Friday, September 14, 2012

Executive Branch Violating Fourth Amendment

Over the past couple of decades a new trend in potential Constitutional violations by the Executive Branch has slowly grown into what will become a monumental destruction of key liberties that very document was designed to protect.

The framers of the US Constitution headed by John Jay, Alexander Hamilton and James Madison did not originally place the first ten amendments into the Constitution. The reason they thought them unnecessary was because the colonists had fought a long, hard war over those very issues. They originally believed those things to not need to be stated, especially since the very violations of those inalienable rights were explicitly enumerated in the Declaration of Independence. Common sense and vision of the future prevailed and the amendments were added prior to ratification.

As history has shown, those very rights did need to be written into the Constitution. Still, certain groups of individuals who seek to garner power and steal liberty from the average citizen attempt to circumvent, reinterpret, or undermine those very rights. Among those is the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

Wired Magazine recently published an article concerning the DEA's overuse of "administrative subpoenas" in lieu of properly issued warrants that include a supervising justice's signature. The subpoenas are issued to third party institutions, such as banks, telecommunications companies, online "cloud" storage providers, and credit companies. In aggregate, there are over 330 federal laws that permit the issuance of administrative subpoenas without requiring a judicial warrant approving the search or seizure.

The "gray area" exploited by these agencies and these laws rests in the fact that the Fourth Amendment doesn't explicitly state that warrants are required. It stipulates that any warrants issued must meet probable cause criteria and explicitly state what is being searched, what they are searching for, and what, specifically, they can seize as evidence. The justification used for these "administrative subpoenas" is that they are not unreasonable and the third party entities can challenge them instead of complying, if they wish the legal fees involved.

The DEA is not the only executive agency employing this tactic. The FDA uses this tactic in regards to pharmaceutical companies and food processing plants. The EPA employs them in regards to anything they believe impacts the environment, including subpoenas to seize cows to test their rectal methane emissions. The list goes on with most bureaucratic agencies in the executive branch having access and use of some level of administrative subpoena, even though the US Constitution grants the powers of subpoena and warrants to only the legislative and judicial branches.

The best chance of ending this encroaching tyranny and executive branch overreach is for the judicial branch to hear cases on each and every one of the over 330 laws and executive orders and rule them violations of the Fourth Amendment. That could require a Supreme Court decision for each. Meanwhile, while each waited years for its day in court, the executive branch bureaucrats would continue or increase their violations with impunity. The hopes would be that we, the people, would just get used to it and accept it as how things are meant to be.

A Federal Circuit Court in New York just ruled on the provisions allowing for the detention of US Citizens indefinitely if suspected of treason or involvement in terrorism against the US or its territories that is contained in the 2011 National Defense Authorization Act (NDAA 2011). The court found the clauses to be in violation of both the First and Fifth Amendments. While most Americans will agree that enemy combatants who are not US citizens should be subject to the Laws of Land Warfare, the rights of US Citizens must be respected, observed, and adhered to.

The gradual increase of government powers and removal of essential liberties necessary to natural, inalienable rights needs to be stopped. The encroachment that has been done needs to be rectified. The very essence and core of the US Constitution (the supreme law of the land) and foundation of our great republic depends upon it. It's time to vote into office people that will actually stick to their oaths of office instead of just paying lip-service.


Thanks to Melissa Fosler for her assistance in researching elements of this article.