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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. 3 Finally, this Comment will examine the decisions of 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

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. 9 And [i]n 1914, Dr. [Christo pher] 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

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 lowincome 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 3

key early issue can be termed supply and demand. Legislatures struggled to determine how they could best meet the needs of tho se 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 qualifie d 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. The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and 4

independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long term contracts for defense, space, and education; 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. It is only the poor whose entitlements, although recognized by public policy, have not been effectively enforced.33 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 t he 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.42 Although there had been a longstanding war on drugs 43 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

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 of Buck 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 6

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 all Japanese-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 like Buck 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 7

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 Effectiveness. Fit between Means and Ends to Show

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, 8

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. 9

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 consent is 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.


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.84 Generally, 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


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 12

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


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 of Marchwinski v. Howard 105 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. 107 Finding 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 to support 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 14

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 Agents 121 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. 133 Within 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 15

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 of Chandler.136 The court held that there was no question as to what the Chandler court 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


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 constitute searches, did not offend the Fourth Amendment, it would be quite a stretch for this Court to hold that Wyman supports drug testing which (1) clearly constitutes a search within the meaning of the Fourth Amendment and (2) is not justified by an interest that is germane to the FIP.151 Moreover, the court held that, even if Wyman supported these searches, the more recent holding in Chandler did 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 17

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 18

The Sixth Circuit rejected the district courts interpretation and application of Chandler, and thus the plaintiffs reliance on its holding. 176 The Sixth Circuit viewed the opinion in Chandler as 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 of Chandler was supported by Earls.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.183 The 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


Next, the court assessed whether the plaintiffs have demonstrated a likelihood of success on the merits. 188 The 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 Chandler with the facts presented, and noted that the testing in Chandler was 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 of Acton, 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 20

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 would be extremely impracticable. And like the search in Wyman, it is consensual in the sense that the recipient may refuse to submit to the test, but may not then continue to 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.


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.



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 enacted legislation in 1998 that required DCF to develop and implement a Demonstration Project to study and evaluate the impact of the drug-screening and drug-testing program on employability, job placement, job retention, and salary levels of program participants and to make recommendations, based in part on a cost benefit analysis, as to the feasibility of expanding the progr am, including specific 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 likelihood that 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 23

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.245 The 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 use among 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 among welfare beneficiaries. Evidence from the Florida demonstration project showed very little difference between drug users and non-users on a variety of dimensions. Users were employed at about the same rate as were non-users, earned approximately the same amount of money as those who were drug free and did not require substantially different levels of governmental assistance. If there are no behavioral differences between drug users and non-users and if drug 24

users do not require the expenditure of additional public funds, then policymakers are 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 in Marchwinski II.252 The court was not impressed with the legislatures subsequent action: Despite the failure of the Demonstration Project to uncover evidence of rampant drug abuse among TANF applicants; despite the conclusion of researchers that drug 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 legal ramifications; 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. 255 Florida wanted all cases like Lebronsrefusing to submit to testing after being deemed otherwise eligible for benefits to 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


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 a search within the meaning of the Fourth Amendment; (2) Section 414.0652 is justified by the special needs of the State to conduct drug testing within the ambit of its administration of TANF funds; (3) Plaintiff will suffer no irreparable harm 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 their intended 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 of Wyman beyond the home visit context and certainly not as far as Florida wished. 270


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.279 More 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 27

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 Chandler for 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 not diverted 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 that funds are not used in a manner that detracts from the goal of getting beneficiaries back to employment; (4) ensuring that the government does not fund the public health 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.293 The 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. 295 The 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 28

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, RWoodbine, 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 29

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 A

MATTER 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


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 GOVERNMENT

CONTINUE 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


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 32

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. CONCLUSION Although 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


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.

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).


See discussion infra Part II.A-E. See discussion infra Part II.B.1. PETER J. 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.

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

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



NARCOTIC CONTROL 43-44 (3d ed.


Id. (quoting DAVID F. MUSTO, THE AMERICAN DISEASE: ORIGINS OF NARCOTIC CONTROL 304-05 (3d ed. 1999)). Harrison Narcotic Act 1914, 38 Stat. 785. COHEN, supra n. 4, at 15 (quoting Lawrence O. Gostin, Public Health Law in a New Century, 283 JAMA 2979




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



Id. (quoting Lawrence O. Gostin, Public Health Law in a New Century, 283 JAMA 2837 (2000)). Id. (quoting Lawrence O. Gostin, Public Health Law in a New Century, 283 JAMA 3118 (2000)). 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).








