Describe the challenges faced by US Customs and Border Protection agents attempting to secure the border. Be sure to include: What is the functional equivalent of the border? Give an example. What is the Fourth amendment exception as it pertains to border searches? How are seizure statistics used to justify the mission of border security? Should they be.
U.S. Customs and Border Protection (CBP) is a component of the Department of Homeland Security (DHS) tasked with securing the United States borders and enforcing immigration laws. The CBP constitutes of patrol agents whose mission is to detect and prevent illegal entry of aliens in the approximately 7,000 miles of Mexican and Canadian International borders and 2,000 miles of coastal borders surrounding Florida and Puerto Rico (Mason, 2013). As one of the federal agencies, the search and seizure activities of the CBP agents and other border patrol officers are governed by the United States’ legislation and Posse Comitatus Act (PCA). While the legislation governing such practices have been crafted accordingly by the Supreme Court to provide exemptions of the requirements of the Fourth Amendment and incorporate the concept of the functional equivalent of the border to address the issue of mid-transit inspection and boost border security, the CBP still faces multiple human resource challenges that comprise its border security mission.
The functional equivalent of the border is one of the doctrines implemented by the Supreme court to help enhance border security in the United States. The law describes the functional equivalent of a border as the “first practical detention point after a border crossing or the final port-of-entry” (Kim, 2009, p.7). Fundamentally, the functional equivalent of a border refers to the first point that CBP agents can inspect individuals who are in mid-transit when crossing the United States border. Examples of the functional equivalent of the border include the country’s international airports and ports in territorial waters. Arguably, it is impossible to stop individuals that are using international flights mid-transit for inspection. Therefore, the doctrine of the functional equivalent of the border addresses this impossibility and equips the CBP with the mandate to conduct checks at the first port-of-entry to help the agency fulfill its border security mission.
Besides the doctrine, the Supreme Court also makes some exceptions in the Fourth Amendment to enable CBP to conduct its functions effectively. The most notable exception pertains to border searches. Most notably, the CBP is granted the sovereign right to stop and examine individuals and property crossing the border without getting a warrant for the search from a magistrate (Kim, 2009). This exception applies to border searches, functional of the equivalent of a border, and extended border searches that are done at a person’s first-port-of entry into a country. Most notably, this exception is made to allow the CBP agents the flexibility to respond to threats posed to the American people at the border points.
Over the years, seizure statistics in the United States have been used to justify the mission of border security. Most notably, this is done by illustrating to the Congress the number of contrabands intercepted at the United States border and using the values as a justification for the need of the mission of border security. In my view, seizure statistics should be used to justify border missions because they are part of the tangible evidence that the CBP can use to get support, both financial and human capital, to reinforce security at the borders.
Unfortunately, despite the legislative support offered by the Supreme court to help counter the challenges associated with the Fourth Amendment, the CBP agents still face difficulties related to the human resource, which constrains their border security mission. As noted in a recent report, the CBP has not attained target staffing levels for its law enforcement positions in recent years (“U.S. customs and border protection”, 2018). The low staffing level at the CBP raises concerns of increased external threats posed to the country, as the available human resource may not undertake their duties effectively.
What are “open markets and closed borders” as it pertains to smuggling, free trade, and border enforcement?
The notion of open markets and closed borders has been a source of debate among policymakers in the United States. On the one hand, open markets promote the free movement of goods and services across international boundaries such as Canada and the United States. On the other hand, the concept of closed borders limits or prevents the movement of people across jurisdictions, with either limited or few exceptions. Scholars argue that this promotion of borderless economies based on free-market principles, in many ways, contradicts the U.S. policymakers’ effort to keep the borders closed to the clandestine movement of drugs and migrant labor (Andreas, 1996). Besides the contradiction in the policies, it is evident that despite open markets being a facilitator of free trade across jurisdictions, in the phase of closed border policies, it contributes to smuggling and, in turn, the need for order enforcement.
