Immigrants Outside the Law: President Obama, Discretionary Executive Power, and Regime Change

Abstract

In November, 2014, President Barack Obama announced the creation of DAPA, a program which instructed executive branch officials to exercise their administrative discretion to defer the deportation of eligible applicants. The President’s announcement was met with a firestorm of controversy. Critics charged that, by altering the legal regime from one in which undocumented immigrants were to be deported to one of “executive amnesty,” the President had exceeded his authority, turning him into an “emperor” or a “king.” The President’s supporters saw no such regime change, insisting that the President was acting fully within his executive authority. Understanding this debate requires one both to delve into the complicated legal context, and to look beyond legal doctrine. The firestorm of controversy reflected broader concerns about discretionary executive power and the law, linked to anxiety regarding the sovereign’s head of state as “he who decides on the state of exception.” It also derived from specific concerns about President Obama as the embodiment of the sovereign: his racialized body, depicted as illegitimate and foreign, furthered the perception of his policies as illegal. Lastly, the fact that undocumented immigrants are not perceived as members of the body politic helped to produce this vision of DAPA as lawless regime change. In this telling, the sovereign actor, the beneficiaries of his action, and the act itself are all cast as illegitimate through a mutually reinforcing logic; all are exceptions that stand “outside the law.”