|
Page 2 of 2 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:
"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."
------------------------------------------------------------------------
<< Start < Prev 1 2 Next > End >>
|
