America’s Homo Sacer

Introduction

In the wake of September 11, 2001, public discourse swirled with intense and palpable fear of continued terrorist attacks by an inassimilable other. The government immediately leveraged this considerable anxiety to develop domestic security policy that would manage and prevent further incursion of these others. In particular, the perceived emergency threat propagated by 9/11 intensified scrutiny of American border policy and further problematized the issue of illegal immigration (Coleman, 2007a, 2007b). The government’s crackdown on illegal immigration became a paramount policy issue that resulted in sweeping changes of federal and state laws prioritizing immigration as national security (Orrenius & Zavodny, 2009). The effect was a tenuously created connection between undocumented workers and the War on Terror that only served to enhance the distinction between the sovereign and the “invading” immigrant.

Post-9/11, it is of interest to note the dichotomy in border security policies between those of the U.S.–Canada border and the U.S.–Mexico border. This variation in border policy, with primary attention given to the southern border, may be attributed in part to racial prejudice of non-Whites, as argued by Purcell and Nevins (2005). For instance, in 2002, the Social Security Administration (SSA) began sending out letters notifying employers of nonmatches and nonissued social security numbers to employers. As a result, many Latino interest groups claimed these government letters unfairly targeted Hispanics (Orrenius & Zavodny, 2009; Waslin, 2003). “Othering” becomes a mechanism that secures the identity of the citizen while stigmatizing the other (Grove & Zwi, 2006; Jamieson & McEvoy, 2005; Said, 1978). Othering facilitates the transition from the normal legal space to an extralegal space.

Policing actions on the U.S.–Mexico borderlands are treated by U.S. policy makers as akin to low-intensity warfare (Coleman, 2007a; Dunn, 1996). Like any war, low intensity or otherwise, entry of undocumented border crossers can be construed as an emergency condition. Such hyperbolic distinction facilitates the transition from undocumented worker to the invading other. Linkages between the War on Terror and border security policy through the application of various apparatuses (Agamben, 2009) include border fences and aerial drones, and increased number of boots on the ground to control the border under a now-perceived heightened state of siege. This transitive linkage process attaches the emergency of a terrorist attack condition to the concerns over illegal immigration. Because the emergency is merely perceived and not literal, no actual threat is necessary for policy implementation. Contrary to this perceived “emergency,” according to Passel and Cohn (2010) of the Pew Hispanic Research Center reports that unauthorized immigration flows have actually sharply declined over the past decade–a point that seems to be lost in public discourse.

When the problem of illegal immigration of others evolved into an emergency, it justified moving the matter outside the normal legal (civil) circumstances. Even the suggestion that something is a threat can lend justification for an extraordinary policy response (Ackleson, 2005)—otherwise known as the “state of exception” (Agamben, 2005). The State of Emergency theory posits that in periods of political crisis (perceived or real) a state of emergency exists (Schmitt, 1922/1985). Emergency conditions in the polity result in the divergence from the normal practice of law, and the government transitions into a condition outside of the normal rule of law. Agamben (2005) takes Schmitt’s theory a step further to argue that there is a near continual state of exception that exists in the government as an almost purely political condition rather than being legally or constitutionally grounded. The result is a constant state of anomie with regard to immigration and border security. The events surrounding 9/11—the attack on the World Trade Center and the Pentagon—provided the Bush administration with the rationale for the state of exception conditions to change immigration and border security policy. The oft-pronounced fear of another terrorist attack and the desire for increased security made it very easy to justify the now constant state of emergency.

However, Agamben’s State of Exception theory alone cannot completely explain U.S. immigration policy, particularly U.S. policy regarding deportation hearings of those who enter the United States illegally. Agamben’s State of Exception concept and his theory on homo sacer have a symbiotic relationship that makes the two theories applicable in the present analysis. While the State of Exception theory explains the extra space carved out to justify legal exceptions, homo sacer helps to explain the purpose of the policy of the “illegally” created space.

