FAILING THE TEST

It didn't take long for Florida's new policy of drug testing welfare
recipients to run afoul of the Constitution.

The state implemented the testing July 1, and on Monday a federal
judge in Orlando issued a temporary injunction to halt it on the
grounds that it likely violated the Fourth Amendment protections
against illegal searches and seizures.

The case is to constitutional jurisprudence what a fastball over the
middle of the plate is to Albert Pujols.

Gov. Rick Scott promoted drug testing of welfare recipients as being
necessary to safeguard public dollars. But U.S. District Judge Mary
Scriven rejected that argument, writing: "If invoking an interest in
preventing public funds from potentially being used to fund drug use
were the only requirement to establish a special need, the state could
impose drug testing as an eligibility requirement for every
beneficiary of every government program. Such blanket intrusions
cannot be countenanced under the Fourth Amendment."

Indeed, why are welfare recipients held to a higher standard of
conduct than other recipients of taxpayer largess? Being poor doesn't
give you fewer rights. Florida spends tens of millions of dollars each
year on "economic incentives" - cash payouts to businesses to lure
jobs to the state. Why not drug test the CEOs of each company?

For that matter, why not drug test elected officials before each vote
they take in the Legislature? (Actually, that would be pointless -
they've already proved they don't need to be high to waste tax dollars.)

There is no evidence that people on welfare use drugs at a higher rate
than the general population. Judge Scriven cited a 1999 study of a
state pilot project which found that only 5 percent of Florida's
welfare applicants tested positive for illicit drug use, which is
lower than the national rate of 8 percent.

Since testing began in July, 32 applicants have failed and more than
7,000 have passed. State officials pointed out that 1,600 welfare
applicants refused to take the test, which they argued proves the
program is weeding out drug users. The judge, though, noted that
applicants don't have to give a reason why they refuse the test.

Applicants must pay $25 to $45 for the cost of the tests; if they
pass, the state reimburses them. The high pass rate suggests Florida
could be spending more on testing than it is saving on welfare payments.

But even if the math were in the state's favor, Judge Scriven
correctly ruled that still wouldn't justify the program under the
Fourth Amendment. Although the U.S. Supreme Court has upheld the
constitutionality of suspicionless drug testing of public school
students on the grounds that their privacy rights are less than those
of adult citizens, it has been less tolerant of such
government-mandated tests outside the campus.

Michigan in 1999 passed a similar law requiring random, suspicionless
testing of residents on public assistance. But it, too, was quickly
suspended via a legal challenge, and in 2003 a federal appeals court
overturned it on Fourth Amendment grounds.

The prospects of the law surviving further judicial scrutiny are slim.
Instead of wasting more time and taxpayer money, Florida should
refrain from appealing Judge Scriven's ruling and admit what was
obvious from the start: The statute is unconstitutional.