Academic journal article Texas Law Review

The Modest Role of the Warrant Clause in National Security Investigations

Academic journal article Texas Law Review

The Modest Role of the Warrant Clause in National Security Investigations

Article excerpt

I. Introduction

The Warrant Clause of the Fourth Amendment states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."1 In criminal investigations, this clause plays a significant role. As the Supreme Court has emphasized, "it is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.'"2 In the setting of national security law, however, the opposite is true. The Warrant Clause plays a role,3 but only a modest one. The Warrant Clause can inspire legislative action, or it can give a thumbs up or down to an existing legislative scheme. But the Warrant Clause does not play the significant role in the national security investigations that it plays in criminal investigations.

Why is the Warrant Clause of the Fourth Amendment so modest in national security investigations? One plausible reason is that national security investigations raise significant questions of presidential power under Article II.4 Courts may be hesitant to use the heavy hand of the Warrant Clause when investigations involve presidential prerogatives. Or perhaps the Warrant Clause is narrow because Congress has imposed statutory warrant procedures that limit opportunities for constitutional challenge.5 Perhaps. But I think there is another reason and one that is more conceptually interesting from a perspective of Fourth Amendment law. This Article will develop that argument. It argues that the Warrant Clause has been and will remain narrow because the extension of the Warrant Clause into national security law has come at a cost of forcing courts to pose a question that judges know they cannot answer.

The dynamic goes back to a series of cases in the late 1960s and early 1970s when the Supreme Court dramatically expanded the scope of the Warrant Clause.6 The Court reframed the Warrant Clause as a handmaiden of reasonableness: warrants are required only when a warrant requirement would be reasonable, and the warrants that are required are whatever warrants would be reasonable.7 This double-barreled reasonableness test gave the Supreme Court the flexibility to insert the Warrant Clause almost anywhere, including the setting of national security investigations. But it came at a cost. The test created to give courts flexibility forces judges to ask a question they are poorly equipped to answer. Faced with uncertainty, most judges will remain cautious. As a result, the Warrant Clause will apply broadly in theory but work modestly in practice.

Courts are poorly equipped to answer when a warrant regime would be reasonable in the national security setting for four major reasons. The first is what I will call the "chicken-and-egg problem." Courts do not know what kind of warrant they must imagine operating because the kind of warrant is itself left open by existing law. Second, the Judiciary cannot know whether the elected branches would set up courts with expert judges or with jurisdiction to issue those warrants, making it difficult for them to assess how such a warrant requirement would work. Third, courts cannot know the technology of surveillance that will apply or whether diplomatic agreements will harmonize the different legal regimes, making it hard to know how warrants would be executed. And fourth, uncertainty as to the law of when national security investigations trigger the Fourth Amendment at all leaves courts uncertain as to what set of facts they will be balancing.

Faced with these uncertainties, courts have and generally will construe the Warrant Clause quite narrowly in national security investigations.8 The Warrant Clause can spark action, leaving the details up to Congress. The Clause can also be used to ratify or reject a specific legislative scheme. …

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