6.

A Reasonable Distance

HERBERT BROWNELL JR. KNEW NOTHING ABOUT THE BORDER when he became the attorney general of the United States in 1953, but decisions he would make continue to affect the lives of people in the border zone to this day. Brownell was born in the tiny town of Peru, Nebraska, in 1904 and attended the University of Nebraska and Yale Law School. He then settled in New York and became active in Republican politics. Brownell served in the New York State Assembly in the 1930s and then became the campaign manager for Thomas Dewey’s successful campaign for governor of New York in 1942. In 1944, Brownell was elected chair of the Republican National Committee, and he managed Dewey’s presidential campaigns in 1944 and 1948. In 1948, Dewey was the heavy favorite over the unpopular incumbent Harry Truman, and several newspapers, including the Chicago Daily Tribune, went to press early on election night with the headline DEWEY DEFEATS TRUMAN. The shock loss for Dewey led to the famous photos of a beaming Truman holding the erroneous headlines. For the 1952 election, Brownell turned his attention to Dwight D. Eisenhower and encouraged him to run. Brownell was instrumental in helping Eisenhower win a contested convention over Robert A. Taft, a senator from Ohio and the eldest son of William Howard Taft, the twenty-seventh president of the United States and the chief justice of the Supreme Court who wrote the opinion that became the Carroll doctrine. After Eisenhower won the presidency, he nominated Brownell as his first attorney general.

Herbert Brownell was among the most prominent members of Eisenhower’s cabinet and appeared on the cover of Time Magazine a few weeks into his new job, under the title “A Legal Mind and a Political Brain.” However, he had an unassuming manner and a rather plain appearance. On one occasion, he wore mismatched shoes to testify before Congress. When it was pointed out, he joked, “Just wanted to let the folks know I owned two pairs of shoes.”¹ The Time cover story began with an anecdote about a secretary at Eisenhower’s New York campaign headquarters stealing a glance at the famous campaign strategist when she heard he was in the waiting room. As she peeked around the door, she realized that she had seen him walk by her desk dozens of times before. She exclaimed, “Oh, is that him? He looked so unimportant I didn’t think he could possibly be Mr. Brownell.”²

Brownell guided the Department of Justice through the early years of the civil rights movement and supported desegregation efforts, which resulted in many enemies in the South. He proved instrumental in convincing Eisenhower to send federal troops to Little Rock, Arkansas, in 1957 to ensure the desegregation of Central High School. Brownell also established the system of having the American Bar Association vet judicial nominees. Eisenhower considered him for several Supreme Court seats that opened up late in his term, but decided that southern senators would derail his nomination. These seats instead went to William Brennan, Charles Whittaker, and Potter Stewart. Brownell was again considered for the court in 1969 by Richard Nixon, but he withdrew his name from consideration for the seat that went to Warren Burger.

Despite his lack of familiarity with the border, as the attorney general of the United States from 1953 to 1957, Brownell found himself in charge of the Immigration and Naturalization Service, which had been moved from the Department of Labor to the Department of Justice in 1940. The week before Eisenhower’s inauguration, The New York Times ran a front-page story under the headline, TIDE OF ‘WETBACKS’ REACHES CREST; 1,500,000 IN SOUTHWEST IN 1952.³ Wetback, a racist term used to describe undocumented people from Mexico, was derived from the idea that immigrants had to swim across the Rio Grande to reach the United States. The use of the term by the U.S. government and by a newspaper like The New York Times illustrates the casually pejorative view of immigrants at the time. The article calls the Mexicans “invaders” while stating that although the Mexicans are “guileless laborers, there is nothing to prevent their hordes from being infiltrated by subversive foreign agents.” Without providing evidence, the article states that they undercut American wages and are a “major factor in the chronic economic and social distress” of many American citizens.

As his term began, Eisenhower tasked Brownell with getting the situation under control. In his four years as attorney general, Brownell would make a series of significant decisions about the border, including authorizing one of the largest roundups of immigrants in the history of the United States.

The Bracero Program

World War II changed the relationship between farmers in the Southwest, Mexican laborers, and the Border Patrol. From Texas to California, large agricultural interests became dependent on cheap labor from Mexico to work the fields. This labor was less important to small mom-and-pop farms but became crucial to the massive ranches and corporate agribusinesses that dominated the region. In the prewar years, the open border and unlimited Mexican immigration, combined with the Border Patrol’s selective internal enforcement, resulted in a large, accessible labor force, but one that was precarious and did not have the same rights as citizen workers. The constant threat of the Border Patrol meant that Mexican workers were forced into compliance: they were less likely to demand higher wages or complain about dangerous conditions.

