State X has recently enacted a statute prohibiting the sale of food to consumers in State X unless all workers directly involved in the processing, packing, or other handling of food are subjected to mandatory periodic testing for use of illicit drugs. The statute requires a food worker whose test results are positive to be removed from such employment or be transferred to a different job. Testing is to be done by chemical analysis of a urine sample to determine if the subject employee has been using cocaine, heroin, or other drug the use of which is proscribed by the penal laws of State X.

Canco processes lunch meats and sausages in its plant in State Y and markets them throughout the United States, including States X and Y. State Y law expressly prohibits drug testing as a condition of employment for workers in that state.

Canco and the Packing Employees' Association (PEA), an organization of food processing workers in State X, have each brought actions in the U. S. District Court in State X against the state agency (Agency) charged with enforcement of the State X drug testing statute, asserting that it violates rights guaranteed to them by the United States Constitution. The actions have been consolidated. While conceding that both plaintiffs have standing, Agency has moved to dismiss both complaints on the merits. In opposition, the following arguments are made regarding the State X statute:

1. Canco contends that the statute violates the Commerce Clause.

(2)Canco and PEA contend that the statute denies equal protection of the laws as it is seriously "underinclusive" in scope.

(3)PEA contends that the statute infringes what the plaintiff has characterized as the "employees' right to privacy protected by the U. S. Constitution."