Birth of a nation: Race,regulation,and the rise of the modern state

In Indian Migration and Empire: A Colonial Genealogy of the Modern State, Mongia (2018) pushes against what she calls “a methodological statism,” which she defines as “a position that naturalizes the state.” (p. 5) She persuasively reveals how methodological statism is not limited to traditional imperial accounts of state formation, but also influences critical accounts. To denaturalize the state, and in so doing, to generate a more accurate assessment of the origins and significance of contemporary migration regulation, Mongia focuses on the practices, techniques and institutions of the colonial regulation of Indian migration from 1834 to 1917. She approaches her analysis of migration management not through the examination of regulations within a particular state; such an approach merely accepts the presumed “stateness” of certain entities and practices, which are actually in historical flux and in question. She therefore approaches migration regulation from outside of the state, focusing historically on the global technologies of migration control. The resulting account illustrates that the tools and justifications for migration control are not diffused from center to periphery, but are instead the product of a relational, though assuredly hierarchical, coproduction (p. 147).

By examining the global regulation of Indian migration from 1834 to 1917 in this way, Mongia reveals how the regulation of migration—constituted by and in response to “non-national, cross-statal, transcolonial, and inter- and intra-imperial” forces (p. 3)—is at the center of a global transformation from a world dominated by empire-states into a world dominated by nation-states. The racialized hierarchies of the former are firmly embedded into the latter. As she brilliantly puts it in her conclusion, her colonial genealogy “enable[s] us to recognize that territorial borders did not emerge first, only later and incidentally to be policed, monitored, guarded. Rather, borders are produced and experienced in specific forms and become porous or impassible with respect to certain subjects conceived in historically specific ways.” (p. 148). All modern states therefore “embody a historically produced colonial dimension, with the citizen/migrant distinction as a, perhaps the, primary axis of such differentiation.” (p. 150)

It would be difficult to overstate the gap between Mongia’s historically grounded, critical account of state formation through migration management, and contemporary legal reasoning concerning migration management in U.S. courts. Reading Mongia’s account alongside the U.S. Supreme Court’s June 25, 2020, decision in the case of Department of Homeland Security v. Thuraissigiam, 140 S.Ct. 1959 (2020), ¹ for example, is whiplash-inducing. At levels both specific and general, the gaps between these accounts reveal the extent of motivated historical amnesia that underwrites legal justifications for the migration control regime of the contemporary U.S.

The story behind the Thuraissigiam decision illustrates many of the assumptions and practices that structure and animate the regulation of migration in the modern state. Vijayakumar Thuraissigiam is a Sri Lankan national and a member of the Tamil ethnic minority who left Sri Lanka in June 2016 and flew to Mexico. In February 2017, he crossed the U.S.-Mexico border, entering the United States without inspection or authorization. He had no visa to enter, and was not authorized under the U.S. immigration code’s arcane employment- and family-based category system, with its per-country caps. He was therefore apprehended by a U.S. Border Patrol agent 25 yards north of the border.

Once apprehended, Thuraissigiam was placed in “expedited removal proceedings,” a form of streamlined, administrative proceedings whereby an immigration officer—an agent of the U.S. Department of Homeland Security—can immediately effectuate the removal of a person who lacks proper entry documents. The U.S. Congress has authorized the use of such streamlined proceedings for anyone who cannot prove to the satisfaction of the immigration official that she has been present in the U.S. for 2 years or more.

If a person “indicates either an intention to apply for asylum . . . or a fear of persecution,” ² however, that person is entitled to have her claim reviewed by an “asylum officer,” who is required to determine whether she “has a credible fear of persecution,” in which case, she is detained pending further consideration of her asylum claim. ³ Mr. Thuraissigiam asserted such a claim and, in the resulting hearing before an asylum officer, credibly testified that he has been kidnapped and beaten by a group of armed men. But in the view of the asylum officer, he failed to establish the fact, necessary for a grant of asylum, that his mistreatment was “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” ⁴ As permitted by law, Thuraissigiam appealed this determination to an immigration judge—also an executive branch official, whose sits in the Executive Office of Immigration Review in the U.S. Department of Justice. The immigration judge reached the same conclusion as the asylum officer and ordered Thuraissigiam removed.

