In response to a Fourth Amendment lawsuit, Florida Gov. Rick Scott is retreating from his demand for the urine of state employees and job applicants. The ACLU of Florida, which brought the suit, has posted a June 10 memo (PDF) in which Scott defends his executive order while dramatically scaling it back:
While the United States Supreme Court has never ruled upon the constitutionality of a drug testing protocol identical to that mandated by Executive Order 11-58, I am confident that the drug testing called for in that Order is consistent with the Constitution, with the government's rights as an employer, and with sensible practice to ensure a safe, effective, productive, and fiscally accountable workforce.....Nonetheless, while the case is pending, it does not make sense for all agencies to move forward with the logistical issues involved in instituting the new policy. Accordingly, one agency, the Department of Corrections, shall proceed with implementing Executive Order 11-58. This will permit the legal issue to be resolved. Once that occurs, all agencies can then engage in a coordinated procurement of drug-testing services.
It sounds like Scott thinks a policy limited to the Department of Corrections is more likely to be upheld than one that covers all "agencies within the purview of the Governor," as his original executive order does. But if so, that does not mean he is then free to implement the broader drug testing mandate. In any case, it is unlikely that the narrower version will be upheld, since the Supreme Court has allowed suspicionless, government-mandated drug testing only in special circumstances. In the two cases involving adults (as opposed to high school students), the Court upheld testing of railroad employees who are involved in accidents or violate safety rules and customs agents who apply for positions that require them to carry guns or interdict drugs. The public-safety justifications for those decisions suggest that a blanket rule covering, say, all railroad workers, all ICE employees, or everyone who works for a state Department of Corrections would not pass muster. In fact, a federal judge in 2004 rejected (PDF) a drug testing requirement that applied to all employees of Florida's Department of Juvenile Justice, ruling that the policy was not tailored to address "a concrete risk of real harm." Scott, who defends his executive order by saying "the private sector does this all the time," evidently was not aware of the 2004 case or of the constitutional distinction between drug testing required by the government (which is restricted by the Fourth Amendment) and drug testing required by private employers (which is not).
[via the Drug War Chronicle]