By Kellen Russoniello, George Washington Law School student, NORML legal intern
On May 31, 2011, unpopular Florida Governor Rick Scott signed a bill that mandates all those seeking public assistance through the Temporary Assistance for Needy Families (commonly known as welfare) to pass a drug screen. Those that fail the test will not be eligible for benefits for one year. The law will become effective on July 1.
Furthermore, the law requires those seeking assistance to pay for the cost of the screening. The expense can be recovered if the applicant qualifies for benefits. If you fail the test though, tough luck: your money belongs to the state. Those who are denied may designate another person to receive the benefits on behalf of their children, but they must also pass a drug test.
In justifying his signature, Governor Scott stated that it is “unfair for Florida taxpayers to subsidize drug addiction.” So instead of supporting effective treatment and prevention, the law will implement a costly and ineffective means to try and deter drug use. Not to mention the law is most likely completely unconstitutional.
A Michigan law similar to this one was struck down in 2000 and affirmed in 2003 by the 6th Circuit. Michigan lawmakers had enacted a law allowing for suspicion-less searches of welfare recipients. A class action lawsuit was brought by applicants alleging that these drug tests violated the Fourth Amendment. The applicants won.
Although the Supreme Court has recognized certain situations in which a suspicion-less drug test is allowed (including testing railroad employees, customs agents whose line of work causes them to be directly involved with drug interdiction, and high school athletes and other students involved in extracurricular activities), the testing under the Florida law does not seem to further a special need of the government which outweighs the privacy interest of the individual. In order to demonstrate this special need, the state generally must show that public safety is in jeopardy. The Michigan government made the argument that drug use put children at the risk of abuse and neglect, but this argument was rejected by the district court. (It could be argued that the denial of benefits is more detrimental to public safety than not testing potential recipients). Testing welfare recipients for drug metabolites does nothing to further public safety, and therefore the government will most likely fail to meet the strict test set forth by the Supreme Court.
Those convicted of drug trafficking charges are already ineligible to receive welfare. Even if you can justify this by saying that they cause harm to communities, this new law places the focus on users. Legal challenges are expected and should come down in favor of the applicants, although with the Supreme Court’s recent Fourth Amendment jurisprudence, if the case were to rise that high there may be cause for concern.
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Editor’s note: 1) Isn’t it interesting how elected politicians like Rick Scott (often with no legislative hearings at all) are so quick to want to control the living habits of poor citizens who receive state funding, but they never insist on drug testing requirements to issue state funding and grants to rich land developers, corporations, business executives, professional sports team owners or religious leaders–just the poor?
2) Looks like Governor Scott may have more than ideological reasons to push the state of Florida into using taxpayers’ money on massive drug testing programs for welfare recipients and state employees…as reported in the Palm Beach Post in March:
“Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace,” Scott said in a statement. “Just as it is appropriate to screen those seeking taxpayer assistance, it is also appropriate to screen government employees.”
Until last week, Scott’s communications office in Tallahassee had ignored repeated requests for comment on the potential for a conflict of interest. On Friday, as national media began to call as well, the office issued this response:
Any perception that the governor’s business interests pose a conflict of interest with his health policies are “baseless and incorrect,” said Scott’s deputy communications director, Brian Hughes.
Privately, one Scott official acknowledged that every time the governor discusses health policy, his urgent care business would be “the elephant in the room.”
Shortly before he was inaugurated, Scott’s lawyers met with attorneys at the Florida Commission on Ethics. Subsequently, they moved his Solantic holdings into a revocable trust in his wife’s name, making her the controlling investor in the privately held company. No public records were created from the ethics meeting.
During the election campaign, he had estimated the worth of his Solantic holdings at $62 million. Jacksonville-based Solantic has 32 clinics statewide, including two in Palm Beach County, and plans rapid growth and an eventual initial public offering, according to company documents.
Suffolk University Law Professor Marc Rodwin, author of several books on conflicts of interest in medicine, said the movement of Scott’s ownership to his wife’s trust was insufficient to eliminate the ethical issues.
“He owned the company and transferred it into his wife’s name,” Rodwin said. “It’s a conflict of interest.”
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