They recently made the argument that Border Patrol agents stopping innocent American-citizen motorists up to a hundred miles from any border without any border crossing whatsoever, may detain those motorists for at least twenty-four hours. You read that right. Twenty-four hours. Without any suspicion for any crime whatsoever. That is ridiculous on its face, of course, but it serves as a great reminder about the nature of government power to overstep, push and prod, budge and force itself further and further away from any limitations set upon it by our Constitution or judiciary.
I'm no Lewis Carroll, but imagine this to perhaps get a better idea of what we're talking about:
Imagine you are driving your family on a well earned vacation across the great United States of America. You've previously taken your kids to see Washington, DC and the Jefferson Memorial on last year's vacation. You remember the kids were mesmerized by the thick protective glass around the Constitution that you showed them at the National Archives.
This year, you've decided to drive the family to San Antonio, Texas to show them the Alamo and explain how courageous Americans took a stand and displayed that once-American trait of courage. As you're driving on the highway and thinking about how your hard earned tax money has contributed to the nice new asphalt, you see a sign telling you to pull over for an immigration inspection. You think, "I haven't crossed any borders, this is strange."
You pull over and the agent asks you where you work. You reply. Then he tells you to pull into the secondary area off to the side and sit tight. He informs you that you and your family are going to be there for awhile. For at least twenty-four hours. You offer him a driver's license and a passport and ask if there is any way you can help speed the process up, but he tells you to just sit tight and he'll get back to you.
Obviously that is insane, but that is what the DOJ argued it has the power to do in my appeal at the Fifth Circuit Court of Appeals. You can read the DOJ's letter to the court, and my response to it, here.
Now while you ponder how ridiculous this assertion by the government is in common sense terms, consider that it is just as ridiculous in legal terms. And herein lies the lesson. Our Supreme Court of the United States said that these suspicionless immigration checkpoints not on the border, are ordinarily a violation of the Fourth Amendment. Because they seize us Americans without any suspicion for any crime, and that is unreasonable. While admitting this, still, the high court provided a "narrow exception" to allow these checkpoints not-on-the-border, to seize us without suspicion, but said that our rights would be protected because these checkpoint stops would be "brief," limited to inquiring into immigration status, and would therefore present a "minimal intrusion."
What I experienced was not brief, limited, or a minimal intrusion and I am still dealing with the impacts of that encounter. I'm not the only American who understands these checkpoints are often anything but a minimal intrusion.
But now the government is doubling down, claiming it can keep you for twenty-four hours without any suspicion. When you give government power an inch, it will take a mile. The Supreme Court gave that inch, and the government took a mile. Now it wants to take every single paved mile that exists, and it argues it has the right to do so. Because, you know, that's limited, and narrow, and brief, and a minimal intrusion.
The government now claims the right to treat us as though we've all jumped the border and have illegally entered our own country. Never mind that the Border Patrol is horribly ineffective at catching actual illegal aliens, and please disregard their apparent aversion to actually being on the border.
Pro tip: those two facts above might be related. We are through the looking glass.
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