Drug Regulation (Update 2)

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Congress and the states have broad authority to regulate the sale, possession, and manufacture of narcotic drugs. The states regulate under their inherent police power to act for the health, safety, and welfare of the public. Congress's power arises from its constitutional grants of power to tax and to regulate foreign commerce and interstate commerce. To date, the expansive powers of Congress have been unaffected by a recent Supreme Court decision resurrecting a federalism -based limitation on the reach of the commerce clause. In united states v. lÓpez (1995), the Court held that a federal statute prohibiting gun possession near schools exceeded the authority of Congress. Such activity, the Court said, was not economic in nature and, even if engaged in on a large scale, did not substantially affect interstate commerce. This ruling produced a flurry of challenges to federal statues, including major drug regulation statutes such as the Comprehensive Drug Abuse Prevention and Control Act of 1970. Although none of these cases has yet reached the Court, lower courts have uniformly accepted Congress's detailed findings that intrastate manufacture, distribution, and possession of controlled substances, as a class of activities, have a substantial and direct effect on interstate drug trafficking and that effective control of interstate trafficking requires regulation of both intrastate and interstate activities. Congress may regulate all such activities and may impose sanctions without showing in each prosecution that a particular narcotics transaction affected interstate commerce.

Despite the broad scope of their powers, federal and state governments must still comply with the individual liberty protections of the bill of rights. Over the past decade strong, even harsh, antidrug laws have provoked numerous constitutional challenges. But successful challenges have been few. Courts have, for example, rejected claims that lengthy, mandatory sentences for drug offenses constitutes cruel and unusual punishment. Courts have also given federal and state governments a relatively free hand to employ two of their most controversial antidrug strategies: suspicionless drug testing and forfeitures of property connected to drug activity.

When the government conducts drug testing of employees, students, or persons under government supervision or when it requires private industry such as railroads or airlines to conduct such testing, the chief constitutional check is the fourth amendment prohibition on unreasonable search and seizures. Courts agree that the collection and analysis of a person's blood, urine, or hair intrudes on recognized expectations of privacy and amounts to a search. The essential question is whether such testing is reasonable.

If the government conducts a search or seizure as part of a criminal investigation, reasonableness requires probable cause or reasonable suspicion that the individual has engaged in wrongdoing. But drug testing programs subject persons such as police officers, airline pilots, or job applicants to testing solely because they are within the targeted group. To evaluate these suspicionless drug testing programs, the Court has developed the "special needs" doctrine. The Court permits abandonment of individualized suspicion if a search or seizure is prompted by a purpose, or special need, other than criminal law enforcement. To determine whether such suspicionless schemes are reasonable, the Court asks whether, on balance, the need to search outweighs the intrusion the search entails. This free-form, case-by-case balancing test has resulted in Court approval of most drug testing programs.

First, the courts almost always characterize the intrusion of drug testing as "minimal." In the absence of strip searches or other similarly intrusive methods, they view the taking of blood or the collection of urine or hair as a common occurrence, usually no more intrusive than a physical exam in a doctor's office or the loss of privacy associated with using a public restroom. And, usually, testing data are disclosed only to a limited number of persons and reveal only illicit drug use and not other information, such as pregnancy or diabetes.

Second, the government's need to conduct drug tests is routinely found to outweigh the minimal intrusion that they involve. The Court has upheld mass, suspicionless drug testing of high school athletes to respond to the "crisis" of drug use and insubordination in the schools. It has permitted suspicionless testing of U.S. Customs Service employees to deter drug use among agents whose job was drug interdiction, or who carried guns, or handled classified information. But the government's justification for drug testing can sometimes be too flimsy. In chandler v. miller (1997), the Court struck down a Georgia law that required all candidates for public office to undergo drug testing. Georgia failed to show there was any drug use problem among candidates or any danger to public safety. It also failed to show why ordinary public scrutiny of such officials was inadequate to deter or detect drug use. After Chandler, government drug testing remains relatively easy to justify, but some actual drug use problem or concern for public safety must be demonstrated.

One of the government's most popular (and most profitable) antidrug devices is civil forfeiture of assets. Typical civil forfeiture laws permit the government, on a bare bones showing of probable cause, to seize any property thought to be proceeds of a crime or suspected of being used or intended for use in criminal activity. The prime targets for forfeiture are assets connected to drug trafficking and possession. The government has seized cars, boats, planes, farms, houses, cash, and even livestock connected to drug manufacture and possession.

In civil forfeitures, the property is thought to be the guilty or offending party and seizure is permitted whether or not the owner is charged with or convicted of a crime. The government does not have to honor rights associated with criminal proceedings, such as proof beyond a reasonable doubt or trial by jury. Indeed, the owner must prove the property's innocence or lose it entirely. Civil forfeitures are subject to some constitutional boundaries. procedural due process requires that property owners have prior notice and a hearing before the government seizes land or other immovable property. Seizure of property only incidentally or haphazardly associated with criminal activity can be equivalent to a fine and limited by the excessive fines clause. However, although individual Justices have acknowledged the harshness of the civil forfeiture remedy, the Court has taken refuge in the long historical acceptance of civil forfeitures and has rejected any fundamental assault on its scope. Thus it declined to view forfeiture as a punishment subject to the double jeopardy clause. It also rejected the idea that due process prevents the seizure of property from innocent owners; that is, owners who were unaware that others used their property, such as a car, to engage in drug trafficking.

Mary M. Cheh


Cheh, Mary M. 1994 Can Something This Easy, Quick, and Profitable Also Be Fair? Runaway Civil Forfeiture Stumbles On the Constitution. New York Law School Law Review 39: 1–48.

La Fave, Wayne 1996 Search and Seizure: A Treatise on the Fourth Amendment (with 1998 Supplement). St. Paul, Minn.: West Publishing Co.

Leading Case 1997 Suspicionless Drug Testing. Harvard Law Review 111:289–299.

Note 1997 Drug Testing and the Fourth Amendment: What Happened to Individualized Suspicion? Drake Law Review 46:149–172.

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