Excerpted From: César Cuauhtémoc García Hernández, Borders That Bend, 2023 University of Chicago Legal Forum 115 (2023) (145 Footnotes) (Full Document)


CesarHernandez.jpegJust west of Conchita Road in Hidalgo, Texas, there is an old pump-house that once brought fresh water to arid fields, turning dust into green blankets of citrus trees and vegetables. Named after the hero of México's independence from Spain, Miguel Hidalgo y Costilla, the town exists only because there is a river to hug and an international boundary to traverse. Not far to the south, close enough to see with the naked eye, Avenida 20 de noviembre in Reynosa, Tamaulipas honors another important moment in Mexican history: the start of the country's internal revolution against Porfirio Díaz, the dictator who gained fame in the fight against France only to rule with a heavy hand across the late nineteenth and early twentieth centuries.

Between Hidalgo and Reynosa stretches the Río Grande River, its muddy waters moving slowly along the river's southeasterly route. Here the river doesn't seem so big, despite what its name claims. From the bridge that spans the waterway between the small town of Hidalgo and the sprawling city of Reynosa, it appears to be like any ordinary river. Underneath the surface, though, its currents still run wild, a reminder that in México the Río Grande isn't the Río Grande at all: it's the Río Bravo, the wild river.

As wild rivers go, the Río Grande/Río Bravo has taken many forms and occupied multiple locations. In 1933, a storm blew through the region, taking lives and destroying crops. An interpretive sign at the old pumphouse in Hidalgo crystallizes the power of its winds and the strength of the rain that it dumped into the river. The hurricane, the sign claims, moved the river south by about half a mile. Decades later, the United States Department of Homeland Security's contractors would use that gap to erect a wall of steel and concrete. One river forming one international boundary with two identities and two locations--all in the last 100 years.

In the gap between a single international boundary joining the United States and México and its shifting form and location, the law of the border falls into a theoretical chasm. To believe political and legal justifications for policing the border, criminals of all types roam along the international boundary; from the bootleggers of a century ago to the fentanyl smugglers of today. At any moment, among them might be a terrorist. At every moment, there are migrants prone to illegality, willing to violate federal immigration law by crossing without the federal government's permission, trampling on the federal government's sovereign prerogative to keep them out if it so chooses.

These are the myths of border illegality that propel the law of border exceptionalism. To courts, this toxic mix of illegality is reason enough to depart from foundational principles of legality. At the border, the sovereign's powers must be at its peak, courts declare, and so they regularly defer to the desires of the executive and legislative branches. Along the border, the Fourth Amendment's constraint on the federal government must be at its weakest. For that reason, some seizures are permitted without suspicion and others on racial criteria that, in other parts of the United States, are treated as vestiges of a shameful past. Since the border is exceptional, so, too, must the law of the border be.

The law of border exceptionalism leads to predictable results. Freed from the restraints that apply elsewhere in the United States, at the border police forces stop grandmothers on their way from church and shoot teenagers in the light of day. Residents and travelers through the region are left with little legal recourse. They can complain, but they are unlikely to claim victory because the law of the border gives federal officials extraordinary leeway. Time and again, courts refuse to interfere with the securitization of the border even when it leads to death. If the Executive wants to deploy troops to the border and Congress is willing to fund it, the law of the border will permit deviations from legal norms present elsewhere in the nation-state. If Congress authorizes modern takes on ancient fortifications and the Executive is willing to police them, the law of the border will find daylight through which twenty-first century bullets can fly through.

There is a misalignment between the fact that the border between the United States and México regularly evolves and the exceptional quality of the law of the border. While legal doctrine permits violence premised on the notion that the border is nearby, the reality of the borderlands is that the border is not so easy to pin down. Sometimes it proves difficult to know where one nation-state begins and another ends. At other times, the border is so far that all but the strongest would likely perish before reaching the nation-state's boundary. Premised on the belief that life along the border is exceptionally risky, the law of the border overlooks that in many situations, life in the borderlands is very similar to life in the nation's interior. By embracing the myth of border illegality, securitization creates the very insecurity it claims to promote.

Rather than focus on the cross-border movement of people and goods, this essay takes as its starting point of analysis the mobility of borders themselves. Sometimes borders move in the most literal sense--from there to here--by agreement or acquiescence of two countries. At other times, borders move in form: they take on features that would make them unrecognizable to visitors of the past. Examining the border between the United States and México reveals that when borders move, the judiciary rarely interjects. It allows the border to take the shape that the Executive, working with Congress, chooses. The deferential posture with which courts approach questions of border formation and reformation leaves little room for oversight, and immense space for tragedy: from the indignity of official harassment to the horror of law enforcement killings.

Leaving so much power in the hands of the Executive creates a troubling version of sovereignty. A century ago, the political theorist Carl Schmitt articulated a theory of sovereignty in which the sovereign is an extra-constitutional decision-maker empowered to choose when the law applies and when it does not. Under Schmitt's version of sovereignty, the sovereign can manipulate the slippery slope between these poles while the people are simply objects of the sovereign's decisions. The version of sovereign control that predominates along the border between the United States and México is one in which what matters is who has the power and is willing to exercise it. This is a dangerous notion, as illustrated not only by the consequences along the U.S.-Mexican borderline in recent decades, but also by the rise of Nazi authorities that Schmitt supported. For courts, as for legal scholars, Schmittian sovereignty concretized in the law of border exceptionalism ought to be cause for concern because it turns the margins of the territory into the margins of legality, permitting the suspension of the law in the name of protecting the nation-state. That is, to exercise control, governance, and legal authority, the United States treats the borderlands as a space of extraordinary deviance justifying exceptional legal powers.

Proceeding in three parts, this essay puts the law of border exceptionalism into its proper Schmittian theoretical context. Part I sketches instances in which the international boundary between the United States and México has moved as a way of highlighting the constant evolution of border mobility. Part II then addresses the judiciary's role in regulating life in the constantly-evolving borderlands, paying special attention to the plenary power doctrine and the Fourth Amendment. Building on the factual and legal predicates set by the preceding parts, Part III subsequently situates the exceptionalism of these legal doctrines along the border within Carl Schmitt's trenchant theory of sovereignty before proposing doctrinal alterations that would restore legitimacy to the law of the border.

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Deviating from the jurisprudential norm is always dangerous, as it puts into doubt the principles that those norms are supposed to promote. If the Fourth Amendment is meant to limit the federal government's power to intrude into private affairs, allowing it greater freedom to do so illustrates the courts' wavering commitment to that principle. If federal authorities can only do so in one part of the country, the exception severs the populace into two: people who can claim the Fourth Amendment's full reach and those who can't. Residents of the nationstate's territorial margin have been turned into marginal claimants on the state's values.

The law of the border's exceptionalism illustrates a long-running tension within the U.S. legal system. Its claim to equality, never more than an aspiration, is revealed to be a farce in the borderlands. Usually it ends in annoying, time-consuming meddling by federal agents who ask perfunctory questions: Schmitt's “normal situation.” Sometimes it ends in the crimson-colored stain of death. To courts and legal scholars, this ought to be an unsettling spectrum. Solving it is not difficult. Dispense with the myth that the border is uniquely dangerous, then fold the border into the rest of constitutional law, disposing of the omnipotent sovereign before the sovereign disposes of those of us who travel the border.

Gregory H. Williams Chair in Civil Rights and Civil Liberties and Professor of Law, Ohio State University.