What we think the government should have the power to do based on a common understanding of it's basic legal principles is very different from the actual, literal power that a person and institution has. If someone is doing something and getting away with it, they have that power whether or not it should be viewed as legitimate power or illegitimate power. The actions of law enforcement exist in physical reality, and what you are referring to is what they should have. The EFF is seeking corrective action to bring reality in line with the constitution. "Is" instead of "ought."

While you're looking at it from a de jure perspective (i.e. power as granted from written law), blackbagboys's post is looking at it from a de facto perspective (i.e. power in the sense of whatever they can actually get away with doing).

The de jure perspective is still worthwhile to consider because although there are definitely frequently overreaches of power, you still have a reasonable chance of challenging such overreaches in our court system.

Do you have a reasonable chance? It seems that unless you are already wealthy, or get a powerful entity to back you up like the EFF or Peter Thiel, that you have very little chance of even having your day in court.

This is why we have nonprofits like eff. Individual cases are one thing, but collective cases make it more powerful for defending rights.

I understand that's why these non profits have spring up, but I don't think their existence means you have a reasonable chance in our legal system. They simply don't have the resources to help everyone

I know, it's a tough question. Ordinary citizens are unlikely to sue government individually. And i am aware EFF doesn't have infinite resources. I prefer them fighting at higher level than individual cases. Cases like encryption being unlawful etc are more important for democracy/freedom than my inconvenience at the border for example.

All of that is reasonable but I was replying to the poster who stated that people still have a reasonable chance in our system. I don't believe that is true any longer, if it ever was

de jure perspective: should, shouldn't

de facto perspective: can, can't

The government shouldn't do what they are doing. But they can, and they do.

But the government grants itself its power from a de jure perspective as well. How did the government come into power in the first place? By consent of the governed, right? Remember public high school civics class? But wait, who decided what “consent of the governed” means, and exactly what level of consent was required to claim legitimacy? Yep, that was the government itself.

Well the State governments at the time ratified the Constitution, so the Federal Government didn't grant itself power; the State governments did.

State governments can still take power away by convening a Convention to Amend the Constitution and then ratifying a Constitutional Amendment.

The fact that you can technically sue is nice, I guess, but most people do not have the time or resources (or the fortune of EFF’s attention) to do that.

And of course the government can and does give itself authority. All authority of the United States government even at the most fundamental and historic level comes from, well, itself. The very foundation of the government comes from the government deciding what counts as “consent of the governed,” obtaining that level of consent, then going forward with all the authority it decided to grant itself.

That is why we have the separation of powers. The people writing law do not have the ability to interpret or enforce it and they can be replaced by the people they represent.

Unfortunately Montesquieu wasn’t an economist or a game theorist, so he apparently didn’t realize the now obvious flaw in the idea of separation of powers, which is that it is in the best interest of all branches of government to collude most of the time.

The border has a general mandate for search. If they want to search it, they can search it. Searches of this sort are rare, but seemingly well supported in law. Unfortunately, IIRC this power also extends about 50mi from any land border, enabling vehicle searches waaaay past the "border".

If the South wall is put into place, it might be possible to justify reducing the margin in which they can conduct searches without warrant, but at the moment it's a crucial tool both practically and in the minds of those charged with defending the border.

Sadly, a considerable number of people in the U.S. are dead set against the wall, and don't understand that the requirement for ladders and climbing makes non-customs crossings more conspicuous and time-consuming, making unpredictable and regular patrols considerably more effective whether or not the wall proves to be a total impasse.

It's 100 miles from the border. Which covers almost 2/3's of Americans.

https://www.aclu.org/other/constitution-100-mile-border-zone

How could a border wall possibly influence searches of personal devices at crossings far away from it? This makes no sense.

> How could a border wall possibly influence searches of personal devices at crossings far away from it? This makes no sense.

I did not make that argument, sorry if I wasn't clear enough.

Can you explain what your second paragraph means, if not that?

"Sadly, a considerable number of people in the U.S. are dead set against the wall, and don't understand that the requirement for ladders and climbing makes non-customs crossings more conspicuous and time-consuming, making unpredictable and regular patrols considerably more effective whether or not the wall proves to be a total impasse."

YIKES.

https://mitpress.mit.edu/books/walled-states-waning-sovereig...

> Why do walls marking national boundaries proliferate amid widespread proclamations of global connectedness and despite anticipation of a world without borders? Why are barricades built of concrete, steel, and barbed wire when threats to the nation today are so often miniaturized, vaporous, clandestine, dispersed, or networked?

Because some specific threats, specifically to sovereignty, can be deterred, retarded, and/or prevented by a wall.