Scott Walker Wants To Drug Test Welfare Recipients, But It Doesn’t Work, And It’s Unconstitutional
A popular idea that does nothing useful while simultaneously violating the Constitution.
Fresh off his third election victory in four years, and already hinting that he’s at least thinking about running for the Republican nomination for President, Wisconsin Governor Scott Walker is proposing a plan that would require all Wisconsin residents receiving public benefits to undergo regular drug testing:
Wisconsin could have one of the nation’s most sweeping drug-testing requirements for those receiving public benefits if the proposal by Gov. Scott Walker to test those who apply for unemployment checks and food stamps becomes law.
But with scant details, it’s unclear whether any expansion beyond the current testing of drug felons would be allowed under federal law governing the state’s FoodShare program. It’s also unclear how Wisconsin could craft any broad-based testing program for public benefits recipients that would be found constitutional.
The newly re-elected governor and Assembly Speaker Robin Vos, R-Rochester, both say a top priority of the upcoming legislative session is to require that recipients receiving food assistance and unemployment compensation be drug free to qualify for benefits.
In Wisconsin, an estimated 836,000 people receive FoodShare benefits, about 40 percent of them children, according to the state Department of Health Services. As of last week, 39,958 people had filed weekly unemployment compensation claims, according to the Wisconsin Department of Workforce Development.
As part of his re-election campaign platform, Walker vowed to require “a drug test for those requesting unemployment and able-bodied, working-age adults requesting food stamps from the state.” But no further details, including the cost and scope of the proposal, were available last week from the Walker administration.
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Eleven states require testing of at least some recipients receiving cash welfare, NCSL data show. Four states have drug-testing requirements for at least some people seeking unemployment compensation, the NCSL said. Two states — Kansas and Mississippi — have both requirements, according to Jeanne Mejeur, senior researcher at the National Conference on State Legislatures.
While acknowledging no details on Walker’s proposal are yet available, Department of Workforce Development spokesman John Dipko said the agency “is committed to ensuring those who receive public assistance such as unemployment benefits are ready and willing to work.”
But some state programs in which everyone receiving or applying for public benefits is drug tested have been slapped down as unconstitutional. And more narrowly tailored programs testing only suspected drug users have resulted in very few beneficiaries being dropped from welfare rolls.
To at least some degree, drug testing of welfare recipients is authorized by a 1996 Federal law that allows states to drug test welfare benefits. Additionally, Federal law allows states to bar some benefits to people convicted of certain drug offenses, and to require further testing of people with a record of convictions of drug related crimes. the kind of broad based testing that Walker is talking about here remains controversial, and its legality is still very much up in the air. In the wake of the 2010 elections, which brought Republican Governors and legislators in to offices in many states, though, the move to expand drug testing of this group of people has expanded greatly. Florida is, of course the most prominent example due to the law that Governor Rick Scott signed not long after taking office in 2011, and other Republican politicians such as South Carolina Governor Nikki Haley, and Texas Governor Rick Perry brought the issue up during the final gasps of his Presidential campaign in late 2011. It was Florida’s program, though, that drew the most attention from supporters of the idea of drug testing and opponents. Not long after the law came into effect, a lawsuit was filed against the program alleging that it constituted the kind of unconstitutional suspicionless search barred by the Fourth Amendment. As I noted at the time, this argument, while untested in the Courts, seemed fairly strong based on other precedent from both the Supreme Court and lower Federal Courts. By October of 2011, a Federal Judge had issued an injunction against the program by a Federal District Court Judge, and that injunction was eventually upheld by the 11th Circuit Court of Appeals. Earlier this year, after a full hearing on the merits, the Federal District Court Judge hearing the case issued a full injunction against the program, finding that it does indeed violate the Fourth Amendment due to the fact that it mandates warrantless searches without either reasonable suspicion or probable cause. The State of Florida has vowed to appeal that ruling, but given the often slow pace of litigation in the 11th Circuit it does not appear that the case has made it very far down the appellate path as of yet.
Outside of the Florida rulings, there has only been one other ruling that is directly on point. In Marchwinski v. Howard, a 2003 decision from Michigan, a Federal District Court found a similar Michigan law to be unconstitutional. In that case, the District Court relied heavily on Chandler v. Miller, a 1997 Supreme Court case in which the Court struck down a law that required candidates for state office to pass a drug test in order to get on the ballot. In Marchwinski, the District Court said:
If the State is allowed to drug test FIP recipients in order to ameliorate child abuse and neglect by virtue of its financial assistance on behalf of minor children, that excuse could be used for testing the parents of all children who receive Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from the State. In all cases in which the State offers a benefit on behalf of minor children, the State could claim that it has a broad interest in the care of those children which overcomes the privacy rights of the parents. Indeed, the query posed by Justice Marshall in his dissent inWyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), is a pertinent inquiry to make here:
Would the majority sanction, in the absence of probable cause, compulsory visits to all American homes for the purpose of discovering child abuse? Or is this court prepared to hold as a matter of constitutional law that a mother, merely because she is poor, is substantially more likely to injure or exploit her children? Such a categorical approach to an entire class of citizens would be dangerously at odds with the tenets of our democracy.
