To Fix the United States’ Corrupt Border Agency, Defeat Its Union

Immigration reform is likely to be a high priority for the Biden Administration, and while most of the attention will focus on substantive reforms and enforcement strategy, the agenda should also include rooting out corruption in U.S. Customs and Border Protection (CBP), the agency charged with protecting the United States’ land borders. CBP is the nation’s largest federal law enforcement agency. It is also among its most corrupt. Border Patrol agents and CBP officers are regularly arrested—at a much higher rate than other federal law enforcement personnel—for a variety of corrupt activities, including accepting bribes, smuggling drugs, collaborating with organized crime groups, and selling government secrets. (In one case, a Border Patrol agent even gave a cartel member a literal key to a border gate.) All told, U.S. border guards accepted an estimated $15 million in bribes over the 2006–2016 period. Senior CBP officials have estimated that as many as 20% of CBP employees may be corrupt, and almost half of CBP personnel say that they’ve witnessed four or more acts of misconduct by their colleagues in the preceding three years.

The story of CBP’s corruption has been well told, including in voluminous investigative reporting, an advisory panel report, and congressional hearings. Yet little has changed. And this is not because nobody has figured out what policy reforms could make a difference. Indeed, experts who have studied the problem have laid out, clearly and consistently, a package of recommendations that would make a substantial difference. That package includes two main elements. First, CPB must devote more resources to monitoring and investigating CBP personnel. For example, the agency should hire substantially more internal affairs investigators; subject exiting personnel to regular reinvestigations (including periodic polygraph examinations); and equip all officers and agents with body cameras and mandate their consistent use. Second, leadership must reform CBP’s culture, which too often tolerates bad actors and punishes whistleblowers, and must provide better training in how to respond to misconduct.

The failure to address the CBP’s corruption problem, then, has not been due to a lack of viable, feasible reforms. The main problem is political—perhaps most importantly, the entrenched opposition of the National Border Patrol Council (NBPC), the powerful union that represents Border Patrol agents. The NBPC has systematically blocked efforts to crack down on corruption. Indeed, according to James Tomsheck, who led CBP’s internal affairs unit from 2006­–2014, NBPC leadership opposed each and every one of his integrity proposals over his eight year tenure. (For example, the union opposed CBP’s initiative to proactively identify corrupt officers and agents through polygraphing.) If the Biden Administration is serious about rooting out CBP corruption, it will need to take on the NBPC.

The Biden Administration can overcome NBPC intransigence. The Federal Service Labor-Management Relations Statute (FSLMRS), which entitles federal employees to bargain collectively, authorizes the President to exclude from the Act’s protections the employees of any agency that “has as a primary function intelligence, counterintelligence, investigative, or national security work.” The President therefore has the statutory authority to designate Border Patrol agents as national security employees, thus excluding them from the collectively bargained protections that shield corrupt CBP personnel and obstruct new integrity policies. Among other things, exempting CBP officers and Border Patrol agents would allow CBP management to more quickly and consistently discipline and terminate corrupt personnel and expand the use of helpful investigatory tools such as polygraph examinations.

Given CBP’s critical national security role—a role it consistently emphasizes (see here and here)—it’s easy to make the case that CBP employees can be exempted from the FSLMRS. CBP, after all, is the agency primarily responsible for securing the United States’ land crossings from terrorists. Consider, in this regard, that CBP operates radiation detection equipment at many ports of entry to apprehend terrorists attempting to enter the country with a so-called dirty bomb; the prospect of a corrupt CBP officer operating one of these detectors is surely as dangerous as a corrupt TSA officer or FBI agent, both of whom are classified as national security employees.

The primary obstacles to classifying CBP employees as national security employees, and thus exempting them from the collective bargaining protections of the FSLMRS, are political. First, such a move might be perceived—and would certainly be characterized—as political retaliation against a union that backed former President Trump. Second, such a move could be spun as anti-union, which might be problematic for President Biden given his union-heavy electoral coalition.

But these political concerns should not be overstated. It’s hard to imagine that many Biden-aligned unions would be particularly bothered by a move to undercut a union that, among other things, denounced as “despicable” a new CBP award honoring personnel who deescalate situations and avoid using force. More importantly, CBP’s corruption is so pervasive and so harmful that the Biden Administration should be willing to pay the political costs to clean up the agency. By opposing integrity reforms in CBP, the NBPC is, quite literally, endangering U.S. national security. Exempting CBP employees from collective bargaining protections, and then pressing ahead with a comprehensive package of anticorruption reforms, is both legal and the right thing to do.

16 thoughts on “To Fix the United States’ Corrupt Border Agency, Defeat Its Union

  1. Hi Sam, thank you for this post! I loved how you distilled such a complex issue down so well and provided a relatively simple solution, great job. I’m wondering if there’s any fears that this formal union structure and reluctance to reform would remain, even if informally. Are you worried about a lingering culture of impunity and corruption that would stymy efforts to reform?

    • CBP’s culture is absolutely a concern. One of the fundamental problems with the agency is that it is staffed by officers and agents hired hastily and recruited with a sales pitch that they’d be defeating terrorists, not patrolling lonely border roads for hours on end. That’s actually one of the reasons that reinvestigations of existing personnel rather than just stepped-up vetting of new recruits is so important.

      That all being said, there’s a debate over how representative NBPC is of the Border Patrol rank and file. I think many probably went along with NBPC’s extreme politicization because being in Trump’s good graces won the union pretty big concessions during the last round of contract negotiations. That is over now.

