Less than six months after taking office in 2011, Florida Governor Rick Scott helped pushed through a bill requiring all people receiving public assistance from the state to undergo drug testing in order to continue receiving welfare assistance from the state. This is a program that many Republicans around the country had talked about before, but Florida appears to have been the first state to actually pass such a program into law. Not surprisingly, lawsuits were immediately filed against the law seeking to have the law declared unconstitutional in that it violated the Fourth Amendment and other rights under the U.S. Constitution. As I noted at the time, the argument that the Florida law was unconstitutional was pretty strong, based upon previous similar but identical Supreme Court precedent and rulings from other Federal Courts around the country. In addition to the Constitutional arguments, there was also no empirical evidence to support the idea that mandatory drug testing of welfare recipients would accomplish anything. For one thing, studies predating the Florida law show that welfare recipients are no more likely to be drug users than the general population as a whole. This was seemingly substantiated by the first round of testing in July 2011, which showed that a mere 2% of those receiving assistance from the State Of Florida tested positive, a number roughly comparable to the population as a whole. Additionally, that first round of testing revealed that the savings to the state from cutting this group of people from the welfare rolls, while also compensating all those who tested positive for the cost of the test that they had to pay out of pocked, made the savings from the program essentially non-existent.
Eventually, a Federal Judge placed a temporary injunction against the program, which a Federal Court of Appeals upheld. Now, a Federal Judge has declared the entire program unconstitutional and permanently enjoined its enforcement:
KEY WEST, Fla. — A federal judge on Tuesday struck down as unconstitutional a Florida law that required welfare applicants to undergo mandatory drug testing, setting the stage for a legal battle that could affect similar efforts nationwide.
Judge Mary S. Scriven of the United States District Court in Orlando held that the testing requirement, the signature legislation of Gov. Rick Scott, a Republican who campaigned on the issue, violated the protection against unreasonable searches.
“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,” she 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 passed the measure in 2011, and the case was being closely watched by several other states, including Georgia, which passed similar legislation in 2013 but found it dogged by legal challenges. State data in Florida also showed that the measure produced few results. Only 108 out of 4,086 people tested — 2.6 percent — were found to have been using narcotics. State records showed that the requirement cost more money to carry out than it saved.
But as the country emerged from the recession, numerous states, powered by the strength of Republicans in many legislatures, sought to make welfare or unemployment checks contingent on drug testing. That is despite a 2003 federal court ruling in Michigan that struck down drug testing for welfare recipients because it amounted to an illegal search.
“In Michigan a number of years ago there was a court decision that had a chilling effect on these kinds of proposals,” said Grant Smith, policy manager of the Drug Policy Alliance, an organization that advocates more liberal drug-use laws. “This new ruling should give pause. We have seen a number of proposals continue to be put forward across the country, but the writing is on the wall that requiring people to submit to drug testing for no reason other than being poor and in need of assistance is not going to pass constitutional muster. It’s not fair, it’s not cost effective, and it’s unreasonable.”
Arizona passed a drug-testing requirement in 2009. Nine more states, including Florida, have passed such laws since 2011. At least 29 states debated such measures in 2013, but only two of the bills passed.
In Georgia, the law’s rollout was delayed pending the outcome of the Florida legal challenge. In North Carolina, Gov. Pat McCrory, a Republican, vetoed such a law. Although the Republican-controlled legislature overrode the veto, the governor has continued to object to the requirement, which he called costly and ineffective.
The Judge presiding over this case, District Court Judge Mary Scriven, a George W. Bush appointee who has been on the bench since 2008, relied primarily, as expected on the Fourth Amendment in her ruling:
The legal question presented before this Court is whether Section 414.0652, Florida Statutes, which requires all applicants for TANF benefits to submit to suspicionless drug testing, is constitutional under the Fourth and Fourteenth Amendments. Defendant is correct that the concurring opinion in Lebron remarked that the Eleventh Circuit had not resolved the ultimate question of the constitutionality of the drug testing scheme.4 Even so, the Eleventh Circuit’s legal rulings appear to have foreclosed all but one of the bases on which the State seeks to preserve the constitutionality of the law. That remaining issue, whether the prevalence of drug use alone within a segment of the population receiving state funding can support mandatory, suspicionless drug testing of that entire population, was called into substantial question,5 and the record now before this Court fails to support the State’s asserted -authority. Thus, for the reasons set forth below, and with the benefit of the rulings an analysis of the Eleventh Circuit Court of Appeals, the Court declares the statute facially unconstitutional and permanently enjoins the State from reinstating and enforcing the law.
