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Florida’s ‘Drug Tests For Welfare Recipients’ Law Is, Most Likely, Unconstitutional

Back in June, Florida Governor Rick Scott signed into law a bill that, among other things, requires all recipients of cash welfare from the state to undergo mandatory drug testing as a condition of receiving certain forms of state aid. The first round of testing was recently completed, but the legal controversy is just beginning. As one Tampa Bay television station has reported, in the past Federal Courts have generally held that drug testing requirements for public assistance are unconstitutional:

In a 1997 ruling from Georgia by the U.S. Supreme Court, Justice Ruth Bader Ginsburg wrote, “The Fourth Amendment precludes suspicionless search… the drug test diminishes personal privacy.”

In 2003, a U.S. Circuit Court of Appeals ruling from Michigan backed that up saying, “Michigan law authorizing suspicionless drug testing of welfare recipients was unconstitutional.”

Florida law professors agree.

Stetson University’s James Fox, an expert on constitutional law, wrote, “Ironically, the Florida Republican Party, which opposes federal health-care legislation as being unconstitutional, has adopted a welfare law far more likely to be found unconstitutional. This new law reveals hypocrisy.”

Fox’s colleague at Stetson, Bruce Jacob agrees, “It seems to me, the result would have to be, that if suit is brought here that the Florida law would be declared unconstitutional.”

The 1997 case noted above is Chandler v. Miller, which challenged a Georgia law that required all candidates for certain state offices to take and pass a urinalysis test before being certified on the ballot. In addition to the quote noted above, Justice Ginsburg, noting that the Georgia drug testing requirement clearly implicated Fourth Amendment concerns despite the fact that it was not a criminal statute and didn’t necessarily impose a criminal penalty, said the following:

What is left, after close review of Georgia’s scheme, is the image the State seeks to project. By requiring candidates for public office to submit to drug testing, Georgia displays its commitment to the struggle against drug abuse. The suspicionless tests, according to respondents, signify that candidates, if elected, will be fit to serve their constituents free from the influence of illegal drugs. But Georgia asserts no evidence of a drug problem among the State’s elected officials, those officials typically do not perform high risk, safety sensitive tasks, and the required certification immediately aids no interdiction effort. The need revealed, in short, is symbolic, not “special,” as that term draws meaning from our case law.

(…)

However well meant, the candidate drug test Georgia has devised diminishes personal privacy for a symbol’s sake. The Fourth Amendment shields society against that state action.

As David Drumm notes, the Florida law requiring drug testing for all welfare recipients is functionally identical to the Georgia law struck down in Chandler. Welfare recipients do not perform the type of  “high risk, safety sensitive tasks” that might justify randomized testing. Additionally, randomized testing of recipients of state aid does nothing to aid in the enforcement of anti-drug laws because it is far too broad to be of any use to law enforcement. The testing, therefore, is entirely symbolic and, as Justice Ginsburg noted, the Fourth Amendment simply does not permit the state to violate individual’s privacy interests for the sake of symbolism.

Supporting the Constitutional arguments is the empirical fact that these welfare drug tests aren’t really uncovering anything of interests. The first round of testing in July showed that a mere 2% of those receiving some form of cash assistance from the State of Florida tested positive for some illegal drug:

.Since the state began testing welfare applicants for drugs in July, about 2 percent have tested positive, preliminary data shows.

Ninety-six percent proved to be drug free — leaving the state on the hook to reimburse the cost of their tests.

The initiative may save the state a few dollars anyway, bearing out one of Gov. Rick Scott’s arguments for implementing it. But the low test fail-rate undercuts another of his arguments: that people on welfare are more likely to use drugs.

Scott’s argument in favor of the provision was that the state shouldn’t be subsidizing drug addiction, and that implementing the testing 0.0552808988764045 would say the state money. If these numbers hold up, though, the state won’t save any significant money at all:

Cost of the tests averages about $30. Assuming that 1,000 to 1,500 applicants take the test every month, the state will owe about $28,800-$43,200 monthly in reimbursements to those who test drug-free.

That compares with roughly $32,200-$48,200 the state may save on one month’s worth of rejected applicants.

The savings assume that 20 to 30 people — 2 percent of 1,000 to 1,500 tested — fail the drug test every month. On average, a welfare recipient costs the state $134 in monthly benefits, which the rejected applicants won’t get, saving the state $2,680-$3,350 per month.

But since one failed test disqualifies an applicant for a full year’s worth of benefits, the state could save $32,200-$48,200 annually on the applicants rejected in a single month.

Net savings to the state — $3,400 to $8,200 annually on one month’s worth of rejected applicants. Over 12 months, the money saved on all rejected applicants would add up to $40,800-$98,400 for the cash assistance program that state analysts have predicted will cost $178 million this fiscal year.

That amounts to, at most,  0.055% of the state’s entire cash assistance budget, hardly worth the effort that Scott is putting into the program.

