Suspicionless Searches: Florida Targets Welfare Recipients

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.

43 thoughts on “Suspicionless Searches: Florida Targets Welfare Recipients

  1. Mike,

    Good point….in Marchwinski v Howard the court pretty much held the following for the state of Michigan….

    The legislation could also be illegal: a similar law passed by Michigan in 1999 was struck down by a federal appeals court as a violation of the fourth amendment right against unlawful search and seizure.

    During the brief period that the law was implemented, however, Michigan discovered that just 10% of recipients tested positive for drugs, overwhelmingly marijuana, and fewer than 3% for hard drugs – in line with national averages.

  2. “It perpetuates stereotypes and reinforces myths. It degrades and demeans and shames. It lends support to notions linking poverty with immoral behavior.”

    It is the modern Republican Party and such legislation shames us all.

  3. “The poor are not stray dogs.”

    Correct, in the opinion of righteous white Christians the poor are not stray dogs, they are much worse. Stray dogs do not vote and do not understand enough to adapt their behavior to maximize the cost of misguided charity to their benefit.

    The reason the US is so attached to the laws criminalizing normal human behavior such as the use of mind altering chemicals is that it is easy to skew enforcement towards unwanted subgroups of the population. In particular the laws against certain drugs provide the only effective tool of ethnic and social hygiene policy capable of redressing the problem created by that most egregious excess of nanny state big gummint political correctness and contempt for the legitimate property of entrepreneurial white businessmen, the abolition of slavery.

    As for the misguided fourth amendment to the US constitution, it is an inconvenient obstacle in making full use of the concern about drugs, terrorism, pedophilia and other moral panic related legislation to target those whom decent people know to be inherently evil.

  4. Blouise.

    One thing that irritates me about Americans who think that they are of a liberal persuasion is there tendency to misperceive the racist drug war as being only a Republican party generated problem.

    Their perception that Democratic politicians are less enthusiastic about drug war generated injustice is wrong as this article at the Media Awareness Project illustrates.

    Poor people, workers and Blacks still tend to vote for the Democratic Party. Once upon a time the Democratic party was less hostile to the interests of labour than were the Republicans and for a short period from the Kennedy and Johnson regimes the Democratic party supported civil rights for Blacks. However since then the Democrats have moved rightward. They are making a concerted attempt to discourage liberals and non plutocrats, the so called Democratic base, from voting for them as this leads better quality voters who normally support the Republicans making the assumption that the Democrats actually consider the interests of the great unwashed ahead of those of kleptoplutocrats that both political parties actually serve.

    One way that Democrats have done this is by supporting drug war policies more vigorously than do the Republicans. The Bush administration actually started to wind back some of the more noxious aspects such as the Byrne Grant program but Democratic AG Eric Holder has reinstated funding.

  5. C.M. The newly elected republican governors are probably the most hostile group labor has faced in a long time. Don’t think the democrats have to worry about the labor vote this time around.

  6. Arturo.

    Correct, the newly elected republican governors appear to be the most hostile group labor has faced in a long time. However the idea that the Democratic party is in any significant way less hostile to labor is wrong. People who believe this are thinking of the Democratic party of the ’60s and ’70s.

    The US Democratic party of today is extremely right wing and primarily concerned with serving the interests of the 0.1% of citizens composing the kleptoplutocratic oligarchy that owns the USA. Some Democratic operatives may still go through the motions of pretending to care about liberals, poor people, workers and Blacks but this is from habit. Others, Holder, Obama, Biden and Rahm Emmanuel for example are going out of their way to insult the voter base to convince better quality people who currently vote Republican to switch allegiance. What obscures this is that Republican party is even more right wing and criminally insane as well.

    You poor American voters, voting is futile. Effectivly there has been a coup d’etat and your “democracy” is an illusion. Only direct action as in Libya, Yemen, syria and so on can possibly restore representative government.

