Updated: Apr 23
In 2020, former President Donald Trump designated the U.S. Border Patrol and its parent agency, CBP (Customs and Border Protection), as "security agencies." This was a long sought after designation by both agencies. The title allows them to be less transparent about their operations due to national security concerns. Essentially, it allows them to deny many FOIAs (Freedom of Information Act requests) that the press and human rights organizations use by claiming the information is sensitive to national security needs. On January 31, 2020, former CBP Acting Commissioner Mark Morgan signed the designation making it official.
The problem with this designation for the Border Patrol is that this was and still is completely illegal under 5 USC 7112(b)(6). Here is the exact wording of the statute:
5 USC 7112 (b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes—any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or
(6) any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or
Therein lies the rub: the Border Patrol and its agents are actively "engaged in intelligence, investigative, or security work which directly affects national security." This means that they cannot legally have a bargaining unit any longer under national security laws.
The National Border Patrol Council is illegal and in direct violation of national security laws.
5 USC 7112 exists because congressional leaders recognized how dangerous a rogue union bent on political objectives would be to not only a sitting president, but to national security as well. The Border Patrol union consists of actual agents. All of the union stewards are agents with access to national security information and intelligence that can be used politically and operationally if they so choose. Even the CBP's own Advisory Panel to the Homeland Security Advisory Panel stated that if the CBP and Border Patrol were designated as "security agencies," they could no longer have unions.
And we can clearly see why this law exists as we watch the Border Patrol union use their positions as federal law enforcement officers with access to national security information in order to wage a war against President Biden and his administration. It's important to note that before leaving office, Trump also signed a new agreement with the union allowing them to increase their collective hours worked on union issues from 18, 000 hours a year to 153,920 hours a year.
Why such a drastic increase?
It is not as if the Border Patrol increased the number of agents and needed nearly 9 times as many union hours. The reason for this increase can be seen in these last 2 years of the Biden administration. Border Patrol union stewards have been spending much of this time coordinating with Republicans on photo ops, posting pictures of dead migrants in violent accidents on their Facebook accounts, working with Texas Governor Greg Abbott on his racist, cruel and illegal political theater that is Operation Lone Star, endorsing only anti-immigrant Trump approved candidates, appearing in a television advertisements for a candidate where the president of the union, Brandon Judd, is seen shooting at President Biden, Speaker of the House Pelosi and Senator Mark Kelly, having former Trump administration officials like Stephen Miller on their podcast which is produced by alt-right mag Breitbart, and on and on.
The simple fact is that the union is breaking the law by simply existing. They are using their positions as federal law enforcement officers with access to secret and confidential national security information to obstruct the current administration and engage in politics, which is the exact reason why this law was enacted.
At a minimum, the union must disband. Since this involves national security, the Federal Bureau of Investigation should investigate the union and its stewards to see if any national security laws were violated.