welfare reform or class warfare

7/27/2019 Welfare Reform or Class Warfare

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WELFARE REFORM ORCLASS WARFARE?THE DISPARITY IN REGULATION OF

GOVERNMENT ASSISTANCE MANIFESTS ITSELF IN RECENT REFORM EFFORTS.

Restricting Temporary Assistance for Needy Families1(TANF): Modern Welfare Reform in

Exchange for Erosion of Constitutional Protections of the Poor.

By: Michael Thomas Nixon

The efforts to regulate and reform welfare in thfis country have changed, perhaps

aimlessly, over the course of the past forty years, culminating in a single resolution: drug testing.

Although it appears as if state-mandated drug testing for potential or current welfare recipients

would be contrary to the long-standing constitutional mandate against suspicionless searches,

attempts to institute such measures are becoming more prevalent.2 This Comment will address a

few specific welfare reform efforts over the past three decades, the results of those enduring

measures, and the impact those measures and others will or have had on constitutional

protections. Next, this Comment will illustrate the glaring differences among all forms of

welfare: from assistance to needy families to corporate tax breaks and other governmental

financial support. Currently, federal courts within the United States Court of Appeals for the

Eleventh Circuit are being presented with the very issue of state-mandated drug testing for

federally funded family assistance programs.

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Finally, this Comment will examine the decisionsof those courts and provide guidance for consistency in future litigation and legislation.

I. BACKGROUND.A. Drugs, Race, Welfare, and Reform.

1. Drugs and Race.Prior to the 20th Century, drug use was not only legal but accepted. Literary works from

poetry to fiction detail use not only by the main characters, but also infer, if not blatantly

illustrate, the use of those same narcotics by the authors. 4 Attitudes towards mind-altering

substances have not been universal: coffee and chocolate were once frowned upon, and in fact

criminalized in Middle Eastern regions where coffeehouses now thrive.5 One author suggests


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that, in addition to considerations of science and public health, other factors are relevant in

modern anti-drug culture: (1) racism; (2) prejudice, ignorance, and stigmatization with respect

to mental illness; (3) recent scientific findings that have engaged the conflicting philosophies of

molecular biology and free will.6 The racist stigma is not concealed by history, as it was

incredibly prevalent immediately prior to much of the government regulation of narcotics in the

early 20th Century.

A June 1900 editorial in the Journal of the American Medical Association editorially

stated that the Negroes in some parts of the South are reported as being addicted to a new form

of vicethat of cocaine sniffing or the coke habit.7

And that many of the horrible crimes

committed in the Southern States by the colored people can be traced directly to the cocaine

habit.8 These racist attitudes and unfounded fears grew exponentially until Congress took

action. Congress had borne witness to testimony illustrating these race-based attitudes and fears:

It has been authoritatively stated that cocaine is often the direct incentive to the crime of rape by

the Negroes of the South and other sections of the country.9And [i]n 1914, Dr. [Christopher]

Koch [of the Pennsylvania State Pharmacy Board] was quoted as asserting, Most of the attacks

upon white women of the South are the direct result of a cocaine-crazed Negro brain.10

Although Congresss first response did not expressly indicate its responsiveness to the racist

fears, it would soon be contorted into regulating the manufacture, sale, and distribution of

narcotics beyond its original intent.

The Harrison Narcotic Act of 1914, initially intended as a revenue measure, soon after its

adoption by Congress, would develop into a platform to regulate, in fact criminalize, the medical

practices of doctors who prescribed narcotics. An act to provide for the registration of, with

collectors of internal revenue, and to impose a special tax upon all persons who produce, import,

manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves,

their salts, derivatives, or preparations, and for other purposes.11 These other purposes would be

realized in several subsequent decisions by the United States Supreme Court. Although the


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purpose of the Act had been shifted to focus on the public health aspects of narcotics, rather than

the revenue aspects of the taxation of narcotics, the trend of purpose-shifting would not end here.

It is true that the United States Constitution gives the federal government the authority to

tax, spend, and regulate interstate commerce, which in turn allocates some authority to regulate

public health among the other federal powers.12 States, on the other hand, are possessed with

police powers, which grant states the inherent authority to protect and preserve the public health,

safety, and welfare through any number of means. 13 Among the public health powers is the

power to coerce people and businesses alike for the communitys protection.14 Coercion can be

justified in three legitimate ways: to avert a serious risk of harm to others; to protect the welfare

of those who cannot protect themselves; and to prevent a serious risk of harm to oneself.15

However, the interests of justice indicate that state and federal authorities should bear the burden

of justification by demonstrating (1) a significant risk based on scientific evidence; (2) the

interventions effectiveness by showing a reasonable fit between means and ends; (3) that

economic costs are reasonable; (4) that human rights burdens are reasonable; and (5) that

benefits, costs, and burdens are fairly distributed.16 The failure of the regulatory authorities,

both state and federal, to meet these burdens will be explored in a later section.17

History shows us that the drug laws were rooted in unfounded racial prejudices driven by

irrational fears. It is no coincidence that the minority populations in this country have been

relegated to the working class or lower, are the same minority populations that were the focus of

the initial drug stigmatizations. With the implementation of suspicionless drug testing for low-

income recipients of government aid, the circle of prejudicial fears developing into legislation

and government action is complete. The same drug laws that were made to vilify minorities are

now being used as the basis to support welfare reform attempts that vilify the poor.

2. Welfare and Welfare Reform.Ever since social programs were introduced during the Great Depression,18 state and

federal governments have wrestled with issues concerning programs that meet social needs. 19 A


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key early issue can be termed supply and demand. Legislatures struggled to determine how

they could best meet the needs of those in demand for government support.20 Outreach and

delivery of services were paramount to these concerns. 21 In fact, there seemed to be an emphasis

on support for the downtrodden rather than a distrustful eye for the needy. 22 However, like a

pendulum, the economy swung back into a low spot and public reaction overcame the positive

reform efforts sought by the states and federal government.23

Social program mismanagement was documented through Congressional hearings and

the General Accounting Office.24 In response to the results, inspectors general were appointed to

oversee agencies, which, in turn, led to any savings realized as being indicative of the success of

their implementations.25

Mismanagement, however, was not the only issue. Although states had

been given vast discretion in the operation of public assistance programs funded by the federal

government, the 1960s saw a growing concern for reports of welfare fraud. 26 Indications of

prejudice and distrust towards welfare recipients were present within those reports: men were

assumed to be welfare cheats if found cohabiting with a woman out of wedlock. 27 Further, there

have long been efforts to limit large groupsperhaps classesof people from being eligible for

inclusion on the welfare rolls.28 By restricting access to public aid based on arbitrary

determinations disguised as regulations, high percentages of the restricted poor populations were

minorities.29

In 1969 welfare was given a resounding boost from the United States Supreme Court in

Goldberg v. Kelly.30

At issue was whether the Due Process Clause requires that welfare

recipients receive an evidentiary hearing prior to termination of benefits.31 The opinion expressly

provides that [welfare] benefits are a matter of statutory entitlement for persons qualified to

receive them.32 In a corresponding footnote, the Court noted that welfare has taken on a role of

property rather than gratuity, and provides key support for that statement:

It has been aptly noted that (s)ociety today is built around entitlement. Theautomobile dealer has his franchise, the doctor and lawyer their professionallicenses, the worker his union membership, contract, and pension rights, theexecutive his contract and stock options; all are devices to aid security and


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independence. Many of the most important of these entitlements now flow fromgovernment: subsidies to farmers and businessmen, routes for airlines andchannels for television stations; long term contracts for defense, space, andeducation; social security pensions for individuals. Such sources of security,whether private or public, are no longer regarded as luxuries or gratuities; to the

recipients they are essentials, fully deserved, and in no sense a form of charity. Itis only the poor whose entitlements, although recognized by public policy, havenot been effectively enforced.

