← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Two Tracks of Justice
01:16:06
Why everything feels so bad right now, even if your life isn’t materially changing.
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- [00:01]
Dahlia Lithwick
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- [00:27]
Mark Joseph Stern
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- [01:07]
Dahlia Lithwick
I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts and the law and the Supreme Court. So, Secretary Noem, what is habeas corpus? Well, habeas corpus is a constitutional right that the President has to be able to remove people from this country to suspend their rights. Let me stop, ma' am. Habeas corpus. Excuse me, that's incorrect. We have been thinking a lot about how there seem to be two tracks of legal existence right now in America. One is a system of divorce law and parking tickets and contracts and the other is a system of renditions without hearings to third party countries for the rest of your life. Later on in the show, I'm talking to the University of Chicago Law School, Zaz Huq, about an idea that explains a lot about what the Trump administration is trying to do with the American legal regime. It's called the Dual State and it explains how it is that the legal universe is being reshaped right under our feet, even as it feels to many of us like nothing has changed at all. But first, RIP Humphreys Executor. Late on Thursday, the Supreme Court handed down a profoundly important decision calling into question the fundamental underpinnings of a 90 year old precedent called Humphrey's Executor v. United States. That case upheld the constitutionality of removal protections for members of independent agencies. And we're gonna talk now to co host Mark Joseph Stern about how, how this happened in a two page order on the shadow docket and what it means for other agencies, including the Fed. So Mark, welcome back. Holy hell. Huge, huge, huge thing to drop just into the quiet of a Thursday night.
- [03:03]
Aziz Huq
Hi Dahlia. Yeah, the Supreme Court has been wrecking our Fridays lately and they decided to add a little variety by ruining our Thursday evenings with potentially a death sentence for Humphrey's executor. And there's no one I'd rather talk about about it with than you. But ideally I would like to not talk about it at all because what the Supreme Court did here is barely law, can hardly be rounded up to law, and is not really pretending to be law either. So even though this is Amicus, the podcast about courts and the law, let's just tell everyone that what SCOTUS did bears very little resemblance to law as we know it.
- [03:39]
Dahlia Lithwick
Yeah. And as we're going to get to in a second, Mark, you know who said that pretty much out loud? Justice Elena Kagan. It was as close as she's ever come, I think, to just being like, this ain't law. I hate this. Okay, so as I said, on Thursday, the court finally, finally issued an order in this case that they've been sitting on. It's a dispute about the President's power to fire two members of federal agencies. And it was, look, we probably expected this. That doesn't make it any better. By what looked to be, again, who knows, a 6 to 3 margin on the emergency docket, in a bare two pages, the majority seems to have held that the two officials must remain fired while this case winds its way through the lower courts. Which means, I think, that Trump has successfully seized complete control over agencies that Congress had actually designed to be balanced and bipartisan. This was not just protected, this was protected by pretty clear statute. So the big news is that the court, in so doing, may or may not, we don't know, have overturned a 90 year old precedent that we've talked about so much on the show, Humphreys. And we do know that the three liberals dissented. Mark, this is so technical. It is so urgently important. Can you just walk us through how the court seems to have just, as you said, invented some new law this week in yet another unsigned ruling on the shadow docket?
- [05:14]
Aziz Huq
Okay, let's recap. Donald Trump fired Gwen Wilcox of the National Labor Relations Board and Kathy Harris of the Merit Systems Protection Board. The NLRB protects unions. The MSPB protects federal workers. Those two women were protected from removal from the President by federal law. Congress enacted a statute that said the President cannot fire members of the NLRB or the MSPB without good cause. And there was no good cause here. But Trump fired, fired them anyway. That was really doubly illegal. Congress prohibited it. And 90 years ago in Humphrey's executor, the Supreme Court upheld those protections against removal and said that on multi member federal agencies just like these, the President cannot remove members willy nilly or at a bare minimum, Congress can prevent him from doing so. So there's no question that Trump broke the law here. And yet the Supreme Court sided against Wilcox and Harris in this order without even mentioning Humphrey's executor ruling in a very cryptic decision that they exercise considerable executive power and that somehow the balance of harms favors the government being able to keep them fired.
- [06:36]
Dahlia Lithwick
And I think it's important to be really clear, the sentence Humphrey's executor has been overruled. Nowhere appears, as you say, this is a very preliminary decision. But by pausing it and doing so on the emergency docket at the highest level of abstraction, it sure looks like Trump is the entirety. He's the big boss of the world, the king, the head of the unitary executive. He's all the things, at least for the moment and just the practical implications. Mark, there's no chance that any of the other officials, officials that he's also axed, including FTC commissioners, they're not getting their jobs back under this holding.
- [07:16]
Aziz Huq
No, there's no way. You know, these are not the only two people Trump has illegally fired. As you said, there's FTC commissioners, there are others, and the Supreme Court just made it clear they ain't getting their jobs back, period. I will note the Supreme Court did not actually mention in the majority decision Humphrey's executor. It's like the case that shall not be named. I gave it too much credit in my summary because it didn't explain how it was working around Humphrey's executor. It didn't lay out like, here's what Humphrey's executor says and here's why we don't think it applies, or as you said, Dalia, even just acknowledge we're basically overturning it. The majority just ignored it, pretended that it didn't exist. And so that is as clear a sign as you could expect, I guess, from this court that Trump gets king like powers now that the unitary executive has arrived, that after nearly a century of a government where there are some agencies that have some independence, that are able to exercise their own expertise and knowledge and authority without direct control by the White House, that all that has been shattered and buried by a two page order that doesn't even name the precedent that it is effectively killing off. So just a very kind of slimy way of doing this. And it's preliminary, but I just don't think any rational person would read this to, to leave even a glimmer of hope that people Trump has illegally fired in these agencies are ever getting their jobs back.