Id. Id. See id. Id. Id. Id. Id. at 1-2; KAARYN S. GUSTAFSON, CHEATING WELFARE 21-25 (2011). GUSTAFSON, supra n. 26, at 21. Id. at 22. Id. (citing KENNETH J. NEUBECK & NOEL A. CAZENAVE, WELFARE RACISM 70-72 (2001)). 397 U.S. 254 (1969). Id. at 260. Id. at 262. Id. at 262 n. 8 (quoting Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74














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


Id. COFFER, supra n. 18, at 12-15. The 1970s, HISTORY.COM, http://www.history.com/topics/1970s (last visited Jan. 26, 2012).





Iran Hostage Crisis, HISTORY.COM, http://www.history.com/topics/iran-hostage-crisis (last visited Jan. 26, 2012). Energy Crisis (1970s), HISTORY.COM, http://www.history.com/topics/energy-crisis (last visited Jan. 26, 2012). GARDINER, supra n. 19, at 1. Id. (citing Louis Harris, Majority Ambivalent on Welfare, CHICAGO TRIBUNE, June 10, 1976). 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).


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)).


See, 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).


Pub. L. No. 104-19, 110 Stat. 2105 (1996) (codified at 42 U.S.C. 601 et seq. (2006)). Id. Id. As provided by the Controlled Substances Act, 21 U.S.C. 802(6) (2006). PRWORA, supra n. 42, at 115(a). Id. at 115(d)(1)(A). States could also limit the time period for the prohibitions. Id. at 115(d)(1)(B). Id. at 902 (codified at 21 U.S.C. 862b (2006)). See Marchwinski v. Howard, 113 F. Supp. 2d 1134 (2000). COHEN, supra n. 4, at 13. Id. See 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.).


Id. Id. at 15 (quoting LAWRENCE O. GOSTIN, Public Health Law in a New Century, 283 JAMA 3118 (2000)). Id. (quoting DAN E. BEAUCHAMP & BONNIE STEINBOCK, NEW ETHICS FOR THE PUBLIC HEALTH 132-33 (1999)). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).






Id. at 593-95. 274 U.S. 200 (1927). Id. at 205-08. COHEN, supra n. 4, at 17 (quoting PETER IRONS, A PEOPLES HISTORY OF THE SUPREME COURT 252). This theme




will recur throughout the Comment as many proponents of welfare reform and even abolishmentargue that the poor have nothing to blame but themselves. This is a growing political platform as well, with one candidate vying for the 2012 Republican nomination telling an audience that underprivileged school children should clean their schools so that they can get understand what working is like.

Id. (quoting PETER IRONS, A PEOPLES HISTORY OF THE SUPREME COURT 252). See Korematsu v. United States, 323 U.S. 214 (1944). 323 U.S. 214 (1944). COHEN, supra n. 4, at 8. Korematsu, 393 U.S. at 216. Quick Facts About the Bureau of Prisons, FEDERAL BUREAU






PRISONS, http://www.bop.gov/news/quick.jsp

(last updated Dec. 24, 2011).


Id. (over 40% of the prison population consists of minorities). GARDINER, supra n. 19, at 62. See generally, U.S. Census Bureau, CONSOLIDATED FEDERAL FUNDS REPORT FOR FISCAL YEAR 2010 xix (2011)



(report indicates that government aid for low-income families is surpassed in monetary amount by government aid to retirement and disability programs, as well as grant awards).

Emergency Economic Stabilization Act of 2008, Pub. L. 110-343, 101-136, 122 Stat. 3765 (2008) (codified at

12 U.S.C. 5211 et seq.). Commonly referred to as the Troubled Asset Relief Program (TARP).

Press Release, U.S. Treasury Dept., Treasury Receives $2 Billion TARP Repayment from American International

Group (AIG) (Aug. 18, 2011) available at http://www.treasury.gov/press-center/press-releases/Pages/tg1281.aspx.


GARDINER, supra n. 19 at 38. See discussion infra Part II.A-B.




The Supreme Court has moved away from the rights-privileges distinction and accepted a position of federal

entitlements as a property right. See generally Goldberg, 397 U.S. 254.


