What a Supreme Court ruling on Border Patrol’s broad powers means in Maine

A Supreme Court decision handed down this week called attention to operations by U.S. Customs and Border Protection carried out within 100 miles of the U.S. border, a zone that includes all of Maine and has been the subject of legal action here.

The high court ruling in a case brought by a bed-and-breakfast owner from Washington state came down to an issue of when individuals can sue law enforcement. The decision does not have a practical effect on Border Patrol’s authority.

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But the American Civil Liberties Union of Maine is warning the ruling could still make it harder for other people to even take a case to court if their constitutional rights are violated. In Maine over the past five years, the Border Patrol’s interior operations have been most visible through searches at bus stations and along highway checkpoints.

The circumstances of the recent case brought before the Supreme Court were unique. The plaintiff was the owner of a bed-and-breakfast who also worked as a confidential informant for the federal government. After he was pushed to the ground by a Border Patrol agent who had sought to search his property because a Turkish citizen was staying there, he sued, arguing the agent violated his First and Fourth Amendment rights.

In a 6-3 decision, the high court ruled that the man could not sue. Justice Clarence Thomas wrote in a majority opinion that the national security interest of border security distinguished the situation from a typical Fourth Amendment case.

The issue highlighted a unique authority of Border Patrol compared with other law enforcement agencies. Although the agency is best known for manning stations directly at the border, a 1953 regulation gives it broad powers to operate within 100 miles of any U.S. coastline or foreign border, which includes all of Maine.

In practice, the Border Patrol’s authority to operate inland does not mean that most Mainers are at risk of having a Border Patrol agent burst into their homes or business. In previous cases, the Supreme Court has upheld that Border Patrol can stop vehicles at checkpoints and ask about immigration status, but the Fourth Amendment still protects against more invasive searches without probable cause.

In Maine, the Border Patrol has sometimes set up checkpoints on I-95 and questioned bus passengers about their citizenship. The ACLU of Maine has challenged that practice. Shortly before the onset of the COVID-19 pandemic in 2020, major bus companies said they would no longer be allowing agents to search their buses without a warrant.

It is difficult to know in real time to what extent Border Patrol is conducting such searches, said Zachary Heiden, legal counsel for the ACLU of Maine, since the group relies on news reports or accounts from passengers. He said reports of unnecessary searches often increase in the summer, when more people take buses.

The recent Supreme Court ruling is not expected to have any effect on those sorts of searches. But Heiden said the decision was concerning because rather than interrogating the merits of whether or not Border Patrol violated the bed-and-breakfast owner’s constitutional rights, the high court determined he could not try to seek recourse in a civil lawsuit.

“If you cannot get into court to enforce your rights, then it’s hard to say that those rights still exist,” Heiden said.

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