by Mark J. Fitzgibbons, Esq.
March 2, 2018
A panel at CPAC last week addressed how President Trump is fighting to regain control from the administrative state. The administrative state is perhaps best known through the alphabet soup-named federal and state agencies that have become so powerful and unaccountable to the law.
In one of his many impressive moves, President Trump named Mick Mulvaney acting director of the Consumer Financial Protection Board (CFPB). The CFPB is a federal agency created during the Obama presidency, and it is the unaccountable big-government spawn of Senator Elizabeth Warren from Massachusetts. Mr. Mulvaney has opened up requests for public comments about the CFPB’s power.
The first of those requests for public comments involves perceived abuses of the CFPB in issuing civil investigative demands (CIDs), also known as administrative subpoenas. CIDs are judgeless, probable cause-free demands for documents issued by federal and state government agencies.
I took the opportunity to submit comments focusing on why these judgeless warrants — and not just those issued by the CFPB — are impossible to reconcile with the Fourth Amendment. The comments below address (1) whether CIDs have exceeded initial purposes and precedents, (2) whether they are inconsistent with the original understanding of the Fourth Amendment, and (3) whether they should be severely restricted or abandoned altogether in favor of the process of obtaining search writs from independent judicial officers in a manner consistent with the protocols required by the Fourth Amendment.
CIDs have become weapons of the administrative state. They have even exceeded their New Deal origins, and have become, in my opinion, perhaps the most dangerous institutionalized violation of the Bill of Rights.
1. Initial Precedent.
It was the 1946 decision in Oklahoma Press Publishing v. Walling  that most clearly and expressly opted against first principles and the express language of the Fourth Amendment to solidify the expansion of probable cause-free, judgeless search powers of the administrative state. The majority opinion in Oklahoma Press Publishing never fully or adequately explained why the plenary power of Congress to regulate commerce was sufficient to override the Fourth Amendment’s antecedent protocols of probable cause submitted under oath and affirmation to neutral judicial officers as a condition to search papers and effects.
CIDs therefore were upheld by the New Deal Court, but before a major subsequent expansion of the administrative state, and also before the often-criticized opinion giving judicial deference to administrative interpretations of law in Chevron U.S.A. v. Natural Resource Defense Council, 467 U.S. 837 (1984). The scope of power and size of the administrative state, and the usage of CIDs, has expanded since Oklahoma Press Publishing. Concomitant with that expansion, it seems, there has been a thoughtlessly accepted decrease in the Fourth Amendment protections of recipients of CIDs.
2. CIDs cannot be reconciled with original public meaning of the Fourth Amendment.
In his brief but prescient dissent in Oklahoma Press Publishing Co. v. Walling, Justice Frank Murphy wrote:
*** I am unable to approve the use of nonjudicial subpoenas issued by administrative agents.
Administrative law has increased greatly in the past few years, and seems destined to be augmented even further in the future. But attending this growth should be a new and broader sense of responsibility on the part of administrative agencies and officials. Excessive use or abuse of authority can not only destroy man’s instinct for liberty, but will eventually undo the administrative processes themselves. Our history is not without a precedent of a successful revolt against a ruler who “sent hither swarms of officers to harass our people.”
Perhaps we are too far removed from the experiences of the past to appreciate fully the consequences that may result from an irresponsible though well meaning use of the subpoena power. To allow a nonjudicial officer, unarmed with judicial process, to demand the books and papers of an individual is an open invitation to abuse of that power. It is no answer that the individual may refuse to produce the material demanded. Many persons have yielded solely because of the air of authority with which the demand is made, a demand that cannot be enforced without subsequent judicial aid. Many invasions of private rights thus occur without the restraining hand of the judiciary ever intervening.
Only by confining the subpoena power exclusively to the judiciary can there be any insurance against this corrosion of liberty. Statutory enforcement would not thereby be made impossible. Indeed, it would be made easier. A people’s desire to cooperate with the enforcement of a statute is in direct proportion to the respect for individual rights shown in the enforcement process. Liberty is too priceless to be forfeited through the zeal of an administrative agent.
Justice Murphy’s prescience was wise to hearken back to history and the principles underlying the Fourth Amendment of neutral judicial issuance of writs to search. As with civil investigative demands, 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.
The Fourth Amendment to the United States Constitution states, “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” If one views CIDs as writs to search papers, which I suggest is the correct view, then it seems impossible to reconcile them with the Fourth Amendment.
