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Univ. of Kentucky College of Law

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Monday, August 13, 2012

Gulasekaram on Border Fences

Deep-gulasekaramPratheepan Gulasekaram (Santa Clara) has posted Why a Wall? (Irvine Law Review. 147) on SSRN. Here is the abstract:

    Initiated with Operation Gatekeeper in the early 1990s, and extended with significant funding by the Secure Fences Act in 2006, the United States has committed itself to physical fortification of its border with Mexico. The stated purpose of the border fence is to eliminate unlawful entry into the United States. Yet, since the initiation of the border fence project, critics and empirical researchers have found the fortification, at best, to be costly and ineffectual in accomplishing its stated goals; at worst, they argue it causes significant death without any deterrence. In the face of this critique, this article theorizes the creation and persistence of a border wall, arguing that several factors unrelated to actual deterrence inexorably provoke the building of a physical border barrier. After first describing the powerful cost-benefit case establishing the disutility of a border fence, the article explains the underlying forces that render such critiques unpersuasive. Instead, the article presents alternative rationales for border wall construction based on incentives for national lawmakers and the federal government that are only marginally related to actual elimination of unlawful entry.

    The article then highlights the importance of the wall’s physicality, explaining how its existence alters immigration enforcement and migration discourse in politically, culturally, and legally significant ways. Fundamentally, the border wall naturalizes and normalizes the idea of a national border, thereby facilitating harsh enforcement strategies. Meanwhile, its presence helps generate even more undocumented presence within the country, rendering the wall not only an apparent solution to a perceived problem, but constitutive of the problem itself. Finally, the article queries whether the existence of the border fence at our current historical moment portends the weakening of nation-state boundaries. A physical border barrier, counterintuitively, may be the harbinger of diminished sovereign power, serving more as a warning to the walled-in citizenry of the constructing nation than to putative migrants on the outside.
Steve Clowney

http://lawprofessors.typepad.com/property/2012/08/gulasekaram-on-border-fences.html

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