The “Dual State” Theory Was Invented to Describe Nazis. The Supreme Court Could Take Us There.

Mother Jones illustration; Tomasz Zielonka/Unsplash

Perhaps the most brazenly illegal action of President Donald Trump’s second term so far took place on his first day in office: an order to deny birthright citizenship to thousands of newborns. Within months, the question had reached the Supreme Court. But rather than affirm the right to birthright citizenship, which is plainly enshrined in the Constitution, the high court used the case to strip lower courts of the ability to issue nationwide emergency relief in most cases—now only those who sue can get reprieve. Instead of halting the administration’s lawless action, the justices made it easier for Trump to get away with future illegal abuses. 

In her dissent, Justice Ketanji Brown Jackson accused the majority of facilitating a two-track system of justice: One for those with the resources to challenge illegal actions, and a second where those without recourse are subjected to the president’s illegal whims. “The law-free zone that results from this Court’s near elimination of universal injunctions is not an unfamiliar archetype,” Jackson wrote^[2]. It is, she added, “eerily echoing history’s horrors” that “the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular.”

To eliminate any doubt about which historic “horrors” she had in mind, Jackson included a footnote citing Ernst Fraenkel, a Jewish labor lawyer who observed the transformation of the German legal system under Adolf Hitler. When Fraenkel fled Berlin in 1938, he smuggled out a manuscript on the legal mechanisms of Nazi authoritarianism. He eventually came to the University of Chicago and in 1941 published The Dual State: A Contribution to the Theory of Dictatorship^[3]. Fraenkel’s work has seen a resurgence of interest in the United States in recent^[4] months^[5] because it provides a framework for a phenomenon we are increasingly experiencing under the second Trump administration: How a dictator can exercise unfettered power while life appears ordinary for most people. Or, as Jackson observed, how a “zone of lawlessness” can swallow some, while the rest go about their lives under the protection of the law.

In the Third Reich, Hitler’s will replaced German law. Whatever he wanted, he did. If anyone was perceived to threaten the Nazi project of a fascist ethno-state, no legal protection could save them. Fraenkel called this realm the “prerogative state.” But the broader legal system didn’t immediately crumble under arbitrary rule. To the contrary, the Nazis purposefully left some of the existing legal system intact in the 1930s and courts were allowed to function, particularly in areas of contracts and other economic concerns. This parallel “normative state,” Fraenkel observed, enabled Germany’s capitalist system to continue against the backdrop of an uninhibited regime. Most Germans generally lived in the law-bound normative state, while Jews and other disfavored people were victims of the arbitrary and violent prerogative state. The dual state is thus two-faced twice over: it is characterized by a bifurcation in the law, but also by the facade of normalcy obscuring the fact of an authoritarian state.

Life in the early months of Trump’s second presidency hews to this framework in important respects. How else to explain that most people enjoy a sense of normalcy while, for example, foreign students like Rümeysa Öztürk^[6] and green card holders like Mahmoud Khalil can be detained^[7] for their speech. Americans and immigrants alike can be terrorized^[8] by ICE^[9], the federal government’s unleashed immigration force, if they speak Spanish, look nonwhite, or happen to be in the wrong place at the wrong time. The administration is sinking Venezuelan vessels and executing the civilians on board without any legal authorization—killings that look like war crimes or murder. The government demanded that Disney fire comedian Jimmy Kimmel as if the First Amendment didn’t exist. But at the same time, the Trump administration’s law-breaking in its war on immigrants, its crusade against dissent, its takeover of the machinery of the federal government, its unrestrained use of the military, have not cannibalized the broader legal system or society—at least not yet. 

While these actions augur the onset of a dual state, the Trump administration hasn’t gotten us to this point alone. The Supreme Court, with its Republican-appointed 6-3 majority, has been a crucial facilitator. When the court blesses the administration’s disregard for the law while maintaining the appearance that the law still rules, it is enabling a dual state. When Jackson made explicit reference to Fraenkel, she was sounding an alarm on the court’s role in the shift toward a dual state. As Evan Bernick, a constitutional law professor at Northern Illinois University College of Law, puts it: “The reality is that the court is adjusting the law to make place for arbitrary power.”

