Commentary

With Cell Phone Record Case on SCOTUS Horizon, Originalist Analysis on IV Amendment Is Helpful

Mark Fitzgibbons
By Mark Fitzgibbons | June 13, 2017 | 12:32 PM EDT

(Flickr Photo/Labeled for Reuse)

(The following is Section I excerpted from the upcoming law review article, WHY ADMINISTRATIVE SUBPOENAS ARE ‘ILLEGAL’ UNDER ORIGINALISM, with cites omitted.)

On June 5, the Supreme Court agreed to hear a case involving Fourth Amendment protections for cell phone records, Carpenter v. U.S. This case features a much-criticized judicial creation called the “third-party doctrine” and how it applies to an “expectation of privacy.” Neither of these terms, of course, is found in the Fourth Amendment. As odd as this may sound in the age of cell phones and digital data, this case may end up being resolved by reviewing the original public meaning of the Fourth Amendment and the right of security against government intrusion. A closer look at the Fourth Amendment through original meaning will expose that many searches conducted by the administrative state are as harmful to the rights protected by the Fourth Amendment as the general warrants used in colonial America. The following excerpt is part of my attempt in progress to show how the abandonment of first principles under the Fourth Amendment is as dangerous now as the despised general warrants were in their time.

As with administrative subpoenas, there can be no doubt that some number of the general warrants were employed to successfully target the guilty. That the general warrants helped catch lawbreakers obviously did not justify their inherently illegal nature and danger to the right of security now expressly guaranteed by the Fourth Amendment. Along with the right of security expressly protected by the Fourth Amendment, 20th century judicial interpretations squarely recognized a natural right of privacy shielded by the “broader spirit” of the Amendment. Section III infra addresses the nature of rights shielded by the Fourth Amendment and affected by violations of it. The harm to these various rights under the administrative subpoena regime puts a more human face to, and shows the wider harmful impact of, violations of the right of security protected by the Fourth Amendment.

The dangers from violations of the Fourth Amendment right of security therefore are better understood by the potential and actual harmful and chilling impacts on speech, religion, commerce, and a host of other natural rights understood by the Founders. As explained in Section III, the umbrella of security and privacy from unreasonable and illegal government intrusion is both part of and shields the “fabric of liberty” that is the sine qua non for the pursuit of happiness. Viewing the administrative subpoena regime’s inherent violations of the Fourth Amendment in isolation from its larger purposes may seem to make them more palatable, but these judgeless writs are no less dangerous to multiple rights than the general warrants.

The motives to abuse search authority to violate and intimidate the exercise of various rights are of course found equally in the general warrant and administrative subpoena regimes. It is here where the Framers showed genius in structuring the warrant process to protect the community from private miscreants while requiring antecedent protocols under neutral and detached direction and supervision for searches using writs. The evasion of probable cause, presence of discretion, and lack of protections and remedies for the innocent found in the administrative subpoena regime make it at least as dangerous as – and, arguably, more harmful than – the general warrants. In the administrative subpoena regime there is nearly a complete lack of barriers and effective disincentives against abusing the power to search. These harms result directly (inherently) and indirectly from the abandonment of the antecedent protocols for writs to search, disgorge, and examine papers protected by the Fourth Amendment.

The administrative subpoena regime offends the structural or procedural aspects of the Fourth Amendment through the discretion given to searchers. Professor Laura Donohue in her superb work about The Original Fourth Amendment writes that “what the Framers objected to was not general warrants per se, but the allocation of the discretionary exercise of power to petty officers.” Or, as English jurist Lord Mansfield wrote in 1765 when voiding a general warrant issued by the Secretary of State targeting seditiously libelous papers of critics of the Crown, “[i]t is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer. This is so, upon reason and convenience.” Mansfield’s colleague on the bench, Justice Wilmot, “declared, that he had no doubt, nor ever had, upon these warrants: he thought them illegal and void,” while Justices Yates and Anton agreed that “no degree of antiquity can give sanction to a usage bad in itself.”

The unilateral nature of administrative subpoenas is therefore inherently unreasonable under the principles articulated by Mansfield (and expressed by the separation of powers found in John Adams’s 1780 precursor to the Fourth Amendment shown in the Introduction, supra) because the searchers are both the executioners and antecedent judges of the scope and nature of the searches. What differs from the history of the general warrants is the administrative subpoena regime has substituted extortionate trespass (as described in Section II) for the practice of physical trespass to search, disgorge, and examine private papers. Pre-New Deal judicial opinions discussed herein recognized this form of coercive disgorgement of papers is a distinction without a difference under the rights of security and privacy when writs for executive government searches are in play.

Like the once-despised and now-illegal general warrants, the administrative subpoena regime gives broad discretion to non-judicial officials in the search process, yet without antecedent judicial authorization or the invaluable governor on search behavior – remedies of trespass or replevin for the innocent (see Section III.A, infra) – that were present or tangent in the general warrant regime. The discretion given to administrative searches is actually broader in several key respects than what colonists or their English cousins faced under the general warrants. See Section IV, infra. The general warrants gave searchers discretion about where searches may be conducted and who could be targeted, but that discretion came with certain governors that discouraged their misuse. For example, the Writs of Assistance were issued to search for specific items that constituted violations of law as determined in advance and limited by these warrants issued by judicial officers. See Section IV.B. Searchers who targeted the innocent could be sued for trespass. See Sections II and IV.

