.gif "IP Gear")
- Joined
- May 16, 2003
- Messages
- 1,562
posted this on mayhem great read and oh so true!!!
gooey
NEW YORK TIMES
Steroid Tests Ignore the 4th Amendment
June 2, 2005
by: Murray Chass
CONGRESS might be too busy to pause in its rush to rid the country of steroids, but perhaps its members should take a remedial course in the United States Constitution. Specifically, John McCain, Tom Davis, Cliff Stearns and their colleagues should read and study the Fourth Amendment.
It doesn't take much time to read it:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The senator and the representatives have seemingly ignored the amendment in their haste to punish Major League Baseball and other professional leagues for not imposing egregious penalties on players for testing positive for performance-enhancing drugs.
Senator McCain, Republican of Arizona, and Representatives Davis, Republican of Virginia, and Stearns, Republican of Florida, have introduced bills that would require sports leagues to test their players and discipline them under stringent federal standards. The McCain-Davis bill, the Clean Sports Act of 2005, calls for a two-year suspension for a first positive test and a lifetime ban for a second.
Davis heads the House Government Reform Committee, and the committee's chief counsel, Keith Ausbrook, said recently that the committee had researched and considered the Fourth Amendment implications and was confident the act would not violate the amendment.
Marvin Miller disagrees. He isn't a lawyer, but as the former executive director of the baseball players association, he spent his entire adult life in the union business and knows something about athletes' rights.
Under the proposed legislation, Miller noted, players have to be tested whether or not they are suspected of using performance-enhancing drugs.
"An employer can do this, and a union can agree to do this, as part of collective bargaining," Miller said, pointing out the difference between private industry and government when it comes to drug testing. "But Congress can't. No government agency can conduct a search without first going to court and swearing before a judge that there's a probable cause to believe that player 'X' is guilty. Until the judge gives that order, the person can't be searched."
Baseball players are not airline pilots or railroad engineers or cross-country truck drivers. Those employees can be tested for drugs in the interest of public safety, as exceptions to Fourth Amendment protection.
United States Olympic athletes are tested without probable cause, but they agree to be tested year-round through membership in the governing bodies of their various sports.
Ausbrook said the committee believed the bill would be found constitutional because "there is a compelling government interest in the problem" of steroid use by professional athletes and school-age athletes.
"Under the Fourth Amendment," he said, "if it's the only way to deter the use, it might not have to be so compelling."
He added, "We think the record shows there's compelling interest in doing it to protect the integrity of the game and protect the health of players and children who look up to them."
But Congress's desire to have professional athletes serve as role models might not be deemed sufficient grounds to strip athletes of their constitutional protection.
A 1997 Supreme Court case, Chandler v. Miller, found that a Georgia law requiring candidates for state office to submit to drug testing was unconstitutional. The court ruled, 8-1, that the candidates would most likely not be performing the kind of high-risk duties, nor was it establishing a good enough reason, to justify the invasion of privacy.
"You can't legislate testing that would say everybody would have to be tested without any show of probable cause," Miller said. "You can try it, but it will be thrown out by the courts. They will have to turn it over to the F.B.I. and have them investigate, then go to a judge with the evidence."
What sort of evidence might investigators come up with, Miller wondered. "This player has bigger muscles than before and he has hit more home runs than before?" he said.
Still, the courts might not invalidate the law so quickly, said Akhil Amar, a professor at Yale Law School. Acknowledging Chandler v. Miller, Amar, who has written on the Fourth Amendment, said that if the Clean Sports Act is passed and tested in court and ultimately reaches the Supreme Court, the justices would most likely base their decision on a set of criteria:
* "Will the results be shared with law enforcement?"
* "How intrusive is collection of the samples?"
* "Is there a special reason for targeting this group?"
* "Does this group arguably have a lower expectation of privacy because of what they do? Athletes are already subjected to physical regimens."
The Clean Sports Act, which McCain will spearhead in the Senate and Davis will guide in the House, includes what it calls a "fairness to players" provision.
"The legislation," the sponsors say, "guarantees that players who test positive receive their due-process rights, including the right to notice, a fair, timely and expedited hearing, the right to be represented by counsel, and the right to appeal."
So Congress is willing to protect a player's rights, after he is tested. In case the legislators have really lost touch with the Constitution, protection against illegal search and seizure is in the same document as due process.
But even before the bill gets to the Fourth Amendment, it could encounter trouble. Susan Herman, a professor at Brooklyn Law School, said the Supreme Court in recent years had rejected laws that members of Congress had passed "just because they think it's a good idea."
"National health," she said, "is not a constitutionally authorized basis for Congressional action. Congress has only limited enumerated powers under the Constitution, and public health is not one of them."
Maybe that's why Congress won't pass a bill banning cigarettes, which the surgeon general of the Public Health Service says kill an estimated 440,000 people a year. Steroids don't kill that many. But Congress continues to give billions of dollars in subsidies to tobacco farmers.
The Clean Sports Act's sponsors could try to avoid Fourth Amendment pitfalls by arguing that Congress wouldn't be doing the testing, that the private-industry leagues would. But who is that holding the gun to the back of Bud Selig, the baseball commissioner, to make sure baseball does the required testing?
The bill stipulates what the testing should be and provides that failure to comply will cost a maximum $1 million fine for each violation.
Miller finds it astounding that Congress could enact a law that would be enforced by other entities.
"They are ignoring the fact that federal statutes are administered and enforced by the U.S. Justice Department, by U.S. attorneys throughout the country, by the F.B.I.," Miller said. "There is absolutely no basis for saying you, private employer and union, have to enforce the law we have written. I know of no federal statute in the history of the United States that does this."
