Feds Get the Power to Seize Medical Records on 'Fishing Expedition' Investigations with No Subpoenafrom a Judge
By Mark J. Fitzgibbons
While focusing their resources and political energy on the NSA’s mass collection of metadata, privacy advocates have neglected the most dangerous institutionalized violations of the Fourth Amendment: administrative subpoenas.
Now a United States District Court judge in Texas has ruled for the Drug Enforcement Agency that an administrative subpoena may be used to search medical records. It was inevitable, given the march towards illegally nullifying the Fourth Amendment through use of these judge-less bureaucrat warrants authorized by Congress.
Administrative subpoenas are issued unilaterally by government agencies -- meaning without approval by neutral judges -- and without probable cause stated under oath and affirmation as required by the Fourth Amendment. There are now 336 federal statutes authorizing administrative subpoenas, according to the Department of Justice.
In U.S. v Zadeh, the DEA obtained the records of 35 patient files without showing probable cause or obtaining a warrant issued by a judge. Citing New Deal-era case law, Judge Reed O’Connor noted that “[t]he Supreme Court has refused to require that [a federal] agency have probable cause to justify issuance of an administrative subpoena,” and that they may be issued “merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." (Emphasis added).
In other words, the government may now use “fishing expeditions” for medical records.
Those constitutionally grotesque New Deal-era decisions violated the Fourth Amendment on its face, and were ideological, progressive foolishness when issued against the likes of the Morton Salt Company in 1950. Now this corrupt precedent creating institutionalized violations of the Fourth Amendment has been applied to medical records.
Dr. Zadeh has filed an appeal. Conservative activist Andy Schlafly, the lawyer for the Association of American Physicians & Surgeons, has filed an amicus brief stating, “[w]ithout a warrant and without initially identifying themselves, federal agents searched patient medical records . . . based merely on a state administrative subpoena. A month later the [DEA] sought enforcement . . . [and n]one of the checks and balances against overreaching by one branch of government existed for this warrantless demand for medical records.”
The targeting of private medical records shows that it is now far past the time to eliminate administrative subpoenas for good. Congress may do that legislatively. History also shows it can be done even by the courts, which have the authority -- actually, the constitutional duty -- to declare void acts of Congress in violation of the Constitution.
A warrant for searches or seizures is a judicial act, wrote 17th century English jurist Matthew Hale in his History of Pleas of the Crown, first published in 1736 after his death.
As described in Professor William Cuddihy’s treatise on the history of the Fourth Amendment, Chief Justice Pratt wrote to English political leader William Pitt before the famous search and seizure Wilkes trial in 1763, which highly influenced the creation of the Fourth Amendment, that if compelled, he would come out decisively against warrants issued by the Secretary of State, Lord Halifax. Such warrants were authorized legislatively by Parliament, and had been used for 80 years.
With no political action taken, Pratt fulfilled his warning, ruling that Lord Halifax’s warrants were “unconstitutional, illegal . . . absolutely void,” and wrote, “[n]o precedents, no legal determinations, not an act of Parliament itself is sufficient to warrant any proceeding contrary to the spirit of the constitution.” He then struck down warrants issued by Halifax.
Those were the precursors to today's judge-less administrative warrants, which too have been used for decades in violation of the separation of powers inherent in the Fourth Amendment, and in violation of the requirements of oath and affirmation showing
By Mark J. Fitzgibbons
While focusing their resources and political energy on the NSA’s mass collection of metadata, privacy advocates have neglected the most dangerous institutionalized violations of the Fourth Amendment: administrative subpoenas.
Now a United States District Court judge in Texas has ruled for the Drug Enforcement Agency that an administrative subpoena may be used to search medical records. It was inevitable, given the march towards illegally nullifying the Fourth Amendment through use of these judge-less bureaucrat warrants authorized by Congress.
Administrative subpoenas are issued unilaterally by government agencies -- meaning without approval by neutral judges -- and without probable cause stated under oath and affirmation as required by the Fourth Amendment. There are now 336 federal statutes authorizing administrative subpoenas, according to the Department of Justice.
In U.S. v Zadeh, the DEA obtained the records of 35 patient files without showing probable cause or obtaining a warrant issued by a judge. Citing New Deal-era case law, Judge Reed O’Connor noted that “[t]he Supreme Court has refused to require that [a federal] agency have probable cause to justify issuance of an administrative subpoena,” and that they may be issued “merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." (Emphasis added).
In other words, the government may now use “fishing expeditions” for medical records.
Those constitutionally grotesque New Deal-era decisions violated the Fourth Amendment on its face, and were ideological, progressive foolishness when issued against the likes of the Morton Salt Company in 1950. Now this corrupt precedent creating institutionalized violations of the Fourth Amendment has been applied to medical records.
Dr. Zadeh has filed an appeal. Conservative activist Andy Schlafly, the lawyer for the Association of American Physicians & Surgeons, has filed an amicus brief stating, “[w]ithout a warrant and without initially identifying themselves, federal agents searched patient medical records . . . based merely on a state administrative subpoena. A month later the [DEA] sought enforcement . . . [and n]one of the checks and balances against overreaching by one branch of government existed for this warrantless demand for medical records.”
The targeting of private medical records shows that it is now far past the time to eliminate administrative subpoenas for good. Congress may do that legislatively. History also shows it can be done even by the courts, which have the authority -- actually, the constitutional duty -- to declare void acts of Congress in violation of the Constitution.
A warrant for searches or seizures is a judicial act, wrote 17th century English jurist Matthew Hale in his History of Pleas of the Crown, first published in 1736 after his death.
As described in Professor William Cuddihy’s treatise on the history of the Fourth Amendment, Chief Justice Pratt wrote to English political leader William Pitt before the famous search and seizure Wilkes trial in 1763, which highly influenced the creation of the Fourth Amendment, that if compelled, he would come out decisively against warrants issued by the Secretary of State, Lord Halifax. Such warrants were authorized legislatively by Parliament, and had been used for 80 years.
With no political action taken, Pratt fulfilled his warning, ruling that Lord Halifax’s warrants were “unconstitutional, illegal . . . absolutely void,” and wrote, “[n]o precedents, no legal determinations, not an act of Parliament itself is sufficient to warrant any proceeding contrary to the spirit of the constitution.” He then struck down warrants issued by Halifax.
Those were the precursors to today's judge-less administrative warrants, which too have been used for decades in violation of the separation of powers inherent in the Fourth Amendment, and in violation of the requirements of oath and affirmation showing
probable cause. Only judges may hear oaths necessary to issue warrants. Administrative subpoenas issued unilaterally by
bureaucrats and without probable cause directly violate the Fourth Amendment.
A 1946 Supreme Court opinion used in the Zadeh case to justify warrantless searches of medical records received a scathing and prescient dissent by liberal Justice Frank Murphy. Murphy wrote:
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.
Quoting the Declaration of Independence, Justice Murphy noted how such methods of searches were so contrary to liberty and law that they previously contributed to "successful revolt.”
Soon, everything will be considered within the reach of our soft-police state government in violation of the Fourth Amendment unless administrative subpoenas are outlawed, as they should have been nearly 70 years ago.
A 1946 Supreme Court opinion used in the Zadeh case to justify warrantless searches of medical records received a scathing and prescient dissent by liberal Justice Frank Murphy. Murphy wrote:
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.
Quoting the Declaration of Independence, Justice Murphy noted how such methods of searches were so contrary to liberty and law that they previously contributed to "successful revolt.”
Soon, everything will be considered within the reach of our soft-police state government in violation of the Fourth Amendment unless administrative subpoenas are outlawed, as they should have been nearly 70 years ago.
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