[**] J.D., UCLA School of Law, 1996; B.A., University of California, Berkeley, 1993; Law Clerk to the Honorable David V. Kenyon, District Court Judge of the Central District of California, 1996-1997; Sheppard, Mullin, Richter & Hampton, 1997-present. The authors wish to thank University of California School of Law Professors Erwin Chemerinsky and Martin Levine, and Santa Clara Deputy District Attorney John Fioretta, for their valuable insight and contributions to this Article. The authors also wish to acknowledge the diligent and thorough editorial efforts undertaken by the staff of the Florida State University Law Review, especially Ms. Tanya Sharpe and Mr. Byron Starcher. Finally, the authors express special appreciation to family and friends for their continued support. Return to text.

[***] J.D., University of Southern California Law School, 1997; B.A., Loyola Marymount University, 1994. Associate, Toothman and Associates, 1997-present. Return to text.

[1] PEGGY ANDERSON, GREAT QUOTES FROM GREAT LEADERS 131 (Celebrating Excellence Publ'g 1990) (quoting Dwight D. Eisenhower). Return to text.

[2] See Burrus M. Carnahan, Chemical Arms Control, Trade Secrets, and the Constitution: Facing the Unresolved Issues, 25 INT'L LAW. 167, 168 (1991). Carnahan bases this view on the widely publicized use of chemical weapons in the Iran-Iraq war. Carnahan also cites Iraq's threats to use chemical weapons against Israel and Libya's reported construction of a chemical weapons production facility as evidence of the increased risk posed by chemical weapons in the post-Cold War era. See id. at 168.

The technologies and nuclear matter necessary for the creation of a nuclear weapon are closely guarded by the nations who possess successful nuclear programs. However, the information and substances required for the development and production of a chemical weapon are readily available worldwide on the Internet. See Randal Ashley, Nunn and Lugar Tell the Hard Truth About Dangers We Face, ATLANTA J. & CONST., Nov. 5, 1995, at G6. Chemical weapons do not require advanced technology. Instead, chemical weapons can be made in private locations with chemicals that have common non-military purposes. See id.; infra notes 115-19 and accompanying text; see also Stuart Auerbach, 19 Nations Back U.S. Plan for Chemical Arms Curbs, WASH. POST, May 31, 1991, at A1. Return to text.

[3] The list of nations suspected or known to currently possess chemical weapons includes Angola, Bosnia, China, Croatia, Egypt, Ethiopia, France, India, Indonesia, Iran, Iraq, Israel, Japan, Libya, Myanmar, North Korea, Pakistan, Russia, Saudi Arabia, South Africa, South Korea, Syria, Taiwan, Thailand, the United States, and Vietnam. See Treaty Isn't Perfect, But It Does Mean a Safer World, USA TODAY, Feb. 11, 1997, at A10 [hereinafter Treaty Isn't Perfect]. Return to text.

[4] See China Calls For Early Implementation of Weapons Convention, Xinhua News Agency, July 24, 1996, available in LEXIS, News Library, Curnws File. Return to text.

[5] See Treaty Isn't Perfect, supra note 3. Return to text.

[6] Iran signed the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, or the Chemical Weapons Convention (Treaty), in 1993, but failed to ratify it. As Dr. Gordon C. Oehler, Director of the Nonproliferation Center of the Central Intelligence Agency, noted:

[Iran] continues to upgrade and expand its chemical weapons production infrastructure and chemical munitions arsenal. Iran is spending large sums of money on long-term capital improvements to its chemical weapons program as part of this expansion, which tells us that Tehran fully intends to maintain a chemical weapons capability well into the foreseeable future.
Global Proliferation of Weapons of Mass Destriction, Before the Permanent Subcomm. on Investigations of the Senate Comm. on Gov't Affairs, 104th Cong. 217 (1996) (Statement of Dr. Gordon C. Oehler). Oehler further stated that:
Tehran is continuing its drive . . . to acquire increasingly toxic nerve agents and soon should have a production capability for these agents. It also is developing a production capability for precursor chemicals it needs to support chemical agent production, and within several years may become virtually independent of imported raw materials.
Id. Return to text.

[7] Iraq used chemical weapons against Iranian soldiers during the Iran-Iraq War in the 1980s. See Carnahan, supra note 2, at 168. Saddam Hussein also used chemical weapons against Khurdish refugees amassed inside the Iraqi border. See id. U.S. intelligence sources learned that Hussein intended to conduct a chemical weapons attack on United States soldiers during the Gulf War. Captured Iraqi documents and newly declassified U.S. intelligence reports revealed that Hussein actually gave the order for chemical weapons to be used against Allied Forces once these troops crossed into Iraqi territory. The reports indicated that Iraq's chemical weapons were deployed and their commanders were given discretion to use the weapons. See Keith Timmerman, The Iraq Papers: Saddam's Weapons Revealed, NEW REPUB., Jan. 29, 1996, at 12; see also Arthur Spiegelman, Iraq Ordered Chemical Warfare in Gulf War, Reuters World Service, Jan. 17, 1996, available in LEXIS, News Library, Curnws File. Return to text.

[8] In 1985, U.S. satellites discovered a major construction project near Rabta, a remote desert town in Libya. The U.S. suspected that the Libyans intended to build the largest chemical weapons plant in the developing world. Such fears escalated when packs of wild dogs near the facility suddenly and mysteriously died. Concerns about the Rabta project resurfaced last year when Libya purchased from two German companies the technology to produce mass quantities of poison gas and the equipment needed to build a chemical weapons production facility deep inside a mountain fortress. See Libyan Report Denies Plans for Massive Chemical Weapons Plant, Deutsche Presse-Agentur, Feb. 26, 1996, available in LEXIS, News Library, Curnws File (based on statements made by the Director of the U.S. Central Intelligence Agency, John Deutch); William C. Rempel & Robin Wright, Dead Dogs, Surveillance, Vigilance, Luck Expose Libya Plant, L.A. TIMES, Jan. 22, 1989, at A1; see also THOMAS C. WIEGELE, THE CLANDESTINE BUILDING OF LIBYA'S CHEMICAL WEAPONS FACTORY 21, 32-33 (1992); Mary Williams Walsh, German Linked to Libyan Arms Deal, L.A. TIMES, Feb. 28, 1996, at A4. Return to text.

[9] See Karen Lowe, Threat of Future Chemical Weapons Attack Is Growing, Experts Say, Agence France Presse, Mar. 20, 1995, available in LEXIS, News Library, Arcnws File. Return to text.

[10] See id. Return to text.

[11] Syria purchased chemical weapons from the Soviet Union prior to 1991. See Knut Royce, Mideast Chemical Arms Deal: Russia Denies Soviet Official's Accusation, NEWSDAY, Nov. 2, 1995, at A17. Vil Mirzayanov, Counter-Intelligence Chief of Russia and the former Soviet Union's chemical warfare research department, told the Senate Permanent Subcommittee on Investigations that such weapons were shipped to the Mideast sometime prior to the breakup of the Soviet Union in 1991. See id. Return to text.

[12] See Race Is on for Chemical Weapons, CHI. TRIB., Feb 19, 1996, at A1 (quoting John Holum, director of the Arms Control and Disarmament Agency); see also Lowe, supra note 9 (citing U.S. intelligence sources that suspect, inter alia, China, North Korea, Pakistan, and India). Return to text.

[13] The difficulty with preventing such an attack is that individual terrorist organizations, unlike nations, cannot be readily deterred from using chemical weapons. Additionally, the very nature of the radical views espoused by terrorist organizations makes it all the more likely that extremist groups will eventually decide to use chemical weapons once they obtain them. See Randal Ashley, Q & A on the News, ATLANTA J. & CONST., Mar. 28, 1996, at A14; see also Dick Hogan, Conference Is Warned of Chemical Weapons Risk, IRISH TIMES, Feb. 7, 1996, at Home News 2 (quoting Commandant Peter Daly of the Army Ordinance Corp). Daly concluded: "For the foreseeable future, the chemical weapon will continue, like the Sword of Damocles, to hang over the head of civilised society." Id. Return to text.

[14] Adequately distributed, one-third of an ounce of Sarin can produce up to 5000 casualties. See Ashley, supra note 2 (quoting James A. Genovese, U.S. Army Chemical & Biological Defense Command). Return to text.

[15] Senators Sam Nunn and Richard Lugar feared that thousands of Americans attending the Olympic games in the Georgiadome, like the Japanese commuters in the subway, could have been killed just as easily from a cult's Sarin gas attack. See id.; see also Lowe, supra note 9 (discussing the likelihood that the United States will become a target for chemical weapon attacks now that a loose network of terrorist organizations can easily acquire and assemble these devices). Return to text.

[16] Estimates of the size of the Russian stockpile of chemical agents range between 40,000 and 50,000 tons. See Choke Hold, ECONOMIST, Feb. 10, 1996, at 79; see also Lowe, supra note 9. Return to text.

[17] See Royce, supra note 11. Return to text.

[18] See Choke Hold, supra note 16, at 79. Return to text.

[19] See id. Inspectors visiting Russian chemical weapons storage sites observed unguarded doors, single padlocks, and a lack of alarms. Additionally, they noted the possibility that impoverished Russian soldiers might accept small amounts of cash in return for access to the stockpiles. See id. Return to text.

