One Step Forward, Two Steps Back

OSHA and search warrants


Unlike the system in this country, British courts have no power to overrule laws passed by Parliament. Any statute enacted by that body is absolutely binding on the judiciary. An oft-quoted aphorism is that "Parliament can do anything except make a man a woman, or a woman a man." Many, if not most, countries in the world that have constitutions, likewise do not limit the power of their legislatures.

The special powers our Constitution grants courts is intended in large part to protect the liberties of the people from being violated by the executive and legislative branches of government. This is a fundamental mission of the US Supreme Court. Clearly, the framers of our Constitution were not very trusting of lawmakers. A recent case involving the Occupational Safety and Health Administration (OSHA) makes one wonder how conscious the justices sometimes are of their constitutional responsibilities. I will explain what I mean by first summarizing this case.

Bill Barlow is the president and general manager of Barlow's, Inc., an electrical and plumbing installation business in Pocatello, Idaho. In September 1975 an OSHA inspector entered the customer area and, after showing his credentials, informed Barlow that he wished to conduct a search of the working areas of the business. Barlow inquired whether any complaint had been received about his company. "No," replied the inspector, but Barlow's had simply turned up in the agency's selection process.

Barlow asked the inspector if he had a search warrant, and upon learning that he did not, refused admission to the employee area. Barlow insisted he was relying on his rights as guaranteed by the US Constitution's Fourth Amendment, which provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

By a vote of 6-3, the Supreme Court last May upheld Barlow to the extent of agreeing that the Fourth Amendment requires a search warrant. But the Court set forth rules that would allow such a warrant to be obtained even though there was no probable cause that the owner was violating OSHA. The government could acquire a warrant from a court merely by showing that a business had been chosen for search on the basis of a general and nondiscriminatory administrative plan for the enforcement of the law.

Unlike the traditional warrant requirements for searching homes and businesses, an OSHA warrant will not protect employers against search when the government has no reason to suspect a crime is being committed. The decision,however, may prevent harassment inspections directed at particular employers. The government will also have to draft inspection programs in forms presentable to courts, and this should temper somewhat the zeal of the enforcers.

Justice Byron White wrote the majority opinion, and much of it reads like an apology to the secretary of labor for the relatively slight inconveniences the ruling will cause his department. The dissenters' views were presented by Justice John Paul Stevens, and he was even more considerate of OSHA. The dissent favored the government's position to continue with warrantless searches. Stevens asserted the requirements established by the majority provided so little protection for employers that they are not worth the additional cost to the government.

The opinions do mention the history of the Fourth Amendment, which apparently was adopted to prevent the kind of indiscriminate searches the British conducted in colonial days. But each opinion is painfully devoid of any effort to present and analyze the perspectives and interests of businessmen who have done no wrong, yet have to submit their property to search by the government. In a society committed to private property and individual privacy, every person who obeys the laws is entitled to view his home or business as his castle, impenetrable to the police.

Justices who are more concerned about the power of government than the freedom of the individual have relinquished their mission under the Constitution. Justices are not government agents, promoting interests of the executive and legislative branches. Thousands of people and millions of dollars are already devoted to this cause.

The Supreme Court is the branch to which those who are adversely affected by legislation must look for relief. The justices should be vitally concerned about the time, money, and discomfort OSHA inspections will cause Barlow's and other employers. They should direct their energies and talents to protecting individuals against the loss of freedom caused by OSHA.

This is why we have a Supreme Court and grant it enormous power over lawmakers and law enforcers.

Bernard Siegan is Distinguished Professor of Law at the University of San Diego and the author of several books on land use and zoning. Copyright 1978 by Bernard Siegan.

More Than Symbolic? Idaho's Rep. George Hansen, chairman of the American Conservative Union's "Stop OSHA" campaign, contends that the Supreme Court's OSHA decision was not merely a symbolic victory for opponents of government regulation. While the Court rejected the idea that Inspection agencies need to show probable cause in the criminal sense in order to obtain a search warrant, it maintained the need for showing reasonable cause. According to Hansen's commentary in Citizens for the Republic Newsletter, this means that "the government—contrary to most published interpretations—will need to show some particularity for an inspection of a private business."

This favorable interpretation Is subscribed to by John Runft, lawyer for the Idaho businessman who refused entry to OSHA inspectors and brought the Supreme Court suit. That OSHA must show facts about the particular establishment, and not just about an industry, is also the basis of a warrant challenge now before a federal appeals court in Massachusetts. If OSHA loses this case, perhaps more employers will seek or challenge search warrants. According to a Wall Street Journal report, In the first six weeks after the Court's May 23 ruling, warrants were demanded by only 1.5 percent of the employers (291 out of the 18,925) approached by inspectors from OSHA or OSHA-approved state programs. —Marty Zupan