A socialist attorney who practiced labor law in Berlin, Fraenkel fled Nazi Germany in 1938, eventually settling in Chicago. There he would write his most famous work, The Dual State: A Contribution to the Theory of Dictatorship, a study of the legal system implemented by the Third Reich in the 1930s.
Fraenkel’s central thesis is that the Nazis did not dismantle the legal structure of the Weimar Republic all at once or entirely, but replaced it with a bifurcated system in which state functions were divided between a “normative” sphere—which operated according to set rules and regulations—and a “prerogative” sphere, where violence was permitted and traditional legal restraints did not apply.
The struggle against ICE and our emerging dual state is now approaching a critical inflection point.
To keep capitalism up and running, Hitler’s government had to maintain the façade of a stable “normative” legal system that permitted businesses and Christian Germans to engage in commerce and settle contract cases, employment disputes, landlord-tenant matters, and other civil issues in court. As University of Chicago law professor Aziz Huq noted in a March 2025 Atlantic magazine essay, this duality allowed capitalism to “jog nicely alongside the brutal suppression of democracy, and even genocide.”
But as the judiciary surrendered its independence through a combination of cooptation and intimidation, the “prerogative” system came to dominate. “On any given day,” Huq explained:
… people or cases could be jerked out of the normative state and into the prerogative one. In July 1936, for example, Fraenkel won a case for employees of an association taken over by the Nazis. A few days later, he learned that the Gestapo had seized the money owed to his clients and deposited it in the government’s coffers.
The case was closed with no further appeals.
Fraenkel largely attributed the theoretical underpinnings of the dual Nazi state to the work of the German legal philosopher Carl Schmitt. Often referred to as the “Crown Jurist of National Socialism,” Schmitt joined the party in 1933 and went on to serve as president of the National Socialist Association of Legal Professionals.
Schmitt was an unrelenting critic of liberalism, decrying its weaknesses for embracing universal human rights and what he deemed its hypocritical and indecisive fixations on discussion, debate, negotiation, and compromise. As a counter to universalism, he promoted a “friend-enemy” concept of politics, insisting that all states necessarily distinguish between those whom it embraces as friends worthy of protection and those who are forever considered enemies, outsiders and invaders deserving of its wrath, retribution, and punishment.
As a complement to the friend-enemy concept, Schmitt promoted the idea of the “state of exception,” arguing that the sovereign in a well-functioning state must be vested with emergency powers to suspend the rule of law to maintain public order and ensure the survival of the nation. Soon after joining the party, he declared that the Enabling Act, which effectively made Hitler a dictator, had become the provisional constitution of Germany. He would go on to enthusiastically support the Nuremberg Laws of 1935, stripping Jews and other “enemies” of citizenship, and to defend Hitler’s right as sovereign to define the enemy as he saw fit.
All of this will sound eerily familiar to anyone who has been paying attention to the news. Since retaking the presidency, Trump has declared nine states of emergency on a range of issues stretching from the imposition of bloated tariffs on foreign goods to designating drug cartels as foreign terrorist organizations, and proclaiming a national emergency at the southern border. The border proclamation, issued on January 20, his first day back in office, cited the now-familiar charge of an “alien invasion” of “criminal gangs, known terrorists, human traffickers, smugglers,” and laid the groundwork for both his mass-deportation program and for giving ICE the largest budget of any police agency in the country.
ICE is now a formidable paramilitary force, having hired 12,000 new agents in the past year, more than doubling its size, and ramping up to hire more. It has been deployed into American cities on orders from Trump and Homeland Security Secretary Kristi Noem to root out the invaders. It has become the violent face of the country’s transformation into a new 21st-century dual state.
Undocumented immigrants remain ICE’s primary target, but citizens like Good are also in jeopardy. Good’s case stands out because she was white, and her killing was caught on video. But she is not alone. While there are no official figures that specifically track how many citizens have been victimized by immigration agents, ProPublica reported last October that it had found more than 170 cases where citizens were detained during raids and protests. According to the report:
Americans have been dragged, tackled, beaten, tased, and shot by immigration agents. They’ve had their necks kneeled on. They’ve been held outside in the rain while in their underwear. At least three citizens were pregnant when agents detained them. One of those women had already had the door of her home blown off while Department of Homeland Security Secretary Kristi Noem watched.
To date, not a single federal agent has been prosecuted for these incidents. Nor are any prosecutions likely.
In “normal” times, we could at least expect Agent Ross to face a rigorous Justice Department investigation. It is not true, to return to JD Vance’s comments, that Ross enjoys absolute immunity under existing law. It has always been difficult to prosecute federal law enforcement officials, but no such immunity exists.
But these are not normal times.
Trump, who now openly directs the Department of Justice and the FBI, has precluded the possibility of any serious federal investigation. Nor can we count on a state investigation conducted in concert with federal law enforcement. The FBI has announced it will exclude Minnesota authorities from participating in any fake pro-forma probe of Good’s death.
Perhaps most regrettably, we cannot count on the Supreme Court to hold Ross and other offending agents to account. The Supreme Court has endowed Trump with the powers of the unitary executive, holding in Trump v. United States that the president may exercise his pardon power however he pleases to excuse anyone from any federal prosecution.
The struggle against ICE and our emerging dual state is now approaching a critical inflection point. We can be heartened by the fact that the United States is not Germany in 1933, and Trump, for all his bluster and megalomania, is not Hitler. The country’s fate remains open, and dependent on the nonviolent and lawful collective action that we—all of us—take in the coming weeks, months, and years.
