Topher Morrison
PurpleSerf.com
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Where do we draw the line on mandatory drug testing?
Photo: EurWeb.com |
The average American is familiar with undergoing the occasional drug test prior to employment in the private sector or after a workplace accident, but should Americans have to submit a drug test assuming public office? We think so...
It has long been established that to drug test someone is a "search" and is therefore subject to the restrictions established under the Fourth Amendment. Whether or not our elected officials should all be subjected to drug screening prior to assuming office has been settled for some time now unfortunately, at least when it comes to the US Supreme Court.
In its decision in Chandler v. Miller (1997) the Court rejected (8-1) a Georgia law requiring all candidates for public office to undergo drug testing. The majority opinion, delivered by Justice Ginsburg, claimed that the law "does not fit within the closely guarded category of constitutionally permissible suspicionless searches." However, the majority cited lack of "special needs" articulated under the Georgia Law, faulting the legislators not necessarily the idea.
Previously, "special needs" allowed certain abridgment of the Fourth Amendment in situations outside of regular law enforcement, situations which are familiar to many American workers. For instance, the Court upheld drug testing of railway workers involved in accidents and safety violations in Skinner v. Railway Labor Exec. Assn. (1989) and upheld screening of Border Patrol agents responsible for interdicting drugs and national security in Treasury Employees v. Van Raab (1989). The reasons for both are hopefully obvious.
Advocating the "special need", to prevent minors from using drugs, the Court condoned testing those under the age of 18 before sports and other extracurricular activities. With all of these cases it was often emphasized that the state's "special need" must be balanced with the privacy of the individual, in other words, an expectation of privacy was an important part of the Court's calculus.
With regard to sports the Court declared that students did not have this expectation due to physical exams and an "element of communal undress in inherent in athletic participation." When it comes to our public servants what exactly do you call an election campaign or holding public office for that matter? These are not exactly havens for the political prude!
To be sure, offering his dissenting opinion in Miller Justice Rehnquist concluded that the Court essentially claimed that the "candidates for public office [being] subject to relentless scrutiny by their peers, the
public and the press" are examined sufficiently by these interested
groups. Rehnquist evidently did not agree:
“...this is a strange holding, indeed.
One might just as easily say that the railroad employees in Skinner, or
the Customs officials in Von Raab, would be subjected to the same sort
of scrutiny from their fellow employees and their supervisors. But the clear
teaching of those cases is that the government is not required to settle for
that sort of a vague and uncanalized scrutiny; if in fact preventing persons
who use illegal drugs from concealing that fact from the public is a legitimate
government interest, these cases indicate that the government may require a
drug test.”
It isn't as if the candidate were to perform a urine test publicly as if the electorate were his/her parole officer. Drug tests can be performed at random and with a private or possibly an appointed public physician charged with reporting the results, not to mention the utilizing the rest of the testing spectrum which include hair follicle or other less intrusive or potentially embarrassing (gasp!) analyses.
While Justice Ginsberg and others in Miller may have believed that "... [public] officials typically do not perform high risk, safety sensitive tasks..." and while she is correct politicians might not be using heavy machinery or interdicting drugs per se, state mechanisms are wildly more powerful and have undoubtedly longer lasting ramifications than any backhoe!
Our politicians, especially in the US Senate, are charged with a myriad of items concerning national security, diplomacy, and confirming judges (hmm). Government is entitled to guard against the possibility they may be compromised either by drugs themselves or corruption. According to Rehnquist:
“The risks of bribery and blackmail for
high level officials of state government using illegal drugs would seem to be
at least as significant as those for off duty Customs officials.
…we did consider [in Van Raab] the weight of the proffered governmental interest:"
'We readily agree that the Government has
a compelling interest in protecting truly sensitive information from those who,
`under compulsion of circumstances or for other reasons, . . . might compromise
[such] information.' Department of Navy v. Egan (1988). . . . We
also agree that employees who seek promotions to positions where they would
handle sensitive information can be required to submit to a urine test under
the Service's screening program, especially if the positions covered under this
category require background investigations, medical examinations, or other
intrusions that may be expected to diminish their expectations of privacy in
respect of a urinalysis test.'
There is something to say that our leaders should be subjected to the norms as anyone else. Evidently many people are subjected to a drug screen before, during and after work, shouldn't our current and prospective leaders be expected and expect to do the same? We ask that politicians submit their financial stream in order that we may scrutinize their decision making, might we equally expect to inspect their blood stream for the same reasons? It's not like we're knocking on their door to preside over us!
In their transition from private to public life, the grey area if you will when becoming a public
servant, politicians by definition submit themselves to private society for permission to function within the public state, therefore when Justice Ginsberg in Miller claims:
"The
need revealed [to prevent politicians from using drugs] is symbolic, not ‘special.’
The Fourth Amendment shields
society from state action that diminishes personal privacy for a symbol's
sake."
she is wrong to
assume that the politician is any longer apart of what is understood to be private
society of which the state was erected and is charged to protect.
