Introduction
The traditional system of the United States federal government consists of the Congress, the Executive, and the Courts. Congress passes the laws, the Executive enforces the laws, and the Courts interpret the laws. But this is a dramatic over-simplication of the way in which the government carries out its functions and duties. Congress and the President will often delegate their authority to agencies that are tasked with performing specific government functions and objectives. Because the number of government agencies is so voluminous and vast, a large body of agency law has emerged.
Agencies have authority to act pursuant to a delegation of Congressional or Presidential authority. Agencies are empowered to pass rules and regulations that further their stated mission, goals, and purpose. The Administrative Procedure Act of 1946 (APA) is the overarching statute that outlines the general procedures that agencies must follow (Administrative Procedure Act of 1946, 1946). When promulgating rules and regulations, agencies must follow the standards set forth in the APA.
An agency’s interpretation of a statute or regulations is usually entitled to great deference by the reviewing court. The chestnut administrative law case addressing the question of agency deference was Chevron U.S.A., v. Natural Resources Defense Council, Inc. The principle extracted from the case, known as Chevron deference, breaks the inquiry into two parts: 1) has Congress spoken directly, and 2) if no, whether the agency’s interpretation of the statute is permissible (Chevron U.S.A., v. Natural Resources Defense Council, Inc., 1983, pp. 842-843). In the vast majority of instances, Congress will not have directly addressed the issue, so agencies will usually be entitled to extensive deference in their statutory interpretation.
Marshall v. Barlow’s Inc.
While an agency’s interpretation of it’s own statute is entitled to substantial deference, there are many questions that arise as to when an agency statute conflicts with the Constitution. In Marshall v. Barlow’s Inc., the Supreme Court addressed whether a warrantless search conducted pursuant to the Occupational Safety and Health Act (OSHA) violated the Fourth Amendment’s prohibition of unreasonable searches and seizures. Under OSHA section 8(a), the Secretary of Labor (Secretary) and its agents were given authority to search work areas of employment facilities subject to the Act (Marshall v. Barlow’s Inc., 1978, p. 309). The purpose of OSHA is to search and inspect workplaces for potential safety hazards or OSHA violations (Marshall v. Barlow’s Inc., 1978, p. 309). The Secretary of Labor did not need to obtain a warrant before conducting a search of a workplace (Marshall v. Barlow’s Inc., 1978, p. 309).
Barlow’s Inc. was a plumbing and electrical installation business in Idaho (Marshall v. Barlow’s Inc., 1978, p. 309). An OSHA entered the customer service area of Barlow’s Inc. on September 11, 1975 (Marshall v. Barlow’s Inc., 1978, p. 309). After the OSHA inspector showed his valid credentials, he asked to search the workplace areas of the business facility. The president and general manager, Mr. Barlow, inquired as to whether the inspector had a warrant (Marshall v. Barlow’s Inc., 1978, p. 310). The inspector answered that he did not have a warrant, and Mr. Barlow refused to allow the inspector to enter the workplace area on Fourth Amendment grounds (Marshall v. Barlow’s Inc., 1978, p. 310).
The Secretary of Labor petitioned the District Court for an order forcing Mr. Barlow to admit the inspector (Marshall v. Barlow’s Inc., 1978, p. 310). The requested relief was issue and presented to Mr. Barlow in January 1976, but Mr. Barlow still refused to let the inspector inside. Mr. Barlow then filed his own suit challenging the warrantless search, seeking injunctive relief. The court ruled in favor of Mr. Barlow and prohibited the warrantless search (Marshall v. Barlow’s Inc., 1978, p. 310). The Secretary then challenged the court’s ruling that required that the Secretary obtain a warrant before searching Mr. Barlow’s business.
The Supreme Court held that OSHA was required to obtain a warrant before conducting a search of Mr. Barlow’s business workplace premises (Marshall v. Barlow’s Inc., 1978, p. 325). While the Court acknowledged the strong government interest in searching employer facilities for OSHA violations, the Fourth Amendment warrant protections for business proprietors outweighed OSHA’s overriding interest in efficiency and administration (Marshall v. Barlow’s Inc., 1978, p. 323). The Act providing warrantless search powers to OSHA agents gave the agency concentrated too much authority and discretion in this agency’s command (Marshall v. Barlow’s Inc., 1978, p. 322-323). Therefore, the Court held that the Fourth Amendment warrant requirement applies to inspections for compliance with agency regulatory statutes (Marshall v. Barlow’s Inc., 1978, p. 323-324).
Dow Chemical Company v. United States
The case Dow Chemical Company v. United States also concerned a warrantless search of business premises pursuant to regulatory agency authority. Dow Chemical Company (Dow) operated a large chemical manufacturing plant in Michigan (Dow Chemical Company, 1986, p. 229). Dow has substantial security features that conceal the ground-level of the facility from public view (Dow Chemical Company, 1986, p. 229). Dow also investigated any low-flight aircraft activity over the facility, but did not try to hide all manufacturing equipment from aerial view (Dow Chemical Company, 1986, p. 229).
