Is Scott Walker’s plan to drug test welfare recipients constitutional?

posted at 2:41 pm on November 12, 2014 by Noah Rothman

Following his third statewide victory in four years, Wisconsin Gov. Scott Walker wasted no time before announcing new reforms for his state. By far the most controversial is his stated intention to impose narcotics testing on prospective recipients of food stamps and unemployment benefits.

Wisconsin is already one of five states which requires those who file for public assistance who have a prior drug-related felony conviction to undergo drug testing. The others, Pennsylvania, Maine, Minnesota, and Virginia, can hardly be called havens of unfettered Republicanism. In two markedly redder states in the Deep South, Mississippi and Alabama, applicants can be drug tested if authorities find “reasonable suspicion” which leads application reviewers to believe a prospective beneficiary could be abusing substances.

Walker’s intention to apply this standard to anyone seeking federal assistance, even benefits into which they have paid like unemployment insurance, without any reasonable suspicion of drug abuse is a much more aggressive reform and one which may be unconstitutional.

A 2003 case out of Michigan established that “suspicionless” drug testing for prospective social welfare beneficiaries represented a violation of their personal liberties. The 6th Circuit U.S. Court of Appeals ruled in that case that drug testing can be imposed on an applicant only if there is reasonable suspicion of wrongdoing.

A report in the Wisconsin State Journal suggests that Walker’s proposed reform will encounter the same constitutional hurdles.

When it comes to cash welfare, broad-based drug testing also has been declared unconstitutional.

Florida’s law has been on hold for three years since a federal judge found the requirement violates the constitutional guarantee against unreasonable government searches.

The class-action lawsuit was brought by Luis Lebron, a single father and disabled Navy veteran, who refused to take a drug test on the grounds that it violated his civil rights.

U.S. District Judge Mary Scriven agreed with Lebron, finding that mandatory drug testing without a reasonable suspicion of drug use violates the Fourth Amendment.

That decision, involving the state’s Temporary Assistance for Needy Families program, was upheld by the 11th Circuit U.S. Court of Appeals last year. The state of Florida has appealed.

“The simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy,” read a majority decision reached by the 11th Circuit.

Unlike Walker’s union reforms, which inspired a similar level of apoplexy in his Democratic opponents, these reforms may be a legitimate violation of constitutional rights. The state Supreme Court vindicated Walker’s collective bargaining reforms, but the conservative reformer may be setting himself up for a rebuke from the courts with his latest move.

While states have slightly more freedom to experiment with similar reforms, federal law prohibits drug testing prospective beneficiaries. In September, Walker told the Milwaukee Journal-Sentinel that he welcomes a fight with the federal government over his proposed reforms. “We believe that there will potentially be a fight with the federal government and in court,” Walker said.

Why would Scott Walker want to set up a fight with the courts and the federal government? The answer seems clear. These reforms are rather popular with base Republican voters, and the institutions which would oppose Walker’s reform are not. This is a pretty clear indication that Walker is interested in translating his successes in Wisconsin into the Republican presidential nomination.


Related Posts:

Breaking on Hot Air

Blowback

Trackbacks/Pings

Trackback URL

Comments

1) No, drug testing recipients of a -state- program is likely not constitutional.

2) Is it good policy? Nope.

Done and done.

You guys just want to cheat, you know you can’t truly reform welfare, so you’re trying to get -whatever- you can at the margins (like drug testing the recipients). Treating the symptoms doesn’t kill the disease though, so this is a wasted effort.

Munchen on November 13, 2014 at 12:02 PM

wow. Persuasive analysis of the issues. You really explain how placing a requirement to receive something you voluntarily apply for is unconstitutional.

And, you perfectly explain how it is bad policy.

good job.

Done and done.

Monkeytoe on November 13, 2014 at 12:28 PM

Monkeytoe on November 13, 2014 at 12:28 PM

I don’t have the explain it to you — I’ll let the courts do that (as some already have).

The irony here is delicious, you cons sit here arguing for limited government all day every day, yet you sit here arguing now that states should spend $786 per-person to -attempt- to disqualify them from welfare. Just look at FL, they spent more money testing than they would have on the 2% of people who tested positive. Derp.

