Drug Regulation (Update 1)

• Author: Richard J. Bonnie
• Pages: 822-823

Page 822

The breadth of congressional power under the COMMERCE CLAUSE to regulate the manufacture, distribution, and possession of psychoactive drugs remains unquestioned. In recent years, however, strong measures taken by the federal and state governments to prevent and punish drug offenses have raised constitutional objections grounded in the BILLOFRIGHTS. The most controversial of these measures has been the use of chemical testing to detect the presence of illicit drugs in a person's urine or other body fluids.

Beginning in the mid-1980s, many public and private employers began to require urine testing as a condition of employment. The FOURTH AMENDMENT ban against UNREASONABLE SEARCHES is implicated when a governmental agency requires its employees or applicants for employment to submit to urine testing or when the government requires private employers (such as railroads) to test their employees. The collection and subsequent analysis of a person's urine is clearly a "search" for Fourth Amendment purposes, so the constitutional controversy has focused on when such testing is "reasonable" in light of the government's objectives and the employees' interests in personal privacy. It is generally agreed that urine testing is "reasonable," even in the absence of a SEARCH WARRANT, if it is based on PROBABLE CAUSE, or "individualized suspicion," that a particular employee has used illicit drugs. The controversial question is whether, and under what circumstances, employees can be required to submit to urine testing as part of a random or universal screening program.

In 1989 the Supreme Court upheld two screening programs, rejecting the argument that urine testing is per se unreasonable in the absence of individualized suspicion. However, in upholding testing programs for U.S. Customs agents and for railroad employees, the Court closely scrutinized the governmental objectives and the testing protocols. For example, in NATIONAL TREASURY EMPLOYEES UNION V. VON RAAB (1989), the Court held that the Customs Service's interests in the integrity and safety of its work force and in the protection of sensitive information justified the urine testing of all employees applying for or holding positions involving interdiction of illicit drugs or requiring the carrying of firearms. Taking its cue from Von Raab, the District of Columbia Court of Appeals subsequently held in Harmon v. Thornburgh (1989) that these same interests did not...