Trump’s cruel “dual state” runs into a legal wall

After Operation Metro Surge, in which an estimated 3,000 federal immigration agents were deployed throughout Minnesota from December to February, resulting in over 3,700 arrests and the shooting deaths of protesters Renee Good and Alex Pretti, the media and political class grew bored and moved on. Donald Trump’s mass deportation machine did not. 

On April 15 NBC News reported that approximately 60,000 people are currently being held in Immigration and Customs Enforcement detention facilities. The administration’s stated goal is to remove 3,000 people a day from the country, with an annual target of over one million deportations. As Tom Homan, Trump’s border czar and acting ICE direction, has explained, deportees will be put in dozens of warehouses all over the country to eventually be shipped out like Amazon Prime packages.

By design, the deportation process moves so fast that detainees do not have time to obtain meaningful legal representation — a violation of their constitutional, civil and human rights. Other migrants have been sent to countries that routinely violate human rights such as El Salvador, Rwanda, Eswatini, Palau and Equatorial Guinea. An American court can order their return, but as a practical matter, these human beings have essentially been disappeared. This, too, is the apparent intention.

A growing number of voices are insisting that Donald Trump has made America a lawless nation. This is imprecise. The law has not disappeared — it has been Trumpified and bent into a weapon to destroy the constitutional order. German legal theorist Carl Schmitt’s permanent state of emergency and a two-tiered legal state are both the playbook and historical precedent.

As Pema Levy explained in Mother Jones, the dual state operates under “the facade of normalcy” that cloaks its authoritarian nature, functioning as a “smokescreen” that “fosters acceptance by the people until it’s too late.” Leaders of Nazi Germany “purposefully left some of the existing legal system intact” by creating a parallel “normative state” that housed most Germans. Jews and other groups considered enemies of the Third Reich became “victims of the arbitrary and violent prerogative state.” In such a system, Levy warned, the law is used to make the unconscionable “legal.” 

This is where America currently finds itself with Trump’s second administration. The dual legal state is growing and deepening, with a list of offenses that seems to lengthen with each passing day. 

But the law is not abstract. Its power and authority are made real by people. In the face of Trump’s mass deportation machine, a growing number of judges are making the principled choice to defend the Constitution, the rule of law and democracy itself.

As POLITICO recently reported, the Trump administration is “systematically locking up immigrants” who are contesting deportation, “even if they’ve lived in the United States for decades and have no criminal record.” Dozens of federal judges have declared this “indiscriminate mass detention” illegal and described it as “a flagrant perversion of long-standing law, policy and common sense.”

These immigrants, many of whom were arrested “without warning at work, at routine check-ins with immigration authorities or after immigration court proceedings,” are fighting back with lawsuits against the federal government. Their lawyers argue that the “overcrowded and unsanitary” detention facilities are inhumane.

The administration has responded by saying its reinterpretation of the law is legal because the time a person is in the country — be it “for 25 minutes or 25 years” — is irrelevant. Immigrants are fighting back by turning to federal district courts for protection. Historically, these courts have not been widely used for immigration law and disputes. But matters are dire, and the judges have been stunned by what they see as gross violations of due process and rights. The implications could extend well beyond the individual cases, potentially to many millions more.

Many of the jurists aren’t mincing words when describing the Trump administration’s actions. According to POLITICO, one described its use of immigration proceedings as a “game of detention roulette.” Another “called the administration’s reinterpretation of the law to prioritize detention ‘radical.’” Julie Rubin, a district judge in Maryland, said it most eloquently: “The Government’s discretion in matters of immigration is deep and wide, but surely its chop does not overcome the banks of due process enshrined in the Constitution.”

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The judges have ordered detainees immediately released on the condition that they continue to appear in immigration court and stay in contact with the government. Their ultimate fate will likely be the same — deportation. But they cannot be held indefinitely in detention while awaiting the outcome of the process. Depending on the case, judges are also mandating that the administration allow immigrants an opportunity to seek bond, which means a real opportunity to be temporarily freed from ICE custody. (The administration has attempted to deny many immigrants this basic right, likely in the hope that, with resistance feeling futile, they will ultimately choose to self-deport.)

“They’re trying to get people to give up before they even get that far. Without a judge ever really ruling,” Michael Kagan, director of the University of Nevada, Las Vegas’ Immigration Clinic, told POLITICO.

But the federal courts — with the notable exception of the Supreme Court’s right-wing justices who made Trump America’s first de facto king — are one of the few institutions that have slowed down the president’s assaults on democracy and the rule of law.

Federal judges who obey the Constitution and not Trump’s fiats are putting themselves in great danger. The U.S. Marshals Service had reported a record increase in the number of threats against judges.

“If a court issues a decision this administration does not agree with, the judge is targeted. If a lawyer represents parties in a dispute with the administration, or if a lawyer represents parties the administration does not like, lawyers are targeted,” American Bar Association President William Bay has written.

American jurisprudence is grounded in the principle that it is better for 100 guilty people to go free than for one innocent person to suffer. The Trump administration inverts this: better that 100 innocent people be imprisoned than one guilty person go free. That inversion is tyranny made legal.

The judges who are defending the Constitution and the rule of law are courageous examples for pro-democracy Americans and other people of conscience. While the average person does not have the power of a federal judge, they do have the agency to make choices in their own daily lives that can weaken or strengthen civil society. 

We have to begin thinking of democracy as something we must do, even when it is hard. And those hard choices, small and large, will decide our government’s fate.