The Constitution is supposed to be the law of the land. But for tens of millions of people living within 100 miles of a border in areas dubbed “Constitution-free zones,” protection of the law comes with severe caveats. In these areas, Customs and Border Patrol (CBP) officers are granted discretionary power to search cars, luggage, and personal property at all ports of entry, even if they do not reasonably suspect that a crime has been committed. If officers do have a reasonable suspicion, they also retain the right to seize and question individuals on their immigration status.
The legality of Constitution-free zones was codified by the Immigration and Nationality Act in 1953 and later upheld by the Supreme Court in 1973 under the reasoning of “national self-protection.” However, Constitution-free zones are an abject violation of Americans’ civil rights. The Supreme Court’s judgment to uphold these zones is an unjustified extension of the law enforcement powers granted to the executive branch. The establishment of Constitution-free zones and officers’ behaviors within them directly infringe upon some of our most basic liberties, and as a result, undermine the legitimacy of American democracy.
In the Supreme Court ruling Almeida-Sanchez v. United States, the Court ruled in favor of granting these discretionary powers to CBP cops for the “narrow purpose of enforcing immigration and customs laws, which entails ensuring that required duties are paid on imported goods and that harmful goods and people do not enter the country.” However, CBP’s authority is anything but narrow. In 2023, nearly two-thirds of Americans lived within Constitution-free zones. Any one of these individuals can be questioned at one of the CBP’s more than 110 highway checkpoints. A map by the libertarian Cato Institute attempts to record some of the checkpoints along the Southern border, but many checkpoints are hard to track because they are established temporarily and randomly to deftly “catch” people.
Moreover, if CBP truly sought to protect national security, it would not focus its efforts on random checkpoints on roads and Greyhound buses. Only 2 percent of the CBP’s annual arrests of deportable noncitizens happen at these checkpoints, and since 2010, more legal residents have been detained by CBP officers at checkpoints than actual undocumented people. The widespread detainments of legal residents serve to undermine rather than reinforce national security.
The true threats to national security do not come from those who are detained. They arise when CBP officers directly target a specific population. Current Department of Justice and CBP guidelines allow agents to use race and ethnicity as a profiling method in the policing of immigrants. Studies show that Latino drivers are 26 times more likely to be stopped and questioned by CBP cops than their white counterparts. Latino drivers who are stopped are also 20 times more likely than white drivers to be subjected to a secondary inspection.
Numerous documented instances of police injustice in Constitution-free zones characterize just how egregious these harms are. In 2017, a group of CBP officers boarded a Greyhound bus and only asked passengers of color for their identity documents. In another incident, CBP cops questioned a man’s immigration status because his shoes “looked suspicious, like those of someone who recently crossed the border.” In Florida, two videos of forceful removals of Black legal residents from Greyhound buses went viral, gaining a combined one billion views. One resident was an older Black woman born in Jamaica, who was en route to see her granddaughter in Orlando. The other was a Trinidadian man traveling to see his best friend. In addition to being documented Florida residents, neither individual was acting suspiciously, nor did they have any criminal history. Instead, the CBP’s cause for “reasonable suspicion” was that the two Floridians were people of color using an inexpensive mode of transportation in a country that has grown intensely hateful toward its immigrant population.
The Constitution enshrines a fundamental, inalienable right to equality. The Fourteenth Amendment explicitly states that the government must operate equally for all of its people, regardless of personal identity groups. Given that this amendment was passed out of the struggle to end slavery, it is important to recognize its unique intent to protect people of color from legal discrimination. Disproportionately targeting people of color and people with accents demonstrates a clear disregard for this tenet of democratic equality.
The Constitution also protects the values of privacy in addition to equality. The Fourth Amendment of the Constitution protects the rights of individuals against unreasonable searches and seizures. Likewise, the Fifth Amendment protects the rights of individuals from unreasonable persecution. Thus, the Constitution should be read to necessitate that all police officers––including CBP––acquire warrants to search one’s person and belongings. Moreover, it should also prohibit clearly unjustified detention without reasonable and voiced suspicion.
Under the protections of the Fourth, Fifth, and Fourteenth Amendments, it is unconstitutional for a CBP cop to search the cars of passersby, accuse people of being undocumented, or require verification of identification, especially when disproportionately targeting certain racial and ethnic groups while doing so. Yet, our Supreme Court does not see it that way. It permits breaches of the Constitution to occur under the guise of national security with frequency.
The Constitution and the protections it enshrines for the people are the most supreme and unimpeachable laws of the United States. CBP officers cannot rise above it. Fair and standard procedures were not outlined in the Constitution for entertainment or tradition, and they cannot meaningfully exist without continuous enforcement. If CBP abides by these measures, it can protect the sensitive relationship between the people and the state. However, when CBP officers denigrate the very laws they are charged with enforcing, they desecrate their position as law enforcement agents. If we are to value actions that propel the “national self-interest” of the United States, surely we must uphold the legal foundations of our democratic state—where everyone is treated equally and no one is unduly punished.