Relying on the Constitution as a meaningful guardrail demands an underlying, almost pious belief in the good faith of political actors adhering to a shared set of values and processes enshrined in the Constitution. America’s Founding Fathers believed in checks and balances, but they also believed that the people who would hold public office would demonstrate both private and public virtue.
In his 1835 treatise Democracy in America, Alexis de Tocqueville observed that the U.S. legal system was designed for adaptability, but anchored by an underlying expectation of moral restraint. He noted that "in the formation of the laws, it has been given the means to follow the natural instability of its inclinations." For roughly 240 years, the Constitution has held strong because political leaders have generally colored within its lines in good faith, keeping faith in the process, as described by Yale Law professor John Witt.
Instead, Trump channels the spirit of Andrew Jackson, whose painting Trump brought into the Oval Office during his first term. Following the 1832 Supreme Court decision in Worcester v. Georgia, in which Chief Justice John Marshall ruled that states had no legal authority over sovereign Cherokee territory, Jackson apocryphally scoffed, “John Marshall has made his decision; now let him enforce it.”
Perhaps the most alarming truth of all is that many of Trump's biggest offenses against democracy are not technically illegal. They are legal exploitations of systemic loopholes. Indeed, aside from whatever laws some believe Trump has broken, he has astoundingly found and exploited huge loopholes in existing laws and processes for his own advantage, with huge consequences for democracy.
Consider some startling examples of how Trump has legally exploited structural vulnerabilities and statutory loopholes to consolidate executive power as president.
Then, there is how Trump delegates congressional authority. Many of the most controversial powers Trump has used this term do not even fall directly under his Article II authority. Rather, they are powers assigned to Congress that have been delegated to the president so he can respond quickly to real threats such as terrorist attacks, foreign invasions, or internal rebellions. But by creatively defining these terms like “terrorism,” “invasion,” and “rebellion,” Trump has deployed these delegated powers more broadly than ever before. These include the power to revoke visas for international students and remove foreign nationals under the Alien Enemies Act, or to deploy the National Guard and the military in D.C. and in several states.
This power is evident in how Trump maintains control over all executive branch employees. The so-called “unitary executive” theory vests “all the executive power” in the singular person of the President. That means that Trump sees everyone who is subordinate to him, from cabinet officials to civil servants, as just little mini-mes whom he can hire and fire at will. Trump has wielded this theory to fire inspectors general, prosecutors, FBI agents, among many others.
Similarly, Trump initially exploited the International Emergency Economic Powers Act (IEEPA) to impose sweeping, unilateral tariffs. But after the Supreme Court invalidated IEEPA, Trump pivoted to a legal game of whack-a-mole. Almost immediately after the ruling, he simply rotated his legal justifications, announcing new universal tariffs under alternative authorities and citing different sections of the Trade Act to achieve the exact same goal, burying the courts and Congress in an endless cycle of new litigation, proving that when the judicial system finally closes one loophole, he simply bypasses the ruling by exploiting another.
He has also used the ambiguity of the 1887 Electoral Count Act to his own advantage. Following the 2020 election, Trump and his legal team exploited poorly drafted, 19th-century language in the Electoral Count Act. As prominent Harvard Law professor Laurence Tribe and conservative jurist Michael Luttig argued, the archaic law was dangerously flawed and fundamentally ripe for partisan exploitation. Because the original statute did not explicitly define the Vice President's role during the certification of electoral votes as strictly administrative, Trump's allies were able to build a pseudo-legal theory that former Vice President Mike Pence had the unilateral authority to reject state electors. Luttig publicly warned that unless lawmakers stepped in to fix the text, bad-faith political actors would simply use the exact same ambiguous framework to subvert future presidential elections—a genuine constitutional loophole Congress was finally forced to close with the Electoral Count Reform Act of 2022.
This takes us to Trump’s “run out the clock" subpoena strategy. Congressional oversight relies on the ability to subpoena documents and testimony. However, Trump realized that Congress has no independent enforcement arm; it must rely on the Department of Justice or the slow-moving federal courts. By asserting incredibly broad "absolute executive privilege" over virtually every administration official, Trump exploited the sluggish pace of the judicial system, tying up congressional subpoenas in court for years until the legislative term ended and the investigations expired.
So long as the aforementioned legal loopholes exist, Trump is likely to continue exploiting them.
Bankruptcy, tax evasion, and legal ambiguity
Strategic Chapter 11 corporate bankruptcies: Between 1991 and 2009, Trump's companies filed for Chapter 11 bankruptcy protection six times (mostly involving Atlantic City casinos). By exploiting loopholes in corporate restructuring laws, he largely protected his personal wealth while shifting large losses to banks, bondholders, and contractors, all while keeping his name on the buildings.
Emoluments Clause ambiguity: During his presidency, Trump retained ownership of his many businesses. While the Constitution’s Emoluments Clauses forbid a president from taking gifts or profits from foreign or domestic states, the lack of a clear statutory definition or enforcement mechanism allows his businesses to legally do business with foreign governments in spades.
In his 1707 piece, A Critical Essay upon the Faculties of the Mind, Jonathan Swift remarked, “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”
It is time for Trump’s many critics to wake up and realize that, despite his public buffoonery, they are not dealing with a bumbling village idiot tripping over rules through ignorance. Rather, he is a wasp who pushes the law’s limits. As long as some experts, political pundits, and congressional leaders maintain their antiquated faith in the cobwebs of process, relying on the good faith and shared values, Trump will continue to burst through America’s democratic safeguards.
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