[20] See id. Return to text.

[21] Jan. 13, 1993, S. TREATY DOC. NO. 103-21 (1993) [hereinafter TREATY]; see also David G. Gray, Note, "Then the Dogs Died": The Fourth Amendment and Verification of the Chemicals Weapons Convention, 94 COLUM. L. REV. 567, 568 (1994). Return to text.

[22] See Serguei Batsanov, CWC Is Not Industry's Foe; Involvement by Business Will Ensure Benefits, DEFENSE NEWS, Jan. 29-Feb. 4, 1996, at 20 (as of January 1996, 46 of the Treaty's 160 signatories had ratified the Treaty). Return to text.

[23] See Alison Mitchell, Senate Approves Pact on Chemical Weapons After Lott Opens Way, N.Y. TIMES, Apr. 25, 1997, at A1. Return to text.

[24] See The Chemical Weapons Convention Implementation Act of 1997, S. 610, 105th Cong. (1997) [hereinafter Implementation Act]. At the time of publication, there were several versions of proposed legislation to implement the Treaty. This Article discusses and cites to the first version of the Implementation Act, which was officially introduced in the Senate on April 17, 1997. See id. Return to text.

[25] See David A. Koplow, The Shadow and Substance of Law: How the United States Constitution Will Affect the Implementation of the Treaty, in SHADOWS AND SUBSTANCE: THE TREATY 155, 155 (Benoit Morel & Kyle Olson eds., 1993). Return to text.

[26] See Implementation Act, supra note 24. Return to text.

[27] See infra Part III. Return to text.

[28] The Fourth Amendment in its entirety states:

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. Return to text.

[29] See Batsanov, supra note 22, at 20. Return to text.

[30] See TREATY, supra note 21, art. XXI, ¶ 1, at 323 (outlining the requirements under which the Treaty would become effective); Stanley Meisler, Senate OKs Pact to Ban Chemical Warfare, L.A. TIMES, Apr. 25, 1997, at A1. Return to text.

[31] See Meisler, supra note 30, at A8; see also Briefing by Arms Control and Disarmament Agency, Fed. News Serv., Sept. 4, 1996, available in LEXIS, News Library, Curnws File. Nations who ratify the Treaty after it becomes effective must wait 30 days before they can become a State Party member. See Defense Department Briefing, Fed. News Serv., Apr. 8, 1997 (Remarks by John Holum, Director of the Arms Control and Disarmament Agency (ACDA), available in LEXIS, News Library, Curnws File [hereinafter Defense Department Briefing]. Return to text.

[32] See Mitchell, supra note 23. Return to text.

[33] See Jim Lobe, Arms Pact First Test of Clinton Internationalist Credo, Int'l Press Serv., Feb. 5, 1997, available in LEXIS, News Library, Curnws File. Return to text.

[34] See id. Specifically, Helms planned to consolidate the Agency for International Development (AID), the U.S. Information Service, and the ACDA into the State Department. See John Carlin, A Horse Would Do a Better Job, INDEPENDENT, Feb. 16, 1997, at World 11. President Clinton vowed to veto Helms' proposal. See Charles William Maynes, The Big Chill at State as Helms Battles the White House, L.A. TIMES, Oct. 1, 1995, at M2 (noting that this dispute "brought the entire foreign-policy process to a halt"). Helms reacted by refusing to permit any legislation, including the Treaty, to pass from his foreign affairs committee. See id.; Barbara Crossette, U.S. Politics Delays Treaty on Poison Gas, N.Y. TIMES, Aug. 20, 1995, at A9. Return to text.

[35] See Senate OKs Start II Treaty, UPI, Jan. 26, 1996, available in LEXIS, News Library, Wires File. Helms agreed to hold hearings on the Treaty by April 30, 1997, or to send the Treaty directly to the Senate floor for consideration. In return, President Clinton agreed to submit a State Department consolidation plan saving $1.7 billion over five years. By agreement, if the Administration fails to offer this plan, the three agencies targeted by Helms will be eliminated. See id. Return to text.

[36] See Letter of Transmittal from President Clinton to U.S. Senate (Nov. 23, 1993), in TREATY, supra note 21, III-VI; see also Pat Griffith, Chemical Arms Treaty Embattled, PITTSBURGH POST-GAZETTE, Apr. 13, 1997, at A8. Return to text.

[37] See Barry Kellman & Edward A. Tanzman, Chemical Treaty Deserve [sic] Ratification: No One's Constitutional Rights Are Going to be Violated by the Treaty, BULL. OF THE ATOMIC SCIENTISTS, Jan. 11, 1997, at 15. Return to text.

[38] See id.; Griffith, supra note 36; see also Tom Rhodes, Setback for Treaty, TIMES (London), Sept. 14, 1996, at 14. Return to text.

[39] See Capital Hill Hearing With Defense Department Personnel, Fed. News Serv., Mar. 5, 1997, available in LEXIS, Newslibrary, Curnws File (reporting a Capital Hill hearing with Defense Department personnel, namely John Holum, Director of the U.S. ACDA). Senator Richard Lugar (Repub., Ind.), a member of the Senate Foreign Relations Committee, introduced the Treaty in the Senate on January 21, 1997. See Lugar Introduces Resolution Calling for Ratification of CWC, Armed Forces Newswire Serv., Jan. 22, 1997, available in LEXIS, News Library, Curnws File. Return to text.

[40] This compromise not only involved President Clinton's concessions to some of Helms' demands, but also threats by Democrats to thwart all other Senate business unless the Treaty received immediate consideration. See Frank Gaffney Jr., Chemical Weapons Moment of Truth, WASH. TIMES, Apr. 15, 1997, at A16; see also Late Approval Granted for Chemical Accord, JANE'S DEFENCE WEEKLY, Apr. 23, 1997, at 8. Return to text.

[41] The turning point of the Senate vote came when President Clinton persuaded new Republican Senate Leader Trent Lott to support the Treaty. See Mitchell, supra note 23; see also Jerry Gray, Resolving Treaty Issue, Lott Seems to Cement Party Leadership, N.Y. TIMES, Apr. 25, 1997, at A6. Lott's support then brought along other Republican votes, which guaranteed Treaty ratification. See Mitchell, supra note 23. Return to text.

[42] See TREATY, supra note 21, Preamble, at 279. Return to text.

[43] See id. Annex on Implementation and Verification, Part IV(A), ¶ 17(a)-(c), at 365-66 (explaining the differences between the three categories of chemical weapons and the timeframe by which each category is to be destroyed). Return to text.

[44] See id. § D, at 370-76. This Article focuses on the constitutionality of challenge inspections only. Routine inspections primarily involve government-owned production and stockpiling facilities or privately owned businesses that are so closely tied to the government that they do not have the same expectations of privacy associated with those private businesses or residences covered by challenge inspections. See New York v. Burger, 482 U.S. 691, 700 (1987). As discussed below, the scope of challenge inspections permits Treaty inspectors to target almost any private facility or residence, even those without a direct connection to the production or stockpiling of chemical weapons. See infra Part III.C.2. Return to text.

[45] See TREATY, supra note 21, Annex on Chemicals, at 325-31. Return to text.

[46] See id. ¶ 1, at 326. Return to text.

[47] Id. Return to text.

[48] Id. ¶ 2(d), at 327. Return to text.

[49] See id. ¶ 3, at 327. Return to text.

[50] See id. Annex on Implementation and Verification, Part VI, § E, at 407-08 (listing the verification regime for Schedule One chemicals); id. Part VII, § B, at 412-15 (listing the verification regime for Schedule Two chemicals); id. Part VIII, § B, at 419-21 (listing the verification regime for Schedule Three chemicals). Return to text.

[51] See id. art. IX, ¶ 8, at 311. The Treaty permits treaty officials to inspect private businesses and residences throughout the United States. See infra Part III.C.2. Return to text.

[52] See TREATY, supra note 21, art. IX, ¶¶ 8-25, at 311-13. Return to text.

[53] See id. Annex on Implementation and Verification, at 332-444. Return to text.

[54] See id. Part X, ¶ 4, at 428-29. Return to text.

[55] See id. Return to text.

[56] Id. Return to text.

[57] See id. ¶ 5, at 429. Return to text.

[58] See id. ¶ 6, at 429. Return to text.

[59] See id. art. IX, ¶ 17, at 312. Return to text.

[60] See id. Return to text.

[61] See id. Annex on Implementation and Verification, Part X, ¶ 15(b), at 431. Return to text.

[62] See id. ¶ 23, at 432. Return to text.

[63] See id. ¶ 39, at 435. Return to text.

[64] See id. art. IX, ¶ 12, at 311; id. Annex on Implementation and Verification, Part X, ¶¶ 53-56, at 437-38. Return to text.

[65] See id. Annex on Implementation and Verification, Part X, ¶ 55, at 437. Return to text.

[66] See id. ¶ 57, at 438. Return to text.

[67] Id. ¶ 41, at 435. The Treaty later discusses managed access in the following terms:

The inspection team shall take into consideration suggested modifications of the inspection plan and proposals which may be made by the inspected State Party member, at whatever stage of the inspection including the pre-inspection briefing, to ensure that sensitive equipment, information or areas, not related to chemical weapons, are protected.
Id. ¶ 46, at 436. Return to text.

