The Drug Enforcement Administration is involved in a lawsuit for targeting medical records using judge-less warrants called “administrative subpoenas.” The quantity of DEA administrative subpoenas issued unilaterally, i.e., without authorization from judges, is unknown but somewhere in the thousands according to one DEA spokesman.
Congressman Jason Chaffetz’s one-time confidential rejection for a job with the Secret Service was unlawfully leaked after he became a vocal critic of the Secret Service’s major malfunctions in recent years. The feds used administrative subpoenas to obtain phone records of whistleblowers at the Secret Service themselves who reported the unlawful leak.
Meanwhile, a so-called Email Privacy Act being pushed by Google expressly acknowledges the proper Fourth Amendment process that only judges may issue warrants for federal officials to obtain private emails. The bill, however, would only protect Google and other email storage services, while actually encouraging federal and state bureaucrats to seize private emails directly from us or our businesses through judge-less administrative warrants.
Administrative subpoenas are impossible to reconcile with the Fourth Amendment, which protects the security of our “persons, houses, papers, and effects” against unreasonable searches and seizures. They are warrants for “papers,” electronic or hard, that are issued by federal and state bureaucratic agencies without “probable cause, supported by oath and affirmation” before neutral judges.
Such clear private sector violations of law would result in harsh penalties. Instead, use of these unchecked, institutionalized violations of the Fourth Amendment — the paramount law governing government investigations and searches — apparently grows every year.
Administrative subpoenas were upheld by a New Deal Supreme Court to enforce New Deal intrusions on property rights and privacy under the expanded administrative state. The administrative state — the Leviathan — has expanded exponentially since then with the addition of more alphabet-soup named agencies such as EPA, DoE, DHS, CFPB, and so on, with even greater powers that would make the most radical statists of the New Deal era envious.
A 2012 article in Wired.com reported that perhaps hundreds of thousands of administrative subpoenas are issued every year. Government agencies are not required to fully disclose how often, “meaning there is little, if any, oversight of this tactic that’s increasingly used in … seemingly, the war on Americans’ constitutional rights to be free from unreasonable government trespass into their lives.”
Administrative subpoenas are a relic of the Star Chamber, the secretive council existing from the 15th through 17th centuries under English kings, which to this day is synonymous with unchecked abuse of power. Star Chamber warrants were used to target and silence political critics and religious dissidents. The Star Chamber was abolished after the Revolution in which King Charles I was executed in 1649.
That history was described in the 1765 English case Entick v. Carrington, which very much influenced the creation of the Fourth Amendment. John Entick was a for-profit publisher of the British Freeholder that criticized the Crown. English Secretary of State Lord Halifax issued a warrant specifically targeting his papers and books based on the law against “seditious libel.”
Entick sued Halifax for trespassing, which was one of the remedies available for lawless searches and seizures. One of the defenses raised by Lord Halifax was that among the many titles of this English noble was that he was a “justice of the peace,” a judicial officer akin to today’s magistrates. As a judicial officer, he claimed, he could issue such warrants under an English statute.
The presiding Justice Pratt would have none of that. Halifax issued the warrant as secretary of state, a position “derived from the King’s personal prerogative,” wrote Justice Pratt, who then explained the history of searches for books and papers that started with the Star Chamber.
Justice Pratt noted that following the Revolution, in which the Star Chamber was abolished and the English constitution restored, “the press became free” again. Parliament, however, soon enacted laws to license the press, and here the secretary of state was first given power to issue warrants to search for papers and books, with “no occasion for application to judges,” which was the process for warrants before the Star Chamber existed.
English author john Milton’s famous pamphlet called Areopagitica was an appeal to rescind such licenses. Press licensing ordinances and the secretary’s power to issue warrants for searches soon expired as inconsistent with the English constitution and common law.
Today’s judge-less, nontransparent administrative subpoenas — indeed, the many violations of separation of powers by America’s bureaucratic government agencies — are too reminiscent of the Star Chamber for comfort or consistency with the Fourth Amendment.
Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
