Duncan Hosie, a legal scholar at the Stanford Constitutional Law Center, writes in the NYT:
Whatever the ultimate legal outcome, the Trump administration’s broader objective — chilling corporate legal resistance — had been accomplished. In the first eight months of Mr. Trump’s first term, big law firms participated in roughly 75 percent of the legal challenges to his executive orders; in the first eight months of his second term, despite far graver abuses, that figure fell to around 15 percent.
The question raised by the law-firm cases — and by so many other gratuitous actions by the Trump administration — is not whether the orders were unconstitutional. That was never in doubt. The question is whether a legal system built on the assumption that those in power have internalized its norms can withstand a president who hasn’t.
The courts have not failed. They have simply revealed what was always true about constitutional law and about society, elections, and the economy: it runs largely on trust, not mechanics. Duncan Hosie understands this, but he draws the wrong conclusion from it.
Hosie borrows Oliver Wendell Holmes Jr.’s bad man to frame his argument. The bad man asks not what is right but what happens if he disobeys. Constitutional law, Hosie argues, presupposes good faith. Against a president who lacks it, the system has no obvious recourse. This is a reasonable reading of Holmes. What follows from it is less reasonable.
Hosie presents two options: litigation or resistance. He labels litigation a mistake and calls the current moment a genuine emergency. Once you accept those terms, his conclusion feels inevitable. But the binary is assumed, not argued. Between the courtroom and the street lies a great deal of territory he simply doesn’t enter. Interbranch conflict, state-level opposition, congressional action, internal bureaucratic resistance, international reputational pressure: Hosie doesn’t dismiss these. He doesn’t see them. That’s a significant omission dressed up as clear-eyed realism.
The Holmes move itself deserves scrutiny. Holmes introduced the bad man in 1897 to describe how a certain kind of litigant thinks about law. He was making a descriptive point about legal motivation, not a normative claim about systemic collapse. Hosie takes that narrow observation and expands it into a verdict on the entire constitutional order. The conversion is large and quiet. It does the most important work in the piece without announcing itself.
His single piece of evidence is Minneapolis. Federal immigration sweeps met community resistance. Mutual aid networks formed. Neighbors tracked ICE operations. Local organizers shifted political conditions where judges could not issue injunctions. Hosie treats this as proof. But he offers no counterfactual. He doesn’t ask whether the judges’ findings, though not injunctive, constrained federal behavior on the margins. He doesn’t ask whether the community networks formed partly in response to the legal contest rather than as a replacement for it. He doesn’t examine where decentralized resistance has failed, fragmented, or produced backlash. Minneapolis becomes a symbol, and a symbol is not an argument.
There is a deeper problem with the framing, one that neither Hosie nor his critics have fully named. He diagnoses the crisis as norm erosion. A president who ignores constitutional conventions corrodes the system from within. That diagnosis is plausible. But his prescription is power-based resistance: mutual aid, street-level organizing, social pressure. These are not norm-based tools. They are power-based ones. Hosie has identified norm erosion as the disease and recommended more norm erosion as the cure. He doesn’t notice the tension because the shift feels righteous from where he stands. Righteous and coherent are not the same thing.
This is where Carl Schmitt enters, and he does not arrive as a friendly witness. Schmitt’s core claim in The Concept of the Political is that the fundamental political distinction is friend and enemy. Not good and evil, not legal and illegal, not constitutional and unconstitutional. Friend and enemy. Politics begins when a group identifies another group as an existential threat. Law, procedure, rights, and institutions follow from that prior determination and depend on it. Law does not create the political. The political creates the conditions under which law is possible.
His companion claim, developed in Political Theology, is that sovereign is he who decides on the exception. Normal legal order functions only because someone outside the legal order has the power to suspend it. The sovereign is not defined by ordinary rule-following but by the capacity to declare the emergency and act outside normal constraints. The exception reveals who actually holds power, because in the exception the normal rules stop and raw decision takes over.
Applied to Hosie, Schmitt lands with uncomfortable precision. Hosie argues that Trump is a bad man who ignores constitutional norms. Schmitt would say that is a moralized description of something more elementary. Trump is claiming sovereign power in the Schmittian sense. He is deciding on the exception. He demonstrates, through each norm violation, that he stands outside the legal order rather than within it. The courts cannot stop him not because the system has failed but because the sovereign, by definition, is not bound by the system. Hosie diagnoses this as a malfunction. Schmitt would say it is a revelation.
But Schmitt cuts the other way too, and this is where the analysis sharpens. When Hosie declares a genuine emergency and authorizes direct action outside normal legal channels, he performs the same sovereign gesture from the other side. He says: the normal rules are suspended, the friend-enemy distinction now governs, and those who hesitate inside procedural legitimacy have misunderstood what kind of moment this is. Both Trump and Hosie decide on the exception. They decide for different sides, but the architecture is identical.
This is where the piece resembles the kind of argument Jonathan Raban once called moralized geography: the terrain gets divided into places where truth lives and places where it doesn’t. For Hosie, truth lives on the street, with the organizer, in the mutual aid network. It does not live in the law firm or the courtroom. That reassignment of epistemic authority is the real work of the essay. The Holmes argument is the scaffolding. The coalition shift is the building.
