Case Study: Marshall v. Barlow’s, Inc., 436 U.S. 307

Introduction

Public law and public administration involve the operations of public agencies or institutions and the law governing these activities. The Constitution and statutes provide guidance for administrative procedures and the field of public administration as a whole. Understanding the evolution of the Administrative Procedures Act (APA), for example, shows the way in which this law has changed and areas that need improvements (Mercatus Center, 2015). The relationship between the Supreme Court and public law and administration has existed for years. Most administrative agencies have Acts and other statutory laws that govern their operations. In some cases, these laws violate the Constitution. The courts usually step in to give guidelines in such situations (Beckett & Koenig, 2015; Cooper, 2007). The goal of this intervention is to ensure that people remain protected by the law.

The Supreme Court has made decisions on different issues that have shaped both public administration and public law (Beckett & Koenig, 2015). In some cases, these decisions have simply reminded public agencies and institutions of their obligation to the Constitution. One such case is Marshall v. Barlow’s, Inc., 436 U.S. 307. The case was decided in 1978 and upheld the power of the Fourth Amendment over inspections by agencies. The court’s opinion on Marshall v. Barlow’s, Inc. also provided guidelines and answers to the concerns of people or agencies that support warrantless inspections. This paper agrees with the decision of the Supreme Court showing the decision provided the right guidelines for the application of the Fourth Amendment in administrative inspections. The different sections provide the background and summary of the case, key issues relating to the case, arguments in support of the court’s decision, answers to raised concerns, the relevance of the decision today, and a conclusion.

The Case Background and Summary

An inspector of the Occupational Safety and Health Administration (OSHA) wanted to inspect Ferrol G. Barlow’s business. Barlow refused entry into and inspection of his business without a search warrant. OSHA regulations allowed the Secretary of Labor to intervene and seek a court order that would force Barlow to agree to the inspection. As per Section 8(a) of the Occupational Safety and Health Act of 1970, the Secretary of Labor applied for an order from the Idaho District Court which was granted. However, Barlow refused to obey the order and filed a case against the warrantless search. The ruling by the district court was in favor of Barlow explaining that the Fourth Amendment protected businesses from warrantless searches and inspections.

The decision of the district court was based on Camara v. Municipal Court and See v. Seattle which established that “statutory authorization of warrantless inspections was unconstitutional” (Marshall v. Barlow’s, Inc., 1978). In response, the Secretary of Labor took the case to the United States Supreme Court for appeal. In the Supreme Court, the case was argued on January 9th, 1978 and decided on May 23rd, 1978. The court ruled (5-3) that the warrantless inspection by OSHA violated the protections provided by the Fourth Amendment of the U.S Constitution. This decision also meant that Section 8(a) of the Occupational Safety and Health Act of 1970 violated the Constitution. The majority opinion was shared by Chief Justice Warren Burger and Justices Thurgood Marshall, Byron White, Lewis Powell, and Potter Stewart.

The opinion of the majority was based primarily on the Fourth Amendment and its application in both private homes and commercial businesses. The court also went on to explain that there are dangers of warrantless searches that the people and businesses must be protected from by the law. The majority opinion also referred to different cases including Camara v. Municipal Court and See v. Seattle. Justices Harry Blackmun, William Rehnquist, and John Paul Stevens shared the dissenting opinion. The dissenting opinion argued that the two clauses of the Fourth Amendment do not apply in some cases like a routine inspection. Justice William Brennan was not a part of the process or the hearing.

Key Issues

One must be aware of key issues the provisions of the Fourth Amendment and the purpose of OSHA to understand this case. This section describes the purpose of OSHA, Section 8(a) of the Occupational Safety and Health Act of 1970, and the Fourth Amendment. The relationship between the key issues explains the reasoning of the Justices in this case.

Purpose of OSHA

In 1971, Congress created OSHA after passing the Occupational Safety and Health Act of 1970. The primary function of the Occupational Safety and Health Act was to make sure that all working conditions were healthy and safe for employees (United States Department of Labor, 2018). The functions of the OSHA were created around ensuring that the Occupational Safety and Health Act fulfilled its purpose. One of the primary functions of OSHA is assuring that all workplaces are safe and healthy for workers (United States Department of Labor, 2018). The jurisdiction of the OSHA regarding this role applies to all workplaces from government institutions to private businesses.

The OSHA also has the function of consulting with and advising employers, representative organizations, and employees on effective ways of preventing illnesses and injuries (United States Department of Labor, 2018). The goal is to provide stakeholders with the tools and knowledge that will ensure safety at all times. Finally, the OSHA conducts inspections and investigations of workplaces to make sure that employers are meeting the standards (United States Department of Labor, 2018). It is this last function that the OSHA is known for the most. Regular inspections are necessary to ensure workplaces maintain safety and health standards.

Section 8(a) of the Occupational Safety and Health Act of 1970

As mentioned above, the Occupational Safety and Health Act was created to ensure the safety of all workers at their workplaces. The Act outlines different functions and regulations that will apply in all industries. Section 8 (a) of the Act is the most relevant to this case. The Occupational Safety and Health Act states that,

(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized — (1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer (OSH Act of 1970, 2017) (sec.8a)

The first part of Section 8 (a) allows the Secretary of Labor in the specific jurisdiction to oblige Barlow and other businesses to undergo a warrantless search.