The law provides for no additional appeal; there is no provision granting access to a court with the U.S. judicial branch of government, except in certain exceptionally narrow conditions not applicable in Mr. Thuraissigiam’s case. So, to get his case before a judge within the federal judicial branch, he filed a petition for writ of habeas corpus in a federal district court, arguing that the government had applied the wrong legal standard to his claim after failing to properly consider relevant facts. Among other things, Thuraissigiam cited the lack of adequate translation in his administrative hearings. He argued that the U.S. Constitution required review of the questions of law that he raised. Because the statute does not provide for an appeal to the judiciary, Thuraissigiam pointed to the Constitution’s provision barring the suspension of the writ of habeas corpus (known as the Suspension Clause). He argued that, to the extent the statute did not provide him recourse to the judiciary, the statute violated the Suspension Clause, and that the U.S. Constitution therefore required federal judicial review of his legal claims. The federal district court rejected his argument, but the Ninth Circuit Court of Appeals agreed with him. The U.S. government appealed the Ninth Circuit’s decision to the Supreme Court.

Justice Samuel Alito wrote the majority opinion in Thuraissigiam, joined by Chief Justice John Roberts, Justice Clarence Thomas, Justice Neil Gorsuch and Justice Brett Kavanaugh. In his opinion, Justice Alito rejected the notion that review of Thuraissigiam’s claim was required by the Suspension Clause. Assuming without deciding that the relevant jurisdiction-stripping provisions of the immigration code could constitute a “suspension” of the writ of habeas corpus, Justice Alito concluded that Thuraissigiam was not entitled to the relief he sought, because it was not covered by the writ of habeas corpus as it was understood at the time of the founding. “Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.” ⁵ In other words, the relief that Thuraissigiam sought was beyond the scope of what a court is empowered to grant upon petition for writ of habeas corpus.

As the foregoing quote from his opinion makes clear, Justice Alito’s majority opinion is grounded in an originalist approach to constitutional interpretation. He frames the legal question as one of whether Thuraissigiam’s claims are of the sort that would have been cognized in a petition for writ of habeas corpus at the time of the founding of the United States. Since he answers that question in the negative, Alito concludes that Thuraissigiam has no legal basis upon which to file a habeas petition today.

Much ink has been spilled in the thorough debunking of originalist methodology, which has always been a conservative political project disguised as a method of constitutional interpretation. The nature of originalism is on full display here. As is generally the case in originalist opinions, the majority plays fast and loose with actual historical practices in their account of founding-era habeas. The dissenting justices provide substantial historical evidence that courts did, in fact, cognize claims analogous to Thuraissigiam’s at the time of the founding. Most notably, they point to Somerset v. Stewart, ⁶ in which Lord Mansfield recognized that enslaved people brought to England were legally free, which allowed the petitioner to remain in England rather than be returned to slavery in Jamaica. This looks very much like the sort of relief that Thuraissigiam was seeking—a request to be allowed to remain in the U.S. pending the appropriate resolution of his juridical status, with the possibility of being allowed to remain depending upon that resolution. The dissenters do not claim that the analogy is perfect, but rightly stress that “requiring near-complete equivalence between common-law habeas cases and respondent’s habeas claim is out of step with” the Court’s approach in recent cases like Boumediene v. Bush, ⁷ involving detainees in Guantanamo Bay, and INS v. St. Cyr, an immigration case, ⁸ as well as in older immigration cases. ⁹ For the dissenters, applying the standards used by the U.S. Supreme Court in the past, the facts of the founding-era cases are superficially similar enough to this one to provide confidence that the relief Thuraissigiam seeks is, indeed, available upon petition for writ of habeas corpus.

Legal scholars have criticized roundly the majority’s absurdly narrow reading of the history of the writ of habeas corpus. (Kalhan, 2020; Neuman, 2020; Tyler, 2020). Like the dissenters, these scholars conclude that the history of habeas corpus recounted in more recent Supreme Court cases like St. Cyr and Heikkila v. Barber ¹⁰ provide a more accurate assessment of the contemporary import of the Somerset case and other founding-era cases involving habeas petitions. But even these critics are operating from a vantage point that has been constructed upon, and makes sense only in light of, a traditional understanding of state formation and state sovereignty. Mongia’s genealogy of the modern state calls into question not only the specific account of the role of courts vis-à-vis “migrants” at the time of the founding, but also more general assumptions about the nature of the state itself.

At the specific level, Mongia’s account of the legal regime at the time of the U.S. founding highlights the impossibility of an originalist account of the writ as it would have applied to Mr. Thuraissigiam. Mongia reminds us that no legal regime or bureaucratic infrastructure existed at the time of the founding to exclude the likes of Thuraissigiam, either in the newly-formed U.S., or in the empire-state to which the U.S. had previously belonged. Of course, the majority and the dissenting opinions in Thuraissigiam are in agreement on the point that the modern regulation of migration has no parallel at the time of the founding; they differ only in their conclusions about what to do with this fact. But the opinions also deliberately sidestep the significance of the absence of analog: simply put, at the time of the founding, state regulation of “free” migration itself was a generally seen as an illegitimate exercise of state power.