In this article, we examine U.S. immigration policy, deportation policy, and to a degree, border security, using the dual lens of Agamben’s State of Exception theory and Homo Sacer theory as a means to test its application for public policy. We analyze the State of Exception theory to explain the development, administration, and discontinuity of American immigration and border policy. The state of exception is specifically explored as it sets aside a unique space in which to manage the removal of undocumented workers (now defined as illegal immigrants) in the custody of government agencies. In addition, we examine the loss of liberty within the deportation hearing process rendering “illegal immigrant” as America’s homo sacer. Finally, we conclude with an assessment of the problems occurring in Arizona and the potential loss of human rights and liberties based on recent laws passed by the border state. Although Arizona is by no means the only state taking action against undocumented border crossers, it aptly serves to illustrate the ongoing phenomenon of lawmakers becoming more aggressive in designing policies ostensibly for increased national security. As the U.S. federal government moves toward reassessing immigration policy, states—as political actors in the U.S. federal system—have attempted to make an impact on national policies by promoting more stringent laws against undocumented border crossers and impacting American citizens who may appear to look like them. We conclude the essay with a discussion of the implications of Agamben’s theories for American immigration policy as well as the newly established practice of criminalizing undocumented border crossers.

The State of Exception and Government

In Political Theology, Schmitt (1922/1985) ¹ discusses the concept of the “state of emergency,” or the suspension of law under certain perceived emergency conditions. According to Schmitt, the state of emergency is subject to the authority of the sovereign because it is the right of the sovereign to proclaim the state of emergency (Agamben, 2005; Scheppele, 2004). Agamben (2005) further develops this in his discussion of the “state of exception.” Such is the case with Agamben’s state of exception, however, with a much lower threshold than Schmitt’s theory. Because the zone of exception is narrow, the condition or the process to establish its creation is equally small, perhaps even as simple as bureaucratic necessity. Rather than an absence of law, it is merely an exception to it that creates a zone of indistinction between law and nature (Agamben, 1995). This concept has implications for U.S. border and security policy.

The result of the ability to suspend and dispense with the law has been a continual topic in the United States since 1887. It is unlikely that the Framers of the U.S. Constitution would disagree with Schmitt’s interpretation of the power of the sovereign. In the American system of government, in theory at least, it is the people who are the sovereign. The preamble to the Constitution is regularly pointed to as the resting place of sovereign authority. In McCulloch v. Maryland (1819), Justice Marshall’s opinion points to the Constitution’s ratification by the people and not the states.

Given the fact that the sovereign, in the case of the United States, is the mass body of people—it was considered to be unreasonable for the Framers to functionally leave such arbitrary power in the hands of the masses. The power of the sovereign was delegated to the federal government and, to a somewhat lesser degree, each state of the union through the constitutional notion of representative democracy in a federal republic. The arbitrariness of suspending and dispensing with the law was to be removed by the adoption and ratification of the Constitution with sufficient built-in safeguards. The unilateral authority of such a power was replaced by the legislative (lawmaking) process with checks and balances and separation of powers. Arbitrariness of adopted laws and policies was to be overridden by a deliberative and systematic process by policy makers for such a circumstance creating conditions necessary to institute marshal law—following the basic law of the land.

Schmitt’s interpretation of the power of the sovereign and his state of emergency, for which he elucidates, has at times accurately described the American system. Examples of it may well be seen in history (e.g., the U.S. Civil War). When an emergency condition presents itself, the people have delegated, as understood in Article I, §8 and the Habeas Corpus clause in §9, of the Constitution, the power to suspend the law while in the state of emergency to Congress or the President when Congress is not in session. The Framers of the Constitution have permitted, in essence, the possibility of a normalized state of emergency. Unlike the power under the control of a monarch, or some other form of governmental leadership, the democratically elected leaders are the sole judge of emergency conditions—as is the right of the sovereign. The constitutionally alleged sovereign American people have established conditions that must first be met to allow their representatives to suspend the law.

On occasion then, the desire may exist for executives and legislatures to aggrandize power or to deal with an emergency by unilaterally countervailing the law—an action stopped by the existing structural process established in the U.S. Constitution. At that point, at least in theory, the suspension and dispensing of the law has a legitimate process. Such a process completely countermands such arbitrariness of other systems when following the U.S. Constitution. However, this assumes that the duly elected representative government adheres to the said process. Foucault (1980) notes that

One impoverishes the question of power if one poses it solely in terms of legislation and constitution, in terms solely of the state and the state apparatus. Power is quite different from and more complicated, dense and pervasive than a set of laws or a state apparatus. (p. 158)

Following Foucault, Agamben (2009) compares Foucault’s dispositif with apparatus as “governmentality” or the “government of men” (p. 1). Based on the structure of the U.S. representative democracy, a “government of men” based on laws was the goal. If the requirement to suspend the law for an emergency is a legal process, then an emergency condition must exist to permit the process to go forward. To follow the process is to follow the legitimate power structure that is not arbitrary. However, unless real “emergency” conditions exist, there is a significant challenge to suspend and dispense with the law. Under Agamben’s version of the theory, small exceptions to the law are used to carve small zones of unilateral opportunity. Instead of suspending or dispensing with all laws or even a significant portion, a little niche of exceptions is created. The narrower the exception, the easier it is to establish. The low threshold of “perception” is all that is necessary.

