Trump’s paramilitary units trained at the border to assault the protesting mothers.

Federal violence against protesters in Portland, Oregon, has intensified this week, with federal officials wearing military gear and helmets wearing batons and tear gas against mothers protesting Tuesday night. For the past week, uninvited and heavily militarized Customs and Border Protection officers have been violently arresting and detaining protesters. On Monday, the president promised to expand this operation to Chicago and other Democratic-majority cities. CBP officers are normally tasked with guarding the border. So why are they in our cities, potentially violating Portland’s First, Fourth, and Fifth Amendment Rights in a way that clearly has nothing to do with enforcing immigration law? Unfortunately, the court decisions created loopholes that have emboldened CBP’s illegal behavior against undocumented immigrants at the border, abuses that President Donald Trump is now exporting to the interior of the country against U.S. citizens.

The White House has deployed the Border Patrol, alleging that its presence is necessary to “protect court buildings” and monuments, and to enforce criminal law in American cities. CBP is normally tasked with enforcing immigration law and detaining undocumented immigrants. It is unclear why the White House enlisted CBP on the current mission. CBP and the Department of Homeland Security are generally better funded than federal law enforcement agencies in the interior, such as the FBI. However, CBP has a very different mandate and culture. The tactics now denounced as indicative of fascism or authoritarianism have been implemented by CBP for years. Authorization by federal authorities in an area that is generally within the scope of state and local law may be a symbolic display of federal strength and it is unclear what these actions are intended to accomplish in addition to dangerous political theater.

After September 11, when immigration, and specifically the southern border, began to present itself as a threat to national security, the border became increasingly militarized and the agency’s influence grew exponentially. An expansive definition of terrorism helped justify doubling the size of the agency from 2003 to 2019, along with its budget. In 2020, CBP’s budget was $ 18.2 billion, an increase of almost 20 percent from 2019 alone and tripled what it was in 2003.

CBP generally operates primarily in the border region: its normal legal authority is limited to 100 miles from the borders of the United States. Critically, federal courts have tended to view the border as a place where the Constitution works differently. It is 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 the least robust procedural protections. Additionally, targets for CBP officers are often undocumented immigrants, many of whom have just entered the United States or are seeking to enter the United States.

The CBP patrol border has received a different constitutional status, especially regarding the Fourth Amendment. And it is the Fourth Amendment that is most implicated by federal agents who detain protesters and put them in trucks for questioning. Both travelers and the courts have accepted stops without suspicion and prohibited seizures elsewhere when they occur near the border. This typically occurs at border checkpoints, but CBP has taken wide liberty to extend those checkpoints almost anywhere within 100 miles of the US border, a vast space that includes many major cities in the US the Supreme Court has even gone so far as to explicitly allow racial profiling at the border, and the agency itself was exempt when the Obama Justice Department attempted to ban racial profiling by the policeman.

Because CBP participates in the enforcement of “civil” immigration law, many of the protections that the public takes for granted under criminal law simply have not been applied to its interactions with undocumented immigrants. Court orders are not necessary for arrests, and Miranda’s warnings are rarely provided.

Unfortunately, the Supreme Court itself this term alone indicated that undocumented immigrants who recently crossed the border have fewer due process rights, and the court denies habeas corpus rights to asylum seekers who complain of unconstitutional process. Even before this decision, some federal district courts ruled that undocumented immigrants do not have Fourth Amendment rights.

What may be more disturbing is how difficult it has been to hold the agency accountable even if it violates the law. Earlier in the period 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 was without remedy under the law. Although a police officer could be sued under a section of the federal law known as Section 1983, there was no such mechanism for the Mexican parents of the murdered teenager.

CBP has enjoyed the legal authority to treat individuals and communities on the border with unfettered force of the Constitution and without legal liability. It is tragic, but perhaps not surprising, that they are now behaving in the same reckless and lawless manner in our cities and against people who are used to constitutional protections. As outrage increases over these tactics used against protesters, the public must demand that these practices end everywhere, including on the border.

In early June, there was great outrage at the idea of ​​using the military to carry out what are essentially police operations and crowd control. Using CBP is perhaps an even worse alternative. The power of the federal police was viewed with caution by the founders, and the federal authority for police crime has been wisely limited in scope and has required explicit authorization from Congress. The 10^th The constitutional amendment specifically designates all powers not designated by the federal government for states and localities, and “police powers” have always been viewed as the strict domain of county and state criminal law enforcement agencies .

Whether recruiting CBP to participate in law enforcement in our cities is legal will be an issue that the courts will answer, but in the meantime, city residents will face the practical implications of this choice by law enforcement officials the Border Patrol, untrained and unaccustomed to accountability.

Like Yale historian Timothy Snyder, the author of On Tyranny: Twenty Lessons of the Twentieth CenturyHe told Michelle Goldberg of the New York Times: “This is a classic form of violence in the authoritarian regime.” When there have been fascist escalations in the past, “people who are getting used to committing acts of violence on the border are led to commit acts of violence against people inside.”

Perhaps, instead of bringing the border, and its illegality, to our cities, we should bring the democratic rule of law and constitutional rights to the border.

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