Last week, the 11th Circuit Court of Appeals struck down as unconstitutional a Florida law requiring suspicionless drug testing of all applicants seeking Temporary Assistance for Needy Families (TANF) benefits. Luis Lebron (with the help of the ACLU) sued the State of Florida after he was denied public assistance after failing to fulfill the drug test requirement. He argued that the statute operated in violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures, and asked the court to permanently enjoin enforcement.

The court agreed with his argument in a decision that has torpedoed Florida’s drug testing requirement:

On this record, the State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion. Even viewing the facts in the light most favorable to the nonmoving party, the State has not demonstrated a more prevalent, unique, or different drug problem among TANF applicants than in the general population. The ordinary government interests claimed in this case are nothing like the narrow category of special needs that justify blanket drug testing of railroad workers, certain federal Customs employees involved in drug interdiction or who carry firearms, or students who participate in extracurricular activities because those programs involve “surpassing safety interests,” Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 634 (1989), or “close supervision of school children,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).

Attorneys for the state had previously argued that the inclusion of a consent requirement for all drug testing should help the policy pass constitutional muster. The court was not convinced:

Moreover, as we held in Lebron I, the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.

According to the NCSL, at least eleven states have passed some sort of drug testing or screening process applied to those who apply for public benefits. Not all of these laws are created equal, however; depending on where you live, you may only have to consent to the test if the state suspects you’re taking illegal drugs, or you may only have to submit to a limited screening process. Some states also include programs like SNAP, subsidized child care, and medical care programs under the drug test umbrella.

In Michigan, for example, lawmakers are toying with a new statute that contains a narrowing “reasonable suspicion” clause.

Michigan legislators hope this new program, which requires testing only for welfare applicants and recipients who are “reasonably” suspected of using illegal drugs, will pass legal muster. The 1999 bill did not contain a reasonable suspicion cause. The new bill allows state employees to subject welfare applicants to drug testing if they reasonably suspect they have been engaged in the illegal use of a controlled substance, based on the outcome of a substance abuse screening.

“I think people want to make sure that we give a hand up to those in need, but they’re tired of giving their tax dollars to people who waste it on drugs,” state Representative Jeff Farrington, a Republican, told Michigan news site

Democratic Representative Jon Switalski, meanwhile, told MLive the program will “drive a wedge between those who are poor and how the rest of society views those individuals.”

Tennessee, on the other hand, only tests applicants if they fail an initial 3-question screening. Whether you agree with the idea of testing recipients or not, a statute that contains limiting language about who gets tested is more likely—at least under the 11th Circuit’s standard—of passing Constitutional muster than a statute containing a blanket provision. Oklahoma passed a similar law to Florida’s.

Does this mean all drug testing laws are doomed? No. Does this mean we’re all doomed to endure multiple ACLU-led lawsuits challenging drug testing laws? You bet. And at least in the case of statutes like Florida’s, I think they might be justified.

The problem with the State’s argument justifying a “substantial need” for drug testing is that they didn’t provide the court with enough data to show that the tests could make any significant difference:

State has not demonstrated that the TANF program as a whole has been compromised without suspicionless searches. Quite simply, we see no essential nexus between the legitimate state interest and the condition imposed. Put differently, the fit is not reasonably proportionated to the harms the State seeks to avoid.

The State argues, nevertheless, that its broadly applicable interests are special because drug use concerns are particularly strong for TANF applicants, but it has not presented a persuasive theoretical or empirical account of a unique problem among TANF applicants. First, no concrete danger exists as a theoretical matter: we have no reason to think impoverished individuals are necessarily and inherently prone to drug use, or, for that matter, are more prone to drug use than the general population. Nor does the State give a reason to think that, if TANF applicants use drugs, that use is somehow different from drug use by the general population. Without an obvious and palpable danger, the State makes an empirical claim that a drug-use problem exists among Florida TANF applicants.

It’s an inconvenient hitch in what many believe is a common sense plan to protect taxpayer dollars, but it’s also a significant one. “Common sense” doesn’t necessarily help new laws make it over the constitutional bar; we should prioritize a showing of substantial need for any new regulation before its imposed on anyone.

If the State can’t meet that burden, then toss the law. This isn’t the last we’ll see of these types of laws, and not all of them are necessarily unconstitutional. But if Florida’s is, we should be willing to let it go and replace it with something that passes muster.

You can read the full opinion here.

h/t the ABA Journal