It’s in the Geneva Convention. Look it up.

                        — Ricky Bobby

We have a lawyer friend who occasionally does some civil rights work.  He is totally stoked about the Republicans in the Ohio Legislature.  Last month we noted that the Republican efforts to pass ideologically driven, but constitutionally questionable, legislation was “a new economic stimulus plan: full employment for lawyers.”

“It’s like these guys don’t know that if they pass an unconstitutional law, they have to pay the legal bills for the other side.  Or maybe they don’t care,” he said.  “Either way, it’s good for my bottom line.”

The latest example is an effort to revive a bill to require drug testing of public assistance recipients.  Back in the spring, when this issue first came up in Ohio and other states, we explained why this bill was unconstitutional.

Sen. Tim Schaffer (R-Lancaster) has made some changes to the bill, and will be holding a hearing on the matter today (Wednesday).

The big change apparently is to first ask welfare recipients if they ever have or currently do use illegal drugs. This, it is claimed, will alleviate constitutional problems because only those who answer “yes” will be subject to drug testing as a condition of receiving benefits.

Two things about this.

First – and we say this with all due respect – this is so very stupid.  If you ask someone if they have ever used drugs as a condition for receiving benefits, the answer almost certainly will be “no.”

Second, adding this question does little to alleviate constitutional concerns.  To begin, recipients may have a Fifth Amendment right to not provide potentially incriminating information.  Putting that complication aside, the fact that someone used “ever” used drugs does not provide sufficient information to justify a search.

The stubborn fact is that the Fourth Amendment prohibits warrantless searches except under very limited circumstances.  And the courts have been very hesitant to allow the state to search a person’s bodily fluids without a very good reason.

Imagine: a 42 year old mother applies for benefits; if she answers that she smoked pot when she was in high school, then the state would claim the ability to test her for drugs as a condition of receiving benefits.  In this scenario, the fact of past drug use has no bearing on whether the applicant is currently using drugs. If the government has evidence that she possesses drugs, then the government can prosecute her, but otherwise the state has to leave her alone.

Back to the lawyers.  By coincidence, a Florida newspaper yesterday reported on the legal fees incurred by that state when it tried to implement a similar plan.  The State of Florida will likely pay the ACLU, which filed a lawsuit challenging the law, more than $313,000 in legal fees and costs.  That is IN ADDITION TO at least $900,000 paid to private law firms retained to defend the law.

Who says the Republicans don’t support stimulus programs?

 

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