The Regulatory Accountability Act of 2017 would rein in judicial deference to the discretion of administrative agencies in construing their own powers, effectively limiting the 1984 Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council. The legislation, however, does not seem to cure the dangers inherent in administrative subpoenas, which use broad discretion to search papers protected by the Fourth Amendment.
Administrative subpoenas, also known as civil investigative demands, are writs demanding production of private papers. They are issued by federal and state administrative agencies, state attorneys general, and even local government officials. They are “judgeless warrants” issued without probable cause or preview by neutral judicial officers.
Professor Laura Donohue in her superb work in the University of Chicago Law Review, “The Original Fourth Amendment,” writes, “[W]hat the Framers objected to was not general warrants per se, but the allocation of the discretionary exercise of power to petty officers.” 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 probable cause or the invaluable governor on search behavior, remedies for the innocent 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 faced under the general warrants. This discretion makes them as dangerous as the general warrants to rights protected by the Fourth Amendment.
The general warrants gave searchers discretion about where searches may be conducted and who could be targeted, but that discretion came with certain governors and limitations. For example, general warrants were issued to search for specific items that constituted violations of law as determined in advance and limited by the writs issued by judicial officers.
For administrative searches, the misapplied but oft-quoted New Deal Court 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.” The general warrants did not authorize this level of broad discretion about the scope or nature of the 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 legislative powers, but at least those “plenary powers” sought to be enforced were subject to a neutral judicial preview or guardianship. In the administrative subpoena regime, the discretion given to agencies or prosecutors to unilaterally determine the scope of their searches, combined with the abandonment of pre-search judicial determination about the legality of that scope, exceeds what colonists faced under the general warrants.
The unilateral nature of administrative subpoenas makes them at least as violative of and dangerous to the lodestar of the Fourth Amendment – the rights of security and privacy – as the illegal general warrants. Administrative subpoenas are inherently unreasonable under original public meaning of the Fourth Amendment because they violate the Amendment’s protocols for these search writs, and lack probable cause. With Chevron-style, broad judicial deference to administrative determinations of the laws that these agencies enforce, the problem is compounded. Chevron-style deference to the scope of the searches, as described in various court decisions, further removes these unilateral search writs from the original public meaning of the Fourth Amendment.
The general warrant regime did not authorize the searchers to determine the nature and scope of the law suspected of being violated that directed and governed the searches. While they do not authorize indiscriminate searches of places and possessors of papers once issued, administrative subpoenas nevertheless may be issued with nearly unbound discretion about, and with after-the-fact judicial deference to, the nature and scope of the law that governs the searches. This effectively makes the searchers the judges of their own searches, which imbues these searches with the arbitrariness of police state power.
The lack the impartiality from neutral judicial preview about the nature of the evidence to be unearthed or laws alleged to be enforced through unilateral administrative searches is inconsistent with the Fourth Amendment. This provides opportunity for arbitrariness and abuse by agencies, and especially by state attorneys general who are inherently political. Administrative subpoenas allow targeting possessors of papers and places of papers all without neutrality about the law, although a welcomed April 21, 2017 D.C. Circuit decision in Consumer Financial Protection Bureau v. Accrediting Council for Independent Colleges and Schools invalidated an administrative subpoena that failed to adequately describe the nature of the alleged violations being investigated.
The dangers of administrative subpoenas are further compounded by a lack of transparency and power of legal disposition that is Star Chamber-esque. These judgeless warrants are used to coerce outcomes and concession of rights through consent agreements and without judicial hearings, where targets often cower to government authority, fail to raise objections out of fear of retribution, or simply are unaware of their need to preserve objections. Despite a Freedom of Information Act request, Minnesota Attorney General Lori Swanson refused to identify how many administrative subpoenas she issues, claiming among other reasons “attorney-client privilege.”
It may be that use of these institutionalized violations of the Fourth Amendment are far more prevalent than the relative quantity of the general warrants in their day. Wise and constitutionally principled judges since at least the 1600s, however, have recognized the dangers of the coercive and extortionate nature of search power unbridled from probable cause determined in advance by the judgment of neutral judicial officers.
This article is adapted from an upcoming law review article about why administrative subpoenas violate the original public meaning of the Fourth Amendment.
Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."