[68] Gray, supra note 21, at 595. Return to text.

[69] See id. at 545-46. Return to text.

[70] See id. Return to text.

[71] See id. Return to text.

[72] See David A. Koplow, Arms Control Inspection: Constitutional Restrictions on Treaty Verification in the United States, 63 N.Y.U.L. REV. 229, 355-56 (1988) (stating that if a State Party member uses warrant requirements to justify denying access to a challenge inspection site, other State Party members will perceive a deliberate cover-up). Return to text.

[73] See Gray, supra note 21, at 578 (arguing that the reciprocal right to conduct challenge inspections in other countries prevents the United States from relying on the constitutional savings clause to avoid challenge inspections on its own soil). Return to text.

[74] See id. Return to text.

[75] See id. at 576, 578. Return to text.

[76] TREATY, supra note 21, Annex on Implementation and Verification, Part X, ¶ 42, at 435. Paragraph 42 states: "If the inspected State Party provides less than full access to places, activities, or information, it shall be under the obligation to make every reasonable effort to provide alternative means to clarify the possible non-compliance concern that generated the challenge inspection." Id. Return to text.

[77] Some American supporters of the Treaty have suggested that the United States National Authority could use the constitutional savings provision when it cannot obtain a search warrant. See Gray, supra note 21, at 590-91. This is impossible for the reasons stated above. In addition, relying on the savings provision would force the United States to categorically deny any challenge inspection to a privately owned residence or non-chemical business. Such a denial would destroy the verification regime because the State Party member would presume a Treaty violation. Once confidence in the verification regime is lost, the Treaty becomes worthless. Return to text.

[78] By using a Treaty provision distinct from the constitutional savings provision, private and state-owned businesses may take reasonable measures to prevent the disclosure of confidential business information during the search. These include removing or covering sensitive equipment; restricting sample analysis to the presence or absence of chemicals listed in Schedules One, Two, or Three; and in exceptional cases, giving only individual inspectors access to certain areas of the inspection site. See TREATY, supra note 21, Annex on Implementation and Verification, Part X, ¶ 48, at 436. In such instances, the Host State Party member is responsible for demonstrating that the portions of the inspection site to which the inspection team is granted only limited access are not related to possible noncompliance with the Treaty. See id. ¶ 49, at 436.

However, this clause does not include a total denial of access to the inspectors. Instead, it is intended solely as a means to limit access to confidential business information where the owner or business has made a reasonable attempt to show that it is a business secret that is unrelated to any possible non-compliance with the Treaty. See Gray, supra note 21, at 595-96. Return to text.

[79] See Koplow, supra note 72, at 288 n.363 ("A self-executing Treaty is one that requires no congressional action in order to become domestic law.") (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 111 (1986)).

Congress introduced the Implementation Act to authorize the establishment of a United States National Authority. The Implementation Act also authorizes the National Authority to enforce the Treaty requirements in the United States. Return to text.

[80] See TREATY, supra note 21, art. VII, ¶ 4, at 297. The Treaty states: "In order to fulfill its obligations under this Convention, each State Party member shall designate or establish a National Authority to serve as the national focal point for effective liaison with the Organization and other State Parties." Id. Return to text.

[81] See id. art. VII, at 297; Implementation Act, supra note 24, § 401(h). Return to text.

[82] See Implementation Act, supra note 24, § 101(a). Return to text.

[83] See id. § 101. Return to text.

[84] See id. Return to text.

[85] See id. § 401. Return to text.

[86] See id. § 401(h). Return to text.

[87] See id. § 402. Return to text.

[88] See id. § 404. Return to text.

[89] Id. § 403. Return to text.

[90] See id. § 404. Return to text.

[91] See id. § 404(a). Normally, one might expect that a single $50,000 fine would be sufficient regardless of the duration of the refusal to permit the search. However, this section states that "each day such a violation of section 403 continues shall constitute a separate violation of section 403." Id. § 404(1)(c). The purpose of this latter provision is to place additional pressure on those who refuse access. Return to text.

[92] See U.S. CONST. amend. IV (guaranteeing "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"). Return to text.

[93] See Implementation Act, supra note 24, § 406. Return to text.

[94] See id. § 406(a)(1). Return to text.

[95] See id. Return to text.

[96] See id. Return to text.

[97] See id.; see also infra Part II.A.2 and accompanying text. Return to text.

[98] See Implementation Act, supra note 24, § 406(a)(1). Return to text.

[99] Id. § 406(a)(2). While the Implementation Act requires "reasonable" searches, nothing in the language of this provision mandates that the search not exceed the time and manner restrictions required by the Treaty. Nothing in section 406(a)(2)(D) demands that the "reasonableness" of the search include evidence to support the probable cause requirement established by the Supreme Court in its totality of the circumstances test. See Illinois v. Gates, 462 U.S. 213 (1983) (establishing the totality of the circumstances test); see also U.S. CONST. amend. IV. Return to text.

[100] See Implementation Act, supra note 24, § 406(a)(3). Return to text.

[101] See id. § 406(b). Return to text.

[102] See id. § 406(c); see also infra Part III. Return to text.

[103] However, a court could still deny the Lead Agency's request for a warrant because it is facially deficient under the requirements of the Fourth Amendment. See U.S. CONST. amend. IV; see, e.g., United States v. Cardwell, 680 F.2d 75, 77 (9th Cir.1982) (quoting Marron v. United States, 275 U.S. 192, 196 (1927)). Return to text.

[104] See Michael Krepon, Open Skies and Multilateral Verification, in VERIFICATION: THE KEY TO ARMS CONTROL IN THE 1990S 106 (John G. Tower et al. eds., 1992). Return to text.

[105] See Gray, supra note 21, at 571. Return to text.

[106] Any deviation from the Treaty is a violation of international law. See, e.g., Patricia B. McFate, Where Do We Go From Here? Verifying Future Arms-Control Agreements, WASH. Q., Autumn 1992, at 75, 77. Return to text.

[107] Gray, supra note 21, at 571 (citing Benoit Morel, Verifiability & Enforceability of the Treaty, in SHADOWS AND SUBSTANCE: THE TREATY 217-27 (Benoit Morel & Kyle Olson eds., 1993)). Return to text.

[108] See generally WILLIAM F. ROWELL, ARMS CONTROL VERIFICATION: A GUIDE TO POLICY ISSUES FOR THE 1980S (1986). Return to text.

[109] See Gray, supra note 21, at 571-72. Return to text.

[110] See Defense Department Briefing, supra note 31 (noting that even if verification is a difficult task, on-site inspections offer signatory nations a strong mechanism by which to calm their fears of noncompliance). Return to text.

[111] See Koplow, supra note 72, at 280-82. Return to text.

[112] See TREATY, supra note 21, art. IX, ¶ 8, at 311. Return to text.

[113] See Barry Kellman et al., Disarmament and Disclosure: How Arms Control Verification Can Proceed Without Threatening Confidential Business Information, 36 HARV. INT'L L.J. 71, 92 (1995) [hereinafter Kellman et al.]; see also Carnahan, supra note 2, at 180. Return to text.

[114] See Kathleen C. Bailey, Problems With the Treaty, in SHADOWS AND SUBSTANCE: THE TREATY 17, 28-29 (Benoit Morel & Kyle Olson eds., 1993) (estimating that 120 challenge inspections will be performed each year). Return to text.

[115] The ability to manufacture chemical weapons by making the "basic compounds in a kitchen sink, or a high school lab" is frightening. Robin Wright, Chemical Arms: Old and Deadly Source Returns, L.A. TIMES, Oct. 9, 1988, at A1. Mustard gas, for example, can be synthesized by mixing two chemicals in a vat. See Gray, supra note 21, at 574 (citing Chemical Warfare: Ban the World's Machineguns: Can't Be Done? As Easy As Trying To Get An Effective Global Ban on Chemical Weapons, ECONOMIST, June 4, 1988, at 19). Return to text.

[116] See Koplow, supra note 72, at 285-86 (stating that modern chemical weapons may easily fit inside a suitcase or similarly sized container); see also Bailey, supra note 114, at 17. Return to text.

[117] Auerbach, supra note 2. Return to text.

[118] See Bailey, supra note 114, at 17-24 (explaining that a chemical weapons laboratory could fit within a structure as small as 1600 square feet). Return to text.

[119] See Auerbach, supra note 2; see also Bailey, supra note 114, at 18-20 (stating that the best way to detect a violation is to test the residual traces of chemical ingredients). Such testing justifies the inclusion of intrusive challenge inspections without the right to refuse access. Return to text.

[120] See Bailey, supra note 114, at 24. Such dual-use chemicals are among those found in Schedule Two, but are dominant in the list of Schedule Three chemicals. See TREATY, supra note 21, Annex on Chemicals, Part B, Schedules Two, Three, at 330-31. Return to text.

[121] See Edward A. Tanzman, Constitutionality of Warrantless On-Site Arms Control Inspections in the United States, 13 YALE J. INT'L L. 21, 23 (1988) (citing George Bush for a governmental acknowledgement that chemical weapons and commercial chemicals are structurally similar, but have different uses). Return to text.

[122] See id. Return to text.

