By Deborah | July 31, 2011 - 8:51 pm - Posted in Constitutional Law

By Deborah Mackto

Florida has been hit hard by the deterioration of the nation’s economic condition. The recession and resulting unemployment has created the need for more families to apply for public assistance during a time when the State is facing significant budget deficits. On May 31st of this year Governor Richard Scott signed legislation into law that requires all applicants for the Temporary Assistance for Needy Families program to submit to, pay a fee for and pass a drug test by urine sample. Governor Scott said, “It’s the right thing for citizens of this state that need public assistance. We don’t want to waste tax dollars. And also, we want to give people an incentive to not use drugs” (Florida Governor Signs Welfare Drug-screen Measure). However, testing welfare applicants violates the United States Constitution, causes catastrophic emotional and financial hardship on our neediest citizens, fails to address Florida’s most dire drug dependency problem and wastes tax dollars at a time that we can least afford it. The potential benefits of this legislation are dwarfed by the costs and negative consequences.

The negative consequences will be catastrophic to families who are the victims of false positive tests. The cost of potential false positive tests cannot be ignored.  An example is found in the case of Elizabeth Mort. Elizabeth is not a drug user but because she ate an “Everything Bagel” containing poppy seeds two hours before she went into labor, her baby was taken from her only one day after her birth. The hysterical and confused parents were given no information on where their baby was taken and for five agonizing days did not know what had gone wrong or what to do about it. Nothing will repair the emotional scars caused by a flawed policy and a false positive drug test (Sullum). Under the new law the neediest of Florida’s citizens, those least able to defend themselves, will face the same kind of nightmare simply because they need financial assistance. Catastrophic emotional consequences due to false positive drug tests are not an acceptable risk to a civil society.

A civil society cannot assume that its least fortunate people, those who are in need of financial aid, are wasting aid dollars on drugs. A study by the University of Florida indicates that welfare recipients are no more likely to be drug abusers than the general population (Crew, Davis). The same study tells us that 97 percent of those tested will pass a drug screening.  Opiates and other dangerous drugs leave the body quickly, some in as little as one day (Drugs of Abuse Reference Guide).  A determined drug abuser would only need to abstain from drug use for a few days to pass drug testing.

Just as the most determined drug abuser will not be hampered by drug testing, the most dangerous and pervasive drug of this decade is not addressed by the legislation because this drug is a product of the pill-mills prescribing Oxycontin (Collins). Drug abusers of Oxycontin have prescriptions from these pill mills and will pass drug screenings.  For these reasons the most serious and dangerous drugs are missed or excluded by drug testing while the innocent ingestion of a poppy seed muffin will cause families to be entangled in the underfunded Department of Children and Families with devastating consequences. In the small number of cases where an applicant with a serious drug problem tests positive for an illegal drug, the law only requires they be given a pamphlet with treatment information. According to the official legislative summary of the law it does not provide for treatment, counseling or resources of any kind to rehabilitate the offender (”Florida House of Representatives - Documents”).

In addition to being ineffective against real drug users and ignoring the legality of our most common drug abuse, the law is unconstitutional. The legislative summary declares that, “The bill raises important constitutional questions related to the permissibility of suspicionless drug testing as a condition of public assistance.”  Indeed there have been numerous court rulings declaring similar suspicionless drug testing unconstitutional and a violation of the Fourth Amendment of the Constitution of the United States of America (Drug Testing of Public Assistance Recipients as a Condition of Eligibility). The Fourth Amendment protects us against search and seizure without probable cause. The collection of urine and other bodily fluids by government agencies is considered search and seizure and is prohibited unless there is reasonable suspicion, a warrant, or when a concern for public safety is present. The state of Michigan attempted random testing of welfare recipients citing the special condition of public safety and was challenged in court by the ACLU. The Court ruled that there was not a public safety issue that would exempt Michigan from the prohibition against warrantless search and seizure. Michigan’s law was struck the law down as unconstitutional and since that ruling no other state has attempted drug testing of welfare recipients without cause. (Marchwinski v. Howard quot. in ACLU).

Unlike Michigan, Florida is not attempting to make a case for a public safety condition and rather than random testing has ordered blanket testing of all applicants. This is a blatant violation of the intent of the Fourth Amendment which the ACLU has pledged to challenge. It is widely believed that the courts will again rule against suspicionless search and seizure. It will be a disastrous erosion of our constitutional rights if the law is not struck down. If such an unlikely event were to occur it is certain that anyone receiving public assistance of any kind will eventually be subject to random or blanket drug testing including but not limited to unemployment benefits, subsidized housing, Medicaid, Medicare, disability, health care vouchers, student loans and Pell grants. If the sacrifice of constitutional rights is allowed because politicians, however well-intentioned find it convenient to do so, we stand to lose the foundation upon which our country was founded and the freedom we too often take for granted in America.

A dollar value cannot be place on freedom. Governor Scott’s remarks after signing the bill tell us that his motivation is to save tax dollars. He was elected based on promises to cut costs. Given the mood of the electorate and the legislature that sent the bill to him can be assumed to have similar motivation. Indeed it is a fact that tax-payers want to save money and that the State must reduce waste. With the current budget crunch many people are frustrated with government waste. Nobody wants to see tax money spent on illegal drugs when it could be used to hire teachers, improve infrastructure or reduce debt. It is easy to see why someone who hears about the law initially may believe it is a good idea, but when the facts and figures are analyzed it becomes clear that rather than saving tax-payer money, this law will have a high net cost to Florida tax-payers.

It may seem that having welfare applicants pay a fee for their own drug test would prevent the program from costing the state money however most aid applicants will pass the drug tests and under the law the state will reimburse them the fee. The cost of testing alone is conservatively estimated at between $560,000 to $1,400,000 with some estimates as high as $44,000,000 per year (Miller, Hendrie). The financial cost of administration of the testing program is not addressed in the legislation nor have resources been allocated for it.  The Department of Children and Families has been charged with the responsibility of implementing and administering tests as well as investigating when an applicant tests positive. DCF will have to decide who can be designated as a payee for the dependents of the applicant until the applicant is able to pass the test. This means a social worker must be assigned to interview family members. The Department of Children and Families has the primary responsibility of making sure children are not in danger so in the case of positive test results investigations must be done to ensure children are not in a dangerous environment. That will cost additional money and mistakes will be made. There are in fact, no financial savings at all associated with this law. Even when a welfare applicant tests positive the Department of Children and Families will investigate and designate an alternate payee for the dependents and benefits will still be paid (Florida House of Representatives – Documents). The law requiring the testing of welfare applicants has only net costs and those costs are too high.

            The costs of our constitutional rights, the cost of the devastating emotional consequences of false positives and the financial cost to implement, administer and defend it are unacceptable. Government cannot, according to the United States Constitution, subject our poorest citizens to unreasonable search and seizure based solely on financial need. The state of Florida cannot afford the waste of tax dollars on flawed legislation that will hurt its citizens and create a bureaucratic administrative disaster. We cannot afford the cost of our humanity. We cannot denigrate the rights of our neediest people. As Gandhi, Pope John Paul II, Cardinal Roger Mahoney and other great leaders have expressed, a humane society has an obligation to its least fortunate, an obligation we must all heed as we may one day find ourselves among them.

Works Cited

 

Barnett, Ron. “States Seek to Link Public Assistance, Drug Testing - USATODAY.com.” News, Travel, Weather, Entertainment, Sports, Technology, U.S. & World - USATODAY.com. USA TODAY, 19 Apr. 2011. Web. 11 July 2011.

Collins, Thomas R. “South Florida and Oxycodone: Invasion of the Pill Mills - TIME.” TIME U.S. TIME Magazine, 13 Apr. 2010. Web. 30 July 2011.

Crew, Robert, and Belinda Creel Davis. “Substance Abuse as a Barrier to Employment of Welfare Recipients.” Journal of Policy Practice 5.4 (2006): 69-82. Print.

“Drug Testing of Public Assistance Recipients as a Condition of Eligibility.” American Civil Liberties Union. ACLU, 8 Apr. 2008. Web. 10 July 2011.

“Drugs of Abuse Reference Guide.” LabCorp. Occupational Testing Services, 2007. Web. 30 July 2011.

“Florida Governor Signs Welfare Drug-screen Measure.” Cnn.com. CNN, 1 June 2011. Web. 11 July 2011.

“Florida House of Representatives - Documents.” Florida House of Representatives - MyFloridaHouse.gov. 11 May 2011. Web. 10 July 2011.

Miller, T. and Hendrie, D. Substance Abuse Prevention Dollars and Cents: A Cost-Benefit Analysis, DHHS Pub. No. (SMA) 07-4298. Rockville, MD: Center for Substance Abuse Prevention, Substance Abuse and Mental Health Services Administration, 2008. Web. July 10, 2011

Sullum, Jacob. “Poppy seed peril: eat a bagel, lose your baby.” Reason Mar. 2011: 11. General Reference Center Gold. Web. 8 July 2011.

“Urine Drug Screen: MedlinePlus Medical Encyclopedia.” National Library of Medicine - National Institutes of Health. 22 June 2011. Web. 11 July 2011.