Supreme Court Upholds Background Checks For Federal Contractors

Today the Supreme Court said that the federal government is free to require background checks of all federal contractors. The checks include asking questions about past drug use and treatment, and asking references and former landlords open-ended questions about the contractor’s honesty and trustworthiness.

The background checks were challenged by 28 engineers at NASA’s Jet Propulsion Laboratory, all of whom work in non-sensitive areas and many of whom have worked there for decades. The engineers argued that they have a constitutional right of informational privacy that was invaded when the government demanded they submit to the background checks.

The background checks were implemented in 2007 in response to recommendations from the 9/11 Commission.

Justice Samuel Alito, who wrote the majority opinion for the Court, said that the questions were reasonably related to job eligibility and security concerns. He noted that similar background checks are performed by private-sector employers on a regular basis. Further, he noted that any responses would be protected from disclosure by the Privacy Act of 1974.

Justice Alito’s opinion was supported by 5 other Supreme Court Justices. Justices Antonin Scalia and Clarence Thomas each wrote separately, saying that the Constitution contained no provision protecting a right to informational privacy. Justice Scalia was particularly scathing, pointing out that the engineers never offered a citation to the Constitution supporting their position.

Justice Elena Kagan worked on the case while Solicitor General, and she took no part in the Court’s decision.

The case is NASA v. Nelson.