[123] See Batsanov, supra note 22, at 20. Additional examples of such dual-use chemicals include: (1) trimethyl-phosphate (used to develop insecticides but is a precursor to nerve agents); (2) laundry detergent, (which may be easily converted into a chemical weapon, see Richard Saltus, Chemical Weapons Ban Would Be Hard To Verify, Specialists Say, BOSTON GLOBE, Jan. 17, 1989, at A8); (3) hydrogen cyanide (a by-product of acrylic manufacturing, see The Poison Gas Menace, WASH. POST, Jan. 10, 1993, at C6); and (4) some of the chemicals used to produce hand cream and fertilizer. Telephone Interview with Jeff Nagler, Spokesperson, Chemical Weapons & Biological Weapons Arms Institute (Jan. 17, 1996). Return to text.

[124] To correctly rule on these challenges, a court would have to balance two competing interests:

If the U.S. Congress were to pass legislation designed to contravene Constitutional rights, court challenges would surely ensue. One of the main questions which probably would weigh in the judges' minds would be that of benefit to the public versus individual rights. That is, would inspections which could result in verifying a chemical weapons ban not outweigh the costs of abridging the Bill of Rights? In this context, it will become clear that inspection of facilities will not result in sure verification and that cheating will be extremely hard to detect. The question will then be whether the poor benefit of low-confidence verification is worth what it will cost in terms of freedom and the U.S. Constitution.
Bailey, supra note 114, at 33; see also id. at 18 (stating that there is no credible basis for attempts at deriving an actual number of times that verifications may succeed, but estimating verification will be successful less than 10% of the time). Return to text.

[125] This hearing is distinct from the Lead Agency's ex parte hearing application for a search warrant where a judicial official could deny the warrant because, on its face, the warrant application lacks sufficient evidence of requisite Fourth Amendment probable cause. See supra note 28. Return to text.

[126] See Implementation Act, supra note 24, § 305(b)(4). Return to text.

[127] See Carnahan, supra note 2, at 180 (concluding that it is inevitable that some property owner will refuse consent to a search); see also Kathleen C. Bailey, Chemical Weapons: Say No to This Troubled Treaty, WASH. POST, Dec. 12, 1995, at A17 (noting that companies feeling disadvantaged by the Treaty are virtually certain to claim that the Treaty violates their rights against illegal search and seizure). A company's confidential business information might be stolen in two significant ways. First, foreign inspectors, both the challenging State Party's observer and the neutral Treaty inspectors, might gather trade information and business secrets during the inspection. See Kellman et al., supra note 113, at 75-76. Second, the business's own government may mistakenly release confidential information or trade secrets and wrongly disseminate them to unauthorized persons or agencies. See id. Return to text.

[128] "[I]t is inevitable that inspection rights associated with future arms control treaties will enable inspectors, in pursuit of verification-related information, to collect significant amounts of information having no colorable connection to the Treaty." Koplow, supra note 72, at 286. Return to text.

[129] See Kellman et al., supra note 113, at 75-76;

It is even possible that the company could be tempted to seek judicial injunctive relief from a forthcoming inspection or reporting requirement by claiming that its constitutional property rights could be violated by arms control operations. If a United States court were to enjoin arms control verification activities, however, the United States might be perceived as having violated its obligation to comply with the Treaty.
Id. Return to text.

[130] See Tanzman, supra note 121, at 67. Return to text.

[131] See Koplow, supra note 72, at 355-56. Return to text.

[132] See Implementation Act, supra note 24, §§ 401(d), 402(a). Return to text.

[133] See Defense Department Briefing, supra note 31. Return to text.

[134] See id. Return to text.

[135] See Implementation Act, supra note 24, § 406(c). Return to text.

[136] 354 U.S. 1 (1957). Return to text.

[137] Id. at 17. Return to text.

[138] RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 302(2) (1986). Return to text.

[139] See Koplow, supra note 72, at 357. Return to text.

[140] See David A. Koplow, Back to the Future and Up to the Sky: Legal Implications of "Open Skies" Inspection for Arms Control, 79 CAL. L. REV. 421, 456 n.81 (1991) (citing DENNIS S. ARONOWITZ, LEGAL ASPECTS OF ARMS CONTROL VERIFICATION IN THE UNITED STATES 19-20 (1965)). Return to text.

[141] See id. Return to text.

[142] Based on the desire to avoid violations of separation of powers, courts will often avoid reaching the merits of a case based on what has become known as the political question doctrine.

The "political question doctrine" posits that some constitutional issues are not justiciable, because the issue is committed to the political branches of government (Congress and the President). Recall the suggestion in Marbury that, where the President or another executive branch official had "legal discretion," the judiciary would not grant relief. The modern way of putting this is to say that the issue is political and not legal, or that there are "no judicially cognizable standards" by which a court could resolve a dispute involving one or both of the coordinate branches of government.
DANIEL A. FARBER ET AL., CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY 1028 (1993). Return to text.

[143] See, e.g., Baker v. Carr, 369 U.S. 186 (1962). Return to text.

[144] Gray, supra note 21, at 620 n.330 (citing LEWIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS (1990)). Return to text.

[145] 369 U.S. 186 (1962). Return to text.

[146] Id. at 211 (discussing the justiciability of an action brought by voters in Tennessee to challenge the apportionment of votes for the state's General Assembly). Return to text.

[147] See Goldwater v. Carter, 444 U.S. 996, 1004 (1979) (Rehnquist, J., concurring) (discussing claims of violations of individual rights without non-judicial remedies, as distinguished from political questions). Return to text.

[148] See David S. Eggert, Note, Executive Order 12,333: An Assessment of the Validity of Warrantless National Security Searches, 1983 DUKE L.J. 611, 632 (1983) (noting that Fourth Amendment rights are especially deserving of protection).

The law should be wary of exemptions that appeal to overwhelming interests and thus carry too great a presumption of validity: "[P]rinciples of law, once bent, do not snap back easily." Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602, 655 (1989) (Marshall, J., dissenting).

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). Return to text.

[149] See Lewis Henkin, FOREIGN AFFAIRS AND THE CONSTITUTION 485 n.6 (1972); see also Gray, supra note 21, at 620 n.330. Return to text.

[150] See generally Katz v. United States, 389 U.S. 347, 359 (1967) (holding that an individual had an objective and subjective reasonable expectation of privacy while talking in a closed telephone booth); see also Silas J. Wasserstrom, The Court's Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 AM. CRIM. L. REV. 119, 123 (1989) (discussing Katz and its progeny). Return to text.

[151] See See v. City of Seattle, 387 U.S. 541, 543 (1967):

The businessman, like an occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for a violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant.
Id.; see also Carnahan, supra note 2, at 180 (citing Dow Chemical v. United States, 476 U.S. 227, 236 (1986) (stating that even a highly regulated chemical industry has a reasonable, legitimate, and objective expectation of privacy that society must observe)). Return to text.

[152] See Carnahan, supra note 2, at 180. Return to text.

[153] See Gray, supra note 21, at 622 nn.340-44 (citing additional commentators who concluded that challenge inspections are searches within the meaning of the Fourth Amendment). These commentators include DENNIS S. ARONOWITZ, LEGAL ASPECTS OF ARMS CONTROL VERIFICATION IN THE UNITED STATES 104-09 (1965); Henkin, supra note 149, at 59; Koplow, supra note 72, at 351; and Tanzman, supra note 121, at 61. Return to text.

[154] See Implementation Act, supra note 24, § 406 (a)(1). Return to text.

[155] 389 U.S. 347 (1967). Return to text.

[156] See id. at 354-55 (applying the reasonable expectation of privacy test to the necessity for warrant requirement). Return to text.

[157] See id. at 357; see also Johnson v. United States, 333 U.S. 10, 14 (1948) (arguing that warrantless searches will render the Fourth amendment meaningless). Return to text.

[158] See Wasserstrom, supra note 150, at 124 (stating that the Supreme Court has used the Katz expectation of privacy analysis to exempt additional official investigations from Fourth Amendment restraints). Return to text.

[159] See id. at 121 (noting that beginning with the Burger Court, the Supreme Court began boring away at the warrant requirement by expanding and exploiting exceptions to the expectation of privacy test). Return to text.

[160] 462 U.S. 213 (1983). Return to text.

[161] See id. at 230. Return to text.

[162] See id. at 230-38. Return to text.

[163] See id. at 238. In Gates, the Supreme Court abandoned the former Aguilar/Spinelli two-pronged test, in which each prong required separate analysis. The Court replaced this test by applying a reasonableness test focusing on the totality of the circumstances. The Gates Court stated:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. at 238; see also Spinelli v. United States, 393 U.S. 410, 413 (1969); Aguilar v. Texas, 378 U.S. 108, 114-15 (1964). Return to text.

[164] See Gates, 462 U.S. at 238. Return to text.

[165] Id. at 233. Return to text.

[166] See id. Return to text.

[167] See id. at 234. Return to text.

[168] See id. at 233. Return to text.

[169] See U.S. CONST. amend. IV; Marron v. United States, 275 U.S. 192, 196 (1927); United States v. Cardwell, 680 F.2d 75, 77 (9th Cir. 1982). Return to text.