Mongia excavates for her readers “the widespread nineteenth century view that for the state or sovereign authority to hinder free movement of persons traveling for ‘peaceful and lawful reasons’ was an exceptional, and largely indefensible, exercise of sovereign power.” (p. 27). She highlights England’s 1792 effort to monitor the entry of the Jacobins following the French Revolution as one such exceptional case. Importantly, she notes that critics of this immigration restriction, undertaken on grounds of national security, argued that the bar on migration itself was “equivalent to the suspension of . . .Habeas Corpus.” (p. 30, citing R. Plender, International Migration Law (1972)).

Mongia has many interesting things to say about the notion of “free” migration. She recounts how the bureaucratic regulation of migration in the British empire developed after the legal abolition of slavery in most of the British empire. The resulting tools of migration management were purportedly to ensure that migration among colonial states was “free,” but in fact were deployed as racialized tools of surveillance, management and intervention (See generally Chapter 2). What we have in the contemporary U.S.—an immigration law that bars almost everyone in the world from immigrating, subject to some narrowly-cabined exceptions—is not a natural phenomenon or even a necessary corollary of state formation or “sovereignty,” but a modern instantiation of specific historical developments of the 19th century, including the regulation of Indian migration in the British Empire that developed as a means to control labor migration in the aftermath of slavery. This connection of the regulation of “free” migration to the abolition of slavery reveals the Somerset precedent to be more deeply significant than any U.S. justice acknowledged.

The reason that we lack appropriate analogs to Thuraissigiam’s case at the time of the founding is precisely because contemporary migration control is impossible to reconcile with an originalist account of the Constitution. Key aspects of the liberal theory, upon which the Constitution draws, “become incoherent if one suspends the premise of free movement.” (p. 28). Mongia’s historically-grounded account of migration regulation thus reveals the impossibility of even the weakest strand of originalism when it comes to understanding the habeas corpus rights of intending immigrants. The entire project is absurd.

But at a much broader level, her project also shows how historical and contemporary migration regulation destabilize the liberal account of the modern state as constituted by formally equal and equivalent citizens. Mongia offers us a new way to think about the entire jurisprudence surrounding immigration regulation, highlighting how the national sovereignty that forms both legal justification and legal mechanism for migration regulation is, in fact, the product of a deliberate project of racial exclusion and racial hierarchy.

Her full argument—which also excavates how the regulation of gender, sexuality and family formation plays an instrumental role in defining the nation (pp. 93–111)—is too nuanced and complex to fully unpack in this short commentary. But to take but one example, in Chapter 4, Mongia traces the evolution of the modern passport, which develops as a technological means of excluding Indians from Canada, notwithstanding their purportedly shared status as subjects within the British Empire. The “conundrum” was “how to distinguish between British subjects without calling the entire edifice of the empire into question.” (p. 127). Mongia traces the resolution of this conundrum through a series of facially neutral, but racially motivated, ordinances and practices. (pp. 117–136).

The end result of the process is a system of “nationality” premised “not on terrain of affective bonds of a national community but on a terrain overdetermined by race and the relationship between states.” (p. 129) Thuraissigiam, driven to flee his “nation” because of his outsider status, embodies the continuing consequences of these externally imposed and internationally maintained legal identity categories. Nationality was “activated as a state assignation” that was, itself, the “outcome of how the state rationalized race and implemented a racist agenda.” (p. 129). Passports are then assigned on the basis of nationality. “The passport emerges here as a state document that purports to assign a national identity rather than a racial identity, and was a mechanism that would conceal race and the racist motivations for controlling mobility in the guise of a reciprocal arrangement between states.” (p. 137).

This discussion resonates strongly with critical race theory’s critique of modern migration regulation, which carries out a continuing racial project using neutral language and technologies tied to nationality (García Hernández, 2013; Johnson, 2000; Vázquez, 2015). In the U.S., 19th century limitations on the movement of free Black people, the forced removal and exclusion of the members of Indigenous nations, and the overtly racial exclusion of Chinese immigrants give way in the 20th century to racial bars designed as “national origin” quotas and effectuated and enforced through visas and passports. With the legal cartography and technology of nationality and nationality-based restrictions firmly in place by this time, there was no longer a need to rely on crude racial exclusion, though lawmakers certainly continued to discuss and justify the emerging legal regime in crude racial terms. With the rising tide of civil rights, the elaborate Hart-Cellar Act of 1965 was designed to achieve racial continuity and stability without racial referents. ¹¹ The largely unintended disruptions that the 1965 Act worked upon the nation’s racial composition have provoked evolving, thinly masked racial projects of criminalization and exclusion ever since. But now nationality, not race, performs the work of racial sorting. It does it pretty well because, as Mongia has shown, racial sorting and subordination are the projects that nationality was created to achieve.