Drug Regulation (Update 1)

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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 justify the random testing of attorneys in the Justice Department's antitrust division.

Measures taken to suppress drug use have also been challenged under the Eighth Amendment's prohibition against cruel and unusual punishment. Trafficking in illicit drugs is typically punishable by lengthy periods of imprisonment, and under many statutes, severe sentences are mandatory. However, in Hutto v. Davis (1982), the Supreme Court rejected a proportionality challenge to two consecutive twenty-year sentences for possessing and distributing nine ounces of marijuana, and the Sixth Circuit Court in Young v. Miller (1989) refused to set aside a mandatory nonparolable life sentence imposed by Michigan on a female first offender who had been convicted of possessing at least 650 grams of heroin. Acknowledging that the sentence "borders on overkill," that Michigan permits parolable life sentences for armed robbery or second-degree murder, and that only one other state authorized a sentence of such severity for drug offenses, the Sixth Circuit Court nonetheless found no constitutional impediment to "Michigan's efforts to punish major drug traffickers to the fullest extent of the law, even those who are first offenders."

In 1990 the Supreme Court resolved a question discussed at length in the main volumes of the Encyclopedia—whether bona fide sacramental use of peyote is protected by the first amendment guarantee of religious liberty. In employment division, department of human resources of oregon v. smith (1990) the Court held that Oregon's criminal prohibition against possession of peyote could constitutionally be applied to sacramental use of the drug and that a state employee could therefore be fired and denied unemployment compensation for having used peyote at a religious ceremony of the Native American Church. The Court's opinion is less noteworthy for the result it reached than for its reformulation of the governing constitutional rule. As noted in the Encyclopedia, under the balancing test articulated in sherbert v. verner (1963), the issue is whether the state's interest in suppressing use of illicit drugs is sufficiently compelling to override the individual's interest in religious liberty. However, in the peyote case, the Court held that the government is not required to exempt religiously motivated actors from generally applicable and otherwise valid criminal prohibitions.

Richard J. Bonnie


Rothstein, Mark 1987 Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law. Chicago-Kent Law Review 63:683–743.

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