  7. I got to this thread late and feel after reading Carlyle Moulton’s comments that I have nothing to add of substance. I am in almost complete agreement with your statements sir and would quibble with the last paragraph of your 3rd comment only, but from a perspective point so radical and subversive to good order it gives even me pause and thus requires more thought on my part. You have made good postings sir.

  8. Carlyle, Many Americans will want to move to Australia if Ms. Palin wins. Actually recent polling shows that no matter what Obama does republicans will not vote for him. Your thoughts and writings are similar to another poster here, Tony C.

  9. I almost hate to see this case proceed. If it gets to the SCOTUS there’s no guarantee that it will not reverse its own prior decisions to empower the states with further authoritarian powers. They are crazy up there.

    I thought about the posters to this blog last night (actually about 2:30 this morning) as I watched a TV show I time-shifted. It was a retelling of “Murder on the Orient Express” done in the long-running Piriot series of movies.

    David Suchet captures the essential Pirot better than any other actor that has attempted the character and its a series of dramas that goes out of its way to visually reflect the art deco opulence of its time so I’m hooked. Even though the stories are well traveled I am greatly entertained by the visuals and Suchet.

    The last two scenes of the last offering were presented with passion (uncharacteristic for Pirot) and made the difference between the law and justice come alive. It was moving and illustrative of many discussions we have here.
    I was greatly impressed by the drama and the passion, and faith, of this blogs commenters came immediately to mind. Catch it on reruns if you get a chance, you won’t be disappointed.

  10. Mike,
    Great article. This is just one more example of the Right trying to force people off of public aid. Lotta is correct that all bets are off if this case goes to the Supremes.

  11. Swarthmore mom, Speaking of Tony C, I think he got a bad rap here starting with his first postings. It was a long discussion of the possibility of legalizing prostitution in Canada. I was of the same mind as TC on the issue.

    What struck me about the discussion is that people literally put words in his mouth. They ascribed to him things he did not say and attacked his manufactured positions with zeal. I re-read the thread (which got quite long) several times to insure that he was or was not having his words and words and ideas skewed and there was definitely some skewing going on. He was doing a great job of refuting the attacks so I didn’t get into it. I’m glad he stuck around though.

  12. Rafflaw, yes, in a sane country it’s a slam-dunk that this new attack on the constitution would be ruled invalid. Anymore I just can’t be certain.

    I was remiss in not thanking Mike for his excellent posting: well done as always Mike, forgive my lapse.

  13. Rafflaw.

    Republican voters are so crazy that they cannot recognize that Barak Obama is in fact only a shade less extremely the right wing than the Republicrats for whom they vote.

    The Democratic party is part of the right wing. Gore Vidal was right, when he said “one party the property party with two right wings called Republicans and Democrats”.

  14. Given the current composition of SCOTUS, this is not the kind of case I want to make it that far. Great post, Mike.

  15. Carlyle Moulton,

    Ah yes … irritating, isn’t it.

    I will continue my fight and I will do so with or without a political party. Right now I’m very busy and actually in the trenches fighting the abuses of the modern day republicans as they are manifested through the teabagger supported governor and legislators here in Ohio.

    “However the idea that the Democratic party is in any significant way less hostile to labor is wrong. People who believe this are thinking of the Democratic party of the ’60s and ’70s.”(Carlyle Moulton)

    I can assure you that those in the trenches with me aren’t figments of my imagination from the 60’s and 70’s … at least I don’t think they are.

  16. Blouise.

    The people in the trenches with you are members of the grass roots, of that voter and supporter base from whom the real powers of the Democratic party, those like Obama, Biden, the Clintons, Holder and Rahm Emmanuel, who actually achieve elected office or high party positions want to liberate the party.

  17. Carlyle Moulton,

    Well … I’ll be sure to tell Sherrod Brown, Dennis Kucinich, and the various other state and federal legislators who are all democrats and in attendance at various petition signing events of their true desires to liberate themselves from we, the lowly roots.

