Armed Militias Are Breaking the Law — And the Border Patrol Might Be, Too

This spring, camouflaged men armed with AR-15s patrolled America’s border with Mexico, searching for undocumented immigrants crossing into the United States. Identifying themselves as “Border Patrol” and “policía,” members of this squadron rounded up and detained hundreds of migrants in New Mexico, including young children. Videos of these roundups circulating online show men clad in military-style fatigues, with official-looking badges, detaining terrified groups of migrants while brandishing firearms.

The people carrying out those detentions were not U.S. Border Patrol or law-enforcement agents: They were private citizens affiliated with the United Constitutional Patriots (now Guardian Patriots), one of several paramilitary vigilante organizations that have taken it upon themselves to supplement the federal government’s work at the border. That is unlawful — and, what’s more, the federal government’s acceptance of this “help” may itself violate federal law.

The U.S. Border Patrol apparently has been accepting help from such groups for several years. For example, in a 2016 report from Mother Jones on vigilantism at the border, one Border Patrol agent told a group called the Three Percent United Patriots, “I love having y’all out here, man. It impresses me that you guys come out and do my job for me for no pay at all.” Likewise, a member of the Arizona Border Recon group told ABC News in 2017 that the Border Patrol and other law enforcement agencies “are happy” such groups “assist them.”

And the United Constitutional Patriots’ spokesman, Jim Benvie, told The New York Times in April, “we hold [the migrants] until Border Patrol comes. Border Patrol has never asked us to stand down.” Benvie’s group also reportedly has facilitated private efforts led by Stephen Bannon and Kris Kobach to build a portion of border wall to supplement federal construction in New Mexico.

As vigilante conduct at the border has become more and more common, such activity has come under some long-overdue scrutiny: In June, Benvie was indicted on federal charges of impersonating a U.S. Border Patrol agent stemming from the United Constitutional Patriots’ detention activities.

But Benvie and members of these vigilante groups are not the only ones who appear to be violating federal law. Border Patrol agents and any other federal employees accepting vigilantes’ help may well be violating a federal statute called the Antideficiency Act. That law generally prohibits federal employees from accepting “voluntary services” — that is, services not paid for with federal dollars appropriated by Congress. And that is precisely what these vigilantes are providing.

This ban on accepting voluntary services, along with the act’s other prohibitions against obligating funds without a corresponding appropriation, helps to preserve the constitutional separation of powers: It protects Congress’s power of the purse. Specifically, these provisions ensure that executive branch agencies do not undermine Congress’s appropriations power — and its resulting check on executive branch activity — by augmenting, through outside means, their congressionally approved funding. Federal employees who violate the Antideficiency Act may face criminal penalties, and agencies are required to report violations to Congress. Then, Congress can defend its constitutional prerogatives through oversight or legislation.

Indeed, the Department of Homeland Security — the Border Patrol’s parent agency — purports to take the Antideficiency Act seriously. So seriously, in fact, that last week the agency refused private donations of soap, toothpaste and diapers that began pouring in to Border Patrol facilities after news broke that children were being detained in squalid conditions without access to basic hygiene items.

A former Customs and Border Protection official explained to the Texas media that, under the Antideficiency Act, the agency could not legally accept those donations: “It’s partially a constitutional thing about Congress controlling the purse and only being able to spend money that Congress gives, but it’s also about ethics. Without a change in law, DHS, CBP and Border Patrol cannot accept those private donations.”

The Department of Homeland Security must comply with federal law, including the Antideficiency Act, in all situations — not just when compliance suits the administration’s policy preferences. And Congress should be concerned about this end-run around its appropriations power as well.

Border funding is a perennially contentious issue, and appropriations packages — including the $4.6 billion spending bill passed this week — typically include at least some limitations on an administration’s actions at the border. By accepting aid from vigilante groups, the Department of Homeland Security not only is potentially violating federal law, but also skirting these limitations and evading congressional oversight. Exploring these matters further is well within the jurisdiction of Congress, as well as the Department of Homeland Security’s Office of Inspector General.

Owens is a litigator with the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. She was previously a senior counsel for the ranking member of the Senate Judiciary Committee and an attorney-adviser in the Justice Department’s Office of Legal Counsel