- The Washington Times - Tuesday, October 5, 2010

The Supreme Court on Tuesday appeared unwilling to undercut the government’s ability to conduct background security checks of its employees and contractors.

After nearly an hour of debate, the justices didn’t seem particularly swayed by a group of NASA scientists and engineers who argued that their rights to privacy were violated by a question on a government form asking whether they had received drug treatment. In fact, one justice asserted that the Constitution contains no such right to privacy.

“I think it’s a very nice thing that the government shouldn’t ask intrusive questions,” Justice Antonin Scalia said. “I also think that it’s a nice thing that the government should pay a living wage to its employees, but I don’t feel authorized to go around saying how much the government should pay each of its employees because there is nothing in the Constitution about that, and the question is left to Congress.

“What do you rely on in the Constitution that enables me to decide how much intrusiveness is too much, rather than leaving that to Congress?” he asked.

In the case, NASA v. Nelson, a group of 28 long-term contract employees at the Jet Propulsion Laboratory in California have sued to stop the space agency from asking whether they received drug treatment within the past year. Their attorneys argued that asking the question violated rights of privacy for their clients, whom NASA had already deemed to be low security risks.

The case would not have any impact on private-sector background checks.

Newly appointed Justice Elena Kagan, who was involved in formulating the government’s argument in the case as the Obama administration’s solicitor general, recused herself from the hearing.

The 9th U.S. Circuit Court of Appeals, considered the nation’s most liberal and frequently overturned courts, sided with the employees. The federal government appealed to the Supreme Court and, during oral arguments Tuesday, most justices appeared inclined to side with the government.

The government’s attorney, acting Solicitor General Neal Katyal, said government background checks are necessary and widespread. He warned of a slippery slope in which siding with the employees in the case at hand could lead to all sorts of challenges and ultimately undermine the effectiveness of these important security protocols.

Justice Sonia Sotomayor pressed Mr. Katyal on the issue of whether there are any limits to what the government could ask prospective employees.

Mr. Katyal initially resisted, saying the case involving the NASA contractors could be decided without the high court considering Justice Sotomayor’s question.

But she persisted and questioned whether, hypothetically, the government could ask someone for genetic information so that it could eliminate potential employees who are predisposed to cancer.

“What are the limits on the government, if any?” she asked. “Are you taking the position that as an employer, there are absolutely none, or are you taking the position that there are some, and what would they be?”

Mr. Katyal said “there is no decision thus far that has recognized any constitutional limit on the government’s collection of information, so long as there are accompanying safeguards against dissemination.” He also said he could envision legal limits restricting the government from asking certain questions, such as someone’s eating habits.

Justice Scalia agreed but stressed that such limits must come from lawmakers, not judges.

“We do have a legislature, don’t we, that could place some limits on what the government asks employees or anybody else?” Justice Scalia said.

“Absolutely,” Mr. Katyal replied.

“It’s the same legislature that prohibited the government from disclosing a lot of information, isn’t it?” he said. “And it’s possible that that’s the protection that the [Constitution] framers envisioned, rather than having courts ride herd on government inquiries.”

Mr. Katyal also noted that the forms that included the question about drug treatment have been given to 74,000 federal contractors, including those involved in the case, during the past five years. He said 128 contractors did not pass the background check, but none of those was for disclosing drug treatment.

The form also questions whether the applicant has used drugs, but Mr. Katyal said the question about drug treatment is for the employee’s benefit as a way to mitigate a positive answer to the drug question.

Chief Justice John G. Roberts Jr. was skeptical.

“Well, whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” Chief Justice Roberts said, drawing laughter from the audience.

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