With the Supreme Court beginning its next term this week, the question hanging in the air is whether the Republican-appointed majority will finally draw legal boundaries to fence in the president or, confronted with Trump’s demands for ever-increasing power, it will revise or abandon the law to accommodate him. The results could consolidate a dual state or, in the extreme, extend Trump’s leash so far that all Americans begin to feel the effects of his unbridled powers—the onset of an authoritarian state without the dual state’s pretense of normalcy.

In three major cases, the Supreme Court will be addressing a key feature of a dual state: the ability of the government to switch a person or entity from the normative state and the protection of the law to the prerogative state, where the laws do not apply. Emergency powers, like the ones Trump has cited in these cases, are a quintessential switch.

In November, the justices will hear oral arguments over Trump’s sweeping tariffs. In his first three months in office, Trump announced^[10] tariffs on dozens of countries. Tariffs are Congress’ bailiwick, but Trump claimed power to impose them under the 1977 International Emergency Economic Powers Act. That law gives presidents power to respond to “any unusual and extraordinary threat” from abroad, but does not explicitly name tariffs as an available tool. Citing the Roberts Court’s own recent precedents^[11], the lower courts found that the president cannot unilaterally impose such a major policy—indeed, a policy that could hamstring both the United States and global economies. The question, as UC Berkeley Law Dean Erwin Chemerinsky wrote^[12] last month, is “Will the conservative justices adhere to what they have said and held recently, or will they just rubber stamp whatever Trump does?” 

The case will be an important signal of whether the United States is operating as a dual state. If the justices abandon their legal principles in order to give the president more power, but do so under the color of law, then they will be bowing to the prerogative state while maintaining the illusion of the normative state.

Though it is not currently on the court’s docket, the justices will likely have to confront the question of whether Trump can once again use the specter of an emergency—even a pretend one—to round up and deport people. Since March, Trump has claimed the power to invoke the Alien Enemies Act with the baseless assertion that Tren de Aragua is invading the United States. This case^[13], if it reaches the Supreme Court, will similarly test the justices’ willingness to maintain the guardrails around presidential power or whether, when it comes to the president’s targets, the law suddenly does not apply.

The justices will also consider the president’s attempt to remove Lisa Cook from the Federal Reserve Board of Governors even though her position is protected from firing except for cause. Trump claims sufficient cause in allegations of mortgage fraud—allegations that are factually weak and unproven. If the court blesses this as sufficient for immediate removal, even as the dispute moves forward in the lower courts, it will have ultimately handed control of the Federal Reserve to the president, unlocking Trump’s ability to control interest rates and transform^[14] the Fed’s coffers into a personal slush fund. Worse, Trump could use the Fed to withhold access to the financial system to any entity or individual who crosses him. It’s hard to overstate the degree to which the entire economy could tumble into the prerogative state if Trump were to stack the Federal Reserve Board with loyalists.

Should the court hand Trump the unchecked power to declare emergencies, invasions, and causes for removal, it would give him a legal tool that can nullify the law he claims to be invoking. As Aziz Huq, a constitutional scholar at the University of Chicago explains, in a dual state, the high “court’s role is in creating affordances within the law that operate as off switches for the law… The classic example of that is the emergency powers article in the Weimar Constitution that was used to switch off the Weimar Constitution.” It’s lawlessness dressed up as law.

