Wednesday, April 15, 2009

Subpoena Envy

Administrative subpoenas offer great opportunities for abuse by the Government. A pencil pusher in a regulatory agency has the freedom to fire off requests for documents, sometimes thousands of documents, without bearing any cost at all. And without any judicial oversight.

It works like this: A wild hair sprounts in the office of some civil servant. They want more information about something. So they fire off a subpoena. The target must consult counsel, who will then inform the hapless target that the choices are compliance or an expensive court battle to try to quash or limit the subpoena.

So the target produces documents; his lawyer reviews them, culling through the dettritus to separate those documents subject to some privilege from those which are not, all while an hourly clock happily ticks on the eternal billing machine. Meanwhile, the bureaucrat cum lawyer requesting all this sits back, feet on the desk, smoking another cigar courtesy of the people. The government's costs, you see, are eternally fixed, and we pay them whether we like it or not.

The documents are supplied, the government looks at them and then concludes it was fishing in a dry hole: There's no there there and so the bureaucrat moves on to some other fool's errand.

Query: Why doesn't the law to recover the government to bear the costs of compliance with its requests when those requests are found to be foolish or without merit? It will not do to say that such a fee-shifting requirement is inconsistent with the so-called American rule. That common law principle is designed to assure that ordinary people have the right to press their claims in a court of law; we try to lower the barriers to the pursuit of whatever justice the courts can dispense.

But I though the whole point of a constitution was to limit assertions of government power. Letting the feds hide behind the American rule while they deal out little more than tripe with administrative subpoenas is simply wrong. It encourages government to prey on the very people it serves.