Friday, April 03, 2020

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 Abstract

Excerpted From: Scott B. Astrada and Marvin L Astrada, Truth in Crisis: Critically Re-examining Immigration Rhetoric & Policy under the Trump Administration, 22 Harvard Latinx Law Review 7 (Spring, 2019) (127 Footnotes) (Full Document)

 

AstradaScott MarvinAlthough we are in the very early stages of understanding and explaining the long-term impact of the Trump administration on American political culture, national identity, and civil society, it clearly represents a watershed moment in the history of the Presidency. This is especially the case in the realm of the present administration's ideology, which some commentators have designated "Trumpism." At the most general level, the Trump administration appears to have inaugurated a noteworthy change in the exercise of executive power and the content and character of American politics. Among other things, Trumpism has demonstrated a tendency to employ fear, loathing, and spectacle to bolster support for and perpetuate the administration's interpretation of the general welfare expressed in public policy. The politics of fear and loathing, expressed in law and policy, are not a new phenomenon. In the 21st century, however, Trumpism seems to have revitalized fear and loathing as cornerstones within specific policy spaces in ways that have altered the conditions of policy debate. This can be readily observed in immigration law and policy. The Trump administration has impacted and disrupted public policy in various spaces, such as immigration, criminal justice, and civil rights, all of which involve some degree of positing an "other", such as the Latin American immigrant, to fear and loathe, in order to preserve the American homeland from what can be termed viral contaminants. In a relatively short amount of time, the administration's unilateral approach to executive power and governance, which is part of perpetuating an overall "nationalist" economic and political agenda, has profoundly impacted law and public policy discourse. In the realm of immigration, the administration has at times referred to immigrants from Latin America as "criminals" and "animals" that potentially can "infest" the US, with Trump once asking "Why are we having all these people from sh--hole countries come here?", referring to countries such as Haiti and El Salvador. Since Trump launched his presidential campaign by calling Mexican immigrants "rapists" and "murderers," he has attracted both scorn and praise for his radical immigration policies. This is one of the most significant examples of the Trump administration framing the immigrant "other" as an enemy, opposed to American culture and the rule of law. In fact, "enemy framing" has far-reaching impacts across the entirety of the media, the policy process, and cultural landscapes: "In so doing, enemy formation activates a range of behaviors--distrust, polarization, negative stereotyping, black-and-white thinking, aggression, deindividualization, and demonization--while fostering ethnic intolerance, racism, and political or religious fundamentalism." American identity politics and public policy have also shifted. The US has entered a seemingly new era of political, civic, and media discourse that can be termed the era of the spectacle. The nature of spectacle vis-à-vis ideology and politics is succinctly explicated by philosopher Guy Debord: the spectacle "erases the dividing line between true and false, repressing all directly lived truth beneath the real presence of the falsehood maintained by the organization of appearances." This is the core idea of the spectacle, wherein empirical data and conventional or rather scientific (natural and social) notions of ascertaining truth may no longer serve as adequate bases for the articulation of policy. Spectacle, as an ideological and political organizing concept, thrives in political contexts permeated by fear and loathing. As is the case with images, which are devoid of substantive content, policy based on spectacle requires nothing more than demagogic assertions upon which to justify the why and how of policy positions.

For example, the President stated the following regarding the most recent migrant caravan from Guatemala en route to the US:

Anybody throwing stones, rocks--like they did to Mexico and the Mexican military, Mexican police, where they badly hurt police and soldiers of Mexico--we will consider that a firearm ... We will consider that the maximum that we can consider that, because they're throwing rocks viciously and violently ... You saw that three days ago. Really hurting the military. We're not going to put up with that. If they want to throw rocks at our military, our military fights back. We're going to consider--and I told them, consider it a rifle. When they throw rocks like they did at the Mexico military and police, I say, consider it a rifle. Irrespective of one's ideological and political stance on migration and immigration, the foregoing policy statements clearly reflect the use of spectacle. To equivocate rocks with firearms as a justification for condoning use of deadly force by U.S. law enforcement is an example of how fear, loathing and spectacle work in tandem to divest terms such as rocks, rifles, and violently, in light of the use of deadly force justifications, of their actual meaning. However, these facts no longer serve as reflections of an empirical reality, but rather as part of an unending flow of spectacle-based information chain. This has become the primary mode that underpins policy pronouncements and explanations of the world and has profound effects on the implementation of policy and justice under the law. Under the spectacle, facts, as conventionally understood, are no longer the basis for policy pronouncements. Facts under the spectacle, are divested of their potential to challenge and change opinions. Jacques Derrida gives more depth to this concept in his discussion of civic life and ethics: "In order to be responsible and truly decisive, a decision should not limit itself to putting into operation a determinable or determining knowledge, the consequent of some preestablished order." The spectacle undermines facts, and replaces policy narratives as the mere formulaic deployment of news, divorced from empirical accountability, along the lines of identity politics.