[170] See Marron, 275 U.S. at 196 (ruling that the items to be seized must be described in the warrant with such particularity that it leaves little to the discretion of the officer executing the warrant). Return to text.

[171] See TREATY, supra note 21, art. IX, ¶¶ 14-15, at 312; see also id. Annex on Implementation and Verification, Part X, ¶¶ 4-6, at 428-29 (requiring the requesting State Party member to submit the following information: (a) the Host State Party member to be inspected; (b) the point of entry; (c) the size and type of inspection site; (d) the concern of non-compliance, the provisions of the Treaty believed to have been violated, and the nature, circumstances, and information giving rise to the concern for possible non-compliance). Return to text.

[172] See id. art. IX, ¶¶ 14-15, at 312; see also id. Annex on Implementation and Verification, Part X, ¶¶ 4-6, at 428-29. Return to text.

[173] See Illinois v. Gates, 462 U.S. 213, 238 (1983). Return to text.

[174] See id. Return to text.

[175] See TREATY, supra note 21, Annex on Implementation and Verification, Part X, ¶ 4, at 428-29. Subparagraph (d) does not require the requesting State Party member to provide any proof or evidence to support its allegation. See id. at 429. The Treaty merely requires a description of the nature of the actions giving rise to the Treaty violation. See id. ¶ 4(d), at 429. Return to text.

[176] The Constitution requires probable cause for the issuance of a warrant. See U. S. CONST. amend. IV. Return to text.

[177] See Gates, 462 U.S. at 238. Return to text.

[178] See TREATY, supra note 21, Annex on Implementation and Verification, Part X, ¶ 4, at 428-29. Return to text.

[179] See Marron v. United States, 275 U.S. 192, 196 (1927). Return to text.

[180] See TREATY, supra note 21, Annex on Implementation and Verification, Part X, ¶ 4, at 428-29. Return to text.

[181] The only solution to this dilemma is for the Lead Agency to have evidence from the requesting State Party member to support its allegations. However, it is unlikely that a member who already suspects a substantive violation of the Treaty will provide additional information. See id. ¶ 4, at 428-29. Return to text.

[182] See Katz v. United States, 389 U.S. 347, 357 (1967). Return to text.

[183] See Wasserstrom, supra note 150, at 121-24. Return to text.

[184] The Supreme Court has recognized some exceptions to the criminal warrant requirements. Thus, courts will likely grant an emergency exception when circumstances compel the police to act immediately because of the risk of the destruction of evidence or the escape of the suspect, and when it would be impractical for the officers to obtain a warrant. See Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984) (citing Payton v. New York, 445 U.S. 573, 583 (1980) (allowing warrantless home arrests of felony suspects and giving lower courts discretion to apply proper bounds to this exception)).

Courts may also grant a warrant when there is a "hot pursuit." See Welsh, 466 U.S. at 753. Hot pursuit requires that there be "immediate or continuous pursuit of the [the subject] from the scene of the crime." Id. (appearing to limit the hot pursuit exception to serious crimes and excluding misdemeanors).

There is also an exception that allows officers to search a felony arrest suspect and the area immediately surrounding the subject of an arrest, but the exception limits the scope of the search to the space within the suspect's grasp. See Chimel v. California, 395 U.S. 752, 763 (1969); see also Maryland v. Buie, 494 U.S. 325, 334-35 (1990) (allowing protective sweeps of houses where an arrest has been made); United States v. Robinson, 414 U.S. 218, 225 (1973) (citing Agnello v. United States, 269 U.S. 20, 30 (1925) (stating that the doctrine justifying the search incident to arrest applies to the time period occurring contemporaneously with the arrest)).

The warrantless search of a vehicle is permissible if an officer has probable cause to expect to find evidence of a crime. See Carroll v. United States, 267 U.S. 132, 158-59 (1925). This exception permits the warrantless examination of impounded vehicles and the personal effects found inside to account for the owner's property. See Colorado v. Bertine, 479 U.S. 367, 371-72 (1987); see also Illinois v. Lafayette, 462 U.S. 640, 646 (1983) (applying inventory searches to a suspect's person). An additional exception permits a police officer to stop and frisk a suspect if the officer has a reasonable, articulable suspicion that a crime is afoot, and it would be impractical to obtain a warrant. See Terry v. Ohio, 392 U.S. 1, 30 (1968). Police may search a premise or vehicle if the owner gives voluntary consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).

In addition, an officer may make a warrantless seizure of incriminating evidence that is in open view while the officer conducts a lawful search, entry, or arrest. See Horton v. California, 496 U.S. 128, 133 (1990). Return to text.

[185] Camara v. Municipal Ct., 387 U.S. 523, 528 (1967). Return to text.

[186] Griffin v. Wisconsin, 483 U.S. 868, 877 n.4 (1987) (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978)). Return to text.

[187] See Camara, 387 U.S. at 530. Return to text.

[188] See Implementation Act, supra note 24, § 406(a); see also supra note 154; supra Part II.B. Return to text.

[189] See Camara, 387 U.S. at 538-39; supra Part II.C. Return to text.

[190] See Implementation Act, supra note 24, § 305. Return to text.

[191] Letter from John D. Holum, Director, ACDA, to George J. Mitchell, Senate Majority Leader (May 27, 1994) (on file with authors); see also Implementation Act, supra note 24, § 406(a). Return to text.

[192] See Camara, 387 U.S. at 540. Normally, one might expect that a government official wishing to enforce a health or safety code would first seek an individual's consent to search before resorting to the courts for a search warrant. However, in the case of the challenge inspection searches permitted by the Treaty, it seems unlikely that National Authority officials will waste precious time seeking a business's consent. Most businesses are likely to refuse such consent anyway, and will likely petition the courts to prevent the search. Return to text.

[193] 387 U.S. 523 (1967). Return to text.

[194] See id. at 540. In Camara, San Francisco housing inspectors conducted routine housing code inspections in an apartment building. See id. at 526. Informed by an apartment manager that Camara was using the ground floor leasehold as a personal residence in violation of occupancy permits, the inspector "confronted appellant and demanded that he permit an inspection of the premises." Id. Camara refused on three separate occasions to allow inspections without search warrants. See id. at 526-27. Camara was charged with refusing to permit a lawful inspection pursuant to the relevant San Francisco Municipal Code and was arrested. See id. Return to text.

[195] See id. at 532. Return to text.

[196] The rationale for the Camara Court's distinction between administrative and criminal searches is based upon the Court's recognition that enforcement of basic health and safety regulations sometimes demands routine and broad-sweeping searches. For instance, housing inspectors must have the ability to quickly gain access to several city blocks or to an entire residential neighborhood. Housing inspectors need timely access to the facilities in question to prevent landlords from possibly stalling the inspectors at the door while making efforts to correct violations. Otherwise, stalling tactics destroy the deterrence effect of housing code enforcement. See id. at 534-39. Return to text.

[197] See id. at 535-36. The rationale behind administrative warrants is that they are part of a "regulatory scheme" that is "civil rather than criminal in nature;" thus, they do not violate the Constitution because they are "limited in scope" and not available in unreasonable circumstances. Id. at 528. Return to text.

[198] See id. at 539. Return to text.

[199] See id. at 536-37. The Supreme Court later clarified its opinion as to why the traditional probable cause test is not applied to administrative warrant requests: "The probable-cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions, particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations." Colorado v. Bertine, 479 U.S. 367, 371 (1987). Return to text.

[200] Camara, 387 U.S. at 539. Return to text.

[201] For instance, the Camara Court found that "the inspection programs at issue here are aimed at securing city-wide compliance with minimum physical standards for private property." Id. at 535. The governmental purpose in enforcing municipal housing codes in Camara was derived from the state police powers to promote health and safety. This is evidenced by two factors of the balancing test used by the Camara Court: (1) that "such [administrative] programs have a long history of judicial and public acceptance," and (2) that the "public interest" be free from dangerous conditions. Id. at 537. Return to text.

[202] See id. at 534-35. Return to text.

[203] Id. at 533 ("It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement. Thus, we do not find the public need argument dispositive."). Return to text.

[204] See ROBERT M. BLOOM & MARK S. BRODIN, CONSTITUTIONAL CRIMINAL PROCEDURE 86 (1992) ("The justification envisioned in Camara is designed simply to insure evenhandedness and to avoid arbitrary or selected enforcement. . . . The constraints placed upon administrative searches operate, therefore, not to insure prior knowledge of probable wrongdoing, but to limit discretion and prevent arbitrary treatment of individuals."); see also Koplow, supra note 72, at 351 (noting that the issuance of administrative search warrants requires an orderly and comprehensive inspection plan of all similarly situated properties). Return to text.

[205] See Camara, 387 U.S. at 538 (stating that the court should consider the nature of the building and the surrounding area). Return to text.

[206] See id. at 539 (weighing a valid public interest against the constitutional right to be free from unreasonable searches and seizures). Return to text.

[207] See id. at 537. The Camara Court envisioned that administrative searches would be minimal intrusions when it stated that "because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy." Id. Return to text.

[208] See Gray, supra note 21, at 633 n.408. Return to text.

[209] See See v. City of Seattle, 387 U.S. 541, 546 (1967) (holding that administrative entry into non-public portions of a commercial property may only be done with a warrant). Return to text.

[210] See supra notes 112-13 and accompanying text. Return to text.

