Law Enforcement’s Lochner

By Miriam H. Baer. Full Text. 

Long-established rules of constitutional criminal procedure empower the government to cheaply and efficiently demand information from businesses and corporations, even when those entities are themselves criminal and regulatory targets. These rules have become extremely valuable to government investigators, notwithstanding their contestable premises and wide-ranging effects on the people who populate and do business with them.

This ease-of-access era, however, may be nearing its end. A convergence of changes in how the Supreme Court views Fourth Amendment searches on the one hand, and how it conceptualizes corporate personhood on the other, is apt to trigger an erosion of government enforcement power. At the very moment the Court seems poised to recognize stronger protections of personal privacy, it seems equally willing to enlarge the concept of corporate personhood. One need not be clairvoyant to see the ways in which constitutional privacy and corporate personhood’s convergence spells trouble for regulators and prosecutors.

How might the federal enforcement bureaucracy respond to this equilibrium shift? Faced with the loss of investigative power, government agencies would embrace a mix of imperfect and costly strategies, thereby leaving the public worse off. Enforcement would still exist, but it would be even less effective than it already is. The upshot of this analysis is therefore a warning. If corporations can weaponize speech and religion and thereby create the First Amendment version of the Court’s 1905 Lochner decision, they can just as effectively weaponize other constitutional rights. Those worried about heading off the “next Lochner” should therefore turn their attention to corporate constitutional procedure, because law enforcement’s Lochner may prove just as potent and problematic as its antecedent.