In the specific context of government-mandated drug testing programs, the Supreme Court has limited its exemptions of such programs from the Fourth Amendment’s warrant and probable cause requirements only where the asserted need for suspicionless searches fits within the “closely guarded category” of constitutionally permissible justifications. See Lebron, 710 F.3d at 1207 (citing Chandler, 520 U.S. at 309). “To fall within this closely guarded category, the Court has made clear that its precedents establish that the proffered special need for drug testing must be substantial.” Id. (citing Chandler 520 U.S. at 318). As the Eleventh Circuit explained, ”the [Supreme] Court has recognized [only] two concerns that present such exceptional circumstances which are sufficiently substantial to qualify as special needs meriting an exemption to the Fourth Amendment’s warrant and probable cause requirement: the specific risk to public safety by employees engaged in inherently dangerous jobs, and the protection of children entrusted to the public school system’s care and tutelage.” Id.
With regard to the need of ensuring public safety, the Supreme Court in Skinner and Von Rabb recognized sufficiently substantial “special needs” where railroad employees were engaged in safety-sensitive tasks, Skinner, 489 U.S. at 620, and where the sensitive positions of certain United States Customs employees presented-extraordinary safety and national security hazards, Von Raab, 489 U.S. at 666. In Skinner, for instance, the Federal Railroad Administration found that alcohol and drug abuse by railroad employees posed a serious threat to safety after evidence showed that alcohol or drug abuse was a factor in several accidents that resulted in numerous fatalities, other injuries, and property damage. 489 U.S. at 607. In response, the involved in train accidents to take blood and urine tests. Id. at 606. The safety sensitive duties tasked to the railroad employees supported the Court’s determination that the government had met the required showing of a special need, to wit, ensuring the safety of the traveling public and of the employees themselves. This need, the Court concluded, justified a policy prohibiting the use of alcohol or drugs while on duty. Id. at 620-21. The Supreme Court also explained that the delay required to procure a warrant to determine whether a violation of the prohibition had been committed could result in the destruction of valuable evidence of drug and alcohol use, and adherence to normal probable cause and warrant requirements would frustrate the compelling government interest in railway safety. Id. at 623.
Similarly, in Von Rabb, the Supreme Court upheld a United States Customs Service policy that made drug testing a condition of working in positions directly involving drug interdiction or requiring the employee to carry a firearm. 489 U.S. at 660–61. The Court explained that the Customs Service, “in performing its almost unique mission,” id. at 674, was our “first line of defense . . . against the veritable national crisis in law enforcement caused by smuggling of illicit narcotics.” Id. at 668 (internal quotations and citations omitted).
Judge Scriven goes on to examine the evidence presented by the state in an effort to justify the warrantless searches that the law permits, which consists primarily of the test results I discussed above, along with with additional studies which, somewhat vaguely, purport to argue that welfare recipients are more likely to be drug users without actually showing any evidence of the same and, of course, the claim that they’re doing all of this “for the children.” She also relies heavily on the 1997 Supreme Court case called Chandler v. Miller. This was a suit filed against a Georgia law which required evidence candidate running for selected state offices to take and pass a drug test before being allowed a place on the ballot. In the Court’s opinion in that case, which struck down the law Justice Ginsburg, noting that the Georgia drug testing requirement clearly implicated Fourth Amendment concerns despite the fact that it was not a criminal statute and didn’t necessarily impose a criminal penalty, said the following:
What is left, after close review of Georgia’s scheme, is the image the State seeks to project. By requiring candidates for public office to submit to drug testing, Georgia displays its commitment to the struggle against drug abuse. The suspicionless tests, according to respondents, signify that candidates, if elected, will be fit to serve their constituents free from the influence of illegal drugs. But Georgia asserts no evidence of a drug problem among the State’s elected officials, those officials typically do not perform high risk, safety sensitive tasks, and the required certification immediately aids no interdiction effort. The need revealed, in short, is symbolic, not “special,” as that term draws meaning from our case law.
(…)
However well meant, the candidate drug test Georgia has devised diminishes personal privacy for a symbol’s sake. The Fourth Amendment shields society against that state action.
Judge Scriven’s conclusion is quite similar:
In sum, the State has failed to show that the TANF program or its recipients in this case fall within the “closely guarded category” for which or for whom the Supreme Court has sanctioned mandatory, suspicionless drug testing. The State has also failed to show that the statute at issue in this case is otherwise necessary to alleviate the concerns raised by the State. Accordingly, the Court’s analysis as to the constitutionality of the statute should end here
Florida will no doubt appeal this case, but Judge Scriven’s opinion appears to me to be pretty airtight, as does the controlling precedent. Absent some kind of special circumstance, the state simply cannot require someone to undergo a warrantless drug test regardless of whether or not there is a reasonable basis to believe that there might be a reason to suspect that the individual involved has been or continues to be an habitual drug user. Typically, those circumstances have involved positions that impact public safety, such as the railway workers in Skinner, or airline pilots or persons in other similar positions where have the position to impact public safety. Quite obviously, that isn’t true of welfare recipients. Instead, Florida picked this group out because they are on public assistance, because that in and of itself makes them unpopular with members of the general public, because they have little political power, and most probably to discourage people from applying for public assistance in the first place. None of those are legitimate reasons to violate the rights of people on welfare. The Court got it right here, and I expect this result to withstand appeal in the long run.
Here’s the opinion:
