A federal appeals court has rebuked Florida over drug-testing applicants for public benefits, an important victory for civil liberty and the dignity of poor people. But laws like this one remain hugely popular with the public and serve the interests of Republican ideologues and politicians, so this is not a matter that will go away any time soon.
On December 2, 2014, the 11th U.S. Circuit Court of Appeals struck down Florida's law requiring applicants for Temporary Assistance to Needy Families to submit to drug-testing even without any suspicion of illegal drug use. Circuit Judge Stanley Marcus wrote for the three-judge panel.
By virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy. If we are to give meaning to the Fourth Amendment's prohibition on blanket government searches, we must — and we do — hold that [the law] crosses the constitutional line.
The decision upheld a ruling in December 2013 by U.S. District Judge Mary Scriven in Tampa to permanently block enforcement of the July 2011 law passed by the Republican-controlled legislature and signed by Republican Gov. Rick Scott. The law required persons seeking benefits to pay upfront a $25-45 fee for urine testing, which was refundable if the test was negative. About one in 40 tests conducted while the law was being enforced came back positive. In the end, it turned out to have cost Florida more to run the program that it would have saved in cash benefits denied due to positive tests. At an average of $30, the cost to the state was $118,140, considerably more than would have been paid in benefits to the people who failed the test, according to the New York Times article.
Court Strikes Down Drug Tests for Florida Welfare Applicants
In the aftermath of the ruling, Georgia Gov. Nathan Deal suspended enforcement of a similar program. A direct consequence of the Tea Party wave in the elections of November 2010, 11 states - Alabama, Arizona, Florida, Georgia, Kansas, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee and Utah - have since 2011 passed laws of some sort that mandate drug-testing for certain public benefits. Bills to this effect have been introduced in 36 states. And the Republican-controlled U.S. House of Representatives has passed a provision allowing states to require drug-testing for unemployment benefits, though this was watered down to near meaninglessness by the Senate. But with Republicans about to take control of the chamber, this is sure to come back up in some form or another. Of the state laws, the Florida law went the furthest, in that it required drug-testing even in cases in which there was no individual suspicion of illegal drug use. But the issue goes far beyond Temporary Assistance to Needy Families; this tactic has also been deployed to attack unemployment insurance as well.
So this recent ruling in the Florida case was an important victory for civil liberty in our times. But the major challenge still looms. So far, all the federal courts that have ruled have come out in favor of privacy, but a case with similar specifics has yet to be decided by the U.S. Supreme Court. And there's no telling how the court would rule if/when it does take a case. So this fight is far from won.
What is more, drug-testing of welfare applicants and/or recipients is wildly popular among the electorate, especially so with the Republican base. Polls have been numerous and have shown divergent results depending on how the questions are presented, but they generally show support anywhere from 65% to 95%. (Seriously, these numbers should be sobering to anyone who purports to believe in civil liberty. But then, many people who claim to be for "liberty" are in fact hard-right conservatives who want government to crack the whip on poor people, who express their unreformed racial prejudice in Randian terms about ending "dependency" and sticking it to the "moochers". I have no illusions: a majority of Americans, especially white Americans, are of a pretty authoritarian mindset when it comes to matters like these.) But it is also popular among self-described independents and even a significant number of Democrats. So, politically and electorally speaking, there's no down side for the Republican Party to keep pounding away on this. And conversely, there's no up side for the Democratic Party to take a stand in favor of individual liberty. For the Republican Party, this is a gift that can keep on giving, much like affirmative action has been for the last 50 years. It's fodder for the base - both the Southern whites and the small-government/austerity caucus. It's ready-made for politicians who want to appeal to racial prejudices but maintain plausible deniability by talking in code. On top of all this, Republican legislators in their own minds actually believe this to be good policy. And if it ends up trimming the welfare rolls & substantially reducing the scope of government welfare programs, that's all for the better. Indeed, many prominent Republican legislators and governors - prominently Scott Walker of Wisconsin - continue to push it.
The problem with mass, suspicionless drug-testing is that there is no right to privacy, no protection against forced self-incrimination, no presumption of innocence. In virtually every drug-testing regime ever set up, a refusal to submit to the test draws the same (or even more severe) consequences as a positive test result. A drug-test is a search of one's body; it should never be characterized as anything less. Indeed, the courts have established this as fact. But even as this much as been established - that a drug test IS in fact a search of one's body - the courts have ruled that private employers or non-government entities are not subject to the restrictions established under the 4th amendment and are thus pretty much free to require drug tests as they see fit.
As it has evolved in the U.S. since the 1980s, drug-testing is only peripherally about "drugs". Fundamentally, it is about authority and social hierarchy. As urine tests have been shown to be easily subverted or defeated, their effectiveness at screening users of illegal drugs has always been seriously limited. Drug-testing has become, thus, a ritual of submission, a rendering required of people of low social status toward their superiors. It is an admonition that you, the lowly employee, will have no secrets from the company and no expectation of privacy whatsoever; that you must submit to the company's authority at all times, whether on the job or off.
In the cases that are coming before federal courts, the purpose of drug-testing is to degrade, to make the person applying for public benefits feel something like a criminal, much like New York City requiring fingerprinting of welfare applicants. It is meant to be degrading and intimidating, meant to deter people from ever applying in the first place.
This is just one example of how the War on Drugs has succeeded in diminishing Americans' expectations of privacy and liberty. Drug-testing has become so ubiquitious, such an accepted part of life, that most people reason that there's no legitimate reason to refuse such a test. After all, if you don't have anything to hide, you don't have anything to fear and should thus have to objection to this, right? We already have to submit to drug-testing to get so many jobs, to participate in so many things, so why should anyone complain about expanding drug-testing a little further, about having our privacy rights diminished a little more.
As always when liberty is abridged, it is the unpopular, marginalized or powerless people who are targeted first. No politician, to my knowledge, is calling for drug-testing to qualify for agricultural price supports or energy subsidies. This isn't about public safety, or accountability, or transparency, or curtailing fraud. It's about sticking it to those lazy, shiftless you-know-what.
But the curtailment of liberty for a marginalized few does indeed affect the civil liberties of us all. However ubiquitous drug-testing has become in the U.S. private sector, it's a quantum leap for the government to require it of its citizens in order to qualify for a benefit or receive a service. Once this wall is breached, a similar requirement could be enacted for driver's license applicants, business license applicants, professional license applicants, whatever. And when this happens, our rights under the 4th amendment will be effectively dead.