Submitted by Mike Appleton, Guest Blogger

The Florida legislature has been accused of doing nothing to address the state’s serious unemployment problem.  But the cumulative output of the recently completed 2011 session will keep constitutional lawyers busy for quite some time.  One case in point is a bill signed by Gov. Rick Scott on May 31st that is certain to face a legal challenge.  Public law 2011-081, set to go into effect on July 1st as Section 414.0652 of the Florida Statutes, requires every Florida resident who applies for benefits under the Temporary Assistance for Needy Families (TANF) program, the federal successor to the former Aid to Families with Dependent Children (AFDC) welfare system, to submit to drug testing for controlled substances.  The cost of the testing must be paid by the applicant and a positive result will disqualify the applicant from receiving benefits for one year.  The new law raises serious concerns under the Fourth and Fourteenth Amendments to the U.S. Constitution and their counterparts in the Florida constitution, including the personal right of privacy enshrined in Article I,  Section 23 of the latter document.

For most of our history, Fourth Amendment protections were thought to apply only to criminal proceedings, but in 1967 the U.S Supreme Court recognized their application to non-criminal government searches as well. Camara v. Municipal Court, 387 U.S. 523 (1967).  Early subsequent cases concerned primarily commercial enterprises.  For example, in Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), the Court held that OSHA could not conduct a search of certain work areas for safety violations without a  warrant and that portions of the OSHA statute authorizing warrantless searches were unconstitutional.

Over the past several decades, the Court has gradually endorsed exceptions to the requirement that civil searches must meet strict Fourth Amendment standards.  The so-called “special needs” doctrine, first expressed in New Jersey v. T.L.O., 469 U.S. 325 (1985), involves a three-prong test to determine the legality of a warrantless civil search:

(1) There must be a compelling government interest unrelated to criminal law enforcement that requires the search;

(2)  There must be a determination that imposing the burdens of establishing probable cause and securing a warrant would jeopardize the government’s interest; and

(3) The government’s interest must be balanced against the privacy interests of the search subject under a reasonableness standard.

Every Supreme Court decision to date upholding suspicionless drug testing has involved either school children (e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995), drug testing of high school athletes) or classes of employees among whom drug abuse creates serious risks to public safety (e.g., Skinner v. Railway Labor Executives Ass’n., 489 U.S. 602 (1989), drug testing of railroad employees following accidents).

The public safety component of the special needs test was emphasized by the Court in Chandler v. Miller, 520 U.S. 305 (1997),  a case whose irony is unlikely to be appreciated by the Florida legislature.  The Court in Chandler struck down a Georgia statute mandating urine drug testing as a condition to running for specified state offices, concluding that the state had not demonstrated any special need, let alone one sufficiently compelling to overcome expectations of privacy and to vitiate grounds for individualized suspicion.  And the Court added, “…where, as in this case, public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged. ” 520 U.S. at 523.

The single reported case involving a state’s effort to drug test welfare recipients is Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), rev’d, 309 F.3d 330 (6th Cir. 2002), reh’g en banc granted, judgment vacated, 319 F.3d 258 (6th Cir. 2003).  In that case a federal district court enjoined implementation of a pilot project to administer drug tests to applicants for welfare benefits under Michigan’s version of TANF, squarely concluding that the state had not demonstrated any special needs involving public safety.

The Florida statute suffers from the same infirmities that doomed the Georgia and Michigan laws.  Indeed, the Florida law does not even pretend to address public safety concerns.  And the official staff analysis of the legislation contains a laundry list of potential barriers to enforceability, including violations of the Florida and U.S. constitutions and inter-statutory conflicts.

So what does the Florida legislature hope to accomplish? The statute does not contain a statement of legislative intent, but there are several possibilities, none of which are constitutionally satisfactory. First, it might be argued that the law seeks to promote family health and stability. Then why not mandate drug testing for couples seeking marriage licenses, or for pregnant women? Why not mandate testing for alcohol dependency, the most widespread form of substance abuse?

Perhaps the legislature wishes to ensure that recipients of government largesse do not use tax money to support addiction.  In that case, what are the differentiating characteristics of poor people that justify their being singled out for special governmental intrusion? Why is testing not required of those who receive special property tax exemptions, or disability benefits, or state research grants or tax incentives to move businesses to Florida? Democratic legislators actually introduced amendments to extend the law’s requirements to employees of companies receiving state tax incentives and to recipients of Bright Futures public scholarships and their immediate families. These proposals were withdrawn, but they made their point.

It could be that the state simply wishes to reduce the fiscal burden of the TANF program by weeding out drug abusers. But the legislative analysis does not project any savings from drug testing. Instead, there will be additional and unknown costs to implement the program. And even if a small percentage of potential recipients are determined to be ineligible, the law specifically exempts their children from its penalties and creates a mechanism for appointment of substitute payees to receive the payments on their behalf.

If the law is constitutionally unsound and advances no coherent public policy interests, one is left with the reluctant conclusion that its adoption was primarily motivated by ideology.  And that is perhaps its most disturbing feature.  It effectively marginalizes the poor and criminalizes poverty.  It perpetuates stereotypes and reinforces myths. It degrades and demeans and shames.  It lends support to notions linking poverty with immoral behavior.  It endorses the views of those who say, with the lieutenant governor of South Carolina, that the provision of financial assistance to the poor is equivalent to feeding stray animals because it only encourages breeding.

The poor are not stray dogs.