By Gordon Hull
As our tin-pot “President” continues his inexorable slide into narcissistic authoritarianism, it is worth noting recent events that establish beyond any residual doubt that radical white terrorism is now official policy. When historians look at the Trump presidency, assuming we all survive long enough for there to be historians, I suspect last week is going to be a significant one. It began with Trumps’s remarks after Charlottesville, in which he managed to say that counterprotestors shared in the blame for neo-Nazi violence and that there were many “fine people” hiding in the mob of white supremacists. These made his own views clear (as though they weren’t already). But they did not establish state policy. Events Friday did: the pardoning of former Maricopa Country Sheriff Joe Arpaio, the border patrol’s decision to keep inland border patrol checkpoints open during the evacuation from Hurricane Harvey, and Trump’s apparent decision to end the DACA program. Together these say: radical white terrorism is above the law, and the undocumented are homines sacri. Foucault remarked at one point that in a biopolitical state “it’s impossible to reconcile law and order because when you try to do so it is only in the form of an integration of law into the state’s [administrative] order” (Power, 117). In Trump’s America, you get neither law nor order: Trump despises both the rule of law, as evidenced Friday, and the administrative state, as evidenced by his repeated appointment of incompetent, unqualified partisan hacks to head regulatory agencies the very existence of which they oppose. The theoretical framework through which all of this behavior is intelligible finds its expression in the Nazi jurist Carl Schmitt.
The connections between biopolitics and racism were of course articulated famously by Foucault in the last lecture of his Society must be Defended course. Foucault defines sovereign power as the power to kill or let live; biopower inverts the formulation into the power to “make live or let die” (SMD 241), which manifests itself in a combination of disciplinary power and efforts to optimize the “population.” When he talks about race war, Foucault is thinking about Nazi Germany, and so just as in that instance “population” was limited by race, so it is here: Trump’s America is basically white. Other races exist, of course, but have subordinate status. Indeed, one of the very few constants in Trump’s career has been his racism, and there can be no doubt that Trump is a complete racist and always has been. Hasan Mehdi compiles the dossier, of which the following is only a part:
“He was accused of ordering “all the black [employees] off the floor” of his Atlantic City casinos during his visits; claimed “laziness is a trait in blacks” and “not anything they can control”; requested Jews “in yarmulkes” replace his black accountants; told Bryan Gumbel that “a well-educated black has a tremendous advantage over a well-educated white in terms of the job market”; demanded the death penalty for a group of black and Latino teenagers accused of raping a jogger in Central Park (and, despite their later exoneration with the use of DNA evidence, has continued to insist they are guilty); suggested a Native American tribe “don’t look like Indians to me”; mocked Chinese and Japanese trade negotiators by doing an impression of them in broken English; described undocumented Mexican immigrants as “rapists”; compared Syrian refugees to “snakes”; defended two supporters who assaulted a homeless Latino man as “very passionate” people “who love this country”; pledged to ban a quarter of humanity from entering the United States; proposed a database to track American Muslims that he himself refused to distinguish from the Nazi registration of German Jews; implied Jewish donors “want to control” politicians and are all sly negotiators; heaped praise on the “amazing reputation” of conspiracy theorist Alex Jones, who has blamed America’s problems on a “Jewish mafia”; referred to a black supporter at a campaign rally as “my African-American”; suggested the grieving Muslim mother of a slain U.S. army officer “maybe … wasn’t allowed” to speak in public about her son; accused an American-born Hispanic judge of being “a Mexican”; retweeted anti-Semitic and anti-black memes, white supremacists, and even a quote from Benito Mussolini; kept a book of Hitler’s collected speeches next to his bed; declined to condemn both David Duke and the Ku Klux Klan; and spent five years leading a “birther” movement that was bent on smearing and delegitimizing the first black president of the United States, who Trump also accused of being the founder of ISIS.”
When you put someone like that in charge of the executive and a major political party, you get state racism, which is what Foucault says happens when sovereign power is made biopolitical. Such racism has two main functions. First, it is “a way of introducing a break into the domain of life that is under power’s control: the break between what must live and what must die” (SMD 254; he notes that death need not be understood literally); second, as a form of rhetorical optimization: the death of the racialized other “will make life in general healthier” (SMD 255). This is obviously the view of the avowed radical white terrorists, but it also comes close to Trumpian policy (if such a word is appropriate here). Importantly, it is not happening through the administrative state. It has happening through a coup, through an executive who is attempting to impose himself as a Schmittian sovereign.
