The picture above you is Governor Rick Scott of Florida. On the last day of May he signed a bill into law containing an amendment that would require applicants seeking TANF (Temporary Assistance for Needy Families) benefits to pass drug screening for eligibility. Wikipedia has a good summary on TANF, but essentially it’s a program that supplies temporary cash assistance for indignant families. It is a federal assistance program administered by states whereby funding is provided through block grants. This type of funding allows states to have greater flexibility in administering the program, and incidentally is the model that the GOP would like to use for Medicaid. There are two questions here for me. It is a substantial problem for which this is a reasonable and effective solution? Secondly, is it lawful and right?
Governor Scott advocates that, among other things, it is unfair for Floridians to subsidize drug use and claims that “Studies show that people that are on welfare are higher users of drugs than people not on welfare.” PolitiFact rated that claim as half true. The studies Scott cited showed welfare recipients were slightly more likely to use drugs than non-recipients, but other studies showed that recipients were either as likely or less likely than non-recipients to have used drugs. The validity of these studies as it relates to TANF is questionable though, because they include many programs beyond cash assistance. They also only studied drug use, which would include smoking a joint in the past year, not necessarily abuse that would involve subsidizing addiction. In fact, the State of Florida has tried this before:
The Legislature in 1998 approved a drug-testing pilot project for people receiving temporary cash assistance. But the results were underwhelming. Of the 8,797 applicants screened for drugs, only 335 (3.8 percent) showed evidence of having a controlled substance in their systems and failed the test, the Orlando Sentinel reported. The pilot project cost the state $2.7 million (or about $90 a test).
The state plans on having those applying for assistance pay for the drug tests, and if they pass the state will reimburse them. These tests are much less than $90, but Florida will have to spend money for reimbursement. As to the first part of my first question, is this a substantial problem? Using the pilot study statistics, 3.8 percent doesn’t strike me as a substantial problem. As to the second part, is this a reasonable and effective solution? Failing the test makes you temporary ineligible to receive benefits, but you are allowed to have third-parties pass the test and receive the benefits for you. If the goal is to stop subsidizing drug use through TANF, then why allow such an obvious loophole?
The second question is whether or not this is lawful and right. As others have noted, there is a question of constitutionality. Specifically, whether requiring drug tests without probable cause violates the fourth amendment to the bill of rights.
The U.S. Supreme Court has repeatedly held that government-mandated drug testing is a “search” governed by the Fourth Amendment to the Constitution. That provision says in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” and mandates that government have “probable cause” before a search warrant is authorized. Random drug testing is what is known as a “suspicion-less” search. Even without probable cause to believe the person required to pee in a cup has done anything wrong, he or she is forced to turn over bodily fluids for government inspection
In public matters mandated drug tests have been very limited and in other cases similar laws have been struck down for being unconstitutional.
I am of the opinion that this new law is unconstitutional, though that doesn’t necessarily mean that it will be overturned. Of course it is unfair to subsidize drug use, just as it can be unfair to subsidize any other behavior we find objectionable. However, we have these programs in place because the benefits often overwhelmingly outweigh the threat of abuse. The same goes for our rights. We have the right to bear arms, even though people abuse this right when they legally buy a gun and murder someone. Although this is the weakest of arguments, if we believe it is fair to drug test those who receive taxpayer funded benefits why limit it to TANF? Why not for Medicare, Medicaid, and Pell Grants? I believe it is because of stereotypes that persist about economically marginalized groups that we as decent people seek to assist. Those I have solicited opinions on this new law reinforce this belief. They know people who abuse the system, and therefore think most welfare recipients are lazy, drug addicted losers who want others to take of them. Local anecdotes should not dicate state and national policy. This was on my Facebook Feed:
Florida is the first state that will require drug testing when applying for welfare (effective July 1st)! Some people are crying this is unconstitutional. How is this unconstitutional yet it’s okay that every working person had to pass a drug test in order to support those on welfare? Re-post if you…agree!!! Let’s get Welfare back to the one’s who NEED it, not those that just WANT it. I applaud Florida. (copied)
To require this for one group and not others solely on the basis of their economic status (because 3.8% does not represent rampant fraud and therefore justify special treatment) is unfair and unconstitutional.