[211] See supra notes 112-23 and accompanying text for a discussion of how the Treaty's verification regime creates a deterrent effect against noncompliance; see also Koplow, supra note 72, at 356 (concluding that such intrusive verification measures have "too many potential targets and too few inspectors," and thus the likelihood of detection remains small). Return to text.

[212] See Koplow, supra note 72, at 356. Return to text.

[213] However, under the Treaty, Requesting State Parties are not compelled to produce their reasons for requesting a challenge inspection. It is highly doubtful that these State Parties would divulge espionage secrets when not required to do so. Return to text.

[214] See TREATY, supra note 21, Annex on Implementation and Verification, Part X, § C, at 434-38. Return to text.

[215] See Camara v. Municipal Court, 387 U.S. 523, 537 (1967). Return to text.

[216] Because a challenge inspection is directed at a single facility, any request for an administrative warrant will most likely not be based on such a comprehensive or broad-based plan. Return to text.

[217] This does not include the Host State Party member's ability to limit the investigation because of constitutional or national security concerns. However, as stated above, such limits could not be effectively used. Return to text.

[218] See Camara, 387 U.S. at 537. Return to text.

[219] See, e.g., Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970) (holding that no warrant is required to inspect a liquor industry business based upon a long-standing congressional regulation). Return to text.

[220] See United States v. Biswell, 406 U.S. 311, 316-17 (1972) (ruling that a property owner who chooses to conduct business in a pervasively regulated industry impliedly consented to routine warrantless administrative searches). Return to text.

[221] See Donovan v. Dewey, 452 U.S. 594, 601, 603-05 (1981) (shifting by implication the PRI exception from a doctrine of implied consent to one that applies a test based on two considerations: the pervasiveness of government regulation and the individual's subjective expectation of privacy); New York v. Burger, 482 U.S. 691, 711 (1987) (reformulating the Donovan test to clarify procedural safeguards necessary for the protection of the individual's subjective expectation of privacy including consideration of time, place, and scope of inspection). Return to text.

[222] See Burger, 482 U.S. at 702-03. Return to text.

[223] See id. Return to text.

[224] See Koplow, supra note 72, at 310. Return to text.

[225] 452 U.S. 594 (1981). In Donovan, the Secretary of Labor brought suit seeking to enjoin a company from refusing to permit warrantless searches of its mining facilities pursuant to the Federal Mine Health and Safety Act of 1977. See id. at 596. Return to text.

[226] Id. at 600. Return to text.

[227] Id. Return to text.

[228] See id. at 603. Return to text.

[229] See id. at 600. Return to text.

[230] See id. Return to text.

[231] See id. at 599, 605-06. Return to text.

[232] "[W]arrantless inspections of commercial property may be constitutionally objectionable if their occurrence is so random, infrequent, or unpredictable that the owner, for all practical purposes, has no real expectation that his property from time to time [will] be inspected by government officials." Id. at 599; see also Gray, supra note 21, at 618; Tanzman, supra note 121, at 48. Return to text.

[233] See Gray, supra note 21, at 618. Return to text.

[234] See id. This Article does not address the constitutionality of the Implementation Act's regulation of the chemical industry. The chemical industry is already heavily regulated and since the production of chemical weapons is generally illegal, industries producing chemical weapons do so under the guidance and license of the United States government. These specific industries are already subject to mandatory inspections under the Treaty and do not raise constitutional issues because they include governmental involvement in the production and storage of chemical weapons. Return to text.

[235] 482 U.S. 691 (1987). Return to text.

[236] See id. at 707. In Burger, the regulation authorized warrantless searches of automobile junkyards and permitted police to examine the owner's record books, as well as the vehicles themselves. See id. at 711-12. Return to text.

[237] See id. at 701-02. Return to text.

[238] See id. at 702. Return to text.

[239] See id. Return to text.

[240] See id. at 703. In Burger, the search was limited to inspections of vehicle dismantling industries during normal business hours. The scope of the search was also limited to the owner's records and the vehicles themselves. The statute included a requirement that the operator be informed that the business was subject to inspection, that the standards of potential inspections be identified, and that the time, place, and scope of the inspection be identified. See id. at 711. Return to text.

[241] See, e.g., Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 654 (1995) (O'Connor, J., dissenting); see also Dolan v. City of Tigard, 512 U.S. 374, 392 (1994). Return to text.

[242] The three factors mentioned by the Court were regularity, intensity, and frequency of searches. See supra note 231 and accompanying text. Return to text.

[243] See Burger, 482 U.S. at 703. Return to text.

[244] See supra Part III.C.1 (explaining Camara and applying it to the Treaty challenge inspections). Return to text.

[245] Other authors have concluded that challenge inspections fail to pass constitutional muster under the current PRI exception. See Gray, supra note 21, at 632-33; Tanzman, supra note 121, at 48-54. Return to text.

[246] See supra Part II.B.1 (discussing the high expectation of privacy associated with most businesses subject to a challenge inspection). Return to text.

[247] See Tanzman, supra note 121, at 53 (stating that "[s]urely such enterprises could not be on notice that being uninvolved in the chemical weapons industry makes them fair game for warrantless searches to assure U.S. compliance with a chemical weapons treaty"). Return to text.

[248] See Gray, supra note 21, at 619.

In practice, however, the subjective focus of close regulation is problematic. . . . [T]he subjective focus might give short shrift to an objective factor—such as a truly compelling governmental interest—that might support warrantless inspections of industries that are not so closely regulated. Consequently, the close regulation standard may set a threshold that is too high for the Treaty's verification regime to meet.
Id. Return to text.

[249] See Tanzman, supra note 121, at 53. Return to text.

[250] Such warrantless searches, without probable cause and judicial scrutiny, have been compared to the searches conducted by British soldiers before the founding of the Constitution. "Ad hoc on-site inspections resemble the general warrants that the King of England relied upon to search the businesses of colonists before the Revolutionary War. It was the reaction to such warrants that gave rise to the Fourth Amendment." Id. at 54 n.199. Return to text.

[251] See supra Part II.A.2. Return to text.

[252] See TREATY, supra note 21, Annex on Implementation and Verification, Part X, ¶¶ 4-6, at 428-29. Return to text.

[253] See Pat Griffith, supra note 36 (describing the fears of Treaty opponents that teams of international inspectors will burst into U.S. firms without notification in an attempt to capture trade secrets). Return to text.

[254] See Donovan v. Dewey, 452 U.S. 594, 599 (1981). Return to text.

[255] See TREATY, supra note 21, Part X, §§ B-C, at 428-39. Return to text.

[256] See supra text accompanying notes 120-23. Return to text.

[257] See Donovan, 452 U.S. at 597. Return to text.

[258] See id. at 599-600. Return to text.

[259] See Gray, supra note 21, at 613, 618 (analyzing relevant case law limiting the application of the PRI exception). Return to text.

[260] See New Jersey v. T.L.O., 469 U.S. 325, 333 (1985); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 679 (1989). Return to text.

[261] See Von Raab, 489 U.S. at 665-66; Skinner v. Railway Lab. Exec. Ass'n, 489 U.S. 602, 619-20 (1989); T.L.O., 469 U.S. at 351-52 (Blackmun, J., concurring); see also Wasserstrom, supra note 150, at 127-29 (explaining the rationale behind the special needs exception). Return to text.

[262] See T.L.O., 469 U.S. at 353. Return to text.

[263] See Von Raab, 489 U.S. at 679; Skinner, 489 U.S. at 633-34. Return to text.

[264] 469 U.S. 325 (1985). Return to text.

[265] See id. at 347-48. Return to text.

[266] See id. at 339-40. Return to text.

[267] See id. at 341. The Court will, at times, ease both the warrant and probable cause restrictions of the Fourth Amendment when it is impractical for an official to obtain a warrant or to establish probable cause. See id. Return to text.

[268] See id. at 340-43; see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-60 (1995). Return to text.

[269] See T.L.O., 469 U.S. at 339-40. Return to text.

[270] See id. at 340. Return to text.

[271] See id. at 342-43. Return to text.

[272] See O'Connor v. Ortega, 480 U.S. 709, 726 (1987) (relying upon the holding of T.L.O.). Return to text.

[273] 489 U.S. 602 (1989). Return to text.

[274] See id. at 619. Return to text.

[275] See id. at 622. Return to text.

[276] 489 U.S. 656 (1989). Return to text.

[277] See id. at 679. Return to text.

[278] See supra Part III.C. Return to text.

[279] See, e.g., Skinner, 489 U.S. at 619-20; Von Raab, 489 U.S. at 666-67; New Jersey v. T.L.O., 469 U.S. 325, 347-48 (1985). Return to text.

[280] This conclusion does not assume the potential unconstitutionality of the Implementation Act's ban on the lower courts' ability to issue injunctive relief. At best, the ban is still subject to constitutional scrutiny to the extent that a federal court will need to consider the legitimacy of section 406 of the Implementation Act. See infra Part IV. Return to text.

[281] See TREATY, supra note 21, Annex on Implementation and Verification, Part X, § B, at 428-34. Return to text.