- [08:42]
Dahlia Lithwick
The words Humphreys executor not here. And yet, weirdly, the implications of doing away with Humphries. And you and I have talked about this before on the show sweeps in the Federal Reserve, right? That was always the hesitation, like, go ahead, fire the heads of all the agencies. But like, y wouldn't want to do that. And if Humphrey's executor is gone, it has to be the case that the President could fire the Fed Chair too. So here, actually, the court does have some stuff to say. They're like, we're not going to talk about what we did, but we want to talk about what we're not doing. And this is just extra bonkers.
- [09:19]
Aziz Huq
This is wild. I mean, so we've talked on this show a lot about how the logic of the unitary executive theory that the Supreme Court just embraced here means that the President can meddle with and fire members of the Federal Reserve. Um, the, the, the Federal Reserve's independence, which is also enshrined in statute, is unconstitutional. The plaintiffs here, Wilcox and Harris, really sort of jumped up and down and lifted that up and told the court, watch out, because if you rule against us, you are going to effectively destroy the Federal Reserve and let Donald Trump the mad king, seize control of monetary policy and do whatever he wants, which could mean, you know, irresponsibly slashing rates, setting off ruinous inflation, whatever. And so the majority, I guess, with an eye on their 401ks, right, adds this random paragraph at the very end saying, oh, but don't worry, what we just did does not apply to the Federal Reserve because it is, quote, a uniquely structured quasi private entity that follows in the distinct historical tradition of the first and Second Banks of the United States. And so magically, with a wave of the wand, this decision does not apply to Jerome Powell and he gets to remain chair of the Federal Reserve, and all of the Justices can still afford to retire. I mean, it's just again, not remotely close to law in any recognizable way. Every agency is uniquely structured, right? And the Federal Reserve Board of Governors itself is not a quasi private entity. And every agency has its own distinct historical tradition. There's nothing about this sentence of chum that the Supreme Court dropped in the water here to show why the Federal Reserve has some special constitutional status. I mean, basically, the Court is constitutionalizing central bank independence, which I think is a good thing as a matter of policy and I guess as a matter of law. But I would love it if the Court gave us exactly one sentence of constitutional analysis explaining why? And they couldn't even muster that. All they could really say was the Fed is special, it keeps us all rich and we don't want Trump to get his hands on it.
- [11:31]
Dahlia Lithwick
Yeah, it's sort of the but not my money carve out. Beyond that, we have no actual explanation about why. I think we have to talk about Justice Elena Kagan's descent as we've both suggested. She's joined by Justices Sonia Sotomayor and Ketanji Brown Jackson and she is like, she's not mincing words here. She cycles through the stages of grief in the span of her eight pages. I guess we need to talk about how just gobsmacked she is that this is being done on the shadow docket. And she is very, very clear this is not why we have an emergency docket to willy nilly do away with a 90 year old precedent that everyone has relied on, everyone knows to be true just because Donald Trump decided to challenge it.
- [12:22]
Aziz Huq
Yeah, you know, I'm sure Justice Kagan could fire off like a hundred pages in defense of Humphrey's executor, but that's not really what she's doing here. And this goes to sort of a little bit of the fourth wall breaking that we, we keep talking about with Justice Kagan where she's inc. Closer and closer to just looking directly at the camera and laying out why her court is not acting like a court. I mean she says this is not what the emergency docket is for. The emergency docket does not exist for us to overrule precedent or change law. But that is what the majority just did. And I mean she's written a version of this many times. But here I think the critique lands so hard because the majority doesn't defend itself and can't defend itself. It obviously just suspended or, or, or maybe kill Humphreys executor in an emergency order. It reminds me very much of when the Supreme Court upheld or allowed to take effect the Texas abortion bounty hunter law months before it overturned Roe versus Wade. It's a similar sort of 12 step where we're in the first step right now. The Court is allowing something to happen that is plainly illegal under settled established law and forecasting that it will unsettle and disestablish that law in the near future. And I just think Justice Kagan is, is upset as a matter of pro and as a matter of the Court's own integrity that the majority would be willing to do this and try to pass it off as a lawful order when it is really, one of the more radical disruptions of the administrative state and the federal government that the Supreme Court has ever handed down.
- [13:56]
Dahlia Lithwick
Yeah, we've talked about this before, but it is a play, a kind of trademark John Roberts, Kapoor Kapoo. I just made gun hands. But, like, it is a trademark Roberts move where you do the. You do it small and invisible, and then you do it big. And it was inevitable. And this really feels like part of what she's calling out, but I think she's also. And this is, again, that fourth wall thing, coming closer and closer to saying, do you understand that you are rewarding one person, and that is the lawless Donald J. Trump? And I think she says that pretty explicitly. Again, we heard some of that. We've talked about it, including, you know, last week where she's questioning good faith in the birthright citizenship case. But here she's really saying, like, hey, majority, you are handing a win to somebody who wants to break the law. And she essentially says, quote, it should go without saying that the president must follow existing precedent, however strong he thinks, the arguments against it, unless and until he convinces us to reject what we previously held. Yet here, the president fired the NLRB and MSPB commissioners in the teeth of Humphreys and betting that this court would acquiesce, and the majority today obliges. End quote. So I think that there is this sense, Mark, that she's like, why are you giving him a win just because he asked for a win? That's not how any of this works. There is, again, this sort of level around it of judicial supremacy. Right. Like, we want to have skin in this game, and why are you taking us out of the game and letting him render us irrelevant. And then I think she goes on to criticize the majority's impatience to get on with things, to now hand the president the most unitary, meaning also the most subservient administration since Herbert Hoover and maybe ever, end quote. So she is just, I think, just calling it what it is, and that's gonna be really uncomfortable inside the building.
