[archive link] While the article doesn't really go into this point, immigration courts (albeit to a much more limited extent compared to Nazi Germany) have always functioned as a sort of parallel...
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. [...] In this prerogative state, judges and other legal actors deferred to the racist hierarchies and ruthless expediencies of the Nazi regime.
While the article doesn't really go into this point, immigration courts (albeit to a much more limited extent compared to Nazi Germany) have always functioned as a sort of parallel legal system. Judges in immigration courts are not Article III judges but rather appointees of the Attorney General. In some sense, this is out of necessity: the federal judiciary is slow, understaffed, and overworked, so it makes sense to have specialized courts for immigration proceedings. Unfortunately, this structure means that immigrants lack rights that most would consider fundamental -- for example, the right to counsel. Moreover, since immigration courts are run by the executive branch instead of the judiciary, it is that much easier for the process to be corrupted by the policy goals of the President.
We can also see the rise of a prerogative judiciary in other ways, such as the invocation of the Alien and Sedition Acts against Venezuelan immigrants and the Immigration and Nationality Act of 1952 against Mahmoud Khalil, both of which bypass the normative judiciary.
In a dual state system such as Russia, both the normative and prerogative states exist simultaneously: the normative state is necessary to maintain stability and settle, for instance, non-political business disputes. However, if the regime finds the outcome of a particular case unfavorable, then the defendant can find themselves suddenly within the purview of the prerogative state. The article gives a particularly chilling example:
In at least one case, a Gestapo agent appeared as soon as the judge declared a not-guilty verdict, took the defendant into custody, and said, “Kommt nach Dachau” (“Come to Dachau”).
Personally I think this dual state model is the most straightfoward way to contextualize Trump's actions. It has two advantages:
It fits the data.
It doesn't require Trump to understand the underlying theory.
I think Trump, fundamentally, does not consider himself to be someone to whom the law equally applies. Rather, having lived a life of privilege, he believes that he is owned certain prerogatives ("When you're a star, they let you do it. You can do anything"). Even something as seemingly nonsensical as tariffs fits neatly into this framework: without any input from the rest of the government, Trump is able to carve out exemptions for friends while punishing everyone else.
I also found this useful, particularly to help explain how ordinary citizens allow such things to happen. The dual state framing allows most people, especially those with privilege, to go about...
I also found this useful, particularly to help explain how ordinary citizens allow such things to happen. The dual state framing allows most people, especially those with privilege, to go about life as normal. They don't feel compelled to act because little or nothing significant has changed for them.
As a middle aged straight white male, nothing really has changed for me, and it's unlikely things will in the near future. But I'll be damned if I stand by and do nothing while the system is altered to allow close friends of mine to be sucked into a dark parody of the legal system (which is already flawed enough to begin with).
I sent this to my brothers, who live in a different state. I'm hoping our helps illustrate why I'm often angry about what's happening, even though from their perspective inside the conservative bubble nothing bad is happening. Or if it is, it's not bad enough to bother going anything about.
While the article doesn't really go into this point, immigration courts (albeit to a much more limited extent compared to Nazi Germany) have always functioned as a sort of parallel legal system. Judges in immigration courts are not Article III judges but rather appointees of the Attorney General. In some sense, this is out of necessity: the federal judiciary is slow, understaffed, and overworked, so it makes sense to have specialized courts for immigration proceedings. Unfortunately, this structure means that immigrants lack rights that most would consider fundamental -- for example, the right to counsel. Moreover, since immigration courts are run by the executive branch instead of the judiciary, it is that much easier for the process to be corrupted by the policy goals of the President.
We can also see the rise of a prerogative judiciary in other ways, such as the invocation of the Alien and Sedition Acts against Venezuelan immigrants and the Immigration and Nationality Act of 1952 against Mahmoud Khalil, both of which bypass the normative judiciary.
In a dual state system such as Russia, both the normative and prerogative states exist simultaneously: the normative state is necessary to maintain stability and settle, for instance, non-political business disputes. However, if the regime finds the outcome of a particular case unfavorable, then the defendant can find themselves suddenly within the purview of the prerogative state. The article gives a particularly chilling example:
Personally I think this dual state model is the most straightfoward way to contextualize Trump's actions. It has two advantages:
I think Trump, fundamentally, does not consider himself to be someone to whom the law equally applies. Rather, having lived a life of privilege, he believes that he is owned certain prerogatives ("When you're a star, they let you do it. You can do anything"). Even something as seemingly nonsensical as tariffs fits neatly into this framework: without any input from the rest of the government, Trump is able to carve out exemptions for friends while punishing everyone else.
I also found this useful, particularly to help explain how ordinary citizens allow such things to happen. The dual state framing allows most people, especially those with privilege, to go about life as normal. They don't feel compelled to act because little or nothing significant has changed for them.
As a middle aged straight white male, nothing really has changed for me, and it's unlikely things will in the near future. But I'll be damned if I stand by and do nothing while the system is altered to allow close friends of mine to be sucked into a dark parody of the legal system (which is already flawed enough to begin with).
I sent this to my brothers, who live in a different state. I'm hoping our helps illustrate why I'm often angry about what's happening, even though from their perspective inside the conservative bubble nothing bad is happening. Or if it is, it's not bad enough to bother going anything about.