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The Court went further and stated that benefits such as welfare cannot be challenged on

constitutional grounds by insisting that the benefits constitute a privilege rather than a right.34

Soon after the Courts ruling in Goldberg, public opinion began to shift further away from the

compassion experienced in the 1960s.35

The 1970s brought turmoil to this nation and abroad.36 Strife in the Middle East was just

starting to catch Americans attention,37 and the energy crisis was frustrating the hard-working,

everyday American, as well as his employer.38

Public sentiment towards public assistance for the

needy reversed dramatically. Just a decade prior, Americans thought that welfare could or should

be expanded, that the government was spending too little to aid the needy.39 However, a 1976

Harris Poll indicated that 85% of Americans believed that too much money was being spent on

welfare for people who were cheating the system, that is, they were not entitled to the benefits.40

Soon thereafter, and even beginning as early as Richard Nixons Presidency, governments took

notice and altered their goals to match the sentiments expressed by the general, and presumably

non-welfare, public.41

3. The Correlation.For both welfare-reform and drug-control proponents, 1996 was a landmark year. On

August 22 of that year, Congress signed into law sweeping reforms for welfare and Social

Security.42Although there had been a longstanding war on drugs43 at the time of its passage,

the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) 44

lacked any mention of how drug use or abuse had taken a toll on the welfare program. 45

However, the PRWORA expressly excluded from some public assistance programs certain


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drug-related convictions.46 Essentially, any person convicted of an offense deemed a felony

under state or federal law and which has as an element possession, use, or distribution of a

controlled substance47 is prohibited from receiving assistance under the grants provided by the

PRWORA or under any state or federal food stamp program. 48 However, states were given the

option to opt out of these provisions,49 or instead to mandate testing for controlled substances

and sanction those who test positive.50 Michigan was the first state to adopt the testing

requirements.51

4. The Justification: Circular Logic?[A] democratic and free society should be able to justify criminal sanctions, especially

when they impact on activities considered by many to be purely personal.52 Public health has

been one such justification for not only criminal penalties, but also civil regulation.53 The impact

that a few actors have on the public as a whole are the foundation for these changes in societal

views and governmental efforts at reform.54 Naturally, public health concerns also raise public

welfare concerns: The State, acting through public health law, often intrudes on individual

autonomy in order to further the overall public good.55 Public health interventions need

justification because they intrude on individual rights and incur economic costs.56 The

following subsections will address the five factors for justification enumerated above.

a) A Significant Risk Based on Scientific Evidence.Some experts believe that any public health policy must be based on empirical

evidence.57 It may be helpful to think of this in terms of the Daubert58 criteria for expert

evidence: the foundation should be rooted in testable, verifiable, and accepted scientific research

or methods.59 Accordingly, the lack of scientific evidence can lead to very dangerous legal

precedent. For instance, law students and practicing attorneys alike are probably familiar with

the case ofBuck v. Bell,60

in which the United States Supreme Court upheld the involuntary

sterilization of a woman in Virginia based on one doctors claim that she was feeble-minded,

holding that such involuntary sterilization did not violate either the Due Process or the Equal


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Protection clauses of the Fourteenth Amendment.61 After the case had long been decided, many

experts determined that not only was Carrie Buck not feeble-minded, but the genesis of her

transgressions was in fact a rape that led to an out -of-wedlock pregnancyan example, at the

time, of social deviance in which the victim was blamed. 62 It is interesting to note that the

eugenic expert who recommended Bucks sterilization would provide the basis for many of the

most heinous crimes in world history: the implementation of race cleansing with the gas

chambers and other mass-killing devices employed by the German Nazi regime not long after the

Supreme Court issued its opinion.63

Buck v. Bell is not the only case where people were either classified or profiled into a

classification in order to serve the ends of government. Consider the World War II concerns on

the American west coast: fear of Japanese invasion led to profiling against Japanese-Americans,

leading them to be detained indefinitely in internment camps merely because of a personal

identifying characteristic of which they had no control, their race and heritage. These fears were

widespread enough to create a presumption that allJapanese-Americans were not only capable

of aiding the Japanese against the American military forces, but also likely to do so. Naturally,

this created the reasonable basis for indefinite, race-based detention. When the Supreme Court

was given the opportunity to determine whether this policylacking any scientific basis and

founded only on racial fearsit failed to find justice, and it failed to uphold the Constitution.64

This case,Korematsu v. United States,65 likeBuck v. Bell, has not been overturned.66 These two

cases exemplify the most unforgettable consequences of profiling: permanent and continuing

harm to both the profiled class and the Constitution as a protective measure against unjustified

governmental intrusion.

The opinion in Korematsu illustrated potential concerns: It should be noted, to begin

with, that all legal restrictions which curtail the civil rights of a single racial group are

immediately suspect.67 Insofar as mandatory drug testing is concerned, it does not curtail the

rights of a single racial group, but instead, creates a new and distinct group: low-income

recipients of government assistance. However, the income gap in this country does tend to fall


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along racial lines. With that said, the challenges to the drug-testing law are not based on race, but

rather based on the creation of a class by an Act of the legislature, which in turn leads to a

violation of the equal protection of the laws for those individuals now part of that discrete and

insular class, regardless of race.

What remains is whether there is a significant risk based on evidence. The studies

conducted after the implementation of these laws indicate that not only is there no basis

whatsoever for presuming that low-income assistance recipients misuse their assistance, but

these measuresintended to reform and insulate the assistance programs from wastein fact

created more waste: overall, the cost of reimbursing the recipients outweighed the benefits

realized by restricting drug users from receiving aid. Although there is no scientific basis for

requiring that only low-income assistance recipients submit to the testing, the proponents of such

testing would argue that there is, at the least, a legal basis for it. Looking at prison statistics, it is

true that much of the federal prison population is comprised of drug offenders. 68 It is also true

that minorities are disproportionately represented in prison populations overall.69 This correlation

of drug use and incarceration provides, at-best, a weak legal foundation for implementation of

these measures.

b) Reasonable Fit between Means and Ends to ShowEffectiveness.

The intended ends for welfare reform are related to economics. Limiting the number of

individuals eligible for assistance lowers the amount of revenue needed to satisfy the demand for

that assistance.70 However, even if low-income welfare recipients make up the vast majority of

individuals receiving aid, it cannot be said these same recipients constitute the majority of

revenue expended in the form of government aid.71 Take for instance the federal loans to the

banking and automobile manufacturing industries that were doled out just a few years ago.72 The

billions of dollars spent by the federal government for that purpose was intended to be repaid in

full, and for the most part, that goal has been realized.73 However, it seems as though the policy

for providing aid to low-income families is not designed to create a permanent financial crutch,


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but rather to support the less-fortunate until they can get back on their feet and become regular

contributors to society again. Surely the revenue realized when these individuals enter the

workforce and resume paying income taxes would amount to repayment of the initial

expenditures under the program.

Perhaps the policy-makers view drug use among welfare recipients as preventable, like

tuberculosis. By focusing broad state policies traditionally applied to public health concerns

such as the spread of communicable diseaseson apparently unrelated concernsdrug usethe

state seeks to implement an aggregate change in behavior, rather than an adjustment in the

behavior of one individual. Economic and social incentives, historically used to remedy treatable

concerns, are instead being applied to welfare reform as perhaps another means for society to

control the use of illegal drugs, or perhaps the poor.

Finally, if the ultimate goal of these efforts is to reduce government waste, then looking

only to welfare recipients is not sufficient. Medicare is another government support program that

is similar in structure to welfare, but is viewed in an entirely different light for one glaring

reason: Medicare providers are usually at least middle class professionals, whereas welfare

recipients are usually lower-class and less-respected.74 Moreover, the attachment of the screening

conditions on aid to only low-income recipients demonstrates that the government does not treat

each class of aid recipients alike: if one of the purposes is to reduce the reliance of government

aid by drug users, then the testing should naturally extend to all recipients and beneficiaries of

government aid. That would include corporations, churches and religious organizations,

nonprofit groups, defense contractors, professionals who require licensure, airlines and railroads,

scholarship and financial aid recipients, etc. Therefore, there appears to be no reasonable fit

between the ends and the means.

c) Economic Costs Are Reasonable.The measure itself is, on its face, reasonable in terms of economic cost. However, as will

be explored later, where those costs fall does not align with the anticipation of the legislature.


