Guest post by Robert Koulish. Robert is a political scientist at University of Maryland. He is director of MLAW Programs and Research Professor of Government and Politics at the University of Maryland, lecturer of law and UMD Carey School of Law. He is co-editor of Crimmigrant Nations: Resurgent Nationalism and the Closing of Borders, and co-founding member of CINETS, International Net of Crimmigration Control. This is the third installment of the Border Criminologies themed series on Crimmigrant Nations organised by Maartje van der Woude and Robert Koulish.

As I sat down to write this blog, news crossed my computer screen that citizen George Floyd had been murdered by police. As I watched video of the tortuous slow death of George Floyd, I was filled with outrage by the view of police causally mocking the man they had pinned face down to the ground.  The take-away (in addition to the horror of the moment) is that the cops did not want to look Floyd in the eye as they tamped out his life. The event reminded me of the White House evoking similar nonchalance in response to the press releasing the image of Salvadoran refugee Oscar Martinez and his daughter, laying face down in the waters of the Rio Grande river. Trump offhandedly mocked Martinez (not by name of course) for having come to the United States in the first place. These are examples of cruelty for its own sake, a racist disregard for human life.

These two deaths exemplify the “killable bodies” concept Giorgio Agamben refers to in ‘Homo Sacer,’ where human life is seen as “raw” and without personhood, therefore “killable”. I think there is something about nonchalant cruelty that is pervasive in immigration enforcement: the casual cruelty of caging migrant children and separating them from their mothers comes to mind, and with that I take a lesson from unfolding events following George Floyd’s murder.

The deaths of Floyd and Martinez remind us, as if we need reminding, that the construction of ‘killable bodies’ in Trump’s America consists mostly of black and brown people. Nothing is new here. The image of Emmett Till’s disfigured face in his coffin helped launch the civil rights movement. Although recent decades have witnessed the decline of overtly explicit State sponsored racism, these ‘killable bodies’ captured on citizens’ phone cameras have symbolized the resurgence of white supremacy in Trump’s America.

The killable bodies concept applied to George Floyd’s death symbolizes the pervasive and systemic anti-black racism in police departments across the country. Further, Floyd’s death shows a society finally rising up in 2020 against systemic state violence against black bodies, with the heavy lifting of restructuring or demolishing police still on society’s to do list. The uprising reminds us of that “black lives Matters” must be more than an effort at national rebranding: it requires radical restructuring of law, police and culture.

As applied to Oscar Martinez and other predominantly Latinx immigrants, the concept shows similar indifference to Latinx life. Structural violence against migrants is similarly baked into founding structures of government here the plenary powers architecture of immigration enforcement. This architecture has been responsible for Chinese exclusion long ago, and is now responsible for Trump’s power to turn back asylum seekers as part of his MPP policy resulting in Martinez’s death. Plenary exclusions have been constitutive of a culture of white nationalist ideology and administrative impunity and neglect. The administration of immigration has always been a low priority for the federal government, since the first federal bureau of immigration was opened over a century ago. Accountability has been a low priority and discretion has run rampant. In 2003 immigration administration rode the currents of the post 9/11 obsession with homeland security to land a front-page role in the new DHS. With similar missions, Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) turned into front line agencies in the war on terror on domestic shores. Although public administration expects accountability measures to accommodate increases in power, immigration administration became resource rich with no corresponding accountability and effective oversight. Instead, with greater power and prestige has come greater opportunity for brutality and death.

As a general rule the plenary powers doctrine is responsible for the culture of callous indifference to migrant lives. The Court has been reluctant to engage in judicial review, and instead avoid clear-cut constitutional violations. Ordinary constraints on executive power are simply nonexistent when it comes to reining in an abusive executive. Thus, immigration was the perfect vehicle for Trump to engage in authoritarian and white nationalist practices, to opportunistically and cruelly sacrifice human bodies in the name of sovereignty and national security.

So, how to distinguish killable bodies in the criminal justice system and the immigration system? How does crimmigration apply to killable bodies? Juliet Stumpf’s seminal article introducing the crimmigration concept in 2006 helps to distinguish the deaths of George Floyd and Oscar Martinez in terms of membership theory. Floyd’s death shows the irrelevance of legal citizenship in Trump’s degradation of Black and Latinx bodies.

Differences in membership, however, are discerned by looking at the field of law governing police in the state of Minnesota versus immigration law at the border. The Minneapolis police trampled on Floyd’s rights, but being a rights bearing man distinguishes Floyd from Martinez. Floyd’s civil rights and liberties were violated; Martinez had no rights. Floyd’s family might still gain restitution; no such opportunities for the Martinez family.

Meanwhile the bodies of Martinez and his daughter Valeria were whisked away for private burial in southern San Salvador. No charges against the officer who dismissed Martinez back to Mexico and no responsibility assumed by Trump for his despicable Migrant Protocol Policy (MPP) or for hate-filled rhetoric disparaging Martinez. As Floyd’s murder followed the untimely murders of Breonna Taylor, and David McAtee, whose body was left on the ground for 12 hours,  Martinez similarly was preceded in death by immigrants of color such as Sergio Adrian Hernandez Hernandez-Guereca, a 15 year old killed on the Mexico side of the border by an on-duty Border Patrol officer. The issues raised by Hernandez-Guereca’s murder are of particular interest as they deal directly with the absence of CBP accountability.

As I write this blog today, the casual killing of George Floyd has catalyzed a national uprising which hopefully will lead to a variety of significant progressive changes to policing people of color. As protests expand we already see similarities between calls to “defund police” and “abolish ICDE.” It is rare to see the ‘overton window’ shift to invite such radical change in law enforcement. Society has been primed to consider demands for accountability for deaths of Oscar Martinez, his daughter Valeria, Adrian Hernandez Guereca and the many nameless migrant souls.

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How to cite this blog post (Harvard style) 

Koulish, R. (2020). Trump’s Crimmigration: Imposing Authoritarian Power on Dispensable Bodies. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/06/trumps [date]