Drug testing welfare recipients as a constitutional condition.

• Author: Wurman, Ilan

INTRODUCTION I. CONVENTIONAL FOURTH AMENDMENT ANALYSIS A. Fourth Amendment Overview B. Drug Testing and Special Needs 1. Public safety and public officials 2. Competitive activities in schools 3. Running for public office C. Home Searches of Welfare Recipients: Wyman and Sanchez D. Drug Searches of Welfare Recipients: Lebron and Marchwinski E. Conclusion: Drug Testing Welfare Recipients Under the Fourth Amendment II. UNCONSTITUTIONAL CONDITIONS A. Paradoxes and Fictions in the Fourth Amendment Doctrine 1. The paradox of consent 2. The paradoxical distinction between home searches and drug tests. 3. The diminished expectation of privacy fiction B. Unconstitutional Conditions: The Doctrine 1. Discretionary benefits and constitutional rights 2. Germaneness C. Special Needs Reframed 1. Constitutional conditions and special needs: Von Raab, Skinner, and Vernonia 2. Unconstitutional conditions and special needs: Chandler, Earls, and the border search cases 3. Constitutional conditions and home searches III. DRUG TESTING WELFARE RECIPIENTS: A CONSTITUTIONAL CONDITION? CONCLUSION INTRODUCTION

In the past few years, there has been a flurry of legislative proposals in the states to require welfare applicants and recipients to submit to suspicionless drug testing. (1) Florida's recently enacted drug testing program, for example, required all applicants for Temporary Assistance for Needy Families (TANF) to pay for a urinalysis. If the results were negative, TANF funds would reimburse the applicant for the drug test; if the results were positive, applicants would become ineligible to receive TANF benefits for one year. (2) A federal district court recently granted a preliminary injunction enjoining Florida's program, finding that the plaintiffs were likely to succeed on the merits of a Fourth Amendment claim. (3) This decision was upheld by an Eleventh Circuit panel on February 26, 2013, on the ground that the district court did not abuse its discretion in finding the plaintiffs likely to succeed on the merits. (4) The panel stated explicitly that it was not definitively or finally resolving the constitutional inquiry. (5) It appears that only the Sixth Circuit has otherwise addressed the constitutional question raised by these testing requirements in a case about a Michigan program whereby all welfare applicants would be drug tested, and every six months twenty percent of existing recipients would also be randomly tested. (6) In that case, the Sixth Circuit panel disagreed with a trial judge who had also granted a preliminary injunction on Fourth Amendment grounds, but the full Circuit upheld the trial judge's decision by an equally divided, six-to-six vote. (7)

The constitutionality of these legislative proposals is, therefore, very much open to question. In the past year, two scholarly articles and one student note have been written arguing, as the district courts have ruled, that suspicionless drug testing of welfare recipients is unconstitutional under the Fourth Amendment's "special needs" doctrine. (8) This doctrine applies where the government can show special circumstances--such as at the border, in schools, or with public safety employees--that may justify dispensing with the warrant and probable cause requirements for conducting a search. Since 1990 but prior to these three pieces, only five notes and comments (and no articles) had been written on the question of suspicionless drug testing of welfare recipients, all coming to the same conclusion that such testing violates or likely violates the Fourth Amendment. (9)

This Note challenges the prior and current scholarship on suspicionless drug testing of welfare recipients, the Eleventh Circuit's recent decision on the question, and the Supreme Court's special needs doctrine more broadly, by applying the unconstitutional conditions doctrine to the cases. This doctrine holds that the government may condition a public benefit on the recipient's forgoing of a constitutional right as long as that condition is "germane," which is another way of asking whether the lesser power of conditioning the benefit is used for the same reason that would justify the greater power to deny the benefit altogether. (10) For example, in Lyng v. UAW, the Supreme Court permitted the government to deny food stamps eligibility to any new applicants engaged in striking, or to refuse to increase the allotment for any existing recipient who goes on strike. (11) If the government may legitimately deny the benefit altogether if recipients were to reduce their incomes purposefully, then it may legitimately condition the benefit on a requirement that recipients forgo actions--even constitutionally protected actions--that would result in a loss of income.

