The Opinions – "ICE Is Splitting America in Two"

Podcast: The Opinions
Host: The New York Times Opinion
Date: January 24, 2026

Overview

This episode of The Opinions, hosted by Aaron Retica with regular guests Emily Bazelon and David French, explores the shifting landscape of power, law, and democracy during the Trump administration’s second term. The focus is on the increasingly stark divide between those subject to aggressive immigration enforcement (spearheaded by ICE) and the rest of America—and how legal, political, and social frameworks are being tested. The discussion weaves through analogies from history and pop culture, current Supreme Court cases, and reader questions about the durability of the rule of law.

The New Power Hierarchy under Trump (starting at 02:03)

Key Points & Insights

• Tech "Oligarchs" at the 2025 Inauguration:

  • The presence of figures like Jeff Bezos, Elon Musk, and Mark Zuckerberg at the inauguration was symbolic, but they were not wielders of power—rather, they were "subjects" in Trump’s "kingdom."
  • David French:

    "When you had these billionaires in the room, they were not there as Trump's peers, they were there as Trump's subjects." (04:26)

• Real Sources of Power:

  • Both Bazelon and French agree that the true locus of influence is in Trump’s inner circle, particularly Stephen Miller.
  • French's pop-culture analogy:
    • "Think of January 20, 2025 as like the coronation at the Red Keep [...] you had the king crowned and the nobles... But now we know who the real powers are—Stephen Miller at the apex." (05:15)

• Congress/Supreme Court's Diminished Role:

  • Bazelon questions Congress’ effectiveness and frames the Supreme Court as more enabling than constraining, largely setting the terms for executive action rather than pushing back. (03:30)

Mechanisms of Executive Power (07:28)

Key Points & Insights

• Rule by Edict, Not Consensus:

  • Emily Bazelon observes:

    "We started the year with the flurry of executive orders [...] It's not making a deal in Congress, it's making a declaration, planting a flag, and then seeing if people are going to go along." (07:28)

• Alliances and International Relations:

  • Trump and his supporters view alliances as a burden; withdrawal is seen as liberation.
  • French on MAGA worldview:

    "[...] our alliances are actually a drag on us [...]. America will be stronger if it sheds these alliances that pull us down." (08:52)

• Enforcement, Particularly Immigration:

  • The panel discusses stepped-up interior enforcement, especially by ICE.
  • Bazelon:

    "Turns out if you're willing to vastly increase the budget for ICE and just snatch people up off the street, you can pick up a lot of people and put them in detention and into deportation proceedings. So that's effective with enormous costs." (09:56)

The Dual State: Normative vs. Prerogative America (12:41)

Key Points & Insights

• Historical Analogy—The Dual State (Ernst Frankl):

  • French explains that, as in Germany or the Jim Crow South, a “normative state” of rule and rights exists for most, but alongside it a “prerogative state” of lawlessness applies to marginalized groups.
  • French:

    "Along this normative state... was something he called the prerogative state. And the prerogative state was the zone of lawlessness..." (12:41)
    "In the Jim Crow South, you had a normative state enjoyed by white Southerners... But then you had a prerogative state that applied to black Americans..." (13:38)

• Contemporary Application – ICE, Immigrants, Allies:

  • Bazelon discusses how this is implemented today:

    "The group of people who are other in our scenario right now are undocumented immigrants to start with, and they don't have the same rights as Americans. Right. Like, it is true that they are subject to deportation. And so I feel like that was kind of the crack, the way in to this dual state." (15:19)

• Expansion Beyond Immigrants:

  • The chilling effect reaches anyone who supports immigrants, protestors, or institutions that offer protection, broadening the sphere of vulnerability.

