The rule of law has been replaced by the rule by law, and this is exactly how it is happening:
As [Ernst] Fraenkel explained it, a lawless dictatorship does not arise simply by snuffing out the ordinary legal system of rules, procedures, and precedents. To the contrary, that system—which he called the “normative state”—remains in place while dictatorial power spreads across society. What happens, Fraenkel explained, is insidious. Rather than completely eliminating the normative state, the Nazi regime slowly created a parallel zone in which “unlimited arbitrariness and violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary law didn’t apply. (A prerogative power is one that allows a person such as a monarch to act without regard to the laws on the books; theorists from John Locke onward have offered various formulations of the idea.) In this prerogative state, judges and other legal actors deferred to the racist hierarchies and ruthless expediencies of the Nazi regime.
The key here 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. The two states cohabit uneasily and unstably. On any given day, people or cases could be jerked out of the normative state and into the prerogative one.
This regime is so far keeping the lives of everyday Americans mostly unchanged, while opening up a parellel black hole of cruelty, misery, and completely arbitrary lawlessness, hoping those of us living our lives in the “normative state” won’t care enough to put a stop to it.
The Hands Off! protests last weekend were a good start to show that the regime is wrong. What’s next?