Briefly Noted: What's Up With Non-Judges Issuing Search Warrants?

As I said in the immediate aftermath of the FBI’s Mar-a-Lago raid, this outrage raises all sorts of legal and constitutional issues. Sooner rather than later, real experts would weigh in. That process has begun, and today the redoubtable Philip Hamburger—expert in Administrative Law and the regime that sponsors its abuses—has weighed in on the constitutionally dubious phenomenon of non-judges in our federal system—”magistrates”, or “commissioners” as they were formerly known—issuing warrants.

Here’s the problem. The US Constitution specifies:

Article III

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Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Hamburger starts from that point and exposes the abuses of the current system, which have actually been approved by the SCOTUS. But the SCOTUS doesn’t get to infringe on Congressional prerogatives. Hamburger provides a very thorough discussion of the issues this system raises. It’s lengthy but readily accessible to the general reader.

Here’s the nub of the problem, as sketched out in the introductory paragraphs: “Magistrates” or “Magistrate Judges” as they are now called aren’t judges of the United States. So what are they doing acting like judges?

The Mar-a-Lago search warrant is interesting not only because of the high office of the individual whose papers were seized but also because of the low office of the person who signed it. The warrant illustrates the long-standing constitutional anomaly of letting magistrate judges sign search warrants.

Leave aside how you feel about the former president. Leave aside what you think of January 6, 2021. Leave aside whether there was a good reason to issue the warrant. A more basic question is whether the Hon. Bruce Reinhart could constitutionally issue it. 

Under the Constitution, a Search Warrant Must Be Signed by a Judge

The problem is that Reinhart is a so-called magistrate judge. Many commentators have focused on his personal history and political leanings, but much more significant is that he is not really a judge. 

To be precise, he is not a judge of a court of the United States. The judicial power of the United States is vested in its courts. In the exercise of this power, judges of those courts can issue search warrants. But a magistrate judge is just an assistant to a court and its judges. Not being a judge of one of the courts of the United States, he cannot constitutionally exercise the judicial power of the United States. That means he cannot issue a search warrant.

The full shift of the judicial power of the United States in criminal cases to magistrate judges has been relatively recent. Only since 1968 has Congress generally authorized persons other than real judges to exercise the judicial power of the United States in trying misdemeanors (although a defendant can still insist on being tried by a real judge when charged with more than a petty offense). In addition, district courts can assign the non-judges “such additional duties as are not inconsistent with the Constitution and laws of the United States.” Only since 1990 have the non-judges been called “magistrate judges.”

At the time the magistrates acquired their strange new dignity, I happened to have been fully employed presenting applications for warrants to these magistrates. I recall that there was a fair amount of humorous comment among the Ass’t US Attorneys about this development.

Hamburger discusses the issues that this raises from multiple perspectives. It’s highly readable and highly recommended, but it comes down to this:

Just how little a magistrate judge can be considered a judge is evident from the way he is appointed. Rather than be nominated by the president and confirmed by the Senate—as provided by the Constitution for real judges—a magistrate judge, including the one who signed the Mar-a-Lago warrant, is appointed merely by a majority of the active judges of a district court. He serves for only eight years, he can be removed for cause, and even if not removed, he always must worry that his district court will not reappoint him.

The Constitution’s vesting of the judicial power in the courts is important for search warrants. It ensures that at least for federal search warrants, the “probable cause” required by the Fourth Amendment will be ascertained by a judge, not anyone else.

... Moreover, the issuance of a search warrant is unreasonable when it comes from a non-judge, because he lacks salary and tenure protection and has not gone through the same rigorous selection process as a real judge. The guarantees of probable cause and reasonableness are much diminished when a non-judge can make the determination.

Wouldn’t it be interesting if Trump challenged the warrant on these grounds? Arguing that the delegation of judicial power to non-judges is an unconstitutional usurpation of the Legislative Branch’s sole authority to both establish inferior courts and to confirm the judges who have been nominated by the president for those courts? Put the SCOTUS on the spot. Let’s hear from the originalists!