  18. I think Rahm Emmanuel is having a great time liberating himself in Chicago … no grass growing under his feet.

  19. Blouise.

    “Sherrod Brown, Dennis Kucinich” are part of a minority that is being purged from the party, in the same way that sane Republicans have been purged from their party.

    Read this Alternet article by Kevin Drum it says things better than I can.

    The fact is that extreme right wing DLC Democrats are happy for the unwanted liberals, workers and poor people organizing and voting for them but they do not feel any need to reward them while they are shuffling further rightwardn an attempt to draw better quality voters away from the Republican party.

    One cannot do anything effective to change reality if one is not aware of what it is, which is the reason so many social problems are intractable. The vast majority of American voters need either to recapture the Democratic party apparatus from the DLC elite or start a new party.

  20. Carlyle Moulton,

    ““Sherrod Brown, Dennis Kucinich” are part of a minority that is being purged from the party”

    I’ll pass that along to them … they’ll appreciate the heads-up.

  21. Swarthmore Mum, Blouise.

    “He is being redistricted by the republicans”. That is INDEED TRUE.

    The facts that the Democratic Party is extremely right wing and that the Republican Party is trying to get rid of Democratic representatives by using the gerrymander are NOT MUTUALLY EXCLUSIVE.

    Liberals who cling to the Democrats are letting hope and obsolete experience cloud their judgment.

    That is enough angry blogging for me for a while. I had better quit before I explode and take half a suburb with me. Good day/night to you all.

  22. Just a question. Is TANF a fundamental right of every citizen?. If not, then can the people who provide the money then put in requirements for receiving the money? What if my family makes just over the amount that would allow us to qualify for TANF. Can I argue that the legislature’s denial of my right to receive funds, when I believe that I should be able to receive them,is unconstitutional? Because of his test scores, my child only qualifies for a 75% Bright Futures scholarship, not a 100% one. Can I argue that this requirement is unfair? Going along with the state’s desire to cut spending, can the state simply decide that no one will be eligible for TANF, regardless of income or results of a drug test?

    Sorry, I am not a lawyer. I have been enjoying the many comments that I see on these stories, but I do not always understand what makes somethings right and other things wrong.

    As another example, I work in Florida and was made to sign a loyalty oath when I first started working for the state. I have still never figured out why I had to sign something that, if I was not loyal, I would then find easy to lie about. However, this was clearly upheld by the court years ago.

  23. Swarthmore Mum.

    “The DLC folded in February.”

    But does that mean that the interests that the DLC represents no longer control the party.

  24. Carlyle Moulton,

    “But does that mean that the interests that the DLC represents no longer control the party.”

    I don’t know … you tell us.

  25. The only drugs the government should be worried about welfare recipients using are cigarettes and alcohol. If they’ve got money for such luxuries, they don’t need as much money.

    The only reason to test the poor for illegal drugs – especially when the poor cannot afford drugs – is to line the pockets of corporations who are given taxpayer money to test them.

    The issue here isn’t just the violation and degradation of the poor, it’s government pork and a waste of taxpayers’ money. The working class won’t care about the poor, but they will care if they’re told their money is being given away to companies by politicians who took bribes.

  26. @T^2 – there is a difference between the income requirements of TANF or the test score requirements of BF and a completely suspicion-less search. The gov’t can set requirements for admission to a program, but not in violation of the Constitution.

  27. Politically, neither party has the best interest of the entire country at heart. For their morals and ethics I believe they might be thinking of the right things, but not the right ways. The two party system needs to end, the only reason we had a legislative body to begin with is because most men were not educated in the ways of law and voting. That has changed. Congress is no longer needed, what is needed are decent human beings who do right not because they are told to, but because they are raised in a society that respects and nurtures individual choice in all aspects of life. This will no breed poverty, for if you are taught that work=livelihood, you will thrive.

