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The Wall Won't End Pot Smuggling at the Border. Legalization Will.

03 Mar 2019

David Bier

Pot is bulky and pungent. That makes it difficult to conceal in,
say, a suitcase or a truck. For that reason, marijuana traffickers
tend to avoid legal ports or entrances, preferring instead to
traverse the expanses of deserts and canyons where Border Patrol
agents are often the only signs of human life. To the extent that
other drugs cross outside normal entry points, they are most often
hitchhikers along for the ride with the weed. In 2013, for example,
Border Patrol agents seized 274 pounds of marijuana for every one
pound of other drugs.

So for those familiar with the history of drug smuggling, there
was a dog that didn’t bark in Donald Trump’s early January Oval
Office address, which was intended to frighten Americans into
supporting a border wall and give him leverage to end the shutdown.
While Trump described the southern border as “a pipeline for vast
quantities of illegal drugs,” he only specifically mentioned “meth,
heroin, cocaine, and fentanyl”—all drugs that typically come
in through formal points of entry. He did not speak of what has
been, for most of living memory, the most-smuggled item over the
Mexican-American border: marijuana.

Pot, and the impoverished undocumented immigrants who often
bring it, are no longer flowing across the border at the rate they
once were. This decline has virtually nothing to do with expensive
security innovations at the border and everything to do with
legalization in the United States. If it were any other industry,
one imagines the president would be delighted: When it comes to
pot, customers prefer to buy American.

Until the government
learns that its own policies are the causes of illegal immigration
and drug smuggling, the problems will continue.

A Century of Fecklessness

President Trump is far from the first politician to use drug
smuggling to justify greater border security. During the 1920s, the
“need” to combat smuggling served as a primary justification for
the creation of the Border Patrol. In 1922, the commissioner
general of immigration warned that “dope, liquor, Chinese, and
alien smuggling has become a lucrative business and is being
carried on by international gangs in which there have been found
the hardest, most daring, and cleverest criminals.” These nefarious
forces, he added, were “backed by no limit of funds and possessed
of the highest powered vehicles.”

In 1924, Congress responded to these concerns and the need to
enforce new restrictions on legal immigration by creating the
Border Patrol. During alcohol Prohibition, the agency went on to
confiscate millions of quarts of liquor. Year after year, the
immigration commissioner’s reports requested more agents, vehicles,
and even airplanes to compete with the traffickers.

Then, in December 1933, national Prohibition was repealed.
Though some states continued the pernicious policy, the illicit
smuggling of booze immediately dropped by 90 percent. By 1935,
liquor importation at the border, and the grave warnings over it,
had disappeared entirely.

The calm, however, was short-lived.

Barely two years later, Congress enacted a nationwide ban on
marijuana through the Marihuana Tax Act of 1937. Suddenly, the
Border Patrol began touting the “drive against narcotics”—in
particular, “Mexican marihuana”—as the justification for
spending more money to “secure the border.” With the official
launch of the “war on drugs” under President Richard Nixon, when
marijuana was classified as having “no currently accepted medical
use and a high potential for abuse,” the Border Patrol focused even
more attention on drug smuggling. In 1972, the Immigration and
Naturalization Service announced that “because of known alien
involvement in illicit drug traffic, Service officers have directed
increased attention to the detection of possible drug
violations.”

Today, the Department of Homeland Security (DHS) spends billions
of dollars a year on drug interdiction efforts. In addition to its
20,000 agents, the Border Patrol has constructed 650 miles of
fencing and “vehicular barriers” designed to stop drug runners
across the deserts. U.S. Customs and Border Protection (CBP) has
nearly 1,500 canine units and a coast-to-coast surveillance network
that includes a fleet of Predator drones. Despite this costly
effort, the DHS inspector general concluded in 2016 that the
department “could not ensure its drug interdiction efforts met
required national drug control outcomes nor accurately assess the
impact of the approximately $4.2 billion it spends annually on drug
control activities.”

Foretelling the doom of Trump’s wall, the Border Patrol
discovered on average more than one drug smuggling tunnel from
Mexico every month from 2007 to 2010, even as it built out
hundreds of miles of security fences along the border. This was in
addition to more than 300 holes per month that people were putting
in the fences. When smugglers weren’t going under or through the
barriers, they were literally driving over them on ramps—a
fact uncovered when an unlucky smuggler’s SUV pinned itself on top
of a fence. Even that hang-up didn’t stop the innovative criminals
from making off with the dope.

