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Drug testing before welfare benefits? Not so fast.

Drug testing before welfare benefits? Not so fast.

11th Circuit strikes down drug test requirements for welfare benefit recipients.

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


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Simply eliminate ALL welfare [teat sucking at the public trough] and the need for any drug testing goes away.

why not tie an implied consent to benefits like they do with driver licenses?
welfare is not a right.

    tphillip in reply to dmacleo. | December 8, 2014 at 1:52 pm

    Right. Because a driver’s license is equivalent to the Fourth Amendment.

    Did you even bother to read what the article or what the court said?

      license is a privilege.
      welfare benefits are a privilege.
      if suspected of OUI and I refuse field sobriety tests/breathalyzer here I automatically lose my license.
      if suspected of using drugs why should welfare not also be lost if person refuses tests?
      welfare is not a right.
      did you read ever read anything?

So, I can be randomly drug tested to keep my job, but it violates a welfare recipient’s rights to be tested in order to get some of the money I worked for?

    Henry Hawkins in reply to rokiloki. | December 8, 2014 at 10:20 am

    Employer’s liability insurance dictates drug screens for jobs and a positive test can mean discharge from job. If we dictate drug screens for welfare recipients, they could be put off the welfare rolls for it. This is something progressive federal or state governments cannot allow.

    tphillip in reply to rokiloki. | December 8, 2014 at 1:50 pm


    You can always find another employer.

    Explain how someone finds another American government.

      Observer in reply to tphillip. | December 8, 2014 at 2:07 pm

      LOL, because there is no way that people can provide for their own basic needs without government, right?

      And how is it that you’re so sure rokiloki can find another employer, while so many welfare recipients can’t find one at all?

      Doug Wright Old Grouchy in reply to tphillip. | December 8, 2014 at 2:22 pm

      Article V of our Constitution, if we’ve got the strength, and will, to go through with that glorious act!

      JackRussellTerrierist in reply to tphillip. | December 8, 2014 at 2:56 pm

      Yeah? Tell THAT to the 600 people competing for every little job out there.

      Ragspierre in reply to tphillip. | December 8, 2014 at 3:41 pm


      Why would someone NEED to find “another American government”…

      UNLESS, of course, you ASSUME they are using drugs?

      BTW, are you stupid enough NOT to know that LOTS of Americans help each other charitably?

      Serious question…

So, when my boss informs me that I have to do a drug test, I can tell HIM to go piss up a rope?

“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.”

No. You MAY not want to SEE the connection, but there is EVERY reason to think that drug use and PERSISTENT poverty are connected, you lying sacks.

And the empirical PROOF AND the THEORETICAL mechanism DOES exist. More, it’s just common sense.

2nd Ammendment Mother | December 8, 2014 at 11:08 am

I’m certain my son’s battalion would love to hear that there’s not a compelling reason for the government to require drug testing.

Basing laws on means testing – is that legal, equitable, Constitutional?

Basing laws on color of skin – is that legal, equitable, Constitutional?

Basing Social Security’s COLA on gov’t calculated ‘inflation’ – is that legal, equitable, Constitutional?

What demarcation is legal to use? Sanity and civil rights have both been violated from what I see.

Drugs cost money that could and should be used for a person’s upkeep and well being. Some people will displace life needs to leave enough money for drugs. However, it can be argued that welfare payments are too generous if people can afford drugs as a luxury if their life needs are being met.

Henry Hawkins | December 8, 2014 at 1:14 pm

I remember a time in the late 1980s or so when some of the people I was counseling in a treatment center would tell you, “I can’t quit drinking (or using drugs) because I’ll lose my disability check for it.” I cannot now recall if it was a federal or state benefit (NC), but there used to be a support check given out for active alcoholism/drug addiction. If you quit, you lost it. So, people would waste their government paid treatment for drinking/drugs in order to keep their government disability check for drinking/drugs. Getting paid to get high and the money ends if you quit. Thanks, government!

    Observer in reply to Henry Hawkins. | December 8, 2014 at 2:09 pm

    IIRC, the federal program known as SSI (Supplemental Security Income) pays people for being drug addicts.

      JackRussellTerrierist in reply to Observer. | December 8, 2014 at 3:09 pm

      THAT might be just the place to start the campaign for drug-testing all welfare recipients.

      As part of a new austerity program to cut taxes in order to generate jobs, lower social spending costs, lower the debt, and “Clean Up America!”, let the first battlefield be termination of SSI payments specific to drug addicts and alcoholics. Public support for that would be extremely high. Then keep moving up the ladder from there.

I R A Darth Aggie | December 8, 2014 at 3:30 pm

And yet, TSA gets to administer tens of thousands of suspicion-less searches every day.

Henry Hawkins | December 8, 2014 at 3:54 pm

Let me know when government believes it owns the responsibility to mow my lawn.

They would be better spending the money for drug tests on making sure that applicants don’t have multiple addresses or have “roomies” or baby daddies but then some government worker would actually have to go investigate and that’s like work or something.

SCOTUS has already authorized mandatory drug testing of government employees, provided a “special need” is present. So I say deem welfare a public employee job of taking care of the children at issue. Surely there is a special need to make sure that caretakers are not impaired by illegal drug use. SCOTUS even found a special need in approving drug testing of high school athletes.


“The current law of public employee drug testing began with the Supreme Court’s decisions in Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989), and National Treasury Employees v. Von Raab, 489 U.S. 656 (1989). In these companion cases, the Court held that the government is allowed to conduct drug tests without individualized suspicion when there is a “special need” that outweighs the individual’s privacy interest. In Skinner, the court found that public safety was such a special need. In Von Raab, the court found a special need in relation to customs agents who carry firearms or are directly involved in drug interdiction.”

Welfare is not about rehabilitation. It is a multi-trillion dollar economy that enriches the redistributors, first, and beneficiaries, second. It serves as an out-of-sight and out-of-mind solution that is especially effective and necessary in diverse, high-density population centers with structural inequality.