Federal courts frequently resist the maxim that “[i]t is emphatically the province and duty of the judicial department to say what the law is” in decisions about national security matters. This friction arises because federal courts have long been reluctant to question their coequal branches when evaluating such consequential determinations. To some extent, this makes sense. “Unlike the President and some designated Members of Congress, neither the Members of [the Supreme] Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” On the other hand, total “abdic[ation] to the caprice of executive officers” forgoes the important role checks and balances play in our constitutional scheme. Balancing these considerations is extremely difficult— especially in the employment context.
For many government roles, or positions closely regulated by the government, fitness-for-duty is a prerequisite to traditional qualifications. Fitness-for-duty determinations are made by a medical review officer, or an MRO, who relies on carefully articulated criteria established by government regulation. Therefore, an MRO is the first line of defense in vetting employees working in sensitive workplaces. Because MROs make fitness-for-duty determinations independent of qualifications, private actors that retain MROs should be afforded deference comparable to that given to executive branch decision makers when they terminate an employee following an unfit determination. This Article explores why.
MROs occupy a unique position in our governmental framework. A product of the War on Drugs and President Ronald Reagan’s mandate of a drug-free federal workplace, MROs are tasked with weeding out the use of illicit substances by federal employees and contractors. This Article examines the history of MROs, how their role has expanded, and what that means for public policy today. Part I provides the background and history of MROs, discussing their roles in federal agencies, as well as how the Supreme Court and lower courts have balanced national security considerations when considering employment litigation. Part II explains the public policy justifications for national security deference and why that deference survives the Supreme Court’s move away from the Chevron doctrine. Part III applies these principles to MROs and explains why MROs—and employers relying on them—should be afforded significant deference, but not unreviewable decision-making power when making fitness-for-duty determinations that affect employment. The Article concludes by reiterating the unique role MROs play in our national security scheme and why federal courts should protect MROs’ ability to make independent determinations when exercising their expert judgment.