The Dual State: How Lawless Power Operates Under the Law

The Two Tracks of Legal Existence

• ⚖️ The legal landscape in America is increasingly split into two distinct tracks: one for ordinary matters like divorce and contracts, and another for extraordinary actions like renditions without hearings.
• 🏛️ This division is explained by the concept of the "dual state," where a government operates a familiar zone of ordinary law alongside a domain of lawless, absolute authority.

The Prerogative State and "Switching"

• 🔑 The "prerogative state" allows the government to exercise absolute authority over individuals, unconstrained by ordinary legal rules.
• ⚡ A key element of the dual state is the existence of a "switch" that officials can pull to move individuals from the normative (ordinary law) state into the prerogative state, where no rules apply.
• 📜 This concept draws parallels to the prerogative powers claimed by Stewart monarchs in 17th century England before the Glorious Revolution.

Legal and Ethical Dilemmas

• 🧐 The dual state creates novel ethical dilemmas for lawyers, forcing them to navigate situations where losing a case might be better for a client than winning, to avoid further reprisal.
• ⚖️ Firms may face pressure to capitulate to unlawful executive orders, creating a conflict between defending legal integrity and weathering political storms.
• 🏛️ The Supreme Court's use of the shadow docket to issue preliminary rulings that appear to undermine established precedents, like Humphrey's Executor, exemplifies the blurring of lines between normative and prerogative power.

Examples of the Dual State in Action

• 🛂 Immigration cases involving detention or rendition based on perceived nationality or statements, without legal constraint, are cited as prime examples.
• ⚖️ Prosecutions and investigations targeting perceived ideological enemies, such as indictments of members of Congress or judges, also fall into this category.
• 💸 The arbitrary use of federal spending power to withhold funds from entities deemed "woke" or insufficiently diverse demonstrates the executive's discretion overriding legal relationships.

The Role of Emergencies and Judicial Power

• 🚨 Declarations of emergencies, such as those used to impose tariffs, can serve as a mechanism to activate prerogative powers and bypass ordinary legal constraints.
• 📉 The Supreme Court's decisions, particularly on the emergency docket, are seen as potentially enabling the prerogative state by issuing rulings that appear to disregard established law or precedent.
• ⚖️ While some judges adhere to normative legal principles, there's a risk of ambitious individuals seeking favor by embracing lawless executive actions, mirroring historical patterns of judicial co-option.