4.
OGDEN MILLS SHOOK HANDS AND GREETED HIS FORMER colleagues as he took his seat before the House Committee on Interstate and Foreign Commerce on April 24, 1930, where he would propose a plan to rein in the Border Patrol. Born into wealth and social status, Mills attended Harvard for his undergraduate and law degrees before pursuing a political career, serving first in the New York State Senate and then three terms in the U.S. House of Representatives from 1921 to 1927.1 He had the square jaw and gravitas of a politician and seemed destined for higher office. He ran for governor of New York in 1926 but lost to Democrat Alfred E. Smith, who would be the Democratic nominee for the presidency two years later. After the loss, Mills used his connections to be nominated as treasury undersecretary, the number two position, in the administration of Calvin Coolidge, and then stayed on with Herbert Hoover. He served under Treasury Secretary Andrew W. Mellon, the famed banker. Mellon, aging and aloof, was not interested in the public duties of the job. Mills assumed this role and became the face of the Treasury, testifying before Congress and speaking with the media at the height of the economic boom in the Roaring Twenties.
After the 1929 market crash, Mellon’s reputation was tarnished and Mills played an even bigger role. In 1932, Hoover was fed up with Mellon and sent him abroad as the ambassador to the United Kingdom. Mills was confirmed as treasury secretary for the final year of Hoover’s term. Mills’s legacy would be his insistence that in the face of the Great Depression, the country needed austerity measures to maintain a balanced budget, a policy that is today widely viewed as having deepened the crisis. Although he was a childhood friend and neighbor of Franklin Delano Roosevelt, Mills campaigned vigorously against him in the 1932 election and remained an outspoken critic of the New Deal. He wrote two books about the ideological shift that had occurred as Republicans became the party of individualism while Democrats backed the big government programs of the New Deal, which he referred to as “well-fed” collectivism. His second book, The Seventeen Million, sought to provide a voice for the 17 million people who had voted against Roosevelt in 1936, an idea that presaged today’s Republican messaging around the 74 million who voted for Donald Trump in 2020.2 Mills was discussed as a possible Republican presidential candidate until his early death in 1937 from a heart attack at age fifty-three.
In April 1930, Mills was appearing before the House Committee to discuss a proposed bill to reshape and rein in the Border Patrol at the behest of border communities.3 There was already concern in Congress about the broad search authority and the still-undefined extent of the border zone. Local residents strongly disliked the new police presence in their communities. Some, of course, engaged in smuggling and were threatened by the new policing. Others were ranchers or farmers who relied on Mexican labor. Still others were American citizens of Latino/a descent who were constantly being hassled by the Border Patrol.
The Border Patrol recognized from the beginning that they could not effectively watch the border line itself because they did not have enough agents. Consequently, many agents opted to patrol within the United States, which meant they could not observe an individual violating immigration laws by crossing the border, so they had to use other means to decide whom to stop. This often meant racial profiling people of presumed Mexican appearance in order to stop a vehicle without a warrant to check an individual’s documents.4 In its first decade of existence, the number of people the Border Patrol apprehended peaked at 35,274 people in 1926. The agents, however, made many more stops to question people: 2,220,952 in that same year. In other words, 98 percent of stops and interrogations did not result in an apprehension.5 In some sectors, the numbers of stops far exceeded the population of the area, which meant that many individuals were being stopped repeatedly to ask for their documents.
One of the authors of National Origins Quotas, Senator David Reed of Pennsylvania, assured concerned lawmakers that the Border Patrol’s mandate “only applies to the arrest of aliens in the act of entering the country. There has been some doubt about the authority of those men to make arrests. We want to make it very clear that they have no right to make arrest except on sign of a violation of the immigration law as to illegal entry. They have no right to go into the interior city and pick up aliens in the street and arrest them, but it is just at the border where they are patrolling that we want them to have this authority . . . [the illegal entry] must be in sight of the officer himself; otherwise, he has to get a warrant. We are all on alert against granting too much power to these officials to act without warrant.”6
Senator Reed’s interpretation of the law was overly optimistic and was not how it was used in practice. Border Patrol agents asked superiors about how they should interpret the phrases “entering or attempting to enter” and “in his presence or view.” The Border Patrol relied on an earlier federal court ruling that “the expression ‘entering the United States’ has been construed by the courts to mean that an alien is engaged in the act of entering until he reaches his final destination.”7 This reading of the law meant that if the agents came across someone traveling, they could be described as on the way to their final destination. Some agents would simply wait for people they suspected of being undocumented to leave their place of work to stop them on the road and say they were traveling to their final destination.8
“You Will Have a Border Patrol Where It Belongs, and That Is on the Border”
Ogden Mills proposed several fixes to end warrantless internal stops and searches. Although the Border Patrol was in the Department of Commerce and Labor, the Customs Agency was in the Treasury Department. Mills wanted to merge them.
