By Heath Cabot
In response to the Trump administration’s Executive Order 13769, barring U.S. entry to citizens of seven countries as well as legally recognized refugees, PoLAR and APLA commissioned a series of responses from scholars working on the politics and law of borders and migration. This installment features work by Heath Cabot, Nicole Constable, Anthony Good, Tobias Kelly, and John Torpey. In the next week, additional contributions will follow, including pieces by Susan Coutin, Sharika Thiranagama, Shahram Khosravi, and Sebastien Bachelet, among others. Visit our series page to access posts as they are published, and links to PoLAR content and scholarly articles by contributors.
Since Donald Trump’s inauguration, this White House has presented the world with waves of chaotic and blustering forms of speech: factually false statements in press conferences; deliberate leaks; ubiquitous tweets. Often, this administration seems to have catapulted the US into the dystopian future, to a time and place in which the real – the knowledge that the senses convey – gives way to the surreal, as the new president tries to shape the world according to what he chooses to say. It is almost as if Trump might have taken a class in anthropology or social theory at some point, and decided to test the limits of J.L. Austin’s concept of performative speech (Austin 2001 ): speak, and you shall create the world in the image of your words.
Many, of course, have instead been left speechless at the gap between the Trumpian fantasy of “alternative facts” and, well, facts. However, within his first week in office he issued twelve executive actions, apparently banking on the power of executive speech to define the rule of law. Specifically, the executive order issued on January 27, 2017 banning refugees for 120 days (Syrian refugees indefinitely), and persons from seven specific Muslim majority countries, brought home the shocking effectivity of Trump’s executive utterances. Can he really do this? I wondered. The enduring naïveté of my American self, steeped in long years of discourse on “checks and balances,” folded in on itself, exhausted and deflated. Because it seems that, to some degree, Yes, he can. Hitherto, have we we only avoided such exuberant demonstrations of executive power thanks to a tacit agreement by presidents not to overstep certain lines in the sand?
Among the disorienting pieces of ephemera that now haunt my social media feed was a screenshot from a colleague showing that the “judicial branch” had disappeared from whitehouse.gov, even as Mrs. Karen Pence is up there under “the administration” like some new kind of royalty. Apparently, my colleague explained in his post, the judiciary had been gone since inauguration day. I have recently checked, and the disappeared “judicial branch” seems to have now returned to the whitehouse.gov homepage. Still, the disappearance of the judicial branch struck me as an allegory of the kind of wishful thinking and speaking through which Trump seeks to recreate the world: this would be a government without the famed slow-moving justice of the courts. There would be no justices to bring justice.
Significantly, though, this disappearance appeared on my Facebook feed just a day after a series of lawyers around the country filed suits against Trump’s executive order on behalf of clients stuck in limbo. And also significantly, judges had ruled in their favor with a remarkable swiftness, most notably with U.S. District Judge James Robart staying the entirety of the order on February 4th. I read about hundreds of lawyers volunteering at airports to help those who were stuck or detained. While lawyers (especially “cause lawyers” and those working in immigration) certainly bring their own brands of radicalism to social struggles, as a group lawyers are rarely seen to be poster children of opposition. And yet, with actions and motions that were rapid and decisive, the lawyers had taken up their place in the resistance, alongside the protesters. Moreover, some of the judges seemed to be following them.
When doing research in Greece with asylum advocates in the mid-2000s, I became well versed in the tactics of immigration and human rights lawyers who work always on the aberrant and uneven edges of the law. As Tobias Kelly’s and Anthony Good’s contributions here both emphasize, this executive order is shocking but not utterly exceptional, even if it may be unprecedented. The exclusion of non-citizens, and the ongoing contraction of spaces of refuge, have become guiding poles for immigration policy throughout the U.S., Europe, and Australia; even as Canada is often praised for its comparative openness, their immigration regime is about keeping people out and, very selectively, letting some in. Lawyers working in such fields are accustomed to the hard and often slow labor of cutting in around those edges: capitalizing on exceptions; making use of procedural errors; capitulating pragmatically to the status quo while slowly chipping away at it case by case. During my research on asylum, in a context that often seemed utterly overdetermined by flagrant forms of injustice, lawyers highlighted for me an important, if less spectacular, approach to the struggle for justice: grounded on hard work, pragmatism, calculated risk, and decisiveness when the moment demands it.
The lawyers—with their signature long hours, paperwork, and endurance—have countered the blustering, chaotic, and accelerated nature of Trump’s executive speech. We do not know what will become of these cases, and how the rest of the justices will receive them. We also do not know what will happen to the relationship between law and its enforcement—and how these different regimes of law (executive and judicial) will interact. There likely will be confusion and chaos, leaving much to aspects of interpretation and the gray zones of the law. Even after a judge issued the first emergency stay for citizens from the affected countries who had already arrived or were in transit, border agents remained unclear as to what they should do, and largely adhered to the order.
Still, here at PoLAR and APLA we thought it high time that we bring the judiciary back, so to speak, and put questions of justice back at the center of the analysis. We have thus invited a diverse group of scholars engaged with the study of borders, broadly conceived, to comment on this order critically, or suggest ways forward with regard to advocacy. This first installment, with pieces by Nicole Constable, Anthony Good, Tobias Kelly, and John Torpey, reflects the various poles of outrage, dismay, and analytical vigor with which engaged scholars are seeking to make sense of this political moment. Critical scholarship in law and politics, such as that which we aim to publish in Political and Legal Anthropology Review, is at its core concerned with the analysis of (in)justice, and the role of law and politics in making the world a better place — or in turning it upside down.
Heath Cabot is Assistant Professor of Anthropology at the University of Pittsburgh. She is also co-editor-in-chief of PoLAR: Political and Legal Anthropology Review. She is a political and legal anthropologist whose research examines citizenship, ethics, and rights in Europe, with a focus on Greece. She is author of On the Doorstep of Europe: Asylum and Citizenship in Greece (Penn Press 2014).
Austin, J.L. 2001 . How To Do Things With Words. Cambridge, Massachusetts: Harvard University Press.