Agamben (2005) points to his State of Exception theory where the force of law is separated from the law and, at almost a constant state, normlessness becomes the norm. This is where Agamben’s theory diverges from Schmitt’s theory. The management of security, particularly regarding border security, has shifted away from the traditional measures of public administration to that of political legitimation (Agamben, 2001). A good example for the United States would be the previous condition of the constant state of emergency embodied in the Cold War. Under the continual barrage of perceived and real threats to its very existence, the United States was in a constant state of emergency. The somewhat permanent condition of the Cold War emergency was the normative state. Agamben suggests that the administration of security becomes extensively a politicized process of maintaining “security.” With security as an end, rather than a means of democracy, the two become inconsistent and even antagonistic. The antagonism of this dichotomous relationship between security and democracy has led to the view of the others as the enemy. This new state of exception that emerges replaces the legal-constitutional state, which restricts civil liberties under the auspices of protecting them. The rights of the non-other are imperiled to limit the invasion or influence of the others that put us at risk (Coleman, 2007a).

Agamben argues that as political life in a state of exception becomes more politicized, the authoritarian or totalitarian state moves to the forefront as the main political element in a given society. In the state of emergency, the emergency changes the legal condition. In the state of exception, the exception is created before the emergency is established. Ek (2006), following Agamben, proposes that, through the power of the sovereign, Agamben was connecting democratic and totalitarian states. Furthermore, when the state of exception becomes the main political element, democracy and totalitarianism converge (Ek, 2006). The sovereign, whether it is the people or the state (or individual), has the power to establish the state of exception. In a democratic republic, like the United States, people are frequently demographically categorized and that category often has legal and experiential consequences. Prior to the U.S. Civil War, there were Whites, slaves, and everyone else. Women had different legal conditions than men. At one point in American history, women could not own property or vote. Each of these categories at different times was the exception. The United States has a history of passing xenophobic laws to exclude those who were perceived to be inconsistent with what was thought to be prototypically “American” (Hines, 2006). In modernity, the United States has continued its border security and immigration policy to further divide the category of the citizen from the category of the noncitizen (Hines, 2006; Thacher, 2005).

Johns (2005) argues that Agamben takes a very narrow read of Schmitt. Johns’ critique of Agamben’s analysis of detainee policy in Guantanamo Bay, Cuba, is based on the premise that absolutely no law exists in this juridical or extrajuridical zone (Johns, 2005). Johns presumes that if there is any order, in this case military order, then the state of exception does not exist. It is our reading of both Schmitt and Agamben that having a unique juridical space carved out for less than unique individuals exemplifies the state of exception. The U.S. prison in Guantanamo Bay, Cuba, exists, in this circumstance, to separate state-less individuals from the normal civilian criminal justice system. Agamben is not suggesting a space of anarchy as Johns seems to imply. The United States has regularly and effectively tried and convicted a variety of international and domestic terrorists in civilian criminal courts. So why are these prisoners in Guantanamo Bay divided from the normal process? Johns defeats his own argument when he suggests that the U.S. Congress took steps (following an already lengthy detention) to restore detainees’ constitutional guarantees of equal protection and due process (Johns, 2005). If a state of exception did not exist, then why would the legal order need to be restored. Nowhere in Agamben’s presentation of his theory did he promote the permanence of the exception, only that it is an occurring (or reoccurring) phenomenon.

The focus for this article, however, is the category of the illegal immigrant, which we argue is not all that dissimilar to a Guantanamo Bay detainee when considering their lack of basic human rights. Even terming this category of person as “illegal” signifies and suggests they are outside of the norm—unconnected to the sovereign—or the legal citizen. The noncitizen becomes legally corralled as an exception and is a perpetual outsider.