The Fourteenth Amendment

All public and private institutions are subject to the Constitution as it is the highest law in the country. The Fourth Amendment of the United States Constitution states that

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 (U.S Const. amend IV).

There are two important clauses in this statement. First, the amendment offers protection from unreasonable searches. Second, the amendment states that warrants should only be issued where there is probable cause and should be followed by affirmation. This means that there has to be a good enough reason as to why authorities would want to search someone’s property. The purpose is to protect people’s privacy and prevent authorities from misusing their privilege of access.

In Support of the Court’s Decision

Justice Byron White read the majority opinion. He begins by providing a background of the case before presenting the challenge that the Secretary of Labor presented against the decision of the lower court. The Secretary of Labor argued that the decision by OSHA is backed by Section 8 (a) of the Occupational Safety and Health Act which requires no warrant before inspections. The Supreme Court disagreed with this rule stating that the clauses of the Fourth Amendment apply to both houses and commercial buildings (Marshall v. Barlow’s, Inc., 1978). This statement justifies Mr. Barlow’s demand for a warrant before letting the OSHA inspector into the business. The application of the Fourth Amendment ensures that business owners could contest unnecessary searches. Additionally, the Constitution, in establishing the Fourth Amendment, sought to protect all citizens. Therefore, any law that undermines the Fourth Amendment undermines the Constitution of the country.

One of the most important elements of the Fourth Amendment is the expected privacy that the individual has. In previous cases, the court had equated the business owner to a person in their private home (Marshall v. Barlow’s, Inc., 1978). Both people expect privacy that can only be invaded legally or when they allow it. This expectation of privacy protected Barlow’s business from unreasonable inspections. The concept of consent comes with the expectation of privacy (Nasim, 2015). One can argue that the OSHA is aware of this expectation of privacy which is why there is a procedure in place to handle situations where their inspectors are denied entry into businesses. Justice White also touched on the procedures stating that the Secretary of Labor It is only reasonable that the OSHA inspectors obtain a warrant when the business owner does not give consent.

When making a case against warrantless inspections in business and personal premises, Nasim (2015) brings up the issue of the intrusiveness of the inspection. It is important that people know just how far the search or inspection will go. A warrant can be detailed enough to include the scope of the inspection or the major areas of focus (Nasim, 2015). This way, the individual knows when the inspector goes beyond the limits of the warrant. Adding to the matter of expected privacy, Nasim (2015), explains the decisions of courts to require an equivalent of a warrant before inspection. The most appropriate factor to replace a warrant in most cases is consent. If Barlow (knowing the possible outcome of an inspection) had accepted for the inspection to occur without a warrant, the whole process would have been legal. There are also other factors that could be equated to a warrant like the expectation of inspection because it occurs regularly.

On the other hand, some of the factors that can be equated to a warrant limit the control of the business owner or individual in question. For example, the business owner can give consent thinking that the inspector will not access their client information. If the inspector accesses this information, then the business owner feels like their privacy was invaded unwillingly. The advantage of a warrant comes in at this point. Jennifer Busick (2015) explains that one of the benefits of a warrant is that it is limited to the reason provided by the person or institution applying for one. Therefore, the question of unexpected intrusion is eliminated. In some cases, authorities will ignore the scope of the warrant and conduct unnecessary searches. A warrant provides the business owner with the knowledge of the intention of the inspection. This knowledge can be used to stop an inspector when they go beyond what is in the warrant.

Moreover, random inspections are unreasonable in areas where the clients expect high levels of privacy. Jorns (2005) presents an example of a business or institution where warrantless searches can have a negative impact. In the article, she explains how warrantless inspections in abortion clinic jeopardizes the privacy of patients. The article also highlights the possibility of anti-abortionists pushing an agenda aimed at closing these clinics through these inspections (Jorns, 2005). This scheme could work where inspections purposefully target the failures of the clinic and use these against them. Although Jorns’ article focuses on abortion clinics, it presents the possible dangers of warrantless searches. Perhaps these are some of the dangers that Justice White states exist in his opinion. The truth is that warrants regulate the inspection scope ensuring that it focuses only on relevant matters.

Addressing Concerns

The primary concern raised after this ruling is that the standards will affect other agencies like the FDA and the EPA that need to conduct warrantless searches sometimes. In most cases, the difficulty in showing probable cause would limit the work of these agencies. First, the court addressed this concern using the decision in Camara v. Municipal Court. In that besides using evidence of a violation of standards to attain a warrant, the agency can use “reasonable legislative or administrative standards for conducting an inspection” (Marshall v. Barlow’s, Inc., 1978). This statement means that any agency that carries out inspections can get a warrant based on the reasons they select a specific business. For example, if Barlow’s Inc. was part of a routine inspection, the OSHA should have applied for a warrant on the basis of reasonable administrative standards. Therefore, any agency can be able to carry out regular inspections without evidence of standard violations.

