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Philip Hamburger on Magistrate Judges Issuing Search Warrants
Michael Ramsey

At The Federalist, Philip Hamburger (Columbia): Can Magistrate Judges Constitutionally Issue Search Warrants Against Trump (Or Anyone Else)?  From the introduction: 

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. 

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.”

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.

Congress, moreover, can reduce his salary. He therefore is not a judge of the court, but merely one of its servants. Like a law clerk or other assistant, he can help a judge understand the issues underlying the decision to issue a search warrant. But he should not issue it.

And from later on:

At stake is whose judgment matters. The whole point of having judges nominated by the president and confirmed by the Senate is to ensure that the judgment required for the exercise of judicial power will be the judgment of individuals learned in the law—ones carefully chosen to exercise mere judgment, not will.

Such individuals, moreover, are protected in salary and tenure. They need never worry that they will be removed for cause or not reappointed. So the judgment of a real judge makes a real difference. Any binding judicial act that is not merely ministerial must be an exercise of judgment by an actual judge of the courts, not anyone else.


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.

Indeed, search warrants from magistrate judges violate not only the vesting of judicial power in the courts but also the Fourth Amendment. In guaranteeing that search warrants must rest on probable cause, that amendment assumes that probable cause will be found by a judge. 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.

And on the development of the practice:

One might have thought judges would be cautious about predetermining the lawfulness of any question—especially a threat to civil liberties, especially in criminal law, and especially when they have an institutional interest in the outcome. Nonetheless, they have blithely assumed the constitutionality of search warrants issued by magistrate judges.

For example, after Congress authorized the Supreme Court to promulgate the Rules of Criminal Procedure for the District Courts of the United States, the Supreme Court, in 1944, in Rule 41(a), provided that a search warrant may be issued “by a United States commissioner within the district wherein the property sought is located.” What were commissioners are now called “magistrate judges.”

Even today, Congress itself does not generally authorize magistrate judges to issue search warrants, but merely authorizes district courts to assign “additional duties” to these subordinates. It thus leaves each district court to decide whether its magistrate judges can issue search warrants, and district court judges generally take this opportunity.

Why have judges been so willing to assume and even predetermine the lawfulness of search warrants from magistrate judges? One answer is their workload. As the Supreme Court puts it, without magistrate judges, “the work of the federal court system would grind nearly to a halt.” There is some truth to this, but not because of search warrants. They are only part of the burden alleviated by magistrate judges, and it would not crash the system to leave such warrants to real judges.

The workload of district courts is, at least in part, a judicially created problem. Through their own doctrines, judges have sometimes unnecessarily crowded their schedules. To this extent, it befits them to suggest that the judicial workload requires them to subject Americans to search warrants issued by magistrate judges.

For decades, the judges—the real judges—have shut their eyes to the dangers of handing off parts of the judicial power of the United States to subordinates. ...