Tuesday, August 9, 2011

Private eyes ... are watching you!

With all the recent political noise about the 'debt ceiling' crisis, compromise on budgeting and now a downgraded credit credit rating from Standard & Poor, Americans might have missed news from the South earlier this summer. 

Florida became the first state to enact a policy requiring random drug tests for citizens receiving welfare benefits through the federal Temporary Assistance for Needy Families (TANF) program.  The basics of the new law seem innocuous on the surface.  The first positive drug test prevents a person from receiving benefits for one year.  A second offense will ban them from assistance for three years.  In case of a failed test by a parent, a designated individual can be appointed to receive funds on behalf of any children involved, as to not penalize them.  

Seems very fair, doesn't it?  After all, society should be concerned about drug users shirking their responsibilities to live at the expense of taxpayers.  However, this law is wrong.

First, what logic is there in placing a requirement of a drug test on citizens as a precursor to being a beneficiary of government resources?  By such a thought process, we should all be drug tested.  We all benefit from roads paved with our tax dollars. 

Moreover, would we expect a senior citizen to be screened for drugs for receiving Social Security checks or coverage through Medicare?  Surely not.  Critics would argue that seniors pay into the Social Security program and that is true, however, many seniors live long enough to outdraw the funds they paid into the program. 

The line of thinking behind laws like Florida's is noble, but such a notion breaches privacy rights.  Even a seemingly beneficial violation of the Constitution is still wrong. 

The right to privacy is not explicity mentioned in the Constitution, however is considered among the most important.  Privacy rights are implied from the Third, Fourth, Fifth and Ninth Amendments to the Constitution, which mainly protect from quartering of soldiers, illegal searches of property and person, and self-incrimination.

Requiring a drug test that would force a person to give up bodily fluids is an invasion of privacy.  The government would literally be 'seizing' without a warrant, probable cause or consent. 

Critics of this stance would question whether a drug test constitutes a seizure of property, and to answer that question, I would turn to the words of former Supreme Court Justice, Louis Brandeis.  He stated,

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."1
The Bill of Rights, as it pertains to privacy, holds a broader scope of authority than physically seizing property.  Being subjected to a test that requires turning over bodily fluids to receive much needed assistance strips people of the dignity and privacy the Founders sought to provide.

In interpreting the Constitution, the courts have often ruled certain rights can be 'muted' (for a lack of a better term) if the government can show 'a compelling interest' for passing the controversial legislation.  So, does the state of Florida have a compelling interest to require drug testing for TANF recipients?  The answer to that question is undoubtedly no.  As previously mentioned, government resources are allocated to all manner of citizens where no drug test is required.  Why are welfare recipients targeted?  Because of the stereotype that anyone on welfare must be lazy?  Contrary to popular belief, a significant portion of Americans who receive assistance from the TANF program do have jobs and contribute to society.

Many liberals would probably want to take this argument a step further and rave about a right wing conspiracy to somehow move us closer to a fascist system.  But I don't believe in such a notion.  I do believe, however, that legislation violating the Constitution must be struck down, even if well-intentioned or a minor infringment.

Other ways exist to catch people who abuse the nation's welfare program without breaching privacy rights.  Those methods of investigation are more difficult, but having principles and rights for the people is worthless if we toss aside those rights because of inconvenience.


1Justice Brandeis' Dissent in Olmstead v. United States


  1. Then based on this same argument, should employers drug test their employees?

  2. Scalise would say no. I say anything that is legal to receive funds from a JOB can and should be applied to welfare, food stamps, WIC, health care, etc. If I and any other employed person must subject themselves to random drug testing to obtain/keep a job, then those on government services should do the same.

  3. I won't argue that drug testing is considered "seizure of property". I do, however, argue that it is seizure without consent. The consent is given upon application to the welfare program, in this case TANF. Just as I gave 'consent' serving in the military for drug testing and 'consent' at every other job I've had, when individuals apply for assistance they are giving their consent, however undesirable it may be. On the other hand I am against the principle of drug testing all high school students before they can play sports or before they can acquire a parking pass to drive to school. That may seem hypocritical, but I don't believe it is the responsibility of the school system to perform drug testing.