Public Health and the Law
Occupational Safety and Health: Unconstitutional Searches WILLIAM J. CURRAN, JD, SMHYG. "The very basis of the 1970 OSHA act is under attack-and it might not survive." Congressional Record, January 6, 1977, p E96.
The Occupational Safety and Health Administration is called an aggressive regulatory agency by most business people, despite the attacks on it by some environmental and consumer groups. At the core of the information-gathering system of OSHA is its statutory authorization for factory and business premise inspection without a search warrant and without any complaint from the public or from employees. Small businesses in particular have chafed for years at the inspection methods of OSHA, but most have complied. The public, of course, has often benefited from the improvements in safety and health protection which have resulted from these inspections. The courts of the United States have now begun to "come down hard" upon the broad exercise of regulatory power by OSHA. The major landmark case in the field was very recently decided by the U.S. District Court in Idaho. In Barlow's Inc. v. Usery,I that court held that the warrantless search power of OSHA is unconstitutional as a violation of the Fourth Amendment prohibition of unreasonable search and seizure. Hearty and faithful readers of this column will recall earlier discussions of health-inspection cases. The most important Supreme Court decisions, Camara,2 and See,3 were the precedent holdings supporting the Barlow case. However, the significance of these cases has been undermined in recent years and many constitutional authorities have felt that Camara and See were due to be overruled or largely ignored. Now the Barlow case has breathed new life into these cases-as it has struck a severe blow against OSHA and all its works. A story lies behind the Idaho decision. Barlow's Inc., a plumbing and heating supply and installation shop, is owned Dr. Curran is Professor of Legal Medicine, Harvard University School of Public Health, 677 Huntington Avenue, Boston, MA 02115. 684
and operated by Ferrol Barlow, a very independent small businessman. In his office, Mr. Barlow has a copy of the Bill of Rights of the U.S. Constitution prominently displayed on the wall behind his desk. He is an active member of the John Birch Society, a conservative political group. In September of 1975, an OSHA inspector appeared at his shop which employs 35 persons. He requested entry for a routine inspection. Mr. Barlow refused. The inspector obtained a "show-cause order" from the court and served it on Mr. Barlow who still refused entry without a search warrant. Mr. Barlow brought a counter suit against the government to enjoin the OSHA inspection. A three-judge bench decided the case in Mr. Barlow's favor. The independent fighter for civil rights had won the first round. OSHA officials were very upset about the decision. They immediately sought an order in the Court to limit the effect of the decision to Mr. Barlow's own shop while appeals were pending to the Supreme Court. The motion for a stay of execution was decreed by the Circuit Court. OSHA appealed to a single justice in the Supreme Court. Justice Rehnquist first granted the stay for all states other than Idaho. After hearing full argument from Mr. Barlow's attorneys and by the government, he granted the OSHA request in full except in regard to Mr. Barlow's shop. The stay will remain in effect until the Supreme Court decides the appeal.* Thus the inspection system of OSHA will continue to operate on a warrantless basis, at least for those plants and businesses who are willing to admit the inspectors. The stay granted in this case does not, however, constitute a bar to other plant owners raising the same objection in other cases. In fact, two other courts heard cases very soon after the Barlow decision and found against OSHA. In Georgia, a Federal District Court held that OSHA did not have "probable cause" to inspect a plant when there were no employee complaints.4 The Court dismissed as an insufficient reason under the law the OSHA argument that a *As the Journal went to press in early May, no decision on the appeal had been handed down by the Supreme Court.
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PUBLIC HEALTH AND THE LAW
search was justified by the fact that the plant had never before been inspected. In New Mexico, a State-level court applied the precedent of the Barlow decision to a challenge to a similar provision for warrantless search under the law of the New Mexico Environment Improvement Agency. A warrantless search was found unconstitutional under both the New Mexico Constitution and the U.S. Constitution.5 The issues are now clearly joined. OSHA is arguing that the only effective method of preventing problems of unsafe and unhealthy conditions in American industry is through routine, periodic inspections. The Agency has a very good argument. However, the Bill of Rights has for nearly 200 years upheld the right of citizens to resist "unreasonable" searches without warrants. The Supreme Court must decide
again between confficting objectives of public good and private liberty. Some experts are predicting a compromise around some sort of broadly worded public health warrant. We shall soon see where the current justices of the Supreme Court stand on this very important matter.
REFERENCES 1. Barlow's Inc. v. Usery, U.S. District Court of Idaho, December 30, 1976. 2. Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967). 3. See v. City of Seattle, 387 U.S. 541 (1967). 4. Usery v. The Centrif-Air Machine Co., Inc., U.S. District Court of Northern District of Georgia, January 10, 1977. 5. State v. Albuquerque Publishing Co., Second Judicial District, State of New Mexico, January 20, 1977.
Public health is truly human ecology, since the welfare of the community depends on the countless interactions among people and between people and the environment. Marston Bates. Man in Nature, ed. 2, Englewood Cliffs, NJ: Prentice-Hall, Inc., 1964, p.94.
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