Border Patrol officials routinely gave congressional testimony describing the dual role of patrolling the border and ensuring workers for agricultural businesses. The Border Patrol did not attempt to prevent immigration completely. Instead, it controlled and managed immigration so that business interests ended up with the type of workers they desired, a role not that distinct from the slave patrols that had ensured compliant labor for plantations a century before.

Willard Kelly, the Border Patrol chief at the time, told a Presidential Commission in 1950 that “Service officers were instructed to defer apprehensions of Mexicans employed on Texas farms where to remove them would likely result in the loss of crops.”⁴ Instead, they would focus on the period after the harvest in order to send the workers back to Mexico. Similarly, during economic downturns, the Border Patrol would step up enforcement to ensure the state did not have to provide for the unemployed laborers. These roundups would often happen just before payday, so agribusinesses got the labor and the agents got their apprehension quotas, but the Mexican workers were not paid.⁵

At other times, when the agribusinesses were desperately in need of labor, the Immigration and Naturalization Service (INS), the parent agency of the Border Patrol, recruited more labor through schemes like the Bracero program. In 1942, as the United States ramped up its war effort in the Pacific, many American men were enlisted, and labor sources for farms dried up. American and Mexican officials drew up a guest worker program to bring Mexican workers to the United States to fill this gap. In the negotiations, the Mexican government demanded protections and minimum wages for their workers, while the U.S. officials negotiated on behalf of the American agribusinesses. During the war, 219,500 Mexican workers came to twenty-four states through the program.⁶

The Bracero program formalized the relationship between agribusinesses in the Southwest and Mexican laborers, establishing a mutually beneficial system. The Braceros sent money home, so other Mexican laborers learned it was profitable to travel to the United States to work. The jobs were difficult and the living conditions poor, but for many it was still better than their options at home. The only real opposition to the system was from labor unions on both sides of the border.⁷ After the war, the Bracero program briefly expired but was then renewed and continued through the 1960s.

Expanding the Border Zone

While there had been legislative and administrative attempts in the 1930s to rein in the Border Patrol by Undersecretary of the Treasury Ogden Mills and INS Commissioner Daniel MacCormack, in the 1940s and 1950s a series of decisions expanded their already significant authority. A 1946 revision to the Border Patrol authorization removed the phrase “in which he believes aliens are being brought into the United States” and replaced it with “within a reasonable distance from any external boundary of the United States.” Previously, agents were supposed to have some belief that a person lacked documents, but after 1946, all warrantless stops were allowed within the geographic area of the “reasonable distance” from the border.⁸ Congress left the extent of that reasonable distance undefined.

In July 1947, the Justice Department published a routine update on immigration policies in the Federal Register. While Congress writes the laws that govern the executive branch of the government, the individual agencies interpret and implement those laws. The Federal Register is the record of the definitions they are using of terms in the laws and specifics on how they are applied. Buried on page 5071, among the three columns of tiny print, there was a clarification of what “reasonable distance” meant for how far the Border Patrol’s special rules extended into the interior of the United States. Without public comment or consultation, the Department of Justice defined reasonable distance as “a distance not exceeding 100 air miles from any external boundary of the United States.”⁹ This simple administrative decision on the size of the border zone has remained in place ever since, allowing the Border Patrol to use its special authority to make stops based on lower evidence standards in large sections of the interior of the United States.

In 1952, Congress revised the Border Patrol’s regulations again to allow warrantless searches of property within twenty-five miles of the border.¹⁰ Agents had been frustrated that they could not access private property in the border zone except with exigent circumstances such as a continuous pursuit. As the relationships between agribusinesses and Mexican workers expanded, many farmers became more resistant to intrusions from the Border Patrol. They put up fences, No Trespassing signs, and actively dissuaded the Border Patrol from accessing their lands. The new rules meant that agents were allowed onto private land without a warrant, but they could not enter buildings or houses.

Although the revision passed, it was opposed by many border state senators and representatives. Representative Ovie Fisher, a Democrat from Texas, explained his discomfort with it: “The Constitution authorizes search warrants for the limited purpose of seizing persons or things. It does not authorize fishing expeditions. It does not authorize searches for the purpose of interrogating people.”¹¹ Nevertheless, that is precisely the authority that the Border Patrol agents had in the border zone.

By the early 1950s, the postwar economic boom, combined with the established migration networks between southwestern agribusinesses and Mexican towns, led to a substantial growth in laborers outside the formal Bracero program. The Border Patrol continued to operate in a gray area between an enforcement organization and a labor recruiter for agribusinesses. One change was that the Border Patrol began to legalize some workers it found in the United States, rather than relying on Mexico to identify and send them. They often referred to this process as “drying out wetbacks.” This benefited the agribusinesses because it circumvented the Mexican government’s rules about working conditions and wages. It also benefited laborers because it accelerated the process. They no longer had to wait for a formal invitation; they just crossed the border and began working without proper documents. If the Border Patrol found them, then they received documents on the spot. By the time Herbert Brownell became attorney general, five times as many Bracero workers were legalized after clandestine crossings than came through the official channel.

