The growth in number and size of government agencies beginning about 80 years ago has been accompanied by the expanded use of "administrative subpoenas." These are warrants, not signed by a judge, by which government obtains records and other evidence.
More and more Americans have come to understand that these administrative subpoenas violate the Fourth Amendment's processes needed to guard against unreasonable searches and seizures of our persons, houses, papers and effects. These judge-less subpoenas are now especially prevalent in targeting telephone and computer records, but have been used in many ways that transgress the law.
The problem was adequately summed up in the title of a 2012 article at Wired.com, "We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena." The article noted that "roughly 335 federal statutes on the books" authorize these judge-less warrants.
Fourth Amendment processes require that someone present facts under oath and affirmation to a neutral judicial officer, who may then issue a warrant after concluding there is probable cause that some law has been violated. The requirement of a neutral judge is designed to ensure reasonable objectivity to preserve the rights of the innocent.
Administrative subpoenas skip this process. Government agencies issue such subpoenas unilaterally, meaning without the objectivity of a neutral judge. In doing so, they are able to fudge or evade the requirement of probable cause. This is a major problem at both the federal and state levels, and government officials have displayed an amazing level of ignorance and disregard of the safeguards protecting rights to security in private property.
Last year, however, Republican Utah Attorney General Sean Reyes announced that his office would no longer issue these administrative subpoenas, saying, "The wholesale writing yourself a note to go after that stuff without any check is too dangerous and the potential for abuse becomes too dangerous."
The Fourth Amendment was written to prevent the sort of abusive searches and seizures that contributed to the American Revolutionary War. General warrants authorized by Parliament were used to seize printing presses of critics of government and those advocating for religious tolerance, and to target merchants in ways that favored cronies.
At a 1761 trial, Boston lawyer James Otis called the Writs of Assistance, those general warrants that violated the common law processes now found in the Fourth Amendment, "illegal." A young lawyer named John Adams was at the trial and later remarked, "Then and there the child of Independence was born."
Along with the guarantees of due process, jury trials, and other quintessential American constraints on government to protect life, liberty and property that flow from the Magna Carta — which celebrates its 800th anniversary this June — the Fourth Amendment imposes the rule of law on government. It reflects the separation of powers essential to preserving liberty. A valid law issued by the legislature may be enforced by the executive branch, but the well-placed guardian of the judiciary is there to prevent abuses and arbitrary invasions and trespasses of our persons and most intimate private property.
The Fourth Amendment is largely based in concepts of common law trespass. It is not inflexible since there are well-known exceptions to trespass. Consent to a search is an obvious exception, so long as it is given without duress. Plain-view violations of the law need no judicial warrant. Exigent or imminent danger to persons or property have been construed such that police may make stops and even limited seizures under a standard slightly weaker than probable cause, known as "reasonable suspicion."
Regular health inspections that cover an entire industry pursuant to a clear legislative plan, and are not unfairly targeted, are acceptable. Subpoenas for trials and grand juries are under judicial process, and therefore are not governed by the Fourth Amendment.
Administrative bureaucrats and prosecutors, however, bend the law and logic to justify these "dangerous" judgeless warrants, claiming they help gather evidence to later show probable cause. That does not fall into any of the legal exceptions, and puts the cart before the horse.
A model to clarify what is already proper constitutional law, which is that all written search and seizure demands require judicial approval, is contained in a proposed 21st Century Fourth Amendment for Virginia.
Bureaucrats, prosecutors and even legislatures may not override the Constitution, which is our fundamental and paramount law over government itself. Administrative subpoenas violate that law, and like the Writs of Assistance, must be prohibited.
Mark J. Fitzgibbons is a constitutional lawyer and co-author with Richard A. Viguerie of The Law that Governs Government: Reclaiming the Constitution from Usurpers and Society's Biggest Lawbreaker.