A discretionary politics of exception making then is both constitutive and

A discretionary politics of exception making then is

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A discretionary politics of exception-making, then, is both constitutive and potentially destructive of the state ‘s performance of sovereign power. The exception , as documented above, functions as strategic obfuscation and erasure; it cloaks the state ‘s discretionary claims in a rhetoric of necessity, inevitability, security, and help . An event , person, or space that is unsuccessfully excepted threatens to expose the ruse of lawlessness at sovereignty ‘s core. Any successful performance of exception, then – a process in which the state both plays and defines the exception – requires constant justification, indeed reification . Historically, constructions of a distant, remote Other have provided this justification. The continued legitimacy of the detention facility at Guantanamo Base, despite campaign promises and an executive order to the contrary, rests upon the remoteness of the space and the Others who reside there (Tagma 2009). Its continued use (and continued use in secrecy) rests upon its “strategic distance” – the actuality and perception of walls, borders, and boundaries between “ normal society and the
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deviance contained , for national security purposes, therein (p. 412). Guantanamo ‘s distance, combined with its disputed sovereignty , produces a strategically useful space that is – and in which those housed there become – “ animal ” and “ like no other (Ginsburg 2004). The sovereign ‘s ability to define when, how, to what degree, and against whom law functions depends , in no small way, upon the exception ‘s difference and distance; the latter is the “condition of possibility” upon which “sovereign utterances” depend (Butler and Spivak 2007, p. 11). Prior to 1952, the exception was codified and formalized in US immigration law; national origins quotas and racial prerequisites to naturalization limited access to American citizenship and necessitated the immigrant petitioner ‘s performance of whiteness (Lopez 1997). The 1952 Immigration and Nationality Act abolished racial prerequisites, however, removing – at least in a formal codified sense – the exception upon which US immigration and naturalization law had been premised since 1790. As Mendelson (2010, p. 1015) documents in her study of Board of Immigration Appeals (BIA) decisions, however, immigration courts remain, to this day, an important site of the “articulation and performance” of American identity . T he law governing cancelation of removal/ deportation , for example, requires petitioners slated for deportation to demonstrate that their removal would produce “ exceptional and extremely unusual hardship ” for the relatives designated in the law . In addition, they must establish ten years of continuous residence in the US and “ good moral character .” Strikingly, though, the pro se materials distributed by lawyers , immigrant advocates , and social services organizations demand even more: the performance of immigrant “conformity to antiquated notions of America” (Mendelson 2010, p. 1016). Mendelson
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