt to recreate the previous system and that dealing with the issue of forced labor “is something that President Trump has been focused on…for many years.”
But law professor Barry Appleton, who co-directs New York Law School’s Center for International Law, said: “The 301s allow a permanent tariff without going to Congress to settle the dispute. That’s what all of this is about. The president doesn’t want to knock on the front door of Congress, so he’s trying every side door and every unlatched window to get in.”
Let’s be very clear here: tariffs are revenue measures, and the U.S. Constitution explicitly gives the power to raise revenue to Congress, not the president. Article 1, Section 8, reads: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposes and Excises shall be uniform throughout the United States.”
This clause was almost the whole game. Control over the nation’s money, sometimes called the power of the purse, was central to the Framers’ concept of republican government. The American Revolution took shape over the determination of colonists to have a say in how their government raised money, a right first articulated in the Magna Carta that in 1215 established the principle that the king did not enjoy absolute power. A key check on him was that he could not pass revenue measures without the consent of the governed.
And so the Framers put it in the Constitution.
But control over the revenue was not quite the whole game. The Framers were also crystal clear that the people must have control over the decision to go to war. They did not trust that much power in the hands of one man and wanted to make sure the American people would have robust debates about the value of the money and lives lost in combat. So determined were they for the American people to have those debates that they wrote into the Constitution that Congress had the sole power “[t]o declare War” and “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”
Here, too, Trump has used the idea of an emergency to sidestep Congress’s authority by insisting the threat from Iran was “imminent” even though his own advisors testified that Iran did not, in fact, have the capacity to build a nuclear weapon in less than ten years. Under the 1973 War Powers Act, a president has the authority to respond to an “imminent threat” without congressional approval so long as he notifies Congress in writing within 48 hours. Then the president has 60 days either to withdraw U.S. forces from their engagement or to get Congress to authorize the military action.
Trump launched U.S. attacks on Iran on February 28. He notified Congress on March 2. Sixty days from March 2 was May 1. When that deadline arrived, Trump sent letters to House speaker Mike Johnson (R-LA) and Senate president pro tempore Chuck Grassley (R-IA), officially the leader of the Senate if the vice president is not present, to inform them that so far as the White House is concerned, “the hostilities that began on February 28…terminated” on April 7, when Trump ordered a two-week ceasefire.
Although hostilities and a U.S. blockade of Iran continued, the administration maintained the ceasefire was in place until July 10, when Trump notified Congress for a second time that the nation was engaging in military action in Iran. The administration maintains that this second notification is for a new military engagement and thus restarts the clock under the War Powers Act. Legal analysts say this interpretation has no basis in law, legislative history, or practice.
The Trump administration is claiming the powers of Congress both to tax and to declare war, key powers the Framers established the American people’s right, through their representatives, to control.
When Senator Angus King (I-ME) and five Democratic lawmakers who sit on committees responsible for national parks and resources wrote in June to Interior Secretary Doug Burgum to oppose “in the strongest terms” Trump’s proposed triumphal arch, they pointed out that there are many different laws the construction would break. “Most fundamentally,” though, they wrote, the arch falls within an area called Area I that Congress established in the 1986 Commemorative Works Act.
In that law, Congress specified that any commemorative work within Area I requires Congress to pass a law authorizing the memorial. The lawmakers wrote to Burgum: “Because the site is in Area I, the Act requires a second, separate approval, under which Congress must enact a law ratifying the Area I location within 150 days of the Secretary’s notification, following a determination that the subject is of preeminent historical and lasting significance to the United States. Congress has enacted no such laws. Analysis we requested from the Congressional Research Service in January reached the same conclusion: absent these authorizations, construction of an arch in Memorial Circle would not comport with the Commemorative Works Act. Since 1986, every memorial placed on federal land in the capital under the Act, more than forty in all, has come to Congress first…. The Arch’s sponsor has sought no act at all.”
“If the Administration believes the semiquincentennial warrants a permanent commemorative work in the capital,” they wrote, “the path is open and well worn; it runs through Congress, as it has for every memorial since the Continental Congress approved the first, an equestrian statue of George Washington, in 1783.”
Back in October 2025, when officials first acknowledged to reporters that Trump was planning to build an arch, a reporter asked Trump about a model of an arch that was sitting on the desk in the Oval Office.
“It’s an Arc,” he said. “Take a look.”
When a reporter asked who the arch was for, Trump pointed at himself and said: “Me.”
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Notes:
https://www.lawfaremedia.org/article/one-emergency-after-another
https://www.cbsnews.com/chicago/news/illinois-national-guard-general-president-trump-chicago-crime/
https://apnews.com/article/trump-tariffs-forced-labor-8ea8114c6893a6062cf1addc3518660b
https://www.nytimes.com/2024/07/13/books/review/carl-schmitt-jd-vance.html
https://www.nytimes.com/2024/06/13/opinion/jd-vance-interview.html
https://www.cnbc.com/2026/07/24/trump-tariffs-lawsuit-301-ieepa.html
https://www.archives.gov/founding-docs/constitution-transcript#1-8
https://www.politico.com/news/2026/07/13/trump-notifies-congress-of-new-war-against-iran-00995170
https://www.congress.gov/crs-product/IF11937
https://www.king.senate.gov/imo/media/doc/sen_king_letter_to_burgum_re_arch.pdf