Courts Abet The Erosion Of Our Rights By Deferring To The Executive On Immigration
In my last post, I discussed the fact that courts have been unwilling and unable to protect our right to vote. In a similar vein, the courts have also allowed the significant erosion of our First Amendment rights of association, our Fourth Amendment rights of unreasonable search and seizures, and the Fifth and Fourteenth Amendment rights of due process. Under Trump, the most blatant abusers of those rights have been ICE and CBP whose victims are primarily undocumented immigrants unaware and unable to exercise those rights.
Last week, ICE agents entered a farm in upstate New York and arrested a worker at that farm who apparently had proper work documentation and had been paying taxes. The ICE agents apparently did not identify themselves to the owner of the farm and refused to provide any warrant or other paperwork that authorized them to be on the farmer’s property. They then ignored the owner’s request to get off his property without a proper warrant and took away the farm worker in handcuffs. The farm owner continued to protest that the ICE agents did not have a proper warrant to detain his worker and attempted to capture what was going on with his phone. The ICE agents promptly ripped the phone from his hands, smashed it on the ground, handcuffed the farmer, and threatened to arrest him for interfering with a federal investigation. Eventually, they released the farmer and drove with the farm worker under custody.
The Southern Poverty Law Center has documented ICE agents entering homes in Georgia without a warrant or probable cause by impersonating police officers searching for a suspect. In Portland, Oregon, plain-clothed ICE agents entered a home without a warrant or probable cause in order to arrest a person who was a contractor working on remodeling the home. When confronted by another worker that they had no right without a warrant to be in the house, the officers refused to leave or to wait for the homeowner to arrive. As it turned out, the arrest was apparently a “mistake” and the contractor was released form ICE custody within hours.
This illegal behavior by ICE has been going on before Trump arrived. Back in 2012, ICE arrested an Americans citizen, holding him for seven days in a detention center before releasing him hours away from his home with $10 to his name. But the pace of these abuses has certainly increased under the Trump’s anti-immigrant crackdown, regardless of their lack of criminal past or DACA protected status.
The CBP is no better than ICE. Border Patrol agents have recently been captured boarding buses and demanding identification from anyone on board they deem suspicious, which generally involves racial profiling. In another case, CBP prevented passengers from exiting a commercial airline flight unless they provided their “documents”. CBP has also dramatically increased its searches of phones belonging to those people entering and even exiting the country, whether American citizens or not. Most of those searches have far less to do with any specific suspicion but are primarily targeted at people with Muslim or Hispanic sounding names or looks.
Just like Kris Kobach, the CBP has openly defied court orders, specifically in the immediate aftermath of the rescission of the Muslim ban in the first few days of the Trump administration. It is all part and parcel of the increasing belief among the officers and leadership of CBP and especially ICE that they represent a law unto themselves when it comes to controlling the border and dealing with illegal immigration.
All of the problems with ICE and CBP relate to the fact that immigrants are obviously not entitled to the same rights of citizens. But those problems have been exacerbated by the willingness of the courts to limit the rights of persons in this country and to loosen the restriction of what is considered “unreasonable” in the era of the war on terrorism and now Trump’s war on gangs.
There is no doubt that the warrantless searches that ICE conducted are unconstitutional. The larger problem with ICE is that the de facto assumption once you are detained is that you are an undocumented immigrant. As such, there is no constitutional requirement for a probable cause hearing or access to a lawyer. As was the case for the US citizen who was illegally detained by ICE, this means that detainees are often held for weeks or months before they can even challenge their detention.
The issues with CBP go even deeper. The need for a warrant does not exist at the border, for obvious reasons. The bigger issue is that the Department of Justice decided in 1953 that the actual border zone where CBP could operate extends 100 miles inland from any external boundary. However, all basic constitutional protections apply within that outer 75 mile limit as opposed to what occurs at the physical border and within 25 miles of it. For instance, the CBP cannot stop anyone within that 75 mile zone without some reasonable suspicion. In addition, CBP is not allowed to search vehicles or phones within that zone without a warrant or some probable cause. A Supreme Court ruling does allow the CBP to set up random checkpoints within that 100 mile zone that allows solely for brief questioning into residence status.
There are three big issues with that 100 mile zone. First, that zone includes two-thirds of the entire US population, meaning that most of the individuals in this country are theoretically subject to be stopped by the CBP. Second, CBP seems unable to recognize that the 100 mile zone is not the same as the physical border itself and that most constitutional protections still apply. When CBP boards buses in Maine, New Hampshire, and upstate New York and only asks Hispanic and Muslim looking people for their identification, it is racial profiling and a clear violation of the Fourth Amendment. There is no reasonable suspicion that random Hispanics or Muslims would be in the country illegally 100 miles from the Canadian border. CBP also illegally conducts searches of vehicles at these checkpoints as well.
Lastly, CBP does not even recognize that its authority stops at the 100 mile limit, but claims it can be extended by order of the commissioner. In fact, in several jurisdictions, federal courts have ruled that CBP actions beyond the 100 mile zone are legal though that determination has not been confirmed by the Supreme Court.
On top of this, there are the scores of complaints against ICE and CBP officers for verbal and physical abuse that the agencies are regularly forced to settle. The abuses while in detention are even worse, including the rape of women and children. Just this week, a trial wrapped up involving a CBP officer who shot a boy on the Mexican side of the border eight times in the back and in the head, killing him. The boy was apparently throwing rocks at the border wall in an attempt to distract CBP officers as part of a smuggling operation. As is the usual case when law enforcement kills almost anyone under any circumstances, the officer was acquitted on murder charges and the jury even deadlocked on manslaughter charges.
The bigger issue with the erosion of our basic constitutional rights when it comes to border control and undocumented immigration is that the courts defer to the executive branch when it comes to these issues. Part of that is due to the broad constitutional authority given to the executive branch as well as mandates passed by Congress. But it also relies on the assumption that the courts do not have the expertise and depth of knowledge to deal with the issue. As Ilya Somin notes, this “special deference” has helped empower the government to enact cruel and racist policies, such as the Chinese Exclusion Act and the exclusion of many Jewish refugees fleeing Nazism in the 1930s”. Reports indicate that the Supreme Court will go down this same path with the multiply-revised Mulsim ban. It also doesn’t help when judges themselves engage in unconstitutional racial profiling as happened in Pennsylvania the other day.
Now, with Trump essentially expanding the use and power of both ICE and CBP, legal American citizens and residents are more and more likely to get caught up in the abuses by those agencies. In addition, the constitutionals rights of both citizens and immigrants are constantly and consistently being eroded. Combined, the two agencies employ nearly 80,000 people, making it the largest internal police organization in our country, bigger than all the others combined, with a jurisdiction that encompasses two-thirds of our population. There is no effective internal monitoring or oversight inside the agencies. And the courts will only address the most specific, egregious violations by agency employees and are unwilling to deal with the constant constitutional violations due to the assumption of deference.
Considering the authoritarian tendencies of our current President and his administration, the fact that the conservative Supreme Court is more interested at expanding corporate rights at the expense of individual rights, and the existence of a federal police force that acts with impunity and in violation of our core constitutional principles and is seemingly answerable only to the President, you would think that the black helicopter and “the government is gonna take my guns” crowd would be concerned. But I think we all know why they aren’t – they are not the ones being profiled. Yet. But is should be a concern for all of us. More often than not, democracy dies slowly, constantly whittled away and rights that we all assumed we had are difficult to recover once they are lost.
