Administrative subpoena

An administrative subpoena under U.S. law is a subpoena issued by a federal agency without prior judicial oversight. Unlike traditional subpoenas that require a court order or grand jury authorization, administrative subpoenas allow agencies to compel the production of documents, records, or testimony directly as part of their regulatory or investigative functions. This authority has expanded significantly since the September 11 attacks, with agencies such as the Drug Enforcement Administration, Internal Revenue Service, and Securities and Exchange Commission among those empowered to issue such subpoenas.

The practice has generated substantial legal and policy debate. Critics say that administrative subpoena authority is a violation of the Fourth Amendment to the United States Constitution, arguing that it circumvents traditional warrant requirements and judicial checks on government power. Proponents say that it provides a valuable investigative tool that enables agencies to efficiently gather information necessary for law enforcement and regulatory compliance without the delays inherent in seeking court approval. ^{[1] [2]}

History

Historical antecedents for the modern-day administrative subpoena date back as far as the Star Chamber and the prerogative courts, which issued warrants and subpoenas that were not subject to significant procedural safeguards or the rule of law. ^[3]

Administrative subpoenas have most commonly been issued by the Offices of the Inspector General of various federal agencies. ^[4] The Drug Enforcement Administration was granted administrative subpoena authority under the Comprehensive Drug Abuse Prevention and Control Act of 1970. ^[5] In 1996, Congress expanded the authority to issue the subpoenas to the Federal Bureau of Investigation when investigating health care fraud cases under the Health Insurance Portability and Accountability Act. More recently, public law 106-544 dated December 19, 2000, the Department of Justice has attempted to expand administrative subpoena authority to terrorism investigations through amendments to the Patriot Act. ^{[4] [6]}

The United States Department of the Treasury's Office of Foreign Assets Control (OFAC) also frequently utilizes administrative subpoenas to initiate civil investigations of U.S. economic sanctions violations. OFAC subpoenas are typically to be responded to in 30 days and require the subpoenaed party to turn over full and complete information, as well as, supporting documentation to verify the information provided in the response.

Legal background

Courts typically exercise substantial deference to the agency requesting the subpoena in deciding whether to enforce it. ^{[7] [8]} The decision of a district court to enforce an administrative subpoena is reviewed for abuse of discretion, ^[9] itself a deferential standard.

See also

• National security letter

References

Sources

• Hamburger, Philip (2014). Is Administrative Law Unlawful?. Chicago: University of Chicago Press. ISBN   9780226116457.

References

1. Doyle, Charles (2005-04-15). "Administrative Subpoenas and National Security Letters in Criminal and Foreign Intelligence Investigations: Background and Proposed Adjustments" (PDF). CRS Report for Congress. Congressional Research Service. Retrieved August 29, 2012.
2. Kravets, David (2012-08-28). "We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena". wired.com. Condé Nast. Retrieved August 29, 2012.
3. Hamburger 2014, pp. 134, 176.
4. Sklaire, Michael R. (December 2005). "Administrative Subpoenas Blur the Line between Civil and Criminal Enforcement" (PDF). Legal Opinion Letter. 15 (23). Washington Legal Foundation.
5. Kravets, David (2012-08-28). "We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena". wired.com. Condé Nast. Retrieved August 29, 2012.
6. "Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities". US Department of Justice. US Justice department. Retrieved 5 October 2015.
7. Hamburger 2014, p. 276.
8. Koch, Charles H. (2020). "Judicial Review". Federal Practice & Procedure (Wright & Miller). Vol. 32. § 8145.
9. McLane Co., Inc. v. E.E.O.C. , 137S.Ct.1159 , 1163(2017).