Munchen on November 13, 2014 at 12:38 PM

1) No, drug testing recipients of a -state- program is likely not constitutional.

2) Is it good policy? Nope.

Done and done.

You guys just want to cheat, you know you can’t truly reform welfare, so you’re trying to get -whatever- you can at the margins (like drug testing the recipients). Treating the symptoms doesn’t kill the disease though, so this is a wasted effort.

Munchen on November 13, 2014 at 12:02 PM

So what would happen if a state ignored welfare all together and refused to distribute?

nobar on November 13, 2014 at 12:45 PM

When Florida tried drug testing, they found relatively few drug users, a much lower percentage than the general population, and it cost the state more money to drug test than they saved in benefits.

cam2 on November 12, 2014 at 8:04 PM.

What is the real purpose of the drug testing – to catch drug users or get people on welfare to not use drugs?

Have you considered that perhaps more people collecting welfare stayed off drugs BECAUSE they know, because of the testing, that using illegal drugs might cost them their welfare handouts? If that’s the case, then the drug testing actually accomplished what it was supposed to.
The goal of the drug testing is not to catch people using drugs, it’s to get people on welfare to stop using drugs so they are less of a burden to society, using their gubmint handouts for their intended purpose, and better able to get a job and get off welfare.

However, another possibility is the drug testing process is easy to cheat and welfare drug users have figured it out.

dentarthurdent on November 13, 2014 at 12:47 PM

The irony here is delicious, you cons sit here arguing for limited government all day every day, yet you sit here arguing now that states should spend $786 per-person to -attempt- to disqualify them from welfare. Just look at FL, they spent more money testing than they would have on the 2% of people who tested positive. Derp.

Munchen on November 13, 2014 at 12:38 PM

Do you really think that’s the purpose of the drug testing?

dentarthurdent on November 13, 2014 at 12:49 PM

So what would happen if a state ignored welfare all together and refused to distribute?

nobar on November 13, 2014 at 12:45 PM

That would be a great day. But you and I both know that isn’t coming anytime soon. The real problem with getting rid of welfare is that it’s so large its on both sides of the argument. I’m sure there are plenty of GOP voters going to the polls…and the bread line right after. Granted, I bet the skew is leftward, but not anywhere near 100%.

Munchen on November 13, 2014 at 12:49 PM

I don’t want some elected pot head making laws for me.

TSK9 on November 12, 2014 at 3:06 PM

Heh. We have a city councilman in the clink for drug charges and probation violation, and we can’t get rid of him because he hasn’t been convicted of a felony yet. At least he hasn’t been able to vote on anything for the past 3 months of his incarceration.

cptacek on November 13, 2014 at 12:51 PM

Do you really think that’s the purpose of the drug testing?

dentarthurdent on November 13, 2014 at 12:49 PM

No, I think the purpose is to make the GOP base ‘feel good’ that we’re ‘doing something’ — Because demonstrably, it’s been a waste of money in most places so far (which is of course, the antithesis of fiscal conservatism).

It’s a shared misery thing, some other commenters have addressed: “Hey, if I have to take a drug test for my job, those welfare leeches deserve it too!”

Munchen on November 13, 2014 at 12:51 PM

I don’t want some elected pot head making laws for me.

TSK9 on November 12, 2014 at 3:06 PM

No, we can’t have that — Only people on State-Approved Drugs like Oxycodone need apply.

Munchen on November 13, 2014 at 12:53 PM

dentarthurdent on November 13, 2014 at 12:47 PM

If it’s not drugs, they’ll spend the money on strippers and booze instead. I assume you wouldn’t say those usage are any more noble than drugs. People are always going to find a way to game the system. Again, it’s the disease (near-unlimited welfare), not the symptoms, that are the problem.

Munchen on November 13, 2014 at 12:56 PM

Munchen on November 13, 2014 at 12:51 PM
Munchen on November 13, 2014 at 12:56 PM

It’s only a waste of money if it’s not doing what it’s intended to do.