In 1978, the Environmental Protection Agency (EPA), with Dow’s consent, conducted an inspection of the facility premises. When the EPA made a second inspection request, however, Dow refused. Instead of seeking an administrative warrant, the EPA proceeded to hire a commercial aerial photographer and took photos of Dow’s facility from various altitudes (Dow Chemical Company, 1986, p. 229). EPA failed to notify Dow of the aerial photography. When Dow learned of this, Dow brought suit in the District Court, alleging that EPA has violated the Fourth Amendment and had exceeded its statutory authority (Dow Chemical Company, 1986, p. 230). The District Court held in Dow’s favor, finding that the EPA did not have authority to take aerial photographs of Dow’s facilities (Dow Chemical Company, 1986, p. 230). The Court of Appeals, however, reversed. The Court of Appeals found that Dow did not have a reasonable expectation of privacy because the aerial photographs captured outside the building and not inside (Dow Chemical Company, 1986, p. 230).
The question for the Supreme Court was whether the Fourth Amendment warrant requirements applied to aerial photography of Dow’s business facility (Dow Chemical Company, 1986, p. 234). To resolve this issue, the Court looked to the curtilage doctrine, which affords warrant protection to the interior structures of buildings, and the open fields doctrine, which does not generally extend warrant protection to out door fields (Dow Chemical Company, 1986, p. 235). The Court looked to the level of intrusion of Dow’s facility that resulted from EPA’s aerial photography and concluded that the open areas of Dow’s industrial plant were more similar to an open field and not protected by the Fourth Amendment (Dow Chemical Company, 1986, p. 239). In conclusion, the Court held that EPA’s aerial photography was not a search subject to the warrant requirement (Dow Chemical Company, 1986, p. 239).
Comparing and Contrasting the Two Cases
There were a number of similarities between the Marshall and the Dow cases. In both cases, a federal agency sought to enter the business premises without a warrant. The legal issues of the Marshall and Dow cased each raised the question of whether a warrantless search by the regulatory agency violated the Fourth Amendment. Another common thread between both cases was that the agency inspector showed up at the business premises and was refused entry by the owners. Factually speaking, there was no consent by Mr. Barlow or Dow to voluntarily allow the inspectors to enter and search the premises at issue.
There were also many features that distinguished the two cases. First was the nature of the search in question. In Marshall, the inspector sought to conduct a physical on-site search of the workplace areas inside the building. In Dow, on the other hand, the EPA took aerial photographs of the outside structures of Dow’s facility. The EPA, therefore, did not physically enter Dow’s business premises. Another difference was the size and nature of the In legal terms, the searches conducted were both different in kind, scope, and nature. The cases were also factually dissimilar in that Mr. Barlow’s business was a relatively small owner-operated plumbing and electricity installation business, whereas DOW was an enormous chemical manufacturing plant.
Analysis
While one might have expected the Supreme Court to rule the same way for both the Marshall and the Dow cases, there are important key differences to recognize. The first and most obvious difference was the privacy interest at stake. In Marshall, the OSHA inspector was refused entry into Mr. Barlow’s workplace areas. When Mr. Barlow asked for a warrant, the OSHA inspector did not produce one. This was significant because a bedrock principle of the Fourth Amendment is that it protects homes and businesses from warrantless searches by government actors. Were a government agent permitted to conduct a warrantless search of a business pursuant to an Act, there would be no way to contain the scope and extent of the search and would render the protections afforded by the Fourth Amendment meaningless.
The Marshall case concerned a classic Fourth Amendment search, a warrantless search of an owner’s workplace areas inside the building. The search at issue in Dow was, in contrast, markedly different. The search here involved aerial photography taken of the outside of Dow’s facility. It did not concern the inside of the facility. Simply put, the EPA was simply taking photographs of Dow’s property, property that was visible to anyone who flew in the airspace above it. Dow was obviously aware of the potential for aircraft activity, since it monitored all low-flight aircrafts, yet it did not make any efforts to secure of conceal the equipment outside. Instead, this equipment was in plain view.
The legal precedent established by these cases creates somewhat of disjuncture with regards to what constitutes a search for Fourth Amendment warrant purposes. While a physical search of the inside of a building is a search that requires a warrant, aerial photography over property is not a search and does not require a warrant. Arguably, aerial photography is much more invasive of a business owner’s privacy than a traditional in-person walk-through search. Aerial photographs could be taken at any time without the owner’s knowledge, whereas a physical search of a building at a minimum, gives notice to the owner that a search is being conducted. As technology continues to advance and develop, it is likely that the Supreme Court will be faced with addressing many more Fourth Amendment search questions.
References
Administrative Procedure Act of 1946, Pub.L. 79-404, 60 Stat. 237 (1946).
Chevron U.S.A., v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Dow Chemical Company, 476 U.S. 227 (1986).
Marshall v. Barlow’s Inc., 436 U.S. 307 (1978).
