The Modest Role of the Warrant Clause in National Security Investigations
Orin S. Kerr
The George Washington University Law School
November 19, 2011
Texas Law Review, Vol. 88, p. 1669, 2010
Texas Law Review Symposium: National Security, Privacy, and Technological Change, February 5, 2010
GWU Law School Public Law Research Paper No. 497
GWU Legal Studies Research Paper No. 497
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.
Number of Pages in PDF File: 16
Keywords: Fourth Amendment, national security
JEL Classification: K14
Date posted: March 19, 2010 ; Last revised: November 23, 2011
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