U.S. CONST. amend. IV. Coolidge v. New Hampshire, 403 U.S. 443, 470 (1971); Katz v. United States, 389 U.S. 347, 357 (1967). New Jersey v. T.L.O., 469 U.S. 325, 345 (1985). Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting T.L.O., 469 U.S. at 351 (Blackmun, J., concurring in





McDonald v. United States, 335 U.S. 451, 456 (1948). Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) (citing Steele v. United States, 267 U.S. 498 (1925)). Warden v. Hayden, 387 U.S. 294, 313 (1967). Hot pursuit is generally categorized under exigent circumstances,



but may be viewed differently by the courts, as hot pursuit tends to indicate the existence of probable cause or reasonable suspicion, whereas exigent circumstances may generally refer to situations where showing probable cause or obtaining a warrant would be impracticable.

JOHN WESLEY HALL, JR., 1 SEARCH AND SEIZURE 750 (2000). Arkansas v. Sanders, 442 U.S. 753, 759 (1979). See GUSTAFSON, supra n. 26, 51-70 (discussing varying views of welfare fraud, from civil and administrative



remedies to criminal sanctions).


Dorman v. United States, 435 F.2d 385 (1970), provided guidelines for when exigent circumstances exist to allow

the warrantless entry into a home for the purpose of a search: 1. A grievous offense is involved, particularly one that is a crime of violence; 2. The suspect is reasonably believed to be armed; 3. There exists a clear showing of probable cause; 4. There is a strong reason to believe that the suspect is in the premises being entered; 5. There is a likelihood that the suspect will escape if not swiftly apprehended; 6. The unconsented entry in peaceably made; 7. If a nighttime entry is involved, are there other concerns of reasonableness? HALL, supra n. 84, at 758 (quoting Dorman, 435 F.2d at 392-93). And although courts have held that mere entry into a home might not constitute a search under the Fourth Amendment, the same cannot be said for an invasion by


the government into ones body. Compare Skinner v. Ry. Labor Executives Assn, 489 U.S. 602 (1989) with Wyman v. James, 500 U.S. 309, 318-22 (1971).

HALL, supra n. 84, at 108 (quoting Dumbra v. United States, 268 U.S. 435, 441 (1925)). Id. at 116-19. Courts permit officers to draw inferences from circumstances based on professional experience, but


the inferences must be drawn from perception, not from a hunch. Id.

See, e.g., United States v. Carolene Products, 304 U.S. 144, 152 & n. 4 (1938) (laying the foundation for equal

protection claims for discrete and insular classes).


Id. See, e.g., Robert M. ONeil, Unconstitutional Conditions: Welfare Benefits with Strings Attached, in THE LAW OF POOR 119-24 (Jacobus tenBroek ed., 1966) (discussion of various benefits and the conditions placed upon




Harold Pollack, Sheldon Danzinger, Rukmalie Jayakody, & Kristin Seefeldt, Drug Testing Welfare Recipients Positives, False Negatives, Unanticipated Opportunities 6 (2001) available at



It is again imperative to remind the reader that there are no constitutional protections between private individuals;

the Bill of Rights was designed to protect the individual from the government alone.

Marchwinski v. Howard, 113 F. Supp. 2d 1134 (2000). 1999 Mich. Pub. Acts 17 (codified as amended at MICH. COMP. LAWS 400.57l (2011)). Id. Id. Id. The relevant text is as follows: (a) The number of individuals tested, the substances tested for, the results of the testing, and the number of referrals for treatment. (b) The costs of the testing and the resulting treatment. (c) Sanctions, if any, that have been imposed on recipients as a result of the testing program. (d) The percentage and number of households receiving family independence assistance that include an individual who has tested positive for substance abuse under the program and that also include an individual who has been named as a perpetrator in a case classified as a central registry case under the child protection law, 1975 PA 238, MCL 722.621 to 722.638. (6) The substance abuse testing authorized and required by this section does not apply to an individual 65 years old or older.







Id. Id. See Marchwinski, 113 F. Supp. 2d at 50. 1999 Mich. Pub. Acts 17. Marchwinski, 113 F. Supp. 2d at 1135. 113 F. Supp. 2d 1134 (2000). Id. at 1135. Id. The Fourth Amendments main rule is a general requirement of individualized suspicion. Id. Id. Id. at 1137. (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2)












whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction. Id. (quoting Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994)).

Id. Id. at 1138 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976)). Id. (citing Skinner v. Ry. Labor Executives Assn, 489 U.S. 602, 617 (1989)) (emphasis added). Id. 489 U.S. 602 (1989). Marchwinksi, 113 F. Supp. 2d at 1138. 489 U.S. at 624. Id. Id. at 641 (Marshall, J., dissenting).











Natl Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995). Marchwinski, 113 F. Supp. 2d at 1138. The Supreme Court has held that the Fourth Amendment does not apply to action within the private sector.




