The progressive website Think Progress claims that a law enacted in Florida last June is unconstitutional. The law requires that Floridians receiving public assistance must take a drug test. If they test positive for illicit drug use, then the recipient of government assistance will not receive payments for a year (or until they sought and received treatment). After a second positive test, the individual will be barred from receiving benefits under TANF (Temporary Assistance for Needy Families) for three years. The costs of the tests will be reimbursed to those welfare recipients that are found to be drug-free.
Think Progress and the ACLU claim that the law violates the 4th Amendment. –They argue that the drug tests amount to suspicionless searches and thus cannot stand under the precedents of Chandler v. Miller 520 US 305 (1997), Vernonia School District 47 v. Acton 515 US 646 (1995), and Skinner v. Railway Labor Executives Association 489 US 602 (1989). This string of cases all deal with drug testing in various situations (candidates for state office; students involved in extra-curricular activities; and railway employees involved in accidents, respectively) and set the standard for such searches. As stated in Skinner:
In limited circumstances, 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. 489 US 664
Think Progress links to two lower court cases dealing with ‘similar’ laws. One is a case very similar to Chandler that struck a law requiring individuals standing for public office to undergo drug testing; this case, and Chandler are readily distinguishable. The drug testing in these two cases was imposed without any showing of ‘special needs’. Rather in both instances, the interests were more a general notion of fighting the drug problem.
The other is a case out of the Court of Appeals for the Sixth Circuit. The District Court found that Michigan’s interest did not create a special need under Supreme Court doctrine. In an en banc decision, the court split evenly on the question of whether Michigan’s law requiring drug testing for welfare eligibility is constitutional; therefore, the district court opinion was upheld. No opinion was published in this case.
As in the Michigan case, Florida’s interest in adopting their law is to prevent taxpayer monies from supporting illegal drug use; in Michigan, the legislature made a specific connection between drug abuse and the ability to move off welfare. Based upon this analysis, the claims of Think Progress about the blatant unconstitutionality of the law are hyperbolic, and the question remains open whether such suspicionless searches violate the 4th Amendment.
Florida and Michigan’s laws did remind me of this line of 4th Amendment cases, but it also raises a question of government powers. TANF is a federal spending program and the monies are distributed at the state level. Additionally, states have some authority to regulate the receipt of these monies by individuals. As recipients of the state’s generosity, those applying for assistance must meet several requirements including age, residency, creation of and adherence to a household budget, and transparency regarding all sources of income. Why is it unreasonable or unconstitutional for Florida to add an additional requirement of a fairly nonintrusive (according to the Court) drug test? The Court has previously ruled that the power to spend at the national level contains the power to place restrictions on the monies. In South Dakota v. Dole 483 US 203 (1987), Chief Justice Rehnquist notes that:
[T]he “independent constitutional bar” limitation on the spending power [of the federal government] is not, as petitioner suggests, a prohibition on the indirect achievement of objectives, which Congress is not empowered to achieve directly. Instead, we think that the language in our earlier opinions stands for the unexceptional proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.
Equally germane is National Endowment for the Arts v. Finley 524 US 569 (1998). Here the NEA did not fund several performance artists based upon its reading of the establishing legislation; that legislation has a clause that requires the NEA to consider standards of decency when allocating grants. Justice O’Connor writing for the Court:
Finally, although the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.
Is the Florida legislature less empowered to set spending priorities and dictate requirements for funding than the Congress?
Of course, the next line in O’Connor’s opinion is “So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities….” If these suspicionless searches are indeed within the test set by the Court in Skinner and broadened in Vernonia, and it seems there is at least a reasonable argument that they are given my analysis and the even split in the Sixth Circuit, then states should have the power to impose requirements on the receipt of state assistance of any kind.
 See http://thinkprogress.org/justice/2011/06/02/235014/rick-scott-unconstitutional/ and http://www.nydailynews.com/news/politics/florida-gov-rick-scott-signs-law-requiring-welfare-recipients-drug-test-aclu-objects-article-1.130360.
 Lanier v. City of Woodburn 528 F.3d 1147 (2008)
 Marchwinski v. Howard 60 Fed. Appx 601 (2003)
 Marchwinski v. Howard 113 F. Supp 2d 1134 (2000)
 page 529 of Institutional Powers and Constraints