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The June 8, 2012 decision of the U.S. Circuit Court of Appeals for the District of Columbia in National Federation of Federal Employees v. Thomas J. Vilsack deserved more news coverage than it received. At issue in the case was whether subjecting all employees at Job Corps Civilian Conservation Centers to random drug tests ordered by the U.S. Department of Agriculture’s U.S. Forest Service, without regard to their specific responsibilities, violates the Fourth Amendment guarantee against unreasonable search and seizure. If the 16 to 24 year old students enrolled at the residential centers are monitored for possible drug use and subject to random drug testing, thought the U.S. Forest Service brass, then why not extend that to all of the employees responsible for that surveillance as well? Quis custodiet ipsos custodes? Why, more custodes of course. The most recent layer of surveillance never seems sufficient in the War on Drugs.
Although the appeals court ruled in favor of the employees in this case – but for the union, their rights would have been sacrificed on the altar of administrative ambition – it is easy to imagine a victory by the government. Writing for the majority on court, Judge Judith Rogers explained that the random drug testing failed the reasonableness requirement because the government had failed to assert an immediate threat or any evidence of a specific problem necessitating “suspicion-less” search. Here is where the Fourth Amendment draws the boundary between what is reasonable and unreasonable, at least in this case.
Judges typically explain how their decisions are consistent with the great fabric of the law and Rogers obliges with a survey of case law on random drug testing. Whose privacy interests outweigh those of society and the state in enforcing drug prohibition according to the courts? Candidates for elective office and those Federal prosecutors not specifically responsible for the enforcement of narcotics laws. Whose privacy interests carry less weight? Railroad engineers, customs agents with firearms, hazardous materials inspectors, U.S. Army drug counselors, economists at the Office of Management and Budget and public school students engaged in competitive extracurricular activities. In effect, the government may require the kids in the debate club but not candidates for Congress to pee in a cup. Rarely has the law looked less like F.W. Maitland’s “seamless web” and more like a ridiculous patchwork.
However that is not what concerns Judge Brett Kavanaugh, who launches his dissent by invoking the power of public opinion in the form of periodic, seemingly regular moral panics about drugs. Although Americans have traditionally expected judges to protect the liberty of individuals from the passions of the mob, this judge is a member of the Federalist Society and therefore has more important values to protect. The Federalist Society is a neoconservative judicial lobby representing sets of powerful institutions – Big Business, Big Religion, and the Executive Branch when there is a Republican in the White House – that its members conceive as crucial for limiting the destructive effects of American individualism. For their purposes, public opinion is only a problem when it dares to challenge those institutions.
Not surprisingly then, the rest of Kavanaugh’s dissent is a policy argument for approving another layer of surveillance. He is concerned that “the employees are one of the few possible conduits for drugs to enter” the Job Corps Civilian Conservation Centers and discounts the failure of the government to offer any evidence of a drug use problem by these employees. Detecting employee drug use is difficult. “So a low detection rate withoutdrug testing certainly does not itself mean that there is little drug use among the employees.” Perhaps he is correct and most of the employees in question are secret stoners. Perhaps they conspire together to conceal their illicit drug consumption. If that is true, then the entire government workforce might be honeycombed with networks of drug users! How does Kavanaugh’s official paranoia differ from what Philip K. Dick warned about in his 1977 dystopian novel A Scanner Darkly?
The obvious problem with such reasoning is that it offers no identifiable stopping point in the march toward universal random drug testing, or any other form of surveillance. What remains of the Fourth Amendment guarantee against unreasonable search and seizure is thus likely to crumble away whenever the technology of surveillance improves and government officials are tempted to assert additional control over government employees or anyone else within reach. Police states largely manufacture the threats they use to justify denials of liberty.
Worthy of Comment
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