Fifth Circuit Cell-Site Case: The Second Article III Problem With Magistrate Decisions at the Application Stage

I wanted to add another post to my series on the Fifth Circuit’s upcoming cell-site case, which raises the issue of whether magistrate judges have the power to decide prospectively how the Fourth Amendment might apply to executing a court order at the time the government applies for the order — and to deny the application if the judge believes that the court order will be implemented in a unconstitutional way.

Some commenters to earlier posts responded that magistrate judges must have this power because they are tasked with protecting the Constitution, and they need to have this power to meaningfully protect constitutional rights. The major problem with this argument is that there is more to the Constitution than the Fourth Amendment: The limitations of the judicial power in Article III are just as much a part of the Constitution as the Fourth Amendment is. It can’t be that courts should violate or ignore one part of the Constitution to make another part “meaningful.” Courts therefore need to comply fully with the limits of Article III when ruling on what the Fourth Amendment does or doesn’t mean.

In my previous posts, I have discussed the first reason Article III prohibits magistrate judges to treat applications for statutory court orders as opportunities to opine on how the Fourth Amendment might apply to the execution of the order, and to rule accordingly: In my view, the claim is not ripe. There are no facts yet and no adversary proceedings, and therefore no ripe dispute. But in this post I wanted to explore a second problem with magistrate judges asserting this power: It is not at all clear that Article III permits magistrate judges to exercise the power even if the dispute is ripe.

Here’s the problem. Article III vests the federal judicial power in Article III judges. Article III judges must be nominated by the President and confirmed by the Senate. Once confirmed, Article III judges enjoy life tenure and cannot have their salaries lowered. On the other hand, federal magistrate judges are not Article III judges. They are not nominated by the President or confirmed by the Senate. They don’t get life tenure or have a right to the maintenance of their salaries. Instead, they are picked by local federal judges and serve a statutory term. Because federal magistrate judges are not Article III judges, they have no independent Article III power to decide disputes. We saw the importance of this limitation just last year in Stern v. Marshall: The Supreme Court ruled that federal bankruptcy judges had no power to enter final judgment on a common law tort claim even though Congress tried to give them that power. Despite Congress’s effort, the Constitution did not allow non-Article III judges to rule on such questions. Here’s a taste of the Court’s concern:

Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges. The colonists had been subjected to judicial abuses at the hand of the Crown, and the Framers knew the main reasons why: because the King of Great Britain “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” The Declaration of Independence ¶ 11. The Framers undertook in Article III to protect citizens subject to the judicial power of the new Federal Government from a repeat of those abuses. By appointing judges to serve without term limits, and restricting the ability of the other branches to remove judges or diminish their salaries, the Framers sought to ensure that each judicial decision would be rendered, not with an eye toward currying favor with Congress or the Executive, but rather with the “[c]lear heads … and honest hearts” deemed “essential to good judges.” 1 Works of James Wilson 363 (J. Andrews ed. 1896).

Article III could neither serve its purpose in the system of checks and balances nor preserve the integrity of judicial decisionmaking if the other branches of the Federal Government could confer the Government’s “judicial Power” on entities outside Article III. That is why we have long recognized that, in general, Congress may not “withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty.” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 18 How. 272, 284, 15 L.Ed. 372 (1856). When a suit is made of “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789,” Northern Pipeline, 458 U.S., at 90, 102 S.Ct. 2858 (Rehnquist, J., concurring in judgment), and is brought within the bounds of federal jurisdiction, the responsibility for deciding that suit rests with Article III judges in Article III courts. The Constitution assigns that job—resolution of “the mundane as well as the glamorous, matters of common law and statute as well as constitutional law, issues of fact as well as issues of law”—to the Judiciary. Id., at 86–87, n. 39, 102 S.Ct. 2858 (plurality opinion).