Id. at 342, 91 S.Ct. 381.
Upholding this FIP suspicionless drug testing would set a dangerous precedent.
Additionally, this portion of Justice Ginsburg’s opinion seems particularly on point:
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.
Leaving aside the legal issues, which may ultimately end up being resolved by the Supreme Court, the simple fact of the matter is that there is absolutely no evidence that these programs actually show any higher tendency for people who receive public benefits to be illegal drug users, nor have they been shown to save money. Back in August 2011, for example, it was noted that the first round of testing in Florida that had occurred the month before found the percentage of those tested who were positive was exceedingly low, a finding that is consistent with studies conducted before hand that showed that people who receive public benefits are no more likely to be drug users than members of the general population. Subsequent analysis of the Florida program had shown that there was absolutely no savings from the drug testing program, and that it may have actually cost the state money given the fact that the number of people who tested positive was so low. Alan Pike notes that the results are similar when you look at drug testing programs in other states:
Tennessee has found one drug user out of 800 welfare recipients tested. With an overall drug use rate of 8 percent in Tennessee, the crackdown indicates that the poor are 64 times less likely to use drugs than everyone else. Utah spent $30,000 testing welfare recipients and produced just 12 positive tests. While 6 percent of Utahns overall say they use drugs, the state’s tests found drug use by just 2.5 percent of those tested and 0.2 percent of the total welfare recipient population.
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While food stamps recipients are a bit more likely to use drugs casually than the general population according to one study, age is a far better predictor of drug use than economic status or public assistance enrollment. And the raw numbers are too low to justify a dragnet policy of testing everyone who applies, according to critics at theAmerican Civil Liberties Union (ACLU) and the Centre for Addiction and Mental Health in Canada.
Just 3.6 percent of welfare recipients qualify as having a drug abuse or dependence problem according to 2011 data. About 8 percent of Americans and 9 percent of Wisconsin residents used drugs in the past month, according to the National Survey of Drug Use and Health.
No doubt programs like this are popular with members of the general public, which is probably one reason why Walker mentioned this idea frequently during his re-election campaign. The fact that something is popular, though, doesn’t mean that it actually accomplishes anything useful, or that it complies with the requirements of the Constitution. In this case, it seems clear that these types of drug testing programs do neither.
Another case of alleged fiscal hawks wasting money.
Hey, Popular=votes, so far a Republican politician, that’s all that matters.
Scott Walker is simply continuing the now time honored tradition of Republican politicians-stigmatizing and abusing vulnerable populations in order to appeal to his conservative base. Remember Reagan and his “welfare queens” with “strapping young bucks eating T-Bone steaks?” This is the 2.0 upgrade.
Maybe Walker really will be running for President. He certainly knows how to push the right buttons…
For some reason, Republicans never propose drug testing anyone who takes the mortgage interest deduction on their taxes, or farmers who rake in crop subsidies, or parents who put their children into public school, or executives of companies with government contracts……
I wonder what the reason could be…..?
Hey, how about drug testing anyone on Social Security and/or Medicare? I’m sure the senior citizens (and their children) will really embrace the concept — after all, since a dollar is a dollar, if we want people on public assistance to be drug free, then we should cast the same net over SS recipients as over welfare recipients.
How about drug-testing all the corporate welfare recipients?
I think that drug testing is popular because while costly it’s easy to implement and it looks like the government is doing something.
I also think this is motivated by a myth that welfare recipients are drug users (I’m sure some of them are but most addicts probably abuse alcohol and cigarettes than illegal drugs). Most recipients probably aren’t abusing anything.
@C. Clavin:
I used to have a problem with drugs and alcohol.
But now I make enough money.
Why not just drug-test everyone when they go to get their voter-ID’s????
I suggest drug testing all Governors, specifically Republican governors..
Seriously, what is it with Republicans?
They’re determined to further stigmatize and shame poor people.
Scott Walker’s next proposal allows random middle class white people to kick a negro in the teeth. For Jesus.
