American Journal of Law & Medicine

Public Assistance, Drug Testing, and the Law: The Limits of Population-Based Legal Analysis

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues--not unlike law and economics--as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts to recognize population health as an important norm in legal reasoning. What should we do when the insights of public health and conventional legal reasoning conflict? Still in its infancy, population-based analysis offers little in the way of answers to these questions. This Article applies population-based legal analysis to the constitutional problems that arise when states condition public assistance benefits on passing a drug test, thereby highlighting the strengths of the population perspective and exposing its weaknesses.

CONTENTS

I.   INTRODUCTION
II.  TANF: TEMPORARY ASSISTANCE TO NEEDY FAMILIES
     A. Drug Testing and the States
        1. Reasonable Suspicion
        2. Suspicionless Drug Testing
III. POPULATION-BASED LEGAL ANALYSIS
IV.  The Fourteenth Amendment
     A. THE SPECIAL NEEDS DOCTRINE
        1. Public Assistance and the Fourteenth Amendment
V.   THE LIMITS OF POPULATION-BASED LEGAL ANALYSIS
     A. The Government Interest
        1. The Probability of Harm
        2. The Nature and Severity of the Harm
     B. The Nature and Intrusiveness of the Search
        1. A Fourth Amendment Perspective
        2. A Public Health Perspective
     C. Effectiveness
        1. Taxpayer Subsidy of Illegal Drug Use
        2. Drug Use and Employment
        3. Child Abuse and Neglect
        4. Population-Based Analysis
        5. The Least-Intrusive Alternative
     D. The Individual Interest in Privacy
        1. A Fourth Amendment Perspective
        2. A Public Health Perspective
VI.  DRUG TESTING AND UNCONSTITUTIONAL CONDITIONS
     A. Unconstitutional Conditions
        1. Conditions Overturned
        2. Conditions Upheld
     B. The Fourth Amendment
     C. Rethinking the Unconstitutional Conditions Doctrine
        1. Coercion
        2. Systemic Effects
        3. A Public Health Perspective
VII. CONCLUSION

I. INTRODUCTION

In 2011, three dozen states considered bills that require applicants to pass a drug test before they qualify for income assistance through the Temporary Assistance to Needy Families Program (TANF). (1) Several state legislatures have also proposed bills that would require applicants to pass a drug test in order to qualify for food stamps, public housing, home-heating assistance, and unemployment benefits. (2) To date, eight states have passed laws conditioning public assistance benefits on passing a drug test: Arizona, Florida, Georgia, Michigan, Missouri, Oklahoma, Tennessee, and Utah. (1) Proposals to condition public assistance on passing a drug test have also appeared in the United States Congress. At the federal level, the Middle Class Tax Relief and Job Creation Act of 2012 authorizes states to condition unemployment benefits on passing a drug test and to deny unemployment benefits to anyone who fails a drug test. (4) The Drug Free Families Act of 2011, presently stalled in the House and Senate, would require all fifty states to deny TANF assistance to anyone who tests positive for illegal drugs and to anyone convicted of a drug-related crime. (5)

Although most states require a reasonable suspicion of illegal drug use before conducting a drug test, Florida and Georgia do not. Both states require a drug test for all TANF applicants irrespective of drug history or current suspicion of illegal drug use. (6) In Florida, Governor Rick Scott has emphasized the unfairness of asking taxpayers to subsidize illegal drug use. In a statement to the press, Scott put it this way: "While there are certainly legitimate needs for public assistance, it is unfair for Florida taxpayers to subsidize drug addiction.... This new law will encourage personal accountability and will help to prevent the misuse of tax dollars." (7) In Missouri, Representative Ellen Brandom echoed Scott's concerns: "We should discourage drug use and not reward it." (8) In another interview, she added: "Working people today work very hard to make ends meet, and it just doesn't seem fair to them that their tax dollars go to support illegal things." (9)

While support for drug testing has largely focused on the unfairness of asking taxpayers to subsidize illegal drug use, supporters have also invoked other government interests in drug testing, including a state interest in providing an incentive for people to stop using drugs. In Georgia, the General Assembly has said that an important purpose of the drug testing law is to reduce the danger that children will be exposed to drugs in the home. (10) Other states--including Alabama, Michigan and Oklahoma--have asserted a state interest in preventing drug-related child abuse, as well as a state interest in identifying TANF recipients for whom substance abuse might present a barrier to employment. (11) In addition, both Florida and Georgia have asserted a state interest in not funding the public health and crime risks associated with drug use. (12) In response, critics maintain that drug tests are needlessly intrusive and unfairly single out the poor for a drug test. (13)