- [15:57]
Aziz Huq
Yeah, I mean, I think she's saying, to do this is bad, to do it for Trump is inexcusable. The line that I think is maybe most important in the whole dissent is the one you just quoted where she. The court is handing the president the most unitary, meaning the most subservient administration possibly in all of history. She is highlighting, in a way that I think justices rarely do, the real political and practical consequences of this, which is to allow Trump to act like a monarch, to seize this sweeping authority over the executive branch, to install his own lackeys and loyalists and to corrupt the mission of these agencies, which is truly to operate as a body of experts, as a balanced body of individuals who are looking out for what's best for the country, for the American people, how to enforce the law in a way that is fair and abides by Congress's wishes. And I think she's saying, you know, they're just not gonna do that. When Trump gets to fire the people he doesn't like and replace them with loyalists, all they're gonna do, and she doesn't say this exactly, but I think it's implicit, is weaponize these agencies as tools of retrib retribution for Trump, because that's what he is doing. He's using these agencies like, like the ftc, just to go after the people and institutions he doesn't like. He's already done it with the agencies he seized immediate control over, like the Justice Department, like the Department of Homeland Security, like the Department of State. Right. Going after student protesters, going after law firms, going after people doesn't like. And now he's going to get control of the independent agencies, which have just as much power, which is one reason why Congress wanted so badly to insulate them from direct partisan control by the White House. And now all of that is gone. And so I think what Kagan wants us to take away from this is again, that it is so profoundly dangerous for the majority to do this under Trump. And she points out something like 15 presidents have all lived with Humphrey's executor, have all tolerated this restriction on the removal power, and they've all been able to enact their agendas. They've all been able to get stuff done right. This has not been some kind of outrageous intrusion on their exercise of authority. And suddenly now it goes away for one Donald J. Trump. And that is maybe the biggest sin of it all.
- [18:14]
Dahlia Lithwick
And I do think that she is very, very expressly saying, and again, we have heard this from her before, you think you are deciding some abstraction that's in keeping with some age old theory that you have about how the executive branch works. And what you don't understand in practice is what this. And it is that sort of clarion voice that we're hearing from her more and more, I think, which is just, I don't understand. I do not understand how you can't see what I see. Let's end with this question, and it is the one that I think we're starting to be able to gather Some data about which is, how do we think about this pattern of this Supreme Court, the Roberts Court, and Donald Trump, and where is he gonna win and where is he gonna lose? And we've said on this show over and over, like Trump, please understand, you know, sometimes he will lose, but he's going to win big, particularly on these issues where a lot of these justices have dedicated decades of their lives to doing away with certain things, including deconstructing federal regulatory agencies, as we understand that. And I guess it leads me to ask this question of, like, are we starting to see a pattern? Right. Like, just a week ago, we were like, look at the majority insists that due process rights be given to migrants before they're deported. Like, this court really gets it. And evidently, whatever they get is elusive to me. So I wonder if you have some unified theory of what this signals about how the Roberts Court plans to kind of dole out wins and losses in the coming years.
- [19:56]
Aziz Huq
Yeah. So, look, I mean, it's not a unified theory. I think it's just an observation. But basically what we're seeing is that where the agenda of the President and the agenda of the Supreme Court conflict, the Supreme Court wants now increasingly to stand up and draw a line and assert its own independent power, which makes sense. The Supreme Court does not want to be reduced to just another layer of bureaucracy that the executive branch can disregard or blow through. Right. So in cases like the deportations of migrants, the Supreme Court is increasingly vocal, saying, you need to follow the law and our own orders. But in the cases where the agendas of the two branches coincide, the Supreme Court is like full steam ahead to Donald Trump on the unitary executive, on presidential power, on stuff like this, deconstructing the administrative state. The Supreme Court is like, absolutely, do whatever you want, Break the law, violate federal statutes, disregard congressional restrictions on removal. We will be behind you 100%. And it's not necessarily because all six conservatives love Trump, but it's because Trump is furthering their own vision of what the law should be, and they are happy to sign onto that. And I guess I just think that if they really believe they can just stay in these two separate lanes, they are diluting themselves. Because the more wins that this court gives Trump on the areas where the two branches agree, the less inclined Trump is going to be to adhere to the Supreme Court's rulings in areas where they disagree, the more victories that the Supreme Court gives, like this one, where it just blesses outright violations of the law because it happens to align with, like, how the Justices think the Constitution is structured, the more Trump is going to think, hey, I can get away with whatever I want. I illegally fired these guys and the Supreme Court rubber stamped it. And I think that those two lanes are going to start to merge and that Trump is going to feel more and more empowered to disregard the law in areas where maybe the Supreme Court doesn't want him to. And eventually, when the Supreme Court steps in one day and says, you can't do that, Trump might just say, well, too bad, I'm going to do it anyway. I mean, we're already really close to that line, right, with the arguable defiance of orders to bring back migrants. But I think we are just racing toward a day when the Supreme Court has humored Trump so much that when it does try to draw a line and say, not this one, President Trump, the president just says, too bad. You've already given me so much power that I'm just going to choose not to respect yours any further.
- [22:33]
Dahlia Lithwick
Yeah, I think we keep wondering, you know, which emperor is training the other, the Imperial Court or the Imperial President. And it sure feels as though where the rubber hits the road, the Imperial President wins a lot. And I'm not sure that the Supreme Court is training Donald Trump to think anything at all other than that he is the king. Mark Joseph Stern, it's always a treat to have you. Mark's going to join us on the flip side in the plus Members Only episode and we will talk to you soon.
- [23:09]
Aziz Huq
Mark, talk soon.
