Federal violence against protesters in Portland, Oregon, has escalated this week, with federal officers in military gear and helmets using batons and tear gas against protesting moms late on Tuesday night. Throughout the past week, uninvited and heavily militarized Customs and Border Protection agents have been violently seizing and detaining protesters. On Monday, the president promised to expand this operation to Chicago and other majority-Democrat cities. CBP agents are normally tasked with policing the border. So why are they in our cities, potentially violating the First, Fourth, and Fifth amendment rights of Portlanders in ways that clearly have nothing to do with enforcing immigration law? Unfortunately, court decisions created loopholes that have emboldened CBP’s lawless behavior against undocumented immigrants at the border, abuses that are now being exported into the interior of the country against American citizens by President Donald Trump.
The White House has deployed the Border Patrol, claiming that their presence is needed to “protect court buildings” and monuments, and enforce criminal law in American cities. The CBP is normally tasked with enforcing immigration law and apprehending undocumented migrants. It is unclear why the White House enlisted CBP in the current mission. CBP and the Department of Homeland Security more broadly are better-funded than interior federal law enforcement agencies, like the FBI. However, CBP has a very different mandate and culture. The tactics that are now being decried as indicative of fascism or authoritarianism have been deployed by the CBP for years. The authorization of federal authorities in a realm that is generally in the purview of state and local law enforcement may be a symbolic show of federal force and it’s unclear what these actions are meant to achieve other than dangerous political theater.
After Sept. 11, when immigration, and specifically the Southern border, began to be portrayed as a national security threat, the border became increasingly militarized and the agency’s influence grew exponentially. An expansive definition of terrorism helped justify the agency’s doubling in size from 2003 to 2019, along with its budget. In 2020, the CBP budget was $18.2 billion, a nearly 20 percent increase from just 2019 and triple what it was in 2003.
Ordinarily, the CBP works primarily in the border region—their normal statutory authority is confined to within 100 miles of the borders of the United States. Critically, federal courts have had a tendency to view the border as a place where the Constitution works differently. It’s also important to note that CBP officers normally enforce civil immigration law, not criminal law. Constitutional protections also work differently when it comes to enforcing civil law, with one hallmark being less robust procedural protections. Further, the targets for CBP officers are most often undocumented migrants, many of whom either just entered the United States or are seeking entry into the United States.
The border that CBP patrols has been given a different constitutional status, especially with respect to the Fourth Amendment. And it is the Fourth Amendment that is most implicated by federal agents detaining protestors and putting them into vans for interrogation. Suspicion-less stops and seizures forbidden elsewhere have been accepted by both travelers and courts when they occur near the border. These ordinarily occur at border checkpoints, but CBP has taken wide latitude in extending those checkpoints nearly anywhere within 100 miles of the U.S. border, a vast space that includes many major U.S. cities along both American coastlines and the Northern and Southern borders. The Supreme Court has even gone so far as to explicitly allow for racial profiling at the border, and the agency itself was exempt when the Obama Justice Department tried to ban racial profiling by law enforcement.
Because the CBP engages in “civil” immigration enforcement, many of the protections that the public takes for granted under criminal law simply have not applied to their interactions with undocumented immigrants. Judicial warrants are not needed for arrests, and Miranda warnings are rarely, if ever, provided.
Sadly, the Supreme Court itself just this term indicated that undocumented migrants who recently crossed the border have fewer due process rights, with the court denying the right of habeas corpus to asylum-seekers who complain of an unconstitutional process. Even before this decision, some federal district courts ruled undocumented migrants do not have Fourth Amendment rights at all.
What may be most disturbing is how difficult it has been to hold the agency accountable even when it does violate the law. Earlier in the term that just ended, the Supreme Court ruled that a CBP agent could not be sued civilly, even when an officer shot and killed a teenager in cold blood across the Mexican border. The court ruled that the CBP officer’s constitutional violation had no remedy under the law. While a police officer could be sued under a section of federal law known as Section 1983, no such mechanism existed for the Mexican parents of the murdered teenager.
The CBP has enjoyed legal authority to treat people and communities at the border with force untethered from the Constitution and without legal accountability. It is tragic, but perhaps unsurprising, that they are now conducting themselves in the same reckless and lawless manner in our cities and against people who are accustomed to constitutional protections. As outrage over these tactics used against protesters grow, the public should demand these practices be ended everywhere, including at the border.
Back in early June, there was considerable outrage over the idea of using the military to conduct what are essentially police operations and crowd control. The use of the CBP is perhaps an even worse alternative. The federal police power was viewed with caution by the founders, and federal authority to police crime has wisely been limited in scope and has required explicit congressional authorization. The 10th Amendment of the Constitution specifically designates all powers not designated to the federal government to the states and localities, and “police powers” have always been deemed to be the strict purview of state and county criminal law enforcement agencies.
Whether the conscription of the CBP to engage in law enforcement in our cities is lawful will be an issue the courts will answer, but in the meantime, the practical implications of this choice will be felt by city residents confronted by officers from the Border Patrol, untrained and unused to being held accountable.
As Yale historian Timothy Snyder, the author of On Tyranny: Twenty Lessons From the Twentieth Century, told the New York Times’ Michelle Goldberg: “This is a classic way that violence happens in authoritarian regime .” When fascistic escalations have happened in the past, the “people who are getting used to committing violence on the border are then brought in to commit violence against people in the interior.”
Perhaps instead of bringing the border—and its lawlessness—to our cities, we should bring democratic rule of law and constitutional rights to the border.
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