In a recent holiday message, I expressed optimism that one year into this administration our district courts, courts of appeals, grand juries, and criminal and civil court juries were still upholding the rule of law in the face of Trump’s propaganda, manipulation and intimidation. A friend of mine wondered if I was being overly optimistic—perhaps the German courts had also stood up to Hitler during the initial phase of his regime—but maybe that resistance amounted to nothing in the end. My friend’s question led me to investigate the question of German court resistance to Hitler.
There was, indeed, some limited initial resistance to Hitler by parts of the German court system, but that limited resistance collapsed very quickly. One month after Hitler assumed the office of Chancellor the Reichstag burned, and one day after the fire President Paul Von Hindenburg signed a presidential decree invoking article 48 of the Weimar Constitution. That decree suspended almost all German civil liberties including habeas corpus, freedom of expression, freedom of press, the right to free association and public assembly and the privacy of mail and phone conversations. Hindenburg’s national emergency voided all rights in order to deal with the “situation.” The “situation” was an alleged Communist conspiracy to take over Germany. Once invoked, the temporary “suspension” proved permanent.
Hitler used the German Supreme Court’s dismissal of charges against four of the accused Reichstag fire co-conspirators as an opportunity to create People’s Courts (Volksgerichtshöfe) to handle “political” cases that ran parallel to the normative judicial system. The normative court system still handled ordinary matters like violations of contracts, divorces, and petty crimes in accord with German jurisprudence. The People’s Courts, on the other hand, were entirely controlled by the Nazi party and not by the German state (although this distinction became more and more moot as time went on) and did not have to follow established principles of law. This led to the situation Ernst Fraenkel (1941) described as the “dual state,” or the co-existence of organs of a normative state that followed established rules and procedures with organs of the prerogative state that followed only the Party’s wishes.
To summarize, the collapse of judicial resistance to Hitler was largely the result of two events: Hindenburg’s emergency suspension of civil liberties and Hitler’s establishment of a separate “legal” system for political crimes.
How close are we to a similar situation in the U.S. in 2026?
We know Trump likes declaring faux “emergencies” of various kinds as pretexts for imposing tariffs, deploying the National Guard, invading foreign countries, or rounding up immigrants. It is easy to imagine him going one step further—invoking the Insurrection Act of 1807 to call up the military to suppress civil disorder, armed insurrection, or rebellion even when no such disorder, insurrection, or rebellion exists. Let us note, however, that his power here is limited by the Posse Comitatus Act of 1878 that forbids the use of the U.S. military to enforce civil or criminal law.
Under “emergency” circumstances, could Trump impose martial law, suspend civil liberties, or cancel a national election? The Insurrection Act does not give the president the power to unilaterally declare martial law or suspend the bill of rights, and we should note that national elections were held even in the midst of the Civil War.
On the other hand, President Lincoln twice suspended habeas corpus during the Civil War. He did so first in 1861 after riots in Baltimore threatened Union supply lines. The Supreme Court ruled the suspension unconstitutional (in Ex parte Merryman), arguing only Congress held that power, but Lincoln ignored the ruling. Lincoln extended the suspension nationwide in 1862, applying martial law to draft resisters and Confederate sympathizers. Congress retroactively ratified this in the Habeas Corpus Suspension Act of 1863 which granted presidential authority during public safety emergencies tied to rebellion. The Act contained some limitations on his power that Lincoln proceeded to ignore. So there is a precedent for a president exceeding his authority during a national emergency. Of course, Lincoln’s emergency was genuine—but Trump has a blueprint to attempt to follow should he chose to.
Would the U.S. Supreme Court declare invoking the Insurrection Act unconstitutional in the event of a faux emergency? That remains unclear, but we may get some hints to an answer when the Court issues final rulings on the constitutionality of Trump’s tariffs (in the case of V.O.S. Selections v. Trump) and National Guard deployments (in the case of Trump v. Illinois). So far, there are indications that the majority of the Court is reluctant to yield Trump unlimited powers, although who knows what the future may bring. The good news is that the U.S. Constitution does not contain anything like Article 48 of the Weimar Constitution, and that there are some real impediments to Trump suspending civil liberties. He is willing to play fast and loose with them, but so far the courts are holding the line. Of course, that doesn’t mean Trump might not eventually decide to completely ignore Supreme Court rulings in the future, but as of today we are not quite at that point.
What about the establishment of a second court system for political crimes answerable only to Donald Trump? We are still a long way from that happening. So far, courts have been resisting Trump’s revenge indictments, grand juries have been turning them down, and juries have been acquitting political indictees. Trump is at an ebb of popularity, and the odds that he currently has the political power to impose a second court system by fiat are extremely low. The Weimar Supreme Court had no ability to declare a presidential action unconstitutional, which was a significant weakness in the German system of jurisprudence. The U.S. Supreme Court, as compromised as it is, would still probably resist the establishment of a dual court system extended to the population at large.
This isn’t to say that some elements of the dual state don’t already exist: Immigration Courts and Military Courts and Commissions run parallel to the civil and criminal courts. Immigration Courts already function as quasi-prerogative organs, and Trump can always attempt to try civilians in military courts. On the other hand, any attempt to justify trying civilians in military courts would have to proceed indirectly, by relabeling people, redefining emergencies, or mischaracterizing the courts. A blatant move would collide head-on with a 1866 Supreme Court ruling (Ex parte Milligan) that forbids military tribunals from trying civilians as long as civilian courts are open and functioning, even during wartime.
Of course, our post-9/11 government held non-citizen civilians at Guantanamo Bay by claiming them as “enemy combatants.” The government argued they were unentitled to prisoner-or-war status and therefore triable by military commission. This was a cunning jurisdictional strategy to avoid civilian courts, 5th and 6th Amendment protections, and the Geneva Conventions. We see a comparable situation on the South American high seas, where boat crews are labeled “drug traffickers,” “transnational criminal actors,” and “narco-terrorists” and murdered without evidence or due process. Once so classified, force substitutes for trial. What’s to prevent an-ever-so-creative DOJ from stretching the same logic to one day apply to U.S. citizens?
We have every reason to remain uneasy and vigilant, and to fight against ongoing efforts to pervert our justice system. Trump has already established his Justice Department as an organ of the prerogative state. We are proceeding down the slippery slope towards fascism. But many significant impediments remain in Trump’s way, and his route to total power should he choose to pursue it won’t be as easy as Hitler’s. We have reason to stay in this fight and also a reasonable hope of prevailing. One way to insure we prevail is to keep on speaking up, speaking out, organizing, demonstrating, witnessing, writing our representatives, supporting candidates and public officials who have the courage and will to stand up, and refusing to be intimidated.