By César Cuauhtémoc García Hernández

Borders do not exist. They are made and remade. At every step, the law creates, moves, reforms, reproduces, and reinforces the border. Focusing on the boundary that México and the United States share, this essay critiques the U.S. Supreme Court’s privileging of the sovereign prerogative to control access to the nation’s territory. In their efforts to control movement across and near the border, legal doctrine permits Executive officials to deviate from ordinary legal constraints on the use of violence. This creates a modern version of the sovereign that Carl Schmitt described a century ago: extra-constitutional in origin and subject to law only on its own terms. Urging an end to the law of border exceptionalism, the essay argues that the Schmittian sovereignty that exists in the borderlands is neither justified by the facts on the ground nor required by the very legal principles that the Supreme Court points to.

Ohio State Legal Studies Research Paper No. 820

University of Chicago Legal Forum: Vol. 2023, Article 5