ARE WE IN THE LAWLESS STATE OR THE NON-LAWLESS STATE?

David French says we're living in a "dual state."

... we’ve slowly but surely created the mechanisms of what the Nazi-era Jewish labor lawyer Ernst Fraenkel called “the dual state.”

Last March, Aziz Huq, a University of Chicago law professor, wrote a prescient (and deeply disturbing) piece for The Atlantic that revived Fraenkel’s analysis for this new American age....

The two components of the dual state are the normative state — the seemingly normal world that you and I inhabit, where, as Huq writes, the “ordinary legal system of rules, procedures and precedents” applies — and the prerogative state, which is marked (in Fraenkel’s words) by “unlimited arbitrariness and violence unchecked by any legal guarantees.”

“The key here,” Huq writes, “is that this prerogative state does not immediately and completely overrun the normative state. Rather, Fraenkel argued, dictatorships create a lawless zone that runs alongside the normative state.”

It’s the continued existence of the normative state that lulls a population to sleep. It makes you discount the warnings of others. “Surely,” you say to yourself, “things aren’t that bad. My life is pretty much what it was.”

French says that Minneapolis still functions mostly as a normative state -- but if you cross paths with ICE, as Renee Good did, you can be a victim of the prerogative state.

I think it's appropriate to apply this framework to American life now -- and it's why I wrote a post yesterday warning that our electoral system could be at risk, despite the reassurances of many commentators, including French himself. In the New York Times roundtable I quoted yesterday, Jamelle Bouie, David French, and Michelle Cottle argued that the Trump administration's court losses on various issues ought to reassure us that elections will go forward as planned in November.

Bouie: ... I feel like it’s necessary to say that there’s a lot of fear-mongering and scaremongering about what the president can do with regards to the midterms and —

Cottle: Well, he just got shot down by the courts, right?

Bouie: Right.

Cottle: He was arguing that he needed to deprive states of federal funding if they didn’t follow his rules for how they run their elections. And the courts are like: No, bro, step back.

Bouie: He’s demanding voter rolls. And the courts are saying, no, none of this is your business. So for Trump to try to cancel an election in Virginia, for example, like Abigail Spanberger would have to be like, OK, sure.

Cottle: Yeah, that’s going to happen.

Bouie: How is Donald Trump going to stop Gavin Newsom? How is he going to stop Kathy Hochul? You have to think in practical terms. And I understand the temptation to latch on to worst-case scenarios and fantasies. It makes a lot of sense in the moment. But you have to temper that stuff with thinking, how does the practical operation of government actually work?

French: ... there’s another factor that I don’t think people have appreciated quite enough, and that is the Supreme Court’s decision in Trump v. Illinois here in the last few weeks, where it upheld an order blocking the National Guard deployment under this particular statute that Trump was trying to use. That if he was permitted to use it, at his discretion, at his will, we don’t have very many ICE officers, but we’ve got hundreds of thousands of soldiers in the Guard.

... I think that the Trump v. Illinois case was very, very important because it’s really cut off from him this ability to deploy the Guard at his whim.

What they all seem to be saying is that elections absolutely won't take place in the prerogative state, where Trump can do whatever the hell he wants. They'll take place in the normative state, where laws still apply.

But then French says:

Now there’s still the Insurrection Act hovering out there. That’s a whole different can of worms. But I do think that there’s great hope.

Yup, and today we're reading this:

The Pentagon has ordered about 1,500 active-duty soldiers to prepare for a possible deployment to Minnesota, defense officials told The Washington Post late Saturday, after President Donald Trump threatened to invoke the Insurrection Act in response to unrest there....

The Army placed the units on prepare-to-deploy orders in case violence in Minnesota escalates, officials said, characterizing the move as “prudent planning.” It is not clear whether any of them will be sent to the state, the officials said....

This is the problem: aspects of American life move out of the prerogative state and then move right back into it. Trump can't deploy National Guard troops, but he can deploy ICE, and he could deploy active-duty soldiers. He accepts some court rulings and looks for ways around others. We don't know which state we're in from one moment to the next.

It's possible that Trump will allow elections to proceed more or less as they usually do in November except in Minnesota, because he's so obsessed with the state. Remember, Democrats are trying to win back the Senate, and the Senate seat of retiring senator Tina Smith will be up for grabs. Also, Tim Walz has bowed out of the governor's race, and it appears that the state's other senator, Amy Klobuchar, wants to run for governor.

If he chose to, Trump could invoke the Insurrection Act in Minnesota and stage troops at polling places -- but only in heavily Democratic Minneapolis and St. Paul. Could he prevent residents of the Twin Cities from voting and possibly throw the gubernatorial election to a Republican candidate (maybe even, God help us, Mike Lindell)? Could he throw the Senate race to a Republican? Even if Democrats turn out to vote in the Twin Cities, could he have ballots impounded and declare that victorious Democrats won by fraud?

We just don't know when we're going to be in the prerogative state and when we aren't. As a New Yorker, I assumed we'd be where Minneapolis is now as soon as Zohran Mamdani was sworn in as mayor. It hasn't happened -- yet.

America is a dual state, but it's not a static dual state. It's never clear when you're going to find yourself in the lawless part of Trump's America.