    A government only has the power that its constituents allow it to have; The Constitution was originally designed not to limit the people, but limit the government. The first 4 amendments are all a good society needs. Life, liberty, security, happiness, prosperity, progress. If your legislative body is not capable of seeing to these needs and leaving the rest of your life to your own choice, then they have either overstepped their station, or are useless and need to be replaced.

    As to the matter at hand, if my view of society were true and current, there would be no need for welfare. However, the government of Florida stating that you must subject yourself to testing in order to receive federal monies is downright wrong. We have the same issue here in Indiana. In the recent Legislatures attack on impoverished woman and Planned Parenthood, the state has cut Medicaid funding from only one Medicaid recipient because of one service it offers. HEA 1210 however did not cut funding from out local hospitals, and 12 other clinics in Indiana that provide that service. The bill is in violation of Federal regulations which state you can’t pick and chose who gets funding.

    So, to Florida.. if somebody can’t eat, drive to work, fix a hole in their roof or take their kids to the dentist, the last thing you should be thinking of is telling the whole family to piss in a cup. The American thing to do, the Human thing to do, would be to offer them work in exchange for food, better shelter, and access to the things they need, and help them out of that whole along the way. Christian Charity is dead, it has been replaced by a Bureaucracy that now requires you submit to a litmus test for downtrodden peoples.

    So I ask you whats next? Mandatory testing after each and every ticket or accident we have while driving? Governments do not take over their people overnight, it happens slowly over time.

    Pay attention, educate yourself, stay informed, live for your own benefit so long as that benefit is not at the cost of another person’s livelihood. Care for your neighbours, live in community and love with others around you, and the government will not be necessary.

  28. “Pay attention, educate yourself, stay informed, live for your own benefit so long as that benefit is not at the cost of another person’s livelihood. Care for your neighbours, live in community and love with others around you, and the government will not be necessary”

    Nicely stated Tucker.

  29. Mike Appleton.

    Very interesting/depressing article at that link.

    I am going to need to don my extreme wingnut insane ultrafacist personality so that I can finish reading it with enjoyment.I a

    In the US the ideas of criminality, drug use, poverty and being of the Negro race have become conflated in the minds of most people. Most poor people are white but the rate of grotesquely extreme poverty among descendants of the slaves wrongly freed in that egregious excess of politically correct nanny state dogooding and big government confiscation of property, the abolition of slavery is much higher than among whites.

    When Americans imagine what a poor person looks like they see a brown face of an unmarried Negro welfare queen living off the welfare generated by her brood of children or a dangerous Black male predator about to mug them or steal their DVD players to buy crack. This is the reason US politics is so right wing compared to that of other nations. Most poor white people are so scared of their tax money going to undeserving Black people that they vote for right wing politicians who support an ideology that advantages the ultra rich 1% of the population against the other 99% including themselves.

    It is not just white people that have these negative stereotypes of Black people, many Blacks are as prejudiced against members of their own race. Michelle Alexander points out that the stigma of crime fills the family members of convicted Negro drug felons with such shame that they conceal from their neighbours the fact that a relative is in prison.

    The great thing about laws against normal human behaviour, such as using mind altering chemicals is that so many breaches occur that available resources only allow detection and prosecution of a fraction of them. It is easy to skew the enforcement according to the prejudices of the respectable classes. Army of occupation policing of the places where poor Black and Brown people live means a much higher rate of detection of drug crime relative to their actual use or trading of drugs than happens to whites in respectable suburbs.

    At every stage of the anti drug justice process Blacks are treated more harshly than whites. I see the process has having at least 8 steps the last of which is sentencing. Even a small bias against Black defendants relative whites compounds up the chain of process steps resulting in the fact that while Blacks are about 11% of the US population, 60% of US prisoners are Black.

  30. Even today, this is the best write-up on the subject I have found, and it continues to be relevant in today’s climate.

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