Necessitas legem non habet

Necessitas legem non habet

The New York Times:

Securing the nation’s borders is so important, Congress says, that Michael Chertoff, the homeland security secretary, must have the power to ignore any laws that stand in the way of building a border fence. Any laws at all.

Last week, Mr. Chertoff issued waivers suspending more than 30 laws he said could interfere with “the expeditious construction of barriers” in Arizona, California, New Mexico and Texas. The list included laws protecting the environment, endangered species, migratory birds, the bald eagle, antiquities, farms, deserts, forests, Native American graves and religious freedom.

In State of Exception, Giorgio Agamben defines the concept of the “state of exception” as an expansion of governmental power structures in a supposed time of crisis. This crisis is often defined as a “necessity” to “protect” the law itself from some threatening internal or external force. The political power accrued through its invocation places one government, or one branch of government, as all powerful, operating within, yet outside of, established juridical precedence. It therefore constitutes a suspension of the law in which the force of the law is retained.

It is unfortunate that the fantasy discourse of immigration, which operates primarily through right-wing buzzwords such as “urgency” and “threat” (and, of course, race), has itself rarely been called into question by the media. Instead, the discourse often shifts to U.S. economic policy, citizenship, amnesty and so-called “liberal coddling.” What all of these issues miss is the more threatening issue, that of the rapid expansion of executive power through the suspension of law, which, at least to me, seems to have troubling juridico-political consequences for the future.