Florida’s law, adopted in 2011, required welfare applicants to pay for and pass a drug test to receive benefits. It was in effect from July through October last year before it was temporarily blocked by a federal judge who said it may violate a constitutional ban on unreasonable searches and seizures. The American Civil Liberties union had filed a lawsuit challenging the law on behalf of a 35-year-old Navy veteran and single father who sought the benefits while finishing his college degree, but refused to take the test because he said it stigmatizes the poor.
The state has appealed that decision to the 11th U.S. Circuit Court of Appeals in Atlanta, which is set to hear oral arguments in the case Thursday. The federal appeals court will decide whether a preliminary order blocking the drug testing should remain in place pending the outcome of the broader legal challenge.
Florida has argued that Temporary Assistance for Needy Families, or TANF, benefits are meant to ensure family stability and child welfare during times of financial crisis and to prepare parents to get and keep a job so the assistance is temporary. The state argues drug use by recipients undermines both those goals.
“TANF dollars must be spent on TANF’s purposes – protecting children and getting people back to work,” said Jackie Schutz, a spokeswoman for Florida Gov. Rick Scott.
The ACLU argues drug testing is considered a search under the Fourth Amendment to the Constitution, which protects against unreasonable searches. The laws also make unfair and unfounded assumptions about welfare recipients, the ACLU argues.
“The suggestion that we think is built into these laws is that there’s some reason to believe that people who are receiving or applying for public benefits are more likely to be using drugs than people in the general population,” said ACLU attorney Jason Williamson.
Georgia is one of the states that will be watching closely as Florida’s law winds its way through the courts. Georgia lawmakers passed a very similar law this year. It was supposed to take effect July 1, but Gov. Nathan Deal put it on hold until the challenge to Florida’s law is resolved.
“Gov. Deal feels confident this policy will withstand constitutional scrutiny,” spokesman Brian Robinson said. “We are dealing with a program that is not an entitlement, and the public and taxpayers have every right to demand that their money not go to people who are not working because they are using illegal drugs.”
After the judge temporarily blocked Florida’s law, that state was force to retroactively pay nearly $600,000 in benefits to thousands of applicants who failed or refused to take the drug test during the four months that the law was in effect.
Federal law does not prohibit states from testing welfare recipients for use of controlled substances or from sanctioning recipients who test positive.
“What has held some states up is the constitutional issues around suspicionless, random testing,” NCSL policy analyst Rochelle Finzel said. “States have struggled with getting around some of those constitutional issues and implementing laws so that they’re not violating people’s rights.”
In addition to Georgia and Florida, five other states – Arizona, Missouri, Utah, Tennessee and Oklahoma – have adopted laws to test at least some welfare applicants or recipients, according to NCSL. But those states took a more cautious approach, opting for some sort of screening process for welfare applicants and requiring tests only from those applicants they have reason to believe are using illegal substances.
If applicants or recipients in those five states refuse to take the test or have a positive test result, most of the laws deny benefits for a set length of time, though applicants in Utah who fail the drug test can continue receiving benefits while seeking treatment.
At least some of those laws have taken effect, and they haven’t faced any legal challenges so far, but the ACLU is watching them closely.
“Both our national office and the affiliates in those states are considering our options because we still think that there are some constitutional problems with those schemes,” Williamson said.
Legislatures in 28 states this year and 36 last year have considered proposed legislation requiring drug testing for at least some welfare recipients, and they will likely be watching to see how far judges are willing to let the laws go.