[282] The problem for the Department of Justice is that it is unlikely that a judge will issue an administrative warrant for a challenge inspection given the intrusive nature of the search. See infra Part III.C. The only reason the warrant requirement may be "impractical" is because the Department of Justice officials will likely lack sufficient information to meet the minimum standards required by the Fourth Amendment. See Gray, supra note 21, at 604-05 (explaining that the importance of the Treaty may not justify ignoring the impracticality standard of the special needs exception).

For the Treaty to be valid, it must not only be important, but it must also be legitimate under the Constitution. Gray writes, "[T]he 'special needs' test perhaps passes too quickly by the claim of impracticality; the correspondence between practicality and constitutionality may be tenuous. Arguably, the need must be more than substantial; it must also be legitimate." Id. at 605 n.233. Return to text.

[283] See Implementation Act, supra note 24, § 406. Return to text.

[284] See supra text accompanying notes 54-60. Return to text.

[285] See Skinner v. Railway Lab. Exec. Ass'n, 489 U.S. 602, 622 (1989). Return to text.

[286] See TREATY, supra note 21, Annex on Implementation and Verification, Part X, § C, at 434-38. Return to text.

[287] See Gray, supra note 21, at 650-55 (explaining how his proposed reformulated pervasively regulated exception would alleviate the constitutional problems that arise from challenge inspections). Return to text.

[288] Gray argued that this special need analysis should be identical to the special need analysis described in Part III.E. See id. at 645. Gray also indicated that the special needs Hybrid Exception search may cross industry lines because it would be unwise to hinder Congress in its efforts to address social problems. See id. Return to text.

[289] Gray does not propose whether this expectation of privacy should be subjective or objective. See id. However, the individual's subjective expectation of privacy is at the center of the Supreme Court's decisions in both Donovan and Burger. See Donovan v. Dewey 452 U.S. 594 (1981); New York v. Burger 482 U.S. 691 (1987). If Gray suggests modifying the expectation of privacy standard to an objective view, he neither explains how this will effect the previous PRI cases, nor justifies why an objective expectation of privacy is a better standard. Return to text.

[290] See supra Part III.E (discussing the special needs exception). Return to text.

[291] See Gray, supra note 21, at 650. The constitutionally adequate substitute is identical to the third procedural prong of the Burger test. See id. For a discussion of the third prong of the Burger test, see Part II.D.1. The constitutionally adequate substitute relies on the logic of the Donovan decision and applies two criteria: (1) whether the regulation sufficiently limits the discretion of the inspector, and (2) whether the inspection scheme is sufficiently comprehensive and predictable so that the property owner is constructively notified of the inspection. See Gray, supra note 21, at 650. Return to text.

[292] Gray assumes that a challenge inspection of a home would be extreme and require a warrant. However, he argues that any facility capable of producing a significant quantity of chemical weapons would be larger than a home and subject to the Hybrid Exception. See Gray, supra note 21, at 653-54. Return to text.

[293] Gray argues that there are three ways a business may have a reduced expectation of privacy: (1) a history or tradition of regulation, (2) an inherent or immediate threat to health or safety, or (3) consent. See id. at 645-48. Return to text.

[294] Gray's full argument follows: "A limited privacy interest inheres in non-residential property under the best of circumstances; the danger countered by the Treaty reduces the legitimate privacy expectations still further." Id. at 655. Return to text.

[295] See id. Return to text.

[296] See id. Return to text.

[297] The Implementation Act attempts to prevent this delay by banning judicial remedies before the search occurs. See Implementation Act, supra note 24, § 406(c). Return to text.

[298] See supra Part III.D.2. Return to text.

[299] See supra Part III.D.2. Return to text.

[300] "While it seems likely that the inspections are too infrequent to diminish greatly the subjective privacy expectations of the owners of the target plants, the very danger that this Treaty combats extends so far as to reshape the objective expectation of privacy accorded the owners by society." Gray, supra note 21, at 651-52.

However, this argument concedes that there is no decrease in the subjective expectation of privacy, and Gray never proposes an absolute shift to allow objective privacy viewpoints to govern the test. Furthermore, a mechanism or justification for shifting the current Supreme Court reliance on the subjective expectation of privacy is not explained in Gray's article. Return to text.

[301] See New York v. Burger, 482 U.S. 691, 711 (1987); Donovan v. Dewey, 452 U.S. 594, 601-03 (1981). Return to text.

[302] See Gray, supra note 21, at 652. Return to text.

[303] See Koplow, supra note 72, at 325. Return to text.

[304] See id. Return to text.

[305] See id. at 326. Return to text.

[306] See id. at 461 n.213.

The Constitution . . . was written so as to strike a balance between the protection of political freedom and protection of national security interests. To guarantee political freedom, our forefathers agreed to take certain risks which are inherent in a free democracy. It is unthinkable that we should now be required to sacrifice those freedoms in order to defend them.
Id. (quoting United States v. Smith, 321 F. Supp. 424, 430 (C.D. Cal. 1971)). Return to text.

[307] See Gray, supra note 21, at 634. Return to text.

[308] See Katz v. United States, 389 U.S. 347, 358 n.23 (1967). Return to text.

[309] 516 F.2d 594 (D.C. Cir. 1974). Return to text.

[310] See id. at 614 (relying on Camara to require a warrant prior to the installation of the wiretap). Return to text.

[311] See id. at 669. Return to text.

[312] 407 U.S. 297 (1972). Return to text.

[313] See id. Return to text.

[314] See United States v. United States Dist. Ct., 444 F. 2d 651, 667 (6th Cir. 1971), aff'd, 407 U.S. 297 (1972). Return to text.

[315] See United States v. United States Dist. Ct., 407 U.S. 297, 323-24 (1972); see also Eggert, supra note 148, at 632-33 (discussing the scope of warrant requirement for non-criminal searches). Return to text.

[316] 484 F.2d 418 (5th Cir. 1973). Return to text.

[317] See id. at 426. Return to text.

[318] 494 F.2d 593 (3rd Cir.). Return to text.

[319] See id. at 608; see also United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980) (holding that courts do not need to require a warrant every time the executive branch conducts foreign surveillance of foreign powers); see also United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977) (holding that foreign security wire taps are a recognized exception to the general warrant requirement). Return to text.

[320] See Koplow, supra note 140, at 460 (synthesizing the holdings of Truong Dinh Hung, Buck, Butenko, and Brown); see also Eggert, supra note 148, at 627-28. Return to text.

[321] See Eggert, supra note 148, at 627-28. Return to text.

[322] See supra Part II.A. (discussing the scope of challenge inspections). Return to text.

[323] See cases cited supra notes 315, 319. Return to text.

[324] See cases cited supra notes 315, 319. Return to text.

[325] Gray, supra note 21, at 637 n.425 (quoting Halperin v. Kissinger, 606 F.2d 1192, 1200-01 (D.C. Cir. 1979)). Return to text.

[326] See id. at 637. Return to text.

[327] Boyd v. United States, 116 U.S. 616, 635 (1886). Return to text.

[328] See Implementation Act, supra note 24, § 406(c); see also supra text accompanying notes 131-35 (noting the Implementation Act's recognition that if such injunctions were allowed, the United States might inadvertently violate its Treaty obligations). Return to text.

[329] See Implementation Act, supra note 24, § 406(c). Return to text.

[330] See infra Part IV.B. (discussing injunctions as the only appropriate remedy for the protection of constitutional rights threatened by the Implementation Act). Return to text.

[331] See Implementation Act, supra note 24, § 406(c) (discussing the Norris-LaGuardia Act, 29 U.S.C. §§ 101-15 (1994); Yakus v. United States, 321 U.S. 414 (1944); and Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948)). Return to text.

[332] 29 U.S.C. §§ 101-15 (1994). Return to text.

[333] See Implementation Act, supra note 24, § 406(c). Return to text.

[334] See, e.g., Truax v. Corrigan, 257 U.S. 312, 330 (1921) (suggesting that it would be a violation of due process for a state not to grant injunctive relief to protect a property owner if the state provides no other alternative protection); Coppage v. Kansas, 236 U.S. 1, 18 (1915); Adair v. United States, 208 U.S. 161, 171 (1908). Return to text.

[335] See 29 U.S.C. §§ 101, 103, 107 (1994). Return to text.

[336] See William E. Forbath, The Shaping of the American Labor Movement, 102 HARV. L. REV. 1111, 1193 n.376 (1989); see also Paula L. McDonald, Note, Judicial Interpretation of Collective Bargaining Agreement: The Danger Inherent in the Determination of Arbitrabililty, 1983 DUKE L.J. 848, 850-51 (1983). Return to text.

[337] 303 U.S. 323 (1938). Return to text.

[338] See id. at 329. Return to text.

[339] Id. at 330. Return to text.

[340] See Gordon G. Young, A Critical Reassessment of the Case Law Bearing on Congress's Power to Restrict the Jurisdiction of the Lower Federal Courts, 54 MD. L. REV. 132, 170 (1995). Return to text.

[341] See 29 U.S.C. § 107(a)- (e) (1994). Return to text.

[342] Section 107 permits a court to issue an injunction if: (1) unlawful acts have been threatened, will be or have been committed and will continue; (2) substantial and irreparable injury will result; (3) greater injury will result to complainant by denial of relief than to defendants by granting [relief]; (4) there is no adequate remedy at law; and (5) the public officers charged with protecting complainant are unwilling or unable to do so. See id. Return to text.

