The bill requires each state participating in the Temporary Assistance for Needy Families (TANF) program to certify that applicants and current recipients are being randomly test for illegal drug use. In order to pass constitutional muster, the bill requires states to provide a consent and waiver form, where applicants are given the choice to waive their Fourth Amendment Rights and submit to a random drug test. If welfare beneficiaries fail a drug test or are arrested on a drug related offense, they will be unable to receive the benefit and cannot reapply for one year. Further, the legislation requires states that receive funding from the TANF program to certify that there is a program in place to test 20% of applicants and recipients for illegal drugs. States that do not comply would forfeit 10% of their TANF funding.
A federal appeals court has already blocked Florida’s mandatory drug-testing law, making it clear a blanket testing of public assistance applicants is likely unconstitutional. “The simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy,” the court held.
In a remarkable acknowledgment of the constitutional problems with the bill, the text of Fincher’s legislation actually calls for states to require citizens to “sign a waiver of constitutional rights with respect to testing.” Fincher suggests in his press release that the waiver is not forced because applicants can opt not to apply for benefits, but the federal appeals court made clear in its recent decision that a coerced waiver violates “the well settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right . . . in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to [the right].” The bill, then, would seek to require every state that wants to maintain its current level of funding to pass its own unconstitutional law.
As the Huffington Post points out, the bill is unlikely to succeed. Similar legislation introduced in 2011 “garned just seven cosponsors and failed to clear a committee.” But state bills that impose drug testing on applicants and beneficiaries are seeing increasing success, and at least seven states have already passed legislation requiring some form of drug testing for public assistance applicants or recipients. Mitt Romney even endorsed the idea during his presidential campaign.