David M. Bulger, M.A., LL.B., LL.M., is retired from the Department of Political Science at the University of Prince Edward Island and is past president of the Atlantic Provinces Political Science Association.

For about 60 years, my wife and I have been frequent visitors to Maine — in some years half a dozen times or even a few more. 

We won’t be back. We have ties to Maine. Family, friends and even ancestors.

Again, we won’t be back.

When it became obvious that, in the wake of the various shenanigans of Donald Trump, Canadians were staying away from the U.S. in large numbers, our regional Maritime newscast sent a reporter to Maine to seek out the response of Mainers. 

In a great many instances, people attributed the downturn to “political differences.” While that’s a bit like saying “it’s just politics,” for sure there are differences. When someone threatens the sovereignty of your country, even if he dresses it up as promoting a “cherished 51st state,” there are likely to be differences.

But as reprehensible as attacks on national sovereignty may be, the ties we have to Maine would draw us back were it not for something that is built into the procedures for entry into the United States of America, something that has been highlighted by events that occurred early in the term of the current regime, and which still continue.

A Canadian woman, whose work visa had a technical “glitch,” was subjected to incarceration for nearly two weeks in high-security prisons. Two free-spirited German teenage girls who wanted to decide on locations to visit and book accommodation along the way were accused of planning to stay as illegals, held overnight, subjected to strip searches and sent back to Germany. Also, an Australian national, with 15 months left on a work visa, returning to the U.S. from his sister’s funeral, was falsely accused of importing drugs and sent packing back to Sydney.

While extreme, each of these cases points up the problem. The Australian’s situation is the one that illustrates it most significantly. He demanded to see the border agent’s superior and was provided that opportunity. He complained to that superior. The response was, “Whatever he” (indicating the agent) “decides.” Now, one might think that this was just a civil servant “not wanting to get involved,” but that is not the reality.

The individual agent a person encounters when seeking entry to the United States is “cop, judge, jury and, yes, in a sense, executioner.” “Whatever he (she) decides” is what is going to happen and, what is more, that decision is absolutely final.

This may not be the only instance of unrestricted power in those legal systems that derive from the British legal tradition, but it has to be one of the few. Those who carry out legal processes that can result in punishments (and denial of entry is a sort of punishment) are, in our tradition, subject to review. 

In some instances, certain procedures such as searches require vetting prior to being carried out. Throughout, there is the operating principle of “reasonable and probable cause.” Except at the U.S. border. If the agent simply has indigestion from his/her lunch, he/she can send “aliens” packing with no “reasonable and probable cause,” no oversight and no review.

In the territory of your next-door neighbor, Canada, any refusal of entry can be appealed and there is, as there is not in the U.S., a right to counsel at every step of the way. This is very much in the tradition of the law that both Canada and the U.S. inherited from Britain. The U.S. practice is not.

My wife and I are in our early 80s. We are not going to take the chance of being stopped, being incarcerated and possibly being strip searched in the process. Even if there is a regime change, we won’t be back as long as this arbitrary, unchecked procedure remains. 

It needs to go.