Border Exceptionalism in the Era of Moving Borders
Fordham Urban Law Journal, Vol. 38, pp. 129-153, 2010
26 Pages Posted: 18 Feb 2011
Historically, the courts have indicated that the tasks of enacting and enforcing immigration laws are federal functions. The federal agents who police the nation’s borders have exceptionally broad policing authority - an authority that the courts have justified based on the special need to secure the nation’s borders from a variety of threats. Part I of this essay will summarize the Supreme Court jurisprudence that has endorsed exceptionally broad policing powers not only at international borders, but also in a much wider swath of immigration enforcement contexts. Over the past decade, as a consequence of the expansion in the number of immigration enforcement agents at the federal level and the rapidly increasing number of sub-federal agents involved in immigration control efforts, immigration enforcement has become a part of the everyday fabric of policing in the United States. Therefore, after summarizing the broad powers granted to police in the immigration enforcement context as a result of the Court’s jurisprudence of border exceptionalism, Part II of this essay will consider the implications of this jurisprudence in light of the recent trends that have transformed the nature and scope of immigration policing. This Part concludes that existing law is insufficient to protect against racial profiling and unreasonable police arrests and detentions, and that the implications of these recent developments extend well beyond the sphere of immigration enforcement.
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