Integrity Legal

8th July 2010

Although this blog rarely discusses issues surrounding the physical borders of the United States, when important legislation is proposed it should be noted. In a recent publication promulgated by the Congressional Research Service, Chuck Mason, a legislative attorney, summarized the current legal situation arising along the Southern Border of the United States of America. The following is a direct quotation from the aforementioned  publication:

The Secretary of the Department of Homeland Security (DHS) is charged with preventing the entry of terrorists, securing the borders, and carrying out immigration enforcement functions. U.S. Customs and Border Protection (CBP), a component of DHS, has primary responsibility for securing the borders of the United States, preventing terrorists and their weapons from entering the United States, and enforcing hundreds of U.S. trade and immigration laws. Within CBP, the U.S. Border Patrol’s mission is to detect and prevent the illegal entry of aliens across the nearly 7,000 miles of Mexican and Canadian international borders and 2,000 miles of coastal borders surrounding Florida and Puerto Rico.

The United States Customs and Border Protection Service (USCBP) is tasked with an incredibly broad mandate. In many ways, the consolidation of the immigration agencies formerly under the authority of the Department of Justice was necessary as prior to the creation of the Department of Homeland Security the bureaucratic hurdles encountered by agents in the field could apparently be nearly insurmountable. Since the formation of the Department of Homeland Security it would appear that the task of monitoring the US border has become more streamlined. However, there are some who feel that more manpower is required to properly patrol the American border. Some feel as though intervention by the US military is necessary. To quote the previously mentioned report:

Although the military does not have primary responsibility to secure the borders, the Armed Forces generally provide support to law enforcement and immigration authorities along the southern border. Reported escalations in criminal activity and illegal immigration, however, have prompted some lawmakers to reevaluate the extent and type of military support that occurs in the border region. On May 25, 2010, President Obama announced that up to 1,200 National Guard troops would be sent to the border to support the Border Patrol. Addressing domestic laws and activities with the military, however, might run afoul of the Posse Comitatus Act (PCA), which prohibits use of the Armed Forces to perform the tasks of civilian law enforcement unless explicitly authorized. There are alternative legal authorities for deploying the National Guard, and the precise scope of permitted activities and funds may vary with the authority exercised.

As legal restrictions likely apply to usage of the Armed Forces personnel in patrolling the US border, some members of Congress have taken steps to see to it that intervention by US troops is authorized:

In the 111th Congress, various types of legislation have been introduced, including S. 3332 and H.R. 4321, which, if enacted, would authorize the utilization of National Guard troops along the southern border. Additionally, H.Con.Res. 273 expresses the sense of Congress that the escalating violence along the southern border is a national threat and that National Guard troops should be deployed to the border.

Although it remains to be seen how the current situation will play out, there are those who feel that no matter the what outcome, the United States is at a watershed moment with regard to its policy on border protection.


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