Admin Law Thread FACT SCENARIO

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The fundamental purpose of the Constitution’s Fourth Amendment is the protection of specific
individual interests; the right to privacy and the right to be free from unreasonable or arbitrary
governmental intrusions (searches and seizures). Const. amen. IV. As the language of this
constitutional provision is somewhat vague, the task of defining its terms and their applicability
has been a daunting endeavor which has been left to the Courts. Although a general rule exists
in the criminal context, wherein all searches are presumed to be unreasonable absent a warrant
based on probable cause, this is not the case in the administrative law context. Daniel E. Hall,
Administrative Law Bureaucracy in a Democracy 182 (6th ed., 2015). As the Courts have
concluded that given certain circumstances, exceptions to the warrant requirement may be
applicable in criminal cases (e.g. exigent circumstances, plain view, protective sweeps),
similarly, the Courts have determined that under narrowly defined circumstances, exceptions to
the warrant requirement exist in the administrative law context as well. Id. For example, one
such exception to the warrant requirement, known as the “special needs doctrine” was developed
in the Supreme Court’s review of governmental mandatory drug and alcohol testing in the
railroad industry. Skinner v Railway Labor Executive Ass’n 489 U.S. 602 (1989). In
determining the constitutionality of governmental mandatory drug and alcohol testing of
employees under the Fourth Amendment, the findings of the Court were:
1) Governmental mandatory drug testing is a search for Fourth Amendment purposes (an
invasion of an individual’s privacy). Id.
2) Governmental mandatory drug testing is not violative of Fourth Amendment protections in the
administrative law context and its practice is not contingent upon the requirement of a warrant
based on probable cause, as the government’s objective is administrative rather criminal (its
purpose was to detect code violations in the interest of safety, not to initiate criminal
prosecution). Id.
3) The government regulation mandating the testing was reasonable in its testing methodology
(minimally intrusive) and was narrowly construed as to limit its applicability (e.g. to whom,
where, when and how the testing was to be conducted). Id.
4) The reasonableness requirement of the Fourth Amendment is met in regard to regulations
which mandate drug and alcohol testing. The privacy interests of personnel who work in closely
regulated industries (e.g. extremely hazardous industries subject to high levels of regulation such
as the railroad industry, nuclear energy plants) is greatly diminished. In reaching this
reasonableness requirement, the privacy interests of the individual are balanced against the
compelling interest of the government (drug testing in the interest of safety). The government’s
compelling interest outweighs the individual’s expectation of privacy in the intrusion (the drug
test). Id.
5. An exception to the warrant requirement is extended to mandatory drug and alcohol testing in
administrative searches due to a “special need” that exceeds the demands of normal law
enforcement. Id.
Given the binding case law mentioned above and its applicability to the fact pattern of this
assignment, Homer would be compelled to submit to mandatory drug and alcohol testing if he
wished to be employed in an industry highly regulated by the government (nuclear energy). As
the fact pattern notes that Homer has been offered employment at the nuclear plant, it can be
assumed that he has either already been tested (with favorable results) or he has given his
consent to be tested before employment commences, In either case, his employment is
contingent upon the outcome of the test results. Most importantly, Homer must recognize that
mandatory alcohol and drug testing in the highly regulated industry of nuclear energy has been
deemed constitutional under the Fourth Amendment, via extensive case law. Therefore, as the
Courts have recognized the legality of the government’s authority to mandate drug and alcohol
testing in the context of nuclear energy employment (as well as its reasonableness), Homer, if he
wishes to obtain or maintain employment, he must comply. Furthermore, Homer is to expect
diminished privacy rights in regard to his employer’s practice of drug and alcohol testing. The
Courts have concluded that the privacy interest affected by the governmental intrusion is
minimal and is outweighed by the compelling governmental interest of safety. As a consequence
of working in the nuclear energy industry, he must either accept or deny mandatory drug and
alcohol testing as a condition of his employment.
Pursuant to President Reagan’s executive order to ensure a “Drug-free Federal Workplace”,
specific directives were given to all federal agencies. Agencies were to develop and enforce
standards and policies which reflect the government’s requirements regarding alcohol and drug
use by federal employees. Executive Order No. 12564, 51 Fed. Reg. 32889 (Sept. 15, 1986). In
accomplishing these tasks, agency drug testing policies were set forth in what is known as
Fitness for Duty standards. Employee non-compliance in regard to these standards could
potentially result in the termination of his/her employment. If Homer refuses to take the
mandated tests, as required in this highly regulated industry, the consequences are severe and
immediate.
A refusal will lead to the employee’s removal from any safety sensitive position, require
that the employee receive substance abuse education/rehabilitation by a qualified
substance abuse professional and subject the employee to a return to duty process which
includes “observed drug test”. Additionally, access to restricted areas may be indefinitely
revoked. According to the agency’s definition of refusal to test, this includes the
following infractions: Interference with and/or refusal to participate in the collection or
testing process, failure to appear for testing, failure to provide a specimen, failure to take
an additional drug test when directed, and failure to undergo medical evaluations as
directed by the Medical Review Officer.
Ellen Hoelscher, When Workers Say No to Drug Testing: Issues in the Public and Private
Sectors, 38 Wash. U. J. Urb. & Contemp. L. 37 (1990).
https://openscholarship.wustl.edu/law_urbanlaw/vol38/iss1/15
The advice I would give Homer in regard to his perception that the government has encroached
on his constitutional protections here in this scenario, is that he should consider God’s
expectations of Christians in their relationship to the authority of civil government. “Be subject
for the Lord’s sake to every human institution, whether it be to the emperor as supreme, or to
governors as sent by him to punish those who do evil and to praise those who do good.” 1 Peter
2:11-17 (NIV). The Scriptures state that civil government is in place for a purpose (to punish
evil and praise those who do good) and we are to submit to governing authorities, as this
institution is ordained by God. “Let everyone be subject to the governing authorities, for there is
no authority except that which God has established. The authorities that exist have been
established by God.” Romans 13:1 (NIV). If Christians resist the authority of institutions that
God has established in society for our own well being, we ultimately deny the sovereignty of
God. Although our true citizenship is in heaven and we are not of this world, this does not
relinquish our obligation to respect, submit and obey the laws established by government.
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