Drug Testing Welfare Recipients as a Constitutional Condition

By Wurman, Ilan | Stanford Law Review, May 2013 | Go to article overview
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Drug Testing Welfare Recipients as a Constitutional Condition

Wurman, Ilan, Stanford Law Review


     A. Fourth Amendment Overview
     B. Drug Testing and Special Needs
        1. Public safety and public officials
        2. Competitive activities in schools
        3. Running for public office
     C. Home Searches of Welfare Recipients: Wyman and Sanchez
     D. Drug Searches of Welfare Recipients: Lebron and Marchwinski
     E. Conclusion: Drug Testing Welfare Recipients Under the Fourth
     A. Paradoxes and Fictions in the Fourth Amendment Doctrine
        1. The paradox of consent
        2. The paradoxical distinction between home searches and
           drug tests.
        3. The diminished expectation of privacy fiction
     B. Unconstitutional Conditions: The Doctrine
        1. Discretionary benefits and constitutional rights
        2. Germaneness
     C. Special Needs Reframed
        1. Constitutional conditions and special needs: Von Raab,
           Skinner, and Vernonia
        2. Unconstitutional conditions and special needs: Chandler,
          Earls, and the border search cases
        3. Constitutional conditions and home searches


In the past few years, there has been a flurry of legislative proposals in the states to require welfare applicants and recipients to submit to suspicionless drug testing. (1) Florida's recently enacted drug testing program, for example, required all applicants for Temporary Assistance for Needy Families (TANF) to pay for a urinalysis. If the results were negative, TANF funds would reimburse the applicant for the drug test; if the results were positive, applicants would become ineligible to receive TANF benefits for one year. (2) A federal district court recently granted a preliminary injunction enjoining Florida's program, finding that the plaintiffs were likely to succeed on the merits of a Fourth Amendment claim. (3) This decision was upheld by an Eleventh Circuit panel on February 26, 2013, on the ground that the district court did not abuse its discretion in finding the plaintiffs likely to succeed on the merits. (4) The panel stated explicitly that it was not definitively or finally resolving the constitutional inquiry. (5) It appears that only the Sixth Circuit has otherwise addressed the constitutional question raised by these testing requirements in a case about a Michigan program whereby all welfare applicants would be drug tested, and every six months twenty percent of existing recipients would also be randomly tested. (6) In that case, the Sixth Circuit panel disagreed with a trial judge who had also granted a preliminary injunction on Fourth Amendment grounds, but the full Circuit upheld the trial judge's decision by an equally divided, six-to-six vote. (7)

The constitutionality of these legislative proposals is, therefore, very much open to question. In the past year, two scholarly articles and one student note have been written arguing, as the district courts have ruled, that suspicionless drug testing of welfare recipients is unconstitutional under the Fourth Amendment's "special needs" doctrine. (8) This doctrine applies where the government can show special circumstances--such as at the border, in schools, or with public safety employees--that may justify dispensing with the warrant and probable cause requirements for conducting a search. Since 1990 but prior to these three pieces, only five notes and comments (and no articles) had been written on the question of suspicionless drug testing of welfare recipients, all coming to the same conclusion that such testing violates or likely violates the Fourth Amendment. (9)

This Note challenges the prior and current scholarship on suspicionless drug testing of welfare recipients, the Eleventh Circuit's recent decision on the question, and the Supreme Court's special needs doctrine more broadly, by applying the unconstitutional conditions doctrine to the cases.

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