Drug testing bill can create good policy, jurisprudence

He wasn’t quite making it with his idea to solicit voluntary sterilization of welfare recipients last year, but this year state Rep. John LaBruzzo scores with an initiative that will have some special interests quaking in fear and advocates of wise government spending and personal responsibility cheering.

LaBruzzo prefiled HB 137 in advance of the legislative session beginning later this month that would require medical drug testing of applicants for and recipients of Temporary Aid to Needy Families (often called “welfare”) and Supplemental Nutrition Assistance Program (often called “food stamps”) assistance. Currently, applicants fill out forms that can indicate the possibility of drug use and can be maneuvered into an actual medical test. They also are “retested” at yearly intervals.

Two considerations, one practical and one legal, have produced this efficient but not comprehensive regime. Practically, testing every applicant can be expensive. LaBruzzo’s idea is to give an inexpensive test for just a few dollars that if a positive is revealed then can be followed up with a more complete test that may cost hundreds of dollars, and dispense with the $4.1 million a year spent on the current regime. While a fiscal note hasn’t been formulated yet, even with giving an occasional $400 wide-ranging test, that would be paid back over just two or three months for the typical TANF recipient not receiving money because of failing the test, so if regulations said one could not reapply for another year after a failure, a false-positive rate of no higher than 75 percent still would pay for the program.


Legally, the concern comes from a Sixth Circuit Court of Appeals decision in 2003 that declared a Michigan law to give random medical drug tests to applicants and recipients unconstitutional. While liberal civil liberties mandarins hold this out as a kind of definitive declaration that would scuttle the bill, they are far more scared of bills like LaBruzzo’s (so far in 10 other states and counting) than they let on.

First, this ruling is from just one of the 12 circuits and in any of the other 11 the courts there could find the opposite. Second, the crucial decision (after a series of maneuvers) ended on a tie vote and upheld a lower court overturning only because this was Sixth Circuit precedence, ties upholding. In other words, there was considerable disagreement over this. Third, the most devastating argument against the unconstitutionality position never has been used: since citizens are not entitled to government benefits of this nature (a statement of legislative intent from the federal 1996 act creating TANF), application and usage of such is voluntary. In other words, those who object to the testing procedures because it could constitute an unwarranted search are free not to apply for the benefits or to withdraw from their reception. Application and reception of them imply consent to a search for the use of illegal drugs.

Opponents are fearful that another circuit court, like Louisiana’s Fifth, will get a challenged law like this and rule in favor of its constitutionality. In that case, that almost assures that the Supreme Court will take up the matter, and they fear it is likely that the current court would rule in favor of constitutionality as well. This is why they want to try to cut these measures off at the pass, if not being able to prevent their introduction as bills, then to amend them into ineffectiveness or to defeat these using the scare tactic that these will not pass constitutional muster.

LaBruzzo should stick to his guns on this and not allow changing of the essential substance of the bill during the legislative, and work hard for its passage. It will benefit not only taxpayers, but also those whose drug dependencies are revealed by implementation of the law who then have a chance to get the help they need – to end their addictions, not in the form of cash given out by taxpayers for any purpose as is currently possible.