Trump’s State of Exception

The administration’s quick disclaimer of responsibility for the death of Jakelin Caal Maquín highlights the limits of its emphasis on law and order.

Migrants try to jump over the border wall to cross from Mexico to the U.S. on December 15, 2018.
Carlos Garcia Rawlins / Reuters

The Trump administration would like everyone to know that it will shoulder no blame for the death of a 7-year-old child in the government’s care. “Does the administration take the responsibility for a parent taking a child on a trek through Mexico to get through this country? No,” said the White House spokesman Hogan Gidley, responding to questions about Jakelin Caal Maquín’s death from dehydration and shock after she was taken into custody by Customs and Border Patrol (CBP) agents. “This family chose to cross illegally,” Secretary of Homeland Security Kirstjen Nielsen argued on Fox. Also on Fox, former Republican Representative Jason Chaffetz—a reliable defender of the administration—declared that Caal Maquín’s death sent a useful message: “Don’t make this journey. It will kill you.”

Caal Maquín traveled from Guatemala with her father and crossed the southern border into New Mexico on December 6. Much remains uncertain about her death. Caal Maquín’s family has, for example, disputed the initial statement by CBP agents that she had gone without food and water in the days before entering the United States. Because of this ambiguity, it’s hard to say to what extent the Trump administration’s cruelty-first approach to immigration enforcement contributed directly to Caal Maquín’s death. But the government’s response is uniquely Trumpian in its callousness. “Please present yourselves at a port of entry,” CBP admonished immigrants—despite the fact that the agency has placed sharp limits on the daily number of asylum seekers allowed through such ports, possibly illegally, which has pushed more families seeking asylum to cross without authorization. The same policy stoked chaos last spring, when the administration engineered a humanitarian crisis by separating children from parents at the border.

What ties this together with the rhetoric around Caal Maquín’s death is not just the administration’s cruelty but also its posture toward the border—as a place where the law, as it’s commonly understood in liberal democracies, no longer quite applies. The border is not only the edge between countries, but the uncertain line between law and the absence of law. It’s a space where the importance of preserving the rule of law is paramount, yet where that system of protections and responsibility frequently fails to function on any level other than raw power. Caal Maquín was in government custody, but to listen to Nielsen and Gidley, the government had no particular obligations toward her as a person worthy of rights and respect.

The administration has gone out of its way to portray the immigration-enforcement agencies not only as lawful, but as the very foundation of the rule of law itself. In April, then–Attorney General Jeff Sessions decried an effort by immigrants to enter the country by traveling together in a caravan as a “deliberate attempt to undermine our laws,” and warned, “Promoting and enforcing the rule of law is essential to protecting a nation, its borders, and its citizens.” His successor, acting Attorney General Matthew Whitaker, emphasized in a recent speech: “We are restoring the rule of law in this country … That means that we are restoring the rule of law to our borders and to our immigration system.” Nielsen defended CBP’s use of tear gas against a group of asylum seekers attempting to cross the border by stating that the Department of Homeland Security “will not tolerate this type of lawlessness.”

The administration has made preserving the integrity of the border its priority. And as it carries out this work—in ICE’s case, by arresting those improperly within the interior of the country, and in CBP’s case, by policing the border itself—the Department of Homeland Security is on the front lines of upholding the rule of law. Speaking recently on Good Morning America, the White House aide Stephen Miller insisted that proper immigration enforcement will determine “whether or not the United States remains a sovereign country.” The stakes, in other words, are high.

Trump has tweeted about “the rule of law” exactly nine times (10 if you count retweets), as Peter Beinart has pointed out. Seven of those tweets are about immigration and the importance of enforcing the border. (“Respect for the rule of law is at our country’s core,” reads one tweet from July 2015, right after Trump first declared his candidacy for president. “We must build a wall!”) Likewise, the president tends to focus particular anger on the courts when a judge hands down an adverse ruling on a matter concerning immigration. (“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” he tweeted after one of the earliest rulings against the first, and harshest, manifestation of the travel ban.) Almost always, he emphasizes that judges who rule against his efforts to secure the border are not the arbiters, but the enemies, of the law. (“That’s not law,” he said in a recent speech railing against a court ruling barring the rollout of his administration’s restrictions on asylum.)

