Administrative subpoena

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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.

Contents

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. [1] 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]

Enforcement

Different U.S. federal agencies may issue administrative subpoenas for civil enforcement actions or as part of criminal investigations. [3] Since different types of administrative subpoenas are authorized by different statutes, they have a range of enforcement procedures, but typically they rely on courts for enforcement. [1] This means the recipients of some subpoenas may decline to provide the requested information and instead challenge the order in court; a court may order them to comply. [4] [5] [6] 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.

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. [10]

Before the early 2000s, administrative subpoenas were most commonly issued by the Offices of the Inspector General of various federal agencies for civil enforcement actions. [3] This authority was granted by the Inspector General Act of 1978. [11] The Drug Enforcement Administration was granted administrative subpoena authority under the Comprehensive Drug Abuse Prevention and Control Act of 1970. [2] In 1996, Congress expanded the authority to issue the subpoenas to the Federal Bureau of Investigation (FBI) when investigating health care fraud cases under the Health Insurance Portability and Accountability Act. [3] The FBI is also authorized to send national security letters, a type of administrative subpoena, to gather information for national security purposes. [2] By the early 2000s, various executive branch agencies had 335 administrative subpoena authorities, established by various statutes. [11]

The Department of the Treasury's Office of Foreign Assets Control (OFAC) frequently uses 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.

Starting in the immigration policy of the first Trump administration, Immigration and Customs Enforcement has used immigration subpoenas, a form of administrative subpoena, to compel state and local governments to provide information about people to support immigration enforcement and deportation. [12] [13] In 2025–2026, the Department of Homeland Security has issued administrative subpoenas to companies, including Google and Meta, to request information about people who have criticized or protested aspects of the immigration policy of the second Trump administration. [14] [15] [16] Civil rights organizations, including the American Civil Liberties Union, have filed legal challenges and criticized these requests for overstepping the scope of the relevant laws and violating the First Amendment. [14] [16]

References

Sources

References

  1. 1 2 3 Doyle, Charles (2012-12-19). "Administrative Subpoenas in Criminal Investigations: A Brief Legal Analysis". Congressional Research Service. U.S. Congress. Retrieved February 4, 2026.
  2. 1 2 3 Kravets, David (2012-08-28). "We Don't Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena". Wired. Condé Nast. Retrieved August 29, 2012.
  3. 1 2 3 Sklaire, Michael R. (December 2005). "Administrative Subpoenas Blur the Line between Civil and Criminal Enforcement" (PDF). Legal Opinion Letter. 15 (23). Washington Legal Foundation.
  4. ↑ "Promoting Safe and Secure Libraries for All: Guidance and Model Policies to Assist California's Public Libraries in Responding to Immigration Issues" (PDF). State of California Department of Justice Office of the Attorney General. December 2024. p. 10. Retrieved 2026-02-04.
  5. ↑ "Warrants and Subpoenas: What to Look Out for and How to Respond" (PDF). National Immigration Law Center . January 2025. Retrieved 2026-02-04.
  6. ↑ "Know Your Rights: Immigration Administrative Subpoenas" (PDF). American Civil Liberties Union Foundation. 2025. Retrieved 2026-02-04.
  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).
  10. ↑ Hamburger 2014, pp. 134, 176.
  11. 1 2 "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.
  12. ↑ Nash, Lindsay (December 11, 2024). "The Immigration Subpoena Power". Columbia Law Review. 125 (1). doi:10.2139/ssrn.5052144. ISSN   1556-5068.
  13. ↑ Joffe-Block, Jude (2025-06-24). "The Trump administration is making an unprecedented reach for data held by states". NPR. Retrieved 2026-02-05.
  14. 1 2 Musgrave, Shawn (2025-09-18). "The Feds Want to Unmask Instagram Accounts That Identified Immigration Agents". The Intercept. Retrieved 2026-02-05.
  15. ↑ Musgrave, Shawn (2025-09-24). "Courts Block Meta From Sharing Anti-ICE Activists' Instagram Account Info With Feds". The Intercept. Retrieved 2026-02-05.
  16. 1 2 Cox, John Woodrow (2026-02-03). "Homeland Security is targeting Americans with this secretive legal weapon". The Washington Post. ISSN   0190-8286 . Retrieved 2026-02-05.
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