Legal Commentary

The Modest Role of the Warrant Clause in National Security Investigations

By Orin Kerr

I recently posted a new essay, The Modest Role of the Warrant Clause in National Security Investigations, forthcoming in a symposium issue of the Texas Law Review. Here?s 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.

Full post as published by The Volokh Conspiracy on March 22, 2010 (boomark / email).