Blame Congress for dozens of agencies routinely bypassing a judge to access Americans’ most personal information, including medical histories and cell phone records, legal scholars say.
Congress has conceded much of its investigatory and oversight functions to the executive branch by approving more than 300 authorities that empower agencies to use judge-less subpoenas, which are also known as “administrative subpoenas” or “civil investigative demands.”
Nobody at either end of Pennsylvania Avenue in the nation’s capital tracks how often federal bureaucrats use judge-less subpoenas. Courts typically side with agencies on the rare occasion when a judge-less subpoena is challenged, so government officials need only claim records are “relevant” to their work, a much lower legal bar than the Fourth Amendment’s “probable cause” standard for a warrant.
“Congress could tomorrow require administrative warrants be based on probable cause or reasonable suspicion, and in fact I’ve pretty much argued that should happen,” Christopher Slobogin, an expert on administrative powers and law professor at Vanderbilt University Law School, told The Daily Caller News Foundation.
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