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The purpose of the testing was for the recipients to bear the burden of the initial cost of the test,

and negative results, deeming the recipient eligible for aid, would also lead to a state refund of

the cost of the test. However, the actual results are alarming: the reimbursements are costing the

state more money than any savings realized when turning away those who show positive results

on the test.75

There is more to consider than the actual recoupment of funds spent for the testing

procedure. Economic costs can extend to more than just tangible cash and capital: the welfare

class may feel that it is part of an economic battle between the classes, in which the lower classes

are provided the least amount of support. The feelings of apathy and distrust discourage people

from seeking employment and removing themselves from the welfare rolls. If members of the

welfare class feel they cannot overcome the burdens placed on them by the government, the

same government created to protect them, in order to obtain the bare necessities to continue life,

then they may reject the government structure altogether and engage in criminal enterprise in

order to support themselves or their family. This is absolutely antithetical to the stated purposes

of the welfare laws and their amendments.

d) Reasonable Burdens on Human Rights.Although the enacting authorities insist that mandatory drug testing for welfare benefits

does not intrude on human rights, the argument is flawed because it is based on a premise that

the receipt of the benefits is voluntary.76 However, the Fourth Amendment protects individuals

from unreasonable searches.77 Notably, a warrantless searchwithout consentis per se

unreasonable.78 However, certain exceptions have been recognized by the courts: probable cause

in the form of reasonable suspicion,79 special needs80 or exigent circumstances,81 plain view,82

and hot pursuit.83 It is immediately clear that hot pursuit does not fit within the scope of welfare

drug testing. However, exigent circumstances and reasonable suspicion are not facially

inapplicable to this situation. Accordingly, each will be addressed in turn.


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Proponents of welfare drug screening insist that the cost-saving measures sought to be

implemented constitute sufficient exigent circumstances to deem the intrusions constitutional.

The doctrine of exigent circumstances is not really an exception to the warrant requirement, but

rather a condition that permits with dispensing with the requirement for as long as the condition

exists.84Generally, this exception will apply in those cases where the societal costs of obtaining

a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh

the reasons for prior recourse to a neutral magistrate.85 It is therefore important to note that the

administration of welfare is not, or should not be, within the realm of criminal law.86 Drug

screening for welfare recipients simply does not equate to law enforcement measures pertaining

to the use of illegal substances, and the exigent circumstances doctrine should not be used to

support the suspicionless testing of all low-income recipients of public aid.87

Reasonable suspicion usually requires some foundation that an objective reasonable

officer in the same or similar situation would determine that the existence of particular facts

creates enough probable cause to instigate a warrantless search.88 This includes perception

namely sight, smell, and soundbut does not necessarily amount to plain view.89 However, to

apply this tenet as a blanket exception to welfare recipients would be to imply that all welfare

recipients have, by their nature as welfare recipients, created a reasonable suspicion of drug use

when they show up to receive their assistancethe same assistance these individuals need to

feed and shelter their families. Having experienced extreme misfortune, cannot and should not as

a principle of law, create the presumption of drug use. Further, this blanket categorization would

implicate other provisions in the Constitution, namely that the government may not engage in

class discrimination.90 Although government assistance recipients represent a broad variety of

demographics and social structurefrom the homeless to the largest corporations in the world

the actions by the government to classify only those less-fortunate recipients as reasonably

suspected of drug use would be to create a discrete and insular class of people determined by

the United States Supreme Court to be a violation of equal protection of the laws.91 The very


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effect would be the creation of a particular class based on the arbitrary actions of the

government.

e) Fair Distribution of Benefits, Costs, and Burdens.This final element is not met whatsoever by governmental attempts to reform welfare and

decrease wasteful spending when it ties mandatory drug testing to low-income benefits. Why?

Because the same tying measures are not introduced to other governmental assistance: grants, tax

breaks, stimulus projects, and even professional licensure.92 Further, the mandatory drug-testing

has actually cost more money than it has saved, at the cost of a mass forfeiture of individual

rights guaranteed by the Constitution.93 The willingness of these recipients to subject themselves

to these measures should not be viewed as a societal belief that if you have nothing to hide, why

assert your rights to do so? This is dangerous and antithet ical to the very nature of the Bill of

Rights.

There is a natural balancing test that is employed when weighing benefits and burdens as

a result of the implementation of any law. By comparing the rights involved with the level of

governmental intrusiveness, an objective observer can balance the two and determine if the

benefits outweigh the burdens. In most cases, the burden is on the individual, while the benefits

are meant to be realized by society as a whole. Regarding welfare drug testing, the benefit is in

the form of limiting the expenditure of revenue determined to be wasteful or misused by the

government. Next, one could compare the magnitude of the harm to the individual with the

magnitude of the harm to society. Moreover, the likelihood of that harm occurring is also to be

considered. Here, the harm to the individual is manifest by subjecting the individual to an

unconstitutional invasion of his body, literally the only possession that a man can never be

deprived of. The likelihood of that harm occurring is close to 100% because the individual is

targeted for the program based on his position in society and his need for governmental aid.

Essentially, the individual must decide whether to forego aid, likely the only way he will put

food on his familys table, or to forego his constitutional protections. The harm to society is not


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nearly as distinct. First, there is no proof that measures like these are effective. Second, there is

no data indicating that these individuals are responsible for the waste or misuse of funds alleged

to be the reason for the measures. Finally, even if the harm amounts to government waste, the

amount of taxpayer money misappropriated does not outweigh the inherent harm in forcing an

individual to forfeit his constitutional rights for the sake of feeding his family. At least, not when

the government is involved.94

Ultimately, there is no balance of benefits and burdens when comparing the amount of

aid given to the highest income earners to the amount of aid given to the lowest income earners.

Corporations may receive tax breaks, subsidies, and even loans from the federal government that

would never be made available to a person in the welfare class. However, those same entities that

earn enough to warrant placement in a higher class are not subjected to the same burdens as

would be imposed by the TANF screening process. Therefore, the costs, perhaps sufficiently

similar in overall value, are extremely disparate when looking to the number of people needing

low-income assistance, the amount of aid actually received, and the same data in respect to

corporate tax breaks, loans, and subsidies.

II. CONTEMPORARY REFORM ATTEMPTS.A. Michigan.In 1999, Michigans Family Independence Agency(FIA) adopted a pilot program, to

be administered by the Family Independence Program (FIP), to begin testing FIP welfare

recipients for controlled substances.95 The program was mandated by a Michigan law and

authorized suspicionless drug testing of public assistance recipients. 96 The bill required the FIA

to implement a pilot program in at least three counties where FIP recipients would be required to

take and pass a drug test.97

The purpose of the pilot program was to determine the feasibility of

implementing the program statewide.98

The program was to be evaluated by department officials,

with emphases placed on certain information.99 These categories of data were also to be included

in an annual report to be prepared by the FIA if the program was adopted statewide.100 In order


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for the program to be adopted, six months must have passed since the initial evaluation has been

submitted to the legislature.101 However, the program was challenged almost instantly.102 Passed

on April 28, 1999, the Act, by its terms, was to take effect immediately. 103 But on September 30,

1999, a group of plaintiffs brought an action both on their behalf and on behalf of a class of all

adult residents of Michigan whose ability to receive FIP benefits is or will be conditioned on

their willingness to submit to drug testing.104

1. Litigation: Round One.On November 10, 1999, the United States District Court for the Eastern District of

Michigan entered a temporary restraining order in the case ofMarchwinski v. Howard105

to allow

the parties the opportunity to engage in discovery before ruling on a preliminary injunction

request.106 Then, on September 1, 2000, the same court entered the preliminary injunction,

enjoining Michigan from implementing its pilot program.107Finding no indication of a concrete

danger to public safety that would permit departure from the Fourth Amendments protections

against unreasonable searches,108 the court found that plaintiffs were likely to succeed on the

merits that the State could not demonstrate a special need to authorize suspicionless testing.109 In

its opinion, the court addressed whether it should continue to enjoin the state from conducting

suspicionless testing.110

The district court first set forth the factors for issuing a preliminary injunction as applied

in the United States Circuit Court of Appeals for the Sixth Circuit,111 but the district court first

examined the likelihood of success factor.112

Because the Michigan statute was challenged as a

violation of the Fourth Amendment, the district court noted that the United States Supreme Court

had interpreted the Fourth Amendment as requiring some sort of individualized suspicion tosupport a search.113 The court next stated that it is universally agreed that the collection and

testing of urine is within the meaning of the Fourth Amendment.114 However, there are

exceptions for urine testing, as with other searches within the Fourth Amendment. 115 Looking to

