Institutionalising the Exception: Homeland Security Section 102(c) Waivers and the Construction of Border Barriers

Abstract

To expedite the construction of barriers along the border with Mexico, U.S. Secretaries of Homeland Security have waived an extensive array of laws since 2005 when authority for such actions was first delegated to that position as part of the REAL ID Act. This paper contextualises the political origins of what is referred to as Section 102(c) waiver authority, shows how these waivers are used to dramatically expand border barrier construction, and reviews legal challenges. In doing so, it connects the use of waivers in governance as viewed through the study of law with the theoretical prominence of Agamben in the discipline of geography. By examining the specific ways in which these legal practices and their geographic expression have institutionalised a state of exception that pushes the boundary of legal acceptability, we arrive at a more transdisciplinary understanding of the role of states of exception as a tool of governance.