Exception as the Norm of Immigration

James Ingram (2008) argues that human rights are somewhat ambiguous and are part of the normative realm. Human rights, however, are anything but normative, though there are several human rights that the majority of the world may agree. The complication arrives when exceptions, as Agamben has explained, become part of the force of law. Exceptions often exist as a common part of the processes of the law. If you were to commit a serious enough crime, you may be put to death. The penalty for a particular crime may be the exception. Contrary to the language offered by those seeking to execute such a prisoner, that prisoner never lost their right to life. The legal authorities simply acquired proper justification to breach that particular person’s right. From nation to nation the exception varies. In some countries, only a single type of crime is penalized with the forfeiture of the life of the convicted. Other countries may have a plethora of laws that their violation results in this level of punishment. However, to legitimize the process, the state must establish their justification. This phenomenon is what Agamben (2005) calls the state of exception and Mathew Coleman (2007a) calls the “juridical void” (p. 62). Both are presenting the definition of a normative construct where the rule of law is discriminatingly applied.

The noncitizen is removed from the normative legal system and placed into a “no-man’s-land” (Agamben, 2005) or extrajuridical space of punishment (Coleman, 2007a). Coleman (2007a) indicates here that U.S. immigration policy and border security is an extra space that has been created as an exception for alleged illegal immigrants. An immigrant, especially an immigrant entering the country illegally, is the ultimate definition of the other. The lawmaker’s desire to alternatively deal with the perceived problem is rationalized here.

Illegal immigrants are by definition noncitizens. Citizens and noncitizens are regularly portrayed as polar opposites on the continuum of citizenship. Those who migrate into America illegally have violated the legal norms and mechanisms by crossing the political boundary improperly. By entering the country this way, and by the nature of their citizenship status, migrants are in an extra zone or “space” as Coleman (2007a) describes. Because the sovereign is designated as a legal citizen (born or naturalized), a noncitizen is not the sovereign. Agamben (1995) describes this individual who is outside of the normal juridical space as homo sacer. Homo sacer is the sacred or accused man who is, based on Roman law, banned and may be killed by anyone but not sacrificed (Agamben, 1995). This person is excluded from all rights and privileges as a citizen. Excluding the murder element, the concept is that the designated (or categorized) homo sacer is outside the normal juridical space and is treated as such currently in the United States. The exception created within the legal mechanisms of the state power causes homo sacer to be both controlled and excluded simultaneously within the process of government. The illegal immigrant within the American system of both entry and citizenship equally fits this definition as the banned individual under Roman law.

Laws are in place as instruments of securing and maintaining power for the sovereign (Orrenius & Zavodny, 2009; Rajaram & Grundy-Warr, 2004). It is almost irrelevant for this discussion as to whom the role of sovereign is assigned. The legal structure, either in a democracy or a totalitarian state, is shaped around the authority of the sovereign. In the United States, the legal power of the people as sovereign is derived from their legal status as citizens. Hines (2006) points out that laws like the USA Patriot Act and the Real ID Act further erode immigrants’ rights. These laws and other pieces of legislation further differentiate the legal immigrant from the illegal immigrant, and from the citizen. The illegal immigrant is more than marginalized—They are effectively and legally neutralized. By closing the corral ever tighter, the sovereign increases its authority over the other, as the homo sacer is relegated to ineffectual status—deprived of many basic human rights, such as emergency room care, and rights of the accused in criminal courts are retained by the illegal immigrant; however, the desire to afford them these rights by the political system is persistently challenged by antimigrant opponents and lawmakers. The subsequent antimigrant laws are intended to secure the power of the sovereign from the threat of the other. Immigration policy becomes a security policy to protect the citizen from the invasion of the noncitizen. Rajaram and Grundy-Warr (2004) point out that it is the move from homogeneity to heterogeneity that creates the sense of “unruliness” the sovereign is unwilling to tolerate (p. 36). The law then becomes the line between the sovereign and the space occupied by the other—the homo sacer. An example of just such a law was the passage of the Real ID Act in 2005—ostensibly designed by its congressional advocates to better differentiate between the citizen and the noncitizen. The new ID system was idealized by some in the Congress to be the epitome of identification. However, the United States has yet to adopt a uniform identification system (Ni & Ho, 2008).