The availability of such remedies acted as disincentive to arbitrary searches that lacked reasonable suspicion. As William Cuddihy writes, “[a]lthough excise and impost officers had retained promiscuous powers of search and seizure, the prospect of being sued for using them had invited particularized applications of those powers.” The general warrants thus came at least with certain checks and disincentives against causeless, abusive, and unreasonable searches not found in the administrative subpoena regime. Factor in probable cause as an antecedent requirement for warrants expressly institutionalized by the Fourth Amendment, which has been abandoned in the administrative subpoena regime, and arguably these judgeless writs are more offensive legally and to common law principles than the Writs of Assistance of their time.

Like administrative subpoenas now violate previously established law and reasonableness, the general warrants were a deviation from the principles of lawful government searches as expressed by the sentiments of Justices Mansfield, Wilmot, and Anton. In a period of about 100 years during the 17th and 18th centuries when there was regression in the protection of the less-clearly stated yet constitutionally preserved common law right of security, notions of probable cause as an antecedent protocol to searches using specific warrants began to take firmer root. Like law often evolves and tightens when miscreants find loopholes, the evolution of Fourth Amendment antecedent protocols was reactionary to government abuse. The antecedent nature of these protocols “prevented rather than penalized promiscuous searches,” according to Cuddihy.

The road to more formally illegalizing the outgrowth of general warrants that occurred during the period of regression was based in removing discretion of the searchers. Hence, the Fourth Amendment institutionalized antecedent protocols as a judicial governor for writs to search. These protocols include probable cause under judicial preview and guardianship as a precondition for writs to search, and are now immutable, central concepts in Fourth Amendment jurisprudence – except, for some reason, in the administrative search regime. This regime runs roughshod on the express protocol of probable cause based on oath and affirmation and before issuance, which undermines the security against discretionary government searches.

For administrative searches, the misapplied but often-quoted 1950 Morton Salt opinion states, “[e]ven if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.” This broad view of discretionary searches expressed in the Morton Salt standard is worsened by application of Chevron-style deference to agencies’ interpretations of the scope of the laws they enforce. Even the wicked general warrants did not authorize this level of broad discretion granted to searchers to determine the scope or nature of their searches.

Administrative subpoenas may be authorized and issued even though they lack the limited purposes or scope of the general warrants to target specific violations of the law as determined by the previewing eye of neutral judicial officers. In other words, the general warrants authorized searches in the enforcement of laws enacted under plenary legislative powers, but at least the laws sought to be enforced through searches were subject to a neutral judicial guardianship. In the administrative subpoena regime, the discretion given to agencies to unilaterally determine the scope of the law as bases for their searches, combined with the abandonment of pre-search judicial determination about the legality of that scope, exceeds that of the general warrants.

The unilateral nature of administrative subpoenas thus makes them at least as violative of, and dangerous to, the lodestar of the Fourth Amendment – the right of security – as the illegal general warrants. As described in Section II, administrative subpoenas are inherently unreasonable under original public meaning of the Fourth Amendment because they violate the Amendment’s ex ante protocols for these search writs. The Chevron-style judicial deference to administrative determinations of the laws that these agencies enforce compounds the problem. Administrative searches lack probable cause in their issuance and execution, and evade other legal governors that were found even in the despised general warrant regime, such as returns before judicial officers and remedies of trespass or replevin for innocent targets of the searches. See Sections III.A. and IV. Chevron-style deference to the scope of the searches, as described in EEOC v. Lutheran Social Services noted in the Introduction, further removes these unilateral search writs from the original public meaning of the Fourth Amendment.

While they do not authorize indiscriminate authority to physically search places and possessors of papers once issued, administrative subpoenas nevertheless may be issued with nearly unbound discretion about, and with post hoc judicial deference to, the nature and scope of the law that governs the searches. This effectively imbues these searches with the arbitrariness of police-state power. The lack the impartiality from neutral and detached preview about the nature of the evidence to be unearthed or laws alleged to be enforced through unilateral administrative searches is entirely inconsistent with the Fourth Amendment. These judgeless warrants allow targeting possessors of papers all without neutrality about the law or judicial preview of facts supporting suspicion. This provides opportunity for arbitrariness and abuse by agencies, and especially by the state attorneys general who have been given administrative subpoena power, yet have prosecutorial power and are often politically motivated.

It may be that use of these institutionalized violations of the Fourth Amendment is far more prevalent than the relative quantity of the general warrants in their day, but the lack of statistical data prohibits a conclusion. Despite a Freedom of Information Act request, for example, one state attorney general refused to identify how many administrative subpoenas she issues, claiming among other reasons “attorney-client privilege.” The dangers of administrative subpoenas are therefore further compounded by a lack of transparency and accountability.

The power of legal disposition in this process also makes administrative subpoenas Star Chamber-esque. These judgeless warrants are sometimes used as leverage to coerce outcomes and concession of money or rights through consent agreements and without judicial hearings. Targets may often cower to government authority, or otherwise lack the resources to challenge these writs and government attempts to coerce outcomes. They may be unaware of their need to preserve objections, or fail to raise objections out of fear of government power. Lawyers, hopeless at the prospect of successfully challenging these writs, may advise clients to concede rights rather than engage in legal action. As discussed in Sections II and IV, wise and constitutionally principled judges since at least the 1600s have recognized the dangers of the coercive and extortionate nature of search power unbridled from advance protocols under the judgment and control of neutral judicial officers. It could be said that these judgeless writs combine the worst elements of the administrative state with a police power to search without judicial preview.

Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."

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