Random drug testing

By: Louis R. Avallone

When is the medicine far worse than the malady? It’s usually whenever government wants to help. I’ll explain.

A bill has been proposed in the Louisiana legislature that would require drug testing of all recipients of welfare under the program known as Temporary Assistance for Needy Families (“TANF”). While the significance of this proposed legislation may have more to do with the political grandstanding of the bill’s author, than any economic or social benefit to the citizens of our state, it sounds like just what the doctor ordered, especially in our economic morass, doesn’t it?

After all, in the last six months, Louisiana has experienced a sharp increase in households enrolled in the Louisiana Food Stamp Program.

There are 660,000 Louisiana residents receiving an average of $270 in food stamps each month. Cash assistance in the current state budget, through TANF, is provided to 11,500 state residents, at an average cost of $186 per month. In Louisiana, when added together, both food stamps and cash assistance represents an annual investment of over $2 billion in Louisiana taxpayer funds.

So, it only seems fiscally responsible to ensure our $2 billion is being invested wisely. Other states are on the same bandwagon. In West Virginia, Florida, Arizona, Hawaii, Missouri, and Oklahoma, state legislators have authored similar bills to require drug testing of those seeking public assistance.

Despite the seeming novelty of the proposed legislation for the upcoming session, Louisiana already drug tests welfare recipients who are suspected of drug use. Caseworkers already screen TANF recipients every 12 months for drug use. This is because it is estimated that 35 percent of cash assistance recipients have problems with drugs or alcohol, and most of them (21 percent) had used an illegal drug in the past year (mostly marijuana).

But amidst rising unemployment, nearly bankrupt state governments, and declining tax revenues, increasing the accountability of public assistance spending might be considered tantamount to a moral mandate for legislators, across the country, to save taxpayer dollars.

However, all that glitters isn’t gold, and here is the rub: Suspicionless drug testing of welfare recipients is unconstitutional. Michigan attempted random drug testing of welfare recipients over a decade ago and the ACLU challenged their policy. The federal district court ruled the U.S. Constitution only allows random, suspicionless drug testing in very limited circumstances, to satisfy a special need concerning public safety. Testing welfare recipients did not qualify.

On appeal, Michigan won. The three-judge panel decided Michigan’s drug testing policy did not violate the constitutional rights of welfare recipients because the state has an interest in ensuring recipients use public funds for their intended purpose. But upon a full rehearing by the Sixth Circuit, the court affirmed the lower court’s decision and Michigan was forced to abandon its practice of random, suspicionless drug testing of welfare recipients.

The same fate awaits any Louisiana legislation that is signed into law, mandating such drug testing. A better plan worth pursuing: Randomly drug test those who are receiving unemployment benefits because these benefits are intended specifically to assist the unemployed to become Employed. Testing positive for illegal drug use is a resume chiller. The majority of private companies already require random drug testing of applicants, so this measure may pass the constitutional scrutiny of the court regarding Louisiana’s “special need” for random drug testing.

I will not disagree welfare recipients who are drug-free will also increase their likelihood to become gainfully employed and self-supporting. Or that they will improve their ability to adequately care for their children. Or that illicit drug use does not contribute to higher levels of housing and education instability for these children. Or that substance abusers don’t have a higher incident rate of child neglect, from lack of supervision, malnourishment, inadequate medical care, and poor hygiene. Or that drug addiction does not expose children to violent or criminal situations, including physical or sexual abuse.

However, our laws must be constitutional. The poor may be an easy, or politically convenient target today, but remember the proverbial “slippery slope.” What about your home mortgage interest deduction? Or your Section 179 deduction in your business? Tax credits for charitable contributions? Pell Grants, guaranteed student loans, and farm subsidies? All of these examples involve some form of government conferred financial benefit. What happens when legislators start burdening these benefits with conditions that are similarly unconstitutional, such as your weight or age? I’ll tell you what happens, we’re all on the fast track to nowhere.

A Rasmussen Reports national telephone survey recently found that 59 percent of U.S. voters agreed with Ronald Reagan that “government is not the solution to our problem; government is the problem.” And the bill proposed in the Louisiana legislature simply doesn’t address the real issues. Yes, substance use and abuse are barriers to self-sufficiency and MUST be rooted out. But there are other impediments, such as poor education, physical and mental health problems, and a disintegration of the family structure that present far higher barriers to overcome than illegal drug use.

While government financial assistance is not a protected right by the U.S. Constitution, and illegal drug use is a leech upon the body of our society, serving as a gateway to increased state costs for healthcare, childcare, education, housing, law enforcement, and incarceration, just to name a few, we must not sacrifice U.S. constitutional rights in favor of political popularity and convenience.

The ends simply don’t justify the means here and you can’t legislate common sense. This is the slippery slope of eroding personal liberties and how the medicine may be worse than the malady. There is a bigger picture that should always remain in focus whenever our freedoms are affected. In the words of Abraham Lincoln, “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”

Louis R. Avallone is a Louisiana native, attorney and small business employer in the construction industry from Shreveport. He can be contacted at louisavallone@mac.com

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