Migration and the State of Exception

One of the reasons that the study of migration is so fascinating is that it resists categories and boundaries that people, especially people in power, use to protect their interests and to regulate people’s opportunities and behavior. In particular, migration across national frontiers challenges the nation-state as it is understood through the prism of methodological nationalism. Migrants are simultaneously seen as members on a path to full inclusion as citizens and as foreigners with at best divided loyalties.
One place in which these ambiguities manifest themselves is in practices of regulating migration. State agents are reluctant to abandon discretionary power over migrants, preferring to maintain that decisions to admit and exclude are at their sole discretion. At the same time, liberal states see themselves as bound by laws, rights, and norms toward their members. Migrants occupy a variety of partial, temporary, and potential statuses when compared to an idealized conception of a “full members”. For this reason, states need to justify or at least deflect attention from its treatment of migrants.
This week I’ve been reading Philip Kretsedemas’s The Immigration Crucible. Chapter 3, “The Secret Life of the State” draws on the work of Italian Theorist Giorgio Agamben on the state of exception. In his best known work Homer Sacer, Agamben explores how individuals can be outside of the law but at the same time included by their exclusion since the law defines them as outside its boundaries. Agamben extends the idea that in conditions of crisis (or perceived crisis) rulers must transcend the rule of law and employ extra-legal power to deal with novel situations by arguing that contemporary politics this “state of exception” is increasingly the norm.
In his 2005 book, State of Exception, he wrote of then President George W. Bush’s “military order” that 

“it radically erases any legal status of the individual, thus producing a legally unnamable and   
classifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. Neither prisoners nor persons accused, but simply “detainees,” they are the object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight.”

Agamben’s observation is chilling in light of yesterday’s release of the Senate Intelligence Committee’s report on CIA torture. Though the parallel to the CIA’s use of “enhanced interrogation techniques” may be distressing, Agamben’s account of the detention under Bush’s military order fits well with the status of many migrants under indefinite, discretionary detention around the world.
The importance of Agamben’s work has not been lost on migration theorists. Kretsedamas sees the rise of a state of exception as playing out in the increased discretionary authority of the executive branch over immigration law and the delegation of enforcement powers to local authorities. (A recent, harrowing ACLU reporttells how immigration enforcement officials bypass the judicial system to unjustly deport people without a hearing, sometimes to places where they are assaulted or raped.) He connects the expansion of discretionary authority to neoliberalism’s undermining of administrative controls, writing that the net effect is to grant more actors the ability to make decisions that are conditioned by the imperative of necessity – adapting one’s decisions to unfolding contingencies rather than predefined rules and regulations.
In this regard, neoliberalism can be said to convert the exceptional powers of the executive office into a normal features of the law and disburses these powers to an unprecedented array of actors (61).
The state of exception in which laws define spaces in which authorities possess extensive extralegal authority applies to many categories of migrants: refugees confined to camps, asylum seekers in detentionfacilities, temporary workers whose legal status depends on the discretion of their employers, irregular migrants who live in constant fear of deportation and family migrants awaiting bureaucrats’ determination if they can joint their loved ones. (These themes are usefully developed by Luca Miggiana in States of Exception: Securitisation and Irregular Migration in the Mediterranean and Stefanie Georgakis in Enclosing Insecurity: Migration in the Mediterranean as the State of Exception.)
Migrants often choose to relinquish their citizenship and thus their political status in their bid to change their residence (or to work for a period outside of their country of birth). In Zones of Indistinction, Anthony Downey refers to migrants in Tangiers looking to cross to Europe without legal authorization:
Those who have made the journey illegally are referred to as the ‘burn ones’ because they burn their passports before embarkation so that they cannot be returned to their homeland as no proof of where they have come from exists. In the act of burning their passports before departure the ‘burnt ones’ have effectively waived their rights as citizens to legal redress. Reduced to the ‘bare life’ of homo sacer [sacred man] they have been rendered ‘non-persons’ in a move that is singularly paradoxical: in the very moment of attempting to attain citizenship they must destroy that which gave them citizenship in the first place (119).
What should ethicists make of the ubiquity of executive and bureaucratic discretion over migrants? Discretional authority is sometimes necessary and at times measures such as President Obama’s Deferred Action for Parental Accountability achieves some good. Nonetheless, this points to ways in which state regulation of migration may be fundamentally problematic. The normative defense of border controls may implicate political philosophers in practices that produce situations that strip people of their legal status and expose them to arbitrary authority in situations where the wrong decision can lead to severe harm or death. The suggestion is that even if states at some level have a moral right to exclude of many people, the enforcement of this right may lead to morally indefensible practices.
The University of Michigan’s Undocumented Migration Project has a collaboration between anthropology professor Jason de León, photographer Richard Barnes, and curator Amanda Krugliak that exhibits objects left behind by migrants travelling along the U.S.-Mexico Border: State of Exception Exhibit

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