Second, there are situations where warrantless searches are valid. Justice White points out that United States v. Biswell and Colonnade Catering Corp. v. United States explain one such scenario which is industries that the government monitors closely (Marshall v. Barlow’s, Inc., 1978). In such cases, the business owners expect limited privacy because they know about the regulations as before they enter the industry. Some of the examples of these industries include firearm and liquor industries. These two industries have a long history of government inspection and regulation due to the nature of products and services. Another exception is where inspection can be done in a public place. For example, the EPA can test emissions by testing the air around a home or business without getting into the home. These tests can then be used as evidence for violation of established standards.

Another concern raised in the case was that the process of getting a warrant would hinder an ongoing investigation. This assumption is not entirely true. The second part of Section 8 (a) of the Occupational Safety and Health Act encourages interviewing employees and other relevant parties (OSH Act of 1970, 2017). The agency could easily contact employees and interview them as part of their search for probable cause or to get information about the company. As Justice White explains, Barlow has control over his premises but cannot limit what the employees do or say outside of work. Relevant agencies can work with employees and other people with access to necessary information. Moreover, if the agency is certain of or believes that the business violates the standards established by the regulations, they can easily get a warrant before the inspection. The purpose of the warrant is not to hinder inspection but to make the process fair for all parties involved.

The Decision of the Court Today

The decision made in Marshall v. Barlow’s, Inc and previous cases that upheld the importance of the Fourth Amendment in administrative inspections had a significant impact on the process. For one, most people, especially business owners became aware of their ability to ask for a warrant before inspection. The Supreme Court decisions also provided meaningful guidelines regarding warrantless inspections. However, the strict standards relating to the Fourth Amendment were not held for a long time. Donovan v. Dewey and New York v. Burger provided a more lenient approach than Marshall v. Barlow’s, Inc (Nasim, 2015). The two cases happened a few years after Marshall v. Barlow’s Inc. and their opinions were much more detailed.

Donovan v. Dewey and New York v. Burger added the intention of the government, prior knowledge of regular inspections, and a substitute for a warrant in regulations. The question of expectation of inspections applies mostly to industries where administrative inspection are a regular thing. One of the best examples of such industries is the mining sector or construction. Safety concerns are high in both of these industries. The idea that warrantless inspections are allowed in closely monitored industries also remained. Regardless of these changes, Marshall v. Barlow’s Inc. remains one of the cases that highlighted the importance of considering the Fourth Amendment in administrative inspections.

Conclusion

Marshall v. Barlow’s, Inc is an important case in public law and public administration as it highlighted the importance of the Fourteenth Amendment. The opinion of the court highlighted important concerns like the dangers of warrantless searches, especially on the privacy rights of people and businesses. When one looks at the issue based on this case alone, it may not be significant because it is just an inspection. However, making warrantless inspections a norm can decrease the value of the Fourth Amendment. The expected privacy that most people have is a part of their freedom and should be upheld unless there is a valid reason not to. Besides, the Constitution should be the ultimate source of the law in all cases. Therefore, any law that overlooks the provisions of the Constitution without reason is a dangerous one.

The Supreme Court also addressed relevant concerns like the hindrance of the activities by other agencies where the impact could be crucial. Justice White addressed these concerns maintaining that the purpose of the warrant is to improve rather than harm the administrative inspections. The Court also highlights other avenues like questioning employees as means of getting crucial information. Additionally, there are exceptions where warrantless searches are acceptable. Regarding the relevance of this decision, other cases provided a more lenient approach to the issue. Nonetheless, they paid attention to the Fourth Amendment. Ultimately, the exceptions and options combined with the significant guidance of the cases that followed Marshall v. Barlow’s, Inc. are sufficient to guide administrative inspections.

References

Beckett, J., & Koenig, H. O. (2015). Public Administration and Law. London: Routledge.

Cooper, P. J. (2007). Public Law and Public Administration. Belmont, CA: Thomson/Wadsworth.

Jorns, A. W. (2005). Challenging Warrantless Inspections of Abortion Providers: A New Constitutional Strategy. Columbia Law Review, 105(5), 1563-1596.

Marshall v. Barlow’s, Inc., 436 U.S. 307; 98 S (The Supreme Court of the United States May 23, 1978).

Mercatus Center. (2015, Feb 10). Sixty Years Since the Administrative Procedure Act Necessary Improvements. Retrieved from YouTube: https://www.youtube.com/watch?v=N3LTZ-A3G1c

Nasim, R. (2015). Administrative Inspections: The Loophole in the Fourth Amendment. Touro Law Review, 31(4), 828-850. Retrieved from https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?referer=https://www.renelgilles.com/&httpsredir=1&article=2675&context=lawreview

OSH Act of 1970. (2017). Retrieved from Occupational Safety and Health Administration: https://www.osha.gov/laws-regs/oshact/completeoshact

United States Department of Labor. (2018). Worker Protection: OSHA’s Role During Response to Catastrophic Incidents Guide. Retrieved from Occupational Safety and Health Administration: https://www.osha.gov/SLTC/emergencypreparedness/guides/osha_role.html