Medical Review Officers and the Limits of Judicial Review

In the public imagination, defenders of our national security wear military garb. But the individuals who determine their fitness-for-duty wear white coats. The unenviable task of assessing those who make up our national security workforce is carried out by a group of independent physicians who must make nuanced determinations about illicit drug and alcohol use by government employees. In addition to testing roles that may seem unexciting, like accountants and auditors, medical review officers (MROs) are tasked with ensuring employees of nuclear power plants and commercial drivers are fit for duty. In doing so, they rely on their experience, expertise, and medical proficiency to distinguish the illicit and legitimate use of offending substances. These sensitive decisions create substantial risk of liability. Because fitness-for-duty determinations are often intimately tied to decisions to terminate an employee, MROs’ decision making—and reliance on their decisions—warrants significant deference. The Supreme Court has long held that most executive branch employment decisions related to national security are unreviewable. But federal courts have been reluctant to extend a jurisdictional bar to non-government actors. Unfortunately, MROs occupy a unique space as private, independent physicians: they do not answer directly to the president, and their expertise is only informed by their limited area of specialty. This Article contends that as non-executive branch officials, MROs—and those who rely on their decision making—should be entitled to some constitutional deference, but should not receive the same unreviewable privileges that executive branch officials receive