None of these should be a surprise, since it’s fairly well established that welfare recipients are no more likely to be drug users than the general population as a whole:

Random drug testing of welfare recipients is scientifically and medically unsound:

  • Welfare recipients are no more likely to use drugs than the rest of the population.
    • According to a 1996 study by the National Institute of Alcohol Abuse and Alcoholism, differences between the proportion of welfare and non-welfare recipients using illegal drugs are statistically insignificant.[2]
    • Before the Michigan policy was halted, only 10% of recipients tested positive for illicit drugs. Only 3% tested positive for hard drugs, such as cocaine and amphetamines[3]  – rates that are in line with the drug use rates of the general population.[4]
    • Seventy percent of all illicit drug users (and presumably a much higher percentage of alcohol users), ages 18-49, are employed full-time.[5]

Studies like this, along with the empirical evidence from Florida’s own program, would be potent ammunition for a challenge to the law. So far, no such challenge has been filed in Court. However, I can only assume that’s because groups like the ACLU are looking for the right Plaintiff. When this does make its way to Court, I would expect the law to be struck down quite easily.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    So, Southern Republicans found an excuse to humiliate poor people — I’m going to guess they’re largely minority — in violation of the Constitution and simple good sense. Hardly surprising.

    Poorly-rated. Helpful or Unhelpful: Thumb up 3 Thumb down 18

  2. Stan25 says:

    If this is the case, then the drug tests that employees are forced to submit to are also unconstitutional. Why should welfare recipients be a protected class?

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 3

  3. WR says:

    What all this financial analysis somehow misses is that Rick Scott founded a statewide chain of drug testing centers, and that while he was forced to divest himself of them when he became governor, he sold them to his wife. So this state money for testing isn’t being wasted — it’s being stolen.

    Funny what happens when you elect a felon as your governor.

    Like or Dislike: Thumb up 5 Thumb down 3

  4. @Stan25:

    If this is the case, then the drug tests that employees are forced to submit to are also unconstitutional

    The Fourth Amendment only applies to state action. Therefore, a drug testing program initiated by a private employer does not implicate the Constitution at all.

    Like or Dislike: Thumb up 7 Thumb down 5

  5. PD Shaw says:

    In 2003, a U.S. Circuit Court of Appeals ruling from Michigan backed that up saying, “Michigan law authorizing suspicionless drug testing of welfare recipients was unconstitutional.”

    The link doesn’t appear to support that statement or contain that quote. (The link originates from the site Doug linked to) The linked case (MARCHWINSKI v. HOWARD) seems to support suspicionless searches where the state’s interests is in protecting child dependents:

    The state is attempting to insure that children are adequately cared for through the Family Independence Program, and ascertaining whether the adult recipients of the programs funds are abusing controlled substances is directly related to that end. Further, the public has a strong interest in ensuring that the money it gives to recipients is used for its intended purposes.  The state is not using the information it gathers to institute criminal proceedings. As in Wyman, application of the warrant and probable cause requirements would be extremely impracticable. And like the search in Wyman, it is consensual in the sense that the recipient may refuse to submit to the test, but may not then continue to participate fully in the program.

    The case then went to rehearing, where the Court of Appeals split six to six. A tie meant the District Court decision finding the law unconsitutional was affirmed. I don’t see any published decision on rehearing, but perhaps since it was a tie there was none?

    Like or Dislike: Thumb up 1 Thumb down 2

  6. PD Shaw says:

    Here is the background from Southern Poverty Law I relied upon to track the case. Odd situation, the published opinion by the highest court to review the case is essentially irrelevant.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. anjin-san says:

    If this is the case, then the drug tests that employees are forced to submit to are also unconstitutional.

    A “Constitutional Conservative” who does not have a clue about the Constitution. Now that’s something you don’t see every day…

    Like or Dislike: Thumb up 0 Thumb down 1

  8. Sam says:

    @michael reynolds:

    If it is constitutional to drug test children in government schools in order to play on a sport team, it MUST be constitutional to test any others in return for a privilege.
    If not then governments have been violating the constitution in testing school children in return for a privilege.

    Like or Dislike: Thumb up 12 Thumb down 0

  9. just me says:

    I think this is unconstitutional. I think it is also invasive, imposing and makes assumptions about recipients.

    I also don’t see how testing everyone would save any kind of money. I imagine the costs to the system are far higher for the drug testing than just not worrying much about those who misuse their funds.

    Personally instead of worrying about drug using welfare mothers, I would rather see them work hard on actually finding and prosecuting fraud.

    Like or Dislike: Thumb up 1 Thumb down 6

  10. Sam says:

    If it is constitutional to require children in government schools to submit to drug testing in return for being allowed to play sports, or join any other extra-curricular activities, then it MUST be constitutional to submit anyone else to drug testing in return for participation in any program provided by the testing entity.

