I reread that old thread, and then skimmed the Penn State article (a bit quickly, I admit). I gotta say: I think you're overstating your case here. Certainly, the author of that article is skeptical about the 100-mile zone and makes plenty of good (and, IMO, obvious) points about why it is constitutionally suspect. But, to read your comments, you'd think that some important court somewhere has actually placed meaningful limits on immigration enforcement within that zone (outside the context of an actual border crossing). If so, I don't see where you're getting that. If that's actually in the article, could you tell us where?
To be fair, though, I think it is also true that the ACLU is too eager to talk about the "Constitution-Free Zone" as though it is fact. I also agree that people should not simply accept that the Constitution-Free Zone exists. It is definitely not that simple and what would otherwise be 4th Amendment violations should absolutely still be challenged even if they occur within the zone. There is still every opportunity for more good law on this.
Without wanting to recapitulate this argument for the Nx1000th time if we don't have to I'll just say that the points I'm making are points ACLU itself now makes.
Since the ACLU is largely the origin of this meme, I think that's pretty dispositive.
Importantly: I am (for the Nx1000th time) not saying that federal law enforcement officers won't make abusive claims, or directly abuse the law; they certainly will. As I said in the previous thread, they managed to detain Senator Patrick Leahy more than 100 miles from a border, which, when you think about the implications of the 100-mile-zone, is kind of a feat!
>The federal government defines a “reasonable distance” as 100 air miles from any external boundary of the U.S. So, combining this federal regulation and the federal law regarding warrantless vehicle searches, CBP claims authority to board a bus or train without a warrant anywhere within this 100-mile zone. Nearly two-thirds of the U.S. population, over 213 million people, reside within the region that CBP considers falling within the 100-mile border zone, according to the 2020 census. Most of the 10 largest cities in the U.S., such as New York City, Los Angeles, and Chicago, fall in this region. Some states, like Florida, lie entirely within this border band so their entire populations are impacted.
Which, upon re-reading both of your comments in this thread makes me actually think there is no argument at all and everyone here and the ACLU agree: there is a no consitution zone, it has practical consequences, and it does extend out 100 miles from internal foreign borders.
The executive branch asserts that there is such a zone. But the truth is likely that many, if not all, 4th Amendment rights still apply in many situations within that zone. It's situation dependent, so it's difficult to make a sweeping generalization. But some of the executive branch's most aggressive claims and tactics, at least, may well not hold up in court.
I think one thing that happens in these discussions is that people lose sight of how big a deal an actual border search is. An actual border search (I've had the pleasure! And mine was on the mild end of things.) is much worse than a search incident to arrest.
What I feel like people do here is map everyday abusive law enforcement behavior onto that border search exemption without realizing that what they're actually suggesting is that people should expect (and thus roll with) a "tear everything apart, search under clothes, maximally invasive" border search, which is what the Constitution authorizes at an actual border crossing.
Drive a white Altima across I20 from Abilene to Shreveport. Be a good boy and drive within the speed limit. You'll get pulled over for suspicion of being a drug mule. Of course you're innocent, but if you decline to allow them to search your car, they'll call in a drug dog that's trained to alert whenever its handler wants. So they toss your car and all your belongings. Strip out all the door panels, everything. If they want, they can plant evidence and jail you. If they decide to be nice, they just leave you on the side of the road trying to figure out how to put your car back together.
> The executive branch asserts that there is such a zone. But the truth is likely that many, if not all, 4th Amendment rights still apply in many situations within that zone.
Technically, the entire fourth amendment applies. BUT All the fourth amendment requires is probable cause for warrants, and that searches and seizures be reasonable. It doesn't require warrants for searches or seizures (although courts have found that that is usually necessary for reasonableness), and it doesn't require probable cause for searches or seizures without a warrant (though courts have found that that also is usually necessary for reasonableness.)
What the courts have allowed is the use of the border zone to justify exceptions to a lot of the things that are usually required for reasonableness. This isn't, technically, an exception to the Fourth Amendment, because searches still need to be "reasonable". Its just proximity to the border makes searches "reasonable" that wouldn't be anywhere else.
I'm doing ["border search" "miles" site:uscourts.gov], getting cases --- recent cases, including some with cites to Ameida-Sanchez, which of course makes my point --- and not seeing much to suggest that CBP can randomly search random cars in Green Bay WI under the border search exemption.
Congress asserts this since they passed the 2001 bill that destroyed the country. It was called The PATRIOT Act. It created this, not any particular president's interpretation. All the executives since Bush jr. have asserted it. And I called it out then, in the past, over and over and over. But our leaders were too charismatic to hold to accord. None of them sunset the PATRIOT act in 2003 when it was supposed to or any time it could have been thereafter. Niether that nor the 2001/2002 authorizations of use of military force used for assassinating US citizens(1). Which was formalized via the https://en.wikipedia.org/wiki/Disposition_Matrix created by Obama and used by Obama/Obama/Trump/Biden/Trump. We had our chance. No one cared.
And now here we are with most of the population of the USA without rights and the president able to declare anyone left a terrorist and use the military against them.
