NASA v. Nelson (09-530)
argument 09-530NASA v. Nelson
Supreme Court of the United States
58 min
7 speakers
8 chapters
transcribed 5 days ago
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What is the constitutional basis for government background checks on federal employees?
We'll hear argument first this morning in Case 09530, National Aeronautics and Space Administration v. Nelson. Mr. Katyal.
MR. Thank you, Mr. Chief Justice, and may it please the Court. Background checks are a standard way of doing business. The government has required them for all civil service employees since 1953 and for contractors since 2005. Yet the Ninth Circuit in this case held that a constitutional right to informational privacy precluded asking — the questions it asked. That was wrong for two basic reasons. First, the background check's mere collection of information with accompanying safeguards vitiates no constitutional privacy interest. These checks have been going on for millions of employees for dozens of years. They are part of the employment process. They are manifestly not roving checks on random individuals.
And secondly — JUSTICE KAGAN. Mr. Pat, is there any limit to what questions the government can ask an applicant?
The limits are, in this case, are the ones on SF-85 and Form 42, and we do think that that's a very — What does that mean? Well, those two — Could
you ask somebody what's your genetic makeup? Because we don't want people with a gene that's predisposed to cancer, whatever, other — Could you ask that? Well, I think that the Court doesn't need to confront that fairly.
We do,
because I have to start with the question of what are the limits on the government, if any? Are you taking the position that as an employer there are absolutely none, or are you taking the position that there are some, and what would they be?
Our position is in a case such as this where there are collections on the government's dissemination of the information. So what you're saying is there's no limit? I think that this Court in Whalen — and there's no decision thus far that has recognized any constitutional limit on the government's collection of information, so long as they're accompanying safeguards on
the dissemination of — JUSTICE SOTOMAYOR. General — General Patrick, why are we getting into this? Because this case, it seems to me, is a challenge — a challenge to a preliminary injunction which was quite narrow. There was only one question at issue. There is no cross-appeal, is there?
So
we have Form 85. The only thing that's in contention there is the question about treatment or counseling, nothing else. So why are we talking about the universe of what questions might be asked? And on the other form, I take it it's just the so-called open-ended questions, not everything. MR.
I quite agree, Justice Ginsburg. That's what I was trying to say to Justice Sotomayor. That is, I think that this case doesn't force the Court to answer questions it has never really answered, which are the outer limits of what the government can do in terms of the collection of information. Here you have a narrow decision by the Ninth Circuit, one whose reasoning, I think, could radiate very broadly and undermine the government's background.
JUSTICE SOTOMAYOR. So what do you think has been — there hasn't been a formal injunction. And did a preliminary injunction has
that? It's at the preliminary injunction stage, but our point is that the reasoning that the Ninth Circuit used if adopted to create a permanent injunction, could preclude the government from asking all sorts of questions in background checks, not just the ones that are isolated here, but more general ones, because the Ninth Circuit decision is essentially a how-to manual and how to question various individual questions and micromanage them and inject Federal
courts into them. JUSTICE SOTOMAYOR I thought that the entire Form 85 was approved There's no questions you can ask about, have you used drugs within the last year? It's only the question about treatment and counseling that is that
issue, right? MR. That's all that the Ninth Circuit ruled on at the Preliminary Injustice of the State. MR. Does their
ruling stop you from asking that question right now throughout the Ninth Circuit?
MR. Which question? The drug treatment question?
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Chapters
8 chapters
1
What is the constitutional basis for government background checks on federal employees?
0:05–7:55
2
How do the parties define the limits on what questions the government may ask on Form 85 and Form 42?
7:55–15:56
3
What arguments are made about a freestanding right to informational privacy?
15:56–23:55
4
How does the Ninth Circuit’s reasoning differ from the Supreme Court’s precedent in Whalen and Nixon?
23:55–30:44
5
What is the scope of the preliminary injunction and does it apply to all Ninth‑Circuit contractors?
30:44–38:06
6
Can private employers ask the same open‑ended questions that the government asks on its forms?
38:06–44:33
7
How does the Privacy Act restrict the collection, use, and disclosure of background‑check information?
44:33–51:27
8
What are the parties’ final positions on whether the questioned forms should be invalidated?
51:27–58:55