A year after the end of World War II, Congress quietly amended the Immigration and Naturalization Act to grant border agents wide latitude to interrogate people they suspected were in the country illegally, provided that the agents were “within a reasonable distance from any external boundary of the United States.” Congress left it up to the Justice Department to determine what “reasonable distance” meant, and in 1953 Atty. Gen. Herbert Brownell Jr. set it at 100 miles. There was no public discussion of why he picked that distance, and if there was an internal discussion the details are buried deep in the National Archives.
Yet even at the time of the 1946 amendment, members of Congress raised concerns about granting such extraordinary power to border agents to set up checkpoints, to stop people on a mere suspicion and to freely enter private lands (though not buildings) within 25 air miles of the border. But the desire to crack down on illegal immigration won out.
Courts later concurred, ruling that the government’s interest in enforcing immigration laws outweighed 4th Amendment protections against “unreasonable searches and seizures.” They allowed agents to question someone if they had a “reasonable suspicion” that the person might be here illegally, rather than the probable cause standard used in criminal cases. That set the table for the current Border Patrol practice of maintaining three dozen permanent checkpoints and dozens more temporary checkpoints on highways within 100 miles of the southwest border, with additional checkpoints similarly scattered in the northern tier of states.
The government doesn’t keep track of how many cars it stops, but Harper’s magazine recently reported that checkpoint agents “interact with more than 27 million people annually” — an astoundingly large number. According to a General Accounting Office report last year, the Border Patrol made only 2% of its arrests at the checkpoints but 43% of its seizures of marijuana and other contraband there, with 40% of the seizures coming from U.S. citizens with an ounce or less.
Two out of 3 people in the U.S. live within the 100-mile zone, which extends from all boundaries, not just the land borders with Mexico and Canada.
In 2013, the Center for Investigative Reporting discovered that roughly 8 out of 10 people arrested for drug possession at checkpoints in the Big Bend, Texas, Border Patrol sector between 2005 and 2011 were Americans traveling through the state, not smuggling drugs from Mexico. The vast majority of drug cases were turned over for local prosecution.
The relatively small number of undocumented migrants caught at the checkpoints, combined with the high number of American citizens being charged with drug possession in stops local police couldn’t make on their own, raise significant questions about whether the “reasonable distance” standard enables what seem to be clear 4th Amendment violations. American citizens getting queried by Border Patrol agents scores of miles from the border should not be arrested for crimes the government otherwise would not have known about.
In fact, this year a New Hampshire judge ruled that drugs confiscated from 16 people at a checkpoint 90 miles from the border could not be used as evidence. “While the stated purpose of the checkpoints in this matter was screening for immigration violations,” Judge Thomas A. Rappa Jr. wrote, “the primary purpose of the action was detection and seizure of drugs.” The balance of interests the courts have cited in allowing such checkpoints crumbles when comparing the number of valid immigration arrests against the number of drug arrests of American citizens.
Two out of 3 people in the U.S. live within the 100-mile zone, which extends from all boundaries, not just the land borders with Mexico and Canada. Oddly, Lake Michigan is considered a border even though its coast comprises three states and no foreign nations, which means the entire state of Michigan and sections of Indiana and Illinois are within the zone. Here in California, most of Interstate 5 lies within 100 miles of the coast. That’s not what people typically think of as the border. Outrage by drivers stopped at mostly Southwest checkpoints has fueled a small cottage industry on YouTube.
So what is a “reasonable distance?” One mile? Ten miles? We’re sure analysts can offer a more reasonable line than 100 miles. Sens. Patrick Leahy (D-Vt.) and Patty Murray (D-Wash.) have introduced a bill to limit checkpoints to within 25 miles of the border and confine warrantless entry to land within 10 miles. That seems like a reasonable starting point for discussion. But the current standard grants way too much power to the government to interfere in private lives — something that should outrage civil libertarians regardless of political party.