The Supreme Court is also facilitating the creation of a dual state through its emergency or “shadow” docket, where the court issues decisions in cases it has taken up outside of its typical procedures. In the first nine months of Trump’s second term, the six Republican-appointed justices have issued weakly or unexplained orders via this docket that switched off legal constraints on the president. They’ve blessed Trump’s^[15] firings^[16] of federal officials—despite those firings being illegal—enabling Trump to take^[17] control^[18] of bodies that Congress created to be bipartisan and independent, and to hollow out^[19] other agencies beyond^[20] what the law allows. It used it to reinstate^[21] Trump’s ban on transgender service members in the military, greenlighting a policy unconstitutionally animated by disdain for a minority group. In the realm of immigration enforcement, a shadow docket decision allowed^[22] the administration to violate federal and international law to send immigrants to dangerous places like South Sudan, and sanctioned^[23] the administration’s policy of racially profiling people as part of its immigration enforcement toolkit, subjecting^[24] both citizens and immigrants alike to harassment and inhumane detainment. The court even used the shadow docket in the birthright citizenship case to stop the lower courts from issuing universal relief from these abuses. When Trump refused to spend $4 billion in foreign aid appropriated by Congress, the Supreme Court used the shadow docket to let him ignore the law^[25] and withhold the money—even though Congress is supposed to have the power of the purse. 

“A prerogative state situation is a situation where it seems like there’s this rule that should apply and require X—and then all of a sudden, it’s Y,” says Bernick. “The court says it’s Y and there’s no explanation that’s given. That is a dual state situation. And that’s one of the frightening things about the shadow docket.”

In The Dual State, Fraenkel recounts how the German courts allowed landlords to stop renting to Jews in the 1930s, even though tenancy laws protected Jewish and Aryan renters alike. “The courts therefore had to choose between doing their duty and applying the law for the protection of the defenseless victim or sacrificing justice to the demands of National-Socialism,” Fraenkel wrote. Initially, courts protected Jewish renters. But after the Nazi press criticized those decisions, the courts changed their tune—not by reinterpreting the law, but by forgoing with the business of law entirely; a decision Fraenkel cites from the Appellate Court of Berlin held that the “question before the court is not a problem of the law of landlord and tenant, but a question involving a fundamental outlook on life.” In complying with the Third Reich, the courts elevated Nazi policies, as Fraenkel put it, “above the laws.” 

It’s hard not to see echoes of this in the court’s current use of the shadow docket. Often, the court’s orders, issued with little or no explanation, don’t even attempt to find justification in the law. The law appears ignored. Take the decision last month to permit ICE officers to racially profile people who don’t look white. After years of decrying any state use of race to differentiate between people, the court allowed^[26] ICE to use race without any explanation. Only Justice Brett Kavanaugh attempted^[27] a justification, though it was the legal equivalent of swiss cheese. 

“ICE is the face of a prerogative state, emerging or actual: It swoops in, it ignores safeguards, you can’t escape it,” says Bernick. “A Supreme Court that gets out of the way in that context, where the state is at its most brutal, and tries to manage everything else as normal, is a dual state Supreme Court.” 

The key to understanding the Supreme Court’s interest in creating a dual state—and how close the United States actually is to becoming one—is that the normative state is not truly a safe zone. While the dual state framework generally refers to the law-bound normative state and the lawless prerogative state, that doesn’t capture the dual state Fraenkel described.

Under the Nazis, the normative state proved to be a fiction. As much as the Nazis wanted to use the courts to preserve the country’s capitalist economy, they would never be constrained by them. “Where the Prerogative State does not require jurisdiction, the Normative State is allowed to function,” Fraenkel wrote. “The limits of the Prerogative State are not imposed from the outside; they are imposed by the Prerogative State itself.”

In such a dual state, the normative state remains a useful illusion, but it is not truly bound by the rule of law. Huq, who is working on a book about Fraenkel’s theory and today’s United States, suggests that Fraenkel thought of the prerogative state as something like a black hole: “It’s this void, but it’s a void that exerts a gravitational pull on everything around it. So there’s this constant distortion of what he calls the normative state. And there are these moments where some piece of the normative state just gets collapsed and blown away.”

