Like a lot of folks in this state, I have a job. I work, they pay me. I pay my taxes and the government distributes my taxes as it sees fit. In order to get that paycheck, I am required to pass a random urine test with which I have no problem. What I do have a problem with is the distribution of my taxes to people who don't have to pass a urine test. So here is my Question. “Shouldn't one have to pass a urine test to get a welfare check because I have to pass one to earn it for them”? Please understand, I have no problem with helping people get back on their feet. I do, on the other hand, have a problem with helping someone sitting on their rump--doing drugs, while I work. . . . Can you imagine how much money the state would save if people had to pass a urine test to get a public assistance check? I guess we could title that program, 'Urine or You're Out'. Pass this along if you agree or simply delete if you don't. Hope you all will pass it along, though. Some thing has to change in this country -- and soon!!!!!!!
Apparently the writer is pissed that his boss makes him pee into a cup so he can keep his job selling pencils at Office Depot and, feeling the need to be superior to someone because his job sucks, he wants those who receive government benefits to also be drug tested. He asks, why can't we drug test government benefit recipients? This question raises interesting legal, Constitutional, and policy questions. There are huge differences between what private parties can agree to do with each other and what the government can constitutionally require an individual to do. Even if the government can impose restrictions on an individual there may be important practical reasons why it should not.
State laws primarily govern the employment relationship. There are federal laws too but they are not relevant to this analysis. Most employment is in the private sector. In the private sector individuals are generally free to enter into the agreements they negotiate. If an employer wants to drug test its employees it says to potential employees, this is a condition of employment, take the job with the testing or go somewhere else. This is basic contracting, and so long as the parties have equal bargaining power then all is well. But employers and employees do not always have equal bargaining power so the state has the power to limit the scope of employment agreements. For example, states have a strong interest in ensuring that kids complete their education and most agree that minors are not able to negotiate as well as adults, so states limit the number of hours and kinds of employment that minors can engage in. So we must start with the baseline that parties are free to negotiate absent other laws and ask whether state laws permit employer drug testing. Because of the unequal bargaining power inherent in the employee-employee relationship and the indignity of being forced to pee in a cup, some states have restricted the ability of private employers to drug screen employees to for-cause or when public safety demands it. Our writer may live in a state that does not prevent random drug screening. He could either move to a better state or find a different job, otherwise he is stuck with his employer's private contractual requirement that he pee in a cup.
The government though is limited in what it can require individuals to do by the reasonable search requirement of the fourth amendment, and the due process requirements of the fifth and fourteenth amendments. The sixth amendment right against self incrimination probably does not apply here because that right only applies to testimonial evidence, ie, your thoughts or statements, and pee in a cup was not derived through a thought process.
Without question when the government provides a benefit it can also include a limitation, so long as that limitation is Constitutional. The fifth amendment requires the government to provide you due process when it deprives you of a life, liberty, or property right. Here there is a property right in a "welfare check". It's not clear what "welfare check" means in this context. It could be unemployment benefits, Medicare, Medicaid, disability, Women Infant Children benefits, Social Security, or even a government job. The Court has recognized that with all of these Congress created a property right for individuals who posses them, and the constitution requires some kind of procedure when the right is taken away by the government. Thus whether it is an entitlement check or a government job, the Congress may say no meth heads may participate. But when it does, Congress must balance the individual interest in keeping that property right with the government interest in maintaining the restriction, and ensure there is a fair and adequate procedure for depriving the individual of the right. The more accurate the drug test the less process that the individual receives. Thus, if the first drug test is known to have a 60% accuracy rate then the individual would have a greater right to followup testing than if the accuracy is 99%. But in either case the government will need to provide some type of post-deprivation appeal process. The same is true for those users who are flagged for testing positive to a drug that is on the banned list, but that may have been lawfully prescribed. The Congress should consider the cost of this appeals process and weigh it against any perceived savings from removing benefits from drug users.
But even if there is an adequate process in place, the government is prohibited by the fourth amendment from conducting unreasonable searches. Reasonable searches are those conducted with probable cause particularized to an individual with either a warrant or in limited exigent circumstances. The fourth amendment provides you protection from the government randomly looking through your stuff or patting you down unless it has a reasonable belief that you have committed a specific crime. So you may get pulled over by the cops reasonably because you are observed violating a traffic law, then when the cops talk with you and you smell like a booze factory they can test your blood alcohol content. Requiring a DUI suspect to turn over blood for analysis is a search. When the Court held this to be reasonable it said that because of the safety of others and a licensed driver's implicit consent to be tested made this search reasonable. So if the state wants to collect a urine sample from those who receive government benefits it will need to that this too is reasonable under the circumstances. The reasonable search requirement is not limited to the police although the cops provide most of the examples. Every government official is bound by the Constitution. For example, a government supervisor snooping through an employee's desk looking for evidence of wrongdoing is probably unconstitutional.