It’s tempting to dismiss these paeans to the law as incoherent or even hypocritical. After all, this is a president who has encouraged police to engage in brutality while arresting suspects; who pardoned former Arizona Sheriff Joe Arpaio, previously found guilty of contempt of court in a case involving his targeting of Latinos at traffic stops; and whose new policy limiting grants of asylum is arguably itself illegal. And that’s without even touching on the numerous criminal investigations into Trump’s own conduct and that of his businesses and associates.

But there is a deeper logic at work. Writing in The Atlantic, Beinart argued that Trump’s tweets linking the rule of law with immigration enforcement reflect a preoccupation with stopping what Trump sees as the corruption of racial hierarchy and the pure body politic. Chris Hayes has made a similar case about Trump’s use of law to evoke “the preservation of a certain social order.”

Caal Maquín’s death, in this view, does not raise questions of lawlessness or impunity. Quite the opposite: It maintains the strength of that hierarchy—who is inside the United States and who is out, who is worthy of concern and who is not, who is “legal” and who is not. This is an understanding of the rule of law at odds with the liberal-democratic vision of law as a restraint on power and an assurance against abuse.

Or perhaps not so at odds. The prewar German jurist Carl Schmitt—who later became notorious for his opportunistic alliance with the Nazi Party—famously argued that all systems of law, no matter how carefully regulated, cannot erase the possibility of the moment of emergency in which the leader will need to make a decision outside the bounds of what the law allows. Schmitt called this “the state of exception.” It is a vision of power attractive to someone like Trump, who seems to barely understand the Constitution as a check on his authority.

One way to understand Schmitt is that, following his reasoning, the government has the ability to decide, on a whim, who is inside the state of exception and who is out. To be outside the state of exception is to enjoy the protection the government provides and the privileges of membership in the political community. To be within the state of exception is to exist in a space that both is and is not governed by law; it is to be subject to the government’s power without any protections against the cruelest use of that power. Riffing on Schmitt, the Italian philosopher Giorgio Agamben calls this “bare life.” It’s life on the margin between law and something other than law. To put it another way, it’s life on the border.

The idea of the border as a space in which law doesn’t quite apply in the same way it does elsewhere long predates the Trump administration. To pick one example among many, the Fourth Amendment’s usual requirements ebb at the boundaries of the United States, where the government may search travelers without probable cause or a warrant. But Trump’s rhetorical commitment to securing the border as a matter of extreme national importance—so dire that, if it should fail to happen, the nation itself might literally cease to exist—shifts the matter into something much closer to Schmitt’s state of exception, as a matter of existential peril.

It seems highly unlikely that anyone in the White House has actually read Schmitt. (Michael Anton, this White House’s self-styled philosopher, departed last spring.) But the jurist’s framework helps crystallize the administration’s vision of the border as existing not only at the edge of two countries but on the edge of the law—a place where the state is not subject to the same legal constraints it is elsewhere, precisely because of the importance of reestablishing the rule of law along that edge. It’s a vision of the absence of law at the heart of the law. Consider Miller’s argument that hard-line immigration enforcement is a matter of “national sovereignty”: Another way to put this is that the ability of the government to place people outside the protections of law is what makes that government the ultimate authority within its territory, which is what Miller means when he describes “sovereignty.”

None of this means anything if it doesn’t come back to the death of a child. It’s not yet clear how the CBP agents on the ground in Caal Maquín’s case handled the situation; Caal Maquín’s father has said he is grateful for their efforts to save his daughter. But from the top down, the administration’s rhetoric around her death echoes this view of the border as a state of exception. It situates Caal Maquín’s death as a regrettable error or possibly a useful deterrent, a body among many other bodies rather than a child to whom the government had some responsibility of care.

This bleak vision of the border is more consistent than it might first seem with the usual American understanding of law as a restraint on government. Schmitt’s unsettling insight, after all, was that the rule of law as commonly understood was centered on a void with the potential to swallow the legal order whole. To put it another way, democratic government will always contain within itself the potential for absolute dictatorship. This president, who has no respect for legal restraints on his power but also no interest in the sustained effort required for genuine authoritarianism, hasn’t bothered to strip away the core protections of citizenship. Instead, he has targeted those who were already weakest, balanced at the edges of the law’s protection.