The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-Fuerte

44 Pages Posted: 28 Mar 2015 Last revised: 8 Aug 2017

See all articles by Jesus Osete

Jesus Osete

Government of the State of Missouri - Supreme Court of Missouri

Date Written: July 13, 2016

Abstract

This Note analyzes interior immigration checkpoints following the US Supreme Court’s decision in United States v. Martinez-Fuerte, which upheld the use of checkpoints for the narrow purpose of conducting brief, routine questioning of persons traveling within the United States in order to verify a person’s citizenship and immigration status. The Court’s holding, however, has been broadened by Border Patrol officials to cover other law enforcement functions such as apprehending narcotics and weapons. This broader use of the checkpoints “subverts the rationale of Martinez-Fuerte and turns a legitimate administrative search into a massive violation of the [Constitution].” This Note makes several proposals that could curtail the abusive practices that have taken place at the checkpoints since the Court’s decision in Martinez-Fuerte. First, it recommends that Congress install an ombudsman with the purpose of overseeing border patrol operations at the checkpoints. The ombudsman would be primarily concerned with remedying the current lack of data surrounding activity at the checkpoint and documenting such activity in order for the information to be used to assess the checkpoints from a cost-benefit standpoint. Second, and somewhat an additional function of the ombudsman, this Note recommends that Congress and/or the Department of Homeland Security implement a readily-accessible complaint forum for individuals who suffer constitutional grievances at the checkpoints.

Third, this Note recommends that border patrol adopt a monitoring system for regular travelers; namely, a mirror-like SENTRI system that requires extensive background checks and readily apparent ways for border patrol to identify trustworthy individuals at the checkpoints. Finally, this Note recommends that even if Congress or the agencies mentioned in the discussion fail to implement reformative measures to curtail abuse at the checkpoints, the United States Supreme Court should intervene in a future case involving the application of fundamental constitutional rights at the checkpoints in order to clarify whether it intended the checkpoints to effectively operate as crime checkpoints rather than immigration checkpoints. The former has resulted in millions of individuals forgoing the exercise of their constitutional rights within the United States at the mercy of the powerful arm of the government.

Keywords: immigration law, checkpoints, border patrol, Martinez-Fuerte

Suggested Citation

Osete, Jesus, The Praetorians: An Analysis of U.S. Border Patrol Checkpoints Following Martinez-Fuerte (July 13, 2016). 93 Wash. U. L. Rev. 803 (2016). Available at SSRN: https://ssrn.com/abstract=2584797 or http://dx.doi.org/10.2139/ssrn.2584797

Jesus Osete (Contact Author)

Government of the State of Missouri - Supreme Court of Missouri ( email )

207 West High Street
Jefferson City, MO 65101
United States

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