As long as there are actual limits, a real safe zone, the United States is not a Fraenkelian dual state. Öztürk and Khalil were eventually released from detention on judges’ orders, while Kilmar Abrego Garcia, whom the administration deported in violation of a court order and then claimed it did not have to retrieve him, did finally bring him back. While these are signals that a true dual state hasn’t yet arrived, their situations remain touch-and-go, with the administration still attempting to deport Khalil^[28] and Abrego Garcia^[29] to farflung nations. Similarly, insofar as the Supreme Court actually is a critical facilitator of Donald Trump’s increasingly unfettered power—which would also mean it retains its authority to limit the administration’s actions—then Trump has not succeeded in creating a true prerogative state. 

However, the justices appear to have a keen understanding, possibly intuitive, of Fraenkel’s dual state theory. In recent months, the court’s Republican wing has let Trump opt out of following the law virtually every time Trump has asked the justices for a hall pass. Covetous of their authority, this improbable winning streak—some 21 shadow docket cases^[30]—may actually signal the conservative justices’ unwillingness to cross him. They may realize that should Trump defy the court, it would mean that the court’s authority was, just as in Fraenkel’s world, an illusion of normalcy projected by the prerogative state to lull the masses into complacency. 

The Republican appointed justices, to the extent the United States has become a dual state, would rather stave off such a collapse, not least because their legitimacy and power relies on such a mirage. Thus, they prefer a hidden authoritarianism to one that is out in the open. And more than anyone else, the justices are in the position to paper over Trump’s lawlessness or expose it. But this is precisely why the dual state is so dangerous: It allows the would-be autocrat to consolidate power under the cloak of democracy and norms.

Clearly, the Republican appointees are not mere victims of Trump’s authoritarian aims. Their role in the creation of a dual state began before Trump’s second term. Kim Lane Scheppele, an expert on authoritarian regimes at Princeton, has documented^[31] the ascendance of “autocratic legalism,” a modern form of authoritarianism that uses existing laws and constitutions to ultimately subvert those guardrails and establish an autocratic state. To succeed, she notes, autocrats must inherit an already weakened democracy or first weaken it substantially; a robust democracy is much harder to conquer.

Any account of America’s sclerotal democracy must include the Supreme Court. As often happens in backsliding democracies, the US’ highest court has been captured by loyalists to the autocrat. Between 2017 and 2020, Trump appointed three Supreme Court justices when, under historical precedent, at least one if not two of those seats should have gone to the Democratic president who either preceded or succeeded him. In other words, the current court is the result of a partisan plot to seize power through court appointments, enabled by a president who took office without majority support. But even before those appointments, the Supreme Court under John Roberts—he has been its chief for 20 years^[32]—was already facilitating the US’s democratic decline. From voting rights to campaign finance, the Roberts Court has repeatedly interfered^[33] with the machinery of a healthy democracy. 

A dual state is a legal artifice of authoritarianism, and under Chief Justice John Roberts, the Supreme Court inflated the powers of the president in case^[34] after case^[35], as critics^[36] warned^[37] that the justices were paving the way to autocracy. The capstone in this progression was Roberts’ July 2024 opinion granting former presidents immunity^[38] from criminal prosecution for most official acts. “It’s basically saying Congress cannot constrain the President with criminal statutes,” Scheppele previously explained^[39] to Mother Jones. “So then why should Congress be able to constrain the President with appropriation statutes or anything else?” 

You can look at these Roberts court opinions building up to the immunity decision, says Huq, as giving “the presidency the option, essentially, to opt out of statutory laws.” The opinions created a dual state mechanism wherein the Constitution itself could be used to switch off the law when it comes to the president. In his book, Fraenkel defined the “principle of the inviolability of law” as meaning that “once the sovereign has promulgated a law, he may not violate it at his discretion” and explained that its abandonment is quintessential to the prerogative state: “The complete abolition of the inviolability of law is the chief characteristic of the Prerogative State.” It’s likely no accident that a year after Trump was given the unregulable power^[40] to launch sham prosecutions of political enemies, he is doing just that^[41]. 