The rhetoric surrounding the Real ID Act is financial in nature. The Act was intended to reduce problems surrounding immigration that are perceived, or perhaps misperceived, to affect the overall economy. Considering that immigration is geographically concentrated, the rhetoric is associated directly with expenditures in these areas of concentration, mainly the border region (Butcher & Piehl, 1998). Butcher and Piehl (1998) further suggest that the language used for the illegal immigration problem is focused on who bears the cost, and this has been extended to the American criminal justice system. The primary costs amount to increased expenditures for detaining, processing, and deporting illegal immigrants. This financial exigency suggests the problem is nation-inclusive. However, insofar as a noncitizen is concerned, the criminal justice system has been altered specifically to deal with them just as Agamben suggests—as homo sacer.

Homo Sacer, or the Deported Man

The core of America’s values and culture was once articulated as the opening salvo of the American Revolution via the Declaration of Independence. This now-sacred American revolutionary statement from the Continental Congress outlines the principles and philosophy of the new country apart from England. It was influenced by ideas created from the philosophy of the Enlightenment and set forth as a founding document. The second paragraph declares that “[we] hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It is clear by this quotation that the members of the Continental Congress advocated for the philosophy of human rights rather than citizen rights. Even within the Bill of Rights of the U.S. Constitution confers the most basic element of equal legal protection to the person or accused, not the citizen. The idea of individual liberties is specifically a juridical concept that lends itself to the status of the citizen (Flynn, 2003). Although a critical philosophical document of the American founding, it is not a legal document. The document’s ideals, central to American identity, are trumped by the U.S. Constitution and the subsequent statutory laws of the sovereign.

The Fifth and Sixth Amendments to the U.S. Constitution establish many rights individuals accused of crimes enjoy. It is easy to make a claim that these rights are retained by all citizens. However, can such rights as written in these two Amendments extend to the noncitizen? We believe they do. Amendment Five never refers to the rights of a Grand Jury, double jeopardy, self incrimination, and due process of law as belonging exclusively to the citizen. The Amendment’s language is much more open-ended. The Fifth Amendment merely confers rights to “persons” accused. It does not take an overly broad read to see its application beyond the citizen.

The Sixth Amendment specifically refers to “the accused” as one who enjoys the right to a speedy and public trial by an impartial jury, confronts witnesses against her or him, obtains witnesses in her or his favor, and obtains the assistance of counsel. These rights are not exclusively assigned to the sovereign citizen. The open-ended language that the accused, any accused, retains these rights is part of the American criminal justice process.

The grouping of the noncitizen as a separate category from the citizen is nothing new. This category finds no foundation with regard to the criminal justice system. By associating the individual to a special category, they can now be classified as the other. Because of this reclassification, the individual is now subjected to exceptions from the normal juridical space. Suspension of the law becomes the force of law (Agamben, 2005). The suspension of the law, as described by Agamben, can be most ideally seen in the current U.S. immigration policy, though it may appear that Agamben is arguing for a total absence of law. However, it may be more practical to view a narrow juridical space that is outside of the normal law that would govern such circumstances through the state of exception.

Because the source of authority for the U.S. Constitution is derived from citizens, they are capable of utilizing legal mechanisms to overcome an overzealous government. James Zink (2009) argues that the U.S. Constitution is written and spells out citizen rights gives them the security to enforce those rights. No such security is available to a noncitizen. The problems of illegal immigration illustrate Agamben’s theory quite accurately. Being in this state of exception adds a greater possibility of other rights and liberties being subdued by this exception. The exclusive nature of the undocumented worker becomes the norm as “the relation of ban has [now] constituted the essential structure of sovereign power” (Agamben, 1995, p. 111). So, unlike the citizen, the noncitizen does not have the full legal mechanisms to defend their rights. This assumes, however, that there is a right to defend. The inability to legally defend oneself exemplifies the circumstance of Agamben’s homo sacer under this exception.

In the American legal system, the rule of law is applied and therefore a consistent process must be maintained to justify the appropriate application of power. Rights, according to the U.S. Constitution, are inalienable, meaning, they do not go away under any condition. However, such rights are often unenforceable with regard to people not of the sovereign state (Ingram, 2008).

The prospect of separating an individual from their rights and liberty requires justification. The government, or at least the “authorities,” must present their justification for the breach. The most effective method in a nation organized around the due process of law is to establish a law. This assumes of course the law in question is a just law, consistent with the primary guiding principle of the Constitution. The justification must be reasonable, but an unjust law does not require reasonable justification. If the law cannot be applied equally, then the likelihood of the law being unjust is high. For instance, in the landmark case of Gideon v. Wainwright 372 U.S. 335 (1963), Justice Hugo Black delivered the opinion that in any criminal case with serious penalties, such as loss of liberty by incarceration, the accused would require the assistance of counsel. Such protections, as specified by Gideon, however, are not made available in some capacity to many “non-criminal” judicial processes in civil, administrative, or military courts. What we are confronted with is the bare life of homo sacer that would have them excluded with no rights to be redressed (Agamben, 1995).