Skinner v. Railway Executives Labor Association,116 the district court recalled that the Supreme


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Court has permitted certain instances of suspicionless drug testing when there was a substantial

special need.117

In Skinner, the Supreme Court upheld drug testing of railroad employees who were

involved in train accidents.118 The Supreme Court held that where the privacy interests

implicated by the search are minimal, and where an important governmental interest furthered by

the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search

may be reasonable despite the absence of such suspicion.119 The holding was not unanimous, as

Justice Marshall, dissenting, warned that the opinion was unprincipled and dangerous. 120 The

district court in Marchwinski noted that the Supreme Court has since expanded the scope of

permissible suspicionless searches to U.S. Customs Agents121

and high school athletes,122

among

others.123

These exceptions to suspicionless searches are permitted only in limited circumstances.124

For instance, when looking for the special need required to justify suspicionless searches, the

Supreme Court in Chandler v. Miller125 held that there was no such need implicated by political

candidates for state offices.126 The Marchwinski opinion distilled Chandlers interpretation of

Skinners special need requirement: the suspicionless drug testing must meet the special need

of ensuring safety;127 and under Chandlers interpretation of Vernonia School District 47J v.

Acton,128 the special need must be demonstrated by an immediate crisis.129 Chandler thus

controlled the initial inquiry for the Marchwinski court: whether a special need has been

shown.130

Yet a showing of a special need is not enough, as the special need must be related to

public safety.131 The district court then examined the facts before it to determine whether the

state has shown a special need related to public safety.132

First, the court looked to the legislative history of the bill to determine the purpose behind

the suspicionless searches at issue.133Within a section titled Apparent Problem, the text of a

legislative analysis of the bill stated that substance abuse was preventing people from obtaining

employment, thus obstructing the reform efforts implemented by the Michigan in 1995.134

Although the court found Michigans desire to address substance abuse and unemployment as


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laudable and understandable[,] it held that those goals are not indicative of a special need

sufficient to warrant departure from the Fourth Amendments main rule.135 The State argued

that it was not required to show that the special need was related to public safety, an argument

based on an erroneous interpretation ofChandler.136 The court held that there was no question as

to what the Chandlercourt said: that public safety must be in jeopardy for a departure from the

Fourth Amendments main rule.137 In fact, the court stated that public safety has been a concern

in every instance where suspicionless drug testing was upheld. 138 Not only was public safety a

concern, but each exception was narrowly tailored to those legitimate concerns.139

The State attempted to make a correlation between substance abuse and child abuse and

neglect, which was important because children are the primary beneficiaries of FIP benefits.140

The court disagreed and looked to the purpose of the TANF, which was not meant to address

child abuse or neglect, but rather to build stronger families and homes through employment and

self-sustenance.141 Finding that the FIP in Michigan did not have the goals asserted by the State,

the court rejected the States argument that abuse and neglect supported a special need sufficient

to target FIP recipients for suspicionless drug screening.142 The court explained further that the

State's financial assistance to parents for the care of their minor children through the FIP cannot

be used to regulate the parents in a manner that erodes their privacy rights in order to further

goals that are unrelated to the FIP.143 The court saw any affirmance of such testing to be

precedent capable of opening the floodgates to drug testing for recipients of any number of

government programs, including public education, and accordingly, decided against the

program.144 The court again found support in the dissenting opinion written by Justice Marshall

in Wyman v. James.145 Determined to be a relevant query in the present case, the district court

recalled that Justice Marshall asked whether the Court would hold as a matter of law that a poor

woman is more likely to injure her child merely because of her economic situation.146 The

district court avoided setting a dangerous precedent and held that the FIPs suspicionless drug

testing was not constitutional.147


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Next, the State relied on Wyman to assert a parens patriae148 interest in minor children

under the FIP.149 However, the court again rebuffed the State and distinguished the present facts

from Wyman.150

While Wyman did hold that home visits, which were found to not even constitutesearches, did not offend the Fourth Amendment, it would be quite a stretch forthis Court to hold that Wyman supports drug testing which (1) clearly constitutes asearch within the meaning of the Fourth Amendment and (2) is not justified by aninterest that is germane to the FIP.151

Moreover, the court held that, even ifWyman supported these searches, the more recent holding

in Chandlerdid not.152 The court found it notable that a majority of states had, in fact, rejected

blanket drug testing for welfare recipients because it was considered by those states to be

unconstitutional.153 The State also relied on Wyman to argue that the voluntary nature of public

assistance diminishes any reasonable expectation of privacy. 154 Again, looking to Chandler, the

court stated that because the Supreme Court had held that mandatory testing for political

candidatesa far more voluntary action than applying for public assistance in times of need

could not be supported, the drug testing at bar could not be supported.155 Whereas, in Wyman, the

Court held that no constitutional concerns were implicated by a home visit, which was held to

not amount to a search.156

Because the court held that there was no special need shown by the

state, the analysis of the Fourth Amendment was complete and there was no need to balance the

public and private interests.157

Remaining before the court were the three final elements necessary to the preliminary

injunction inquiry: irreparable harm to plaintiffs, harm to others, and whether the public interest

is advanced by the injunction.158 The court summarily held that each was in favor of plaintiffs.159

However, the issuance of the preliminary injunction did not end the dispute. The state appealed

to the Sixth Circuit.160

2. On Appeal.On January 30, 2002, the parties came before the United States Court of Appeals for the

Sixth Circuit and argued their cases.161 And on October 18, 2002, the Sixth Circuit reversed the


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holding of the district court and permitted the State to go forward with its pilot program.162

Specifically, the court held that the need not be related to public safety, as it was only one factor

to be considered in determining whether a special need exists.163 Further, the court held that the

State had made a sufficient showing that the law in question was supported by a special safety

need and the conditions attached were constitutional under Wyman.164 The Sixth Circuit

reviewed the decision of the district court for an abuse of discretion.165

The circuit court identified two key factors in its appellate analysis: whether the State had

a special need, and whether that special need outweighed the private interests involved. 166 The

court defined a special need as those government interests that go beyond the normal need for

law enforcement.167

The court then listed several cases in which the United States Supreme

Court had found a special need to permit otherwise unconstitutional suspicionless drug testing.168

Next, the court noted that it has previously held that certain positions of employment within the

government created a special need for drug testing applicants and current employees. 169 Initially,

the Sixth Circuit relied on the Supreme Courts most recent ruling regarding suspicionless drug

testing: Board of Education of Independent School District No. 92 of Pottwatomie County v.