- [23:28]
Leon Nayfak
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- [24:20]
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- [24:56]
Dahlia Lithwick
This past week was, by virtually any metric, a week in which the law itself took a pounding. Department of Homeland Security Secretary Kristi Noem testified before Congress that habeas corpus means the precise Orwellian opposite of what habeas corpus actually means. The Trump administration violated a federal court order by deporting eight people to South Sudan, none of whom were South Sudanese, after they had been expressly directed not to send folks to third party countries. The Trump Justice Department withdrew from consent decrees overseeing racialized policing practices. The Pentagon accepted a $400 million plane from the Qataris. The so Donald Trump can fly around in a sky palace. And in an excruciating meeting at the Oval Office, South Africa's president joked, haha that he had no such gift to offer the president in exchange for America's respect. The Trump Justice Department charged a sitting congresswoman for assault for visiting a New Jersey detention facility. The list goes on and on and on. Much of this may not have changed the ways in which you managed your life. ICE probably didn't raid your house of worship this week. It's likely that nobody seized your student visa. You probably aren't personally under investigation for performing at a Kamala Harris rally or for saying that Joe Biden won the 2020 election. The law chugs along on two tracks, and you and I are very, very likely on a track that has changed not very much at all since the 2025 inauguration. There is a name for that phenomenon. Aziz Huq, who teaches law at the University of Chicago, wrote a piece in the Atlantic a couple months back that I have read and reread, and to which I returned yet again this week as a way of trying to unlock these ways in which Donald J. Trump's seismic assault on the legal system is probably not going to change your own personal legal landscape, at least not for a very long time. The piece is called America is Watching the Rise of a Dual State, and it helps to explain this split screen in which we are all currently suspended. Aziz Z. Huq is a scholar of US and comparative constitutional law. His recent work concerns democratic backsliding and the regulation of AI. He's the author of the Rule of Law, A Very Short Introduction, and before joining Chicago's law school faculty, he was counsel and then director of the Brennan Center's Liberty and National Security Project. Before we start. Welcome to the show. I think this piece, more than anything I've read in quite a while, has stayed with me. Stayed with me, stayed with me. And so I'm so happy you're here to talk it through.
- [27:49]
Mark Joseph Stern
Thank you so much for having me on Amicus Dahlia.
- [27:52]
Dahlia Lithwick
I thought we can just start right there with this piece and this term dual state, which I confess I'd never heard before, and I find it to be such a useful lens through which to answer this persistent question that I'm asked, I'm sure you're asked, like, is this a constitutional crisis yet? Is this fascism yet? Is this competitive authoritarianism yet? It's a question that I think assumes that these things happen all at once out in the open. And dual state helps me understand that's never how this operates at all. So could you just explain the term?
- [28:27]
Mark Joseph Stern
The term dual state was coined by a Jewish lawyer called Ernst Frankl in a book published in 1941. Frankl is an extraordinary man who is undeservedly forgotten today. He was a lawyer trained to work on particularly labor matters in the 1920s. In 1933, Jewish lawyers were banned from appearing in German courts. Frankl, however, had served in World War I and as a consequence of doing that, had a dispensation from the ban. Frankl chose to continue representing clients in the Berlin courts from the beginning of 1933 up until 1938, when he had to flee because he was targeted by the Gestapo. And in that period of working as a lawyer largely for clients who were socialists, who were workers, who were ordinary people who found themselves at odds with the Nazi regime. Frankl slowly built up a portrait of how the Nazi government at the time was constructing a zone of lawless and arbitrary power, while at the same time permitting many Germans to go about their ordinary lives without being disturbed or put off course by the existence of this lawless power. And Frankl called that the dual state. I think that the dual state theory, as Frankl describes it, has two key elements. The first is the legal system is split into two parts. On the one hand, there is the familiar zone of ordinary law applied in ordinary courts in ordinary ways. Frankl called this the normative state. On the other hand, there is something called the prerogative state. The prerogative state is a domain in which the government exercises lawless and absolute authority over individuals. The second and really important part of the dual state is the existence of a switch. By pulling a switch, an official moves a person from the normative state from the ordinary world of law into the prerogative state, a domain in which there are no rules that apply to that person. Here's an example of how the dual state worked. So Frankl in one case represented a number of workers who'd been fired by a union that had been taken over by the Nazis. He represented them in an ordinary court and he won a legal judgment on their behalf. And as a consequence of that legal judgment, there was money that was in the union's account that should have been transferred over to the workers bank accounts. A few days after winning the case, Frankl inquired and learned that rather than having the money moved from the union to his clients, that Gestapo had simply seized that money and put it into the state's coffers. That is, they turned a switch and negated the effect of a court judgment. And so what Frankl describes in his book the Dual State is how the state builds up this regime in which there are two domains, one characterized by lawfulness, the second characterized by lawlessness, and how it builds a series of switches in and outside the law whereby officials have essentially unlimited power and discretion to move people from the normative to the prerogative state.
- [32:18]
Dahlia Lithwick
Aziz, one of the things I was really struck by with your article was the degree to which Frankl was in this kind of very small cadre of Jewish lawyers who are still allowed to practice in Nazi Germany because, as you say, he was exempted because he fought for Germany in World War I. And so that weird sort of zig and zag of his biography makes it possible in a way for him to see and describe this duality, because he's crossing back and forth across the membrane between the normative state and the prerogative state. And I am very struck, as I'm asking you this question, by the ways in which the role of lawyers is so confounding right at this moment. I mean, there's all these executive orders. You know, there's attempts to go after law firms for retribution. But most huge law firms just live in the normative state, right? They do mergers and acquisitions. They have really wealthy clients. They don't get to cross that membrane. So they don't fully understand what it means as a law firm to say, okay, you know, we'll do all this pro bono work for Donald Trump and we'll agree not to ever cross him on anything because there's not a lot of lawyers practicing law, as you and I think of it, who actually ever brush up against the prerogative stage.