Within this context, this article thus explores the structural consequences of the Trump administration's use of fear, loathing and spectacle in articulating the character and content of policy spaces, and the effect of specular politics on law, governance, and national identity. Immigration from the Global South serves as an empirical case study to anchor and explore these themes. Ancillary questions that arise are: Does the Trump presidency reflect a populist disjunction that has polemicized and polarized society and the electorate? On a policy level, what are the effects of Trump's campaign and administration on democratic representation and government? How have Trump's rhetoric and policy impacted immigration in the context of civil society? While change is commonplace within the political landscape with the advent of a new Presidential administration, the election of Donald Trump has seemingly reconfigured it. Indeed, there has been a plethora of deeply critical political analyses, namely progressive liberals putting forth claims of fascism, racism, and the demise of decades of progressive politics. On the other side of the ideological spectrum, there have been mixed reactions from conservatives lauding what they perceive to be a substantial blow to the elitism of the left and the end of the neglect of the "silent majority," while others have critiqued the administration for going against conservative social and economic principles. We contend that the Trump administration, during both Trump's campaign and his tenure in office, has effectively employed spectacle to an unprecedented level in modern times, and that this may have a significant impact on the character and conduct of politics and policy going forward. A potential consequence of Trump's presidency for the present and future of American politics is that spectacle has been elevated to an unprecedented level in politics and policymaking, resulting in what Debord had previously termed the rise of a "society of the spectacle." Spectacle has profound implications for representation, democratic politics, and the rule of law because of its capacity to appropriate images that are divorced from empirical actuality, and re-casted to meet specific politico-ideological agendas. The use of perception and image to construct governing mechanisms, such as "alternative facts," and "fake news," and stoking the public's fear and loathing of the immigrant "other" from the Global South because they pose an existential threat to American identity and security, that do not comport with empirical evidence to the contrary, is indicative of a politics steeped in spectacle. Spectacle combined with a securitized immigration discourse results in a complex and contradictory state of affairs in which law and politics are explicitly conflated, leading to a "'point of imbalance between public law and political fact' that is situated--like civil war, insurrection and resistance--in an 'ambiguous, uncertain, borderline fringe, at the intersection of the legal and the political."' The imbalance or lack of logical consistency between public law and political fact can be readily observed in the immigration context, and specifically in the Latin American immigrant and migrant contexts. This article thus provides a select analysis of how the Trump administration has been able to employ spectacle and develop justifications for why this phenomenon merits further examination. We seek to gain insight into how its agenda and the politics that attach to spectacle will impact American politics generally, and immigration specifically. The purpose of our analysis is to stimulate academic and policy debate and provide fodder for further research questions as to the enduring impact that the Trump presidency will have on American identity, politics, and civil society, and the US policy posture toward immigration. We also analyze the national backlash that has erupted across the country from Trump detractors in response to the 2016 election, the policies of the administration, and their unorthodox governing style, in the form of mass and diversified social protests and mobilizations, and the possibility that they point to a shift in public perceptions of executive power and reactions to the overall agenda that the Trump administration seeks to effectuate. The Trump administration's approach to Obama era policy, such as attempts to end DACA, shows that previous policies can certainly be undone or scaled back. It seems, however, that the Trump administration is engaged in a different type of politics, one that substantially attempts to reconfigure or ablate the rules governing the perception, decision-making, and ethos that have bolstered progressive developments in American politics and democratic society since the 1960s. The very function of some federal agencies has been reconfigured, whereas other agencies have been made essentially powerless due to a 2-for-1 regulatory restriction on issuing new rules, or have had their fundamental mission statements rewritten to embody the opposite of their traditionally accepted function., such as the word "science" being dropped from the Environmental Protection Agency's Office of Science mission statement. Even as the political drama on Capitol Hill has been absorbed into mainstream media and culture, the Trump administration has produced distinct policy changes in immigration law and policy as well as tax reform, the nomination of Supreme Court Justices, threats to net neutrality, and Wall Street reform, among other policy spaces. The election of President Trump is not an historically disruptive phenomenon per se, as previous campaigns have relied on apocalyptic populist platforms, such as those of Ross Perot, Pat Buchanan, and Barry Goldwater. However, Trump's election does mark a political watershed in that it inaugurates a norm of politics based heavily on spectacle that does not comport with empirical evidence to a substantial degree. This merits critical analysis because the "spectacle is not a collection of images; rather, it is a social relationship between people that is mediated by images."