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures, and the United States Supreme Court has long held that a drug test constitutes a search within the meaning of the Fourth Amendment. (14) In the legal debate surrounding drug testing and public assistance, the central question is whether drug tests are unreasonable as a matter of constitutional law. (15) Under the special needs doctrine, the Supreme Court has said that a drug test may be reasonable without an individualized suspicion of drug use when governments confront "special needs beyond the normal need for law enforcement." (16) In Chandler v. Miller, the Supreme Court articulated a strong public safety rationale for the special needs doctrine. In an opinion by Justice Ginsburg, the Supreme Court held that "where the risk to public safety is substantial and real," suspicionless searches may be reasonable; however, where "public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search no matter how conveniently arranged." (17) Yet, subsequent Supreme Court decisions have strained to place the government interest in a suspicionless search within the scope of the public safety exception, while also suggesting that the special needs doctrine might encompass government interests beyond a government interest in public safety. (18)

How should we think about this? In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. (19) Parmet contends that population-based legal analysis offers a way to analyze legal issues--not unlike law and economics--as well as a set of values from which to critique contemporary legal discourse. (20) Population-based analysis has been warmly (and rightly) embraced by the health law community as a bold new way of analyzing legal issues. (21) Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts to recognize population health as an important norm in legal reasoning. What should we do when the insights of public health and conventional legal reasoning conflict?

Part II of this Article provides a brief overview of state efforts to condition TANF and public assistance on passing a drug test. Part III outlines the fundamental elements of population-based legal analysis. Part IV discusses the evolution of the special needs doctrine, while also critiquing much of the doctrine from a public health perspective. Part V applies population-based legal analysis to the constitutional problems that arise when states condition public assistance benefits on passing a drug test, thereby highlighting the strengths and weaknesses of a population-based perspective. Part VI applies the unconstitutional conditions doctrine to drug testing of TANF and public assistance recipients, with special attention to how public health can add to our understanding of the unconstitutional conditions problem.

II. TANF: TEMPORARY ASSISTANCE TO NEEDY FAMILIES

In 1996, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) ended the Aid to Families with Dependent Children Program (AFDC) and replaced it with Temporary Assistance to Needy Families (TANF).22 23 The overarching purpose of TANF is to move recipients of public assistance from welfare to work. With few exceptions, PRWORA requires TANF recipients to find at least part-time work within two years. (22) PRWORA mandates at least twenty hours of work per week for parents with children over age six, and it also imposes a lifetime limit of no more than sixty months on the receipt of federal aid, with a state option for a shorter lifetime limit. (24) States receive TANF block grants and are required to use those funds in a manner reasonably calculated to accomplish any one or more of the four TANF program goals: (i) assisting needy families so that children can be cared for in their homes; (ii) reducing the dependency of needy parents by promoting job preparation, work, and marriage; (iii) preventing out-of-wedlock pregnancies; and (iv) encouraging the maintenance and formation of two-parent families. (25)

Federal and state laws limit TANF to low-income families in which the household includes a minor child or a pregnant woman. (26) With few exceptions, qualified households must demonstrate that their total income is no more than 200% of the federal poverty level ($37,060 for a family of three in 2011, and $44,700 for a family of four). (27) Although income assistance is one of the primary benefits of participation in TANF, the average monthly cash benefit varies widely from state to state. In 2011, this figure ranged from $753 for a single-parent family of three living in New York City to $170 in Mississippi. (28) The average benefit for a single-parent family of three in 2011 was $303 in Florida and $280 in Georgia. (29)

A. DRUG TESTING AND THE STATES

1. Reasonable Suspicion

PRWORA authorizes, but does not require, drug testing as a condition of assistance through TANF. (30) In the handful of states that have enacted a drug testing requirement, most require "reasonable cause" or "reasonable suspicion" of drug use before conducting a drug test. (31) In Arizona, TANF applicants are asked to complete a recent drug use questionnaire. (32) Applicants who admit that they have used drugs are required to pass a urine test before receiving benefits. (33) Those who fail the urine test are TANF-ineligible for one year. (34) surprisingly, few applicants tend to disclose drug use. Since 2009, when drug testing began in Arizona, only 16 out of 64,000 applicants have admitted drug use, and 931 applicants failed to submit the form. (35)

Given the obvious limitations of screening by self-reporting, most states rely on case managers and substance abuse counselors to recognize the signs of drug use. In Missouri, the Department of Social Services screens TANF applicants and recipients for drug use and conducts a test when it has reasonable cause to suspect drug use. (36) Applicants or recipients who test positive for drugs are TANF-ineligible for a period of three years, unless they successfully complete a treatment program. (37) In Missouri, TANF recipients who test positive for drugs have the option to retain their benefits on the condition that they enroll in a substance abuse treatment program for six months and do not test positive for drugs while participating in the program. …

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