Open markets are a facilitator of free trade and growing economies in the United States. As the literature suggests, the open market has led to the flourishment of commerce across various sectors (Flynn, 2004). For example, a report by Flynn (2004) reveals that, in the face of cross border trade, firms such as General Motors, Ford, and DaimlerChrysler have had the opportunity to manufacture many of the parts to build their cars and trucks from Canadian based plants and have them delivered to their assembly plants in the United States. Generally, open markets and closed borders promote a healthy free trade in the country, whereby inspected and verified goods and services are moved across jurisdictions.
However, the presence of open markets and closed borders also fuels the smuggling of contrabands and individuals into the United States. Arguably, the problem is mainly triggered by the degree of border closure implemented in the country’s border points. For example, according to literature, the northern border has, over the past few decades, received episodic attention, primarily centered around minimizing administrative friction that imposes a cost burden on legitimate commerce (Flynn, 2004). Unfortunately, studies reveal that enforcement buildup leads to an induced shift to crossings in areas with less enforcement (Roberts, Hanson, Cornwell & Borger, 2010). From this point of view, it is evident that minimum attention directed to the northern border has been a trigger of smuggling in the area, as was Ahmed Ressam that was caught smuggling bomb-making materials in the United States.
Furthermore, with the increased cases of smuggling triggered by closed borders and free trade, border enforcement has become an imperative practice in the United States aimed at combatting the problem. As averred by Roberts et al. (2010), border enforcement is purposed to prevent and deter illegal movement of contrabands and people across jurisdictions. Several border enforcement policies and practices have been established in the United States to dissuade contrabands and illegal immigrants. Some of the most common border enforcement efforts include the fencing across the U.S.-Mexico border purposed to reduce unauthorized Mexican migration (Wong, 2018). Such efforts have highly been criticized because of their associated high costs and minimum effects in reducing unauthorized migration. However, some studies also reveal that the effectiveness of border enforcement in reducing smuggling is mainly premised on the idea that enforcement increases smuggling costs, thus discouraging illegal movement of goods and people across the United States boundaries, which has shown significant outcomes in some scenarios.
What are the challenges of facilitating legal border crossings while maintaining secure borders ?
The paradoxical times experienced by the United States are a key driver to the facilitation of legal border crossings, while, at the same time, trying to protect America’s exposure to terrorists’ attacks through maintaining secure borders. Most notably, studies reveal that North America’s hemisphere’s economic prosperity is highly dependent on an open continental system that promotes free movement of good and people (Flynn, 2004). For this reason, border crossings are of vital economic importance to the hemisphere. However, the attempt to facilitate legal border crossings while maintaining secure borders poses multiple challenges such as the creation of a conducive environment for criminals and terrorists to thrive and detrimental economics effects due to commerce delays at the border.
The existing literature suggests that the facilitation of legal border crossings while maintaining secure borders creates a conducive environment for criminal and terrorists’ activities. As noted by Flynn (2004), the draconian measures of policing the border provide incentives for informal arrangements and criminal conspiracies to intercept the barriers to commerce and labour movements. This view can be illustrated using the scenario of migrants crossing the United States border. Most notably, legal border crossings allow authorized migrant Mexican labourers to move across the jurisdiction. Unfortunately, there are thousands of other migrants seeking better living standards in the United States, but may not have the legal documentation to cross the border and this becomes even harder considering the tight measures implemented to secure the border against contrabands. As a result of these barriers, the demand for smuggling services becomes high as illegal crossers seek access to expertise, knowledge, equipment and other assets of smugglers (Roberts et al., 2010). From this point of view, it is evident that facilitating legal border crossing while securing the borders triggers the same problem that inspires the implementation of border security.