These local, agribusiness-friendly procedures did not play well at the national political level. The Border Patrol chief, Willard Kelly, called these migrations “the greatest peacetime invasion ever complacently suffered by any country.”¹² The 1951 President’s Commission on Migratory Labor reached the same conclusion. It noted that there had been cross-border traffic prior to World War II, but it was never “overwhelming in numbers.” However, in the years since, “The magnitude of the wetback traffic has reached entirely new levels” and is “virtually an invasion.”¹³ A New York Times radio report in 1951 stated, “There is nothing to stop the whole nation [of Mexico] moving into the United States, if it wants to.”¹⁴ While the United States removed about 11,000 Mexicans in 1943, the number was over 835,000 by 1953. That same year, outgoing INS commissioner Argyle Mackey complained of “the human tide of ‘wetbacks’” and called it the “most serious enforcement problem of the Service.”¹⁵

Operation Wetback

As he took office in January 1953, President Dwight D. Eisenhower was feeling substantial pressure to bring some order at the border. The media and congressional attention to immigration meant the border situation became one of the first issues Herbert Brownell tackled as the new attorney general. Brownell took a two-day tour of the border in August 1953 and came away “shocked” by the “serious and thoroughly unsatisfactory situation.”¹⁶ Although he had no knowledge of the border, or of diplomatic relations with Mexico, Brownell was an expert at campaigning and creating a spectacle to signify action. He began working on several steps to orchestrate a well-publicized crackdown at the border. Mexican Secretary of Foreign Affairs Luis Padilla Nervo, however, presciently noted that the problem was difficult to solve: “as long as the wetbacks could find work, the illegal border traffic would continue.”¹⁷

Brownell’s first step was an immediate increase in the number of Border Patrol agents. At the time, there were only 1,080 agents, 750 of whom were on the Mexican border. He proposed adding 200 more agents to the Mexican border. Brownell also began working on a plan called Operation Cloudburst that would send 4,000 U.S. troops to the border in a show of force to impress the American public and demonstrate action on the issue.

Brownell took the finalized plan for Operation Cloudburst to Eisenhower for his consideration, but Eisenhower did not make a decision right away. Instead, he discussed it with an old friend from his military days, retired Lieutenant General Joseph Swing. Swing was concerned by the use of the military within the United States, which was banned in most instances under the Posse Comitatus Act of 1878, which removed federal troops from the South in the aftermath of the Civil War. Swing instead suggested another idea: Eisenhower should nominate him as the next INS commissioner so he could solve the problem of the border himself.

With a hair-trigger temper but a reputation for loyalty to his troops, Joseph Swing was a career military officer who served in France in World War I and was the commander of the 11th Airborne Division in World War II.¹⁸ He graduated from West Point in 1915 in the same class as future president Eisenhower and his first commission was with General John Pershing at Fort Bliss in El Paso, Texas, in 1916, when he was part of a three-week incursion into Mexico in an attempt to arrest Pancho Villa, which became a diplomatic dispute. Swing’s experience in Mexico made him particularly sensitive about the impact of American troops on diplomatic relations with Mexico.

When Eisenhower told Swing about Attorney General Brownell’s plan to send troops to the border to solve the immigration issue, Swing was alarmed. He knew the presence of troops would be terrible for international relations and he volunteered that he could solve the problem using only Border Patrol agents from the INS. Eisenhower was impressed with his former West Point classmate’s plan and nominated Swing to be commissioner of the INS.

During his tenure, Swing treated the INS as his own fiefdom, similar to how his contemporary, J. Edgar Hoover, ran the FBI. Eyebrows were raised when he put his daughter on the payroll. He was also criticized for taking five hunting trips to Mexico on taxpayer funds, ostensibly to maintain good relations with his counterparts in the Mexican government.

Swing was confirmed by the Senate in late May 1954, and by early June he already had a plan in place for a crackdown.¹⁹ However, he was an adept political operator and he ensured that he had all the important constituencies on board before he acted. Swing framed his plan as something that would benefit the politically powerful agribusinesses of the Southwest, and he reassured them that the result would be more reliable, legal workers through the Bracero program.²⁰ He argued that his plan would eliminate the unfair advantage of some competitors who were using lower-cost undocumented workers.

With agribusinesses on board, Attorney General Brownell announced “Operation Wetback” on June 9, 1954. The Border Patrol joined with local police to set up roadblocks and blockade immigrant neighborhoods to round up people without the proper work documents. They started in California, with plans to move east to Texas later in the summer, and then target interior cities like Saint Louis and Kansas City in the fall.