Why would a dictator prefer a dual state to an overtly authoritarian regime? In Fraenkel’s telling, the normative state served the Nazis’ aims by maintaining an illusion of normalcy, especially in economics. Similarly, an American president with authoritarian ambitions would be more likely to realize them if people thought their lives wouldn’t be affected. The Republican wing of the Supreme Court has a self-interest in a dual state as well; without the illusion of the normative state, the justices’ are revealed to be pawns, not power brokers. Their authority would evaporate because it is based on the perception of the rule of law. But maintaining a stable dual state means that the prerogative state must hold itself back, particularly in when it comes to the economy—the black hole cannot grow too large.

The upcoming term contains key tests of whether this administration and this court can maintain the sort of dual state that reassures voters and financial markets. In May, the Supreme Court used the shadow docket to allow^[42] Trump to fire commissioners on the National Labor Relations Board and Merit Systems Protection Board, even though the law prohibited their removals. But in its order, the GOP appointees attempted to protect the similarly-situated Federal Reserve Board from Trump’s firing authority. “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” the opinion stated. That exemption isn’t actually grounded in any set of laws or precedents—and neither is the Fed board quasi-private^[43]. But the distinction’s utility in a dual state context is clear: hand Trump control of every other agency but reassure the markets by protecting the Fed. As Bernick put it, “It’s like the court is offering, ‘We’re going to help you. We’ll do this for you. And if you want to have a dual state, we’ll give it to you.’”

Unappeased, the administration is back before the court in the Lisa Cook case, again pushing it to hand Trump control of the Fed by allowing him to remove members for obviously pretextual “causes.” The dual state response would be to fashion a compromise in which the court both lets the administration remove Cook while also calming the markets by making it seem like a complete Trump takeover of the nation’s monetary policy is not about to happen. That balancing act may be impossible. “The paradox is that if the markets don’t believe you, because they see through it, then you don’t have a dual state,” says Bernick. “If it’s too transparent that what’s going on here is just capitulation to authoritarians who want to do whatever they want, then you don’t have the normative state. And then markets get spooked because they like the normative state.”

The tariff case carries the same economic perils for the dual state—and the administration seems to know it. Its reassurances in its briefs in both^[44] cases^[45] that its positions will only help the economy are likely its own attempt to calm both the justices and the markets. Similarly, Trump’s decision^[46] in April to back off his most extreme tariffs when bond prices began to wobble signals that the administration is aware, at least on some level, that a takeover of the machinery of the economy is self-defeating. And yet, the desire to seize this power and quite likely wield it in aggressive and economically disastrous ways has been a feature of Trump’s second term. “You can read Fraenkel as a story of inevitability; going back to the black hole, at some point the prerogative state just sucks everything in,” says Huq. “That’s one version of the story, where the dual state eventually collapses into a single prerogative state.” 

Justice Jackson’s warning in the birthright citizenship case tries to halt the shift to authoritarianism before it is too late. In her dissent citing Fraenkel, she tells the public that the Republican appointees are not applying the law so much as clearing it out of Trump’s way. “To hear the majority tell it, this suit raises a mind-numbingly technical query” about the historical analogues to universal injunctions, she wrote. “But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?”

The dual state is dual in two respects: First, it divides the law into the prerogative and normative zones; next it uses the normative zone to create an illusion of normalcy to cover up an authoritarian reality. This “smokescreen” sustains the economy and fosters acceptance by the people until it’s too late. Jackson accuses her colleagues of creating this dual state on both tracks: first, by sanctioning a zone of lawlessness, and second, by pretending that doing so is business as usual. But, she warns, “Were courts unable or unwilling to command the Government to follow the law—they would ‘sanctio[n] a tyranny.’”

Jackson, in the court’s minority, cannot stop her colleagues from hastening this tyranny. But in her dissents, she can blow their cover.