Is Florida’s Drug Testing Of Welfare Recipients Constitutional?

-Submitted by David Drumm (Nal), Guest Blogger

Governor Rick Scott (R-Florida) imagines that welfare recipients were likely drug addicts so he signed a law that mandates drug testing before they can receive cash benefits from the state. “The goal of this is to make sure we don’t waste taxpayers’ money,” Scott said. How’s that working out? About 2 percent have tested positive and ninety-six percent proved to be drug free — leaving the state on the hook to reimburse the cost of their tests.

Financially, Florida taxpayers may save a whopping $40,800-$98,400 for a program that has been predicted to cost $178 million. That’s before the legal costs from a threatened ACLU challenge to the law’s constitutionality.

Scott has never been one to let constitutional niceties get in the way of a political issue that’s sure to anger voters. Anger directed at welfare recipients is a classic motivator from the Reagan era that has never gone out of style.

If the ACLU follows through, they will probably rely on two federal court decisions. The first is the Supreme Court opinion in Chandler v. Miller (1997). In that case, the Supreme Court held that:

Georgia’s requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches.

As in Georgia, Florida’s testing of welfare recipients is symbolic, not “special.” Welfare recipients “do not perform high risk, safety sensitive tasks, and the required certification immediately aids no interdiction effort.” As J. Ginsburg wrote: “The Fourth Amendment shields society from state action that diminishes personal privacy for a symbol’s sake.”

The other case is Marchwinski v. Howard (2003), wherein the United States Court of Appeals for the Sixth Circuit, in a rehearing of the case en banc, split 6-6 on the constitutionality of a Michigan law that required drug testing of welfare recipients. The tie vote had the effect of affirming the district court’s judgment striking down the program. No opinion was issued for the en banc rehearing.

H/T: FourthAmendment.com, WTSP10, Tampa Bay Online, Steve Benen, ACLU.