In Political Theology, Schmitt suggests that “the connection of actual power with the legally highest power is the fundamental problem of the concept of sovereignty” (18). Trump resolves the problem by giving himself the highest legal power, the power to decide the state of exception, to whom and to when the law applies. In Schmitt’s famous phrasing, the “Sovereign is he who decides on the exception” (5). As Agamben explains, “the state of exception appears as the legal form of what cannot have legal form” (State of Exception [SOE], 1) and refers to a “no-man’s land between public law and political fact, and between the juridical order and life” (SOE 1). In sum, the state of exception “is a suspension of the juridical order itself, [and] it defines law’s threshold or limit concept” (SOE 4). Agamben also notes that “the place – both logical and pragmatic – of a theory of the state of exception in the American constitution is in the dialectic between the powers of the president and those of Congress” (19). Here, we might add, one needs to include the Courts.
This no-man’s land is the home territory of the Trump administration, which over the last seven months of careening between law and political fact expands to fill this space nearly every day. Several examples come to mind. One is the resumption of the transfer of military gear to the police, blurring the line between citizens and enemy combatants (it was also Schmitt who made the line between friend and enemy the essential one of politics). Another is the original travel ban, which was an order with the force of law that nonetheless managed to use none of the language of law, guaranteeing that it would be tied up in implementation questions and struggles for months. This original travel ban was repeatedly dismissed by the courts. A third is the ban on transgender soldiers in the military. Although morally abhorrent, such a ban at least arguably falls within the constitutional commander-in-chief powers of the president. But Trump did not do that: he simply tweeted that, effective immediately, trans soldiers would not be welcome, citing the laughable claim that they posed too many medical expenses (the military spends more on Viagra and a lot of other things than the medical expenses of trans soldiers). The military promptly replied that it would not be implementing the ban until it was issued in the form of a directive that it could implement.
Agamben’s warning about all of this needs to be read carefully:
“Because it results from the dialectic between these two somewhat antagonistic yet functionally connected elements, the ancient dwelling of law is fragile and, in straining to maintain its own order, is always already in the process of ruin and decay. The state of exception is the device that must ultimately articulate and hold together the two aspects of the juridico-political machine by instituting a threshold of undecidability between anomie and nomos, between life and law, between auctoritas and potestas. It is founded on the essential fiction according to which anomie (in the form of auctoritas, living law, or the force of law) is still related to the juridical order and the power to suspend the norm has an immediate hold on life. As long as the two elements remain correlated yet conceptually, temporally, and subjectively distinct (as in republican Rome’s contrast between the Senate and the people, or in medieval Europe’s contrast between spiritual and temporal powers) their dialectic – though founded on a fiction – can nevertheless function in some way. But when they tend to coincide in a single person, when the state of exception, in which they are bound and blurred together, becomes the rule, then the juridico-political system transforms itself into a killing machine” (SOE 86).
The precision of the statement is important. The gap between power and authority (or, in the idiom of Spinoza and the autonomists, potentia and potestas) is of course a mystification: authority and legitimacy and other legal concepts depend on physical power. But it is important that political actors maintain this mystification in order to enable something like the “rule of law.” It is even more important – and here is why I mentioned Spinoza – when political actors are entirely motivated by Sad! affects like resentment, which is to say by factors outside themselves which tend to direct them to hateful, antisocial, self-destructive and other bad behaviors that express their lack of autonomy and the misdirection of their conatus. Trump’s gambit is precisely to try to bring together both authority and power in himself, all in the name of Sad! affects. And that leads us to the fundamental violence of last week.
The pardoning of Sheriff Arpaio, as numerous commentators have noted, shows Trump’s utter contempt for the rule of law. In this context, I think, it shows that Trump as declared that the law is to be bent to his own authority: although to anybody who has been awake, Trump told a pants-on-fire lie when he said that Arpaio had been fired for doing his job (since Arpaio, a law enforcement officer, had been held in contempt for repeatedly refusing to do his job, and for treating his own power as unlimited, not bound by legal norms or rules), in the Trumpian universe abusing immigrants and ignoring the law is precisely the job of the law, and if the law does not do that, then the law should be suspended. Arpaio embodied this ethos perfectly. He ran a lawless camp in which inmates were made to endure the Phoenix heat, wear pink underwear and striped jumpsuits. He even called it a “concentration camp.” He mercilessly targeted, profiled, and pursued those he thought might be undocumented immigrants, a category which was basically isomorphic with all Latinos. When ordered by the federal judiciary to stop, he proudly refused. He sent a “posse” to Hawaii to declare Obama’s birth certificate a fake. After his conviction for the racial discrimination, but before sentencing, BFF Trump swooped in to pardon him. In so doing, Trump communicated that, at least as far as radical white terrorism is concerned, the merger of legal authority and power is to be absolute, supported by the (apparently, and at least in his view) unaccountable power of the presidency. He also communicated that the rule of law is a dead letter under his administration, an ominous portent for the Russia investigation, among other things.