- [33:36]
Mark Joseph Stern
I Think that's right. And I think your question brings out two slightly different things about the insight that Frankl latched on through his experience and then that he put into his book. So the first is that Frankl, unlike not just many lawyers, but many intellectuals and political scientists, stayed in Germany as long as he could. And indeed, he was very close to members of a group called the Frankfurt School, and in particular a political scientist called Franz Neumann, who were close and I think generally are seen as very effective analysts of the Nazi regime. And what's striking about what Frankl describes is he captures a sense of the texture whereby the government at the time, at least in the 1930s, I think things change in the 1940s as the total war machine of the Nazi regime kicks into gear, dramatically changing the way that the economy, and therefore the way that the law works. But in the 30s, there's this unstitching that is partial, that is incomplete, which allows for this movement between the lawful and the lawless state, and that texture of how power is actually exercised. How people experience both the threat and the actuality of lawlessness, I think is in Frankl's work in a way that it is not in the work of even the German analysts, people like Franz Newman, people like Theodore Adorno, who really paid attention to the rise of the Nazi state and really thought about what was going on, but were thinking about it from outside Germany because they'd already fled. So Frankl's experience is distinctive because it captures the grain of actual experience in a way that others don't. And one of the elements of that experience that goes to this point that you made about the experience of lawyers or the predicament of lawyers, is the existence of a prerogative state creates a set of ethical dilemmas for lawyers that are utterly new and utterly distinct from what they have confronted in the past. So here's an example from Frankl's experience, and I think it connects to some of the ethical choices that were faced by the firms like Paul Weiss that were confronted by executive orders over the last three months. Frankl represented a man, just an ordinary person, who had been standing at a bus stop and had seen a picture of Hitler on a newspaper and had muttered under his breath, oh, that's a bunch of old cheese, which I take it, is more of a colloquial expression in German. He had been overheard by a member of the German military, and he'd been charged with disrespecting the Fuhrer. Frankl understood that in order to serve his client best, he had to go into court, into an ordinary court, and lose on behalf of his client. Because if he won, if he mounted an effective defense for this man, the client who was caught standing at this bus stop muttering under his breath, what would happen is that at the end of the trial, his client would be acquitted and a member of the Nazi secret services would walk in, clamp his hand on the client's shoulder, and take the client away. And so Frankl, in order to do the best by his client, had to lose. That is not a position that lawyers find themselves in when there is no dual state. A lawyer's obligation is fairly straightforward, I think. Similar to that ethical dilemma, the lawyers at the firms targeted by Trump's series of executive orders found themselves on the horns of a set of competing pressures that they simply have no experience in dealing with with. On the one hand, they're faced with an executive order that is, on its face, unlawful. It's an example, as he said, of viewpoint discrimination that is at the heartland of what the First Amendment prohibits. On the other hand, they know that litigating, even a plainly unconstitutional order takes a long time. They know that there is the possibility that other law firms, for example, Sherman & Sterling, will try and steal their clients, steal their rainmaking partners while that litigation is going on. And so they are faced with a choice of either standing on their rights, defending the integrity of the legal system, or capitulating in the hope that they will be able to weather the storm. In my view, capitulating was not just the wrong thing to do as a matter of law and as a matter of ethics. It was also profoundly counterproductive for the firms themselves. But the point here is that that ethical choice, that challenge or that dilemma was completely new. It was not something that those lawyers had experienced before, and therefore, they had no toolkit, they had no guidebook for thinking about what exactly was at stake, what exactly they were giving up when they agreed. Well, it's not really clear what they agreed to, right? But when they entered into these Faustian deals with the president, they just did not know what they were doing.
- [39:41]
Dahlia Lithwick
Every listener to this show understands what the normative state is, right? There's a complicated web of statutes and laws and constitutional guidances and ethics and rules, and this is the water we have swum in most of our lives. I think you need to do one beat for us on what the prerogative state is, because it is very, very abstract, and it's a theory of legal power that I think doesn't sit comfortably with most of us who grew up with sort of notions of constitutional democracy the way we were taught it in law school. And maybe you have to go back to John Locke, I don't know. But I feel like if you can draw a picture of what the prerogative state actually means and what it means, both sort of theoretically and in practice, I think that will help us make this really concrete.
- [40:32]
Mark Joseph Stern
I think the idea of a prerogative state is very simple. Those who hold official office have power, and they do not need to be constrained. In the manuscript that Frankl wrote, and Frankl, after he fled From Germany in 1904, he had the manuscript that he'd written out smuggled in the diplomatic baggage of a friend who worked at the French embassy. He brings the manuscript first to London and then he comes to Chicago, and he actually does a law degree at my law school. He graduates in 1941 with a law degree, and in the course of that law degree, rewrites the dual state and makes it into an academic manuscript. One of the ways in which he, in that academic manuscript, answers your question, Thalia, is by drawing a comparison between what he saw in 1930s Berlin and what unfolded in the beginning of the 17th century in England. Well, what happened in England in the 17th century? Prior to the English Civil wars, the Stuart kings of England claimed the prerogative power to act regardless of what the statutes, laws, or conventions that made up what today would be called a constitution dictated. So if there were limits on when the king could impose taxes, those limits could be disregarded. If King James believed that they were inconvenient, if there were limits on when an individual could be detained, locked up, because they had done something to displease the king, those legal limits could be dispensed with whenever the king wanted to. Frankl drew a parallel between the domain of lawless action that he saw emerging in Germany in the 1930s and the prerogative powers that King James and King Charles exercised before the English Civil wars and before the Glorious Revolution. The glorious revolution of 1688 is the precursor to our constitutional order. It's the moment in time at which the people, acting through Parliament, imposed a set of binding constraints upon the monarchs. It's the moment in time at which the executive branch is limited by and constrained by law. It's the moment at which the king accepts that his range of actions is bound and constrained by law. Frankl's point is that it is possible to build up an area in which the executive acts in ways that echo the prerogative powers of the Stuart monarchs without completely disassembling the legal regime.
