The Nazi Political Theory That Explains ICE's Impunity |
Jonathan Ross, the Immigration and Customs Enforcement agent who shot and killed Renee Nicole Good, will not be brought to justice. Let that sink in. Ross is going to skate, because in Donald Trump’s America, his agency operates above the law. As Vice President JD Vance put it at a White House press conference the day after the shooting, Ross has “absolute immunity for doing his job.”
Vance’s comments shed light upon the larger legal design behind ICE’s newfound power. In Trump’s second term, the United States is rapidly devolving into what the late German émigré legal and political scientist Ernst Fraenkel called a “dual state,” in which acts of violence perpetrated against designated enemies of the regime are not only tolerated, but often celebrated as acts of valor and redemption.
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:
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........