Everything Is Just Dandy!

The Border Patrol Has Vast, Largely Unchecked Powers That Are Expanding

Jacobin
Reece Jones
2022-09-15
https://jacobin.com/2022/09/border-patrol-immigration-constitution-supreme-court/

The Border Patrol has largely avoided the scrutiny that police have come under in recent years. That should change: the Border Patrol’s powers are increasingly authoritarian, with few legal checks, and expanding throughout the United States.


A US Border Patrol agent checks the passports of immigrants after they crossed the border with Mexico on May 18, 2022, in Yuma, Arizona. (Mario Tama / Getty Images)

Inspired by the violent culture of the Texas Rangers, the US Border Patrol was established in 1924 as a relatively small agency with little oversight and limited domain. Existing only along the US-Mexico border, the agency’s early goal was to enforce immigration restrictions.

Today, with more than 60,000 employees, seemingly endless jurisdiction, increasingly sophisticated use of surveillance technology, and a continued lack of oversight, the US Border Patrol has become one of the largest — and most threatening — enforcement agencies in the world.

On July 1, 2020, former acting secretary of Customs and Border Patrol Mark Morgan tweeted that the agency was working alongside local law enforcement across the nation to protect cities amid protests of George Floyd’s murder by Minneapolis police officer Derek Chauvin. “As a federal law enforcement agency, it’s our duty and responsibility to respond when our partners request support,” he asserted on Twitter.

Soon after, videos surfaced online of armed men with few official markings other than the word “POLICE” written across their clothing hauling away Black Lives Matter protesters from the streets of Portland, Oregon. As later evidence would show, these mysterious agents came from the Border Patrol. Far from the border and with authority beyond the confines of the Constitution, including the power to carry out unwarranted stops and interrogations, the Border Patrol’s presence in Portland represented a further advancement of the agency’s mission to become a national police force.

In his recent book Nobody Is Protected: How the Border Patrol Became the Most Dangerous Police Force in the United States, political geographer Reece Jones tells the story of how the US Border Patrol developed into the powerful, lawless agency it is today. While historians have previously provided excellent historiography of the Border Patrol, the narrative in Jones’s book urges an imperative question for immigrants’ rights activists and all Americans alike: For how long are we willing to allow the Border Patrol to exert and expand its extraconstitutional power?

In the following interview with Jones, he lays out the story of how a number of landmark but little-talked-about Supreme Court cases shaped the Border Patrol’s current powers, the role of race in the rise of the Border Patrol, the post–September 11 “border-industrial complex,” and why all Americans should pay attention to the dangerous possibilities of the Border Patrol’s expanding powers.


Conner Martinez

Race plays a major role in the development of the Border Patrol throughout your book. Could you explain how?

Reece Jones

The Border Patrol was established in 1924 to enforce the Immigration Act passed that year, often referred to as the National Origins Quota Act. That act was a law based on racial exclusion. The people who wrote it were drawing on eugenics and race science, and it was meant to prevent nonwhite people from entering the United States and to orient immigration toward Northern Europe. The Border Patrol was established two days after that law went into force, so the original purpose of the agency was as a racial police force whose job was to locate nonwhite people entering the country and remove them. This role has continued through the present.

In Nobody Is Protected, I talk about how some key Supreme Court cases defined the parameters of what the Border Patrol can do. In two of those cases, United States v. Brignoni-Ponce in 1975 and United States v. Martinez-Fuerte in 1976, the Supreme Court ruled that the Border Patrol can use race as one of the primary criteria to stop individuals while on patrol. So we can see that the Border Patrol was founded as a racial police force and is allowed to continue racial profiling today. This has always been a key part of its ethos.

Conner Martinez

You just mentioned two Supreme Court cases. Multiple such cases play a prominent role in your narrative of the Border Patrol’s extraconstitutional power. What are these cases, and how did they shape the Border Patrol’s authority today?