According to the bill’s author, Sen. Jane Nelson (R-Flower Mound), the purpose of the bill: ‘ “It ensures that TANF, formerly known as welfare, supports its core purpose of helping families to achieve self-sufficiency,” said Nelson, as she introduced the bill. “We found common ground to support a plan that makes sure state resources aren’t used to support a drug habit while at the same time making sure children receiving benefit in a productive environment.”

The purpose of the drug testing is NOT to save money by denying welfare to people – it is to stop people from using welfare money to pay for drugs – which hopefully means they use it for what it’s intended, which is to feed their kids. In that respect, having a low rate of positive drug tests suggest that maybe it’s doing what it’s supposed to do.

People on welfare shouldn’t be using welfare money for alcohol or strippers, or gambling, or a lot of other things either, but then strippers and alcohol are not illegal either.
I agree people game the system, and use the money for things that it’s not intended for – which is why I’m fully agreeable to cutting back or eliminating welfare as it currently exists.

But if I have to submit to a drug test in order to get or keep my job, and/or a government security clearance and whatever job goes with it – then people getting my tax money handed to them for doing nothing can darn well pass the same test.

dentarthurdent on November 13, 2014 at 1:18 PM

I don’t have the explain it to you — I’ll let the courts do that (as some already have).

The irony here is delicious, you cons sit here arguing for limited government all day every day, yet you sit here arguing now that states should spend $786 per-person to -attempt- to disqualify them from welfare. Just look at FL, they spent more money testing than they would have on the 2% of people who tested positive. Derp.

Munchen on November 13, 2014 at 12:38 PM

We are arguing the issue, not the court’s interpretation of the issue. I have no doubt liberal judges have contorted themselves to find that drug-testing those receiving benefits somehow violates the constitution. As I said in a much earlier comment, in order to so find, the Court must first find that the receipt of such benefits is a “right” under the constitution.

You see, otherwise placing a requirement on the receipt of benefits cannot logically be “unconstitutional”. Because nobody is required to apply for benefits. Your act of applying for the benefit would be the consent for the drug test. The 4th amendment is completely unrelated – but liberal judges are willing to sell their souls and lie and use contorted logic to find otherwise.

As to your second point – allowing the gov’t to place requirements on the receipt of benefits is hardly against conservative thought and isn’t somehow anti-limited gov’t. To claim otherwise is simply asinine.

Asking that the gov’t have reasonable requirements on the receipt of handouts is actually well within conservative thought. Most conservatives believe in social safety nets, but unlike liberals, we don’t believe in cradle-to-grave unfettered benefits with no restrictions.

there may be an argument that drug-testing welfare recipients is inefficient or accomplishes nothing – as far as your asserted Florida example, I would need to know much more – when were the tests given (i.e., was there advance notice, or random checks); what was tested for? Etc. Simply asserting something as fact does not make it so. I may very well be that drug-testing is not good policy, I have not seen a persuasive argument made on this thread though.

Monkeytoe on November 13, 2014 at 1:23 PM

Again, it’s the disease (near-unlimited welfare), not the symptoms, that are the problem.

Munchen on November 13, 2014 at 12:56 PM

that may be true – but seeing as how we are incredibly unlikely to get rid of welfare altogether in the near future, making other efforts makes sense.

You are essentially arguing that if we can’t get rid of welfare altogether, than do nothing and leave it as it is. Not a very reasonable or persuasive argument.

Monkeytoe on November 13, 2014 at 1:25 PM

No, I think the purpose is to make the GOP base ‘feel good’ that we’re ‘doing something’ — Because demonstrably, it’s been a waste of money in most places so far (which is of course, the antithesis of fiscal conservatism).

Munchen on November 13, 2014 at 12:51 PM

If it is so demonstrative, cite to the studies, etc. that support what you keep asserting. Simple assertion of a fact does not require that we believe you. It may be that you are correct, but until you cite evidence supporting your assertions, then nobody will ever know you are correct.