@michael reynolds:
Walker’s a Republican and therefore doesn’t give two figs about the middle class. His proposal will allow only campaign donors to kick negroes in the teeth and they will be able to do it anonymously.
The Republican Party is largely about grinding the faces of the poor, the vulnerable and minorities into the ground. Those who support and vote for Republicans should understand that they are are responsible for this, and contribute to it. They should stop pretending that they don’t really want to see this happen-in fact, they enable it.
@Scott F.:
Fair enough, I believe you are correct.
The sole purpose of these bills is to create a wedge between groups of people who receive benefits. If by pretending that the “welfare” group is made up of druggies who are too lazy to work to buy their fix they can allow those who receive other kinds of benefits to feel superior, and split the coalition. Then, once they’ve eliminated food stamps and all those other druggie loser programs they can target Medicare and SS, and now the seniors will be alone to fight for them.
They’ve been doing this for centuries, going back at least as far as plantation owners convincing poor white sharecroppers that they have more in common with the slave owners than the slaves, although the opposite was always true.
And of course, there are always people stupid enough to fall for this, to fight against their own interests and demand that their few precious resources go to supporting the richest of the rich.
We call these “conservatives.”
@C. Clavin:
Drug testing sure worked in the Armed Forces. When drug testing began, the DOPERS were rapidly eliminated from the services. Today, all members of the Armed Forces are subject to DRUG TESTING anytime. Today’s DOPERS don’t last long in the services.
Plus it shames the poor. Right in the Republican sweet spot.
@Titus Greenwood:
Yeah…right…and there weren’t any gays either.
/snark.
@Titus Greenwood: It’s a fact of life that people who join the military voluntarily give up a great many rights for the duration of their service. Are you suggesting that civillians should have to give up their rights as well? Why? And what constitutional justification is there for this?
@wr:
I can only assume he thinks welfare recipients should be issued uniforms and weapons.
@Titus Greenwood:
Maybe you should have to be drug tested. You might be a DOPER who is dangerous to society. I have the right to be protected from people like you.
Walker is so yesterday’s news.
Brownback…in Kansas…has a much better plan.
Brand new numbers that came out post-election show he has cut taxes so friggin’ deeply…that Kansas may have to eliminate welfare to balance the budget. His rosy pre-election revenue projections were off by a mile…and the State budget is totally f’ed. They need to cut some $435 million more from a $5.9 billion budget that has already seen draconian cuts to education, infrastructure, and social services.
In Kansas they have finally achieved the Republican dream…they have actually shrunk Government to the point that it can be drowned in one of those red plastic beer cups. Why waste time and money with drug-testing?
http://cjonline.com/news/state/2014-11-10/kansas-slashes-tax-revenue-forecast-must-confront-278-million-deficit
I wonder how many voters in Kansas have buyers remorse today?
@C. Clavin:
And lookihere:
The plan worked! John “Jim Crow” Roberts’ plan worked just as advertised! (Did same in North Carolina and Florida too!
@Titus Greenwood:
I can believe it worked to reduce amount of drug abuse for the illicit drugs that people were being tested for. What you would expect in such a situation is that raising the potential cost (i.e. random testing combined with possible legal prosecution and/or discharge from the military) of using illicit drugs would lead to people substituting other drugs, such as alcohol, for such substances. The data appears to be consistent with that:
http://www.drugabuse.gov/publications/drugfacts/substance-abuse-in-military
@michael reynolds: “I can only assume he thinks welfare recipients should be issued uniforms and weapons.”
Uniforms, sure, easier to spot and shame them that way. But weapons? Don’t you know the second amendment only applies to good white folk?
(Not that a majority of welfare recipients are minorities… but somehow I suspect most of the Tea folk have trouble grasping that concept…)
But, Gov. Scott had ties to the firms doing the drug testing, so it was all good. Lots of public money spent, and a bit more business for his friends. Plain old corruption.
What is Gov. Walker’s excuse?
@C. Clavin:
Interesting to see if OTB covers this latest failure of the Republican economic agenda.
The failure to cover the Reinhart/Rogloff failure (in which the researchers claimed rising levels of government debt are associated with much weaker rates of economic growth…and were then roundly debunked), any positive aspect of Obamacare, and repeated gloomy reviews of positive economic news…makes me think there isn’t a chance.
