Executive Overreach and Erosion of Rule of Law

This conversation on "The Opinions" podcast, featuring Emily Bazelon, David French, and Aaron Matica, delves into the intricate ways power operates within the contemporary American political and legal landscape. The core thesis is that the erosion of established norms and the systematic weakening of checks and balances are creating a "dual state" where a privileged few operate with impunity, while the rule of law becomes increasingly precarious for others. The non-obvious implication is that this isn't a sudden collapse, but a gradual, often strategically deployed, shift that leverages existing societal divisions and legal ambiguities. Those who understand this nuanced, consequence-driven approach to power--particularly legal practitioners, policymakers, and engaged citizens--will gain an advantage in navigating and potentially resisting these systemic changes. This analysis is crucial for anyone seeking to comprehend the forces reshaping American governance and individual rights.

The Dual State: Where Law Bends and Power Fractures

The conversation on "The Opinions" podcast paints a stark picture of American governance, not as a straightforward application of law, but as a complex interplay where power operates through strategic erosion and the creation of a "dual state." This isn't about a sudden breakdown, but a deliberate, often subtle, reordering of how authority functions, with profound implications for the rule of law. The most critical insight is how this dual state is constructed, not by outright abolishing existing laws, but by creating parallel systems of operation where certain individuals or groups are subject to one set of rules--or no rules at all--while others remain bound by the normative state.

Carving Out Zones of Impunity: The Prerogative State

The concept of the "prerogative state," borrowed from legal scholar Ernst Fraenkel's analysis of Nazi Germany, emerges as a powerful lens. David French explains it as a "zone of lawlessness" that exists alongside the "normative state" of everyday life. This prerogative state is not a complete overthrow of the legal system, but a selective application where state interests, or the interests of those wielding power, supersede established rights and protections. This is particularly evident in the discussion of immigration enforcement. Emily Bazelon highlights how the expansion of ICE’s budget and authority has led to increased detentions and deportations, creating a system where undocumented immigrants are subject to the prerogative state, their rights and due process significantly curtailed. The tragic case of Renee Good, who was killed after her car was perceived to be obstructing an ICE vehicle, exemplifies this. Her death, framed by Trump as a consequence of disrespect, illustrates how an individual can be instantly reclassified as an "enemy of the state," stripping away the protections of the normative world.

"And so where the state's interests intersected with the normative state, then the prerogative state would take over. And this would impact only a minority of citizens. So for example, you know, Jews in Germany, they were subject to the prerogative state. This is where the law didn't really protect them, that they were at the mercy and the whim of the government."

-- David French

This dynamic is not confined to immigration. Bazelon points out how the chilling effect extends beyond the immediate targets. Protesters, civil society organizations like universities and law firms, and even individuals who might offer support to those in the prerogative state, are sent a clear message: engagement with these issues carries significant risk. This creates a cascading effect, where the fear of reprisal in the prerogative state discourages activism and advocacy that would normally be protected under the normative state.

The Strategic Targeting of Vulnerable Groups

A key element of this strategic power play, as Aaron Matica observes, is the diabolical shrewdness in selecting targets that are difficult to mobilize broad defense for. Undocumented immigrants are a prime example, but the strategy extends to other groups and institutions. The podcast touches on the idea of "hands off Harvard" or "hands off X institution" chants, suggesting that rallying public support for established, and sometimes unpopular, institutions is challenging. This makes opposition to the erosion of rights more difficult, as any defense of due process for certain groups can be easily reframed as sympathy for "narco-terrorists" or other negatively perceived entities. This tactic of picking targets that lack broad public appeal is a critical factor in the success of the prerogative state, as it limits the formation of a unified front against its expansion.

The Supreme Court's Role: Enabling or Restraining?

The Supreme Court's actions, or inactions, are a central point of discussion regarding the balance between the normative and prerogative states. While the court’s decision in the Lisa Cook case, which affirmed the Federal Reserve’s independence, offered a glimmer of hope, suggesting that some institutional boundaries might hold, the overall trend is more concerning. Bazelon notes that the immunity decision from 2024 "set the table" and "emboldened Trump," with the Solicitor General’s office frequently citing it to claim expansive presidential power. The court's willingness to entertain extreme arguments, such as the idea that a Truth Social post could constitute sufficient notice for firing a Federal Reserve official, highlights a potential willingness to redefine the boundaries of presidential authority.

David French offers a nuanced perspective on the Supreme Court's trajectory. He anticipates that the court may rule against Trump in the Lisa Cook case, affirming the Fed's distinct status. However, he also suggests that the broader conservative legal philosophy, which favors a more robust unitary executive theory, is likely to succeed in shifting power toward the president, even if it means diminishing the power of agencies themselves. This creates a paradox: the president might gain more control over who heads agencies, but those agencies might have less power to enact policies that deviate from the president's agenda.

"The unitary executive theory says the president has control over the executive branch. However, the original separation of powers conception would say that the president doesn't have control over Congress. And there's even limits as to what Congress can delegate to the president."

-- David French

This dynamic suggests that while the courts might act as a "rear guard" to a "retreating army" of established legal norms, they cannot ultimately win the war alone. The ultimate fix, as French concludes, lies with the voters.

Actionable Takeaways for Navigating the Dual State

The insights from this conversation underscore the need for a proactive approach to preserving the rule of law and resisting the creep of the prerogative state.

• Immediate Action (Next 1-3 Months):

  • Educate Yourself and Others: Deepen your understanding of the "dual state" concept and its manifestations in current events. Share this analysis with your network.
  • Support Independent Journalism: Subscribe to and support news organizations that rigorously investigate and report on the exercise of power and potential abuses.
  • Engage with Local Governance: Understand how local laws and enforcement practices are being affected. Attend town halls and engage with local representatives.
  • Identify and Support Organizations: Find and support legal and civil liberties organizations actively defending due process and challenging overreach.

• Medium-Term Investment (Next 6-18 Months):

  • Advocate for Legal Reforms: Support efforts to strengthen checks and balances, particularly regarding congressional oversight and the independence of regulatory bodies.
  • Build Community Coalitions: Connect with diverse groups to build broader coalitions that can resist the strategic targeting of vulnerable populations.
  • Invest in Civic Education: Support initiatives that promote a deeper understanding of constitutional principles and the importance of the rule of law among younger generations.

• Long-Term Strategy (18+ Months):

  • Voter Engagement: Prioritize informed voting in all elections, focusing on candidates who demonstrate a commitment to upholding democratic norms and the rule of law.
  • Promote Legal Professionalism: Encourage and recognize lawyers and legal professionals who exhibit moral courage and a commitment to justice, even in the face of personal risk.
  • Strengthen Institutional Independence: Advocate for policies that safeguard the independence of institutions critical to democratic governance, such as the judiciary, electoral commissions, and independent agencies.

The conversation emphasizes that immediate discomfort--in confronting difficult truths or taking unpopular stances--is often a prerequisite for long-term advantage in preserving a just society. The legal profession, in particular, faces a critical juncture where moral courage, not just intellectual prowess, will determine the future course of the country.