How Trump is ‘stress-testing American law’

New York Times columnist David French examined accountability options in the case of Minneapolis resident Renee Nicole Good, who was shot and killed by Immigration and Customs Enforcement (ICE).Writing Sunday, French discussed legal barriers to accountability in this case.French noted that state laws present limited options for prosecution. According to French, there is a doctrine called supremacy clause immunity that prohibits state officials from prosecuting federal officers when they are acting in their official capacity.”There is a doctrine called supremacy clause immunity that prohibits state officials from prosecuting federal officers when they’re reasonably acting in their official capacity. It’s not absolute immunity like the administration claims, but it’s still a high hurdle for any prosecution to overcome,” French wrote.Civil cases face similar obstacles. While laws allow for suing state and local officers, no equivalent option exists for federal agents.”And there you have it,” French continued, “that’s the challenge any citizen faces when he or she tries to hold the federal government responsible for violating the Constitution. The government is defended by a phalanx of immunities and privileges, buttressed by the president’s unchecked pardon power — a vestige of royal authority that has been challenged as outdated in constitutional debates.”French characterized this as a test of American law’s effectiveness. When multiple checks and balances fail, accountability becomes difficult.”And so we manufactured doctrine after doctrine, year after year, that insulated the executive branch from legal accountability,” wrote French. “This web of immunities — combined with limited congressional oversight — affects legal accountability mechanisms.”French cited Nazi-era legal theorist Ernst Fraenkel’s concept of “the dual state.””The two components of the dual state are the normative state — the seemingly normal world that you and I inhabit, where, as [Aziz Huq, a University of Chicago law professor] 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,'” French quoted.”The key here,” Huq said, “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.”French referenced Federalist No. 51, in which James Madison wrote, “If angels were to govern men, neither external nor internal controls on government would be necessary.”French discussed how checks and balances function when officials are accountable to law. He noted the need for legal frameworks that apply equally to all actors.French observed that structural legal protections have evolved through doctrine and legislation. He discussed the concept of “Reconstruction” as applied to institutional reform and suggested that legal systems require ongoing examination to maintain effectiveness.

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