Evanston, Illinois, would hardly be the predicted setting for a constitutional confrontation over border authority. A leafy northern suburb of Chicago, more at home hosting Big Ten football games than social disruption, the town nonetheless has witnessed federal agents brandishing weapons at unarmed protesters and clashing, unnecessarily, with opponents of the Trump administration at anti-deportation rallies.
What might seem like a descent into lawlessness is actually not so much the absence of law but the application of the wrong law. The federal agents are neither part of any police force nor the military. Instead, they are U.S. Border Patrol and Immigration and Customs Enforcement agents, hastily recruited and trained, and sent to patrol American cities.
Even when fully trained, these officers answer to the “law of the border,” a distinct constitutional regime that offsets customary legal protections against the foreign policy and national security concerns of the federal government. This is the domain of the “border search exception,” where the generalized rules of probable cause under the Fourth Amendment are relaxed to accommodate border integrity.
Everyone who has traveled into the U.S. understands they may be asked questions about their affairs abroad and at home, may have their possessions opened and inspected, and may even be asked to unlock their phones for inspection of contacts.
No police officer at a traffic stop or showing up at one’s home could demand the same compliance absent probable cause and a warrant. Congress has authorized border agents to operate with this same intrusive authority up to 100 miles from the border, again recognizing the precarious legal status of these intrusions into our normal expectations of privacy and other rights.
However, there is a constitutional trade-off. The actions required to maintain border integrity are a recognized exception to what American citizens and other residents may expect as the normal operations of law. Presumably, what happens at the border stays at the border, or pretty close nearby.
President Donald Trump has claimed emergency authority to wield federal force domestically against a host of asserted threats, ranging from drug lords, to street crime, to illegal immigration, to interference with federal agents enforcing immigration laws.
The administration has a capacious account of the claimed emergencies justifying such actions, and a correspondingly broad belief in the use of militia tactics to control these claimed emergencies. Hence the uniforms, the face masks, the lack of identification or even designation of rank or unit.
Unspecified federal agents now spread across Chicago; Portland, Oregon; Charlotte, North Carolina; and New Orleans, outfitted in tactical camouflage gear and armed at levels not associated with police patrols in any American city.
But where do militia-level federal enforcers come from? Complicated rules control the use of the military for domestic issues, and the mobilization of state National Guard troops is difficult for legal and political reasons, especially if one state’s National Guard reserves are used to police other states.
The expedient response has been to quickly fill the ranks for federal border officials and place them under the direct control of the Department of Homeland Security, and by extension, Trump.
From a mission perspective, this is a disaster waiting to happen. These ICE and Border Patrol officers are inexperienced, minimally trained and subject to a reporting hierarchy designed for the unique legal challenges of border interdiction.
Now these new recruits assume an air of invincibility to go with their masked anonymity. Pepper-spraying civilians after a car crash with ICE agents or brandishing loaded weapons against unarmed civilians are not the techniques of law enforcement under normal constitutional constraints.
While much attention has been given to the broad legal challenges to the deployment of National Guard units to Portland, L.A. and Chicago, more attention should be directed to the legal vulnerability of these underprepared federal agents now patrolling our cities and towns.
Normally, federal employees are immune from suit under the terms of the 1988 Westfall Act, by which the federal government assumes the defense of federal actors in the discharge of their duties and indemnifies them for any harms for which they might be liable.
But the Westfall Act carves out a key and as yet underexplored domain: The immunity does not apply in an action brought for violation of constitutional or statutory obligations. When the government invites individuals to claim powers beyond their proper control, what the law terms “ultra vires” conduct, it puts the public at risk of rogue conduct. It also places the individuals in legal jeopardy. Following orders is a shaky legal defense, even in wartime.
The next phase of legal conflict over the claimed national emergencies will invariably focus on the reckless conduct observable wherever these federal agents go. Bringing the border to Chicago, Evanston and other suburbs demands legal attention not only as a matter of policy but in terms of individual liability for those who transgress well-established legal norms.
Samuel Issacharoff is a constitutional law professor and a director of the Democracy Project at New York University School of Law.