Lawmakers in dozens of states are considering proposals to require drug testing of welfare recipients. In these days of budget tightening, states are looking for ways to balance their budgets without raising taxes. The drug-testing requirements are supposed to save the states money, since they will cause some families to be prohibited from receiving welfare benefits.
The proposed measures seem to resonate with the public and are especially popular with Republican legislators. The constitutionality of such laws, however, is in question.
A 1999 law in Michigan that instituted random drug testing for those receiving state benefits was halted by a federal judge after it had been in effect only five weeks. A federal appeals court eventually found the law unconstitutional in 2003, finding that it violated the Fourth Amendments protection against unreasonable search and seizure.
One state that is again testing the waters with mandatory drug testing to receive welfare benefits is my state of Florida. Introduced in January 2011, HB 353 passed the Florida House by a vote of 78-38 on April26 and the Senate by a vote of 26-11 on May4. The bill was signed into law by Florida’s governor, Rick Scott, on May31, with an effective date of July1.
Drug Screening of Potential and Existing Beneficiaries of Temporary Assistance for Needy Families (TANF) requires the Florida Department of Children and Family Services
to perform drug test on applicant for TANF benefits; requires such individual to bear cost of drug test; requires department to provide, & applicant to acknowledge receipt of, notice of drug-screening policy; requires department to increase amount of initial TANF benefit by amount paid by individual for drug testing; provides procedures for testing & retesting; requires department to provide information concerning local substance abuse treatment programs to individual who tests positive; provides conditions for reapplication for TANF benefits; provides that, if parent is ineligible as result of failing drug test, eligibility of children is not affected; provides for designation of another protective payee; provides rulemaking authority to department.
TANF is the 1996 successor to Aid to Families with Dependent Children (AFDC). It is a federal program that is administered by the states by means of federal block grants ($16.5billion in FY2011). Seventeen states also qualify for more than $300million in supplemental grants. Counting both grants, the state of Florida receives more than $600million a year from the federal government for the TANF program.
Floridians who qualify for the program can receive a cash payment of $180 a month for one person or $364 for a family of four.
Applicants who fail the drug test are banned from receiving benefits for one year. A second failure results in a three-year ban. However, anyone who tests positive and is denied TANF benefits as a result may reapply after six months if he can document the successful completion of a substance-abuse treatment program. There is a provision in the law that lets parents name a guardian to receive benefits (after passing a drug test) in behalf of the children.
It is unfair for Florida taxpayers to subsidize drug addiction, said Governor Scott. Its the right thing for citizens of this state that need public assistance. We don’t want to waste tax dollars, he added.
The ACLU disagreed, however, and filed suit to block the Florida law on behalf of a Navy veteran who was denied financial assistance from the state to help care for his four-year-old son because he refused to take a drug test. Like the previous case in Michigan, the ACLU is arguing that the law is unconstitutional because it constitutes an unreasonable search or seizure.
A federal judge has just temporarily blocked the new Florida law, saying that it may violate the Constitutions ban on unreasonable searches and seizures. The injunction will stay in place until the judge holds a full hearing on the matter.
Speaking on NPR’s Talk of the Nation recently about the issue of drug testing as a prerequisite for welfare benefits, Barry McCaffrey, the former head of the White House Office of National Drug Control Policy (Bill Clinton’s drug czar), expressed his opposition to the policy: I don’t think that having a drug-testing program that’s a bar to entry to welfare or food stamps makes sense where you don’t tie it to effective drug treatment. And even then, Id want to see some probability that you exhibited drug behavior before I test you.
So, should states require that applicants for, or recipients of, welfare benefits take a drug test?
From a libertarian standpoint, the answer is neither no drug tests and no welfare benefits.
But first, as a practical matter, the proposal at least in Florida is absurd. One, there is no requirement that a recipient of cash assistance be tested again after his initial test. Someone could pass the test, be judged drug-free, and then use the money he receives for drugs throughout the 48 months he is allowed to receive TANF cash assistance. Two, there is nothing preventing a Florida recipient of cash assistance from using his money to buy alcohol, purchase pornography, procure a prostitute, or gamble it away at one of the Florida Indian casinos. Three, at $30 to $35 per test, the drug-testing program could cost the state of Florida many thousands of dollars. Since the laws implementation, the Florida Department of Children and Families has tested 1,500 to 2,000 recipients. About 2.5percent of applicants tested positive and about 2percent declined to be tested. That means that the state of Florida has had to reimburse about 95.5percent of applicants for their drug test. And four, there is the constitutional question whether the drug-testing requirement constitutes an unreasonable search.
In a libertarian society, that is, a free society based on voluntary cooperation and contracts instead of government coercion and regulations, all drugs would be legal. However, employers, business establishments, and property owners would have the right to prohibit all drugs or certain drugs from being on or in the body of employees, customers, and visitors. That might include scheduled or random drug testing as a condition of employment, doing business, or visiting because in a free society any lawful property occupier employer, business establishment, or private individual has the right to allow or prohibit anyone access to his property for any reason.
But without the governments war on freedom known as the war on drugs, I suspect that most of the drug testing that takes place now would be a thing of the past. Perhaps airlines would test pilots and taxi companies would test drivers but they would not be required to do so by a government.
The larger issue here and one that is just as important from a constitutional perspective is the legitimacy of welfare benefits in the first place. Conservatives who support drug testing as a prerequisite to receiving welfare benefits are only scratching the surface if they are trying to reduce the welfare rolls. In fact, crusading for drug tests allows conservatives to appear fiscally conservative and in favor of reducing the welfare state without actually alienating great numbers of potential voters who are either on welfare or sympathetic toward those who are.
Governor Scot said it was unfair for Florida taxpayers to subsidize drug addiction. What he didn’t say and what Democrats and most Republicans wont say is that it is unfair for Florida taxpayers (or U.S. taxpayers) to subsidize anyone or anything. No personal welfare and no corporate welfare.
In his remarks on January15, 1964, to the leaders of organizations concerned with the problems of senior citizens, President Lyndon Johnson said, We are going to try to take all the money that we think is unnecessarily being spent and take it from the haves and give it to the have not’s that need it so much.
Conservatives in Florida or anywhere else who remain silent about welfare programs subsidizing one group of people at the expense of another are silently endorsing the legitimacy of Johnson’s attempts to redistribute wealth under the guise of a war on poverty.
As the successor to the AFDC program, the modern TANF is a New Deal/Great Society-type program that takes money from those who have and gives it to those who have not. It is a wealth-punishing, social-engineering, income-transfer program. Which means it is no different from other income-redistribution schemes such as Supplemental Security Income (SSI), energy assistance, Medicare, Medicaid, State Children’s Health Insurance Program (SCHIP), unemployment compensation, food stamps (now called the Supplemental Nutrition Assistance Program, or SNAP), and the refundable Earned Income Tax Credit (EITC).
Rather than on excluding a few people from receiving the wealth of others because they failed a drug test, efforts should be focused on eliminating the income-transfer programs that make welfare possible.