As a matter of statutory interpretation, I think it’s clear that Congress never intended to delegate the power to magistrate judges to render Fourth Amendment rulings when faced with statutory court order applications. But even if you (mis)read the statute as trying to confer that power on magistrate judges, you have to reach the constitutional question: Does Article III allow Congress to give magistrate judges that power? It’s a complicated question, but I think there are major reasons to think the answer is no. The key problem, it seems to me, is that the process is not “under the district court’s total control and jurisdiction.” Peretz v. United States, 501 U.S. 923 (1991). Cases that have allowed magistrate judges to play a role in the criminal justice system have approved those roles on the theory that the magistrate judges are acting as adjuncts to the Article III trial judges. Decisionmaking by magistrate judges does not threaten Article III power because Article III trial judges remain in “total control” of the magistrates’ work.

But that is not true with the assertions of a magistrate’s power to prospectively decide Fourth Amendment questions when the government applies for an ex parte court order. The problem is that magistrate decisions are unreviewable by any Article III court if the magistrate judge grants the application. Imagine the magistrate judge receives an application and issues an opinion without any briefing. The opinion announces the relevant facts, and applies a new legal theory by which the Fourth Amendment is not violated by the conduct that the magistrate judge predicts will occur. The magistrate judge then submits the opinion to West to be published in the Federal Supplement. No one can overturn that ruling because no one can appeal it. The only party is the United States, and it received the order it applied for. The magistrate judge’s ruling — handed down with no briefing. no hearing, and no adversary process — is effectively final.

To be sure, Article III judges can get involved if the magistrate judge turns down the application. Even then, though, the involvement of later Article III judges is questionable. As I explained in my amicus brief, I don’t think the Court of Appeals has statutory subject matter jurisdiction over the appeal in the usual case: The Court has to exercise mandamus jurisdiction, and mandamus jurisdiction is limited to unusual instances. And even if there is statutory subject matter jurisdiction, the fact that no one can appeal if the government wins — at any stage — means that the Court of Appeals could issue a decision that is binding law in the circuit and yet unreviewable by the Supreme Court. Take the case of the Fifth Circuit cell-cite appeal. If the Fifth Circuit reaches the merits and rules that the Fourth Amendment imposes no limits on government access to cell-site data, that decision will be binding on federal courts in the Fifth Circuit and yet also unreviewable by the Supreme Court.

I haven’t delved enough into the caselaw to have a firm conclusion on whether such procedures interfere sufficiently with Article III prerogatives to violate Article III. But it seems like a serious question, at least, and that requires courts to construe any ambiguous statutory language to avoid the constitutional question. See United States v. Johnston, 258 F.3d 361, 363 (5th Cir. 2001) (“[W]e should avoid interpreting any legislation governing magistrate judges in such a fashion as to engender constitutional issues if a reasonable alternative posing no such issues is evident.”) All the more reason to read 18 U.S.C. 2703(d) as requiring magistrate judges to issue applications when the statutory threshold is met, which is what Congress intended anyway.

UPDATE: The comment thread pushes me to answer an important question: How can Congress give magistrates the power to review 18 U.S.C. 2703(d) applications for compliance with the statutory threshold if it might lack the power to let magistrates reach constitutional rulings? The reason is that reviewing an ex parte application for compliance with a statutory threshold is not an exercise of Article III judicial power. To see why, consider the law of search warrants. Under Shadwick v. City of Tampa, 407 U.S. 345 (1972), the power to issue warrants is not reserved to judges. Any neutral official can issue Fourth Amendment warrants. For example, Shadwick concluded that a mere court clerk could issue warrants, and it left open the possibility than an official with no connection to the judiciary at all could so as well. If non-judges can issue warrants under the Fourth Amendment, it seems to follow that the act of reviewing ex parte applications — whether they are for warrants, 2703(d) orders, or other orders — is not an exercise of the judicial power for Article III purposes. Congress is thus free to give magistrate judges the power to review ex parte court orders: It can give magistrates the power to review ex parte applications for compliance with a legal standard and either sign or not sign the order. Congress can also give this power to state court judges, too, which it did by statute in the case of 2703(d) orders. But that’s pretty different from the power claimed here, which is the power to issue a judicial decision entering a ruling on how the Constitution applies to a particular set of facts. That claim is a claim to exercise the Article III power to say what the law is and announce the rules that the executive branch must follow. That power has to be reserved to Article III judges.