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:, WTSP10, Tampa Bay OnlineSteve Benen, ACLU.

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


    Reports Sebastian Kitchen, of The Montgomery Advertiser:

    Holmes said he would pro­pose an amendment that would require state legislators to take a drug test and require others who receive federal funds through the state, including those who receive funding for not farming all of their agricul­tural land, to be tested.

    “It wouldn’t be fair to just pick out one group of welfare recipients because they are re­ceiving federal funds and re­quire them to take drug tests,” Holmes said.

    He has an interesting pro­posal for his colleagues.

    “I’m going to volunteer to take one (a drug test) to set an example for the other mem­bers of the Legislature,” Holmes said. “I guarantee you that I am going to pass it. If not, I will turn my resignation in to the secretary of state, which would make a lot of peo­ple in the state of Alabama happy.

  2. @omega99

    There is no doubt that the Supreme Court has original jurisdiction when a state is a party. Some say that the original jurisdiction in concurrent, and therefore, in effect optional because they can let a District Court hear the case. I think a state could present a meritorious argument for their case to be heard in the Supreme Court. When we consider the resources spent on having cases in which the state is a party work there way up to the Supreme Court, it doesn’t make any sense to have them heard in a court whose decisions are very limited in effect. (Unless you want to adopt Judge Phillip’s postion that her opinion has a controlling effect over the entire country; even going so far as to deprive other judges of arriving at their own conclusions. If we go along with the opinion of Judge Phillips (meaning no disrespect), 600 District Court judges could support the constitutionality of a statute, and it remains law with full force and effect. But when any one of the district Court judges finds it to be unconstitutional, the rest must bow to that judges opinion.)

  3. @NoWay Thanks for that, sounds reasonable. But could you clarify on my “original jurisdiction” question. Does it not belong ONLY with the SC for these cases (in which the State is a party)?

  4. Why is it that with all of the drug testing going on not one government official ,on any level,has ever taken one?Is it that truck drivers are drug addicts?That after 14 years of randoms I am still subjected to them,never having failed one. To get a job at wal mart you must take a drug test,randoms for some work areas.Has any member of the new super committee taken a drug test?Maybe stocking shelves for wal mart is far more likely to lead to drug use than making decision that affect 350 million people.As long as We the People are willing to give up our freedoms in the name of safety we will continue to have either one.

  5. Sorry Nal. That response should have been directed at omega99.
    (But you are welcome to read it too. :))

  6. @Nal,

    I would agree that power of judicial review [is] an unavoidable ramification of the structure and powers of our government. It is the extent of that authority that is subject to abuse.

    Our government operates under a Doctrine in which the powers are separate and distinct, except where an exception is explicitly provided. The Executive can no more give orders to the Judiciary than the other way around. There are some instances in which the Legislature has granted the Judiciary injunctive power over an administrative agency of the Executive.

    The SCOTUS decisions are consistent. The courts have injunction authority over those with whom they exercise personal jurisdiction, and only those over whom they exercise personal jurisdiction.

    If you haven’t familiarized yourself with the cases I cited, please do so. I think you will be surprised at how clearly the line has been drawn.

    Another good search term would be “enjoin the legislature”. I think you will find a lot of state appellate court decisions that support the fundamental reasoning that I rely on.

  7. Nal:

    break her name up and tell me what you get? Is that a subliminal message she is sending? 🙂

  8. My thanks to @mahtso and @Anonymously Yours for an interesting and lively dialogue; and to @NoWay for insight into original intent. For my part, I am sticking to the strict constructionist view, with changes made as desired by the amendment process, and to the SC power of judicial review as an unavoidable ramification of the structure and powers of our government. With that said, I add one point re the article, and pose a question as another point.

    1) The grounds for unconstitutionality for drug testing rely on the 4th amendment restriction against warrantless searches. But I don’t see that as the issue. A potential welfare recipient is approaching the government [for a benefit], not the other way around. The applicant can choose not to apply in order to avoid a search, the applicant is in control. From the government’s point of view, it is necessary for them to learn much about the applicant in order to approve them for the benefit. (They need to know income, assets, employment, residency, etc.). A drug test result would be just one more piece of information that would be required. If the 4th was applied as broadly as in the article, then the government would not be entitled to any personal information about anyone without a warrant. E.g. They would not be entitled to one’s ss number (as required on a 1040) without a warrant. Also the 4th stipulates “unreasonable searches”, raising the question: is a drug test unreasonable?

    2) If the ACLU or the government sues the State of Florida, must not the venue for that action be the SC? I see many cases involving States as parties, that are first adjudicated in lower federal courts, the most recent being Obamacare. But Art III Sec 2 unambiguously states that in ALL cases in which a State is a party, original jurisdiction shall be the SC. Is there any justification for departing from this?

  9. Roco,

    I logged on. The Site Stats tell you the previous page of those visiting the site.

    Megyn is not unattractive. 🙂

  10. The question is why would Megyn (I think we’re on a first name basis now) link to a post about the constitutionality of a law written by someone who is NAL. Is she anti-Scott? Pro Fourth Amendment?

  11. Nal,

    What it doesn’t explain is how you came to know that it was linked at Kelly’s Court. 🙂

    Were you checking out Megyn again? Can’t say that I blame you.

  12. nal,

    I don’t think that fox news is objective at all…That is just my opinion….

  13. AY,

    Megyn Kelly’s web page at Fox News just linked to the post. If there’s any lack of research or objectivity, it’s mine.

  14. Phil,

    Don’t get me wrong, I don’t necessarily condone drug testing for welfare recipients but, being an avid Fox News fan, I am surprised this report was not better researched or reported in a more objective and complete fashion.

    Therein lies your answer….Expecting Fox News to 1) do research 2) actually report the new and 3) be objective?

  15. I believe your discussion regarding this topic missed perhaps the most important aspect of drug testing and that is it’s prophylactic / preventative impact. The reason such a small percentage of welfare recipients test positive is that they know full well they will have to undergo drug testing which could lead to loss of benefits – that is a powerful incentive to clean up before applying for welfare. A common sense report would have advised if any drug testing has been done on welfare populations where drug testing is NOT in place to see how they compare. This scenario holds true for pre-employment drug testing as well… very few applicants are rejected because they test positive… the flaw is that there is no follow up random or periodical testing once a person in on the job. Does the new law in Florida also give a free pass once the initial drug test is negative?

    Don’t get me wrong, I don’t necessarily condone drug testing for welfare recipients but, being an avid Fox News fan, I am surprised this report was not better researched or reported in a more objective and complete fashion.

  16. @mahtso,

    Thanks for the clarification. I would agree with most of what Cherminski said in that quote, but I have a problem with his inclusion of “modern needs”.

    History, tradition, and precedent are things that should influence the Judiciary. “Modern needs”, well, that’s what we have the Legislature for, and if the Legislature does not have the authority to adequately address the needs, the states, via the Amendment process, can provide it to them.

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