Earls.170

The Court in Earls determined that a high school student could be subjected to drug

testing for participation in extracurricular competitive events without a violation of her Fourth

Amendment rights.171 The Court noted that, because students had already surrendered some level

of privacy via the necessity of vaccinations and physical examinations, an unobserved urinalysis

test did not further violate a students privacy interests: it only tested for illicit substances, it was

only shared with faculty members on a need-to-know basis, and a positive test did not carry with

it the weight of a criminal sanction.172 Further, the Court found a pressing interest in testing for

substance abuse among students.173 Notably, the Court held that safety merely factors into the

analysis, and is not a controlling factor.174 However, Earls had been decided just a few months

after the arguments were made before the Sixth Circuit, thereby precluding the plaintiff from the

making any corresponding preparations.175


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The Sixth Circuit rejected the district courts interpretation and application ofChandler,

and thus the plaintiffs reliance on its holding.176 The Sixth Circuit viewed the opinion in

Chandleras merely contrasting the state's public image concerns to a situation in which, unlike

that in Chandler, public safety would genuinely be in issue.177 Further, the court stated that its

view ofChandlerwas supported byEarls.178 The court then examined several other cases where

the Supreme Court permitted suspicionless searches and determined that safety was merely a

factor in each of them, not the predominate factor for determining special need.179

Finally, the court explained how public safety was in fact served by the Michigan

program.180

The court determined that the proper inquiry was whether Michigan has shown a

special need, and public safety is but one consideration.181

It concluded from its analysis that

Michigan had shown a special need, which encompassed public safety concerns, and the

program met needs beyond the normal need for law enforcement.182 Regarding its discussion

of public safety, the court looked to the primary concerns of the PRWORA and the TANF,

namely that children may be cared for in their own homes, and that people lessen their

dependence on government aid.183The Sixth Circuit accepted the states contentions that: drug

abuse interferes with the ability of an individual to not only obtain employment, but retain

employment, as well as being a responsible parent; that the rate of drug abuse is higher among

low-income government aid recipients than in the population as a whole; that there exists a

strong correlation to drug abuse by parents and children who suffer from abuse and neglect; and

that drug abuse is a plays a key role in perpetuating reliance on charity and government aid.184

This gave the court no doubt that the safety concerns for children in the FIP constituted a

substantial public safety concern.185 The court went a step further and opined that substance

abuse creates other problems for the State, such as crime, and that the State has a special need to

ensure that public funds disbursed through the FIP do not further those activities.186 For those

reasons, the Sixth Circuit held that the State had established a special need for the pilot

program.187


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Next, the court assessed whether the plaintiffs have demonstrated a likelihood of success

on the merits.188The court deemed it necessary to that issue whether the evidence supports their

contention that the means chosen by Michigan are not effective to vindicate the interest

Michigan has asserted.189 The court compared the facts in Chandlerwith the facts presented,

and noted that the testing in Chandlerwas held unconstitutional because it was ineffective and

that the broad and random FIP testing would remedy any concerns of ineffectiveness. 190 The

court was persuaded by evidence introduced by the State that showed that ten percent of the

results had been positive, leading the court to conclude that the testing was effective in

detecting drug abuse among aid recipients.191

Last in the analysis of the likelihood of success factor, the court examined to the

competing interests of the State and private individuals.192 In order to evaluate the privacy

interests of the plaintiffs, the court looked at the character and invasiveness of the privacy

intrusion and the nature of the privacy interest.193 The court turned to Skinnerfor the extent

of regulation of the welfare industry,194 and for the pervasiveness of testing in other

contexts195and to Acton and Wymanfor the voluntary or involuntary nature of the

procedure196 to determine the reasonableness of any expectation of privacy.197 Regarding the

character of the privacy intrusion, the court noted that the test involved an unobserved urine

collection that is then tested for illicit drugs, and no other information is collected.198 Moreover,

the results were not used for criminal prosecutions.199 Because these facts were in line with the

holdings ofActon, Skinner, and Wyman, the court concluded that the intrusion was limited.200

Regarding the nature of the privacy interest, the court began by noting that the plaintiffs have a

diminished privacy interest.201 The Sixth Circuit explained that welfare is a highly regulated area

of public life,202 as both the state and federal governments regulate public assistance.203

Moreover, applicants for public assistance are required to divulge important and private

information, further diminishing any expectation of privacy.204 The court held that the plaintiffs

had not shown a strong likelihood of success on the merits.205 The court found a strong state

interest in ensuring that public funds allocated to the FIP furthered the purposes of the program


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and provide for the welfare of the children of the FIP recipients[.]206 The court also held that

the plaintiffs had a diminished expectation of privacy; accordingly, the interests of the state

outweighed the interests of the plaintiffs.207

Next, the court addressed the remaining factors considered by the district court.208 First,

the Sixth Circuit held that the plaintiffs had not shown any irreparable injury.209 The court

refused to accept the argument that Michigans testing constituted an unreasonable search.210 To

the court, the evidence suggest[ed] that the Michigan program impose[d] a condition on the

plaintiffs' receiving the program benefits, and that there has been no showing that the condition

is unreasonable.211

The court based this conclusion on the text of the PRWORA, which

expressly negated any claim of entitlement to public assistance under that program,212

and on

Wyman, which held that required home visits for welfare recipients were not an unreasonable

search.213 How the condition was viewed was inconsequential to the court because it found that

the state had satisfied the Wyman factors.214 The court believed that determining whether adult

recipients of FIP funds were using drugs was directly related to the goal of providing adequate

care for children covered by the FIP.215 The court also noted that the public has a strong interest

in assuring that FIP funds are used for their intended purposes.216 The court compared the facts

presented with Wyman and concluded that plaintiffs had not shown irreparable harm:

As in Wyman, application of the warrant and probable cause requirements wouldbe extremely impracticable. And like the search in Wyman, it is consensual in thesense that the recipient may refuse to submit to the test, but may not then continueto participate fully in the program.217

The court then briefly disposed of the third and fourth factors, which were considered to

be substantially identical.218 The court held that ensuring that public funds were used for their

intended purposes would be obstructed by an injunction, and that would generate the public

harm.219 Accordingly, the court reversed the district court.220

3. The Rehearing.


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The Sixth Circuit granted a rehearing en banc on January 21, 2003. 221 The effect of such

a grant was to vacate the prior ruling and restore the case to the docket as pending appeal. 222

After briefs were submitted and arguments were heard, the court was equally divided with six

judges in favor of affirmance and six in favor of reversal, requiring affirmance of the district

courts order.223 This ruling meant the law was not found constitutional, and the injunction would

be upheld.

Although the en banc opinion was brief, reciting the law as required to state the outcome

of their split decision, its impact was not as minute. The law was permanently enjoined as a

result of the split decision, and it would be another several years before another state would

attempt to institute measures like those adopted my Michigan. However, Michigan remains the

paradigmatic example of the states ability to enact reform measures as a result of Congress

enactment of the PRWORA.

B. Florida.Beginning July 1, 2011, the State of Florida mandated drug testing for each applicant

under the Temporary Assistance for Needy Families program.224 The mandate also required the

applicant to cover the cost of the testing.225 The requirements extended to any parent or

caretaker relative who is included in the cash assistance group, including an individual who may

be exempt from work activity requirements due to the age of the youngest child or who may be

exempt from work activity requirements . . . .226 A positive test acts to prohibit that individual

from being eligible for assistance under TANF for one year.227

However, an individual may

reapply within six months if that individual submits to, and successfully completes, a qualified

substance abuse program by a licensed provider.228 Although the test requires both parents of a

two-parent household to submit to testing, a positive test does not affect the eligibility of the

child under the program: a payee is appointed by either the department or designated by the

parents, but the designated payee must submit to the testing requirements.229 Litigation would

ensue.


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1. Litigation: The Beginning.In July 2011, Luis Lebron, an unemployed college student, father, and Navy veteran,

applied for public assistance under TANF, was accepted, and then was instructed to take the

mandatory drug test.230 He refused, contending that he had never used drugs and there was no

reason to suspect that he had used drugs, and thus should not have to pay for a drug test.231

Lebron then, with the help of the American Civil Liberties Union, filed a complaint in the United

States District Court for the Middle District of Florida seeking to enjoin the Department of

Family and Child Services (the Department) from requiring the test as a condition to receiving

benefits.232 The question presented to the court was whether section 414.0652 was constitutional

under the Fourth and Fourteenth Amendments.233

Ultimately, the court granted the plaintiffs

injunction, but denied the petition for class certification.234

First, the court examined the background of the welfare program at issue, and then of

welfare recipients and drug use in Florida.235

After holding hearings on welfare reform, the Florida Legislature enactedlegislation in 1998 that required DCF to develop and implement a DemonstrationProject to study and evaluate the impact of the drug-screening and drug-testingprogram on employability, job placement, job retention, and salary levels of

program participants and to make recommendations, based in part on a costbenefit analysis, as to the feasibility of expanding the program, includingspecific recommendations for implementing such an expansion.236

The Department thus designed and implemented the Demonstration Project to empirically test

whether assistance recipients were likely to abuse drugs, and whether such abuse affected the use

of those benefits and the employability of the individual. 237 However, the legislature instructed

the Department to test individuals only when there was reasonable cause to believe that the

individual being tested used controlled substances.