United States v. Jacobsen, 466 U.S. 109, 113 (1984).


520 U.S. 305 (1997). Id. at 318. Marchwinski, 113 F. Supp. 2d at 1139 (citing Chandler, 520 U.S. at 315). Acton, 515 U.S. 646. Marchwinski, 113 F. Supp. 2d at 1139 (quoting Chandler, 520 U.S. at 316). Id. Id. Id. at 1139-40. Id. at 1140. Id. Id. Id. Id. Id. Id. at 1141 (citing Acton, 515 U.S. at 661-62). Id. Id. (quoting 42 U.S.C. 601). Id. at 1142. Id. Id. 500 U.S. 309 (1971).























Marchwinski, 113 F. Supp. 2d at 1142 (quoting Wyman, 500 U.S at 342 (Marshall, J., dissenting). See id. Latin for parents of the nation or parents of the country. It is often used to refer to governmental



responsibility over citizens who for whatever reason cannot be responsible for themselves. See http://en.wikipedia.org/wiki/Parens_patriae for a brief history of the term.

Id. Id. Id. at 1142-43. Id. Further, the court held that to the extent that Wyman and Chandler conflict, Wyman was overruled. Id. at





Id. at 1142. Id. at 1143. Id. Id. (quoting Wyman, 500 U.S. at 324). Id. Id. See id. The court concluded that the right to be free from unreasonable searches was a fundamental right and any







violation of that right constituted irreparable harm to plaintiffs. Id. (citing Covino v. Patrissi, 967 F.2d 73, 76 (2d Cir. 1992). Further, the court held that the state could not suffer any legitimate harm by being prevented from violating the constitution. Id. (quoting Zepeda v. United States Immigration and Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983). The court determined that there were alternative measures that could be implemented as screening mechanisms that had not only been successful in other states, but did not infringe the constitutional rights of individuals applying for assistance. Id. at 1144. With that in mind, the court held there to be no harm to the state by the issuance of an injunction. Id. Finally, the court examined the public interest element. Id. Noting that there was no greater public interest than protecting the rights of individuals, the court held that the last element was also in


favor of plaintiffs. Id. (quoting Legal Aid Soc. of Hawaii v. Legal Servs. Corp, 961 F. Supp. 1402, 1419 (D. Haw. 1997).

Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002) (Marchwinski II). Id. Id. at 332. Id. Id. (citing Wyman, 500 U.S. 309). Id. at 333. Id. Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). Id. Id. 536 U.S. 822 (2002). Id. at 825. Id. at 830-33. Id. at 835-36. See id. (rejecting respondents argument that the special need must be based on safety). Marchwinski II, 309 F.3d at 334. Id. Id. Id. (quoting Earls, 536 U.S. at 836-37). Id. Id. Id. Id. (quoting Earls, 536 U.S. at 829) (internal quotation marks omitted). Id.


























Id. at 335-36. Id. at 336. Id. Id. Id. Id. Id. Id. Id. Id. (citing Acton, 515 U.S. at 654). Id. (citing Skinner, 489 U.S. at 657). Id. (citing Skinner, 489 U.S. at 656). Id. (citing Acton, 515 U.S. at 657, and Wyman, 500 U.S. at 325). Id. Id. at 336-37. Id. at 337. Id. at 336-37. Id. Id. (citing Skinner, 489 U.S. at 627-28). Id. Id. Id. Id. Id. Id. Id.




























Id. Id. Id. (citing 42 U.S.C. 601(b)). Id. (citing Wyman, 500 U.S. at 318). Id. at 338. Id. Id. Id. Id. Id. Id. Marchwinski v. Howard, 319 F.3d 258, 259 (6th Cir. 2003) (Marchwinski III) Id. (quoting 6th Cir. R. 35). Marchwinski v. Howard, 60 Fed. Appx 601, 2003 WL 1870916, *1 (6th Cir. 2003) (citing Stupak-Thrall v.














United States, 89 F.3d 1269 (6th Cir. 1996)) (Marchwinski IV).


Fla. Stat. 414.0652 (2011). Id. Id. Id. Id. Id. John Couwels, Federal judge temporarily bars Floridas welfare drug-test law, CNN (Oct. 25, 2011),







http://articles.cnn.com/2011-10-25/us/us_florida-welfare-drug-tests_1_drug-testing-government-searches-andseizures-temporary-assistance?_s=PM:US (last visited Oct. 28, 2011).


Id. Lebron v. Wilkins, -- F. Supp. 2d --, 2011 WL 5040993, *1 (M.D. Fla. 2011).