Pot Smuggling Plummets

Drug smuggling moves in an underground economy, which
necessarily means rigorous formal statistics are hard to come by.
Importers understandably make no publicly available reports, so the
true scale of the enterprise can only be estimated indirectly, when
government agents bring portions of the invisible market to light.
The absolute amount of drugs that smugglers bring into the country
is many times greater than the amount seized, but drug seizures can
serve as a proxy for changes in the flow of drugs. In the absence
of other developments, a significant increase in drug seizures
likely indicates an increase in the flow.

If the government cracks down on the border, seizures will
increase even if the same quantity of drugs is being smuggled. But
focusing on the amount seized per agent controls for the
level of enforcement activity.

From 2003 to 2009, Congress made massive investments in border
security. It nearly doubled the number of Border Patrol officers
from 10,717 to 20,119, and nearly all of the existing border
barriers were constructed during that period. But the amounts of
marijuana seized per agent remained virtually
constant, with the average agent confiscating about 115 pounds
annually throughout.

In 2013, the Drug Enforcement Administration (DEA) concluded
that marijuana smuggling had “occurred at consistently high levels
over the past 10 years, primarily across the US-Mexico border” and
indicated no particular hope of halting the flow. From 2010 to
2018, enforcement remained roughly constant—no new hires or
fences—but something strange happened in 2014: Seizures per
agent began to decline. By the next year, they were down by a
third. By 2018, the average Border Patrol agent was seizing just 25
pounds for the entire year, or less than half a pound per
week—a drop of 78 percent from 2013. Even within 2018,
monthly seizures during the first quarter of the fiscal year were a
third higher than those in the remainder of the year.

Sources: Figure 1: U.S. Department of Homeland
Security Ofce of Inspector General, “Independent Review of the U.S.
Customs and Border Protection’s Reporting of Drug Control
Performance Summary Report,” 2008, 2011; Customs and Border
Protection, “Sector Profiles,” 2012-2017; Customs and Border
Protection, “Enforcement Statistics FY 2018,” August 31, 2018;
Border Patrol, “Staffing Statistics,” December 12, 2017.

Although it is the most important agency for interdicting
marijuana, the Border Patrol isn’t alone in witnessing the sudden
disappearance of pot smugglers. Its sister agencies in the
DHS—Air and Marine Operations, the Coast Guard, and ports of
entry inspectors with the Office of Field Operations—saw
similarly large drops in marijuana seizures. While full 2018
figures aren’t yet available, all DHS agencies together seized 1.8
million fewer pounds of marijuana in 2017 than they did in
2013—a decrease valued by the department at about $1.5
billion.

Legalization Does What Fences Can’t

The mysterious disappearance of illicit weed did not coincide
with any significant changes in use of marijuana by Americans.
Indeed, slightly more people told government surveyors that they
had used marijuana during the prior year in 2017 than in 2013,
continuing a trend that started before legalization. But the
disappearance did coincide with a nearly sevenfold increase in
legal sales, according to estimates from Arcview Market Research. A
relatively small number of such transactions had gone on prior to
2014 under the auspices of medical use, but full legalization
jump-started the industry.

It was in 2014 that Colorado and Washington state permitted the
first legal sales of marijuana for recreational purposes. Oregon
officially joined the pot party in 2015, Alaska in 2016, and Nevada
in 2017. California opened fully legal dispensaries in January
2018. Massachusetts did the same in November. And Michigan and
Maine have similar plans to be implemented in 2019 and 2020.

By September 2018, one in six Americans lived in states with
legal marijuana sales. After Michigan and Maine open their
dispensaries, nearly one in four will do so.

Some opponents of legalization doubted the black market would
dry up. At least in Colorado, they were wrong. A study commissioned
by the state’s Department of Revenue found that a “comparison of
inventory tracking data and consumption estimates signals that
Colorado’s preexisting illicit marijuana market for residents and
visitors has been fully absorbed into the regulated market.” States
with more taxes and regulations have seen less success, but except
in heavily regulated California, legalization has been accompanied
by major increases in legal sales and moves away from the black
market.

Sources: Figure 2: Arcview Market Research, The
State of Legal Marijuana Markets, 1st-6th editions; author’s
calculations based on drug valuations and amounts from Customs and
Border Protection, “Local Media Releases,” 2013-2018; U.S.
Department of State, “Narcotics Control Reports”; Customs and
Border Protection, “Enforcement Statistics FY 2018,” August 31,
2018; Air and Marine Operations, Reports and Testimony,
2013-2017.