- [43:43]
Dahlia Lithwick
Can you give me an example from recent headlines of a dual state moment in the hundred plus days that we've lived through Trump 2.0, a way in which for most people the law is just ticking along as we understand it, and then a dual state moment sort of yanks us into pro probably the.
- [44:09]
Mark Joseph Stern
Most powerful example of the deal state at work is the instances in which either citizens or lawful permanent residents who have speech rights as a consequence of the First Amendment have been detained or I don't even know what the right word to use here is rendered to a gulag might be the best phrase as a consequence of positions or statements that they have made or perceptions of their nationality in the absence of any kind of legal constraint. I think that those immigration cases are the closest parallel to the forms of the dual state that we see in other much more openly autocratic countries. I think that the range of prosecutions and investigations that have been open against individuals who are are perceived by the administration as its ideological enemies are the second wave of the dual state. I would put into that bucket the indictment of a sitting member of Congress, the indictment of a Wisconsin judge, and the investigation that has been opened into Eric Adams, leading opponent in the race for New York City met. I think in all of those cases there is only a thin shell of legality, and I think that in none of the cases could you plausibly say that this is a criminal investigation or a prosecution that we would ever have seen under normal circumstances, or it's a political prosecution that can be explained by facts that are independent of their ideological gap between the person being investigated or the person being prosecuted and the administration doing the prosecution. I think that the law firm executive orders are precisely lawless because of their flagrant violation of the First Amendment principle of viewpoint discrimination in ways that put the law firms at the mercy of the administration. In effect, by conceding to an unlawful order, the law firms put themselves or express implicitly the idea that they recognize the President's power to act without constraints of law and therefore put themselves permanently at the mercy of the President, which I think makes it ethically impossible for those firms to represent individuals or companies that are adverse to the federal government. I think that the exercise of federal spending power to yank preemptorily money that has been promised by statute and contract to entities or researchers that are engaged in work that the administration arbitrarily deemed woke or inappropriately diverse is yet another form of pulling people from the world of legal relationships to a world in which all that counts is the administration or the president's discretion. I could probably go on and add other things going deeper down the list of executive orders, but I think that the things that I have mentioned are the primary wave of instruments which I've called switches, that move people from the normative to the prerogative domain.
- [48:04]
Dahlia Lithwick
And is it fair, Aziz, to say, and maybe this is a way overgeneralizing, but one of the ways that you message we will tolerate the normative state until we have to switch into prerogative state is just by the declaration of emergencies. So, you know, the tariffs, oh, it's an emergency. I have all these power. The Alien Enemies act, oh, it's an emergency. I have all this power. Impoundment, I have all this power. And so it's a way of almost conditioning people that when the executive determines that there is an emergency, we're just gonna have to do it this way. And it sort of dovetails with what you were saying initially about how it's a kind of a positing of the theory that the executive has all the power, but in anything that the executive deems to be an emergency situation, none of the constraints, that's one of the tricks, right?
- [49:02]
Mark Joseph Stern
I do think it's right to point out a number of what I've been calling switches from the normative to the prerogative state as existing in statutory law or in constitutional doctrine. And one of the most important switches is the idea of the declaration of emergency. For example, under the 1977 statute called IIPA, which was the statute invoked on April 2 for the purposes of imposing tariffs, I think that shows us that the seeds for the dual state can be planted in the texture of the ordinary normative state. If you design your normative state badly, if you include powers that allow the government to unravel other bits of it, you invite the possibility for dual state down the road. And that's what we have done with aipa. I do think it's important just to flag that. While the tariffs rest upon the, in my view, lawless exercise of an emergency power. That is in aipa, the impoundments do not rest upon any statutory ground. The impoundments are just flat out actions taken without reference either to the claim that there's an emergency or to a statutory emergency power like iipa. And so I think are much more raw and unmediated examples of the sheer exercise of authority to say we just don't care what the law is, we can just switch it off. Right. At least with the tariffs, there's a scrim veneer of legality. I also think it's worth flagging that exactly as you say. The way in which the tariffs, which note that they're some of the largest tax increases in. In recent American history, were they to go through. But the way in which the tariffs have been imposed in a blanket way and then unrolled bit by bit, creates discretion on the part of the president to pick and choose between different firms based upon whether they are favored or disfavored by the government. And we've already seen that with respect to the early withdrawal of tariffs from the automakers, we've already seen some hints of that kind of discretionary power with the threat of to entities like Amazon or Target about whether they would raise their prices, whether they would say that the price raises are because of tariffs. Tariffs, in other words, are a kind of taxing power that's exercised by the executive that gives a kind of uncontrolled discretion to the government. And one of the interesting things about the history of tariffs is if you go back to the late 1800s and early 1900s, where the world was actually in a kind of halfway house between globalization and increasing nationalism in the way that it is today, and you look at the debate, particularly in England, over free trade versus the imposition of tariffs, one of the arguments made by the Liberal party at the time, who were the Free Trade Party, was we should not return to the world of tariffs because look at the kind of power that this gives the government to pick and choose winners, not just as a matter of economics, but as a matter of politics. And if we go down that road of allowing the government to pick and choose the firms that it likes and it doesn't like, we will no longer have the kind of secure liberty that we used to have.
- [52:59]
Dahlia Lithwick
Aziz, is it too apples to oranges for me to suggest that this Frankel idea of the dual state does for the law what that language we're hearing more and more of competitive authoritarianism does for politics. Competitive authoritarianism is a way of describing a situation in which, hey, everything seems normal. We have parties, we have elections. I voted. Here's my sticker. Even though that entire process of democracy is being swamped by this other thing, it feels to me that maybe the dual state is a way of describing a legal world in which for most people, they will continue to live in a world of, you know, traffic tickets. They're not gonna feel as though they have ever been launched into a different world. And that both of those things operate to kind of numb the bulk of the people in the country to this insidious thing that is happening at the margins.