A second way to view the mentioned challenge is through the lens of delays driven by legal border crossing and maintaining secure borders. As noted by Flynn (2004), enforcement driven-delays ironically contribute to the creation of opportunities for smuggling narcotics. The author notes that these delays are facilitated by the multiple duties assigned to the CBP, which include monitoring compliance with over 400 laws, 34 international treaties and conventions on behalf of federal agencies. Such delays at the border may cause a high turnover rate among cross border truck drivers who are replaced by younger and less skilled drivers that are more susceptible to the temptation of smuggling contrabands on behalf of terrorist groups in exchange for money. Therefore, the attempt to facilitate legal border crossings for track drivers carrying merchandise into the United States, while securing the border through proper inspection creates a conducive environment for the growth of terrorists and criminal groups.
Scholars also view the challenges associated with the two simultaneous practices from an economic perspective. As noted, the attempt to balance legal crossing and border security creates delays at the entry point, as the CBP must inspect according to the outlined laws and international treaties. For example, it is estimated that approximately 9000 trucks a day transit the Ambassador Bridge between Detroit, Michigan, and Windsor and Ontario (Flynn, 2004). The large number of trucks crossing the border as a result of the availability of legal border crossing can sometimes be overwhelming, making the CBP fall behind the workload. Unfortunately, it is argued that backloads in inspection at the U.S.-Mexico border results into loss of billions of economic outputs- up to $5.8 billion in 2008 (Jones & Seghetti, 2015). Therefore, facilitating legal border crossings into the United States while maintaining secure borders can have detrimental economic effects on the country.
What has been the economic impact of terrorism on U.S. and Global Markets since 9/11?
The Federal Bureau of Investigation (FBI) describes terrorism as violent criminal acts committed by persons or groups inspired by designated terrorist organizations or domestic influences. Since time immemorial, domestic and international terrorism has been a significant threat in the United States. The most devastating terrorist attack, whose impact is visible to date, is the 9/11 attack that claimed lives, destroyed properties, and the country’s infrastructure. The 9/11 attacks compounded by other acts of terrorism have had a progressive economic impact in the United States and the global market in various ways, such as limiting international trade, direct financial losses, and redirecting public investment to counter-terrorism measures.
The most immediate and short-run economic impact of terrorism on the U.S., notably, the 9/11 attack, was the tremendous financial loss across the country and the globe. As the literature suggests, the 9/11 hit the United States at a time of a weak economy, pushing the already crumbling economy into recession (Makinen, 2002). It is estimated that the country lost billions of dollars during the 9/11 attack. This economic loss was mainly due to lost wages among employees, as the attack destroyed many businesses. The financial loss also resulted from reduced trade, as household consumption was adversely affected by the decline in disposable income among workers. Although the country recovered quickly from the economic loss due to timely action by the government, the economic impact was significantly visible across households and businesses.
Besides economic loss, disruption of international trade has also been a significant economic impact of terrorism on the United States and global markets. As noted by scholars, terrorist attacks in a nation’s contagious neighbors can adversely affect bilateral trade (Pham & Doucouliagos, 2017). This phenomenon has been visible in the global market following previous terrorist attacks in the United States. For example, scholars observe that the 9/11 attack triggered a brief spike in oil prices in the global market (Makinen, 2002). Research also reveals that the 9/11 terrorist attacks disrupted bilateral trade between the United States and Canada, reducing exports and imports to and from Canada by 8% and 3% respectively, in the third quarter of 2001 (Pham & Doucouliagos, 2017). Arguably, the reduction in bilateral trade resulted from a decline in disposable income, which led to reduced consumption of imported goods in the United States.
The disruption of bilateral trade may have also resulted from the enhanced regulation implemented post-9/11. Most notably, the counter-terrorism measures implemented by the United States to combat similar threats at the international borders may have increased the costs of imports, thus creating a decline in trade in the global market. Overall, the counter-terrorism measures and reduced consumption significantly affected international trade after the 9/11 attacks.