Within the year, two-thirds of Americans will live either in or
next to states where marijuana is legal. Given the ease of travel,
these legal sales can end up supplying places where pot prohibition
is still the law of the land. The Colorado study noted that “legal
in-state purchases that are consumed out of state” are likely
occurring. How far these purchases travel is difficult to know, but
even before Washington and Colorado implemented legalization, a
study by the Mexican think tank IMCO predicted that U.S. domestic
weed would quickly replace the imported stuff, since it would
likely be more expensive to smuggle the plant from Mexico than to
ship it from those two states to any other state except Texas.

Colorado authorities working with the DEA have made several
high-profile busts of interstate smuggling rings. “Residents of
Colorado, and people that I’ll call ‘transplants to Colorado,’ are
moving here, becoming involved in the marijuana industry with the
expressed purpose of hiding their illicit proceeds and their
illicit activities in plain sight under some of the laws that we
have,” said Barbra Roach, head of the DEA’s Denver division, in
March 2017 after breaking up a smuggling operation that involved
shipments to Illinois, Missouri, Arkansas, and Minnesota. Oklahoma
and Nebraska even sued Colorado in an attempt to stop legalization
there, a case the Supreme Court declined to hear in 2016. But no
one disputed that legally grown Colorado marijuana was making its
way to other states.

The increased supply of U.S.-grown cannabis has undercut demand
for the Mexican product and harmed marijuana farmers south of the
border. Growers in Mexico have reported declines in wholesale
prices of 50-70 percent in recent years. “If the U.S. continues to
legalize pot, they’ll run us into the ground,” one marijuana
producer in Mexico told NPR in 2014. “We’re only getting $40 a
kilo. The day we get $20 a kilo, it will get to the point that we
just won’t plant marijuana anymore.”

That is exactly what has happened as the flood of higher-quality
marijuana from the U.S. has begun competing with the illicit plants
from Mexico. CBP itself has hypothesized that one explanation for
the decline in pot seizures since 2014 could be that “legalization
in the United States [h]as reduced demand” for imported
cannabis.

Two Failed Government Wars

Marijuana, thanks to its volume and odor, has traditionally been
the primary drug smuggled into the U.S. between official
points of entry. Those routes are risky and expensive; thousands of
migrants have died in the deserts trying to use them. This is why
drug cartels primarily rely on U.S. citizens to bring more easily
concealable drugs, such as heroin, into the country in their
baggage or on their person through normal ports of entry. They
already have the right to enter, which reduces the reason for law
enforcement to stop them.

Given this dynamic, the decline of marijuana smuggling has made
the Border Patrol, which focuses on areas between ports, of much
less use to drug warriors. In 2013—before the first state
legalization laws took full effect—the average Border Patrol
agent seized drugs that were more valuable than the average
inspector at ports of entry, based on the agency’s own valuations.
With the disappearance of marijuana coming across the deserts, the
value of all drugs seized by the Border Patrol
declined 70 percent from 2013 to 2018. Today, the average port
inspector seizes drugs three times more valuable than those seized
by the average Border Patrol agent.

Sources: Figure 3: author’s calculations based on
drug valuations and amounts from Customs and Border Protection,
“Local Media Releases,” 2013-2018; Customs and Border Protection,
“Enforcement Statistics FY 2018,” August 31, 2018.

The difference is even more dramatic for “hard drugs”: 87
percent of the meth, cocaine, heroin, and fentanyl seized by Border
Patrol agents or port inspectors in 2018 came in through a point of
entry. DHS valued its nonmarijuana drug seizures at official
entrances at $1.5 billion, compared to just $216 million for those
by Border Patrol. In other words, Trump’s border wall won’t touch
the vast majority of hard drugs entering the country, despite him
singling them out in his Oval Office speech. And even if it did, it
would be no more likely to succeed than the fence, agents, or
cameras were in combating marijuana or alcohol.

The cartels, reeling from the loss in marijuana income, have
attempted to replace pot with other drugs, but that proved easier
said than done. The total value of all drugs seized at the
border—at ports or otherwise—has fallen by a third
since 2013. So cartels that invested significant capital in the
marijuana trade are attempting to make up the losses in another
way: by using their drug tunnels to smuggle immigrants across the
border. The profit margins for moving humans are so small, and the
effort has such a large footprint, that only desperate times would
justify using tunnels to bring them in.

“While subterranean tunnels are not a new occurrence along the
California-Mexico border, they are more commonly utilized by
transnational criminal organizations to smuggle narcotics,” a CBP
official stated after the agency busted a group of 30 immigrants
emerging from underground in 2017. “However, as this case
demonstrates, law enforcement has also identified instances where
such tunnels were used to facilitate human smuggling.”