[. . .]

The core disruption of the Trump Presidency in the character and content of American politics and national identity is the seismic shift in how spectacle relates to the politics of truth and immigration. Truth based in empirical evidence is anathema to spectacle. The infinitely complex reality of lived experience, especially as reflected in economic and social scientific analyses premised on qualitative and quantitative methodology, can effectively shatter or discredit spectacle. Yet, politics and passion have always gone hand in hand, and rhetoric and emotion are well-established drivers in campaigning and in the articulation of public policy. President Trump has been able to utilize specular-based rhetoric to not only supplant "truth," but also contradictory evidence, or opinions that are recognized using accepted empirical methodology, which are casually dismissed as a hoax or fake with no necessity for corroboration utilizing traditional notions of soundness and credibility.

The consequence of unchecked spectacle can have very negative effects on policy making because "[t]o abandon facts is to abandon freedom. If nothing is true, then no one can criticize power, because there is no basis upon which to do so. If nothing is true, then all is spectacle." Spectacle, which has become a mainstay, the nucleus of Trumpism, has been effective in attenuating or nullifying facts premised on an empirical basis. As David Cay Johnston notes, Trump has thrived in "truthful hyperbole." This is along the same lines as claims of "fake news," wherein a disruptive discernable narrative of anti-truth becomes commonplace in the conduct of politics. Then-candidate Trump constantly boasted of his job-creating abilities, touting "his plan to rev up the economy by cutting taxes, reducing federal regulations and negotiating better trade deals ...." Holding candidates accountable to their campaign promises assuredly will lead to disappointment, but the disconnect between candidate Trump's statements and President Trump's actions exemplify the extent and scope of how much he relies on spectacle to drive policy.

Through the appropriation and deployment of truncated histories, and discourses and racialized typologies that have a specular basis, particularized configurations of social order have been able to engender and reproduce relations of domination that have a basis in objective actuality. The ebb and flow of spectacle-based stereotype in public policy space can lead to a proliferation of empirically unsound policies and reconfigure what we demand of the Office of the President. The antithesis of the spectacle is a belief in truth, and the courage to be a democratically-minded individual in the tradition of Ralph Waldo Emerson, as explained by Cornel West: "[T]o be a democratic individual is to speak out on uncomfortable truths; to be an active player in public discourse is to be thrown into life's contingency and fragility with the heavy baggage of history and tradition, baggage like the American legacies of race and empire." A larger concern of theatrical politics becoming the norm in American politics is that foundational notions of racism, elitism, and exceptionalism, as discussed above, not only remain viable in the 21st century, but are substantively woven into public policy while remaining obfuscated by spectacle.


Scott B. Astrada (J.D., M.B.A, Marquette University; L.L.M, Georgetown University Law Center; B.A., University of Wisconsin - Madison). Professor of Law at the Georgetown University Law Center.

Marvin L. Astrada (Ph.D., M.A., Florida International University; J.D., Rutgers University Law School; M.A., C.A.S., Wesleyan University; B.A., University of Connecticut). Professor in the Politics & History Department at New York University - Washington D.C.


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