238

In order to collect data on the likelihoodthat welfare recipients were using drugs, the Department, with the aid of private contractors,

screened over 8,000 TANF applicants between 1999 and 2001 with a written test, which had

been designed to distinguish the substance abusers from the non abusers regardless of denial or

deliberate deception on the part of the test subject.239 More than six thousand screened


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individuals continued to receive benefits and were considered proper subjects for the study, but

only 1,447 of the 6,462 TANF applicants were flagged as potential substance abusers and were

required to undergo urinalysis.240 Lastly, only five percent, or 335 out of 1,447 subjects, tested

positive.241

The results did not meet the expectations of researchers. 242 The researchers observed that

the figures were so low that questions were raised about the procedures employed by the State

to identify drug use among welfare recipients.243 Speculating that the test had lost its

effectiveness through the same concerns that the testing in Chandler raised, the researchers

assumed that recipients had refrained from drug use prior to the tests when they knew the tests

would be administered.244

The court then discussed the rest of the research, and noted that researchers found little

support for the contention that drug abuse affects employment, earnings, and how the benefits

are used.245The researchers found that there is very little difference between the employment

rates and earning capacities of those in recipients of food stamps, Medicaid, or cash assistance

benefits who screened positive for the tested substances and those who tested negative.246 The

researchers found similar results for those who were subjected to urinalysis, as there was very

little difference on these same variables for those who tested positive . . . and those who did

not.247 Thus, those who screened and tested positive were just as likely as those who tested

negative to work and use social benefits.248 The court placed special emphasis on the conclusions

by the researchers:

First, [the findings] emphasize the difficulty of determining the extent of drug useamong welfare beneficiaries.Any test utilized for this purpose is likely to provide,at best, an estimate of these numbers. Such estimates are suitable only for

planning purposes and not for sanctioning.Secondly, the findings suggest that states may not need to test for drug use amongwelfare beneficiaries. Evidence from the Florida demonstration project showedvery little difference between drug users and non-users on a variety ofdimensions. Users were employed at about the same rate as were non-users,earned approximately the same amount of money as those who were drug freeand did not require substantially different levels of governmental assistance. Ifthere are no behavioral differences between drug users and non-users and if drug


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users do not require the expenditure of additional public funds, then policymakersare free to concentrate on other elements of welfare policy and to avoid divisive,philosophy-laden debates.249

These results were reported to the legislature, which took no further action to expand or continue

testing at that time.250

Next, the court noted that, in 2011, when the legislature resurrected its efforts to subject

welfare recipients to drug testing, the legislature did not conduct any new testing but instead

returned to the results from the Demonstration Project.251 It is also notable that the analyses

constructed by the legislature cited several cases (get these cases put in a footnote) that discussed

the constitutionality of drug testing in this context, but had neglected to include the actions of the

Sixth Circuit subsequent to its reversal of the district courts grant of a temporary restraining

order inMarchwinski II.252

The court was not impressed with the legislatures subsequent action:

Despite the failure of the Demonstration Project to uncover evidence of rampantdrug abuse among TANF applicants; despite the conclusion of researchers thatdrug use did not adversely impact any of the goals of the TANF program,including employability, earning capacity or independence from social assistance;despite the fact that the study revealed no financial efficacy; despite the legalramifications; and, despite the express recommendation that the project not be

continued or expanded, Florida enacted Section 414.0652 on May 31, 2011.253

As could be predicted, the results of the drug testing under this program were similar to the

Demonstration Project.254 In fact, the two percent positive test rate was lower than those

uncovered in the Demonstration Project.255Florida wanted all cases like Lebronsrefusing to

submit to testing after being deemed otherwise eligible for benefitsto be considered drug

related denials, but the court saw no logical connection.256 It noted that a number of factors

could be attributed to the refusal: inability to pay, lack of testing facilities near the applicant,

inability to secure transportation to the facility, or refusal to consent to what the applicant

believes is an unjustified and unreasonable condition for receiving benefits.257


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The plaintiff argued that the drug testing violated the Fourth Amendments protections

against unreasonable searches and sought injunctive relief to prevent irreparable harm to him and

others similarly situated.258 The State offered four arguments:

(1) the Section 414.0652 requirement for acquiescence to a drug test is not asearch within the meaning of the Fourth Amendment; (2) Section 414.0652 isjustified by the special needs of the State to conduct drug testing within theambit of its administration of TANF funds; (3) Plaintiff will suffer no irreparableharm in the absence of an injunction because he is free to refuse the drug test; and(4) the public interest lies in ensuring that public funds are expended for theirintended purposes and not in ways that will endanger the public.259

In order to address each partys arguments, the court first examined whether the plaintiff

demonstrated a likelihood of success on the merits.260

The district court held that the plaintiff met his burden of showing a substantial likelihood

that his challenge to section 414.0652 will succeed.261 The court acknowledged the body of case

law instructing that the testing in this context constituted a search.262 However, the State

contended that despite those rulings, the testing here did not amount to a search.263 The logic

offered was that the testing is voluntary, and if there is no consent to the test, there is no test, and

thus no search.264 The State relied on Wyman to support its contention.265 But the court was not

persuaded by the language in Wyman, where the Supreme Court notes that the home visit in

itself is not forced or compelled . . . . If consent to the visitation is withheld, no visitation takes

place. The aid then never begins or merely ceases, as the case may be. There is no entry of the

home and there is no search.266 The court noted a dispositive distinction between the facts at bar

and those in Wyman: the nature of the intrusion demanded.267 The district court noted that in

Wyman, the Supreme Court analogized the caseworker to a friend, rather than a sleuth.268

And

although the caseworker might have observed matters in the home that revealed fraud or issues

requiring further review, the parameters of the visit did not permit snooping or intrusion beyond

sitting in the living room having a conversation.269 Further, the Court had not expanded the

holding ofWyman beyond the home visit context and certainly not as far as Florida wished. 270


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The court then noted that post-Wyman cases had confirmed that drug testing constituted a search,

further rebutting the states contentions.271

The court concluded its discussion of whether the testing amounts to a search under the

Fourth Amendment by listing the factual implications of the drug tests at issue.272 Not only does

the testing concern the collection of an individuals urine and its subsequent testing, but it also

intrudes further: the tests are not treated as confidentially as medical records, as they are often

shared with third parties, memorialized in a database that is accessible by law enforcement, and

this extension of the loss of privacy to the searching eyes of law enforcement reaches a level of

personal invasion far surpassing that of ordinary drug testing.273

Because the testing is so

investigative in nature, the drug testing mandated by section 414.0652 constituted a search.274

Next, the court discussed whether consent would bar plaintiffs claim.275 Although it is

true that a search done with consent does not constitute a constitutional violation, 276 plaintiff had

to give his initial consent in order to have his application considered, without which his claim

would be dismissed for ripeness.277 And although is it undisputed that plaintiff gave his consent,

it is also true that plaintiff unequivocally revoked that consent prior to being subjected to

testing.278 Thus, the plaintiff was not barred from asserting his claim on the grounds of his initial

consent.279More importantly, [e]ven if Plaintiff's consent were not revoked, the State's exaction

of consent to an otherwise unconstitutional search in exchange for TANF benefits would violate

the doctrine of unconstitutional conditions.280

The court then examined whether Florida had demonstrated any special need for drug

testing all TANF applicants.281 Because Florida was seeking to implement suspicionless

searches, it was required to show that the searches were necessary because of a special need. 282

The court noted that the special needs exception to the individualized suspicion requirement

arose from cases where obtaining a warrant to conduct the search would have prevented

legitimate investigations from being completed.283 Cases like Skinner, involving the investigation

of railroad accidents to determine whether substance abuse was a cause of the accident, were

distinguishable from the Florida searches because there had been a need to collect evidence


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before it essentially disappears, and the time needed to get a warrant would have allowed that

evidence to be destroyed in every case, obstructing every investigation of a railroad employee

who was involved in a train accident.284

The court noted that the viability of the special need depended on the sustainability of the

government interest attached to the alleged need.285 In drug testing cases, an interest will be

considered substantial if the government shows that the drug testing is warranted by surpassing

safety interests.286 Although suspicionless drug testing has been upheld in a few circumstances,

namely with sensitive public employees or schoolchildren, the special needs exception is limited

to exceptional circumstances.287

The court looked to Chandlerfor its determination of whether

Florida demonstrated a special need.288

The State offered four arguments to assert its special

need:

(1) ensuring that TANF funds are used for their dedicated purpose, and notdiverted to drug use; (2) protecting children by ensuring that its funds are not

used to visit an evil upon the children's homes and families; (3) ensuring thatfunds are not used in a manner that detracts from the goal of getting beneficiariesback to employment; (4) ensuring that the government does not fund the publichealth risk posed by the crime associated with the drug epidemic.

