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.