Tuesday, March 30, 2010
Orin S. Kerr (George Washington University - Law School) has posted The Modest Role of the Warrant Clause in National Security Investigations (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
Why is the Warrant Clause of the Fourth Amendment so modest in national security investigations? This symposium essay argues that the Warrant Clause has a narrow role because the extension of the Warrant Clause into national security law forces courts to pose a question that judges cannot readily answer. The cases extending the Warrant Clause to the national security setting held that warrants are required only when a warrant requirement would be reasonable, and the warrants that are required are whatever warrants would be reasonable. This double-barreled reasonableness test gave the Supreme Court the flexibility to insert the Warrant Cause almost anywhere, including the setting of national security investigations. But it came at a cost. The test created to give the Court flexibility forces judges to ask a question they are particularly poorly-equipped to answer. Faced with uncertainty, most judges will remain cautious. As a result, the Warrant Clause will apply broadly in theory but work modestly in practice.
This essay was presented at a Texas Law Review symposium on "National Security, Privacy, and Technological Change" on February 5, 2010.