In the next section of this article, we will focus attention to one particular administrative court, immigration deportation hearings, which is an administrative law court system that is classified as an Article I civil court. Essentially, it is a court where most rights, especially those of the “accused,” are filtered out. The justification for altered treatment or rights within the context of deportation hearings is that they are civil and not criminal. However, the loss of liberty belies this process as being “civil” or even administrative.

Deportation of the Homo Sacer

The State of Exception is an apt analytical description of immigration deportation hearings as a means of circumventing the Fifth Amendment. Immigration courts were created specifically as administrative courts to conduct hearings as an Article I court rather than an Article III court. Immigration law is a plenary power of the federal government, deportation trials are employed through administrative hearings that have significant effects on the noncitizen’s liberty (Capitaine, 2001). Establishing deportation trials for illegal immigrants as “civil” rather than “criminal” allows the federal government to completely bypass the majority of protections offered by the Fifth Amendment. This policy poses three main legal challenges, or hurdles, the potential deportee must combat.

The first and most obvious problem that occurs with a civil/administrative hearing is the deportee has no right to counsel (United States Department of Justice, 2008). Although this is certainly the case for any citizen in a civil trial or hearing, no citizen has the impact of detention or ejection from the country that is ultimately prescribed for the noncitizen. Civil trials are typically considered to be elective trials rather than compulsory as contrasted with a criminal trial. The loss a defendant may experience from a conviction, or in pretrial detention, demands the protections outlined in the Fifth Amendment. No such right to counsel exists for the illegal immigrant subjected to deportation hearings.

Second, unlike the noncitizen, a citizen of the United States never has to face the possibility of detention in a jail cell within the context of a civil trial. Combined with the lack of right to counsel, the American Bar Association (ABA; 2009) announced that it opposed such pretrial detentions. Prior to deportation hearings, following the conclusion of the hearings, and before the actual deportation, the illegal immigrant is detained in a cell typically used for criminal detention with virtually no chance for bail. In some cases, the pretrial detention may last several months. In spite of the “civil” label, the detention crosses the line into criminal proceedings, which under Gideon should normally trigger the right to counsel.

Third, because the right to counsel does not exist here, the U.S. immigration courts allow the use of nonattorney representation to be made available under certain circumstances. For those who are unable to acquire counsel, the accused may have access to recognized and accredited representatives. The accredited representative is a person who appears at trial with the deportee in a similar capacity as an attorney. This person is not required to be a licensed attorney but can be from a list of recognized nonprofit organizations (United States Department of Justice, 2008). The ABA (2009) suggests that these representatives amount to ineffective counsel, and combined with the detention and deportation elements, the Immigration Court substitution practice violates the Fifth Amendment. If the defendant’s representative is not a licensed attorney, no “right to attorney/client privilege” exists.

The issue of detention combined with no right to counsel for the accused illegal immigrant meets Agamben’s definition of homo sacer. The illegal immigrant has been moved into what Coleman (2007a) describes as an extrajuridical space—a space specifically designed for the noncitizen to be excluded from the normal juridical space of the sovereign citizen. An illegal immigrant as a defendant in a deportation hearing has all of the punishment of a criminal defendant and none of the constitutional protections. The deportation hearing itself is certainly within the normal juridical space. The circumstance of the treatment and punishment of this specific category of person exemplifies both the state of exception and homo sacer.

In the next section, the state of Arizona unilaterally attempts to circumvent and directly challenge some aspects of federal law intended by its leaders to bring forward more severe sanctions against illegal immigrants crossing into the state. Arizona is by no means the only U.S. state attempting to preempt federal law to take immigration policy powers into its own sphere. The state, however, has been a leader in attacking the perceived problem of undocumented border crossers into its territory and is analyzed here for its policy consequences intended for others outside of the citizenry. The category of what constitutes a person without rights has been expanded by the state of Arizona to include possibly citizens who resemble the homo sacer coming across the border from Mexico.

