Friends of mine who are somewhat liberal ask me, Why can’t we drug test welfare recipients? I got tested for my job. It’s true, many people are tested for drug use before being employed. Even the government tests their employees. That still doesn’t make testing welfare recipients constitutional. If the Fourth Amendment means anything it means the government has to have probable cause to test you for drugs. Having a bias toward poor people, thinking they must all be dirty and on drugs isn’t probable cause and it also doesn’t match with the actual evidence of drug use by people on public assistance.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What this means is the government has to have “information sufficient to warrant a prudent person’s belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)“. A person walking down the street can’t be stopped or their house can’t be searched unless the police have a concrete reason to stop the person or search the house. The police have to go before a judge and explain their probable cause and if the judge agrees then a warrant is issued for a search or an arrest.
Testing welfare recipients violates that principle because the government is searching a person without knowledge that the person is in fact taking drugs. The common saying is that it would be a “fishing expedition”. Courts tend to frown on fishing expeditions.
Even police at traffic stops for drug interdiction have to ask the driver for permission to search their vehicle and only if they refuse do they bring a dog in to sniff the outside of the car. If the dog gets a hit then the police have probable cause to search the car.
As the ACLU states concerning drug testing for welfare recipients:
The ACLU challenged the mandatory drug testing program as unconstitutional, arguing that drug testing of welfare recipients violates the Fourth Amendment’s protection against unreasonable searches. The case, Marchwinski v. Howard, concluded when the U.S. Court of Appeals for the Sixth Circuit upheld a lower court’s decision striking down the policy as unconstitutional.
In halting the implementation of Michigan’s drug testing law, U.S. District Court Judge Victoria Roberts ruled that the state’s rationale for testing welfare recipients “could be used for testing the parents of all children who received Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from that State.”[18] Indeed, any of the justifications put forth to subject welfare recipients to random drug testing would also by logical extension apply to the entirety of our population that receives some public benefit and/or that is a parent. It is clear that our constitution – and common sense – would object to the random drug testing of this large group of people, making the drug testing of an equally absurd category of people – welfare recipients – unconstitutional as well.
Drug Testing of Public Assistance Recipients as a Condition of Eligibility
But Doug, you are saying, I got tested before I got hired at my job? Fair is fair, right?
The ACLU also is opposed to pre-employment drug testing, but sometimes people forget our Bill of Rights don’t apply to private businesses.
The court has read the Fourth Amendment to prohibit only those government searches or seizures that are “unreasonable.” Because of this, businesses that are in an industry that is “closely regulated” can be searched more frequently and can be searched without a warrant. In one case, an auto parts dealer at a junkyard was charged with receiving stolen auto parts. Part of his defense was to claim that the search that found incriminating evidence was unconstitutional. But the court found the search reasonable, because the dealer was in a “closely regulated industry.”
Note again that constitutional guarantees like the Fourth Amendment apply to governmental action. Your employer or any private enterprise is not bound by constitutional limits. For example, if drug testing of all employees every week is done by government agency, the employees may have a cause of action to object based on the Fourth Amendment. However, if a private employer begins the same kind of routine drug testing, employees have no constitutional arguments to make; they can simply leave that employer, or they may pursue whatever statutory or common-law remedies are available.
It is kind of ironic that some of the same friends supporting random drug testing of poor people are the same ones who objected when the story about employers asking for Facebook passwords came out. They claimed the same arguments I’m using here against drug testing to oppose giving up their passwords. I don’t see the difference between drug testing and giving up passwords although the 4th amendment is stronger for drug testing than giving up passwords.
I haven’t even addressed the fact that drug testing of poor people is both a waste of tax dollars and only catches a insignificant number of drug users.
The state of Florida passed an almost identical testing procedure that ran from 1999 to 2001 and was reintroduced in July of 2011 that was struck down by the 11th U.S. Circuit Court of Appeals in Atlanta the following month, citing the fact:
“there is nothing inherent to the condition of being impoverished that supports the conclusion that there is a `concrete danger’ that impoverished individuals are prone to drug use.”
