the Senate has been digging into the legal quagmire of drug testing the unemployed. I would like to begin by saying that no matter where a Senator comes down on the issue of drug testing, my view is that this measure before us is simply bizarre. If, like me, you believe that drug testing is ineffective and mean- spirited, you ought to oppose this measure because it simply vilifies unemployed workers who are actually less likely to use drugs than the general population. For those Senators who support drug testing, this measure blows up what has been a bipartisan compromise and a Labor Department rule allowing select testing to go forward. The result of this measure passing would actually be to block testing from going forward. The fact is that the courts have ruled that suspicionless drug testing violates the Fourth Amendment's protection against unreasonable searches and seizures. That is why there is now actually a rule that is narrow. We have the courts expressing skepticism about this, and there is actually a rule that is narrow so that, in effect, States that are doing this drug testing have what amounts to guardrails to avoid running afoul of the Constitution. If you pass this measure, you will throw out the guardrails, opening up, in my view, the possibility of yet more litigation on Fourth Amendment grounds.…
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