The Fourth Amendment as administrative governance.

Author:Renan, Daphna
Position:III. Administration "Inside" Constitutional Criminal Procedure A. Administrative Law as an Analogy for Fourth Amendment Law 3. Limits to Judicial Deference Under the Fourth Amendment through Conclusion: Administrative Methods for Constitutional Governance, with footnotes, p. 1085-1129
 
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  1. Limits to judicial deference under the Fourth Amendment

    Administrative law points to a related set of questions, however: Are there limits to the types of legal rules that can be left to the agency itself to design? Myriad consequential rules for surveillance programs will inevitably be made in the first instance by agencies. Are there some types of programmatic decisions that an agency simply should not be permitted to make under the Fourth Amendment--at least absent explicit congressional specification? In the administrative law context, the Court has held that Chevron does not apply to a legal question of such "deep 'economic and political significance'" as to be "central" to the underlying statutory design. (218) King v. Burwell, the Court's recent decision on the Affordable Care Act, reinforced the idea that some legal questions are so significant that a court must undertake to resolve them independently--that is, that the legal question is not a candidate for "Chevron space." (219)

    The Second Circuit's decision in ACLU v. Clapper might be construed to have adopted a similar conception of Fourth Amendment reasonableness, albeit in dictum. (220) Clapper concerned a constitutional and statutory challenge to the NSA's bulk metadata collection program under section 215 of the PATRIOT Act. (221) The Second Circuit resolved the case before it on statutory grounds, holding that section 215 did not authorize the metadata collection program. (222) The court also suggested in dictum, however, that congressional authorization of metadata collection should have bearing on a judicial determination of Fourth Amendment reasonableness. (223) The court emphasized Congress's unique position "to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool." (224)

    There are powerful, and I think correct, arguments for the proposition that only Congress, not an agency, can create a proactive and preventative metadata collection program inside the United States--and, importantly, that Congress's design of an investigatory subpoena process does not amount to such a programmatic authorization. This is precisely the sort of systemic question that the traditional Fourth Amendment framework obscures because it does not see beyond any one-off application of the subpoena authority. For the' federal executive to initiate a program of bulk metadata collection involving domestic calls and continue it for a period of years (the program was in place for over a decade (225)), the Fourth Amendment at a minimum requires congressional authorization. This might be just the sort of legal question that Kerr had in mind in proposing a rule of lenity. But statutory ambiguity pervades program design, and a rule of lenity fails to disentangle those types of ambiguity that an agency should flesh out through program design (subject to judicial supervision).

    The legal authority to engage in a program of surveillance involving domestic communications should come from Congress. But there are myriad legal questions at the level of program design and implementation that we will need to look to agencies to develop in the first instance. Rather than kicking the issue back to Congress every time an ambiguity arises, administrative law suggests a more discerning role for agency elaboration, congressional specification, and judicial review.

    The section 702 surveillance program again provides a helpful example. The legal authority to undertake programmatic collection under section 702 is provided in FISA. In contrast to the section 215 program, then, the authorization for the program itself is statutory. This distinction between the two programs should have bearing on the question whether each type of collection is reasonable under the Fourth Amendment. Yet governance of the section 702 program raises a number of difficult and consequential legal questions under the statutory scheme--questions with significant implications for Fourth Amendment reasonableness. Does section 702 permit the collection of multiple-communication transactions, for example, or does it authorize only the collection of discrete communications involving a foreign intelligence target? Given that section 702 is a warrantless collection authority for surveillance directed at non-U.S. persons overseas, what types of searches for specific U.S. persons are permitted in the resulting datasets, and pursuant to what safeguards?

    Kicking the statute back to Congress every time such questions arise would run into the difficulties discussed earlier--Congress is simply ill suited to decide every hard legal question that arises from program design and implementation. But relying on agencies to answer these questions in secret or through classified FISC review would raise the very significant concerns that Kerr and others have identified.

    Recognizing these concerns in a range of policy settings, administrative law infuses administrative process with requirements for legal and political accountability. A transparent and participatory process of rulemaking--administrative law teaches--creates a more deliberative, more legitimate agency-made law. (226) If we are relying on agency-made rules to give meaning to Fourth Amendment reasonableness, then we also need to consider the process by which those administrative rules are developed. Integrating these structural and procedural considerations into Fourth Amendment reasonableness review could achieve a more transparent and participatory approach to surveillance policymaking without looking to Congress to resolve ambiguity at every turn. (227)

    1. Shaping Governance Through Evidentiary Exclusion

      Judicial deference in constitutional criminal procedure could be conditioned on administrative oversight in another way. The exclusionary rule--the Fourth Amendment's key implementing device--could become a mechanism to incentivize extrajudicial and systemic governance. The germ of the idea is already there in the Court's recent exclusionary rule decisions.

      Herring v. United States (228) and Arizona v. Evans (229) both concerned arrests based on warrants that were no longer valid. In Herring, the defendant was arrested based on a warrant that, unknown to the arresting officer, had been recalled five months earlier, apparently because it had been issued in error. (230) The Dale County Sheriff's Department had failed to update its warrant database to reflect the recall. In Evans, the warrant at issue had been quashed seventeen days prior to the arrest, but the relevant database was not updated because of an error by a clerk of the state court. (231) The majority in both cases held that the exclusionary rule did not apply. (232)

      Concurring in Evans, Justice O'Connor suggested that the pivotal question was not whether "the police were innocent of the court employee's mistake" but whether they "acted reasonably in their reliance on the recordkeeping system itself." (233) On the facts before the Court, she emphasized, the database error was due to a court employee's divergence from the established recordkeeping protocol. (234) The relevant system of administrative governance was sound, even if it was not entirely error-proof. Justice O'Connor urged, in contrast, that "it would not be reasonable for the police to rely, say, on a recordkeeping system, their own or some other agency's, that has no mechanism to ensure its accuracy over time and that routinely leads to false arrests." (235)

      The decisive question for Justice O'Connor was one of administrative governance: What structural and procedural safeguards existed to ensure the veracity of the information provided by the warrant database? Justice O'Connor's approach to the exclusionary rule was both systemic and institutionally grounded. She asked whether administrative structures and processes were in place to create a reliable warrant database, even if the particular warrant at issue had not been correctly expunged. (236)

      While Evans concerned an error by a clerk of the court, Herring presented the Court with a database error by another police officer. The majority in Herring again declined to apply the exclusionary rule. To trigger evidentiary exclusion, Chief Justice Roberts wrote for the Court, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." (237) While the majority's approach to deterrence focused on the culpability or recklessness of a particular officer, there is another potential approach to deterrence lurking in Herring. (238)

      The error at issue in Herring, the Court emphasized, was "nonrecurring"; (239) cases involving "systemic errors" might warrant a different result. (240) The possibility of systemic error relief did not console the dissent, for how could an "impecunious defendant ... make the required showing?" (241) It would be exceedingly difficult for a defendant to demonstrate systemic error--an idea that the majority nowhere defined.

      But what if the burden were not on the defendant? What if an error in the database required the government, in order to avoid evidentiary exclusion, to demonstrate that extrajudicial mechanisms of oversight and accountability were firmly in place? This approach to deterrence would not focus on the individual officer on the beat, but on the policymaker--that is, the actors in charge of program design and oversight. (242) Using the exclusionary rule to encourage systemic administration would be a more workable, and more institutionally grounded, approach to "systemic errors."

      The Court has repeatedly described the exclusionary rule as a remedy of last resort. (243) But it has rejected evidentiary exclusion without meaningfully exploring search and seizure governance. Applying the...

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