Agamben ties the development of biopower to the production of what he calls “bare life:” lives which are lived outside the protection of the law, in a condition (as he puts it technically) in which they are deprived of a death ritual, and can be killed by anyone without penalty. He complains that Foucault does not see this hidden aspect of sovereignty, and thus, “never dwelt on the exemplary places of modern biopolitics: the concentration camp and the structure of the great totalitarian states of the twentieth century” (Homo Sacer [HS], 4). Agamben offers a strong thesis: “Placing biological life at the center of its calculations, the modern State therefore does nothing other than bring to light the secret tie uniting power and bare life” (HS 6). In particular, he thinks the state of exception and construction of camps are intimately tied. Hence, “The importance of this constitutive nexus between the state of exception and the concentration camp cannot be overestimated for a correct understanding of the nature of the camp” (HS 168) and:
“The camp is the space that is opened when the state of exception begins to become the rule. In the camp, the state of exception, which was essentially a temporary suspension of the rule of law on the basis of a factual state of danger, is now given a permanent spatial arrangement, which as such nevertheless remains outside the normal order” (HS 169).
In the big picture, there is a lot wrong with Agamben’s analysis. For one, the critique of Foucault is undoubtedly unfair, as even the race war paragraph suggests. Agamben’s own account is also, among other things, entirely too formalist. However, that analysis has a particular salience here.
First, the number of camps involved is striking: shortly after he studiously failed to condemn neo-Nazis, Trump pardoned a man who bragged about running a concentration camp. Something similar should be said about the border patrol’s unconscionable decision to keep inland border checkpoints open during evacuation from Hurricane Harvey, which is set to produce some of the highest rainfall amounts ever recorded, and to absolutely devastate the fourth largest city in the country and an entire region surrounding it. By keeping checkpoints open, ICE offered the undocumented a choice: leave and risk deportation, or stay and risk death. Apparently those who could get to shelters – and we are talking of nearly half a million people – would be safe from ICE enforcement, although even that has been a concern in some quarters. Is this the production of a literal camp? No, but…
Second, if we take Foucault seriously on the point that those on the wrong side of the race war need not literally die, and take Agamben somewhat metaphorically on the “denial of a death ritual,” then those theses converge to describe Trump’s attitude toward members of the Latino community. Deportations are frequent, and apparently sometimes without even the (minimal) due process requirements normally associated with deportation (this was also a problem with the original Muslim ban. Recall also that refugees are still being denied entry into the country. Agamben: “the refugee causes the secret presupposition of the political domain – bare life – to appear for an instant within that domain” (HS 131)). The proposed DACA repeal falls into this category, too: those who once enjoyed legal protection will have those protections stripped; 800,000 young people who made the mistake of trusting a government program risk deportation when the political winds blow differently. And that one has its roots in the Republican party more generally. The result is a community that will be driven ever deeper underground, enduring a social death and the arbitrary actions of newly empowered ICE officers. And all of this is before rearmed police departments resume their abuse of black and other communities of color, no longer restrained by minimal late Obama-era standards of training and accountability, all while the Sessions Justice Department cheers them on.
This, then, is the Trump administration. It should shock everyone and surprise no one. After all, Trump is attempting to do exactly what he said he would do on the campaign trail; as Masha Gessen wrote immediately after the election, one should take the autocrat at his word. Agamben spoke of the dialectic between the executive and legislative branches of the U.S. government. It is time for the cowardly Republicans in Congress to stop dreaming of tax cuts for themselves and their donors, do their job and remove our budding tyrant in chief. As the Republican push to end DACA and the silence of all but a few surrounding most of Trump's misbehavior suggest, the moral complicity of rank and file GOP in Trump’s growing list of offenses is deep and getting deeper. Which is why I am not optimistic, unless Trump’s legislative incompetence and deepening disapproval among all but his base cause them to lose their tax cuts. That would at least be the first instance of Trump’s behavior resulting in a just outcome. Even gallows humor would be a relief at this point.
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