Two recent matters involving administrative state searches without the Fourth Amendment’s before-the-fact protocol of warrants issued by neutral judges illustrate that legislatures and the courts have gone too far in believing they can ignore or even override the Fourth Amendment.
The Fourth Amendment protects the security of our persons and certain property from unreasonable searches. That originally precluded unjustified government trespass as this concept was widely understood. History shows the Fourth Amendment also acted as a shield safeguarding various natural law rights known to the Founders. Warrants issued by neutral judicial officers pursuant to probable cause were justifiable trespass to protect the community from miscreants.
Using a state law that prohibits deceptive and unfair practices in business, Missouri Attorney General Josh Hawley recently issued a civil investigative demand (CID) to Facebook seeking records about how the popular digital platform shared user information with political campaigns. (Disclosure: I am pulling for Hawley in his race to unseat Senator Claire McCaskill.)
The CID was issued unilaterally by Hawley, meaning without authorization from a neutral judicial officer. CIDs do not require probable cause, but must specify the legal bases of the search. Unlike searches that take place on premises, the targets of CIDs must produce private papers and digital records to the government.
How judgeless, probable cause-free CIDs to search business records pass Fourth Amendment scrutiny remains a mystery to me even after studying the subject for decades. The sparks for the Fourth Amendment — if not the American Revolution itself — were the writs of assistance targeting colonial merchants. A series of 1760s searches in England that targeted papers of critics of the Crown also highly informed the Founders. CIDs violate the original public meaning of the Fourth Amendment.
The Missouri CID was issued after reports that the political consulting firm Cambridge Analytica accessed data from Facebook and used it during the Trump presidential campaign. It was also revealed by former media director for the Obama campaign, Carol Davidsen, that Facebook provided Obama for America user information for free.
Former Federal Elections Commissioner Hans von Spakovsky penned an informative article explaining why the latter would appear to violate campaign finance law, while the former would not. But the issue of whether Facebook violated state consumer protection laws is another matter. AG Hawley’s judgeless CID was issued consistent with his state’s statute that bypasses probable cause.
Unrelated to searches in the political world — for now at least — earlier this year the 6th Circuit Court of Appeals issued a mixed ruling about warrantless searches of “closely regulated” businesses.
Liberty Coins challenged Ohio’s Precious Metals Dealers Act giving government officials the power to enter premises to inspect records. Parts of the statute were deemed unconstitutional by the court, but warrantless searches were upheld so long as they authorized targets to challenge the searches before complying.
That still overrides the Fourth Amendment’s before-the-fact protocols for reasonable, justifiable searches, and places the legal and cost burdens on the target — besides putting them in the unenviable position of telling regulators to back off.
Court precedent has authorized warrantless searches of closely regulated businesses, which were once limited in scope to gun and liquor sales, or something inherently hazardous. The appeals court in the Liberty Coins case expanded the scope of what is closely regulated based in large part on the need of the business to be licensed and keep extensive records. The court also noted that “[w]arrentless searches might also be necessary if the search objects are likely to change hands quickly.”
It seems like Fourth Amendment chicanery, or at least a slippery slope, for a legislature to increase the number of closely regulated industries, then apply the weaker standards for warrantless searches. The court either ignored or was rather cavalier about this chicken-and-egg legislative scheme, passing it off as “part of the cost of doing business in a closely regulated industry.”
Charities and other entities engaging in speech and money transmissions would seem to fit the broader definition of “closely regulated” because they are subject to licensing and stringent recordkeeping requirements. Judgeless administrative searches are invitations to invoke investigations to intimidate and silence critics and unpopular speech.
CIDs were institutionalized by the New Deal court, and have expanded in use during the rise of the administrative state. The administrative state has been criticized of late especially in Professor Philip Hamburger’s brilliant treatise Is Administrative Law Unlawful? Writing last week in The Wall Street Journal, Peter Wallison of the American Enterprise Institute explained how good judges can rein in the administrative state, and “return the U.S. government to the structure designed by the Framers.”
Judgeless, probable cause-free searches have weaponized the administrative state. It is also worth noting that the judicial creation of an “expectation of privacy” supplanted the original private property and trespass bases the Fourth Amendment during the rise of the administrative state.
The writs of assistance that, according to John Adams, birthed the American Revolution were authorized by statute and issued by judges. In 1761 fiery lawyer James Otis argued on behalf of the merchants of Boston that the writs violated rights of Englishmen. The Massachusetts court upheld the writs against the merchants’ challenge. Because the British constitution was not written, Parliament could alter that constitution.
During this time judges in other colonies such as Virginia were refusing to issue the writs of assistance despite their statutory authorization. Theses judges believed the common law, unwritten constitution was superior to acts of Parliament.
The key difference between the British and American constitutions is that ours is written so that legislatures could not override it. Judges should enforce this paramount law over legislative acts. CIDs and expanded warrantless administrative searches are very much part of what the Fourth Amendment was written to prohibit, and unstopped will jeopardize other rights that the Amendment shields.
Mark J. Fitzgibbons is a fundraising law expert and the co-author with Richard Viguerie of ‘The Law That Governs Government.’
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.