The media covered the operation heavily, which was part of Brownell and Swing’s strategy. The goal was the illusion of a powerful sweep, with the hope that some people might leave and others would delay coming.²¹ It was also designed to allay fears in the public about the border. The New York Times reporter on the immigration beat somewhat credulously called it “a widespread round up of border jumpers” that was “aimed at permanently sealing the nation’s 2,000-mile Southwestern boundary against a decades-long illegal alien influx.”²² Only two days later, when agents had just begun in California, the same reporter celebrated Operation Wetback as a success: “Federal men think they have border-jumping in hand by patrol system.”²³ The reporter noted that there were hardly any disputes as the raids were carried out: “[Mexicans] know that if caught, although technically liable to imprisonment, they will, because of their overwhelming numbers, be trundled back across the border. So when rounded up, hoeing in a field, trudging across country, or riding northbound freight trains, they accept their fate with characteristic Mexican impassivity and grace.” Only two days into the operation, with no steps taken outside of California, the newspaper of record was already reporting that the immigration issue was essentially solved.

For people caught up in the crackdown, it was horrible. Mexican laborers, many of whom already lived in squalid conditions and worked long hours for meager wages, now had to continuously look over their shoulder for the Border Patrol. The roundup captured an unknown number of American citizens of Mexican heritage who happened not to have a proper ID document on them when they were swept up. There were also tragedies, such as the eighty-eight people who died in Mexicali in July 1955, when temperatures reached 112°F after they were deposited across the border without money or a place to go.²⁴

Operation Wetback was lauded in the press, and even today it is often reported that the Border Patrol apprehended over 1 million people in 1954. However, the 1954 fiscal year ended on July 1, only three weeks after Swing’s operation began. Therefore, only a small fraction of the 1954 apprehensions were from Operation Wetback.²⁵ After the media attention died down in the fall of 1954, Swing reduced the number of agents at the border. The result of fewer agents was a precipitous decline in apprehensions, which Swing used to claim fewer people were crossing the border after the crackdown. In the 1955 fiscal year, which included the majority of the sweeps from Operation Wetback, there were only 225,186 apprehensions.

The 1965 Immigration Act

For President Eisenhower and Attorney General Brownell, Operation Wetback was a success because it turned attention away from the border while southwestern agribusinesses continued to have access to low-cost labor through the Bracero program. General Swing had promised to replace removed workers with legal Bracero workers and he did. While there were 201,380 Bracero workers in 1953, the number increased to 445,197 by 1956.²⁶ The Border Patrol returned to its normal practice of rounding up Mexicans in the border zone and returning them to Mexico in a voluntary removal on the same day. General Swing’s drawing down of agents at the border meant that removals declined from over 1 million in 1954 to only 60,000 in 1960.²⁷

At the end of Brownell’s term as attorney general in 1957, there was another update to immigration definitions in the Federal Register, and the one-hundred-mile border zone was kept, as it has been in every revision to the Border Patrol’s regulations in the decades since.²⁸

By the early 1960s, the Bracero program became mired in an interagency dispute between the INS and the Department of Labor.²⁹ While the INS consistently represented the needs of large agribusinesses in the Southwest, the Department of Labor was influenced by labor unions to crack down on low-cost workers from Mexico. By 1963, the Bracero program was viewed as a relic of the past. The program was criticized for its poor conditions for Mexican workers, its low wages that were said to undercut American wages, and its impact on small farms who did not have the same ability to access the program as massive factory farms.³⁰ Congress did not renew the program and it was allowed to lapse on December 31, 1964. The New York Times editorial page cheered: “When wages and working conditions in the fields approach some minimum level of decency, there will be no shortage of American workers available to harvest the crops.”³¹

Over the program’s twenty-two years, over 5 million Mexican workers used it to find jobs inside the United States.³² Even as the legal mechanism for Mexican farm workers to enter the United States ended, the farms still needed workers and the workers still needed jobs, so the seasonal migration networks continued as they had before, but no longer with any legal right to work.

Even as things calmed down at the border and immigration slipped from the news in the early 1960s, the biggest change for the U.S.–Mexico border was in the works in Congress. Although the Border Patrol focused on patrolling for Mexicans in the United States, through 1965 there was no cap on Mexican immigration to the country. Mexicans were free to enter the United States as long as they passed through a point of entry, but many continued to cross the porous border without paying the border tax or submitting to embarrassing inspections, as they had since the 1920s.

In 1965, Congress passed the Hart-Celler Immigration and Nationality Act, which for the first time set a cap on immigration from Mexico. After the law went into effect in 1968, Border Patrol apprehensions soared and hundreds of cases questioning the constitutionality of the Border Patrol’s stop and search authority made their way through the courts. After fifty years of operating in relative anonymity, the Border Patrol’s authority to stop and search vehicles deep inside the United States would finally be reviewed by the Supreme Court of the United States.