An administrative subpoena under U.S. law is a

subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...

issued by a federal agency without prior

judicial oversight Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompa ...

. Critics say that administrative subpoena authority is a violation of the

Fourth Amendment to the United States Constitution The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge o ...

, while proponents say that it provides a valuable investigative tool.

History

Philip Hamburger Philip Hamburger is an American legal scholar. Hamburger holds a Juris Doctor from Yale Law School (1982) and a Bachelor of Arts from Princeton University (1979). Hamburger is the Maurice and Hilda Friedman Professor of Law at the Columbia Unive ...

argues historical antecedents for the modern-day administrative subpoena date back as far as the

Star Chamber The Star Chamber (Latin: ''Camera stellata'') was an English court that sat at the royal Palace of Westminster, from the late to the mid-17th century (c. 1641), and was composed of Privy Counsellors and common-law judges, to supplement the ju ...

and the prerogative courts, which issued

warrants Warrant may refer to: * Warrant (law), a form of specific authorization ** Arrest warrant, authorizing the arrest and detention of an individual ** Search warrant, a court order issued that authorizes law enforcement to conduct a search for eviden ...

and subpoenas that were not subject to significant procedural safeguards or the

rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannic ...

. Administrative subpoenas have most commonly been issued by the Offices of the Inspector General of various federal agencies. The

Drug Enforcement Administration The Drug Enforcement Administration (DEA; ) is a United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within the U.S. It is the lead agency for domestic en ...

was granted administrative subpoena authority under the

Comprehensive Drug Abuse Prevention and Control Act of 1970 The Comprehensive Drug Abuse Prevention and Control Act of 1970, , is a United States federal law that, with subsequent modifications, requires the pharmaceutical industry to maintain physical security and strict record keeping for certain ty ...

. In 1996 Congress expanded the authority to issue the subpoenas to the

Federal Bureau of Investigation The Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States and its principal federal law enforcement agency. Operating under the jurisdiction of the United States Department of Justice ...

when investigating health care fraud cases under the

Health Insurance Portability and Accountability Act The Health Insurance Portability and Accountability Act of 1996 (HIPAA or the Kennedy– Kassebaum Act) is a United States Act of Congress enacted by the 104th United States Congress and signed into law by President Bill Clinton on August 21, 1 ...

. More recently, Public law 106-544 December 19, 2000 the

Department of Justice A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...

has attempted to expand administrative subpoena authority to terrorism investigations through amendments to the

Patriot Act The USA PATRIOT Act (commonly known as the Patriot Act) was a landmark Act of the United States Congress, signed into law by President George W. Bush. The formal name of the statute is the Uniting and Strengthening America by Providing Appro ...

. 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. The decision of a district court to enforce an administrative subpoena is reviewed for

abuse of discretion Discretion has the meaning of acting on one's own authority and judgment. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. Some view discretion negatively, while some view it ...

History

Legal background

See also

References

Sources

References