• Trump's Political Shrewdness:

  • French:

    "I hear a lot of people describe Trump as dumb. I think that's just totally wrong. He's in many ways diabolically shrewd, and one element of his diabolical shrewdness is that he picks on targets that it is hard to mobilize people to defend." (17:26)

The Rule of Law Tested: The Case of Lisa Cook & Executive Immunity (18:39)

Key Points & Insights

• Lisa Cook/Federal Reserve Case:

  • Trump fired Lisa Cook from the Federal Reserve Board; arguments hinge on whether the President’s power extends to institutions like the Fed, generally insulated from politics.
  • Bazelon:

    "The court has already said it considers the Fed to be different... The idea that the independence of the Fed is really important for the American and the global economy. The justices get that." (19:45)

• Potential Pushback from the Court:

  • Both Bazelon and French predict the Court will limit the President’s power in this particular context, highlighting that the Fed is not like other agencies.
  • French:

    "I would not be remotely surprised if this decision is at 9-0 or maybe 8-1... The Supreme Court, an overwhelming majority... had two propositions in their mind. One was, the Fed is different... And that number two, because it’s different, the President doesn’t get to just make it up as he goes along..." (21:24)

• Immunity and Executive Overreach:

  • The show discusses the Supreme Court’s “immunity” decision regarding Trump and whether it grants him unchecked power.
  • Bazelon:

    "I do think that the immunity decision set the table. It emboldened Trump... The Solicitor General's office cites it a lot in these kind of expansive ways in claiming more and more power for the President." (26:07)

The Courts: Rear Guards, Not Saviors (32:04)

Key Points & Insights

• Challenges to Checks and Balances:

  • Reader questions probe whether slow legal processes, a meek Congress, and the current Supreme Court can meaningfully check Trump’s actions.
  • Bazelon:

    "Can courts save American democracy? What is their actual role here? And I think what we're seeing is they can't do it on their own." (32:04)

  • David French:

    "The rear guard isn’t going to win the war... Article 1 is supposed to be... the alpha branch of government. And now it’s not the beta branch, it’s the last branch. Until that dynamic is fixed... the courts are going to be a delaying action at best... They cannot save us." (34:26)

• The Critical Role of the Political Process:

  • The panel agrees the voters are the only real lever of accountability left.
  • Bazelon:

    "What happens in the upcoming elections? Are they free and fair? Are Americans taking in and absorbing the threats and risks..." (33:20)

Memorable Quotes & Moments

• David French on Authoritarianism:

  • "As soon as you can allow a large segment of the society to live normal lives, even while you oppress others, it takes a lot to rouse the majority to do anything on behalf of the minority." (14:56)

• Emily Bazelon on Legal Creep:

  • "By being so clear that Renee Goode is immediately an enemy of the state in Trump’s eyes... you start with her, then you think of... a chilling effect on other moms or parents or just ordinary Americans who might come out on the streets." (16:54)

• Aaron Retica on Judicial Power:

  • "The alliances that are against Trump... are about the rule of law, they're about alliances, they're about all these nice things. None of which norms is another one. And no one wants to hear about any of those things. None of it. But as you guys were saying earlier, the cost of not having it is enormous." (10:52)

Timestamps for Key Segments

• Setting the Power Stage: 02:03 – 06:37
• Executive Power Mechanisms & Foreign Policy: 07:28 – 09:56
• Legal Theory—“Dual State” and ICE: 12:41 – 17:26
• Trump’s Target Selection & Political Shrewdness: 17:26 – 18:39
• Lisa Cook/Fed & Limits of Executive Power: 18:39 – 24:09
• Supreme Court, Immunity, and Accountability: 24:09 – 32:04
• Reader Q&A on Checks and Balances: 32:04 – 35:45
• Books/Novels that Capture Legal Practice: 37:02 – 41:08

Reflections on Law, Courage, and the Role of Lawyers

• David French on the Civil Rights Movement:

  • Praises the moral courage of civil rights lawyers, drawing inspiration for today’s legal battles.

  • "You cannot think about a good lawyer without thinking of both intellect and moral courage." (39:12)

• Emily Bazelon references Merchant of Venice:

  • Draws on Portia’s character and the "quality of mercy" as a touchstone for the positive power of legal argument. (39:58)

Summary Takeaway

This episode paints a vivid—and sobering—portrait of America at a crossroads, with immigration policy as a flashpoint for broader debates about executive power, the role of the courts, and the durability of democracy itself. Through analogies, legal theory, and personal reflection, the hosts underscore that while courts are important, it is ultimately the political system—and voters—that must confront the current tide of authoritarianism. The episode’s closing reflections about courage and the historical example of civil rights lawyers make a final plea for principled action within and beyond the law.