01 Nov 2011 Drug Testing of Welfare Recipients is Sound, Sensible and Constitutional

Summary: On October 24, 2011, Federal District Judge Mary Scriven issued a temporary injunction blocking the implementation of Florida’s welfare drug testing law, which requires drug tests by applicants for the Temporary Assistance for Needy Families Benefits program. The ACLU pushed the lawsuit challenging the new initiative. While cloaked in arguments of privacy and the Fourth Amendment to the U.S. Constitution, this challenge is really predicated on an outdated idea that recipients have either an entitlement or other heightened legal claim on the benefits they receive from taxpayers.

While popular with the welfare rights movement and the ACLU, this notion of enhanced protections for benefits recipients is contrary to the law. Drug testing of welfare recipients is sound, sensible and constitutional.

Background: Under a Florida law that took effect in July, the Florida Department of Children and Family Services is required to conduct drug tests on adults applying for welfare benefits. Those who fail the drug test will be unable to collect welfare benefits, but may designate another person to receive the benefits on behalf of their children. If an adult chooses to end his or her public welfare benefits instead of taking the drug test, there is no penalty or investigation that follows. According to the State of Florida, since the program has been in effect, nearly 1700 participants have voluntarily dropped out of the program.

After the ACLU sued to block the law, Judge Mary Scriven enjoined the act, temporarily ruling that the drug testing requirements may violate the “search and seizure” protections of the Fourth Amendment.

Analysis: The proper legal standard for review in this case is whether Florida has shown a “special need” for this sort of drug testing, and Judge Scriven found that Florida failed to demonstrate a “special need” for conducting such searches without probable cause or a reasonable suspicion of drug use.

“If invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need, the state could impose drug testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment.”

While the debate is over the Fourth Amendment, the essence of the claim is predicated on some form of entitlement to welfare. Yet the Supreme Court and the nation have been headed in the opposite direction.

Lost in all of Judge Scriven’s analysis is the applicability of the landmark Supreme Court ruling involving welfare, Dandridge v. Williams. In that case, the United States Supreme Court was asked point-blank whether the state of Maryland could place a per family limit on its welfare payments in lieu of the traditional per-child payments. The Supreme Court agreed that a state could, as the result would have the effect of “encouraging employment and …maintaining an equitable balance between welfare families and the families of the working poor.”

Combined with this ruling are the significant legal shifts that came about as a result of congressional enactment of the 1996 welfare reform bill, the Personal Responsibility and Work Opportunity Reconciliation Act, which abolished AFDC – the Aid to Families with Dependent Children Entitlement program.

Not only are states now given far broader flexibility to administer the programs, but the Court’s legal standards for reviewing have also been sharply curtailed.

Judge Scriven’s ruling seems not to have kept pace with the times.

Of course, preventing tax dollars from funding drug abuse is not the state’s only interest or “special need” in this case. Such a concern is but one of many reasons that a state may choose to ensure that its welfare recipients are drug-free.

An overarching concern for Florida’s Department of Children and Family Services has to be the safety and long-term wellbeing of the children and families of welfare recipients. Numerous studies have shown that drug abuse affects the ability of an individual to obtain and retain employment; to be a responsible and effective parent; that the incidence of controlled substance abuse is higher among welfare recipients than in the population as a whole; and that drug abuse by parents contributes to child abuse and neglect.

There is little doubt that the safety of the children of families in Florida’s welfare program presents a substantial public safety concern that must be considered in deciding whether Florida has shown a “special need” for its drug-testing program. Moreover, the state may legitimately consider the risk to the public from the crime associated with illicit drug use and trafficking and may elect not to underwrite this activity with the public coffers.

But even without this laundry list of Florida’s legitimate “special needs,” it is beyond serious dispute that the state has a need to ensure that public welfare dollars are used by the recipients for their intended purposes – buying milk and eggs at the corner store, for example – and not dime bags from corner pusher.

The plaintiff and the ACLU claim that Florida’s drug testing requirement is an invasion of privacy and an unconstitutional “search and seizure.”

First, there is a much lower expectation of privacy in cases involving welfare benefits. Welfare assistance is a heavily-regulated area of public life in which recipients are routinely required to abide by state and federal regulations and to turn over personal and private information as a condition of receiving benefits. Failure to play by the state’s rules simply disqualifies applicants from receiving taxpayer dollars.

Moreover, the privacy interests at issue are weighed against Florida’s overriding interest in the safety and well-being of the children, deterring criminal activity and drug addiction, fostering economic self-sufficiency and seeing to it that state funds are used to feed hunger, not habits.

Second, the injury claimed by the plaintiff in this case is the violation of his Fourth Amendment right to be free from unreasonable searches. However, the Supreme Court has already held that welfare applicants who do not wish to consent to a state’s search requirements are free to decline the search and forfeit the benefits. Forty years ago, in Wyman v. James, the Court considered whether home searches were a reasonable condition for receiving welfare benefits. After looking at all of the valuable public interests served by the searches, the Court concluded that the state’s home-search condition was not only reasonable, but that the plaintiff was free to refuse the search but could not then complain about the benefits being withheld.

Likewise, Florida is insisting that its welfare recipients not abuse drugs on the public’s dime. Being drug-free is a condition of the people’s welfare aid, and the voluntary drug test is the reasonable mechanism by which the state can ensure compliance with that condition.

According to the Associated Press, over two dozen states are considering welfare drug-testing programs in one form or another. Thanks to the ACLU and Judge Scriven, since Florida was the first state to get its program up and running, every other state that faces a court challenge will likely have to overcome the unnecessary hurdle that Judge Scriven’s ruling created.

Summary: As a precedent, Judge Scriven’s ruling is off the mark and epitomizes judicial micromanagement of American domestic social policy. It is a temporary win for the ACLU and a setback for Florida taxpayers. Drug testing of welfare recipients is sound and sensible public policy – and far from being an unreasonable or unconstitutional invasion of privacy.

Horace Cooper is an adjunct fellow with the National Center for Public Policy Research, a member of the African-American leadership group Project 21 and a legal commentator. He taught constitutional law at George Mason University in Virginia.