Vincent: Pilot? What’s a pilot?
Jules: Well, you know the shows on TV?
Vincent: I don’t watch TV.
Jules: Yeah, but, you are aware that there’s an invention called television, and on this invention they show shows, right?
Ohio Senate Republicans have proposed a three-county, two-year program where welfare applicants who are suspected of having a drug problem would have to submit to and pay for drug tests before receiving benefits. The Dispatch notes that Ohio is not unique: the “move appears to be part of a renewed national GOP movement to require drug testing for welfare recipients. . . . revised laws have been introduced this session in about 30 states, and lawmakers in Georgia, Utah, Oklahoma, Tennessee and Louisiana have moved legislation in recent weeks.”
The Ohio GOP reminds us of Vincent from Pulp Fiction. We want to be Jules and say to them, “Yeah, you are aware that there’s this invention called the Constitution, and as part of this invention they protected many of our rights, right?”
The proposal to drug test welfare recipients is just the latest effort of Republican legislators to import ideological ideas from other states. But at least by bringing in ideas in from other states, we don’t have to guess that the proposals are unconstitutional. We know. We know because judges have already ruled that these efforts in other states are unconstitutional.
The legal analysis here is pretty straight forward. Drug tests are a search. The Fourth Amendment prohibits warrantless searches except under very limited circumstances. In the nineties, Georgia passed a law requiring all candidates for state office to pass a drug test. The Supreme Court held that this law was unconstitutional. The Court reasoned that drug tests can only be required in exceptional situations, like when there is a strong public-safety interest (train operators, for example, can be required to submit drug tests after a crash). The Supreme Court famously said, the Fourth Amendment does not allow the state to diminish “personal privacy for a symbol’s sake.”
Drug tests for welfare recipients are unconstitutional because the program does not qualify as a public-safety type interest that would justify a search. These people have not done anything wrong – and if the government has evidence that they possess drugs, then they could and should be prosecuted under the existing drug laws. The fact is that the Constitution prohibits the state from searching people’s bodily fluids for no reason.
(What about the idea that welfare recipients have no “right” to receive benefits and therefore the state can require recipients to take a test to receive the benefits? This does not make the law constitutional. The Supreme Court has been clear that even though a person has no right to a governmental benefit, the state may not deny a benefit to a person on a basis that infringes his constitutionally protected rights.)
You don’t have to believe our analysis. A number of federal courts have held that drug testing welfare applicants does meet the public safety threshold to be constitutional. In 2000, Michigan decided to implement a “pilot program” that required drug testing of welfare recipients in three counties (sound familiar?). A federal court held that the program was unconstitutional and issued an injunction. You can read the opinion here.
Last year, Florida attempted to implement a similar program. The result in the courts was the same. A federal judge ruled that the program was unconstitutional and issued an injunction. You can read that opinion here. News reports about the decision described it as “scathing.” The judge found that such a “blanket intrusion cannot be countenanced under the Fourth Amendment.” (Florida’s governor also tried to implement drug testing for state employees, but that, too, was blocked by a federal judge as unconstitutional.)
This is part of a disturbing pattern. This is not the first time that the Republicans in the Ohio Legislature have attempted to pass laws that have been found to be unconstitutional in other states. For example, we noted that Republican efforts to defund Planned Parenthood had been found unconstitutional in other states. The bottom line seems to be that many of the Republicans in the Ohio Legislature have decided to put ideology and the scoring of cheap political points above their oaths to defend the Constitution.
UPDATE: Republicans pulled the language from the bill this morning, but they say they’re going to revisit the issue at a later date.