- The Washington Times - Wednesday, January 19, 2011

The Supreme Court on Wednesday unanimously upheld the federal government’s ability to conduct background security checks of contracted employees, ruling against a group of NASA-contracted scientists and engineers who had challenged the agencies drug-screening process on privacy grounds.

Two justices went so far as to say that such a privacy right does not exist.

“Like many other desirable things not included in the Constitution, ‘informational privacy’ seems like a good idea — wherefore the people have enacted laws at the federal level and in the states restricting the government’s collection and use of information,” Justice Antonin Scalia wrote in a concurring opinion, echoing statements he made during October oral arguments in the case.

“A federal constitutional right to ‘informational privacy’ does not exist,” he wrote.

Justice Scalia, whose opinion was joined by Justice Clarence Thomas, wrote that it would be up to the legislature, not the courts, to create such a privacy right.

The 8-0 ruling came as no surprise as the justices appeared unmoved during oral arguments by the scientists’ claims that their rights to privacy were violated by a question on a government form asking whether they had received drug treatments.

Only eight justices participated in the case because Justice Elena Kagan, who was involved in formulating the government’s argument in the case in her previous job as the Obama administration’s solicitor general, recused herself from the hearing.

The high court’s decision overturns a ruling from the 9th U.S. Circuit Court of Appeals in California, considered the nation’s most liberal and frequently overturned courts, that sided with the employees.

The federal government appealed that ruling to the Supreme Court, arguing that background checks are necessary and widespread. The government further warned of a slippery slope in which siding with the scientists could lead to all sorts of challenges and ultimately undermine the effectiveness of important security protocols.

In the case, NASA v. Nelson, a group of 28 long-term contract employees at the Jet Propulsion Laboratory in California, sued in 2007 shortly after such background checks were implemented for contractors.

When the scientists were hired, such background checks were only conducted on civil service employees, not contractors. That changed after President George W. Bush, acting on a recommendation from the 9/11 Commission, ordered that contractors with long-term access to federal facilitates, such as the scientists working at the Jet Propulsion Laboratory, be subject to the same background screenings as civil service employees.

The case would not have any impact on private-sector background checks. The high court noted in its opinion that more than 88 percent of private employers in the U.S. utilize background screenings.

Writing for the majority, Justice Samuel A. Alito Jr. further noted that the federal government “itself has been conducting employment investigations since the earliest days of the Republic.

“As this long history suggests, the government has an interest in conducting basic employment background checks,” Justice Alito wrote. “Reasonable investigations of applicants and employees aid the government in ensuring the security of its facilities and in employing a competent, reliable workforce.”

Justice Alito wrote that the background checks help the government ensure the security of its facilities and that its employees are competent and reliable. It makes no difference whether the workers are contract employees, he wrote.

“There are no meaningful distinctions in the duties of NASA’s civil-service and contractor employees,” Justice Alito wrote, “especially at [the Jet Propulsion Laboratory], where contract employees do work that is critical to NASA’s mission and that is funded with a multibillion dollar taxpayer investment.”

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