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Administrative Subpoenas: A Closer Look at Federal Agencies’ Investigative Powers

Administrative Subpoenas: A Closer Look at Federal Agencies’ Investigative Powers

Administrative subpoenas are a powerful investigative tool used by various federal agencies in the United States. An administrative subpoena allows a government agency to compel an individual or organization to provide documents or testimony related to an investigation, without requiring prior judicial approval.While administrative subpoenas serve legitimate regulatory purposes, some argue they give agencies too much unchecked authority. Critics say there are insufficient privacy protections for the subjects of investigations. There are also concerns that administrative subpoenas bypass the traditional subpoena process, eliminating judicial oversight.This article examines the debate around federal administrative subpoenas. It provides an overview of different agencies’ subpoena powers, common uses of administrative subpoenas, constitutional issues, and legislative reform efforts.

What Are Administrative Subpoenas?

An administrative subpoena is a subpoena issued by a government agency without involving a grand jury or court approval. Administrative subpoenas allow investigators to compel individuals and organizations to provide physical evidence or testimony for regulatory inquiries and enforcement actions.For example, the Securities and Exchange Commission frequently issues administrative subpoenas to collect evidence during investigations into potential securities law violations. The Federal Trade Commission also uses administrative subpoenas to investigate unfair or deceptive business practices.Administrative subpoenas differ from traditional subpoenas in key ways:

• No judicial oversight: They are issued directly by federal agencies without court approval.
• Broad scope: They can request wide-ranging documents and testimony.
• Limited procedural protections: Subjects often have fewer rights to fight administrative subpoenas.

This combination of broad scope and limited protections fuels debates around the appropriate use of administrative subpoenas.

Federal Agencies That Can Issue Administrative Subpoenas

Dozens of federal agencies have administrative subpoena authority. Some of the agencies that rely on them most extensively include:

• Securities and Exchange Commission (SEC): The SEC uses administrative subpoenas to investigate securities law violations. It issued over 3,000 administrative subpoenas in 2018.
• Federal Trade Commission (FTC): The FTC regularly issues administrative subpoenas during investigations into unfair business practices.
• FBI: The FBI uses administrative subpoenas to collect financial records, telephone metadata, and other information during national security and criminal investigations.
• IRS: The IRS uses administrative subpoenas to investigate potential tax fraud. Subpoenas can request documents showing suspect financial transactions.
• DEA: The Drug Enforcement Administration uses administrative subpoenas to investigate violations of controlled substance laws.
• EPA: The Environmental Protection Agency uses administrative subpoenas to investigate violations of environmental laws, compelling companies to share pollution data.

This is not a complete list, but it demonstrates how deeply embedded administrative subpoena practices are across federal regulatory and enforcement agencies.

Common Uses of Administrative Subpoenas

Administrative subpoenas empower agencies to conduct in-depth investigations without judicial oversight. Some common uses include:Securities investigations: The SEC often issues administrative subpoenas to brokerage firms, investment companies, and public companies to collect evidence about potential insider trading, accounting fraud, or other securities violations.Antitrust probes: Agencies like the FTC and Department of Justice frequently use administrative subpoenas to investigate anticompetitive practices. Subpoenas can compel companies to share sales data, pricing information, meeting minutes, and more.Health care fraud: Agencies including the Department of Health and Human Services rely on administrative subpoenas to investigate health care providers accused of overbilling federal insurance programs.Workplace disputes: Agencies like the Equal Employment Opportunity Commission use administrative subpoenas to collect evidence during investigations into workplace discrimination and harassment complaints.Environmental violations: The EPA regularly issues administrative subpoenas to investigate violations of laws like the Clean Air Act and Clean Water Act, compelling companies to share pollution data.While administrative subpoenas serve important oversight functions, critics argue they lack sufficient checks and balances against abuse or overreach.

Constitutional and Privacy Concerns

Administrative subpoena practices raise thorny constitutional and privacy issues. The Fourth Amendment protects against “unreasonable searches and seizures” by the government, while the Fifth Amendment provides due process protections for legal proceedings. Do administrative subpoenas violate those rights?The Supreme Court has upheld administrative subpoenas as constitutional in several cases, but has placed some limitations around their use:

• Subpoenas must be issued for a “legitimate purpose.”
• There must be statutory authority allowing an agency to issue administrative subpoenas.
• The subpoenaed information must be “relevant and material” to the investigation.
• Production requests cannot be “too indefinite.”

However, some legal experts argue these restrictions are insufficient to protect subpoena subjects’ constitutional rights.Critics also argue federal agencies often gain access to sensitive personal information through administrative subpoenas while providing inadequate privacy safeguards. Online privacy groups like the Electronic Privacy Information Center warn that administrative subpoenas allow investigators to circumvent typical privacy protections.

Reform Efforts Around Administrative Subpoenas

There have been growing calls in Congress to reform administrative subpoena practices, especially at the Department of Justice.Critics argue agencies should be required to provide more notice to investigation targets while narrowing subpoena scope. Reform bills have also sought to add penalties for abusing administrative subpoenas.The Administrative Subpoena Reform Act, introduced in 2019, would:

• Require agencies to give 14 days notice before issuing a subpoena.
• Allow targets to contest a subpoena before an administrative law judge.
• Limit subpoenas for journalists’ records that could reveal confidential sources.
• Outlaw using subpoenas to investigate legally protected free speech.

While this bill stalled, Congress may pursue similar administrative subpoena reforms in the future.

Conclusion

Administrative subpoenas clearly provide important investigative powers to federal agencies responsible for securities laws, antitrust regulations, health care oversight, workplace protections, environmental enforcement and more. However, critics argue sweeping subpoena powers come at the cost of civil liberties and privacy rights.The debate around administrative subpoenas reflects larger tensions in law enforcement and regulatory practices. As agencies continue relying on expansive information collection tools, we are likely to see increasing legal and legislative challenges to unchecked subpoena powers. Reforms could strengthen due process protections without severely hampering agencies’ ability to conduct regulatory investigations.