289

The court held that these contentions did not justify the wholesale, suspicionless drug testing of

all applicants for TANF benefits.290 The goals offered at trial were not present within the

legislation, and the State-funded study prior to its enactment contradicts the contentions made by

the state at trial.291 However, the State offered evidence that suggested that among the population

of TANF recipients is rampant drug abuse.292

The State relied on three separate studies, which the court dispensed with as

unpersuasive.293The first is a policy brief prepared by the National Poverty Center, which the

State cites for its data estimating that twenty one percent of welfare recipients self-reported using

drugs in the previous year, mostly marijuana.294

The court found this study to offer no probative

value.295The second study relies upon data dating back nearly 20 years to 1992 and concludes

that contrary to common characterizations only small percentages3.8 percent to 9.8

percentof national recipients of AFDC, WIC and food stamps use drugs.296 And the third


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study estimates drug dependency among respondents to be between 3.2 and 4.4 percent .297

Overall, the studies relied on outdated data from populations dissimilar to the TANF recipients in

Florida and did not support the contention that drug abuse was a prevalent danger.298 Further,

there was no evidence that the state relied on these studies when enacting section 414.0652.299

The court found damaging to the States case its failure to address the only competent

evidence presented: the results from the Demonstration Project commissioned by the Florida

Legislature to study the scope of the perceived problem of drug abuse among Florida's TANF

applicants and the concomitant benefits of drug testing; and,the preliminary results from the

drug testing conducted thus far.300

The evidence suggested that only a small percentage of

TANF recipients could be expected to test positive, and those percentages are well below current

estimates of the drug use by the general population in Florida. 301 More importantly, the

researchers have concluded that the benefits ostensibly to be served by this legislation will not be

reapedand no evidence has been offered yet to discredit those findings.302

The state then argued that it could make a showing of a special need without

demonstrating a rampant drug problem within the tested population.303 But the court nevertheless

rejected the argument, looking to precedent as setting forth the requirements for making a special

showing.304

C. Kentucky, Georgia, and the United States Congress.A bill was introduced for the 2011 legislative session that would require drug screening

for any recipients of public assistance.305

House Bill 208, however, has not progressed much

since it was introduced. Georgia is also considering passage of a bill that would require testing

among TANF recipients just like Florida, Michigan, and Kentucky. Rep. Jason Spencer, R-

Woodbine, and Sen. John Albers, R-Roswell, are responsible for introducing the bill.306

In June of 2010, Senator Orrin Hatch (R-Utah) introduced an amendment to the tax and

spend extenders bill (H.R. 4213) that would require an applicant to take a drug test in order to be

eligible to receive welfare and unemployment benefits.307 The reasons behind the amendment

sound familiar: protect children, reduce drug abuse, and discourage low-income households from


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leaching off the government and encouraging these individuals to re-enter the workforce. All

individuals, according to Senator Hatch, would be required to pass the drug screening in order to

receive assistance.308 However, the amendment focuses only on low-income recipients of

government aid. Therefore, Senator Hatch misses the mark because the historically excepted

individuals and corporations (the upper class and the elite) would continue to be exempted from

the requirements of this program. The conditions placed on welfare, under this amendment,

would regulate only those who rely on welfare to survive. Nevertheless, it remains that even after

failed attempts and repealed laws, states and the federal governments continue their attempts at

regulating the poor and downtrodden without applying equal regulations to those who view

government aid as charity, while receiving it themselves, albeit under a different title.

III. WHY THE DRUG-TESTING MEASURES SHOULD BE REJECTED AS AMATTER OF LAW.

There are several constitutional concerns presented by the implementation of drug

screens for low-income aid recipients and applicants. Aside from the aforementioned Fourth

Amendment issues, there are also due process and equal protection concerns. The due process

clause requires that every man shall have the protection of his day in court, and the benefit of the

general law, a law which hears before it condemns, which proceeds not arbitrarily or

capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall

hold his life, liberty, property and immunities under the protection of the general rules which

govern society.309 However, by attaching conditions to the receipt of government aid, due

process is implicated because the United States Supreme Court in Goldberg established a

property interest in the receipt of public aid, an entitlement to welfare. Moreover, it has been

determined that the continued receipt of these benefits, which are generally necessary for bare

survival, outweighs any government interest proffered thus far.

Equal protection, too, should be considered since the aim of these regulations is to restrict

the number of eligible recipients of low-income government aid. The guaranty was aimed at


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undue favor and individual or class privilege, on the one hand, and at hostile discrimination or

the oppression of inequality, on the other.310 However, there is a problem in interpretation

inherent in the early considerations by the United States Supreme Court: Class legislation,

discriminating against some and favoring others, is prohibited; but legislation which, in carrying

out a public purpose, is limited in its application if, within the sphere of its operation, it affects

alike all persons similarly situated, is not within the amendment.311 Because the mandatory drug

testing ONLY affects low-income aid recipients, it is facially class legislation. However, because

the law applies to ALL low-income aid recipients equally, it is apparently treating all others

similarly situated alike. Nevertheless, the government should not be permitted to create classes

for the purpose of treating all those within the class alike, when in any other circumstance this

would amount to discrimination. But, Immunity granted to a class however limited, having the

effect to deprive another class however limited of a personal or property right, is just as clearly a

denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the

deprivation of right permitted worked against, a larger class.312 Yet, the heightened scrutiny for

these kinds of claims has been washed away time and time again by narrowing the opportunity

for an aggrieved class to seek relief. Not requiring the corporate recipients of government aid to

submit to the same requirements as those low-income recipients establishes a type of immunity

for the former while subjecting the latter to a constitutional deprivation, unjustified under any

standard of scrutiny.

IV. WHAT TO EXPECT AS THE STATES AND THE FEDERAL GOVERNMENTCONTINUE EFFORTS TO REFORM WELFARE.

Will states and the federal government continue implementing new regulation of welfare

as a means to regulate the poor populations? After all, the welfare class would otherwise

constitute the dissent in terms of how government aid is handled. But the measures, efforts,

movements, etc., might act as a chilling effect to hush these populations in order to maintain the

status quo. Corporate America is not burdened to any extent by further regulation of welfare


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recipients. Poor populations tend not to move up the economic ladder because of personal

choices: higher bankruptcy rate, poor consumer habits, and less protection from society

generally. As such, American society generally views these classes with disdain.

It may be that society attempts to move away from the entitlement theory advocated in

the 1970s, and back to the traditional right-privilege dichotomy that was prevalent prior to the

Supreme Courts ruling in Goldberg. Prior to Goldberg, the public benefits debate would have

been removed entirely from the realm of due process considerations.313 Without overturning

Goldberg, however, welfare and other forms of public aid will continue to be classified as

entitlements, creating a property interest, much to the disdain of reform advocates.

There could be potential movements to regulate government assistance to corporate

entities as well. Measures could be implemented that would require that state and federal

governments treat recipients of taxpayer money equally. This would mean that grant recipients

must be treated the same as scholarship recipients who must be treated the same as welfare

recipients who must be treated the same as corporations that are given tax breaks not available

actual persons. Thus, in order to validate nonconsensual drug screenings for the welfare rolls,

the same restrictions must be applied to each entity that receives any form of government aid.

