Ending the ACLU’s Drug Subsidy

It isn’t surprising that the ACLU sides with drug abusers over taxpayers. But it is surprising when they find a federal judge to go along with their radical agenda.

This week, U.S. District Judge Mary Scriven blocked Florida’s common-sense welfare reform law requiring drug tests for welfare applicants.

Under Florida law, the state’s Department of Children and Families will conduct drug tests on adults applying for welfare benefits. Those who fail the drug test will be unable to collect welfare benefits but may designate another person to receive the benefits on behalf of their children.

That sounds reasonable enough — but not to the ACLU or a federal judiciary oblivious to the consequences of their folly. Wanting to leave no drug user behind, the ACLU sued to block the law and managed to get Judge Scriven to go along. She ruled that being tested before you collect your welfare check might violate the Fourth Amendment.

Judge Scriven recognized that the correct legal question here is whether the state of Florida has shown a “special need” for this sort of drug testing, but the judge erred in finding that Florida failed to demonstrate a “special need” for conducting such searches without a reasonable suspicion of drug use.

“If invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need, the state could impose drug testing as an eligibility requirement for every beneficiary of every government program,” she wrote. “Such blanket intrusions cannot be countenanced under the Fourth Amendment.”

In these trying times, Florida’s taxpayers are understandably sensitive about how public dollars are spent. But preventing tax dollars from funding drug abuse is not the state’s only interest in this case. It is an important one of many reasons states may require welfare recipients to “Just Say No.”

An overarching concern for Florida’s Department of Children and Families has to be the safety and long-term well-being of the children and families of welfare recipients. Studies have shown that drug abuse affects the ability of an individual to obtain and retain employment; to be a responsible and effective parent; that the incidence of controlled substance abuse is higher among welfare recipients than in the population as a whole; and that drug abuse by parents contributes to child abuse and neglect.

Undoubtedly, the safety of the children of Florida’s poorest families presents a substantial public safety concern that must be considered in deciding whether Florida has shown a “special need” for its drug testing program. Moreover, the state may legitimately consider the risk to the public from the crime associated with illicit drug use and trafficking and may elect not to underwrite this activity with the public coffers.

Even without these legitimate, “special needs,” it is beyond serious dispute — although when has that stopped the ACLU? — that the state has a need to ensure that public welfare dollars are used by the recipients for their intended purpose — buying milk at the corner store — and not dime bags from a corner pusher.

Nevertheless, this entire legal exercise fails to appreciate the state of the law in this area.

First, there is a much lower expectation of privacy in welfare benefits cases. Welfare assistance is a heavily regulated government program in which recipients are routinely required to abide by state and federal regulations and to turn over personal and private information as a condition of receiving their benefits. Failure to play by the state’s rules often disqualifies applicants from receiving taxpayer dollars.

These diminished privacy interests are weighed against Florida’s overriding concern for the safety and well-being of the children, deterring criminal activity and drug addiction, fostering economic self-sufficiency, and ensuring that state funds are used to feed hunger not habits.

Second, the injury claimed here is the violation of a Fourth Amendment protection against unreasonable searches. But the Supreme Court has already held that welfare applicants who do not wish to consent to a state’s search requirements are free to decline the search and forfeit the benefits. Forty years ago, the Court considered whether home searches were a reasonable condition for receiving welfare benefits. After looking at all of the valuable public interests served by the searches, the Court concluded that the state’s home-search condition was not only reasonable, but that the plaintiff was free to refuse the search but could not then complain about the benefits’ being withheld.

Likewise, Florida insists that its welfare recipients not abuse drugs on the public’s dime. Being drug-free is a condition of the people’s welfare aid, and the voluntary drug test is the reasonable mechanism used to enforce that condition.

Governor Scott and the Florida legislature enacted sound, sensible public policy aimed at protecting the state’s children and deterring substance abuse that tears at the fabric of our society. It’s not surprising that the ACLU doesn’t agree, but it’s disappointing when federal judges who should know better do not.