@al-Ameda No, Republican governors are interested in attaching a stigma to the use of government benefits, which is not the same as shaming poor people. If you are poor, then you have options, but the option of last resort is the state, and there should be some shame involved in asking everyone else to carry your wait. I know you don’t get it — but asking strangers to carry your load is shameful. :
Wow! the dregs of the board on this one. Funny I have to give a piss test to work/ be employed. Why shouldn’t the people I pay for with my tax money need to also? I’ll be sure to tell my employer that otb thinks it’s unconstitutional next time… Then I can be unemployed and collect my benefits I guess? Awesome thanks guys. Great plan! By the way cc you seem especially sore after the fourth ….cheers
@ratufa: Yes, and that is part of the intent. Another part of these laws is to make sure that you are not feeding the disease, that is, allowing taxpayer money to perpetuate drug use. Really, even one dollar of the public funding crime is unacceptable.
I think it’s generally hilarious how OTB cannot grasp the point that there’s something more important than cost, incarceration rates, and so on. It’s like they can never quite grasp the idea of principles or morality.
@Poster:
Um, then why aren’t they proposing drug testing for farmers who take crop subsidies, or for homeowners who take the mortage interest deduction on their taxes, or for senior citizens on Social Security, or for bankers whose banks make use of the FDIC?
These are all, after all, government benefits — and far, far more costly benefits to the taxpayer than welfare is. If Republican governors want to attach a stigma to the use of government benefits, it seems that crop subsidies would be a great place to do it, no?
@Poster:
Nicotine is a drug. A highly addictive drug that, delivered via tobacco, kills nearly half a million Americans a year and has a huge dollar cost to society. The government subsidizes tobacco. How come Republicans are not working to end the the use of tax money to perpetuate the use of this very dangerous drug?
@Poster:
So we should eliminate the mortgage interest deduction? A dollar of value is a dollar of value, after all. So if I get a $1 tax benefit from the mortgage interest deduction, and I use that dollar to buy drugs, then we should require all taxpayers to be drug-tested in order that I not be able to do that again?
@munchbox:
The Fourth Amendment prohibits search by the government without cause…including suspicion-less or random searches.
Let me guess…it’s OK to abridge the 4th…but not the 2nd…right?
Why do you hate America so?
@munchbox:
I hate you for your freedoms.
@Poster:
Like the Fourth Amendment prohibition on warrantless searches made without either reasonable suspicion or probable cause?
@Poster:
Curious — did you attend a public grade, junior high or high school? Did you think your parents should have had to be drug-tested since they were, after all, asking strangers to carry the load of educating their children?
@Poster:
Grasp this…
@Poster:
Actually, Governor Walker and other Republican legislators are interested in drug testing welfare recipients, food stamp recipients, and those who receive unemployment compensation – not all government benefits.
Why stop there, why not drug test all people who avail themselves of any government benefit?
@al-Ameda:
Because those people have the power to complain.
@al-Ameda:
Yes, why not drug test all people who avail themselves of, say, the 4O1K and IRA retirement tax benefit?
@Poster:
Awesome…I can stop paying property taxes that fund schools for other peoples kids.
@Poster:
Not “even one dollar” is a ridiculous standard. Of course some of the money from public programs is going to be used in a way some people think is “irresponsible”, so the real question is whether the amount in question is worth worrying about.
All the evidence so far indicates it’s not a problem worth spending a lot of resources on. In fact, everything we’ve seen so far could indicate we’re already spending too much effort on this issue.
@David M:
Sounds like voter fraud.
Another Republican fantasy dashed.
@Rafer Janders:
I itemize and take both the mortgage interest and local property taxes deduction, I suppose that I, like millions of other Americans, should waive my constitutional rights and agree to be drug tested for availing myself of a government benefit.
Oh wait, I’m white and I deserve my government benefit – no need to drug test me, right?
“The Fourth Amendment prohibits search by the government without cause…including suspicion-less or random searches.”
It is not a violation of the Fourth Amendment. The military and many other government workers Federal\State\Local get tested by the “government on regular bases. The welfare people ares not forced to take the test anymore than an employee is forced to. If they refuse to take the test then they don’t received the benefits wither its welfare or employment.
Rafer,
I did paid for with my parents tax money and the rest of the property owning citizens. Many which are subject to drug testing to keep their employment.
What does that even mean? Are you foreigner? You should come to America then. …I hear crossing the border is nice is time of year. Easy too….
….not with Biden’s son apparently…
the race card ….really? That’s some …what is it….freeper crap there 😉 derppppp!
@ al-Almeda
The IRS does require you to submit a good deal of private information if you want a refund. Are they violating the Constitution? They also require you to forfeit your 5th Amendment right from self recrimination by forcing you to fill out a form and certified that you told the truth in order to get a refund. How about the requirement of verifying you have insurance now.
Once again we have the small government types yelling for more government intrusion…all in the hopes of denying the sick or elderly or poor any dignity.
Good on y’all.
