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Journal of the Critical Ethnic Studies Association

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The war that is going on beneath order and peace, the war that undermines our society and divides it in a binary mode is, basically, a race war.
--Michel Foucault, Society Must Be Defended

In their defense of the Muslim travel ban, lawyers for the Trump administration invoked the plenary power doctrine to justify its legality: "The Order was well under the president's authority under Congress' delegation, particularly in an area like immigration, in which the admission to the United States of foreign aliens is subject to plenary control by the political branches." (1) By invoking this doctrine, the lawyers drew on the powers inherent in sovereignty, whereby the political branches of government had "plenary"--that is, "exclusive" or "unlimited or absolute"--power to secure the nation, protect its borders, and regulate entry without need for judicial review (2) This reference to plenary power in support of Executive Order 13769, "Protecting the Nation from Foreign Terrorist Entry into the United States," highlights what seems to be a foundational contradiction of the powers inherent in U.S. sovereignty: namely, that such exceptional or "extraconstitutional" measures in the name of national security are routinely exercised in the quotidian domain of immigration, conceived as threats to the racial cultural order of the nation-state. (3) Such a point is made explicit in Executive Order 13769: "In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes towards it and its founding principles.... In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation." (4) Setting aside the irony of this order's racist exclusionary tactics to fight "acts of bigotry and hatred," the implicit racialization of "foreign terrorists" and the invocation of plenary power to defend the Muslim ban draws on the legal precedent set by the 1889 case of Chae Chan Ping v. United States (also known as the Chinese Exclusion Case), which codified racialized exclusion when it barred resident Chae Chan Ping from returning to the United States on the basis of national sovereignty and security. (5)


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