(MintPress)–The Southern Center for Human Rights has announced it will challenge legislation signed by Georgia Gov. Nathan Deal Monday that requires welfare applicants to undergo drug tests — a mandate the organization says violates welfare recipients’ Fourth Amendment rights against unreasonable searches and seizures without probable cause.
Similar legislation has been struck down in Michigan and Florida, where courts have ruled that applying for welfare benefits does not constitute probable cause for drug use. Gerry Weber, lawyer with the Southern Center for Human Rights, said he will join the two states in his challenge of Georgia legislation, citing Michigan and Florida’s victories as precedents.
A nationwide movement
The debate over the welfare drug testing issue is nothing new. In 2009 and 2010, similar legislation was proposed 32 times, with not one success story.
A mandate set by the Michigan Court of Appeals in 2003 creates a roadblock for Republican-led states seeking to implement similar laws. In 2000, Michigan’s governor signed legislation requiring drug tests for recipients of Temporary Assistance for Needy Families (TANF) — a move that was reversed in the 2003 case, Marchwinski vs. Howard. The court found that subjecting all recipients of TANF aid to drug tests without probable cause was a violation of the Fourth Amendment protection against unreasonable searches and seizures.
The Fourth Amendment states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That precedent was used in a 2011 U.S. District Court of Appeals case against similar Florida legislation. Signed by Gov. Rick Scott, the law went into effect July, 2011 — but an October ruling put it on hold. Judge Mary Scriven ordered a temporary injunction on the case, stating it violated the Fourth Amendment. Scott has challenged the injunction, leaving the case hanging in the appeals process.
As of April 1, 25 states — including Georgia — were in the process of trying to pass similar legislation, despite legal battles encountered by Michigan and Florida. With legal precedents on the table, some states have drafted welfare drug testing legislation that skirts around the Fourth Amendment issue.
In Utah, before receiving aid through the Family Employment Program, an applicant must take a survey, used to determine the likelihood of substance abuse. If the state finds probable cause for suspicion, the applicant will be subject to a drug test. If they do not pass and agree to drug counseling, they are eligible in another six months. If drug counseling is refused, their non-eligibility status is extended beyond three years.
Similar legislation exists in Arizona, where a bill signed in 2011 allows the state to test a recipient they have reason to believe “engages in the illegal use of controlled substances.” Those who test positive to any non-prescription drug are cut off from assistance for one year.
The situation is similar in Missouri, where a screening process is implemented before assistance is granted. If the screening reveals reasonable cause to believe the person uses drugs, a test will be administered. Assistance will not be provided to those who do not pass the test.
Children whose parents use drugs won’t necessarily be shut off from the benefits of assistance, but the process does get more complicated. Someone standing up for the child, whether it be a grandparent or another third party, can collect benefits for the child after a successful drug test.
The case for testing
The issue of drug testing welfare recipients became more popular following the 2008 elections, in which Republicans took hold of state governments throughout the nation.
Proponents of such legislation cite cost saving measures as main concerns. During the time the Florida law was active — from July to October — the state saw welfare claims decline, according to the New York Times. However, a large majority of those who applied for the program passed tests — 7,030 passed, 32 failed and 1,597 objected.
The Florida Foundation for Government Accountability (FFGA) said In September, 2011 that the government saved $1 million through the new testing program. The FFGA used figures from July to September which showed that 565 people went through the entire application process, but denied the drug testing. The organization accounted $1,600 in savings for each person, amounting to $923,000 a year.
But the U.S. District Judge who overturned the law made the claim that the organization’s formula didn’t paint an accurate representation of cost savings.
“ … there’s no reason to assume each person who declined to take the test did so in fear of a positive result,” Scriven wrote in her order. “Since the law required applicants to pay for their own tests, what if some of them couldn’t afford the $30 cost? What if some of them considered it a violation of their rights?”
Moving the issue from the state to federal level, a bill made its way into a U.S. House committee in 2011. The legislation introduced by Tennessee Rep. Stephen Fincher required the implementation of drug tests in all states that run TANF welfare programs. The bill never made it out of committee.
But Republican presidential candidate Mitt Romney doesn’t seem to be giving up. Following the Georgia ruling, Romney said in an interview with an NBC affiliate station that he would support the drug test policy for those receiving welfare benefits.
“Well, in my own view, it’s a great idea,” he said. “People who are receiving welfare benefits, government benefits, we should make sure they’re not using those benefits to pay for drugs.”
Recipients of non-welfare forms of government aid, including Social Security, are not subject to drug testing.
Concerns with Fourth Amendment violations
Those at the forefront of the move to abolish blanket drug tests for welfare aren’t necessarily involved in the pro-drug movement. Instead, their main concerns align with upholding the Fourth Amendment.
Opponents argue that applying a policy that tests all welfare recipients is based on the argument that poor people are likely to use drugs.
There are some instances, however, in which random government drug testing is allowed. The Supreme Court ruled in 1998 that U.S. Customs workers who are in close contact with narcotics and who use firearms can be drug tested, citing safety and national security hazards as an exception to the Fourth Amendment. In 2002, the Supreme Court ruled that testing of students involved in extracurricular activities was reasonable in order to prevent, deter and detect drug use in schools.
In January, Republican Indiana Rep. Jud McMillin withdrew a welfare drug testing bill he sponsored in his state when it was amended to include the same testing measures for lawmakers.
McMillin said he withdrew the bill on the grounds that it likely wouldn’t pass constitutional scrutiny. In 1997, the Supreme Court found in the case Chandler vs. Miller that suspiciousness drug testing on all Georgia lawmakers was a violation of the Fourth Amendment, as well, under the grounds that being a lawmaker did not provide probable cause of drug use.