State drug testing requirements for welfare recipients: are Missouri and Florida's new laws constitutional?

• Author: Schaberg, Abby E.

1. Introduction

   In recent years, there has been a proliferation of state proposals for laws requiring welfare recipients to submit to drug testing as a condition to receiving state assistance. (1) A number of these proposals provide for suspicionless, blanket drug testing of welfare recipients, while others require some form of reasonable suspicion of drug use in order to justify a drug test. (2) These laws seem to garner significant support from the public; however, these laws also have passionate critics. Supporters contend that these laws prevent the misuse of public funds, namely, for the purchase of drugs. (3) Conversely, critics argue that these laws authorize unreasonable searches in violation of the Fourth Amendment. (4) However, the constitutionality of such laws has yet to be definitively determined. There has only been one challenge to a law requiring the drug testing of welfare recipients to date, (5) and the Sixth Circuit Court of Appeals came to a split decision regarding the constitutionality of such a law. (6)

   This Summary examines the framework set up by the Supreme Court for analyzing the constitutionality of drug testing on welfare recipients. It discusses the states' implementation of such programs, and specifically analyzes laws recently passed by Florida and Missouri that authorize drug-testing requirements on welfare recipients. The likely outcome of challenges to these laws appears to be dependent, at least in part, on whether the law provides for suspicionless drug testing or calls for drug testing based on some reasonable suspicion of drug use.

2. Legal Background

   This Part begins by examining how federal welfare reform enacted in 1996 enabled states to implement drug testing requirements on welfare recipients. Next, this Part will discuss the Supreme Court's framework for analyzing the constitutionality of such measures. A brief discussion of states' implementation of this framework will follow. Finally, Missouri case law will be examined in an effort to provide guidance regarding the constitutionality of the new Missouri law which calls for drug testing of welfare recipients as a condition for receipt of state assistance.

   1. Federal Welfare Reform

      In 1996, the United States Congress and President Clinton passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), (7) which promulgated a substantial reform to the welfare system in the United States. (8) Notably, PRWORA implemented extensive changes to welfare when it replaced Aid to Families with Dependent Children (AFDC) with Temporary Assistance for Needy Families (TANF). (9) TANF called for a variety of administrative changes that limited the ability of individuals to obtain assistance and made it more difficult for those individuals to retain assistance. (10) The purported rationale of these changes under PRWORA was "to hold recipients accountable for the assistance they receive[d]" by creating obligations on the part of recipients and penalties for failure to fulfill these obligations. (11)

      The enactment of PRWORA allowed for sweeping changes in the United States welfare regime because it permitted states to construct their own welfare programs. (12) A common trend among states arose in adopting administrative measures that promoted making discretionary decisions rather than rule-based decisions. (13) These decisions presumably affect, among other things, eligibility of recipients and their retention of benefits. (14) Furthermore, PRWORA specifically authorizes states to administer suspicionless drug tests, that is, tests without any individualized suspicion that a recipient uses drugs as a qualification to receiving assistance: "Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances." (15) PRWORA's allowance of states to create their own welfare programs and its authorization of drug testing laid the foundation for states to propose statutes mandating drug tests for welfare recipients.

   2. Federal Case Law and the Framework for Welfare Drug Testing Challenges

      State drug testing requirements naturally implicate searches under the Fourth Amendment of the United States Constitution. (16) The Fourth Amendment requires that searches and seizures be reasonable, (17) which generally means that they must be supported by a valid warrant based on a showing of probable cause. (18) However, the United States Supreme Court recognizes certain exceptions to the warrant requirement that justify a warrantless search. (19) The Supreme Court has developed a general framework of analyzing whether a warrantless state drug testing requirement is reasonable under the Fourth Amendment. (20) This framework involves the "special needs" exception to the warrant requirement. (21) The special needs analysis is a two-fold inquiry: First, the court must determine whether the search furthers a special need of the state, and second, the court must determine whether this government interest outweighs the individual's privacy interest. (22) The special need of the state must be sufficiently important to both suppress the normal Fourth Amendment requirement of individualized suspicion and offset the individual's privacy interest. (23) However, if the court finds no special state need, the analysis terminates and the search is unreasonable. (24)

      The special needs analysis has been applied to evaluate the reasonableness of state drug testing requirements for welfare recipients, (25) as well as the reasonableness of drug testing requirements in other contexts. (26) The following discussion demonstrates the use of the special needs analysis and how it applies to state drug testing requirements of welfare recipients and other instructive court cases involving a variety of contexts.

      To date, there has only been one challenge to a state law authorizing drug tests of welfare recipients.27 In Marchwinski v. Howard, the plaintiffs challenged a Michigan state statute arguing that its drug testing requirement for welfare recipients was an unconstitutional search under the Fourth Amendment. (28) The state law challenged in Marchwinski authorized suspicionless drug testing as a blanket condition to receiving state assistance, whereas other similar state laws require a reasonable suspicion of drug use in order to administer drug tests. (29) Since this was the first challenge to a law authorizing drug testing of welfare recipients, the reasoning in the Marchwinski decisions (30) are highly instructive in evaluating how courts might approach similar laws. (31) The Marchwinski decisions relied heavily on previous Fourth Amendment challenges of laws requiring drug tests and state actions in other contexts. (32) Therefore, a summary of the reasoning used in these challenges is prudent.

      In Wyman v. James, a New York welfare recipient challenged the constitutionality under the Fourth Amendment of the state's action in terminating her AFDC benefits after she refused to allow a welfare case worker to enter her home, which was required in order to receive assistance. (33) The United States Supreme Court found that the purpose of the Social Security Act of 1935, which provided for the AFDC program, was to encourage the care of dependent children in their own home, (34) and that the home visits by caseworkers furthered this purpose by assuring that use of state aid was made in the best interest of the child. (35) The Supreme Court held that the home visitation requirement of the New York statute was a reasonable administrative tool which served a proper purpose in the dispensation of benefits, "and that it violate[d] no right guaranteed by the Fourth Amendment." (36) In reaching this conclusion, the Supreme Court found support in the fact that recipients who refused to permit home visits merely lost the payment of their benefits but were not criminally prosecuted by their caseworkers, whom the court considered to be friends of those in need. (37)

      In 1989, two Supreme Court cases regarding statutory drug test requirements for employees were decided by applying the special needs exception to the Fourth Amendment warrant and probable cause requirement for searches. (38) In Skinner v. Railway Labor Executives' Association, the Court held that the Federal Railroad Administration's regulation requiring suspicionless drug and alcohol testing of railroad employees involved in train accidents was reasonable within the meaning of the Fourth Amendment because the government's safety interest served by toxicology tests outweighed the union's interest in protecting an expectation of privacy. (39) Similarly, in National Treasury Employees Union v. Von Raab, the Court addressed the suspicionless testing of United States Custom Service employees who applied for promotions to positions that involved the interception of illegal drugs and required the employee to carry firearms. (40) It held that such a search was reasonable under the Fourth Amendment because the government's compelling interests in preventing drug users from attaining such sensitive positions outweighed the privacy interests of the employees. (41) In both Skinner and Von Raab, the Supreme Court reached its decision by reasoning that the preservation of governmental interests in promoting safety in dangerous or highly sensitive professions justified departure from the Fourth Amendment requirements that a warrant or probable cause precede any search. (42)

      The Supreme Court also applied the special needs exception to the warrant and probable cause requirements to cases involving suspicionless drug testing requirements for student athletes in public school. (43) In Vernonia School District 47J v. Acton, students challenged the school district's policy requiring students who participated in athletics to...