- [54:02]
Mark Joseph Stern
I think the two ideas are connected, but I do not think they're the same or acting or operating in parallel to each other. The way that I would put it is the dual state is an instrument that enables the emergence of competitive authoritarianism. The dual state is a term that describes the way in which law is used as an instrument of power. It describes the possibility of using legal authority in one of two different ways, legalistic and non legalistic, and the idea that those in power can switch on and off the legalistic quality of state power. The existence of that switch, which is often resorted to with respect to political opponents, creates a tool for eliminating or suppressing or hobbling political opposition. And the hobbling of political opposition, without the dismantling of the apparatus of elections, is core to competitive authoritarianism. Competitive authoritarianism describes a situation in which the main mechanism for popular control rule over state power, which is different from the way that state power is exercised. It describes the situation in which the main tool that you and I have for exercising judgment over state power, which is elections. That tool has been rendered into a charade. But the way that it's been rendered into a charade is not by directly attacking the election process, not by stuffing the ballot box, although that does happen in many competitive authoritarian regimes. It's by targeting and kneecapping the political opposition. So an example of that not from the United States is the AK Party in Turkey, which has been ruling now for a couple of decades under Recep Tayyip Erdogan Plan is facing a great deal of electoral strain because their economic policies have not been affected. And the opposition candidate, the person who currently is the mayor of Istanbul, looked as if he was about to prevail in elections that would happen later this year. Well, rather than allow that to happen, the mayor of Istanbul has been arrested, has been stripped of their university diploma. Apparently you need a university diploma in order to run run in a national election in Turkey and is mired in an investigation and prosecution, indeed is actually behind bars, as far as I know. So that's an example of the use of a lawless power against a political opponent in order to create a situation of competitive authoritarianism. There will be an election in Turkey. It's just that it won't be a free and fair election. It.
- [57:20]
Dahlia Lithwick
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- [58:48]
Aziz Huq
Specialoffer Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same Premium Wireless for $15 a month plan that I've been enjoying. It's not just for celebrities. So do like I did and have one of your assistant's assistants switch you to Mint Mobile today. I'm told it's super easy to do@mintmobile.com.
- [59:08]
Dahlia Lithwick
Switch upfront payment of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com I want to talk about judges if we can. One of the things that I've heard you say about the dual state is the degree to which, not just the degree to which, the ways in which judges, good judges who followed the law in Nazi Germany get co opted into leaping into a theory of power that is purely prerogative power. And it's scary and you should talk about it for a minute because it literally is. You know the party wants you to do this and so you will do it. And it's not something I think we're seeing now I think we're seeing. Tell me if I'm wrong. Almost across the board's ideological political lines. Judges not accepting the signaling that this is what you're going to do if you want to stay in the favor of the President. And I kind of want to ask the question how you think the district and circuit court judges are acquitting themselves in this moment because it feels different to me. But I also want to hear from you in the again, in the sort of rhetoric of, of the moment when a Stephen Miller stands up and says judges had better do what we want or we're just going to suspend habeas corpus. That signaling is really blatant too. It's not like this is what the party wants. It's that we will obey the law. We will listen to courts. We heard this last week in the birthright citizenship arguments from the Solicitor General. As long as the courts do what we want. So I just would love a little compare and contrast of how you co op judgement and how the administration is doing on that project.
- [61:01]
Mark Joseph Stern
In the cases that Frankl describes, the judges are being circumvented or their judgments are being negated after the fact. So he's not describing the process of corruption of the German legal system by the Nazi party. Now, because Germany did not have a political system of appointments, it had a civil service, a bureaucratic system of judicial appointments. There were ways in which it could be corrupted through the ordinary kind of insidious creep of norms or changing or the corruption of norms through a administration or a bureaucracy. It could be corrupted in different ways from the way that the American judiciary might be influenced or shaped. So I think that the story of the Nazi legal system is a different one from the story of the American legal system. I think in the American legal system, the switching off of the law, for example, in cases around the alleged trende AGUA members who were moved out of the jurisdiction to El Salvador while Judge Boasberg was presiding over their case, the pulling of the switch has been done in such a way as to demonstrate the limits of practical judicial power. And what the administration has played a part or has leveraged is the fact that judicial orders are obeyed because there is a norm, an understanding that compliance will follow from the issuance of an order. But that norm of compliance actually raises rests upon very fragile grounds. And so what the administration, I think, has done, not just through Miller's statement that you mention, but also through the campaign of both formal and informal threats against judges and their families, which I think is important to bear in mind is to create a kind of chill or to attempt to create a kind of chill among judges so that they hold their fire and never issue orders that are in contravention of what the administration wants, even when what the administration wants is plainly unlawful. So there's this leveraging of the limits of judicial power, but I think it's a different leveraging than the one that we saw in the German context. For example, I would also flag that. I think that your evaluation of how most of the circuit and the district court judges have done done is accurate. Right. The judges who are acclimatized to behave in what Frankl called the normative world are still acting as if that's the only world that exists. And when confronted with the specter of the prerogative State, are either trying to push back a little bit, or maybe they're drawing their heels in and avoiding conflict, but they're not embracing it. With a couple of exceptions. I do think that the fact that our judicial appointment system works through presidential nomination and Senate confirmation means that there is an enormous temptation for ambitious lawyers and judges to tender themselves as potential candidates for this president by seeking to embrace the kind of lawlessness that he has advocated for. And I can think of at least one judge who has openly and repeatedly embraced that in a reasonably obvious campaign to obtain a nomination to the US Supreme Court. Right. So there are absolutely avenues whereby my personal ambition can have this corrupting and unraveling effect upon federal judges. It just happens to be a different avenue than the one that existed in the 1930s in Germany, where you had a civil service judiciary rather than a judiciary that ran through the White House and the Senate and that was characterized by lifetime tenure.
