Executive Discretion and the Simulation of Sovereignty in the Immigration Debate

What to do about the nation’s immigration policy is a hot political topic now. Elizabeth Jamison’s discussion on the queering of the Alabama citizenry intrigues me. In particular, I was struck by how she drew on Michel Foucault to argue, “ the citizenry and the immigrant body is a discursive text upon which power is inscribed through law enforcement; a Foucauldian disciplining of the communal body “(Foucault, 1977).

Like Eli, I am interested in using Foucault to reflect on the immigration debate, but would like to do so via Cynthia Weber’s work. In her 1995 work, Simulating Sovereignty, Weber employed Foucault and his 1980 Discipline and Punish to show, “…that some foundational truth underwrites a particular organization of knowledge and that truth is not opposed to but is an effect of power” (Weber 1995, p. 33). Foucault’s argument suggests how, “a search for meaning diverts attention from the production of meaning… in other words, are interpretive communities effects of discourses of truth and the workings of power” (Weber 1995, p. 34). But, Weber then turns to a post-representational logic (following Boudrillard) to contend that the referent to which Foucault refers is itself a discursively constructed subject and that the state therefore is simulated because it cannot be a referent of itself.

So, if we accept Weber and view the state as a simulated concept, how exactly does this “simulation” occur, especially as it might pertain to the immigration debate? In Weber’s work, instead of working through Boudrillard as she intends, she seems to return to Foucault to explain the process of representation and to argue that it is indeed simulation. Weber raises the question of “who” comprises the US domestic community through how it is discursively constructed and defined, but she addresses this concern by using a “simulated” referent of the “state;” that is, by addressing the regime in relation to interventions that it enacts in other parts of the world.

As Eli observed, the big question in the immigration debate should concern the boundaries of how who is and is not part of the state are discursively defined. But, if we are to take a true Boudrillardian approach to understanding how the state and domestic community is defined, can we really employ the simulated concept of the state to address he issue of who composes community? Perhaps we can consider a referent, that for all practical purposes, is not so “simulated.” How can we try to understand how the state is defined without defining the state by calling it a state? What is the unit of analysis here? I want to argue it is the “who,” the individual. So, instead of thinking from a top-down perspective, it seems more productive to think about how the domestic community is discursively defined, or written, at the level of the individual.

So who are these people who discursively construct the state? Who “writes” and defines the state at an individual level, when considering the immigration debate? My contention is that it is the people on the ground; the government workers, who are adjudicating and deciding immigration cases that are the individuals, in practice, who are actually defining, writing, and simulating the state These immigration officials are “simulating sovereignty.” First, they are literally writing into the US records systems, who is a citizen and who is not and who will make up our electoral body and who is considered an illegal and will be returned to their native country. Additionally, immigration officers make decisions that affect not only individuals, but also their dependents and future family members and generations as well. Put differently, when an immigration  official makes one decision on one application, he/she is actually making a choice that affirms or denies an individual as part of the state, which in turn affects the composition of our legal domestic body for years to come.

Immigration officials implement the policies enacted by Congress in the form of the Immigration and Nationality Act, but these executive officers also play a role in shaping the rules they follow since the legislature inevitably relies considerably on their discretion. Each decision an official makes is subject to appeal to the immigration courts and to the Board of Appeals and beyond. In that sense, each such interpretation of statute and rules has the potential to influence case law and rulemaking in various circuit courts and influence how future immigration officers make their decisions.

Important questions arise when considering the role of the individual immigration officer in actually “writing” the state through his/her decisions— How do the decisions of immigration officials define the state and why are their choices important? The reality is that these decision-makers evidence wide disparity in adjudicating applications and “simulating” the state in different ways. Refugee Roulette, by Ramji-Nogales, Schoenholtz, Schrag & Kennedy, offers several hypotheses concerning why there are wide differences among executive decision-makers in adjudication decisions in the Refugee Asylum adjudications process, in particular. Their book contends that the statutory definitions offered in immigration law and in the current debate are actually difficult to implement in practice. This fact gives individual officers great discretion in determining how to interpret particular definitions and provisions. In effect in such cases, the immigration or asylum officer can end up writing his/her own version of what an asylee is or should be. Additionally, it is up to the individual official to judge the credibility of the applicant in question. It is up to the immigration officer too to deny or to grant an applicant a specific benefit. These decisions depend inescapably in considerable measure on individual disposition and judgment.

Weber argues that, “only by maintaining control over the depiction of its people can the state authoritatively claim to be the agent of its people. Without the ability to make credible its claims to both political and symbolic representation, the state risks forfeiting its presumed ability of representation and ultimately its sovereignty” (Weber 1995, p.28). I suggest that in practice it is the immigration officers on the ground, the worker bees, who actually exercise a critical role in defining the composition and character of the nation’s immigrant community. Defining who makes up the state is not just the role of Congress. Immigration officers are not the only actors that play a role in defining our domestic community, but I argue that they do play quite a large role and do in fact “simulate” sovereignty through each decision they make. Perhaps our current “immigration debate” is overlooking the fact that it is individuals who make decisions regarding who is and who is not part of our domestic community and whatever new law and policy may be enacted will itself need to be implemented and immigration officers will continue, of necessity, to exercise discretion as they undertake that responsibility.

 

*** Disclaimer: These views are my personal views and do not in any way represent the views of the US government,

 

Foucault, Michel. 1977. Discipline & punish: the birth of the prison: Random House of Canada.

Weber, Cynthia. 1995. Simulating Soverignty: Intervention, the State and Symbolic Exchange: Cambridge University Press.

Ramji-Nogales, Schoenholtz, Schrag. 2009. Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform: New York University Press.

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emilybarryEmily Barry works as a Refugee Asylum Officer for the US government. She is also working toward her PhD in Public and International Affairs at Virginia Tech. Her current research argues for and provides examples of creative mechanisms that can empower displaced individuals to create and advocate for their own protection. Her recent field research in Sri Lanka as a United States Boren Fellow opened her eyes to how displaced individuals and communities can work together to overcome post-conflict development challenges. During her fellowship, Emily successfully assisted with post-conflict and post-disaster reconstruction grants and edited a book that included non-traditional approaches to human security in Sri Lanka and the rest of the world. Her interest in the need for grassroots-level strategies of empowerment for marginalized groups stems from her new post in US Refugee Protection, her work in Sri Lanka, her humanitarian analysis work as an intern at NATO, her coordination of a public health partnership program in Honduras, her volunteer street child enrichment work in Mexico, and her support of university-community partnerships in southern Virginia and around the world.

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