The Tampa Tribune investigated the results of those July 2011 drug tests and found that “96 percent proved to be drug free”, another 2 percent never bothering to complete the lengthy application process, and 2 percent actually failing drug testing. At an average cost of $30 per test, the state was hemorrhaging tax dollars at a rate of “$28,800-$43,200 monthly”… FAR out pacing the supposed “savings” from preventing drug-abusers from gaming the system to buy drugs.
Texas Senate Unanimously Votes to Drug Test Welfare Applicants
Drug testing is expensive.
The average cost of a drug test is about $42 per person tested,[8] not including the costs of hiring personnel to administer the tests, to ensure confidentiality of results and to run confirmatory tests to guard against false positives resulting from passive drug exposure, cross-identification with legal, prescription drugs such as codeine and legal substances such as poppy seeds.
Another way to measure the cost is by counting what it costs to “catch” each drug user. Drug testing is not used by many private employers because of the exorbitant cost of catching each person who tests positive. One electronics manufacturer, for example, estimated that the cost of finding each person who tested positive was $20,000, since after testing 10,000 employees, only 49 tested positive. A congressional committee also estimated that the cost of each positive drug test of government employees was $77,000, because the positive rate was only 0.5%.[9]Mandatory drug testing is an ineffective means to uncover drug abuse.
An Oklahoma study found that a questionnaire was able to accurately detect 94 out of 100 drug abusers. The questionnaire was also useful in detecting alcohol abusers, something drug tests fail to accomplish.[10]
Certain counties in Oregon experimented with drug testing on some welfare recipients, but the process was halted when it was found that drug testing was less effective in identifying drug abuse than less invasive, cheaper methods.[11]
Most types of drug tests fail to detect alcohol abuse – the most commonly abused substance among Americans – and are most likely to detect marijuana use since the active ingredient in marijuana stays in the body’s system longer than any other illicit substance. Therefore, drug tests often fail to identify people who are using more powerful, more addictive and more dangerous drugs like methamphetamine or cocaine, which exit the body’s system in a matter of hours or days.[12]Many states have rejected the random drug testing of welfare recipients as impractical and fiscally unjustifiable.
For example, New York and Maryland each considered a program to randomly drug test those receiving welfare, but abandoned the plan as not cost-effective, given that urinalysis is almost exclusively a barometer of marijuana use and that welfare recipients are required to undergo regular supervision, allowing for effective monitoring absent the cost and intrusion of mandatory drug testing.[13]
Louisiana passed a law in 1997 requiring drug testing for welfare recipients. However, a task force set up to implement the law found more limited drug testing of individuals identified by a questionnaire to be more cost-effective than mandatory drug testing.[14]
Alabama decided against drug testing because it found that focusing on job training programs was a more effective method of moving individuals off of welfare.[15]Drug Testing of Public Assistance Recipients as a Condition of Eligibility
Ohio State Senator Tim Schaffer (R) has decided again that Ohio needs drug testing. He still doesn’t know how public assistance works but he is reaching to show his bigoted constituents he can punch a poor person like a good Republican:
Sen. Tim Schaffer plans to introduce legislation today that would establish a drug-testing pilot program for Ohio Works First applicants.
“It is time that we recognize that many families are trying to survive in drug-induced poverty, and we have an obligation to make sure taxpayer money is not being used to support drug dealers,” Schaffer said. “We can no longer turn a blind eye to this problem.”
The proposal comes as Ohio’s public welfare rolls are at their lowest levels in decades. As of June, slightly fewer than 25,000 adults received cash assistance. Children, who make up the bulk of recipients, about 107,000, would be exempt from drug testing under Schaffer’s proposal.
Schaffer, R-Lancaster, said he hopes to avoid similar lawsuits by requiring applicants to be tested only if they indicate on a questionnaire that they have used drugs in the past six months. Michigan’s drug-testing law, he said, was found unconstitutional because it required all applicants to undergo screenings regardless of whether there was reason to believe they were using illegal drugs.
There must be an election coming up. That’s when we get these silly “bash the poor” laws. The simple fact is most people who have little to no money don’t buy drugs and the idea that all welfare recipients use drugs is not supported by the evidence. It is a bigoted idea and drug testing is unconstitutional.
