Federal Judge’s Ruling is Wrong, Says Scholar: The Three Dozen States Considering Drug Tests for Welfare Recipients Can Do So Under the Law and U.S. Constitution

What’s More, Says Horace Cooper, Such Drug Tests Benefit Children and are Sound Public Policy

Washington, D.C. – Contrary to a federal court ruling, the Constitution does not prohibit states from testing welfare recipients for drug use, says a new paper by former constitutional law professor Horace Cooper for the National Center for Public Policy Research.

Cooper also argues that drug testing of welfare recipients is a sound public policy and beneficial to children.

The paper, “Drug Testing of Welfare Recipients is Sound, Sensible and Constitutional,” says U.S. Federal District Judge Mary Scriven’s temporary injunction blocking the implementation of Florida’s welfare drug testing law is “predicated on an outdated idea that recipients have either an entitlement or other heightened legal claim on the benefits they receive from taxpayers. Yet the Supreme Court and the nation have been headed in the opposite direction.”

The Florida law, which requires drug tests by applicants for Florida’s Temporary Assistance for Needy Families Benefits program, was challenged in court by the ACLU.

The Constitutional question has national ramifications, as several dozen states reportedly are considering limiting the receipt of taxpayer-funded benefits to those who can pass a drug test.

“Thanks to the ACLU and Judge Scriven,” says Cooper, “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.”

Cooper adds: “Why should taxpayers cover anyone’s drug use? It’s beyond bizarre to imagine that there is a constitutional right to get welfare and be a drug abuser. It’s not news that the ACLU opposes welfare drug testing. It’s a blockbuster that it can get a federal judge to agree.”

Cooper says Judge Scriven failed to consider the applicability of the landmark Supreme Court ruling involving welfare, Dandridge v. Williams, which increased the flexibility of states in designing welfare programs. He also says the 1996 welfare reform bill, signed into law by President Clinton, that abolished the Aid to Families with Dependent Children (AFDC) welfare entitlement program gave states far broader flexibility to administer welfare while sharply curtailing the the courts’ legal authority to review state standards.

“Judge Scriven’s ruling,” Cooper says, “seems not to have kept pace with the times.”

Cooper adds, “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 a corner pusher.”

Cooper continues, “An overarching concern… has to be the safety and long-term well-being 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.”

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 and was general counsel to U.S. House Majority Leader Dick Armey. His paper, “Drug Testing of Welfare Recipients is Sound, Sensible and Constitutional,” is available at http://www.nationalcenter.org/NPA627.html.

The National Center for Public Policy Research, founded in 1982, is a non-partisan, free-market, independent conservative think-tank with over 100,000 recent supporters. Its 2010 revenue exceeded $12 million. Contributions to it are tax-deductible and greatly appreciated.


Project 21, a leading voice of black conservatives for over 25 years, is sponsored by the National Center for Public Policy Research. Its members have been quoted, interviewed or published over 40,000 times since the program was created in 1992. Contributions to the National Center are tax-deductible and greatly appreciated, and may be earmarked exclusively for the use of Project 21.