State Drug Testing Requirements for Welfare Recipients: Are Missouri and Florida's New Laws Constitutional?
Schaberg, AbE., Missouri Law Review
In recent years, there has been a proliferation of state proposals for laws requiring welfare recipients to submit to drug testing as a condition to receiving state assistance. (1) A number of these proposals provide for suspicionless, blanket drug testing of welfare recipients, while others require some form of reasonable suspicion of drug use in order to justify a drug test. (2) These laws seem to garner significant support from the public; however, these laws also have passionate critics. Supporters contend that these laws prevent the misuse of public funds, namely, for the purchase of drugs. (3) Conversely, critics argue that these laws authorize unreasonable searches in violation of the Fourth Amendment. (4) However, the constitutionality of such laws has yet to be definitively determined. There has only been one challenge to a law requiring the drug testing of welfare recipients to date, (5) and the Sixth Circuit Court of Appeals came to a split decision regarding the constitutionality of such a law. (6)
This Summary examines the framework set up by the Supreme Court for analyzing the constitutionality of drug testing on welfare recipients. It discusses the states' implementation of such programs, and specifically analyzes laws recently passed by Florida and Missouri that authorize drug-testing requirements on welfare recipients. The likely outcome of challenges to these laws appears to be dependent, at least in part, on whether the law provides for suspicionless drug testing or calls for drug testing based on some reasonable suspicion of drug use.
II. Legal Background
This Part begins by examining how federal welfare reform enacted in 1996 enabled states to implement drug testing requirements on welfare recipients. Next, this Part will discuss the Supreme Court's framework for analyzing the constitutionality of such measures. A brief discussion of states' implementation of this framework will follow. Finally, Missouri case law will be examined in an effort to provide guidance regarding the constitutionality of the new Missouri law which calls for drug testing of welfare recipients as a condition for receipt of state assistance.
A. Federal Welfare Reform
In 1996, the United States Congress and President Clinton passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), (7) which promulgated a substantial reform to the welfare system in the United States. (8) Notably, PRWORA implemented extensive changes to welfare when it replaced Aid to Families with Dependent Children (AFDC) with Temporary Assistance for Needy Families (TANF). (9) TANF called for a variety of administrative changes that limited the ability of individuals to obtain assistance and made it more difficult for those individuals to retain assistance. (10) The purported rationale of these changes under PRWORA was "to hold recipients accountable for the assistance they receive[d]" by creating obligations on the part of recipients and penalties for failure to fulfill these obligations. (11)
The enactment of PRWORA allowed for sweeping changes in the United States welfare regime because it permitted states to construct their own welfare programs. (12) A common trend among states arose in adopting administrative measures that promoted making discretionary decisions rather than rule-based decisions. (13) These decisions presumably affect, among other things, eligibility of recipients and their retention of benefits. (14) Furthermore, PRWORA specifically authorizes states to administer suspicionless drug tests, that is, tests without any individualized suspicion that a recipient uses drugs as a qualification to receiving assistance: "Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances. …