Attached Thumbnails
gooey
NEW YORK TIMES
Steroid Tests Ignore the 4th Amendment
June 2, 2005
by: Murray Chass
CONGRESS might be too busy to pause in its rush to rid the country of steroids, but perhaps its members should take a remedial course in the United States Constitution. Specifically, John McCain, Tom Davis, Cliff Stearns and their colleagues should read and study the Fourth Amendment.
It doesn't take much time to read it:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The senator and the representatives have seemingly ignored the amendment in their haste to punish Major League Baseball and other professional leagues for not imposing egregious penalties on players for testing positive for performance-enhancing drugs.
Senator McCain, Republican of Arizona, and Representatives Davis, Republican of Virginia, and Stearns, Republican of Florida, have introduced bills that would require sports leagues to test their players and discipline them under stringent federal standards. The McCain-Davis bill, the Clean Sports Act of 2005, calls for a two-year suspension for a first positive test and a lifetime ban for a second.
Davis heads the House Government Reform Committee, and the committee's chief counsel, Keith Ausbrook, said recently that the committee had researched and considered the Fourth Amendment implications and was confident the act would not violate the amendment.
Marvin Miller disagrees. He isn't a lawyer, but as the former executive director of the baseball players association, he spent his entire adult life in the union business and knows something about athletes' rights.
Under the proposed legislation, Miller noted, players have to be tested whether or not they are suspected of using performance-enhancing drugs.
"An employer can do this, and a union can agree to do this, as part of collective bargaining," Miller said, pointing out the difference between private industry and government when it comes to drug testing. "But Congress can't. No government agency can conduct a search without first going to court and swearing before a judge that there's a probable cause to believe that player 'X' is guilty. Until the judge gives that order, the person can't be searched."
Baseball players are not airline pilots or railroad engineers or cross-country truck drivers. Those employees can be tested for drugs in the interest of public safety, as exceptions to Fourth Amendment protection.
United States Olympic athletes are tested without probable cause, but they agree to be tested year-round through membership in the governing bodies of their various sports.
Ausbrook said the committee believed the bill would be found constitutional because "there is a compelling government interest in the problem" of steroid use by professional athletes and school-age athletes.
"Under the Fourth Amendment," he said, "if it's the only way to deter the use, it might not have to be so compelling."
He added, "We think the record shows there's compelling interest in doing it to protect the integrity of the game and protect the health of players and children who look up to them."
But Congress's desire to have professional athletes serve as role models might not be deemed sufficient grounds to strip athletes of their constitutional protection.
A 1997 Supreme Court case, Chandler v. Miller, found that a Georgia law requiring candidates for state office to submit to drug testing was unconstitutional. The court ruled, 8-1, that the candidates would most likely not be performing the kind of high-risk duties, nor was it establishing a good enough reason, to justify the invasion of privacy.
"You can't legislate testing that would say everybody would have to be tested without any show of probable cause," Miller said. "You can try it, but it will be thrown out by the courts. They will have to turn it over to the F.B.I. and have them investigate, then go to a judge with the evidence."
What sort of evidence might investigators come up with, Miller wondered. "This player has bigger muscles than before and he has hit more home runs than before?" he said.
Still, the courts might not invalidate the law so quickly, said Akhil Amar, a professor at Yale Law School. Acknowledging Chandler v. Miller, Amar, who has written on the Fourth Amendment, said that if the Clean Sports Act is passed and tested in court and ultimately reaches the Supreme Court, the justices would most likely base their decision on a set of criteria:
* "Will the results be shared with law enforcement?"
* "How intrusive is collection of the samples?"
* "Is there a special reason for targeting this group?"
* "Does this group arguably have a lower expectation of privacy because of what they do? Athletes are already subjected to physical regimens."
The Clean Sports Act, which McCain will spearhead in the Senate and Davis will guide in the House, includes what it calls a "fairness to players" provision.
"The legislation," the sponsors say, "guarantees that players who test positive receive their due-process rights, including the right to notice, a fair, timely and expedited hearing, the right to be represented by counsel, and the right to appeal."
So Congress is willing to protect a player's rights, after he is tested. In case the legislators have really lost touch with the Constitution, protection against illegal search and seizure is in the same document as due process.
But even before the bill gets to the Fourth Amendment, it could encounter trouble. Susan Herman, a professor at Brooklyn Law School, said the Supreme Court in recent years had rejected laws that members of Congress had passed "just because they think it's a good idea."
"National health," she said, "is not a constitutionally authorized basis for Congressional action. Congress has only limited enumerated powers under the Constitution, and public health is not one of them."
Maybe that's why Congress won't pass a bill banning cigarettes, which the surgeon general of the Public Health Service says kill an estimated 440,000 people a year. Steroids don't kill that many. But Congress continues to give billions of dollars in subsidies to tobacco farmers.
The Clean Sports Act's sponsors could try to avoid Fourth Amendment pitfalls by arguing that Congress wouldn't be doing the testing, that the private-industry leagues would. But who is that holding the gun to the back of Bud Selig, the baseball commissioner, to make sure baseball does the required testing?
The bill stipulates what the testing should be and provides that failure to comply will cost a maximum $1 million fine for each violation.
Miller finds it astounding that Congress could enact a law that would be enforced by other entities.
"They are ignoring the fact that federal statutes are administered and enforced by the U.S. Justice Department, by U.S. attorneys throughout the country, by the F.B.I.," Miller said. "There is absolutely no basis for saying you, private employer and union, have to enforce the law we have written. I know of no federal statute in the history of the United States that does this."
Attached Thumbnails