- [65:40]
Dahlia Lithwick
Aziz, can we end on the Supreme Court? I fear this show always ends on the Supreme Court. And I find myself just looking at this weird moment we're in right now. You know, we're taping at the end of May. Ordinarily, this would be the time where we'd be watching all the Supreme Court decisions coming down. And yet there's two dockets, right? There's the merits docket on which the Court is going to decide essential questions about gender affirming care and religious liberty and how we vote. And that all is sort of feels like even though, you know, it's distorted by the nature of the present Supreme Court, it's all happening. It looks normal. And then there's this insane emergency docket, the shadow docket, in which it feels to me as though all of the prerogative state cases are gonna just keep coming down in the dark in secret with tremendous confusion about who signed where in the per curium. And I'm also really struck, and I can end my question here, but the way the Justice Department has been litigating even the emergency cases is through the lens of the normative. You know, this is the statute that they're not standing up in court and saying, you know, the, the president is the God king and you will obey. They're very careful to make it look as though these are, you know, using your construction, the sort of normative state argument. It does feel like those two things inexorably have to collide at some point. That the Supreme Court, you know, keeps handing down these emergency orders that are on very hyper technical jurisdictional grounds, trying to make it look as though they're avoiding getting involved in the prerogative docket, if you will, but boy, it feels like they're heading there quickly. And I'm just very, very curious about what you think the optics of a Supreme Court that is first of all constructed this with the immunity decision last year. I mean, they essentially crafted a prerogative. But I just wonder what you think about how these nine people are confronting the optics of being about to launch us into prerogative land.
- [67:56]
Mark Joseph Stern
When a law professor walks into a classroom in the United States, they have two jobs. So one is teach your students what the law is and how to work with the law law honestly and with integrity. And second, how do you do what theologians call casuistry? Casuistry is a word that's used to describe hypertechnical arguments that take seriously the kind of surface texture of the law, but find ways to thwart the law. Right. We're trying to teach students how to work with the law ethically, but at the same time, we're trying to give them these technical skills of arguing against positions with whatever legal materials are available to them. That I think is fairly called casuist strait. And those two things sit in uneasy tension with each other even in the normal course of things. What I think happens at moments like this is that the second thing, the dishonest argumentation that I've called casuistry that lawyers are often criticized for by non lawyers. This is the stereotype of the fast talking lawyer who's able to explain themselves out of anything. That side of lawyering becomes more and more dominant even in places like the Supreme Court. And this is not the first moment at which that has happened. Here's a precursor moment to what you're describing back in the first Trump administration, as many listeners will recall, the president made openly racist and bigoted arguments for banning individuals from majority Muslim countries while he was campaigning and then while he was in office and then executed that policy. And that policy gets challenged and it goes all the way up to the Supreme Court. And the court is faced with this sort of formally validation maybe policy that is an exercise of immigration powers as an exercise over control over who crosses the border. And there's all of this language which demonstrates that what's going on here is not actually national security related. It's the lowest form of bigotry. And the court comes up with a casuistic explanation for why it can ignore all of the evidence of bias and bless the action as one that falls within the contours of legality. I think that that judgment in a case called Trump v. Why is a precursor to the range of measures that a smart lawyer has to cover immoral or illegal things with a ton of words, phrases, arguments on the one hand this, on the other hand that, that we as law professors have taught lawyers how to do right. So I'm not particularly optimistic, in other words, about the capacity maybe of the legal culture, lawyers and judges beliefs and dispositions to meet the moment through honest and morally defensible forms of legal argumentation.
- [71:27]
Dahlia Lithwick
Aziz Z. Huck is a scholar of US and comparative constitutional law at the University of Chicago. His most recent work concerns democratic backsliding and the regulation of AI and his award winning scholarship is published in several books and law, social science and political science journals. His book is the Rule of Law, A very Short Introduction and I really want to urge people to have a look at this, I think very, very, very helpful piece that appeared in the Atlantic. It's called America's Watching the Rise of a Dual State. Aziz, I always learn so very, very much from you and I really look forward to meeting you at the other end of this, whatever it is, in what I'm going to christen normative land. Thank you.
- [72:21]
Mark Joseph Stern
Thank you, Dalia, for having me. It's a pleasure.
- [72:36]
Dahlia Lithwick
And that is all for this episode. Thank you so much for listening and thank you so much for your letters and your questions and your comments. You can always keep in touch@amicuslate.com or you can find us@facebook.com Amicus Podcast. Mark Joseph Stern will be joining me to discuss Constitutional Crisis, the South Sudan Rendition flight edition, as well as the Supreme Court's decision not to decide one of its big, big religious liberty cases this term. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Or you can visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus senior producer. Our producer is Patrick Fort. Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, and Ben Richmond is our senior director of operations. And we'll be back with another episode of Amicus next week.
- [74:01]
Josh Levine
I'm Leon Nayfak and I'm the host of Slow Burn Watergate. Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters, clacking away. And then there's this rapid montage of newspaper stories about campaign aides and White House officials getting convicted of crimes. About audio tapes coming that proved Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years.
- [74:35]
Dahlia Lithwick
Five men were arrested early Saturday while trying to install eavesdropping equipment known as the Watergate Incident.
- [74:41]
Josh Levine
What was it like to experience those two years in real time? What were people thinking and feeling as the break in a Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder, and more exciting than you can imagine. Over the course of eight episodes, this show is going to capture what it was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now wherever you get your podcasts.
- [75:19]
Linda Taylor
Hi, I'm Josh Levine. My podcast, the Queen tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name.
- [75:50]
Mark Joseph Stern
The great lesson of this for me is that people will come to their.
- [75:54]
Leon Nayfak
Own conclusions based on what their prejudices are.
- [75:57]
Linda Taylor
Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.