(The following is a list of “tinkering” ideas. If we’re going to have a regulatory “bill of rights,” this is the very minimum that ought to be done).
1. Whenever an agency of the federal government conducts a regulatory inspection or search, it must provide the owner (or his representative) written notice of the legal basis for the inspection and/or search. If the government has a warrant, it must give the owner a copy of the warrant along with all supporting affidavits (if the gov’t has a really good reason for confidentiality, it should be able to petition a court to have the affidavits sealed). The government should also be required to furnish the owner with a written list of the names, titles, and agencies of each government agent who is participating in the search and/or inspection. (Note that RCRA and CERCLA do not expressly require the presentation of credentials prior to inspections).
2. The government must issue receipts for all items seized to the owner (or his representative).
3. If any type of samples are taken–such as a chemical or soil sample–a split sample must be offered to the owner of the premises. Note that the Clean Water Act and the Clean Air Act do not presently require the government to provide split samples.
4. If any photographs are taken, copies must be provided to the owner (or, upon request).
5. If government agents take or seize any documents, they must give the owner the opportunity to photocopy the documents on site before their removal or, alternatively, provide for off‐site photocopying within 48 hours (the owner may need the records to continue its day to day business).
6. During inspections and/or searches, government agents must inform all employees prior to questioning that they have no legal obligation to answer questions from government agents and that they have the right to remain silent.
Mr. Chairman, I would like to thank you for this opportunity to discuss federal regulatory abuse and the urgent need for a citizens’ “Bill of Rights.”
Unfortunately, the bill of rights that is before this subcommittee does not go very far in alleviating these problems. I would therefore urge the 104th Congress consider some bolder initiatives. Congress should reinvigorate the Fourth and Fifth Amendments of the original Bill of Rights by:
(Here is the “paradigmatic” shift, i.e. real reform)
- Abolishing all federal statutes that authorize the warrantless entry onto private property. In the absence of consent or exigent circumstances, government agents should have to obtain a warrant from an independent magistrate;
- Abolishing all compulsory recordkeeping and reporting requirements. The Fifth Amendment privilege is nullified when the government forces business persons to confess regulatory violations.
The Fifth Amendment codified the common law guarantee against self‐incrimination, but a dubious Supreme Court precedent has upheld recordkeeping and reporting requirements that undermine that guarantee. The “Superfund” environmental statute, for example, requires individuals and businesses in the waste disposal industry to maintain records prescribed by EPA regulations and to make those records available to EPA investigators during inspections. But as was recognized by Justice Robert Jackson, among others, the Fifth Amendment guarantee is essentially “nullified” if the government can “require a citizen to keep an account of his deeds and misdeeds and turn over or exhibit the record on demand of government inspectors, who then can use it to convict him” of a crime. Indeed, Justice Jackson noted sarcastically that government could simplify law enforcement by merely requiring every citizen “to keep a diary that would show where he was at all times, with whom he was, and what he was up to.” (Shapiro v. United States, 335 U.S. 1, 70–71 (1948)). The abominable practice of compulsory self‐incrimination should cease immediately. Congress should vindicate Justice Jackson’s opinion by making it the law of the land. The “price” of compulsory testimony, reporting, or recordkeeping ought to be prosecutorial immunity. If it is necessary, that is, for government to utilize compulsory reporting or recordkeeping, the state should forgo the use of the criminal sanction against individuals and organizations that reveal regulatory infractions. The Fifth Amendment requires no less.
The Fourth Amendment was designed to limit official entries onto private property, but Supreme Court rulings have laid out one set of legal standards for residential property and another set for commercial property. Under current law, the Drug Enforcement Administration must obtain a search warrant before it can raid a crack house, but the Environmental Protection Agency can conduct warrantless inspections of manufacturing plants virtually at will. Both liberals and conservatives have defended this jurisprudence by seizing upon the Fourth Amendment’s reference to “houses.” That reference is offered as conclusive evidence that the Framers purposely left commercial property unprotected. Judge Elijah Prettyman answered that argument in 1949 when he wrote: “To view the [Fourth] Amendment as a limitation upon an otherwise unlimited right of search is to invert completely the true posture of rights and the limitations thereon.” (See District of Columbia v. Little, 175 F.2d 13, 17 (1949)). The Framers of the Constitution knew it was impossible to enumerate all of our rights. They inserted the Ninth Amendment as a reminder to the government that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The argument that the Constitution condones sweeping inspection powers over commercial property is, to borrow Judge Prettyman’s phrase, “a fantastic absurdity.”
Congress should repeal every federal law that authorizes warrantless entries onto private property. Absent consent or exigent circumstances, government agents should be required to obtain a warrant from an independent magistrate. Magistrates, in turn, should not issue warrants unless there is “probable cause” to believe that a law has been violated. If those Fourth Amendment procedures can be honored when the FBI is attempting to apprehend “America’s Most Wanted,” they can surely be followed by the regulatory police in OSHA and the EPA.