The State of the State of Exception: Arizona

As of April 2010, Arizona’s governor, Jan Brewer, signed one of the most stringent anti-immigration laws in the United States. ² Despite significant attempts by the U.S. federal government to “secure” the southern border through the REAL ID Act of 2005 and the Secure Fence Act of 2006, ³ opponents of immigration in some border states, including Arizona, have pushed for further restrictions beyond current federal immigration law. The idea of forcing illegals into the state of exception, effectively rendering them as homo sacer, is potentially being extended to the Arizona (and American) Latino citizens of the state. A former Republican Arizona attorney general (and current cochairman of the governor’s reelection campaign) attempted to dissuade Governor Brewer from signing the more rights-restrictive and expansive Senate Bill 1070:

The governor listened patiently, Mr. Woods recalled, as he laid out his arguments against the bill: that it would give too much power to the local police to stop people merely suspected of being illegal immigrants and would lead to racial profiling; that some local police officers have been abusive toward immigrants; and that the law could lead to costly legal battles for the state.

When he hung up, Mr. Woods knew he had lost the case. “She really felt that the majority of Arizonans fall on the side of, Let’s solve the problem and not worry about the Constitution,” he said. (Archibold, 2010b, para. 2-3, italics added for emphasis)

The political pressure of the antimigrant interest groups in Arizona and factions within the state Republican Party were too much for the governor to bear politically as she signed the law effectively and potentially relegating a portion of the state’s citizenry, Latinos, into Agamben’s category of the state of exception.

The action taken by the Arizona governor and state legislature goes well beyond federal law to the point that President Barack Obama described the action as irresponsible (Archibold, 2010a). Furthermore, the President stated in response to the law, that it served “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe” (para. 5). Latino groups in Arizona characterize the law as discriminatory and laying the groundwork for law-enforcement harassment with the Mexican American Legal and Educational Fund stating, “‘Governor Brewer caved to the radical fringe’ [and] predicting that the law would create ‘a spiral of pervasive fear, community distrust, increased crime and costly litigation, with nationwide repercussions’” (para. 11). Civil rights activists in Arizona marched on the Arizona state capital in Phoenix declaring intentions to fight the new law “saying it will lead to racial profiling of Hispanics despite the governor’s assurance abuses won’t be tolerated” (Davenport & Cooper, 2010, para. 1). Arizona has become more of a “‘state’ of exception” in the ongoing process of the denial of basic human rights to Latinos in Agamben’s state of exception.

Whither Arizona, Wither the United States?

Illegal immigration could be greatly reduced by barricading the borders of Texas, New Mexico, Arizona, and California (a reverse Berlin Wall staffed by special forces with orders to shoot to kill), and by incarcerating captured violators in concentration camps, thus discouraging prospective violators by making failure too costly. Public policy appears to be moving in these directions, but not dramatically—only in successive, small increments. (Adams & Balfour, 2004, p. 124)

As Arizona trends toward increasing surveillance and disruption of the lives of Hispanics living in its boundaries, whether citizen, guest worker, or undocumented border crosser, the United States continues to build fences passed by congressional acts to keep and maintain order—from San Diego, California, to Brownsville, Texas. Beyond the border, 10 other U.S. states are now considering passing laws restricting undocumented border crossers, which may have an effect similar to those passed in Arizona (Wood, 2010). Federal and state laws have been designed to keep out the homo sacer, the sacred without rights, intended primarily for the “illegal” aliens determined by imposition of the state of exception. Arizona, through its governmental leaders, has made a decision to further imperil some of its citizens’ rights by expanding the state of exception to people of color under a predetermined category used for discrimination. Despite President Obama’s protestations and pronouncements to the contrary, strong antimigrant sentiments continue to hold sway in areas along the United States/Mexico border.

We have found that Agamben’s twin concepts of the state of exception and homo sacer are appropriate as analytical tools used to engage the current state of affairs regarding immigration and deportation policy. The laws passed to place under surveillance Latinos living in the United States—whether citizen or not—mean a continuation of the violation of legal rights for citizens, guest workers, and undocumented border crossers. The expansion of the homo sacer continues apace. For the foreseeable future, Americans will continue to live in a state of exception. Further research in this vital area is warranted. Public awareness of the effects of the state of exception and homo sacer by policy makers and citizens may lead to a better immigration policy that befits a modern democratic state. The immigration and border security policies—and those who are directly affected—are better served with a higher quality public discourse based on democratic and human rights principles.