Proposals to Require Drug Tests for Public Aid Attempt to Thread Constitutional Needle

A federal bill to require drug testing of welfare recipients was introduced by Tennessee Representative Stephen Fincher last week. In a move to answer constitutionality concerns, the bill proposes to require applicants to waive their Fourth Amendment rights and submit to drug testing before qualifying for assistance. States would be required to certify that they test at least 20 percent of applicants or lose 10 percent of their Temporary Assistance to Families (TANF) funding.

In a March 4 press release, Rep. Fincher said:  “Currently the federal government enables drug abusers a safety-net by allowing them to participate in the TANF program. Instead of having to make the hard-choice between drugs and other essential needs, abusers are able to rely on their monthly check to help them pay their bills.”

The bill’s introduction comes on the heels of a Feb. 26, 2013, U.S. Court of Appeals finding that a Florida law to randomly test applicants for TANF is unconstitutional. "The evidence in this record does not suggest that the population of TANF recipients engages in illegal drug use or that they misappropriate government funds for drugs at the expense of their own and their children's basic subsistence," the three-judge panel wrote.

"The State has presented no evidence that simply because an applicant for TANF benefits is having financial problems, he is also drug addicted or prone to fraudulent and neglectful behavior." In fact, two percent of Florida applicants tested positive for drug use compared to national surveys that show eight percent of the general population uses drugs.

Governor Rick Scott called the ruling “disturbing” according to the Huffington Post and said Florida would appeal the decision to the U.S. Supreme Court.

Despite the constitutional issues related to such bills, states also continue to take them up. In Kansas, the Senate approved in late February a measure to require drug testing for recipients of welfare and unemployment benefits if there is reasonable suspicion of drug use. Legislators against Senate Bill 149 added a provision to the bill that would require testing of state legislators as well if there is reasonable suspicion. The bill moves on to the House.  Governor Brownback is reported to be noncommittal on the bill.

In Maine, LD 678, would allow the state to randomly test those who receive TANF benefits or who receive health insurance through Medicaid. It would also allow municipalities to require drug tests of those who seek emergency aid through the state’s general assistance program. Similar bills are reportedly under consideration in Missouri, Virginia, Kentucky and Nebraska.