Reece Jones

One of the interesting things about the Border Patrol is that upon its establishment, it was given really expansive authority. Agents were allowed to stop people without a warrant inside the United States. Eventually in the 1940s, this power was set within a hundred miles of borders and coastlines, allowing agents to both stop and search people without a warrant in this area.

This law was not put in front of the Supreme Court until the 1970s, when finally the contradiction between the Fourth Amendment’s protections against unreasonable search and seizure were weighed against the Border Patrol’s authorization to stop and search anyone in the border zone. In the 1973 case Almeida-Sanchez v. United States, which was about whether the Border Patrol could carry out searches anywhere in the border zone, the Supreme Court came within just a few weeks of deciding that yes, it could search any vehicle, but a justice switched his vote at the last minute, and the court decided searches needed probable cause just as in the case of the police.

In 1975 and 1976, the Supreme Court had two more cases dealing with making stops in the Border Zone. Something additional to note about the Brignoni-Ponce decision in 1975 is that it established that the Border Patrol could stop virtually any vehicle if they had at least two facts justifying the making of that stop. Race was one. In the Martinez-Fuerte case in 1976, it was then established that race alone can be used at a border checkpoint to send someone to a secondary inspection.

Conner Martinez

What exactly is the border zone?

Reece Jones

The original idea of the Border Patrol was that it would only operate at the border line. But the agents started to encroach into the United States in order to make apprehensions. So, in the 1940s, Congress revised the Border Patrol’s authorization to say that it could operate at a reasonable distance from the border. However, it didn’t specify how far.

Later in 1947, the Department of Justice released a simply routine interpretation of the laws in the federal register, and without any input or public debate, they set the reasonable distance as one hundred miles from any borders and coastlines, which is an extremely vast area that includes around two-thirds of the US populations and many of the largest cities in the country. New York, Washington, Boston, Seattle, and Chicago are all within that one-hundred-mile zone. Even a number of entire states are within that zone.

And what makes the zone significant is, again, the lower standards of evidence that the Border Patrol has in terms of stopping vehicles without probable cause and without a warrant. It can even set up checkpoints on roads deep within the United States.

Conner Martinez

During the protests of the police killing of George Floyd in Portland, Oregon, a series of videos came out showing mysterious detentions of protesters by heavily armed agents with few official markings. As it turns out, these were Border Patrol agents. What was the Border Patrol doing so far from the border in Portland? And is this something we can expect more of in the future?

Reece Jones

Something I highlight specifically in my book is that the Border Patrol has all of this sophisticated military gear and almost 20,000 agents in the field, but it has relatively little work to do when it comes to immigration. This makes it available to be deployed for other purposes.

During the protests, Donald Trump’s administration decided to use a “war on terror”–era law that says that the secretary of homeland security could assign federal officers to protect federal buildings. But the regulation is actually quite broad, because it says they can do investigations on-site and off-site for any felony cognizable under the law. This allowed the agents to police social justice protests and also grab people off the street in the middle of the night in unmarked vans in things that have nothing to do with immigration work.

The major concern then is that these laws are still on the books. And the Border Patrol is eager to do this kind of work. One of the alarms I’m trying to raise in my book is that these laws need to be fixed before a future authoritarian president comes into power and uses them even more expansively.

Conner Martinez

Part of this shift in the Border Patrol’s work has been about rebranding. In the years after September 11, the war on terror led to a rebranding of the Border Patrol as an agency focused on terrorism. Has this rebranding worked, and does the Border Patrol actually prevent terrorism?

Reece Jones

The Border Patrol will often issue press releases where it says that it has arrested someone at the border who is on the terrorism watch list, but often the people it finds have nothing to do with terrorism. It also tends to release press releases when it arrests someone with the same name as someone on the terrorist watch list, even when in reality it’s not the person who is on the watch list. So the Border Patrol claims that it does make a number of terrorism-related arrests at the border, but no significant prosecutions have happened based on arrests by the Border Patrol.