This Note contends that the Fourth Amendment's special needs doctrine may conflict with the unconstitutional conditions doctrine, because conditioning welfare benefits on drug testing may very well be a constitutional condition but fail the special needs test. This Note will argue that, where the unconstitutional conditions doctrine could otherwise apply, the doctrine is in fact necessary to apply; that it resolves certain contradictions and fictions in the Fourth Amendment doctrine while better explaining some of the cases; and that conditioning welfare on drug testing is more likely to be constitutional under the unconstitutional conditions doctrine.

First, an unconstitutional conditions analysis is in fact necessary if the district courts are correct that suspicionless drug testing of welfare recipients violates the Fourth Amendment. The unconstitutional conditions doctrine applies precisely where a person receives a public benefit on the condition of forgoing a constitutional right. Put differently, if the district courts had found the drug testing constitutional, that would be the end of the matter; because they have found the programs unconstitutional, it is necessary also to apply the doctrine of unconstitutional conditions. Yet all of the courts facing the issue have either ignored or given short shrift to the unconstitutional conditions doctrine. Only one note has given the doctrine any treatment in this context. (12)

Second, an unconstitutional conditions analysis applied to the Court's special needs cases resolves two persistent paradoxes in the Court's Fourth Amendment doctrine. First, consent to a search typically nullifies a Fourth Amendment claim, and yet consent does not seem to nullify the Fourth Amendment claim in the drug testing, special needs context. (13) Second, an invasive, warrantless, and suspicionless home search of a public welfare recipient is not considered a search for Fourth Amendment purposes, yet a potentially less invasive drug test is automatically considered a search. (14) An unconstitutional conditions analysis recognizes that any warrantless, suspicionless search--whether of your body or of your house---is almost always unconstitutional. It also recognizes that consent nullifies a Fourth Amendment claim. The question thus becomes whether the government can require you to give up your right to refuse consent to such searches as a condition of receiving certain government benefits. Thus, once the question becomes one of unconstitutional conditions, the current doctrinal paradoxes are resolved.

Although not a paradox, the Court's current doctrine also relies on the fiction that students, public safety employees, and the poor have a lesser expectation of privacy than ordinary citizens. (15) It is unclear why this should be true as a descriptive matter. Under an unconstitutional conditions framework, everyone has the same expectation of privacy. The question simply becomes whether forgoing this privacy right is "germane" to the public benefit the person is receiving. This reasoning is consistent with other special needs contexts where the unconstitutional conditions doctrine does not apply because the government has no power to grant or deny the benefit--such as a citizen's right to enter the country. The border search cases, therefore, can still be explained on expectation of privacy grounds. In those special needs cases involving unconstitutional conditions questions, however, the courts need not rely on a subjective expectation of privacy analysis that arguably discriminates against these groups.

Third and last, the Note concludes that under the unconstitutional conditions doctrine, in which the test is one of germaneness rather than balancing, suspicionless drug testing of welfare applicants and recipients is much more likely to survive constitutional scrutiny. Under the special needs doctrine, if suspicionless drug testing is only justified in cases where "safety" or the public school context requires it--as the Michigan and Florida district courts held (and which the Eleventh Circuit has recently affirmed on deferential review) and as all of the literature maintains--then testing welfare recipients certainly seems unconstitutional. If suspicionless drug testing can only be justified under the broader standard that the warrant and probable cause requirements must be "impractical," then again testing welfare recipients, at least without reasonable suspicion, seems unconstitutional.

This Note does not go so far as to make the claim that a suspicionless drug test of a welfare recipients must pass constitutional muster under the unconstitutional conditions doctrine, and certainly the Note does not claim that, as a matter of policy, requiring such tests is a good thing. (16) The claim is only that if the policy rationales for criminalizing drug use in the first instance are valid-such as the argument that drug use decreases productivity--then drug testing as a condition on welfare seems to be germane, which is the most basic requirement of the unconstitutional conditions doctrine. If we challenge the germaneness on the ground that there is no evidence to suggest these rationales to be true, then...