@Titus Greenwood: HAHAHA that’s hilarious because I don’t know of a single person in the service who doesn’t do drugs. Most heavily abuse alcohol but there’s also the prescription abusers and the more conventional drug users. I can’t tell you the number of times I’ve gotten high with service members. I live near the largest active duty armored base in the country. You might of heard about the shooting that occurred here some years ago.
@Poster:
Thank you. I have observed that for conservatives, nothing seems to ever be about what it’s about. For them, everything seems to be really about someone else’s real or imagined moral failure. You’ve provided a very clear example supporting my thesis. I appreciate it.
I’ll also note that conservatives are big on proclaiming, “You can’t legislate morality.” Until they want to.
@C. Clavin:
It’s worth noting that the workers of Walmart and McDonalds make up the largest single block of government aid recipients…amounting to a nearly $70B
corporate welfare paymentindirect subsidy to those corporations.If you were really serious about reducing welfare rolls then having those two fantastically wealthy corporations pay their employees a living wage would be far more efficient than drug tests which cost taxpayer money, undermine the Constitution, and identify, statistically speaking, very few people.
Of course that’s not what this is about…but I’m just sayin’
@C. Clavin: At this point, the people in Kansas can’t be considered victims. They are active participants in their own economic destruction.
In other words: you votes for what you gets, so don’t come whining to the rest of us afterwards.
@munchbox: Suggest you look at the cost-effectiveness of the program as it was implemented in Florida.
Any CEO who ran his company like that would be fired by the Board of Directors.
@munchbox:
Um, are YOU foreigner…?
@grumpy realist:
Well yeah…but the rest of us will be on the hook to cover their budget shortfalls.
Kansas already took back 12% more from DC than they send there…and that’s before it turned into Brownbackistan.
Yeah right Matt
if you don’t know a single service member who doesn’t do drugs than you don’t know a vary wide variety of service members. I wouldn’t be surprise when you were getting high that you were smoking tea and not marijuana. That’s one of the problems with legalization is people are getting hold of the real stuff and its not the sugar pill phoney crap that they are use to. Never the less the military does do random drugs test and some do get caught. Maybe they should do it more often but that another argument.
The federal govt demands that if any state gets any $ from the feds the feds get to MAKE ALL the rules all the time.
Well then why can’t the feds change the rules about drugs and welfare?
Consequently then the State gets to make ALL rules about how state $ is spent. Sounds like a no brainer for me. He who has the $ gets to make the rules on how his $ is spent.
@Rafer Janders:
People on SS and Medicare PAID THEIR OWN $ FOR SS and MEDICARE.
I’ll be kind and say at least 75 % of the people who did NOT pay a cent and CHOSE never to WORK are different.
@The other Jack:
You really are clueless aren’t you?
Certainly not everyone in the military does illicit drugs, but binge drinking is the norm among a majority of the people I have known in the service and a walk through Waikiki on virtually any evening reinforces this notion. I know a fair number of military folks that figured out which drugs don’t show up on the standard screens (LSD and mushrooms to name two) and chose to use those drugs over pot since it does show up on the screens.
@the other Jack:
The IRS does not require a drug test in addition to filing a tax return.
Your analogies are not apt.
@Poster:
Sure I get it. Strangers are subsidizing my itemized mortgage interest and property tax deductions. You’re one of those strangers – are you okay with that? Should I be drug tested, after all that is a use of federal tax resources for my benefit.
@munchbox:
“freeper crap” and “derppp!” -not at all.
You don’t think race is a factor in the proposal to drug-test welfare recipients?
@Danny Mann: Ah, another Maker, bravely fighting off the lazy corrupt Takers!
Quick, to Galt’s Gultch, before they discover that you are so important!!!
Danny Mann:
Yet another exceptionally popular right-wing talking point that is divorced from reality. SS and Medicare are not savings programs. They are insurance programs. I realize you don’t grasp the difference.
Medicare benefits have no cap. If you live a long and sick life, what you collect from Social Security and Medicare will exceed what you paid, and you will be subsidized by others who did not live a long and sick life. Social Security and Medicare are socialism.
@Danny Mann:
Actually, many, many people pay far less into either (or both) the Social Security and Medicare systems than they take out in retirement and retirement health benefits. Both programs are based on an insurance plan concepts – pooling resources and actuarial projections enable the programs to operate this way. Occasionally the funding rates have to be adjusted so that the programs remain viable. The last time Social Security was adjusted was during the Reagan Administration.
@grumpy realist: “Any CEO who ran his company like that would be fired by the Board of Directors.”
No he wouldn’t. He’d just cut them in for a taste.