Wednesday, January 1, 2014

Judge strikes down Florida's drug testing requirement for welfare recipients

The New York Times reports that a federal judge has ruled unconstitutional Florida's law requiring recipients of welfare benefits to submit to mandatory drug testing.

Aclu03_dlr_testing“The court finds there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied,” [the judge] wrote. The ruling made permanent an earlier, temporary ban by the judge.


Mr. Scott, who had argued that the drug testing was necessary to protect children and ensure that tax money was not going to illegal drugs, said that the state would appeal the ruling.


“Any illegal drug use in a family is harmful and even abusive to a child,” he said in a statement. “We should have a zero-tolerance policy for illegal drug use in families — especially those families who struggle to make ends meet and need welfare assistance to provide for their children.” 

Florida has argued that the law's drug testing requirement "is not a search within the meaning of the Fourth Amendment." But, according to the Supreme Court, that drug testing is a search is an "uncontested point"; and, here, the state proposes to condition the acceptance of assistance on the forfeiture of a constitutional right to be free from such searches. Their justification for doing so is dubious.
Furthermore, the Fourth Amendment requires articulable suspicion except when there are "special needs." But, this invasion of privacy on Floridians receiving assistance on this ground is equally questionable. In Chandler v. Miller, for example, the Supreme Court held that the"special needs" exception did not support a Georgia statute requiring lawmakers to affirm that they had  passed a drug test. The impact a coked-out (or drunk) lawmaker might have on children--and everybody else--is no less significant than the child's custodian. Moreover, the Supreme Court has said that the state acts as the child's custodian when they are in school. 
The Times also quotes the executive director of the conservative Foundation for Governmental Accountability, Tarren Bragdon, as saying: 

“I think what we are seeing is Florida pursuing a strategy of protecting kids by testing all applicants,” Mr. Bragdon said. “You’re going to see a shift in strategy of how to best protect kids in a constitutional way.”


For example, some states are now screening applicants and require drug tests only of those who appear to be drug users. “The decision is not that you can’t drug test applicants,” Mr. Bragdon said. “It’s that you can’t blanket drug test all of them.”

Very good, Mr. Bragdon. The Fourth Amendment prohibits suspicionless searches, which are inherently unreasonable. So, yes, if the state can articulate grounds for subjecting a specific citizen to drug testing, you can do so after you get a warrant. But, those articulable grounds cannot be based on someone's economic class.  

I also doubt that justifying this policy on the need to protect children makes good sense, especially given that Gov. Scott's proposed policy seeks to protect those children by  subjecting their parents to degradation in excess of what is already accomplished by his rhetoric.

Furthermore, I'm extremely skeptical that the state can establish non-capricious grounds for judging who "appear[s] to be a drug user," although former Sen. Bill Frist (R-TN) might disagree.

Fourth Amendment | Permalink


Judges who sit on courts of appeal should have to take alcohol tests prior to sitting on cases after lunch.

Posted by: Liberty1st | Jan 2, 2014 3:33:30 PM

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