Border exceptionalism in the era of moving borders.

• Author: Chacon, Jennifer M.

ABSTRACT

Historically, the courts have indicated that the tasks of enacting and enforcing immigration laws are federal functions. The federal agents who police the nation's borders have exceptionally broad policing authority--an authority that the courts have justified based on the special need to secure the nation's borders from a variety of threats. Part I of this essay will summarize the Supreme Court jurisprudence that has endorsed exceptionally broad policing powers not only at international borders, but also in a much wider swath of immigration enforcement contexts. Over the past decade, as a consequence of the expansion in the number of immigration enforcement agents at the federal level and the rapidly increasing number of sub-federal agents involved in immigration control efforts, immigration enforcement has become a part of the everyday fabric of policing in the United States. Therefore, after summarizing the broad powers granted to police in the immigration enforcement context as a result of the Court's jurisprudence of border exceptionalism, Part II of this essay will consider the implications of this jurisprudence in light of the recent trends that have transformed the nature and scope of immigration policing. This Part concludes that existing law is insufficient to protect against racial profiling and unreasonable police arrests and detentions, and that the implications of these recent developments extend well beyond the sphere of immigration enforcement.

TABLE OF CONTENTS Abstract Introduction I. A Brief History of the Supreme Court's Border Exceptionalism A. Searches At--And Near--The Border B. Border Exceptionalism Migrates to the Interior II. The Expansion of Border Exceptionalism (and What to Do About It) A. Increasing Immigration Enforcement and the Spread of Border Exceptionalism B. What is to be Done About Border Exceptionalism? INTRODUCTION

Immigration law and policy have entered a period of radical upheaval. Different people have different perspectives as to what constitutes the "watershed" moment for immigration law in recent history, but scholars have tended to focus on several key transformative events, including: (1) The criminalization of hiring unauthorized workers, which was the product Immigration Reform and Control Act of 1986; (1) (2) The increasing militarization of the U.S.-Mexico border region, which spiked in the early 1990s and has continued through to the present; (2) (3) The radical Congressional overhaul of immigration law in 1996, which, among other things, led to a vast increase in the grounds for the removal of lawful permanent residents and the scope of mandatory administrative detention for noncitizens in removal proceedings, while simultaneously stripping courts of jurisdiction to hear many related legal claims; (3) (4) The reorganization and expansion of the immigration enforcement bureaucracy following the terrorist attacks of September 11, 2001; (4) (5) The rise in the use of criminal prosecutions in an effort to "manage migration through crime;" (5) and (6) The rise of subfederal law enforcement participation in immigration enforcement. (6)

But there are other factors that have contributed to the current policy failures in the immigration sphere. These are not events, but rather critical failures to enact changes in law and policy, including: (1) A failure to expand and improve the Executive Office of Immigration Review (EOIR) and the Board of Immigration Appeals to deal with the growing administrative caseload generated by the increase in removals and the expansion of immigration detention; (7) (2) A failure to enact comprehensive immigration reform, or even piecemeal legislation, such as the Development, Relief and Education for Alien Minors Act (DREAM Act), to address the legal status of (at least some of) the more than ten million unauthorized migrants living and working in the United States; (8) (3) A failure to systematically address the United States' economic and social policies that have spurred emigration from Mexico; (9) (4) A failure to reexamine policies on racial profiling in immigration enforcement even as the number of actors involved increases and their overall expertise in immigration law decreases; (10) and (5) A failure to revise quotas for legal immigration and to revisit the allocation of nonimmigrant visas to take into account the realities of the modern economy. (11)

The Fordham Urban Law Journal asked each of the contributors to describe a specific element of the U.S. Immigration system that needs to be fixed, or a specific change to the system that needs to be made. The foregoing list of policy decisions and policy failures--which is not nearly complete--hints at how much needs to be done to create a rational, workable, economically sensible, and humane immigration policy. Numerous scholars and think-tanks have stepped into the fray, devising various comprehensive reform proposals aimed at achieving these goals. The notion of settling on one "fix" for the immigration system is truly daunting in the face of the many policy errors and failures that have brought us to the present situation. Fortunately, there are many authors addressing many different facets of the problem in this publication. Therefore, this essay does not purport, nor could it hope, to be a roadmap to comprehensive reform.

Instead, this essay will focus on the growing crisis in policing that is emerging as a result of the above-mentioned policies and policy failures. Historically, the courts have indicated that the tasks of enacting (12) and enforcing (13) immigration laws are federal functions. The federal agents who police the nation's border (14) have exceptionally broad policing authority--an authority that the courts have justified based on the special need to secure the nation's borders from a variety of threats. (15) Part I of this essay summarizes the Supreme Court jurisprudence that has endorsed broad policing powers, not only at international borders, but also in a much wider swath of immigration enforcement contexts.

Over the past decade, as a consequence of the increase in the number of immigration enforcement agents at the federal level and the rapidly expanding number of sub-federal agents involved in immigration control efforts, immigration enforcement has become a part of the everyday fabric of policing in the United States. Therefore, after summarizing the broad powers granted to government officials engaged in immigration enforcement as a result of the Court's jurisprudence of border exceptionalism, Part II of this essay considers the implications of this jurisprudence in light of recent trends that have transformed the nature and scope of immigration policing. (16) Part II concludes that existing law is insufficient to protect against racial profiling and unreasonable police arrests and detentions. This has law enforcement implications that extend well beyond the sphere immigration enforcement.

The systematic and significant changes in migration policing have been largely ignored in the public policy debate over immigration. Plenty of pundits and commentators have been willing to disparage Arizona's recently enacted, and even more recently partially enjoined, (17) S.B. 1070 (18) as a law that effectively requires anyone who might look like an immigrant to carry papers to avoid hassle and even criminal charges. (19) What most of these critics fail to acknowledge is that, with or without the Arizona law, we have become a nation that routinely relies on policing practices that require certain populations to be ready to document their belonging. We have not reached this point through the systematic development of laws and policies that would ensure the fair and efficient administration and enforcement of the law. Instead, we have reached this state of affairs in an ad hoc fashion that has bypassed broad public debate. In concluding, I offer some thoughts on how to address the growing rights deficit attributable to border exceptionalism.

1. A BRIEF HISTORY OF THE SUPREME COURT'S BORDER EXCEPTIONALISM

   The Fourth Amendment to the Constitution places limits on the government's power to search and seize, specifying that,

   [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (20) These Fourth Amendment limitations on government investigations apply to government officials operating everywhere within the boundaries of the United States, (21) including at the border. (22) Subsection A explores how the Supreme Court has applied the Fourth Amendment when evaluating searches and seizures that occur at and near the international border. Subsection B focuses on how the Court's understanding of the government's "strong" interest in controlling the border has migrated away from the border and into all aspects of immigration policing.

   1. Searches At--And Near--The Border

      While the Fourth Amendment governs interactions between government officials and civilians at the border, as a practical matter, the constraints on official actors at the border are less stringent than would be the case in many other contexts. This is because the test for Fourth Amendment "reasonableness" turns on the balance between the government's interest and the individual's right to privacy. In the context of border policing, which the courts have linked to the protection of sovereignty and the sanctity of the nation's boundaries, (23) the courts have treated the government's interest as extraordinarily strong. (24) Thus, courts have a more permissive standard for what constitutes a reasonable action on the part of a government actor in the context of policing the international border than in many other...