What we do see in the post–September 11 era is that the Border Patrol is doing a kind of repositioning. Prior to September 11, the Border Patrol was primarily focused on immigration and drug enforcement. But after the attacks, the atmosphere of fear allowed the Border Patrol to reposition itself as primarily a front line against terrorism. This resulted in a lot of money flowing to the Border Patrol, giving it access to more agents it could hire and access to much more military gear it didn’t previously have. This also coincides with the wars in Iraq and Afghanistan and the procurement of military gear that also ends up eventually in the hands of security services within the United States.

After September 11, we can see that the agency has transformed into a much more aggressive, violent organization, even though in practice it’s interacting with the same kinds of people as before. And who is it finding at the border? It’s encountering people who are coming to the country to work and increasingly finding families who are trying to apply for asylum. So instead of trying to evade the Border Patrol, these people often turn themselves in after they cross the border.

What the United States should then be investing in is aid to people who are on the move — social workers and others who can handle asylum claims and families in need, instead of the militarized force we are currently spending on. This leaves us not equipped in any way for dealing with what is actually going on at the border.

Conner Martinez

Where is support for the militarization and growth of the Border Patrol coming from?

Reece Jones

There has become a border-industrial complex. What we saw with the military — corporations donating to members of Congress, setting up factories in congressmembers’ districts that provide jobs and foster a cycle of military spending — we’re seeing with border security. The whole security industry has become extremely lucrative for corporations.

Additionally, the border is one of the main issues for the Right. This fear of immigration is often depicted in the racialized terms of the white-supremacist “great replacement” theory. It has become a motivating force for right-wing voters, with politicians on the Right then becoming more supportive of higher spending on border security, even if the crisis at the border they’re depicting doesn’t exist.

Conner Martinez

Why do you think the Border Patrol’s activities away from the border often fly under the radar of the US public?

Reece Jones

For a long time, the Border Patrol simply wasn’t that big. With so few agents, its work within the interior of the United States wasn’t able to affect many people’s lives. But after the rapid growth in the agency, it can now operate in many of the places they didn’t in the past. So I think more people are actually running into the Border Patrol in their daily lives.

A recent report on checkpoints has shown that from 2016 to 2020, 250 million vehicles passed through an interior checkpoint. That’s 50 million a year, which is a huge number of people who are subjected to a violation of their rights to be stopped and have their vehicles briefly seized in order to ask them questions about immigration — even though they’re driving on an American road in between two American towns.

We’re seeing more people come into contact with the Border Patrol and becoming aware of it. But the question is also in many ways why I wrote this book: to raise attention to these exceptions the Border Patrol has to the Constitution and the impact the Border Patrol has on both immigrants and, increasingly, US citizens alike.

Conner Martinez

Is there any constitutional authority within the border zone?

Reece Jones

Of course, the Constitution exists within the boundaries of the United States. But what we have seen is that Congress has authorized exceptions to it and the Supreme Court has decided to defer to Congress on those exceptions, providing the Border Patrol special authority to circumvent the law and make stops without a warrant or probable cause and to stop vehicles at checkpoints and ask anyone about immigration.

These exceptions have an impact on US citizens and immigrants. They are directly related to the increases in deaths at the border, where border crossers have to go past the one-hundred-mile mark to get out of the border zone, and they result in many drug-related citations for American citizens at interior checkpoints. What they don’t serve is any deep immigration enforcement purpose.

Over 50 percent of the Border Patrol’s immigration apprehensions happen at the border. We need to reconsider this vast authority that has been given to the Border Patrol’s expansive zone at the border before the power expands even further. We’ve seen a dramatic expansion of its activities over the last fifty years, and it only makes sense to ask what it will look like in another fifty years. How far into the United States will it be operating? How will it be setting up its checkpoints? Because right now, it can do all of this in an area that includes two-thirds of the nation’s population. All of this needs to be reconsidered before it expands those powers.