      Changing CBP’s culture won’t be easy. There are a lot of reforms that DHS leadership must implement. For now, NBPC stands in the way. That must be addressed.

  2. This is a fascinating post and I learned so much from it! I agree with your assessment that the seriousness of the corruption within the CBP is enough for Biden to stomach the political costs. I’m curious to get your thoughts on any issues of getting an anticorruption package through the Senate? Biden may be able to stomach the political costs and appearing anti-union, even in this specific situation, but do you think certain Democratic Senators in more vulnerable political positions would shy away from this kind of reform. For example, Sen. Joe Manchin backed Trump’s immigration proposal; do you think he would be keen to reform the CBP?

    • Thanks very much. Great question. Many of the proposed reforms don’t require legislative action. They can be accomplished through internal policy changes (e.g., personnel policies, security procedures). Whether Congress would have an appetite for more significant reform is unclear as it hasn’t been a big topic at the start of the Biden administration. Over the past decade+ there has certainly been bipartisan agreement at times over problems at CBP. That being said, it’s unclear what can get through the Senate that doesn’t fit into the reconciliation rubric.

    • I actually think there’s a decent amount of anticorruption legislation that administration could get passed. My thought in this context is that some Republicans would probably be pretty happy with taking on a powerful government union, even if the administration lost some Democratic votes. I also think Sam’s point on how Biden-aligned unions find the CBP union “despicable” highlights that some moderate Democrats who might seem queasy at first may actually be swayed.

      • You might be right, Michael. I’d just note that NBPC was a Trump favorite so I imagine it might still have its protectors in Congress among the MAGA crowd. But, as you say, anticorruption legislation by itself might have a chance.

  3. Hi Sam – thanks so much for this incredibly intriguing and engaging post! You lay out an excellent case for why this is an important issue for the Biden administration to address. I wonder – should we be afraid that the precedent set in using the FSLMRS exception could actually be a tool of corruption for a future, less-well-meaning administration? While I agree that the NBPC’s stranglehold ought to be tackled in this case, I worry about less clear-cut cases where a president, still acting under the addressing corruption, could vaguely cite national security concerns to trample on employee protections.

    • I don’t think the risk of a President taking advantage of FSLMRS, under the guise of corruption or otherwise, is zero, but I’m not too concerned by it. For starters, the FSLMRS provides a fairly clear standard. More significantly, federal employees enjoy a host of protections independent of their collective bargaining agreement that are beyond the reach of the President to circumvent.

      More broadly, I think the fact that so many federal employees are exempted puts in relief how odd it is that CBP personnel are not.

  4. Hi Sam! Thank you for this post. I think you pointed out great proposals to deal with this problem. My question is regarding the proposal of removing this group from the collectively bargained protections. I agree that the rule seems to include this group in its application. However, since the exemption has not been applied for several years now, do you think this will lead to a weaker case for the exemption being used only now?

    • Interesting question, Astrid. I’m not sure. I do think there is a very strong case to be made that certain CBP personnel fit within the plain text of the provision. If the determination is reviewable — and I’m not certain that it would be — the President would be entitled to significant deference. One might also imagine a court weighing a reliance interest heavily, but again I think the national security rationale is persuasive.

      • Thank you, Sam. I have a follow-up question, but I am not sure if it is too much of labor law. Is it possible to have different unions based on different criteria for the same “big general group”? I am wondering whether they might try to get around this proposal by creating smaller unions and at the end act together anyways.

        • My understanding of the FSLMRS is that it changes the status of the classified employee rather than their union. That is, it renders them ineligible to engage in collective bargaining through any union.

          That being said, employees who are not classified as national security employees (e.g., CBP administrative staff rather than sworn officers) would be free to remain in or join a union, which could then collectively bargain on their behalf.

  5. Sam very interesting post! I wholly agree with your argument and suggestions. But for the sake of argument, let’s say that CBP is deunionized, how effective can periodic poly exams serve as a deterrent. My guess is that it would be a powerful deterrent but I am worried about the accuracy of such examinations and the potential that some people will beat it.

    • My completely inexpert understanding is that polygraphs can be effective when administered skillfully. This is why the intelligence community continues to use them. One big downside is that they have a fairly high false positive rate, which, if you’re worried about spies (or cartel collaborators), is probably a price worth paying. But polygraphing is just one of many reforms that should be undertaken, and I see no reason why CBP would subject new recruits to them but not existing personnel given the high rate of corruption in the ranks.

  6. I really enjoyed this post, Sam! This is a compelling solution to perennial problems with CBP, which made me think seriously about the potential for change. My concern is that if this change were enacted – particularly through a route that, like classification standards, would require no legislative action – another, less reform-minded President could easily reverse it, and allow malefactors to regain control. Do you have thoughts about how this change could be made more durable?

    • I think that’s a valid concern, Mayze. It’s worth stressing just how unusual the level of politicization of NBPC is. It aligned itself with President Trump and union leadership effectively became campaign surrogates. So, if President Trump runs in 2024, he might well reverse such a designation, but I wouldn’t expect that to be a priority of a more traditional Republican president. I think that reforms enabled by classifying CBP personnel as national security employees would, however, be more lasting because of bureaucratic inertia and the bad PR that could result from loosening integrity policies. The risk could be entirely eliminated by congressional action, of course.

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