Secure America Act

Enumerated powers · passes

The federal government has explicit constitutional authority over immigration and border security. Article I, Section 8, Clause 3 grants Congress the power to regulate commerce with foreign nations, and the Naturalization Clause (Article I, Section 8, Clause 4) provides authority over naturalization. Additionally, the Supreme Court has long recognized the federal government's plenary power over immigration and border control. Funding for border patrol, customs enforcement, and immigration enforcement falls within these enumerated powers. The bill's provisions for technology and surveillance at borders are also tied to the federal interest in regulating foreign commerce and protecting national security.

Bill of Rights · raises concerns · severity: significant

The bill authorizes the procurement and deployment of advanced surveillance technologies, including artificial intelligence, machine learning, and autonomous systems, along the borders. While border searches are subject to a 'border search exception' to the Fourth Amendment, the use of autonomous surveillance systems that can track individuals without active human control raises serious concerns about unreasonable searches and seizures. The Fourth Amendment protects against unreasonable searches and seizures, and the deployment of such technologies without clear judicial oversight or probable cause requirements could infringe on the rights of individuals near the border. Additionally, the bill's funding for biometric entry-exit systems and surveillance towers may lead to warrantless tracking of U.S. citizens and lawful residents, which could violate the Fourth Amendment. The lack of explicit safeguards for privacy and due process in the bill's text is a significant concern.

Individual liberty · raises concerns · severity: significant

The bill's expansive surveillance and enforcement measures could restrict individual liberties without a compelling constitutional justification. The use of autonomous systems to detect, identify, classify, and track individuals in real time, without active human engagement, raises concerns about the government's ability to monitor and potentially interfere with the lives of individuals without probable cause or individualized suspicion. The Ninth Amendment recognizes that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people, and the Tenth Amendment reserves powers not delegated to the federal government to the states and the people. The bill's broad delegation of authority to DHS and CBP to deploy such technologies without clear limits on their use could infringe on the right to privacy and freedom from arbitrary government intrusion. The burden is on the government to justify these restrictions, and the bill does not provide sufficient justification or safeguards.

Decentralization · raises concerns · severity: significant

The bill fails the decentralization test. While border security is a federal responsibility, the bill centralizes decision-making and funding at the federal level, with little role for states or local communities. The four-question test: (1) Individuals and families cannot handle border security on their own, so the first question is answered 'no.' (2) Local communities and counties cannot handle border security without state involvement, so the second question is also 'no.' (3) States could potentially handle some border security measures, but the federal government has a clear constitutional role in immigration and foreign commerce, so the third question is 'no' as well. (4) The bill consolidates decision-making and funding at the federal level, which is the highest level of government, and does not provide for any meaningful state or local input. This consolidation is not the minimum necessary, as states could play a larger role in border security and immigration enforcement. The bill fails the decentralization test, earning a grade of 'D' on this check.

Due process and takings · raises concerns · severity: significant

The bill's use of reconciliation procedures, which prevent a filibuster and restrict amendments, may bypass the normal legislative process and reduce the opportunity for due deliberation and public input. While this is a procedural concern, the substantive due process issue is more significant: the bill authorizes the deployment of autonomous surveillance systems that could lead to the tracking and potential detention of individuals without adequate procedural safeguards. The Fifth Amendment guarantees due process of law, and the bill does not provide clear standards for how these technologies will be used, how individuals will be notified, or how they can challenge government actions based on such surveillance. Additionally, the bill's funding for biometric entry-exit systems may lead to the collection of personal data without clear consent or oversight, raising concerns about arbitrary government action. The lack of explicit due process protections in the bill is a significant constitutional issue.