by Jacob G. Hornberger

September 22, 2026

As President Trump is showing us, in order to “secure the border,” a borderlands police state, including his much-vaunted Berlin Wall along the border, is not sufficient. He is showing us that the deadly, harsh, and brutal immigration police state must be expanded nationwide, even to the point of inflicting death on American citizens themselves.

In other words, there is no such thing as a kind, benevolent, considerate, and respectful way to secure the border. Instead, securing the border requires brutality, cruelty, and extreme harshness — nationwide.

It’s tempting to convince oneself that America’s system of immigration controls adversely affects only foreigners. Not so. It also destroys the rights and freedoms of the American people, including economic liberty, freedom of association, liberty of contract, privacy, and private ownership of property.

Moreover, at the risk of belaboring the obvious, a brutal nationwide police state, including massive surveillance, is the opposite of a free society. Thus, any nation that commits to “securing the border” will necessarily be a nation in which people are not free.

Conversely, living in a genuinely free society necessarily means adopting a policy of open borders — that is, one in which there is no immigration police state, ICE, Border Patrol, or any restrictions on the rights of people to cross borders.

In other words, a choice must be made: a system of immigration controls or a free society. There is no way to have both.

There are, of course, multiple examples of how America’s system of immigration controls has, over time, destroyed the rights and freedoms of the American people, such as highway checkpoints that subject Americans to interrogation and warrantless searches; roving Border Patrol checkpoints that do the same thing; warrantless trespasses onto privately owned ranches and farms, not just on or near the border but also within 100 miles of the border; violent raids on privately owned American businesses; the criminalization of American citizens who hire, transport, or care for illegal immigrants; and much more.

Last week, the Second Circuit Court of Appeals reminded us of another major destruction of the liberty and privacy of the American people, thanks to America’s police-state system of immigration controls. The court affirmed the power of federal officials to manually search the cellphones of people arriving in the United States from overseas, including American citizens.

No warrant is required. No probable cause or even reasonable suspicion is necessary. Just follow orders to hand over your cellphone (and your entry code) to federal officials, who wield the authority to peer into the most private parts of your life, including your personal relationships, health records, business matters, and everything else.

Tell me: How can such federal power over the American people possibly be reconciled with the principles of a free society? It can’t. But because Americans have become accustomed to living like frogs who are put into a pot of water and then slowly boiled, Americans just put their heads down and don’t make any fuss.

After all, American citizens in Minneapolis learned what can happen when they make a fuss. They can get killed, just like citizens in Hong Kong, Beijing, or Tehran when they make a fuss. Better to simply stay home and play it safe. In the process, the fundamental, God-given right of freedom of speech is destroyed.

Why should an American citizen surrender his fundamental, natural, God-given rights of liberty and privacy simply because he has chosen to travel to a foreign country? I thought that natural, God-given rights preexist government.

How did the Second Circuit justify the destruction of these fundamental, natural, God-given rights? You guessed it — immigration controls! The appellate judges, citing judicial precedent, say that the federal government has inherent powers of sovereignty and, therefore, the authority to control anyone, including American citizens themselves, who wishes to cross the international border and enter the United States.

Really? I didn’t know that the federal government had inherent powers. I thought that the federal government’s powers were limited to those enumerated in the Constitution. I thought that the Framers rejected the old European/Asian/African concept of the inherent powers of the sovereign.

The judges on the Second Circuit undoubtedly realize that the Constitution didn’t give the federal government the power to control the movements of people across America’s international borders, any more than it gave the federal government the power to control the movements of people across state borders. Thus, in order to protect the government’s authority to search people’s cellphones, at least two of the judges on the 3-judge panel had no choice but to resort to the old nonexistent concept of the inherent powers of the sovereign.

However, there is one bright spot in the Court’s decision: the concurring opinion of Judge Lee. While voting to uphold the search in this case, she did so because, she said, there was reasonable suspicion to search the defendant’s phone in this case. But she disagreed with the majority’s broad suspicion-less authority to conduct cell phone searches.  She wrote:

A standard that permits a search of every international traveler’s cellphone without suspicion means that any person who goes on vacation or a business trip anywhere outside the country can be subject, upon their return home, to review of their medical records, financial information, personal messages, internet search and viewing habits, location tracking, and any other private information that may be contained on their cellphone through stored data, apps, or cloud connection. Under the majority’s view, law enforcement at an international airport, whether it is TSA, Customs and Border Protection, or ICE, has unlimited power to review the data on any traveler’s cellphone. This unrestricted authority to search is not a carefully-crafted exception to the Fourth Amendment to address an immigration or contraband-related interest in controlling who or what comes into the country; it eliminates Fourth Amendment protections in this context.

Good for Judge Lee! Her concurring opinion might well mean a full “en banc” review of the holding and, later, U.S. Supreme Court review.

Of course, the destruction of our liberty and privacy isdesigned to keep us safe. After all, think of all the scary boogeymen who could come and get us if we didn’t surrender our rights of liberty and privacy to the federal government. Drug dealers and terrorists are among the biggest and scariest boogeymen. Never mind that they are brought into existence by the U.S. government’s drug-war policies and foreign-interventionist policies. Don’t you feel safer knowing that an American drug dealer or American terrorist will be discovered after going on vacation in some foreign country by having his cellphone searched? Never mind, of course, that he’ll probably leave his drug-dealing cellphone or terrorist-planning cellphone at home when he goes on vacation overseas. Never mind that it is ordinary, law-abiding Americans who will be having their privacy invaded upon returning to the United States from abroad.

As I detailed in my recent book The Case for Open Borders: A Primer, there is one — and only one — solution to this deadly, destructive, and horrific police-state immigration morass — open borders — that is, the free movement of people across borders. A system of open borders is the only system that is consistent with liberty, free markets, private property, privacy, life, harmony, religious values, and the natural, God-given right to the pursuit of happiness. Anyone who wants to be free — genuinely free — must choose liberty over police-state tyranny and oppression.