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only against the changing views of Presidents and Members

of Congress, but also against the changing views of

Justices."32

Thus, the crux of the modern debate over the

exclusionary rule is hidden within the basic constitutional

question, Who issues search warrants?  In America, judi-

cial officers decide when search warrants are to be

issued.  Once the judicial nature of the warrant-issuing

process is admitted, the constitutional debate over the

exclusionary rule is essentially over, for any attempt by

the legislative or executive branches to seize control of

the warrant-issuing process amounts to a violation of the

separation-of-powers principle.

Encroachment on the Judiciary: The Frontal Assault

Over the course of American history, many attempts

have been made by the legislative and executive branches

(sometimes separately, sometimes in concert) to wrest the

search-warrant process from the judicial branch.  Such

attempts fall into three categories: (1) executive acts

denying the constitutional role of the judiciary in the

issuance of search warrants; (2) legislative acts attempt-

ing to reduce the judiciary's warrant-issuing procedure to

nothing more than rubber stamping for the police; and,

most subtle, (3) legislative acts attempting to cripple

the judiciary's ability to defend itself against executive

branch encroachment.  Although attacks on the exclusionary

rule fall into the last category, it will be useful to

examine the more egregious instances of encroachment before

turning to the more subtle threats to the constitutional

powers and prerogatives of the judiciary.

The most blatant move against the judiciary's warrant-

issuing process has taken the form of a denial, from the

executive branch, that warrants are a constitutional

prerequisite to searches of citizens' homes and businesses.

Executive branch lawyers have made the claim that their

agents can proceed with a search without having to ask a

judge for a search warrant.  In this view, the only

constitutional question raised by warrantless searches is

whether the police acted "reasonably."33  Such a claim is

nothing short of a frontal assault on the role of the

judicial branch.  The Supreme Court has had to thwart that

attempted end-run around the courts on many occasions.  In

Johnson v. United States (1948), Justice Robert Jackson

explained the constitutional role of the judicial officer

in search and seizure situations: