New law review: “How the Fourth Amendment and the Separation of Powers Rise (and Fall) Together”

Aziz Z. Huq, How the Fourth Amendment and the Separation of Powers Rise (and Fall) Together, 83 U.Chi.L.Rev. 101 (2016):

This Essay tenders two claims about how the Fourth Amendment and the separation of powers interact. First, the Fourth Amendment echoes in purpose, and relies on in practice, the division of authority between the three branches of the federal government. Second, the institutional predicates of the Fourth Amendment’s operation with respect to the federal government are incentive-incompatible and therefore unreliable. The ensuing erosion of the amendment’s underlying institutional predicates has implications, I suggest, for the viability of efforts to promote pro-privacy regulatory agendas under a constitutional aegis, and, as a correlate, the need to find possible alternative regulatory paths to privacy in new regulatory spaces such as emerging digital and telecommunications domains.

My focus departs from mainstream Fourth Amendment scholarship’s current preoccupations. Since the 1960s, the latter has focused on the scope of police authority, especially regarding the power to conduct vehicular stops and street stop-and-frisks, the measure of deference to officer safety in traffic stops, the need for an exclusionary rule, and the boundary between a diffuse reasonableness trigger for search authority and a more procedurally onerous warrant requirement. The Supreme Court’s Fourth Amendment docket in the 2015 term is exemplary in turning on vehicular stops and municipal investigations.

This focus obscures the relationship of the Fourth Amendment to the structure of the federal government. It also means that the Court typically considers Fourth Amendment questions concerning novel technologies in litigation about ordinary policing. The consideration of geolocational technologies and cellphone data in United States v Jones and Riley v California, for instance, emerged respectively from narcotics and antigang investigations.

But Fourth Amendment rules tend not to be tailored to specific institutional contexts. They spill over to the federal government’s rather different search capacities. Judicial preoccupations peculiar to the policing and crime-control contexts nevertheless infuse (or distort) conduct rules and remedies that extend undifferentiated across distinct institutional contexts.

To be sure, the Fourth Amendment and the separation of powers have been recoupled in the public eye by the sheer force of recent events. …