Imagine yourself out for a leisurely summer drive in New Hampshire. Perhaps along the Seacoast, around the Lakes Region or in the many villages of the White Mountains.
You suddenly find yourself at a standstill. When you finally get to the source of the delay, you find you have been snared by U.S. Customs and Border Protection (CBP) “checkpoint.” Yet, you are nowhere near the border of an adjoining state, let alone an international border. This is happening with more frequency in New Hampshire and is something we should all be concerned with.
During the recent Memorial Day holiday, CBP established a checkpoint along Interstate 93, a short distance from Woodstock. Depending on the route you take, Woodstock is approximately 90 miles from the Canadian border. CBP recently announced it is planning as many as five more of these checkpoints in 2018. Guess what? These checkpoints can legally happen anywhere in New Hampshire, thanks to a U.S. Department of Justice regulation from 1953 (8 U.S.C. § 1357(a)(3)).
This regulation permits CBP to stop and conduct searches on vessels, trains, aircraft or other vehicles anywhere within “a reasonable distance from any external boundary of the United States,” without a warrant. The DOJ believes it has this authority based on statutory change made by Congress to the Immigration and Nationality Act in 1946. The DOJ deemed a reasonable distance as “100 air miles.” This enforcement policy has come to be known as the “100 Mile Zone.” However, CBP believes this zone can be adjusted based on an arbitrary set of circumstances, usually without any guidance or oversight from Congress. Because of this interpretation, New Hampshire is one of a few states in which our entire state falls within the 100 Mile Zone, which means these checkpoints could pop up anywhere in the state.
During the most recent checkpoint passengers were asked a few questions, one of which related to their immigration status. CBP agents are permitted to direct you to a secondary checkpoint if further investigation is required. A K-9 dog was used as well. The dog has the dual capacity of detecting drugs and humans (who may be hidden). From a CBP press release we learned there were “17 people who did not have legal immigration status, six of whom were visa overstays. Agents arrested illegal aliens from Brazil, Columbia, El Salvador, Guatemala, Indonesia, Korea, Mexico, Montenegro, Ukraine and Uzbekistan.”
You’re probably thinking this must be a violation of Fourth Amendment of the U.S. Constitution (https://tinyurl.com/cornell4th) and/or Article 19 – Searches and Seizures Regulated (https://tinyurl.com/NHprivacy) – of the N.H. Constitution. Not really.
In past checkpoints in New Hampshire, people of legal status (to include U.S. citizenship) were arrested for drug offenses. These most recent arrests were deemed unconstitutional. Plymouth circuit court Judge Thomas Rappa Jr. recently ruled “The evidence was seized in violation of constitutional rights recognized by the New Hampshire Supreme Court.” Rappa also called into question the potential abuse of the intent of 8 U.S.C. § 1357(a)(3).
Congress has broad powers on this issue according to Article I, Section 8, Clause 4 (To establish a uniform Rule of Naturalization). Based on the U.S. Supreme Court’s interpretation on this matter it ruled in favor of the concept of these checkpoints, but with limits. I disagree with both the regulation and interpretation. My opposition to these types of tactics is on a constitutional, practical and fiscal concern.
I believe Congress has the power to set in place “Rule(s) of Naturalization,” however, those rules cannot be used to trample the constitutional rights of U.S. citizens. This is lazy law enforcement, encouraged by a feckless Congress that long ago vacated its responsibility and emboldened further by a capitulating citizenry.
When I first expressed my concern of this policy, many people said to me “well, if you aren’t doing anything wrong, what is the problem?” That is the trick that leads us to the road of despotism, to use our innocence against us. To create a precedence that, if you choose to hold dear to your constitutional rights, clearly you must be guilty. This attitude makes it easier for law enforcement to pressure citizens into voluntarily relinquishing their “certain unalienable rights,” weakening the respect we all should have for those rights.
I reached out to the CBP and asked what I felt were valid questions: How many total vehicles were stopped? How many U.S. citizens were asked about their legal status (besides the drivers of the vehicles)? What was the average face-to-face time of each stop with a border agent? Has the average time a vehicle took to pass through the checkpoint (from initial delay to final pass through) been calculated?
Have the names, country of origin and list of charges been recorded for those detained for illegal immigration? Is this information posted at a resource website? What is the detention status of the arrested? Have any been released? Have court appearances been established? Are any of the detainees wanted for violent crimes or affiliated with known drug cartels or gangs?
How many vehicles were diverted to the secondary checkpoint? Did the K-9 find any concealed individuals? Did the officers receive overtime pay for this assignment? Did the officers drive to the checkpoint location the day of the checkpoint or did they billet near the location? If they were required to billet locally, what was the estimated cost? How many other checkpoints occurred throughout the country including in other New England states? And lastly, why Woodstock (again)?
These questions address whether these tactics are constitutional, practical in execution and affect, and whether efforts to support the checkpoints are fiscally sound. Considering the constitutional concerns, impractical nature of the tactics and location, and the fiscal strain, one wonders why exactly 90 miles from the Canadian border, in the hamlet of Woodstock, on a holiday weekend, are New Hampshire citizens being asked to surrender their rights?
I received some answers to my questions by way of a press release, but most remained unanswered. It is not enough that the distance from the border be the only factor we use to define “reasonable.” The moment you found yourself delayed, you are in essence detained, your movements restricted and your actions called into question.
What do you think would happen if a car, at the end of the line, chose to exit the stalled traffic and drive in the opposite direction? Be wary of the rights you think you are surrendering because the government may see it differently. You are not free to leave that line and any effort to do so will result in escalation on the part of law enforcement.
These types of actions are why we should consider attaching sunset clauses to every regulation, requiring Congress to do its job and revisit policies from time to time, and ask three simple questions: Is this regulation still valid? Is this regulation being abused? Is this regulation constitutional?
In some shape or form all law enforcement officers and our elected officials have sworn an oath that they “will support and defend the Constitution of the United States against all enemies, foreign and domestic…” There are times when we must remind them of this commitment, because we as citizens are the primary guardians of our unalienable rights.
