Image Credits: @ianhutchinson on Unsplash (Unsplash License)

As the American electorate prepares for the upcoming presidential race, it seems that the values of the nation are at stake once again. In a repeat of the 2020 race, President Biden has received the Democratic nomination with little to no competition and Donald Trump has also secured the Republican nomination without much difficulty. Yet in the four years since the last election, despite the matchup, the position in which American voters find themselves has been drastically altered. Since October 7, 2023, the UN reports that the death toll in the Gaza Strip has reached nearly 35,000, generating protests nationwide. The Listen to Michigan campaign aimed for 10,000 uncommitted votes in the Democratic Party primary as a form of protest towards Biden’s response to what human rights experts term as a genocide in Gaza, and instead it led to 101,000 uncommitted votes. 

Homo Sacer is a political philosophy that originated in the Roman legal system. It was recontextualized by philosopher Giorgio Agamben, who coined it to refer to a person who, if killed, the killer would not be considered a murderer. Therefore, this person exists in a state of exception, or a “suspension of law itself” which “abandons the living being to the law.” Homo sacer and states of exception, in this article, will be utilized to discuss the notion of international borders and sovereignty under both the Biden and Trump administrations, considering immigration policy and foreign intervention. 

Although it is a nation constituted through the displacement and killing of indigenous people, who were reduced from a population of 10 million prior to the arrival of European settlers to under 300,000 by 1900, the United States has prided itself on its fundamental principle of the Rule of Law. As stated in the Federalist Papers and further enshrined in the U.S. judicial system, “all persons, institutions, and entities” are to be held accountable under the law. Moreover, the Declaration of Independence utilized the phrase “consent of the governed,” a principle, devised by philosophers of the Enlightenment such as John Locke, emphasizing that a government gains its legitimacy from the liberty of the people over which it exerts its authority. 

Yet the United States government continuously operates under a state of exception in that it utilizes its authority to deem some lives less valuable than others. Police brutality against Black Americans, or missing and murdered indigenous women and Two Spirit individuals, are both examples of marginalized communities in the United States existing within a politically manufactured state of exception. These communities are not afforded justice and perpetrators consistently are let off. 

On April 23, 2010, the case of Arizona v. The United States went to the Supreme Court regarding S. B. 1070, a bill criminalizing an “unauthorized alien” seeking work in the state as a misdemeanor, authoring the arrest of individuals who have committed a deportable offense without a warrant, and requiring officers to regularly check upon an individual immigration status when detaining, arresting, etc. It was in the 2010 case that “illegal alien” was first used by the Court, and in 2018, the Justice Department officialized the term. 

Under both the Biden and Trump administrations, immigration has become a key issue defining the political landscape. The deeming of a person as illegal opens the door for their rights to continue to be stripped away. The ability to render one’s safety and liberty moot is a facet of homo sacer. Being able to label one as illegal or unauthorized exemplifies a state of exception the government can operate in. This has remained consistent through both administrations.  

Under the Trump administration, the immigration and refugee acceptance systems were drastically altered, for example, the winding down of DACA in 2017, which eventually was reversed in 2020, but from that point till 2020, no new applications were considered. The same year as the order on DACA, the Trump administration issued the Muslim ban, preventing anyone from six Muslim-majority countries from entering the United States. Refugees escaping war, human rights violations, etc, were completely hindered, many of them already making harrowing journeys. The naming of the act as the “Muslim” ban licensed discrimination like no other. Two key pieces of policy enacted by the Trump administration were the Zero Tolerance Policy and the Safe Third Country Policy. Utilizing rhetoric, such as “migrant caravan” has painted refugees escaping deadly circumstances as seeking to put American workers out of work.

At the beginning of its run, the Biden administration claimed to center its policy to reverse the damage done by the Trump administration. However, from March 2020 to May 2023, the Biden administration kept in place a Trump-era policy known as Title 42. The original Title 42 in the U.S. code stipulates limitations in border crossings due to health-related reasons. During the height of the COVID-19 pandemic, the Trump administration took this as a means to instantly expel any undocumented immigrant at the southern border. The Biden administration, in failing to remove this policy, has therefore seen Title 42 used to expel 50% of immigrants arriving at the border, otherwise, the policy has been used to expel people 2.8 million times back into Mexico.