People who come to know about civil investigative demands, also known as administrative subpoenas, may wonder and even justifiably express some shock about how these judgeless writs by which government procures and examines privately owned correspondence, emails, records, data, plans, charts, graphs, and such, survive Fourth Amendment scrutiny. See David Kravets, We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena, WIRED (August 28, 2012), https://www.wired.com/2012/08/administrative-subpoenas/;
Kathryn Watson, Federal Bureaucrats Find ‘Superhighway’ Around Fourth, Fifth Amendments, THE DAILY CALLER (November 6, 2015) http://dailycaller.com/2015/11/06/federal-bureaucrats-find-superhighway-around-fourth-fifth-amendments/.
Civil investigative demands (1) violate the requirement of probable cause under oath or affirmation required in advance of issuance of warrants, (2) violate original understanding that warrants are issued by neutral judicial officers (the separation of powers), (3) allow government agencies or officials to unilaterally trespass on rights of private property and privacy, (4) are not reasonable under the historic justifications of exigent circumstances, plain view, etc. to protect the community using warrantless trespass, and (5) violate the express purpose of the Fourth Amendment — its lodestar as opposed to merely it touchstone — which is to protect the right of security in our papers and effects (along with houses and persons). CIDs are deviations from the original public meaning of the Fourth Amendment, and have become institutionalized violations of our fundamental and paramount law.
Civil investigative demands offend the structural or procedural aspects of the Fourth Amendment through the discretion given to searchers. It is here where comparison to the general warrants is merited. 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.” Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1191 (2016).
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.” Leach v. Money, 19 How. St. Tr. 1001, 1027 (1765). Lord 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.” Id (emphasis added).
Civil investigative demands are 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. The general warrant regime did not give searchers authority to determine the scope of the laws to be enforced. In the civil investigative demand 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.
Also, under the general warrant regime, the remedies of trespass and replevin were available. As William Cuddihy writes in his great treatise on the Fourth Amendment, “[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.” William Cuddihy, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602-1791, at 334 (2009). Remedies under the CID regime to discourage abuses and overreach are practically nonexistent.
Though not writs compelling or authorizing seizure, which is a forcible dispossession or taking of property, civil investigative demands are nevertheless writs for searches because they result in compulsory dispossession of papers for examination by executive branch and law enforcement officials. Though searches for papers or effects, CIDs are issued without the Fourth Amendment protocols of probable cause submitted under oath and affirmation before neutral judicial officers.
3. CIDs should be severely restricted or abandoned altogether in favor of the process of obtaining search writs from independent judicial officers in a manner consistent with the protocols required by the Fourth Amendment.
Though in use since the creation of the CFPB, it is not too late to correct the CID regime in favor of our paramount law.
Chief Justice John Marshall wrote, “Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.” Marbury v. Madison, 5 U.S. 137, 177 (1803).
Justice Bradley in 1886 recognized the wisdom, if not obligation, of correcting a course that has veered off its constitutional moorings, and this aptly fits the CID regime: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.” Boyd v. U.S., 116 U.S. 616, 635 (1886).
I recommend the following changes to the process of the CFPB’s formal demands for the papers or effects of targets of its investigations:
A. That all such demands be presented to neutral judicial officers for issuance of writs;
B. That all such demands be submitted under oath and affirmation of legal cause; and
C. That all such demands rely on the Fourth Amendment standard of probable cause rather than some lesser standard.
These changes are consistent with the Fourth Amendment, which still is current law.
With advancements in technology it is now possible for police officers to obtain warrants remotely and quickly, even from patrol cars, in even more urgent circumstances. Adoption of these recommendations in no way limits informal investigations or information gathering, but merely formal writs to search. It seems that administrative agency searches that comply with the protocols of the Fourth Amendment may be done in ways that adequately meet the competing objectives of the Fourth Amendment, which are (1) protecting society from miscreants, while (2) protecting the right of security in our private papers and effects.
 327 U.S. 186 (1946),
 “‘We are also of opinion that an order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth Amendment. While a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible dispossession of the owner, still, as was held in the Boyd case, the substance of the offense is the compulsory production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection.” Hale v. Henkel, 201 U.S. 43, 76 (1906); “[A] compulsory production of a man’s private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution in all cases in which a search and seizure would be, because it is a material ingredient, and effects the sole object and purpose of search and seizure.” Boyd v. U.S., 116 U.S. 616, 622 (1886).
— CIDs Dangerous Anti-Fourth Amendment Weapons of the Administrative State originally appeared at Conservative HQ.