When Hosie devalues the elite law firm and elevates the grassroots organizer, he makes a status claim about who understands the crisis most clearly. That claim serves a particular political coalition. It doesn’t just describe a power shift. It performs one. A reader who accepts the framing has already moved. Stephen Turner would note that this is how expertise functions in contested political moments: not by persuading through evidence but by getting audiences to grant deference to a new class of knowers.
None of this means Hosie is wrong that courts are insufficient. They probably are insufficient on their own. Courts can articulate principles. They cannot generate the democratic energy that gives those principles force. That observation is correct and worth making. But correct observations can carry incorrect conclusions. The insufficiency of courts does not establish that litigation is a mistake, that the legal tradition has failed, or that decentralized resistance is the superior path. It establishes only that courts are one tool among several and that tools work best in combination.
The emergency frame does the rest of the work. Once a moment is declared a genuine emergency, the normal demand for evidence relaxes. Thin examples become sufficient. Binaries feel necessary. The call to action acquires the force of moral obligation. Hosie is not the first writer to use emergency rhetoric to move a coalition, and he will not be the last. But readers owe it to themselves to notice when urgency is being used to substitute for analysis rather than to sharpen it.
After Donald Trump lost the 2020 election, he claimed it was stolen. Once you grant that premise, that we live in an emergency where power can be stolen, there are no moral constraints on how you respond. If the presidency was seized through fraud, then normal democratic constraints no longer apply. You cannot be bound by the rules of a game that was rigged. January 6th followed from that premise with a kind of internal logic. Once you grant the emergency, the emergency authorizes everything downstream. The moral framework doesn’t collapse through argument. It collapses through a single premise that, once accepted, does all the work quietly.
Hosie’s emergency operates the same way. He declares a genuine emergency in a country governed by a bad man who has placed himself beyond legal constraint. If you accept that framing, then the normal hierarchy of political tools no longer applies. Courts become insufficient. Procedural legitimacy becomes a trap. The brief and the injunction become forms of complicity with a system that has already failed. What remains? Direct action, decentralized resistance, power-based constraint. And crucially, once you are inside an emergency, the question of how much direct action is enough never gets a clean answer. The emergency keeps authorizing.
The stolen election and the constitutional emergency are mirror images. One justifies bypassing democratic process from the right. The other justifies bypassing legal process from the left. Both use the same architecture: name a threshold violation, declare normal rules suspended, and let the emergency do the moral licensing. Schmitt would not find this surprising. For him, emergency rhetoric is not a distortion of politics. It is politics in its purest form, stripped of the liberal procedural coating that normally obscures the friend-enemy core. Both coalitions have reached the same conclusion: the other side is not a legitimate opponent to be defeated through normal competition. It is an existential threat requiring resistance by whatever means the emergency authorizes.
This is why emergency rhetoric is the most powerful and the most dangerous political tool available. It doesn’t argue for specific actions. It dissolves the framework within which actions are evaluated. You don’t have to make the case for any particular measure. You only have to establish that the situation is extraordinary. Everything else follows.
Becker is relevant here too. Emergency rhetoric does something psychologically useful for coalitions. It elevates ordinary political participation into heroic resistance. You are not attending a city council meeting or donating to a campaign. You are saving democracy, or saving the republic, or stopping the steal. The stakes transform the actor. And because the hero system needs the emergency to remain legible, there is a structural incentive to keep the emergency alive, to find new evidence for it, to resist any evidence that the situation is more ambiguous or recoverable than the framing requires.
That incentive is not merely psychological. It is institutional. The organizers, mutual aid networks, and resistance coalitions built inside the emergency are not just responses to it. They are organizations whose identity, funding, and membership depend on the emergency remaining legible. Once established, they become part of the environment that selects for emergency-confirming behavior and against evidence that the situation is normalizing. The niche constructs the knowers who then maintain the niche. This is why emergency rhetoric so rarely produces its own off-ramp. The institutions it generates have every reason to keep the dam intact and no structural mechanism for asking whether the pond still needs it.
The honest question Hosie never asks is this: if direct action and decentralized resistance are authorized by the emergency, who decides when the emergency ends? What would count as sufficient evidence that courts are working, that the constitutional order is holding, that the emergency frame should be retired? He offers no answer because the frame doesn’t contain one. Schmitt spent his career answering that question. The sovereign decides. Whoever can make the declaration of emergency stick is, by that fact, the sovereign. Hosie wants the emergency without the sovereign, the authorization without anyone holding the power to withdraw it. That combination has no stable resting point.
One note on Schmitt is necessary. He joined the Nazi party in 1933 and provided legal justifications for early Nazi measures before falling out of favor with the SS in 1936. His framework is powerful precisely because it strips liberal democracy of its self-flattering assumptions, but it contains no internal resources for resisting the conclusion that whoever wins the friend-enemy struggle was right to win it. He describes the logic of emergency politics with great clarity. He offers no way out of it. That limit is useful here because Hosie’s piece has no way out either. It declares the emergency, authorizes the resistance, and provides no exit condition. Emergency rhetoric by its nature lacks one. That’s not a bug in the argument. For a coalition that needs mobilization, it’s a feature.
Constitutional order has always depended less on what judges say than on what people are willing to do. Hosie ends with that line and it rings true. But people deciding what to do need the clearest possible picture of what works, what fails, and what costs come with each path. That picture requires exactly the kind of careful, counterfactual thinking this essay declines to perform.