Monkeytoe on November 13, 2014 at 1:27 PM

dentarthurdent on November 13, 2014 at 1:18 PM

Yeah so you’re basically in the shared-misery category, and I can’t really blame you — I’d probably feel the same way if I was still an employee rather than an owner. I hate that any of my tax money is headed their way.

That said, I think rather than worrying about who is gaming the system, or using the money for illicit (AKA non state-approved) things… we should consider the weird middle-ground bureaucracy we have now.

Just off the top of my head we’ve got TANF, WIC, Section8, etc.. Each one of those programs requires its own separate set of bureaucracy, offices, employees, paperwork, computers, etc… all of which costs a TON of money — just to give away money! The way I see it there are 2 ways we can go:

1) Continue the bureaucracy, and beef it up — ie. Limit food stamps like WIC, where you can only buy very few ‘healthy’ items — no soda, etc. And similarly govern what almost every dollar can be spent on.

2) Liquidate the entire bureaucracy, and switch to a simple cash payment for each welfare recipient — usable for whatever they want (rent, food, etc). The cost savings alone would be immense, and as you’ve already admitted, people are going to game the system anyway — so why not just get rid of it entirely and let people make their own choices, for better or worse?

I am much more in favor of option 2, mainly because it doesn’t require a bunch of logical gymnastics to explain why its ideologically reasonable for a conservative to support. Last, it represents a reduction in regulation (overall) rather than an increase, which is what most of the cons here claim to want in -every- other debate.

Munchen on November 13, 2014 at 1:27 PM

I don’t have the explain it to you — I’ll let the courts do that (as some already have).

Munchen on November 13, 2014 at 12:38 PM

In other words – you can’t explain it because you don’t understand it.

Monkeytoe on November 13, 2014 at 1:29 PM

Monkeytoe on November 13, 2014 at 1:29 PM

Sigh…

Munchen on November 13, 2014 at 1:32 PM

That said, I think rather than worrying about who is gaming the system, or using the money for illicit (AKA non state-approved) things… we should consider the weird middle-ground bureaucracy we have now.

Just off the top of my head we’ve got TANF, WIC, Section8, etc.. Each one of those programs requires its own separate set of bureaucracy, offices, employees, paperwork, computers, etc… all of which costs a TON of money — just to give away money! The way I see it there are 2 ways we can go:

1) Continue the bureaucracy, and beef it up — ie. Limit food stamps like WIC, where you can only buy very few ‘healthy’ items — no soda, etc. And similarly govern what almost every dollar can be spent on.

2) Liquidate the entire bureaucracy, and switch to a simple cash payment for each welfare recipient — usable for whatever they want (rent, food, etc). The cost savings alone would be immense, and as you’ve already admitted, people are going to game the system anyway — so why not just get rid of it entirely and let people make their own choices, for better or worse?

I am much more in favor of option 2, mainly because it doesn’t require a bunch of logical gymnastics to explain why its ideologically reasonable for a conservative to support. Last, it represents a reduction in regulation (overall) rather than an increase, which is what most of the cons here claim to want in -every- other debate.

Munchen on November 13, 2014 at 1:27 PM

While in theory that sounds great, it cannot work. Everything you subsidize you get more of.

So, if we made it that much easier to receive and spend gov’t handouts, we would get far more people receiving those handouts.

I’m in favor of reforming and streamlining the various entitlements, but we can’t just make it a system where anyone who wants it shows up and gets a wad of cash.

As far as “logical consistency” for a conservative to support – you are confusing a number of issues. You seem to believe that “cost” is the only conservative value.

But, trying to get people off welfare is another important conservative value. If that means making it difficult for chronic drug users to obtain welfare benefits, that may be worth the cost. As I said on a comment above, I don’t know if it is, but simply asserting it isn’t is not an argument.

And, before you tell me “you don’t have to explain it to me” as you previously did – why are you here? If you aren’t interested in engaging in debate and defending your position, what the hell are you doing here commenting?

Monkeytoe on November 13, 2014 at 1:34 PM

Sigh…

Munchen on November 13, 2014 at 1:32 PM

there is the thoughtful, persuasive, analysis we have come to expect from you. Showed me.

I love people who think they are smart but cannot put forth anything more than “I told you so” as the basis of their argument.

Sigh . . . .

Done and Done.

Monkeytoe on November 13, 2014 at 1:36 PM

The 4th amendment is completely unrelated – but liberal judges are willing to sell their souls and lie and use contorted logic to find otherwise.

You mean the same 4th amendment that courts have chipped away at so much over the years that it’s basically meaningless now? Drug-sniffing dogs, DUI checkpoints, TSA, yeah… why not throw welfare recipients on that list, can’t really hurt at this point I guess.

Munchen on November 13, 2014 at 1:37 PM

As far as “logical consistency” for a conservative to support – you are confusing a number of issues. You seem to believe that “cost” is the only conservative value.

But, trying to get people off welfare is another important conservative value. If that means making it difficult for chronic drug users to obtain welfare benefits, that may be worth the cost. As I said on a comment above, I don’t know if it is, but simply asserting it isn’t is not an argument.

And, before you tell me “you don’t have to explain it to me” as you previously did – why are you here? If you aren’t interested in engaging in debate and defending your position, what the hell are you doing here commenting?

Monkeytoe on November 13, 2014 at 1:34 PM

So explain to me the practicality of what you’re suggesting. So Mr. drug user has to take a piss test for welfare, and he fails, which cuts off his welfare. What do you think happens next? Do you think he says “oh wow, I guess I have to get a job now” — Or is it more likely that his next move is “well damn, I guess its time to rob a convenience store?”

If you think all it will take to ‘get people off welfare’ is to stop giving it to them… I think you’ve got another thing coming.

Munchen on November 13, 2014 at 1:40 PM

You mean the same 4th amendment that courts have chipped away at so much over the years that it’s basically meaningless now? Drug-sniffing dogs, DUI checkpoints, TSA, yeah… why not throw welfare recipients on that list, can’t really hurt at this point I guess.

Munchen on November 13, 2014 at 1:37 PM

I’ll explain it again – I’ll try to go slowly as you seem incapable of understanding.

The 4th amendment covers warrantless searches. The 4th Amendment would not apply where the person being searched gave their consent.

Applying for a benefit can be made to be consent. Just like applying for a job is consent.

Because nobody is required to apply for benefits, it cannot be unconstitutional to make consent to a drug test a requirement for receipt. The Gov’t already places various requirements on receipt of these benefits, so the idea that the gov’t cannot place requirements as a condition of receipt is silly.

If consent is given, the 4th Amendment is irrelevant. If a person doesn’t want to give consent, they don’t have to apply.

As I said in a comment upthread, the only way to find such a regime unconstitutional is to find the receipt of welfare benefits a “right” for which gov’t cannot set such requirements. But that is absurd.

Again, whether it is good policy is a different question than whether it is good policy. It may not be good policy, but again, I haven’t seen convincing arguments as to why not.

Monkeytoe on November 13, 2014 at 1:43 PM

The 4th amendment covers warrantless searches. The 4th Amendment would not apply where the person being searched gave their consent.

LOL Consent, I love how strained that concept is these days. You either consent or you don’t drive, you consent or you don’t fly, you either live in a cave and do nothing, or else you’re consenting to the state going through your shit whenever they feel like it. Spoken like a true statist.

There is no way the founders envisioned the 4th being as butchered as it is today.

Munchen on November 13, 2014 at 1:46 PM

So explain to me the practicality of what you’re suggesting. So Mr. drug user has to take a piss test for welfare, and he fails, which cuts off his welfare. What do you think happens next? Do you think he says “oh wow, I guess I have to get a job now” — Or is it more likely that his next move is “well damn, I guess its time to rob a convenience store?”

Munchen on November 13, 2014 at 1:40 PM

So, your position is that we keep welfare going to keep crime down?

Your arguments are all over the place. First it was about “cost” now it is about crime.

I note in some comments you pretend to be conservative (a concern troll) while in other comments you make clear you are not referring to us as “you cons” in a derogatory manner.

Whatever. The purpose of Welfare is not to house people cradle-to-grave in order to keep the peace. That is a very leftist understanding of the social safety net.

Monkeytoe on November 13, 2014 at 1:46 PM

Monkeytoe on November 13, 2014 at 1:46 PM

I’m a libertarian. I’m primarily concerned with cost, but also with practical consequences (like crime) that can affect me personally.

Munchen on November 13, 2014 at 1:48 PM

LOL Consent, I love how strained that concept is these days. You either consent or you don’t drive, you consent or you don’t fly, you either live in a cave and do nothing, or else you’re consenting to the state going through your shit whenever they feel like it. Spoken like a true statist.

There is no way the founders envisioned the 4th being as butchered as it is today.

Munchen on November 13, 2014 at 1:46 PM

they also did not envision a welfare state or the commerce clause being abused the way it has. We have to live in the reality we are given.

the idea of “consent” is not so absurd though. Again – nobody is required to apply for gov’t handouts.

For things that are privileges rather than rights, there is no reason not to have reasonable requirements for obtaining them.

Monkeytoe on November 13, 2014 at 1:49 PM

I’m a libertarian. I’m primarily concerned with cost, but also with practical consequences (like crime) that can affect me personally.

Munchen on November 13, 2014 at 1:48 PM

Fair enough.

Here’s the thing – the welfare recipient who is a chronic drug user is unlikely to get enough money to sustain his habit from Welfare. So, he is likely already engaged in crime. I can’t imagine the uptick in crime from taking away his welfare would be that significant.

Monkeytoe on November 13, 2014 at 1:53 PM

2) Liquidate the entire bureaucracy, and switch to a simple cash payment for each welfare recipient — usable for whatever they want (rent, food, etc). The cost savings alone would be immense, and as you’ve already admitted, people are going to game the system anyway — so why not just get rid of it entirely and let people make their own choices, for better or worse?

I am much more in favor of option 2, mainly because it doesn’t require a bunch of logical gymnastics to explain why its ideologically reasonable for a conservative to support. Last, it represents a reduction in regulation (overall) rather than an increase, which is what most of the cons here claim to want in -every- other debate.

Munchen on November 13, 2014 at 1:27 PM

Yes – you could say I’m in the “shared misery” category – until such time as we eliminate the government imposed miseries altogether.

I very much agree with your option 2. I’ve seen reports that indicate something like 60% or more of the total “welfare” bill actually goes to feed the government bureaucracy, not to the people who supposedly need the help. It would be cheaper to eliminate the majority have local agencies administer the programs and get reimbursed from whatever upper level of government is providing the funding. We the taxpayers, and the people needing the help would be better off if we just gave them the money without a lot of red tape and ridiculous rules.

I have a niece who was collecting WIC (essentially food stamps) for a short time when she had a new baby and was still single (since married the baby-daddy and they both now have decent jobs). She talked about the rules – like she HAD to buy 2 gallons of milk at a time. One gallon would go bad before she could use it. Same rules applied to many other items like bread and other “staples”.
Huge waste going on that the government just doesn’t see, or want to see – and they are the ones forcing the waste.

dentarthurdent on November 13, 2014 at 2:09 PM

I don’t think drug testing (and, if implied that one is drug-free) as a pre-requisite for receiving benefits is going to be in any reasonable way useful. Private institutions – charities, for instance – can largely engage in such, especially if they don’t receive public funds, but I doubt that public institutions can go that far.

As far as Option 2 (just give payments), I fear that would break down because I think there are a multitude of programs, not one or two or three, that engage in transfer payments of one kind or another. Consolidate them together into one program and perhaps it could give a single cash payment to recipients to spend as they see fit (and we will have to live with the recipients who choose to spend it in ways we would not agree with).

Russ808 on November 14, 2014 at 3:18 PM

If a private employer (ie; someone NOT endowed with the state’s legal powers) can insist on their workers actually being productive and not high as kites on illicit drugs, then the state not only has the right but the responsibility to insist on the same standard for programs provided for by state tax dollars. once again, piss test are not IMPAIRMENT TEST, an employer will not find out if the employee is high on the job by these fascist test!!!!

svs22422 on November 15, 2014 at 1:55 AM