Federal Bureaucrats Find ‘Superhighway’ Around Fourth, Fifth Amendments

Equal Employment Opportunity Commission officials used a warrantless subpoena on a Texas-based grocery chain that fired an employee who failed a post-maternity leave physical fitness test,demanding the home addresses and Social Security numbers of every company employee.

The EEOC’s action was made possible because officials there used warrantless demands — formally known as “administrative subpoenas” or “civil enforcement demands” — that are rapidly replacing judge-issued warrants as standard procedure for federal bureaucrats on the prowl for information about individuals and every aspect of their lives. Such subpoenas threaten personal privacy and individual liberty at the very least and are almost certainly unconstitutional, legal scholars say.

“The government now has a superhighway to go around the Fourth Amendment of the Constitution,” Tim Lynch, director of the Cato Institute’s project on criminal justice, told The Daily Caller News Foundation.

“The reason why these things have cropped up in the first place is government agencies will argue that they need information, they need it quickly, and that has been the driver behind, kind of bypassing the checks and balances that apply in the Fourth Amendment context,” Lynch told TheDCNF.

The Fourth Amendment establishes “probable cause” as determined by a judge to prevent “unreasonable” searches and seizures. There are also constitutional concerns that administrative subpoenas violate the Fifth Amendment, which protects Americans against self-incrimination.

But courts’ interpretations of the Constitution have allowed federal agencies to demand everything from Social Security numbers to medical records without a judge’s prior approval, so long as the information is “relevant” to the agency’s work. The Drug Enforcement Administration alone issues “thousands” of these subpoenas each year, along with dozens of other agencies, according to a 2002 report by the Department of Justice. That was the last time the federal government reviewed its use of administrative subpoenas.

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