OpEd

by Trevor Miles

Customs and Border Patrol (CBP)

Those three letters should make any libertarian tremble with the fear of Constitutional rights being violated. They certainly make me tremble, despite the fact that I live in North Carolina, nowhere even close to the southern or northern borders.

Why am I writing this?

Well, I live within 100 miles of the US border, and in June of 2022, the Supreme Court provided a nearly impenetrable shield to federal immigration authorities operating within the 100 mile border zone when it comes to the 4th Amendment. In the case Egbert v. Boule, the court chose, in a majority 6-3 decision, to set the precedent that only Congress can authorize lawsuits against federal agents for violation of 4th Amendment rights resulting from immigration operations. This essentially means that no one can sue federal immigration authorities for violating their 4th Amendment rights, despite the fact that Bivens v. Six Unknown Named Agents (1971) provided for this exact remedy in a similar violation of the 4th Amendment by federal narcotics agents.

So, what is Egbert v. Boule?

In Egbert v. Boule, the plaintiff Mr. Boule owned and operated the “Smugglers Inn”, near the Canada-U.S. Border. Mr. Boule routinely worked as a confidential informant for the Border Patrol, and notified them when persons of interest were staying at the inn. On the day in question in 2014, Mr. Boule informed Agent Egbert that a Turkish individual would be staying at the Inn, and had arranged transportation. When Mr. Boule returned with the individual, Agent Egbert followed them onto the property, at which point Mr. Boule told Egbert to leave. Egbert then proceeded to allegedly throw Boule to the ground, and after determining the visitor's paperwork was in order, left. Boule then filed an administrative claim against Egbert, after which Egbert reported Boule to the IRS.

The district court ruled in favor of Egbert, and the decision was reversed by a panel of Ninth Circuit Appeals judges. After making its way through the court system, it was granted certiorari on November 5, 2021, with the Supreme Court later agreeing with the district court's decision, ruling in favor of Egbert and removing any avenue for Boule to receive compensation for the 4th Amendment violation.

What does all that mean?

Well it means that citizens lack any recourse to address violations of their 4th Amendment rights in the border zone, as we all know that Congress would never authorize a lawsuit against their agents of the state, regardless of how egregious the violation might be. By the way, nearly 2/3rds of Americans live within this border zone. It also means that federal immigration authorities have one less thing to fear when it comes to violating the 4th amendment, and essentially now have carte blanche to engage in the full scale victimization of all Americans within the border zone, including and especially those within racialized and marginalized communities.

What is the solution?

The solution to the issue is deceptively simple. Repeal the Immigration and Naturalization Act of 1952, and replace it with a simple security check at ports of entry. In doing so, it removes the legal basis for the 100 mile border zone, and the subsequent violations of the US Constitution that have been upheld by the Supreme Court, which will allow for agents to be held liable for violating individuals rights.

I urge all Libertarians, and indeed all Americans who care about their rights, to push this issue at all levels of government and society, and make your voices so loud that you can’t be ignored.