Document Type
Article
Journal Title
SMU Law Review
Volume
79
First Page
129
Publication Date
Winter 2026
Abstract
Immigration law in the second Trump Administration has created profound disorientation and dissonance, where some legal matters proceed in largely familiar ways, and others seem to occur in an entirely new dimension. This Article avails itself of Ernst Fraenkel’s Dual State theory to examine this dissonance. It argues that a duality exists in U.S. immigration law today between the federal courts and the administrative immigration system. In Fraenkel’s terms, constitutional challenges to immigration policies and individual habeas cases demonstrate important features of the Normative State, one that is consistent with the Rule of Law. By contrast, the administrative system—comprising the Department of Justice’s immigration courts and the Department of Homeland Security’s enforcement apparatus—exhibits all of the hallmarks of Fraenkel’s all-powerful Prerogative State, where executive power is unbounded.
This Article maps many of the key developments of the second Trump Administration onto the Normative and Prerogative States, but also identifes how, even within the federal courts, there are signs of an encroaching Prerogative State. This Article concludes that while the Dual State already exists in immigration law, it differs—for now—in a fundamental way from the system Fraenkel observed in 1930s Nazi Germany: There, the Normative State functioned in name only, and only in limited areas of law. Thus far, the federal courts in the United States have generally resisted the encroachment of the Prerogative State.The ending of this particular story remains unwritten, but the Dual State framework allows us to name every destructive turn as a strengthening of the Prerogative State without becoming acculturated to its incursions into the Rule of Law.
Recommended Citation
Elizabeth Keyes,
What Constitution? The Dual State Theory in Immigration Law & Practice,
79
SMU Law Review
129
(2026).
Available at:
https://scholarworks.law.ubalt.edu/all_fac/1209