After a prolonged fight with Congress over funding for a border wall, President Trump declared a national emergency along the U.S. border with Mexico. An “invasion of drugs and criminals coming into our country,” Trump argued, was a national security threat grave enough to bypass Congress in pursuit of funding for the wall. Earlier, the Trump administration had reduced the number of refugee admissions and placed thousands of immigrant children in detention centers, forcibly separating them from their parents and caregivers.

Against the Trump administration’s vision of the border as a site of legality that is threatened by criminals, Kathleen Arnold theorizes it as a legal state of exception where illegality is produced. According to the doctrine of “plenary power,” which grants the federal government the power over all foreign affairs, foreign noncitizens may be denied constitutional protections. Arnold maintains that the rhetorical depiction of immigrants as criminals, combined with policies to detain even those who are recognized as having a credible claim to refugee status, produces illegality by making it seem as if immigrants pose a criminal threat. Unlike criminal punishment, immigration detention is indefinite, detainees have no right to legal counsel, and detention may end in deportation to countries where people’s lives are at risk. In sum, Arnold argues that people in immigration detention are stateless: they have “lost the protection of their state as citizens and…entered a space of confinement where the law has been legally suspended” (p. 2).

We would be wrong to conclude, however, that it is better to be a criminal than a stateless person, as Hannah Arendt suggests in Origins of Totalitarianism (1951). Arnold also takes issue with Giorgio Agamben’s claim in Homo Sacer (1998) that the prison is inside the normal legal order while the “camp” is outside of it. Although criminal defendants enjoy certain rights that are denied to immigrants in deportation proceedings, such as the right to counsel, Arnold argues that the criminal legal system deprives even citizens of all but the most minimal constitutional protections. Moreover, many people are incarcerated not because of any criminal act but because of their status as poor people of color, targeted by the War on Drugs and broken windows policing. “Crimmigration,” the growing entanglement of the criminal legal system with immigration enforcement since the 1990s, further undermines claims that one system is preferable over the other. Arnold sees prisons and detention centers not as binary opposites, but as related spaces that legally expose targeted groups to domination and statelessness, broadly conceived.

Arnold’s analysis of prisons and detention centers is part of the book’s overarching effort to question the hierarchical binaries that organize our thinking about politics and the law. Against binary understandings of citizenship, Arnold argues that legal “personhood,” inscribed in the Fourteenth Amendment, constitutes an intermediate legal status that offers constitutional protections but no guaranteed path to full citizenship. This legal status “helps to explain how political divides are not really between foreigner and citizen but [are] evidence of a much more varied scale of political inclusion and exclusion that has developed in the United States over the past century but which has largely been ignored” (p. 18). Arnold further shows that legislative changes beginning in the 1990s—the inauguration of the War on Terror and the devolution of plenary power to local and state authorities—blurred distinctions between domestic and foreign power. The indefinite detention of “enemy combatants” at Guantánamo, which was initially used to detain Haitian asylum seekers, further shows the blurred boundaries between immigration detention, punishment, and antiterror policies.

Indeed, the great contribution of Arendt, Agamben, and the Issue of Hyper-Legality: In Between the Prisoner-Stateless Nexus is its challenge to established disciplinary, conceptual, and thematic divisions in the study of confinement. Arnold not only adds to the burgeoning scholarship on mass incarceration and the immigrant detention and deportation regime but she also connects these phenomena to political theory debates about sovereignty, biopower, and the state of exception. Her arguments are relevant for all areas of political science and show that rigid boundaries between subfields and disciplines hinder our understanding of contemporary power arrangements. Binaries such as citizen/foreigner obscure how “in-between spaces and spheres of power have been carved out [that] are importantly characterized by injustice and human suffering” (p. 172). Thus, binary thinking upholds a “fantasy of democratic agency” (p. 180) that only an account of the messy realities of contemporary legal and political power can help make real.

Political theorists, however, might wish for a more in-depth examination of the conceptual binaries discussed by Arnold than she provides. Although the book traces the prisoner/stateless opposition to Arendt and Agamben, it also notes that both thinkers provide resources for nonbinary thinking. For Arendt, “the category of statelessness could be interpreted as exploding all other statuses and conditions and for Agamben, the camp as space could be understood as a set of relations encompassing the modern prison rather than excluding it” (p. 7). What then explains the receptions of Arendt by Agamben and others that affirmed binary over nonbinary interpretations? Could Arendt’s work be mobilized to think through democratic agency in the legal and political gray zones diagnosed by Arnold? This line of inquiry could supplement the two paths of political change discussed in the conclusion. Arnold analyzes the sanctuary movement, in which activists provide refuge to undocumented immigrants in churches and protest the threat of detention and deportation, as “a form of active and effective resistance to undemocratic sovereign powers” (p. 181), and she supports a “due process balancing test” that would grant due process rights to anyone who comes in contact with the U.S. government (pp. 183–85).

Notable for its absence from this discussion is the growing prison abolitionist movement. Although Arnold opposes the criminalization of racially and economically marginalized groups and critiques the “civil death” imposed on the incarcerated, she stops short of challenging imprisonment as such. In her discussion of women’s diminished legal personhood, she appears to call for more punitive laws against sexual violence: “arguably, any right to bodily integrity is undermined by weak marital rape laws [and] weak anti-rape criminal statutes” (p. 61, fn87). In light of recent critiques of feminists’ complicity with the carceral state, documented by Marie Gottschalk and others, this statement should give us pause. However, Arnold’s powerful call to complicate binary thinking may yet contribute to abolitionist projects to challenge both state and interpersonal violence. Arendt, Agamben and the Issue of Hyper-Legality is a provocative contribution for thinking about law and democratic agency today.