Mills began his presentation by expressing his shock at the current practices of the Border Patrol, which he found completely inappropriate. He had trouble understanding why the Border Patrol would be operating twenty miles inside the United States, where no one would expect them to be. He said, “I do not know what you gentlemen would do, but if I were traveling 20 miles inside the borders of the United States and I had not been out of the country and someone stepped out from the side of the road and told me to stop, I would not stop because I would think I was being held up.”9
The Treasury Department’s solution combined the Border Patrol, the Customs Bureau, and the Coast Guard into a single agency focused on patrolling only the border itself at coastlines, crossing points, and along the border lines. Part of the problem in 1930 was that American citizens were still free to cross the border at any location they wanted, and they were required to visit a checkpoint only if they had goods to declare. Mills proposed expanding the number of border checkpoints and then requiring everyone cross at those locations. That would funnel traffic there and allow the Border Patrol to watch the line in between. He said, “The concentration of attention on the border will also have the result of eliminating the evils which have arisen out of the attempts to detect smuggling on interior roads. . . . It is not surprising that errors and misjudgments of those officers have occasionally had unfortunate consequences, and there have been many protests.”
Mills also suggested that maybe the Border Patrol should be an arm of the military, because it would be “likely to get probably better men, a higher standard of morale,” rather than the rough and violent men that were currently causing havoc along the border. He assured the committee that if Congress passed the bill, “you will not have a Border Patrol operating 20 miles inside the United States. You will have a Border Patrol where it belongs, and that is on the border.”10
Mills said that the key was to find a balance between government expenditure and control over the border. He speculated that if Congress invested enough money, “you can put 25,000 men along the borders and you can probably make it absolutely so tight that no one can come in.” Milton Garber, a Republican from Oklahoma, scoffed at that idea: “There is no intention on the part of anyone to go to the extreme.”
In the end, Mills’s proposed bill failed not because congressional leaders were opposed to reining in the Border Patrol, but rather due to the costs associated with it. The stock market had crashed only a few months earlier and Congress was not open to new spending bills during a period of financial uncertainty and declining tax revenues. The bill would have doubled the budget for the new border agency. As the country turned its attention to the approaching Depression, jobs were scarce and immigration across the border was declining, seemingly reducing the need for enforcement.
In June 1933, rather than combining the Border Patrol with the Customs Bureau as Mills suggested (which would not occur until 2003), Congress instead merged the Border Patrol with the Naturalization Bureau in the Labor Department. Daniel MacCormack took over as the first commissioner general of the Immigration and Naturalization Service (INS). MacCormack conducted a review of the Border Patrol and immediately shared Mills’s concerns about the agents’ practices. In his first month on the job, he reined in the agents by requiring warrants for all stops. He issued “confidential orders to all district directors prohibiting the apprehension of immigrants without an arrest warrant.”11 Agents and supervisors on the ground were incensed and argued that the order did not recognize the impracticality of agents in remote locations having to contact their supervisors and then judges before making a stop.
In the months that followed the new rules, there was a dramatic reduction in Border Patrol apprehensions. In the El Paso sector, apprehensions were cut in half from June to July 1933.12 In 1934, apprehensions dropped to 11,016, the lowest level on record and only one-third of the rate of previous years. MacCormack also began trainings with field agents to familiarize them with regulations and to weed out violent and unprofessional behavior.13 The first class of thirty-four entered the INS Border Patrol Training School in December 1934.
MacCormack’s efforts to reform and professionalize the Border Patrol were cut short when he died while still in office on January 1, 1937, at the age of fifty-seven. His successors bowed to the will of field agents and rescinded the warrant process because it was impractical. The efforts by Senator Reed and Treasury Undersecretary Mills to end interior enforcement and keep the Border Patrol at the border itself also failed.
On the ground, agents resumed operating as they had originally. Throughout the era, the Border Patrol remained a small force, never more than 1,000 agents, operating in a vast and still sparsely populated border zone. Their small numbers and their remote workplaces meant that their violence toward immigrants and their loose interpretations of the law received little scrutiny. The unanswered questions of whom the agents could legally stop, what amount of cause they needed, and whether they could search a vehicle in the interior of the United States lingered for decades.
One story of a Border Patrol agent who raided a campsite of men he suspected to be smugglers illustrates the “anything goes” ethos in the early years. The agent spotted tracks that indicated a group of men, likely carrying a load of smuggled goods. He followed the trail until he located the men camped for the night around a fire. As the men relaxed, he took them by surprise and was able to subdue them even though he was outnumbered. As the agent searched the camp, he confiscated their guns. One of the men asked under what law he was allowed to seize their weapons. The agent responded, “The law of self-preservation.” An early history of the Border Patrol commended his approach: “No one, then or later, questions his wise interpretation of the rules.”14
However, despite the 1925 legislation that gave expansive authority to conduct stops and searches in the border zone, and the Border Patrol’s culture of writing their own rules, the smuggler was right to question the legality of the agent’s actions. The United States has core constitutional protections for individuals, including the Fourth Amendment, which protects everyone in the United States from unreasonable searches and seizures. The Border Patrol’s regulation that authorized agents to stop and search people without a warrant was at odds with the Constitution.
The Border Patrol’s stop and search authority was destined to be reviewed by the Supreme Court, but that would not happen for almost fifty years. In the meantime, the Supreme Court weighed in on several other cases that established the extent of Fourth Amendment protections in the United States. These cases became the precedent against which the Border Patrol would eventually be judged.