The Unconstitutional Law Allowing Federal Troops in Coastal Cities

by

       M. Richard Maxson

       In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. The Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops and searches. According to the government, however, these basic constitutional principles do not apply fully at our borders. Federal law allows certain federal agents and military, including Homeland Security, to conduct search and seizures within 100 miles of the border into the interior of the United States. 

 

      The doctrine is not regarded as an exception to the Fourth Amendment, but rather to its requirement for a warrant or probable cause. The government’s view is that the expectation of privacy less at the border or it’s cities. The country's interests at the border are balanced against the Fourth Amendment rights of entrants. This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the Fourth Amendment's proscription against "unreasonable searches and seizures". Pursuant to this authority, officers may generally stop and search the person and property of anyone at random, or even based largely on ethnic profiles without probable cause or a warrant. This, to originalists, is a violation of the Fourth Amendment, but the Supreme Court has clearly and repeatedly confirmed that the border search exception applies within 100 miles of the border of the United States. 

      Roughly two-thirds of the United States' population lives within the 100-mile zone—that is, within 100 miles of a U.S. land or coastal border. That's about 200 million people. Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area. Nine of the ten largest U.S. metropolitan areas, as determined by the 2010 Census, also fall within this zone: New York City, Los Angeles, Portland, Seattle, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose. This is why you are seeing Federal agents in major cities. IT IS LEGAL.

      Many people think that border-related policies only impact people living in border towns like El Paso or San Diego. The reality is that Border Patrol's interior enforcement operations encroach deep into and across the United States, affecting the majority of Americans. Even in places far removed from the border and/or coastline, deep into the interior of the country, immigration officials enjoy broad—though not limitless—powers. Specifically, federal regulations give multiple U.S. agencies the authority to operate within 100 miles of any U.S. "external boundary." There are limits in this 100-mile zone. However, agents routinely ignore or misunderstand the limits of their legal authority in the course of individual stops, resulting in violations of the constitutional rights of innocent people. These problems are compounded by inadequate training for Border Patrol agents, a lack of oversight by the U.S. Department of Homeland Security

      Under this “law” many violations of constitutional rights have occurred. Federal agents are stopping, interrogating, and searching Americans on an everyday basis and often in ways that our Constitution does not permit. Also, the Border Patrol rejects any geographic limitation on agents' authority. Unfortunately, at least two federal circuit courts condone Border Patrol operations outside the 100-mile zone, federal regulations and Supreme Court precedent notwithstanding.

      No matter what the agents think, our Constitution applies throughout the United States, including within this “100-mile border zone.” The expansion of government power both at and near the border is part of a trend toward expanding police and national security powers without regard to our most fundamental Constitutional rights. If Americans do not continue to challenge the expansion of federal power over the individual, we risk forfeiting the fundamental rights and freedoms that we inherited—including the right to simply go about our business free from government interference, harassment and abuse.