[343] See id. Return to text.

[344] See U.S. CONST. amend. XIV. Return to text.

[345] Young, supra note 340, at 170. Return to text.

[346] See id. at 176. Return to text.

[347] See Lochner v. New York, 198 U.S. 45, 53 (1905) (striking down a New York law limiting the hours that bakers could work to 10 hours a day and 60 hours a week). Return to text.

[348] See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 326 (1938). Return to text.

[349] See Young, supra note 340, at 176-78. Return to text.

[350] Unlike the alleged substantive economic rights in Lochner and Lauf, plaintiffs contesting a Treaty challenge inspection seek protection of a well-established Fourth Amendment right. See supra Part III.B. Return to text.

[351] 29 U.S.C. § 107(c) (1994). Return to text.

[352] See Lauf, 303 U.S. at 330. Return to text.

[353] Pub. L. No. 77-421, 56 Stat. 23 (1942), repealed by Act of July 25, 1946, ch. 671, 60 Stat. 664. Return to text.

[354] See id. § 204(d), 56 Stat. at 32-33. Return to text.

[355] See id. Return to text.

[356] 321 U.S. 414 (1944). Return to text.

[357] See id. at 418. Return to text.

[358] See id. Return to text.

[359] See id. at 429. Return to text.

[360] 29 U.S.C. § 207 (1994). Return to text.

[361] See id. §§ 254-56; see also Battaglia v. General Motors Corp., 169 F.2d 254, 255-56 (2d Cir. 1948). Return to text.

[362] See 29 U.S.C. § 254(a) (1994). Return to text.

[363] See id. § 252(d). Return to text.

[364] 169 F.2d 254 (2d Cir. 1948). Return to text.

[365] See id. at 272. Return to text.

[366] See id. at 272-73. Return to text.

[367] See id. at 273 ("Should Congress undertake to withdraw from the courts jurisdiction to consider and determine pure questions of ownership or title to property unaffected by constitutional provisions, a more serious question would be presented, but we are not confronted here with such a case."). Return to text.

[368] See generally Lawrence Gene Sager, Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 85 (1981). Return to text.

[369] See Tanzman, supra note 121, at 39 n.117 (citing Marshall v. Barlow's, Inc., 436 U.S. 307 (1978)). Return to text.

[370] See id. (citing Daniel L. Rotenberg, Private Remedies for Constitutional Wrongs—A Matter of Perspective, Priority, and Process, 14 HAST. CONST. L. Q. 77, 85 (1986)); infra Part IV.B.2. Return to text.

[371] See id. (citing Megapulse, Inc. v. Lewis, 672 F.2d 959, 970 (D.C. Cir. 1982); Dow Chemical Co. v. United States, 476 U.S. 227, 231 (1986)). Return to text.

[372] See TREATY, supra note 21, Annex on Implementation and Verification, Part X, ¶ 11, at 430 (requiring at least 12 hours of notice before the planned arrival of the inspection team at the point of entry). Return to text.

[373] See Implementation Act, supra note 24, § 406(c). Return to text.

[374] See Kellman et al., supra note 113, at 109 n.222 (citing Reynolds v. International Amateur Athletic Fed'n, 23 F.3d 1110 (6th Cir. 1994)).

The Foreign Sovereign Immunities Act controls here. See 28 U.S.C. §§ 1330, 1332, 1391, 1441, 1602 (1994). Section 1604 states that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States." Id. § 1604. Section 1605 provides various exceptions to the general rule of immunity. See id. § 1605. One exception is if a foreign state "has waived its immunity either explicitly or by implication." Id. § 1605(a)(1). However, a section 1605 waiver is strictly construed, and there must be strong evidence that the foreign state intended to waive its immunity. See Rodriguez v. Transnave, 8 F.3d 284, 287 (5th Cir. 1993). A foreign state impliedly waives its immunity when it agrees to arbitration in another country, agrees that a contract is controlled by the laws of another country, or files a responsive pleading without raising immunity as a defense. None apply in this situation. See id. A property owner suing for damages resulting from a Treaty inspection could not rely on a section 1605(a)(1) waiver to obtain jurisdiction over the offending foreign state. See id.

The only other relevant exception to the general immunity of a foreign state is provided by section 1605(a)(5). A foreign state is not immune from jurisdiction in a United States court when money damages are sought for "damage to or loss of property, occurring in the United States." 28 U.S.C. § 1605(a)(5) (1994). The damage must have occurred as a result of a tortious act or omission of either the foreign state or an offical or employee of that state within the scope of that person's office or employment. See id. However, tortious acts and omissions committed within the tortfeasor's discretionary function as an official or employee are immune from jurisdiction. See id. § 1605(a)(5)(A). Any foreign state inspector performs pursuant to the terms of the Treaty and, therefore, performs a discretionary function. Thus, the inspector is immune from jurisdiction. See Johnson v. Fankell, 117 S.Ct. 1800, 1803 (1997) (recognizing the discretion exception for qualified immunity for state officials); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (noting that discretionary actions receive immunity if not violative of clearly established statutes or constitutional rights). Return to text.

[375] See Kellman et al., supra note 113, at 109. Return to text.

[376] See TREATY, supra note 21, art. VIII, ¶ 48-51, at 308; id. Annex on Implementation and Verification, Part II, § B, at 345-47. Return to text.

[377] See id. Annex on Implementation and Verification, Part II, ¶ 11(e), at 346; Vienna Convention on Diplomatic Relations, Apr. 18, 1961, art. 31, ¶¶ 1-3, 23 U.S.T. 3227, 3240-41, 500 U.N.T.S. 95, 112. Return to text.

[378] TREATY, supra note 21, Annex on Implementation and Verification, Part II, ¶ 14, at 347. Return to text.

[379] See Kellman et al., supra note 113, at 109. Return to text.

[380] 28 U.S.C. §§ 1346(b), 2671-2680 (1994). Return to text.

[381] See id. Return to text.

[382] See id. § 2680. Return to text.

[383] See Kellman et al., supra note 113, at 111. Return to text.

[384] See id. at 112 n.239 (citing Norton v. United States, 581 F.2d 390, 397 (4th Cir. 1978). Return to text.

[385] See 28 U.S.C. § 2680(a) (1994). For a discussion of the discretionary function exemption, see Kellman et al., supra note 113, at 111 nn.235-36. Additionally, the FTCA permits federal immunity from claims alleging governmental interference with contract rights. See 28 U.S.C. § 2680(h) (1994). Such an exception might bar recovery for the release of confidential business information. See Kellman et al., supra note 113, at 112. Return to text.

[386] 403 U.S. 388, 397 (1971) (holding that a warrantless search of Biven's apartment was a violation of the Fourth Amendment). The Court, however, did not consider the immunity question. Return to text.

[387] See id. at 397. Return to text.

[388] See Kellman et al., supra note 113, at 114 n.249 (citing Seguin v. Eide, 720 F.2d 1046, 1048 (9th Cir. 1983) (noting that although no case has explicitly awarded damages under a Bivens action for a violation of the Takings Clause of the Fifth Amendment, Seguin recognized the potential for such a suit)). Return to text.

[389] Gualtieri and Tanzman proposed the creation of a government-administered collective insurance fund so that individual plaintiffs will not have to resort to Bivens actions or suits against the United States or foreign governments. Under such a proposal, individuals and businesses potentially effected by verification inspections would pay into this fund "based on such factors as their market share, the risk of loss posed to each firm, and the likelihood of a claim being made by that firm." Id. at 114 nn.252-53.

Such a proposal, even if mandated by Congress, fails to provide an appropriate remedy to redress constitutional violations. The government-administered collective insurance fund effectively forces individuals to pay into a fund that would later be used to compensate their own damages. Forcing individuals to pay their own compensatation is hardly an appropriate remedy to justify banning injunctive relief. Acceptance of the proposed collective insurance fund would set a precedent whereby the government can violate an individual's constitutional rights without the fear of injunctive proscription. Instead, individuals will foot the bill to compensate themselves for violations of their own rights. This could have been prevented if the courts were not stripped of their power to issue injunctive relief. Also, in the case of challenge inspections, the proposal for a collective insurance fund does not assume that any business or residence may be subject to an inspection. This means that every private individual or business would be forced to buy insurance because injunctive relief is unavailable. Return to text.

[390] See id. at 114 n.252 (citing ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 8.6 (1994)). Return to text.

[391] Walter E. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 HARV. L. REV. 1532, 1563 (1972). Return to text.

[392] Sager, supra note 368, at 85. Return to text.

[393] See United States v. Klein, 80 U.S. (13 Wall.) 128, 146-47 (1872) (standing for the proposition that when an impermissible substantive end is achieved by prescribing a substantive rule under the guise of a jurisdictional regulation, Congress's attempt to withdraw jurisdiction may an unconstitutional means to an end). Return to text.

[394] 5 U.S. (1 Cranch) 137 (1803). Return to text.

[395] 80 U.S. (13 Wall.) 128 (1872). Return to text.

[396] See Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 YALE L.J. 498, 506 (1974). Return to text.

[397] Id. (quoting THE FEDERALIST NO. 78, Alexander Hamilton, at 466 (New Am. Lib. ed. 1961)). Return to text.