Besides economic loss and disruption of international trade, terrorism has also had long-term economic effects, such as redirecting public investment to counter-terrorism measures, which is visible to date. As noted by Makinen (2002), the United States’ productivity has been adversely affected as many resources are used to ensure security production. For example, Mueller & Stewart (2014) notes that domestic counter-terrorism expenditures per year before the 9/11 attack amounted to approximately $25 billion per year. However, after the attack, spending increased by $75 billion (Mueller & Stewart, 2014). Most notably, the threats of terrorism in the country redirect taxpayers’ money that would have been used in public investment into counter-terrorism measures undertaken by government agencies.
What has been the impact of the General Agreement on Tariffs and Trade (GATT) and the North American Free Trade Agreement (NAFTA) agreements on cross-border trade in North America?
The General Agreement on Tariffs and Trade (GATT) and the North American Free Trade Agreement (NAFTA) are legal trade agreements that bind member countries to a common purpose of promoting cross border trade. The GATT, which was signed in 1947 and later absorbed by the WTO, was established to eliminate barriers to the flow of international trade and encourage the expansion of commerce (Tomz, Goldstein & Rivers, 2005). The GATT/WTO started with just a few states, but its membership has grown significantly over the years. Like GATT/WTO, NAFTA was established to promote trade, but among relatively few countries- the United States, Canada, and Mexico. Regardless of their varying composition, the GATT/WTO and NAFTA have had positive and adverse impacts on cross-border trade in North America in ways such as increasing commerce in the region, promoting duty-free access to other markets, and creating trade imbalances.
A positive aspect of GATT/WTO and NAFTA agreements is that they have helped increase the flow of trade in and out of North America. Since the deal was signed by the trilateral, North America has experienced a significant rise in the sale of goods and services to its trade partners. For example, statistics from a prior study shows that in 2012, the U.S.-Mexico trade reached over 390 billion dollars from 97 billion recorded in 1995 (Barajas, Sisto, Gaytan, Cantu & Lopez, 2014). Arguably, the increased trade between the trilateral countries is facilitated by the elimination of trade barriers by the trade agreement. From an economic perspective, the enhanced trade in North America has been beneficial to both the region and manufacturers. With the removal of barriers and enhanced trade, manufacturers can generate more revenue from exports to other member countries. In turn, enhanced commerce helps North America to grow its Gross Domestic Product (GDP). Therefore, the GATT/WTO and NAFTA enhances trade in North America, yielding positive benefits to both the region and manufacturers.
Furthermore, the legal trade agreements on cross-border trade provide North America with duty-free access to markets. As noted by the U.S. Department of Commerce, the NAFTA facilitated a duty-free trade between the U.S. and Canada by 1998 and eliminated Mexican tariffs on all U.S. exports of industrial products within ten years. Furthermore, the agreement made provision for the phasing out of tariffs on remaining agricultural items such as corn and beans over 15 years (“International trade agreements”, n.d.). Notably, the duty-free provision of the NAFTA exempts North America from paying duty on some of the industrial products exported to Canada and Mexico. This duty-free access to other markets is beneficial to North America because it makes the region’s low-priced products attractive to foreign consumers, leading to more purchases and enhanced economic growth in the area.
However, the agreements on cross border trade have also had adverse impacts on North America’s trade balances. In this context, the trade balance is the difference between one country’s exports and imports within a given period. Arguably, the trade imbalance experienced in North America is mainly obscured by the country’s overall economic performance and increased exports to other member states. However, a study conducted by Scott (2003) shows that United States domestic exports to Mexico and Canada between 1993 and 2002 were 95.2% and 41%, respectively. Nevertheless, Canada and Mexico’s imports to the United States were even higher compared to the latter’s exports. Most notably, the imports during the same period were 195.3% and 61.1% from Mexico and Canada, respectively (Scott, 2003). As can be seen from these statistics, the trade agreement overwhelmingly creates a trade imbalance in North America as the region’s imports to its partners surpass its net exports.
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