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Aziz Huq (a U of Chicago constitutional scholar) has a sobering Atlantic article on the recent US evolution towards a dual state, a term coined by Ernst Fraenkel between 1938 and 1941 from his experiences living in Nazi Germany as a Jewish lawyer (who served in the German Army on the Eastern front during WWI).
Excerpts from the article:
Title: AMERICA IS WATCHING THE RISE OF A DUAL STATE
Subtitle: For most people, the courts will continue to operate as usual—until they don’t.
As Fraenkel explained it, a lawless dictatorship does not arise simply by snuffing out the ordinary legal system of rules, procedures, and precedents. To the contrary, that system—which he called the “normative state”—remains in place while dictatorial power spreads across society. What happens, Fraenkel explained, is insidious. Rather than completely eliminating the normative state, the Nazi regime slowly created a parallel zone in which “unlimited arbitrariness and violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary law didn’t apply.
The key here is that this prerogative state does not immediately and completely overrun the normative state. Rather, Fraenkel argued, dictatorships create a lawless zone that runs alongside the normative state. The two states cohabit uneasily and unstably. On any given day, people or cases could be jerked out of the normative state and into the prerogative one.
What the Trump administration and its allies are trying to build now, however, is not. The list of measures purpose-built to cleave off a domain in which the law does not apply grows by the day: the pardons that bless and invite insurrectionary violence; the purges of career lawyers at the Justice Department and in the Southern District of New York, inspectors general across the government, and senior FBI agents; the attorney general’s command that lawyers obey the president over their own understanding of the Constitution; the appointment of people such as Kash Patel and Dan Bongino, who seem to view their loyalty to the president as more compelling than their constitutional oath; the president’s declaration that he and the attorney general are the sole authoritative interpreters of federal law for the executive branch; the transformation of ordinary spending responsibilities into discretionary tools to punish partisan foes; the stripping of security clearances from perceived enemies and opponents; the threat of criminal prosecutions for speech deemed unfavorable by the president; and the verbal attacks on judges for enforcing the law.
For that reason, it shouldn’t come as a surprise that Trump’s lawyers—despite running roughshod over Congress, the states, the press, and the civil service—were somewhat slower to defy the federal courts, and have fast-tracked cases to the Supreme Court, seeking a judicial imprimatur for novel presidential powers. The courts, unlike the legislature, remain useful to an autocrat in a dual state.
Building a dual state need not end in genocide: Vladimir Putin’s Russia and Lee Kuan Yew’s Singapore have followed the same model of the dual state that Fraenkel described, though neither has undertaken a mass-killing operation as the Nazis did. Their deepest similarity, rather, is that both are intolerant of political dissent and leave the overwhelming majority of citizens alone. The peril of the dual state lies precisely in this capacity for targeted suppression. Most people can ignore the construction of the prerogative state simply because it does not touch their lives. They can turn away while dissidents and scapegoats lose their political liberty. But once the prerogative state is built, as Fraenkel’s writing and experience suggest, it can swallow anyone.
