Two-Thirds of Americans Live in ‘Constitution-Free’ Zone
Enforcing our immigration and drug laws comes at the cost of fundamental rights.
Defense One reports “The Border Patrol’s ‘Constitution-Free’ Zone Is Probably Larger Than You Think.” Considering that I didn’t realize we had a Constitution-free zone, they’re certainly right. The crux:
In the “border zone,” different legal standards apply. Agents can enter private property, set up highway checkpoints, have wide discretion to stop, question, and detain individuals they suspect to have committed immigration violations—and can even use race and ethnicity as factors to do so.
That’s striking because the border zone is home to 65.3 percent of the entire U.S. population, and around 75 percent of the U.S.Hispanic population, according to a CityLab analysis based on data from location intelligence company ESRI. This zone, which hugs the entire edge of the United States and runs 100 air miles inside, includes some of the densest cities—New York, Philadelphia, and Chicago. It also includes all of Michigan and Florida, and half of Ohio and Pennsylvania, according to a prior rough analysis by Will Lowe, a data scientist at MIT.
“It really is kind of a constitution-free zone,”says Patrick Eddington, a policy analyst who has been compiling data on border patrol’s internal checkpoints at the CATO Institute, a libertarian think tank. “I guess the best way to phrase it is that in this area, [border patrol agents] are being allowed to nullify people’s rights.”
According to critics, checkpoints and other internal operations in the 100-mile zone aren’t serving their intended purpose: Just 2 percent of CBP‘s total arrests of deportable non-citizens happened at checkpoints. And since 2010, far more people who had legal status and weren’t eligible for deportation were arrested this way. Meanwhile, individuals in this zone—citizen or otherwise—are at risk of having their Fourth Amendment rights violated by border patrol, critics say.
I’ve long known, of course, that borders are essentially Constitution-free zones. I lived in El Paso for eighteen months and crossed into Juarez on a few occasions. Studying Constitutional Law as an undergraduate, I learned that the Supreme Court had, not unreasonably, ruled that pretty much all searches conducted at our borders were “reasonable” under the 4th Amendment. As always, FindLaw summarizes this nicely:
‘That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.” 87 Authorized by the First Congress, 88 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops. 89 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis, 90 Terry protections as to the length and intrusiveness of the search do not apply. 91
Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. United States, 92 the Court held that a warrantless stop and search of defendant’s automobile on a highway some 20 miles from the border by a roving patrol lacking probable cause to believe that the vehicle contained illegal aliens violated the Fourth Amendment. Similarly, the Court invalidated an automobile search at a fixed checkpoint well removed from the border; while agreeing that a fixed checkpoint probably gave motorists less cause for alarm than did roving patrols, the Court nonetheless held that the invasion of privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent. 93 On the other hand, when motorists are briefly stopped, not for purposes of a search but in order that officers may inquire into their residence status, either by asking a few questions or by checking papers, different results are achieved, so long as the stops are not truly random. Roving patrols may stop vehicles for purposes of a brief inquiry, provided officers are ”aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that an automobile contains illegal aliens; in such a case the interference with Fourth Amendment rights is ”modest” and the law enforcement interests served are significant. 94 Fixed checkpoints provide additional safeguards; here officers may halt all vehicles briefly in order to question occupants even in the absence of any reasonable suspicion that the particular vehicle contains illegal aliens.
Only a couple of the cited cases were decided after I graduated and I was aware of them. The absurd broadness of the right for police to search persons in automobiles notwithstanding, I’ve largely accepted this standard as reasonable.
But the current practice—which predates the Trump administration’s crackdown on enforcement—goes well beyond this. Back to Defense One:
At its core, the law allows immigration officers to access private lands—except “dwellings”—within the 25 air miles (28.7 miles) of the border.
Congress also authorized CBP to set permanent and temporary checkpoints, patrol highways, and board buses, trains, and other vehicles “within a reasonable distance” of the U.S. border, which regulations in 1953 set as “up to a 100 miles.”
These regulations were made to allow border officers to intercept unauthorized entrants who had bypassed checks at ports of entry.
“The vast majority of CBP personnel and assets are stationed at the border itself; however, in our mission to safeguard America’s borders, we have a responsibility to track routes into the interior of our country for those who evade capture,” CBP spokesperson Dan Hetlage told CityLab via email.
CBP can set up checkpoints anywhere it wants within the 100-mile zone and “can temporarily seize all vehicles that drive up to an immigration checkpoint… to conduct an immigration inspection,” a spokesperson said. If they feel they have probable cause, they can search the vehicles. Agents at checkpoints also have wide discretion to pull people aside for a secondary inspection, which could last, per some accounts, for up to 40 minutes.
Agents in patrol cars are permitted to stop motorists in the zone based on suspicion that they have committed an immigration offense, and can also check individuals’ papers on buses, trains, and airplanes. CBP says the transit checks are conducted “as consensual encounters.” That latter aspect of CBP powers has come to the fore in recent months, after videos surfaced showing CBP agents checking papers on Greyhound buses, Amtrak trains, and airports seemingly far from the Southern border. (The ACLU has recently launched a campaign asking Greyhound to deny CBP the permission to board their buses.)
But these sorts of checks aren’t new. In 2013, a study released by NYU Law’s Immigrants’ Rights Clinic found that between 2006 and 2010, border patrol agents in Rochester regularly checked people at transit hubs, and in the process, had arrested 300 people with legal status—international students, refugees, and other immigrants included. (The report also mentioned that agents were promised Home Depot gift cards and other incentives in exchange for amping up arrests.)
Essentially, for the purposes of border enforcement, we’ve redefined “probable cause” as “looks Hispanic.” Combined with longstanding SCOTUS rulings that people in motor vehicles have essentially no expectation of privacy, this makes much of the country “Constitution-free.”
There has been only modest pushback against this:
So what criteria do agents use to decide to stop a motorist or traveller? Can they use a person’s race or ethnicity? Yes, as long as it’s not the only factor, according to one Supreme Court ruling from the 1970s. In 2000, however, the 9th Circuit court of appeals, which covers the border states of California and Arizona, rejected ”any reliance on Hispanic appearance or ethnicity” in making roving patrol stops, citing the changing demographics of the country. It remains to be seen whether this precedent will be applied elsewhere.
“That’s really significant because many of the border enforcement mechanisms just don’t catch up to the reality of life at the border,” ACLU‘s Rickerd said.
CBP and DOJ guidance also allow border patrol agents to profile under certain conditions—a remarkable fact given that 72 percent of the U.S. minority population lives in the 100-mile zone. Some of the highest concentrations are in areas where the border patrol presence is the heaviest.
In fairness, we’re a continental nation with a two thousand mile-long border with a developing nation. Patroling that border effectively is next to impossible. To the extent that we wish to keep migrants from crossing that border in violation of our laws—and stem the flow of illicit drugs, too—there has to be some latitude given to authorities beyond hot pursuit. Effectively, though, that means choosing between enforcing those laws and living in a free society. At least, for non-white people living in vast swaths of the country.