Zones of Exception: The Supreme Court and the Dual State
Reading, Watching 06.29.25
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First of all, please check out the new Substack by Nina Eichacker, which she describes as a “newsletter about economic issues for people that hated economics class.” I can tell you from personal experience, Nina is a great teacher: she was an enormous help to me in putting together the economy-focused parts of my book.
We won’t fully know the consequences of the Supreme Court ruling in the birthright citizenship case, Trump v. Casa, for a while. As you may know, the Court did not rule on the merits of the case but on the “technical” question of the legality of universal federal injunctions. This seems kind of ludicrous because, on its merits, the case may very well be the most important Supreme Court decision of all time, deciding whether or not the executive can just unilaterally strip the rights of Americans. So, far they have said, “They can, but you can still sue them.” I think, in the long term, the court will likely strike down Trump’s executive order and uphold the 14th Amendment, but these days, who knows?
To get varied perspectives on its significance, I encourage you to read Samuel Bray in the New York Times who argues:
We live in a time of great pressure on our constitutional system, with a president who thinks he can make laws (he can’t), suspend laws (he can’t) and punish enemies without a trial (he can’t). It is precisely at this time that the first vision is most attractive — and the second vision is most essential.
The courts must defend constitutional rights and liberties. But they must defend them as courts defend them: deciding cases for the parties and giving remedies to the parties. That function is what gives courts their constitutional legitimacy in a democratic society.
It will mean that courts don’t have the power to remedy every wrong. And it will mean that a patchwork of rulings sometimes persists. But to remedy every wrong immediately and everywhere — outside of the case and the parties — is not what the courts are designed for.
In rejecting the concept of the universal injunction, the Supreme Court reaffirmed the proper role of the federal courts within our constitutional system. It is not naïve or undemocratic for the courts to lead by example in adhering to the rule of law.
Obviously, I’m more apt to accept the interpretations of Justice Jackson, Jamelle Bouie, and Ilya Somin, libertarian legal scholar at The Antonin Scalia Law School (lol) at George Mason University :
Today's 6-3 Supreme Court decision in Trump v. CASA, Inc. barring nationwide injunctions is a grave mistake. It risks allowing the executive to engage in large-scale violations of constitutional rights, potentially in perpetuity. Exactly how bad it is depends on the extent to which other remedies might fill the gap left by the elimination of nationwide injunctions.
….
The real heart of the matter here is not the technical debate about historical analogies, but a core principle of constitutional government: the state must not be allowed to engage in large-scale systematic violations of the Constitution, especially when it comes to basic constitutional rights, like the birthright citizenship rights at issue in this case. And courts must be able to impose the remedies necessary to prevent that. That principle is vastly more important than any historical details about the exact nature of remedies available British courts in 1789.
I’m not a lawyer or legal scholar but what jumped out to me in Justice Jackson’s dissent was a footnote where she cited a 1941 book by Ernst Fraenkel called The Dual State: A Contribution to the Theory of Dictatorship. Fraenkel was a social democratic labor lawyer in Weimar Germany who was pushed out of his profession for his Jewish background after the Nazi seizure of power. In The Dual State, he provides a theory of the nature of the legal order under the Nazi regime: On the one hand, there remained a “normative state,” which would uphold every-day, procedural rule of law, and on the other hand, there was the “prerogative state,” which ruled through arbitrary violence and coercion against the state’s proscribed enemies:
The political sphere in the Third Reich is governed neither by objective nor by subjective law, neither by legal guarantees nor jurisdictional qualifications. There are no legal rules governing the political sphere. It is regulated by arbitrary measures (Massnahmen), in which the dominant officials exercise their discretionary prerogatives. Hence the expression ‘Prerogative State’ (Massnahmenstaat).
The prerogative state operates by decrees that are transparently pretextual, as Fraenkel writes, “without exception so shallow in substantive terms that they amount to no more than the appearance of a legal norm.” Sounds familiar. But why adopt this split structure? Fraenkel, coming from a Marxian background, believed the Nazi state evolved this dualism due to the need of balancing the caprices of a dictatorship with the regularity required of a capitalist economy. In her dissent, Justice Jackson touches on this creation of two orders for the economically and politically important and those outside the law: