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

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.