    If that is wrong, then the government has been violating the constitution for years and they have been violating the government school children’s civil rights.

    Like or Dislike: Thumb up 3 Thumb down 0

  11. michael reynolds says:

    @Sam:
    I’m not a constitutional scholar, so I’ll leave the dissection of that to others.

    I’ll tell you this: no child of mine will submit to a school drug test. My children are Americans.

    Like or Dislike: Thumb up 4 Thumb down 4

  12. Sam says:

    @michael reynolds:

    “— I’m going to guess they’re largely minority”

    And if they are not? Is it ok then?

    Like or Dislike: Thumb up 1 Thumb down 1

  13. michael reynolds says:

    @Sam:
    Um, no, I’m pointing to the motivation of a Republican governor and his followers.

    Like or Dislike: Thumb up 3 Thumb down 2

  14. Michael says:

    Justice Ruth Bader Ginsburg wrote, “The Fourth Amendment precludes suspicionless search…

    Yeah, well the only suspicion I raise when I travel by air is that I’m travelling by air. The justification for searching me, at times physically laying hands on me is because I purchased an airline ticket.

    Like or Dislike: Thumb up 6 Thumb down 2

  15. sam says:

    @Stan25:

    If this is the case, then the drug tests that employees are forced to submit to are also unconstitutional.

    Uh, no. Employers are not state agents (unless you’re a state employee). Fourth Amendment does not apply.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Tsar Nicholas II says:

    No good deed can go unpunished, it would appear.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. Catfish says:

    @just me: I certainly agree with the fraud part. I have seen it directly. These welfare give away programs all need to be looked at, scaled back, and in some cases, eliminated completely. Many were started long ago and have been on a sort of “cruise control” since, with no accountability, audits, or justification.

    Like or Dislike: Thumb up 5 Thumb down 0

  18. Karen says:

    If drug testing is good enough for my paycheck, its good enough for the ones that my pay check is distributed to that do not have to work for it. It is a hand out. So if your hand is out, the qualification for that is pee in the bottle. Sorry, but I think all 50 states should do this.

    Like or Dislike: Thumb up 12 Thumb down 2

  19. Rob in CT says:

    If WR’s information is correct:

    What all this financial analysis somehow misses is that Rick Scott founded a statewide chain of drug testing centers, and that while he was forced to divest himself of them when he became governor, he sold them to his wife.

    That’s damning. Win-win, baby. Kick the poor and enrich yourself all at the same time!

    That said, I wasn’t aware that the 4th amendment meant anything anymore. ;)

    Seriously, I understand the urge to say “hey, that’s the price of getting handouts!” But then where does it stop? Anyone who gets government benefits? Or is it just welfare? How do you draw the line? Given human nature, you will probably draw the line between what seems recognizable/likely for you & yours and “them.”

    Like or Dislike: Thumb up 3 Thumb down 2

  20. Rob in CT says:

    @Karen:

    You are subject to repeated drug testing at work?

    I had to pee in a cup to get my job, 12 years ago. Never since.

    Like or Dislike: Thumb up 1 Thumb down 1

  21. mike says:

    @Rob in CT: I have to pee pee in a cup for the Army all the time. I have always thought of it as a bonus :) They care so much they want to test my pee. That’s so sweet!

    Like or Dislike: Thumb up 7 Thumb down 1

  22. Wayne Ward says:

    How is it constitutional then for my employer to drug test me?

    Like or Dislike: Thumb up 2 Thumb down 1

  23. Rob in CT says:

    @Wayne Ward:

    Likely because your employer isn’t the government.

    Like or Dislike: Thumb up 3 Thumb down 2

  24. Nathan says:

    What is wrong with u people. Why can’t you be held accountable for your actions!! Beggars can’t be chooser’s… Sorry there is one rule to get ur “free” money! If u want money don’t do drugs. It is no bigger stereotype then being searched to fly… Get over it! It’s that lack of accountability that has gotten America in the situation were in. Politicians do whatever they want. Because they don’t have to be held accountable for anything. For all those arguing against it. How bout we just take all the taxes out of ur paycheck since u want to help them so much. U can just pay my part of the taxes cause I have no want to help someone get high when they wont help themselves by getting a job. Wow I’m amazed at the ignorance some people show.

    Like or Dislike: Thumb up 11 Thumb down 4

  25. jackie says:

    i understand people need help once in a while but the thing is welfare is a privilege not a right and if u need the help so bad u should be willing to stay clean for it its not welfare’s fault u decided to open your legs and not think of the financial outcome of your mistakes.

    Like or Dislike: Thumb up 6 Thumb down 1

  26. RobWPB says:

    Since when have Liberals given a rats ass about the Constitution… They are going to get drug tested… sorry about your luck losers….

    Like or Dislike: Thumb up 3 Thumb down 3