OPINION
02/27/2018 05:46 am ET

Trump's Anti-Immigration Machine Is Chipping Away At The Fourth Amendment

U.S. Border Patrol agents detain men in Roma, Texas, last May after they entered the U.S. by crossing the Rio Grand
Carlos Barria / Reuters
U.S. Border Patrol agents detain men in Roma, Texas, last May after they entered the U.S. by crossing the Rio Grande from Mexico.

Throughout the 2016 presidential campaign, Donald Trump described a nation under siege from undocumented immigrants responsible for  violence against countless Americans — a grim vision that helped catapult him to the GOP nomination and into the White House.

Now as president with the power to direct actions by the Department of Homeland Security, which oversees our nation’s border and immigration policies, he is exploiting that same anti-immigrant fervor to chip away at our Fourth Amendment protections against unreasonable searches and seizures.

The Trump administration is broadening the authority of Customs and Border Patrol agents to an alarming extent, leading them to operate aggressively on private property or detain U.S. citizens for refusing to respond questions regarding immigration status.

Of course, rights are not absolute and they must yield to reasonable restrictions. In one example we hear often, a person does have a First Amendment right to express his mind, but the government can restrict that person from yelling “fire!” in a crowded theater.

Studies and common sense back a reasonable restriction on our rights on the basis of a clear and immediate connection to safety and property. Similarly, the federal government can place reasonable limits on our Fourth Amendment rights in order to combat an immediate threat to our security. 

However, rather than providing concrete evidence of danger to our country, the Trump administration is isolating individual crimes committed by immigrants to create an artificial national crisis. This “crisis” is being used as a basis to allow border agents to operate deeper into our neighborhoodsinstalling surveillance technology in private property without permission and executing stops and searches without warrants

This presidency has allowed Border Patrol agents to routinely ignore the limits of their legal authority.

Under current law, CBP has the authority to operate within 100 miles of any U.S. “external boundary.” In this zone, border agents have certain powers, such as establishing immigration checkpoints at any time without justification. 

Border Patrol agents, however, cannot pull anyone over without “reasonable suspicion” of an immigration violation or crime, or search vehicles in the 100-mile zone without a warrant or “probable cause.”

Unfortunately, this administration has allowed agents to routinely ignore the limits of their legal authority. The problem has been compounded by inadequate training and the consistent failure of CBP to hold agents accountable for abuse.

Moreover, CBP is considering separating parents from their children if they’re caught crossing the border illegally. If implemented, the policy would mark a sharp shift from current policy, which keeps families intact in special detention centers at the border while they await a court date to make their case to remain in the country.

Even far from the border, immigration agents are often routinely detaining immigrants in violation of their Fourth Amendment rights — and yes, the Constitution protects immigrants, too.

In the first year of Trump’s presidency, government agents have been increasingly boarding buses and trains to question riders deep inside Florida, New York and Washington.

Trump’s tweets accusing former President Barack Obama of allowing MS-13 gang members to flood our nation have created a smoke screen to call for a bigger budget for more border agents

The Constitution protects immigrants, too.

While the administration’s 2019 budget proposal would slash funding for many federal agencies critical to our national security ― especially the State Department ― DHS would receive $47.5 billion, a 7.8 percent increase over the 2018 budget.

Trump’s 2019 budget would also provide 22 percent increases in funding for CBP to hire an additional 750 new agents.

Security means security that is actually warranted by rational data, not by the whims of White House bureaucrats. Indeed, a report by the DHS Office of Inspector General stated that CBP couldn’t provide data to justify a current hiring surge. 

“Neither CBP nor ICE could provide complete data to support the operational need or deployment strategies for the additional agents and officers they were directed to hire,” the report said.

According to a report from CBP, the country saw the lowest level of illegal crossings in 2017 by immigrants since 1971. From 2009 to 2014, more immigrants returned to their home countries than migrated to the U.S.

While there is certainly a need to address gang violence and terrorism, the facts don’t support Trump’s end-of-the-world scenario on undocumented immigrants, and they certainly don’t justify the attack on our constitutional protections.

The unique design of our Constitution was its power to protect all people regardless of their immigration status. Unfortunately, more than half of Americans incorrectly think undocumented immigrants do not have any constitutional rights — including Trump, who himself reportedly balked at learning the Constitution.

There is much uncertainty over the effect of president’s immigration policy on our rights. What is evident, however, is that the Fourth Amendment will and must continue to be a check on the government’s unlawful intrusion on our liberty.

Cesar Vargas is a civil rights attorney and national advocate for immigration reform.

CONVERSATIONS