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Sunday, January 23, 2011

NASA v. Nelson: OK, I'll Bite.

The blogosphere is not exactly abuzz in the wake of the Supreme Court's unanimous decision last week in NASA v. Nelson, holding that the questions posed to federal contractors concerning (inter alia) past treatment or counseling for drug abuse do not violate those contract employees' informational privacy rights.

Now, I am probably no more surprised by the result in this case than those resoundingly silent commentators out there. But still, not a single dissenter? Not a word in favor of the challengers' arguments? Though Justice Alito's opinion for the Court was thankfully narrow enough to avoid saying that there is no such thing as a constitutional right to informational privacy (instead, the Court assumed it without deciding), Justice Alito also apparently did not think enough of the plaintiffs' claims to spend much time rationalizing the decision that those claims were meritless. And Justice Scalia's concurrence, characterizing those claims as "[r]idiculous," was even less charitable.

On balance, I'd have to agree that, for the most part, the outcome makes perfect sense - especially with respect to the other challenged questions, such as whether an applicant has ever used illegal drugs, and certain open-ended questions for the applicant' references. Moreover, certain moves made by the Court - such as emphasizing that the Government is acting here in a "managerial" (quasi-private, if you will) capacity, and suggesting that the facial challenge posture of the case gives good reason for ignoring the plaintiffs' arguments about future harm that may arise from the government's policy - will come as no surprise to anyone who has been following the Roberts Court's methodology of late. But really, what possible interest could the government have in knowing not only whether a potential contractor has used illegal drugs, but whether he has sought counseling or treatment? I, like the Justices, am not exactly a member of the Facebook and Twitter generation, and this question has always struck me as rather invasive, if not, well, downright icky. 

The Government's asserted rationale for the mandatory question is that they use it as a mitigating factor. Really? Even assuming the fact drug treatment or counseling has ever gotten someone a job who would have otherwise been rejected, I didn't think the Court was inclined to hold these days that a benign motive justified otherwise unconstitutional behavior. At most, this is the sort of rationale that could justify an optional, not mandatory, disclosure of drug treatment or counseling.

So, there. I've made the case. Would anyone like to present a more convincing argument than Justice Alito has made?

Posted by Jessie Hill on January 23, 2011 at 10:05 PM | Permalink


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It seems to me that going to counseling for drug use implies a larger drug problem than merely dabbling. It's hard to see how that would be a mitigating factor. It's better than still being on drugs, of course, but it also means that the drug use was too serious a problem for the person to quit without help.

Posted by: Michael | Jan 30, 2011 4:09:49 PM

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