That would mean that corporations like Daimler-Chrysler would have to drug test every single

person on the payroll if they receive government aid. And because studies show that welfare

recipients might use illegal substances at a rate lower than that of the remaining population, the

goals of cost-saving and reduction of government waste would be more realized by applying

these screening requirements to all forms of government aid. For instance, government subsidies

to corporations, whether in the form of tax breaks of outright cash, could be conditioned on

certain positive requirements. The money could be tied into employment funding, causing an

uptick in hiring and thus a decrease in unemployment, which naturally reduces the pool of

eligible recipients of TANF benefits.

Perhaps an illustration would make a fitting conclusion: movements like Occupy Wall

Street, groups of individuals engaging their First Amendment rights by bringing attention to the


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perception of government favoritism of corporations and the elite, are shut down for various

reasons. Although crime is often cited, another reason for shutting down the protests has been

overcrowding. While most everyone is familiar with the Maximum Occupancy signs plastered

on businesses and inside most other buildings, it is rare that such signs are found outside in

traditional public fora. To disperse a crowd due to overcrowding means the authority figure is

likely acting in the interests of the safety of the people within the crowd: too many people within

too small a space can cause injuries. However, while remembering that Maximum Occupancy

signs are present on business walls, imagine Black Friday. Crowds and crowds of eager shoppers

line up at all hours of the night outside big box stores having huge sales. As soon as the doors

open, which is generally earlier than most other shopping days, these crowds rush the door,

swelling inside and filling every square foot with a body. Seemingly, these large numbers would

be indicative of violations of the Maximum Occupancy laws, yet the stores do not get shut down

on Black Friday: it is as if the government turns a blind eye to its own laws, designed specifically

with safety in mind, when they interfere with the business of a corporation or other large

business. To shut down a legal demonstration like Occupy while ignoring the blatant disregard

for regulations and laws as they pertain to businesses perfectly illustrates the perception of class

warfare in America: The rich do as they please, while the poor and their supports are hushed up

and moved along.

V. CONCLUSIONAlthough the dust has yet to settle from the recent spate of litigation and legislation, it

can be said that the future of welfare is shaky, at best. There is a growing trend within the middle

and upper classes to look down at the welfare class with distrust and disdain, similar to how the

welfare class views the government and the privileged classes. With the support of the masses

behind them, eager legislators and restless judges may be more likely to continue pushing the

welfare class back using stigma historically tied to minorities and the poor. Although the

regulations are intended to control only the poorer populations, an adverse judicial ruling can set


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a precedent for future litigation that may further erode our constitutional protections. One should

not feel like they have nothing to hide simply because they feel they have done no wrong, but

they should feel like there is no reason for the government to intrude, because the body, as well

as the home, should remain sacred and private places, available to only the most rare and

legitimate governmental intrusions.

1 21 U.S.C. 862 (2006) (Denial of federal benefits to drug traffickers and possessors). This may also be referred to

as the Temporary Assistance for Needy Families Act (TANF).

2See discussion infra Part II.A-E.

3See discussion infra Part II.B.1.

4 PETERJ.COHEN,DRUGS,ADDICTION, AND THE LAW 37 (2004). The tales of Sherlock Holmes often involved the

heavy use of cocaine by Holmes. Samuel Taylor Coleridges most famous works were inspired by opium. John

Keats referenced opium use in one of his sonnets. Even Edgar Allen Poe was a known opium user, and he had tried

to commit suicide by overdose.

5Id. at 39 (quoting DWIGHT B.HEATH, The War on Drugs as a Metaphor in American Culture , in DRUGS:SHOULD

WE LEGALIZE,DECRIMINALIZE ORDEREGULATE? 142 (Jeffery A. Schaler ed., 1998)).

6Id. at 43.

7Id. (quoting DAVID F.MUSTO,THE AMERICAN DISEASE:ORIGINS OFNARCOTIC CONTROL 34 (3d ed. 1999)).

8Id. (quoting DAVID F.MUSTO,THE AMERICAN DISEASE:ORIGINS OFNARCOTIC CONTROL 34 (3d ed. 1999)).

9Id. at 44 (quoting DAVID F. MUSTO, THE AMERICAN DISEASE: ORIGINS OFNARCOTIC CONTROL 43-44 (3d ed.

1999)).

10Id. (quoting DAVID F.MUSTO,THE AMERICAN DISEASE:ORIGINS OFNARCOTIC CONTROL 304-05 (3d ed. 1999)).

11 Harrison Narcotic Act 1914, 38 Stat. 785.

12 COHEN, supra n. 4, at 15 (quoting Lawrence O. Gostin, Public Health Law in a New Century, 283 JAMA 2979

(2000)).

13Id. (quoting Lawrence O. Gostin,Public Health Law in a New Century, 283 JAMA 2979 (2000)).


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16

Id. (quoting Lawrence O. Gostin,Public Health Law in a New Century, 283 JAMA 3118 (2000)). For application

of these factors to the subject matter of this Comment, see discussion infra Part I.A.4.a)-e).

17See discussion infra Part I.A.4.a)-e).

18See, e.g., M.DONNA PRICE COFFER, ADMINISTERING PUBLIC ASSISTANCE 11 (1982).

19 JOHN A. GARDINER& THEODORE R. LYMAN, THE FRAUD CONTROL GAME: STATE RESPONSES TO FRAUD AND

ABUSE IN AFDC AND MEDICAID PROGRAMS 1(1984).

20Id.

21Id.

22Seeid.

23Id.

24Id.

25Id.

26Id. at 1-2; KAARYN S.GUSTAFSON, CHEATING WELFARE 21-25 (2011).

27 GUSTAFSON,supra n. 26, at 21.

28Id. at 22.

29Id. (citing KENNETH J.NEUBECK&NOEL A.CAZENAVE,WELFARE RACISM 70-72 (2001)).

30 397 U.S. 254 (1969).

31Id. at 260.

32Id. at 262.

33Id. at 262 n. 8 (quoting Charles A. Reich,Individual Rights and Social Welfare: The Emerging Legal Issues, 74

YALE L.J. 1245, 1255 (1965)).

34Id.

35 COFFER,supra n. 18, at 12-15.

36The 1970s, HISTORY.COM, http://www.history.com/topics/1970s (last visited Jan. 26, 2012).


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37Iran Hostage Crisis, HISTORY.COM, http://www.history.com/topics/iran-hostage-crisis (last visited Jan. 26, 2012).

38Energy Crisis (1970s), HISTORY.COM, http://www.history.com/topics/energy-crisis (last visited Jan. 26, 2012).

39

GARDINER, supra n. 19, at 1.

40Id. (citing Louis Harris,Majority Ambivalent on Welfare, CHICAGO TRIBUNE, June 10, 1976).

41 See, e.g., The 1970s, supra n. 27 (discussion of the silent majoritys response to what was perceived as

government coddling of the poor and minorities).

42 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-19,

110 Stat. 2105 (1996) (codified at 42 U.S.C. 601 et seq. (2006)).

43See, e.g., 21 U.S.C. 862 (2006) (Denial of federal benefits to drug traffickers and possessors). This may also be

referred to as the Temporary Assistance for Needy Families Act (TANF).

44 Pub. L. No. 104-19, 110 Stat. 2105 (1996) (codified at 42 U.S.C. 601 et seq. (2006)).

45Id.

46Id.

47 As provided by the Controlled Substances Act, 21 U.S.C. 802(6) (2006).

48 PRWORA,supra n. 42, at 115(a).

49Id. at 115(d)(1)(A). States could also limit the time period for the prohibitions. Id. at 115(d)(1)(B).

50Id. at 902 (codified at 21 U.S.C. 862b (2006)).

51See Marchwinski v. Howard, 113 F. Supp. 2d 1134 (2000).

52 COHEN,supra n. 4, at 13.

53Id.

54See id. at 14 ([D]ecisions made by the legal process with regard to a single individual may have far-reaching

impacts on all of society.).

55Id.

56Id. at 15 (quoting LAWRENCE O.GOSTIN,Public Health Law in a New Century, 283 JAMA 3118 (2000)).

57Id. (quoting DAN E.BEAUCHAMP &BONNIE STEINBOCK,NEW ETHICS FOR THE PUBLIC HEALTH 132-33 (1999)).

58 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).


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59Id. at 593-95.

welfare reform or class warfare

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