Probable cause for drug testing is going to be very difficult to show. A rule that allows testing beneficiaries for whom the government has some reason to believe are using illegal drugs is more likely to pass constitutional scrutiny than a general test-them-all rule. Most searches involve cops with probable cause, and the few that do not involve probable cause are police roadblocks. Here the court has held that special circumstances where the cops are likely to find evidence of wrong doing, like stopping cars very close to the national boarder, or DUI roadblocks where all drivers are stopped and only very briefly detained, are constitutional. In these cases the Court stresses that the searches are reasonable because of the increased government interest in preventing a serious harm. But the court has also held that stopping all cars just to have a look to see whether drugs are present is not constitutional because searches to sniff out unspecified criminal conduct are not reasonable. The question now is whether government benefit recipients are a special case circumstance that justifies reasonable searches without probable cause.
The Congress would need to find that recipients of government benefits are causing a substantial harm before drug testing them randomly is constitutional. Already the Congress says, we want to give this benefit to all who are eligible. Because the Congress says go ahead and spend the money, then saving money cannot be a substantial reason to deny the benefit. Maybe Congress could show that most people receiving the benefit are drug users, and if they are drug users then they can't get jobs and thus there is a substantial need to require the recipients to waive their fourth amendment rights.
The only way the government wins this case then is when it shows that its interest in protecting benefit recipients from their own behavior outweighs the recipient's interest in being free from unreasonable searches. So then all benefit recipients could be subjected to searches to see whether they are engaged in activity that is harmful to their benefit. Thus Congress could prohibit Medicare and Medicaid recipients from smoking because smoking is clearly bad for their health and increases the cost of their medical care. Social security recipients could be subjected to exercise and fitness requirements and prevented from spending their largesse on foods that are bad for them. Government employees could have their homes searched for, well, whatever reason the government wants to because the employee gave up his fourth amendment right when he accepted the benefit of a government job. None of these outcomes including drug testing are really palatable, and should not be done by any government that respects human rights and dignity because they are all unreasonable searches.
No, I cannot imagine how much money the state would save if government benefit recipients had to pass a urine test because I don't know how much money the state spends on these programs today, what percent of recipients would be denied benefits if such testing took place, what the cost of an appeals program would add to the current system, or what the consequential costs of eliminating people from the program would be. But I'm fairly certain the writer doesn't know either.
2 comments:
So I guess it would probably be unconstitutional to implant a woman receiving WIC with an IUD that is good for 5 years of birth control?
Get off WIC, we'll take out the IUD, free of charge!
Just sayin'.
That's not a search. Is it a seizure? Probably not, so the fourth amendment would not apply. So it's more likely constitutional than drug testing.
But it may violate the equal protection clause of the fourteenth amendment. You need to ask whether similarly situated people are being treated differently and whether the government has a justification for doing so. You know the labels on all drugs say this product may not be for everyone, ask your doctor. There will be some women who cannot take this drug for a legitimate medical reason. Then some women would receive the benefit, and others would not, and assuming these are all poor women who otherwise would all qualify for the benefit then you need to ask whether there is a legitimate reason for the denial.
Equal protection analysis has different levels of scrutiny depending on the reason for the differing treatment. You need to ask whether the people are in a discrete and insular minority that cannot organize and protect itself politically and whether the right at stake if fundamental. Here whether to have a child is probably fundamental right, so we need to know whether these women are a protected minority and what level of scrutiny to apply. These different levels came about because of the degree to which various groups have been discriminated against and whether the group has the power to organize politically to press the legislature to change the law. Even though there is a long history and tradition of discriminating against women the Court does not put women in the most protected category because they are 50% of the population and assuming they could get some men to vote on their side the court thinks they can organize to protect their own interests. So possibly the government wins here by showing that it has an important interest other than saving money. I don't know what that interest is, but we could probably find one.
I think pregnant women are a smaller group and should been given greater deference by the court in equal protection analysis. So far the court has not held that pregnant women are different from women generally because most women can get pregnant and its a temporary condition. That's not likely to change unless Obama calls me today after graduation with the news that I'm the next nominee to the Supreme Court, but even though that is still not five votes I'm still waiting for the call.
The women may have a chance to win on religious grounds because religion is in the top bucket for highest scrutiny. Here if women show up and claim that their religious affiliation does not allow then to use contraceptives the government must show a compelling reason for the distinction between those who get the benefit and those who do not and that the law is narrowly tailored to go only so far as to meet the compelling interest and no further. The government almost never wins in these cases. But, in recent first amendment cases Justice Scalia has been leading a movement that does not allow for religious exemptions from laws of general application. Here the government says this law applies to everyone and we don't have any reason or purpose to target religious groups with the law. So the government could win this one.
Your proposal though would be an even bigger political battle than the 9-11 memorial. For the past 30 years religious groups have been lobbying the government to provide less access to contraception, and they have been winning. I don't personally like either the current faith-based, pray-I-don't-get-pregnant, abstinence-only programs or forced contraception. But your idea is sure to shake things up a bit and might lead to something that works.
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