Constitutional Law, Courts, Justice, Politics

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.

104 thoughts on “Is Florida’s Drug Testing Of Welfare Recipients Constitutional?”

  1. Carrion,

    You are correct, Governor Perry may not be the sharpest tool in the box, but none the less he is still a Tool. Thanks for clarifying for the world. Everything somebody googles tool and perry….this will come up….This is kind of funny. every time you and your people spread the word, it just gives this site more and more coverage. As nal suggested there are more thread to comment on…I say, you need not thread jack on all of them…but thats just me….

  2. NoWay

    Thanks for the reply. In case my lack of computer savvy resulted in any ambiguity, the language you quoted came from Dean Chemerinski, not me.

  3. culheath,

    Thanks for the additional input. The “myth” you raise is slightly different than the one I addressed, but I’d say that the Florida results would dispel rather than perpetuate the myth as you raise it.

    On the other hand, as the spate of recent comments (as well as my original comment) show, many feel that a law like this can have a deterrent effect on who actually applies for welfare, which would mean that anyone invested in the stereotyping, could argue that the results in Florida don’t give any valid information with respect to the myth you raised.

    My personal view is that the number of false negatives is likely to limit the utility of the test. As one commenter indicated, the market for products to circumventing drug tests is strong. Unless the testing centers are actually watching people pee, then it is fairly easy to cheat. And there are methods to dilute one’s urine so that drugs are at the non-detect level, but the sample still passes muster. (Bear in mind that I’ve never actually tested the claims made by those selling the products.)

  4. Here is a query, if someone apply’s for welfare and is denied for whatever reason, is this a sufficient basis to obtain a search warrant to search there house for illegal dug activity? Just wondering, it seems like the next logical step toward seat belts being a primary offense vs secondary offense.

    Just in case most folks are not aware, when the officer stops you, asks for your drivers licenses, registration and proof of insurance, they already know if the vehicle is insured and if it is properly registered, The plates have already been run by to figure out who is most likely in the vehicle before approaching.

  5. I think it is a good thing for if you need help and are asking for help why and how can you aford drugs so if you misuse your money for drugs why should we have to pay for it and how do you get it is uncondstitional you are asking for help to take care of your family but yet you are doing drugs what are you going to do with the money you get hmm buy more drugs

  6. The answer is to eliminate welfare. The only fair and just drug testing program would be to test everyone who accepts government subsidies to include politicians and the government knows this, it’s common sense. Testing everyone will expand the governments reach into all of our lives. Once they make it mandatory for one group they only need to figure out a way how everyone else relates to that group. Mandatory testing for welfare recipients = testing for everyone who receives government subsidaries = testing for anyone who needs help from FEMA. You see where this is going? Today drug testing tomorrow psychological testing. http://www.youtube.com/watch?v=mgCIe3Om9IY
    Of course NOTHING IS FREE, nothing is free, nothing is free! You take government money you will be subject to their rulings. The more people on the government dole the bigger the government reach grows into all of our lives. Eliminate welfare and shrink government.

  7. Megyn Kelly conveniently left out the fact that welfare claims were down. They are down because recipients using drugs are not claiming welfare. Why are you bashing this Governor? Why did you imply that Gov. Rick Perry wasnt the “sharpest tool in the box”? Your views are blatantly more and more left. Fox does not need people like you and I will find something equally worthless to do as opposed to watch your segment!

  8. Government employees get drug tested. Why not the people who receive welfare?

  10. just recently on HAWAII NEWS NOW their was a story about our HOMELESS problem with them living under our bridges…The news person was able to talk to a woman who was sitting on her BED with her CATS under da bridge.. She shared with us that she recieves 1600.00 dollars from SSI and that she gives her daughter who doesnt live with her under the bridge 600.00. And that her and her boyfriend uses 1000.00 on DRUGS… you could already see the signs that she was on DRUGS… there is GENERATIONS on welfare here.
    I AGREE THE WELFARE SHOULD BE TESTED because i can guarantee 100% of people here in HAWAII are on so kind of DRUG….pakalolo, ice and coke….GUARANTEE….

  11. The only people who have a reason to dislike the blood tests are those who are doing drugs or support the use of drugs. It doesn’t hurt anyone. In fact, it helps all of us.

    Furthermore, you can’t just look at the 2% of individuals who have failed blood tests already. You have to look at the decreased amounts of welfare applicants. If you use drugs, you know not to get tested until the drugs can’t be traced in your blood or urine. Therefore, drug users will wait to apply for the welfare.

    Welfare is voluntary you don’t have to do it

    THERE IS A SPECIAL NEED in this case. IT’S TO PROTECT CHILDREN FROM PARENTS WHO ARE ON DRUGS!!! Just like, as Megan Kelly stated, there is a special need with regards to high school football players taking drug tests to protect them from other players who are on drugs. To work at a hospital, I have to get drug screening and I have no problem with this. Is the ACLU stating that children are less worthy if they are on welfare?

    The ACLU is a power hungry organization. Their purpose is not to help society. It’s to benefit themselves. The more business they get, the more powerful they become.

  13. Here is a thought, i have to take a drug test to get a job and work, so if they are going to get assistance from the goverment, that by the way is my tax dollar’s, why should they not have to take a drug test to get my money????

  14. As a former drug agent, I applaud Gov. Scott’s bill. Quoted statistics indicate that only 2% of current applicants for welfare tested failed. Are there any statistics available which indicate if the number of applicants declined when required to take a drug test?

  15. Welcome to all the new commenters.

    Your opinions are most welcome.

    Search around and find other posts that need your input.

  16. I had to be drug tested in order to get a job, every so often I am re-drugged tested to keep my job. So WHAT is wrong with people getting public assistants taking a drug test. I get drug tested to keep a job so that lazy people who do drugs and alcohol can use the money I pay into the system can stay STONED. It is not fair to the working people to support lazy bums that think we owe them their lifestyle. I see too many people where I live who are on welfare and medicad that goes to the doctors to get drugs and they sure do eat better than I do. We raise a garden and can food just to make sure that we have food, but I don’t see any of the welfare bums raising a garden let alone do any canning. Our democractic system is ruining our nation.

  17. Welfare and Unemployment are two totally different things. You work for an employer and they pay unemployment insurance on your wages. Therefore, you technically have worked for what you receive from unemployment.
    Welfare is not tied to work at all. It is essentially free money to poor people that is supposed to help them. Whether it helps or is just a crutch to keep them dependent on the system is a whole other debate. They absolutely should require drug tests for welfare. There are numerous people selling food stamps to get cash. I wonder what they would need cash for that is more important than food. Or…if they simply get too many food stamps, why are taxpayer dollars funding food stamps that people don’t really need?
    It’s free money available to you if you choose to comply with the requirements. Nobody says they HAVE to take the test, They only have to take it if they want benefits. Nothing wrong with that. Working people face the same conditions. Coming from Massachusetts, maybe the welfare capital of America, It should be a nation wide law! You will see how many people don’t apply and opt for a minimum wage job that pays more. That they may or may not have to pass a drug test for.

  19. How is drug testing welfare recipients any different than companies testing employees at will, at any time, they wish for drugs. It’s being done everyday in corporate America.

  20. There is just WAY to much common sense in this law. I am sure it WON’T hold up in court. Isn’t our system wonderful?

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