NEW YORK TIMES
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 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.