Id. Id. Id. at *1-3. Id. at *3 (quoting Fla. Stat. 414.70(1)-(5) (1998) (repealed 2004) (footnotes omitted). Id. (quoting Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among





Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 41 (2003)).

Id. (citing Fla. Stat. 414.70(1) (1998) (repealed 2004)). Id. (citing Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among


Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 4142, 44 (2003)).

Id. (citing Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among

Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 44 (2003)).

Id. (citing Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among

Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 45 (2003)).

Id. (citing Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among

Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 45 (2003)).

Id. at *3 (quoting Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among

Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 46 (2003)) (internal quotation marks omitted).

Id. (citing Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among

Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 46 (2003)).

Id. Id. (citing Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among


Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 4748 (2003)).

Id. (citing Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among

Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 4748 (2003)).




Id. (quoting Robert E. Crew, Jr. & Belinda Creel Davis, Assessing the Effects of Substance Abuse Among

Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 52 (2003)) (emphasis in original).

Id. at *4. Id. Id. Id. Id. at *6. Id. Id. Id. Id. Id. Id. at *6-7. Id. at *7. Id. Id. Id. Id. Id. at *7-8 (quoting Wyman, 500 U.S. at 317-18) Id. at *8. Id. (quoting Wyman, 500 U.S. at 321, 323). Id. Id. Id. The court then provided the list of post-Wyman cases: See Chandler, 520 U.S. at 313, 117 S.Ct. 1295 (drug testing of prospective political candidates considered to be a search); Vernonia, 515 U.S. 646, 115 S.Ct. 2386 (policy requiring high school























students to sign a form consenting to testing in order to play sports considered a search); Earls, 536 U.S. 822, 122 S.Ct. 2559 (policy requiring middle school and high school students to consent to drug testing as a condition for participation in extracurricular activities held a search); Von Raab, 489 U.S. at 665, 109 S.Ct. 1384 (drug testing as a condition for employment in certain U.S. Customs Service positions held to be a search). Id.

Id. Id. Id. Id. at *9. Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Id. (citing Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 590 (11th Cir. 1997)). Id. Id. Id. (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)). The doctrine of unconstitutional conditions states









that, although the government may withhold a benefit altogether, it may not grant the benefit on the condition that the recipient waives an independent constitutional right. Phillipa M. Guthrie, Drug Testing and Welfare: Taking the Drug War to Unconstitutional Limits?, 66 IND. L.J. 579, 598 (Spring 1991).

Lebron, 2011 WL 5040993 at *9. Id. Id. at *10 (citing Skinner, 489 U.S. at 623). Skinner, 489 U.S. at 623. Id. Id. (quoting Skinner, 489 U.S. at 634) Id. (citing T.L.O., 469 U.S. at 351). Id. Id. at *11. Id. Id.













Id. Id. Id. (citing Jayakody et al., Substance Abuse and Welfare Reform, National Poverty Center Policy Brief # 2, 2-3



(April 2004).

Id. Id. at *12 (quoting Bridget F. Grant & Deborah A. Dawson, Alcohol and Drug Use, Abuse, and Dependency


among Welfare Recipients, 86 AM. J. PUB. HEALTH 1450, 1453 (1996)).


Id. (citing Pollack supra n. 92). Id. Id. Id. Id. Id. Id. Id. at 12-14. Kentucky Introduces Bill to Drug Test Public Assistance Recipients, in THE OHIO FREE PRESS,









http://www.ohiofreepress.com/tag/kentucky-hb208/ (Jan. 14, 2010).


For a government point-of-view on the TANF testing proposals, see ASPE Issue Brief, Drug Testing Welfare

Recipients: Recent Proposals and Continuing Controversies, U.S. Dept. Health and Human Services (Oct. 2011), available at http://aspe.hhs.gov/hsp/11/DrugTesting/ib.shtml.

Press Release, Orrin Hatch, United States Senator for Utah, Hatch Introduces Amendment for Requiring Drug for Welfare, Unemployment Benefits (June 15, 2010), available at


http://hatch.senate.gov/public/index.cfm?FuseAction be3e-e099-95c71cb7495e&Month=6&Year=2010.


Id. Truax v. Corrigan, 257 U.S. 312, 332 (1921) (citing Hurtado v. California, 110 U.S. 516, 535 (1884)).




Id. at 332-33. Barbier v. Connolly, 113 U. S. 27, 32 (1884). Truax, 257 U.S. at 333. See, e.g., McAuliffe v. Mayor of New Bedford, 29 N.E. 517 (Mass. 1892).