As the 2024 election approaches, President Biden has begun to shift his stance to one that is more enforcement heavy, including putting out support for the recent border security deal in Congress that would block a majority of refugees seeking asylum, as well as suggesting that he would “shut down the border” should the bill pass. 

Under the realm of stronger borders and enforcement, buzzwords that appeal to a vast percentage of the electorate, it is considered justified for federal and state governments to send people back to the very situations they were escaping from. On March 19, 2024, in Las Americas Immigrant Advocacy v. McCraw, the Supreme Court ruled to leave in place Texas Senate Bill 4 (88-4), which would permit local and state law enforcement to “arrest, detain, and remove” anyone suspected to have entered the state unauthorized. The ACLU raised concerns that this law would result in exacerbated separation of families and racial profiling. 

Immigration policy is directly intertwined with U.S. foreign intervention and involvement, which is arguably fueling the refugees seeking escape in the U.S. The question is raised of the state’s capacity. Max Weber, a German sociologist, coined the term “monopoly of violence” in 1919 to describe the state authority holding the sole legitimizing use of force. The idea that the state’s laws are dependent on holding the monopoly on legitimate force is much older. Police force domestically, even if swarming and raiding student encampments, brutalizing peaceful protestors, is considered legitimate. How exactly does this principle apply internationally?

 The foreign policy from both administrations, particularly in Southwest Asian nations, establishes a priority of some lives over others. Since the beginning of the Syrian Revolution in 2011, the death toll has reached 617, 910. In October of 2019, the Trump administration abandoned its Kurdish allies by withdrawing troops from Northeastern Syria, allowing for a Turkish incursion that displaced hundreds of thousands and an SDF alliance with the Assad regime, which had been carpet bombing its civilians from the beginning of the revolution. Syrian refugees fled to Turkey en masse and from 2014 to 2022, and nearly 25,000 people have drowned in the Mediterranean Sea in an attempt to reach Europe. In March 2019, the Trump administration revoked an Obama-era policy mandating the reporting of civilian bystanders killed in airstrikes and the Presidential Policy Guidance, which limited targets to high-level militants, therefore allowing certainty that civilians would not be nearby. 

After a 20-year war in Afghanistan and the messy deal that was the Doha Agreement, President Biden withdrew all troops on August 30, 2021. The world watched as thousands crowded Kabul Airport and a suicide bomb took the lives of 13 U.S. service members and 170 Afghans, though the White House report only makes note to mourn the 13 Americans killed. The aftermath of the withdrawal was a government controlled by the Taliban, and nearly 23 million people facing food insecurity and humanitarian catastrophe. About 3.25 million people are internally displaced, and since August 2021, 1.6 million people have fled the country. 

Special Rapporteur Francesca Albanese to the UN Human Rights Council has deemed the conflict in Gaza as a genocide. Under the framework of this article, it is the result of a culmination of U.S. imperialism and foreign policy. The U.S. has repeatedly failed to recognize Palestinian statehood and plans to veto a resolution on this very matter unless determined by a negotiated agreement with Israel. In 1994, the Clinton administration instructed U.S. officials to avoid using the word genocide to describe the mass death in Rwanda, out of fear of an obligation to act under the Geneva Convention on the Prevention and Punishment of Genocide. The pattern remains. Following South Africa’s petition in the International Court of Justice that Israel was committing genocide against the Palestinians, White House and State Department officials stated that the claim of genocide was “meritless.” 

As the American voter fills out their ballot in November of 2024, it is worth considering American-sanctioned authority within the international order to exact violence on those deemed homo sacer. The Trump and Biden administrations have both upheld anti-immigration policy and have demonstrated little to no sympathy for those at the southern border. Further, the violence upheld by the American state is further demonstrated through the foreign intervention policy from both administrations. The state’s power to deem that some lives are valuable and, therefore, exact violence in a state of exception will remain pervasive without systemic change.