The United States has welcomed refugees fleeing persecution under the same law for 45 years, following a tradition dating back to World War II. Through an orderly process, applicants for refugee status undergo extensive federal vetting before arriving. A year after entering the US, they can apply for a green card, and barring any issues, receive one. But late last year, the administration quietly changed the rules.

People protected by the laws are suddenly subject to arrest and detainment.

On January 9, the Department of Homeland Security and U.S. Citizenship and Immigration Services began putting its changes to work, seeking out and detaining lawful refugees who have broken no laws and followed DHS’ processes to the letter. One moment they were law-abiding refugees, the next many were arrested, shackled, and interrogated. DHS calls it Operation Post-Admission Refugee Reverification and Integrity Strengthening (PARRIS), and its first targets are some 5,600 lawful refugees in Minnesota. Nationwide, the new rule means some 100,000 refugees could be locked up—and alongside another, even broader, change initiated by the Trump administration, it suggests that the government’s plan to fill the warehouses it is buying and converting to detention centers rest on ignoring the laws that control its operations.

On January 28, John Tunheim, a federal district judge in Minneapolis, ordered DHS to stop detaining refugees under the new policy in Minnesota as the case proceeds, finding it is likely illegal. It is also a particular brand of authoritarian. The idea of the dual state, developed by Jewish-German labor lawyer Ernst Fraenkel in the 1930s to explain the legal system of the Third Reich, describes an authoritarian state divided into two realms: the normative state and the prerogative state. In the former, the rules are followed and the laws upheld. In the latter, the state simply imposes its will, and no law or right or freedom can protect its victims. Frankel described how most Germans in the 1930s lived in the normative state where life and commerce continued to feel normal, while Jews, political dissidents, and other disfavored groups were in the prerogative state, subject to the violent recriminations of the regime. The regime is able to accomplish the goals of the prerogative state because most people lived in the normal of the normative state.

The Trump administration’s treatment of refugees and other immigrants echoes the dual-state model. People who were protected by the laws are suddenly subject to arrest and detainment, possibly for a long time. The scaffolding of their rights is collapsing, and they are now subject to the dark underbelly of Trump’s lawless detention regime.

“ICE is the face of a prerogative state, emerging or actual,” Evan Bernick, a constitutional law professor at Northern Illinois University College of Law, explained to me last year. “It swoops in, it ignores safeguards, you can’t escape it.”

Courts in a burgeoning dual state are left to either push back or validate an unlawful policy. To justify the PARRIS detentions, DHS lawyers point to a section of the 1980 Refugee Act which allows them to take refugees into custody in order to assess their eligibility for a green card. In a new memo released this month to bolster its case, DHS claims that that is an open-ended authority to detain refugees for days, months, or even years as they are vetted again. In his initial order, Tunheim disagreed: “On the plain reading of these statutes, the Court concludes that none of these provisions authorize the prolonged detention” of the plaintiffs. The authority the government cites, Tunheim found, simply isn’t there.

Tunheim also found the government’s argument would lead to absurd results. Because the........

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