This shift allows Trump to point to the other purpose of his
proposed wall: to keep migrants out. But just as the fences failed
to keep out drugs, there is no evidence that a wall would keep out
people.

Indeed, the border brings together two failed government wars in
one place: the war on illegal drugs and the war on illegal
immigrants.

When Congress enacted the first draconian caps on legal
immigration in the 1920s, illegal entries became a regular
occurrence for the first time. Everyone understood what had created
the problem—the ratcheting back of legal
immigration—and immediately made the comparison to alcohol
Prohibition. In 1926, the immigration commissioner wrote that “as a
consequence of more recent numerical limitation of immigration, the
bootlegging of aliens…has grown to be an industry second in
importance only to the bootlegging of liquor.”

While the war on booze has ended, the wars on drugs and illegal
immigrants have continued at full speed. The origins of these
efforts have long since receded from the national memory, and
people view illegal immigration and drug smuggling like hurricanes:
as natural phenomena that the government manages or mitigates
rather than causes. But as the effects of marijuana
legalization prove, smuggling is not caused by traffickers; it’s
caused by government.

Fixing Illegal Immigration

The story of widespread pot legalization contains a clear lesson
for immigration policy.

For nearly a century, Americans have been told that illegal
immigrants ignore the law and bypass the legal
options. But they aren’t ignoring the law. They are acknowledging
what it says: that they are barred from coming to this country. And
they aren’t bypassing legal options, because no such options exist
for them.

Whenever aboveboard options do appear, the problem dissipates.
The more unskilled guest workers that the United States
allows in legally, the fewer illegal immigrants appear at the
border to be caught.
In the seven decades from 1949 to 2018,
the average Border Patrol agent apprehended 86 people annually in
years when guest worker entries were greater than 200,000. In other
years, the average was 269 people per year—three times as
many. Since 1986, thanks to the lack of a quota on agricultural
workers, the total number of legal guest workers in the United
States has increased twentyfold to 536,634; meanwhile, the average
agent now apprehends 97 percent fewer people than he did 30 years
ago.

Sources: Figure 4: U.S. Citizenship and
Immigration Services, “General Collection,” 1949-1995; U.S.
Department of Homeland Security, “Yearbook of Immigration
Statistics,” 1996-2017; Immigration and Naturalization Service,
“History: Border Patrol,” 1985; TRAC Immigration, “Border Patrol
Agents,” 2006; Border Patrol, “Staffing Statistics,” December 12,
2017.

Legalization works. More legal immigration, like more legal pot,
means less illegal activity. The problem with America’s immigration
laws is that we make it almost impossible to come here while
following the rules. While those guest worker admissions are
impressive, nearly all of the increase has gone to Mexicans,
because regulations require U.S. employers to pay for employees’
round-trip travel, which incentivizes hiring the closest
candidates. Central Americans therefore have a much harder time
finding legal entry. No wonder they constituted the majority of
apprehended migrants in 2018.

Even for Mexicans, lesser-skilled workers without U.S. citizen
family members have no legal way to come to the country permanently
or even to work in year-round positions. Businesses can’t sponsor
their lesser-skilled guest workers for permanent residence
(lawmakers want them to have to leave), and since 1990, Congress
has allocated just 5,000 green cards per year for employees of U.S.
businesses who lack college degrees—a infinitesimal fraction
of the nearly 11 million immigrants here illegally today.

For people fleeing violence south of the border, the situation
is even bleaker. Their only legal option is to somehow get to the
U.S. and request asylum. The government is supposed to process
anyone who asserts a fear of returning to her home country at a
legal port of entry, but the Trump administration is turning them
away, saying it’s prioritizing other travelers. The result is that
most asylum seekers are now crossing illegally and turning
themselves in. Even then, only people with a “well-founded fear of
persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion” can actually
receive asylum. Reasonably believing that you’re going to be
murdered isn’t enough.

The answer to these problems is the same as the answer we’ve
stumbled upon to marijuana smuggling: Legalize it. Make it simple.
Get rid of as many regulations as possible so that people truly
have the option to “follow the rules.” If peaceful people want to
put their talents to work for Americans, let them. If someone is
fleeing a fire somewhere in the world, America doesn’t need to put
it out—but we shouldn’t block the fire escape. Until the
government learns that its own policies are the causes of illegal
immigration and drug smuggling, the problems will continue. Legal
weed offers a blueprint for a better way forward.

David Bier is
an immigration policy analyst at the Cato Institute’s Center for
Global Liberty and Prosperity.

Click here to view the full article which appeared in CATO Journal