The lazy, Cadillac-driving welfare queen, getting high and living on the government dole, has been a political scare tactic since the days of Ronald Reagan. These days, mostly Republican legislators are dusting off the stereotype in a new front in their war of cannabis consumers – a coordinated effort to pass drug screenings as a requirement for benefits like welfare, food stamps, even the unemployment compensation that workers paid into as insurance.

According to the National Conference of State Legislatures “at least 29 states have proposed legislation requiring some form of drug testing or screening for public assistance recipients in 2013.”  The latest to join Arizona, Florida, Georgia, Kansas, Missouri, Oklahoma, Tennessee and Utah in actually passing these bills is Texas, which (as of press time) sent a bill to Gov. Rick Perry to mandate drug testing for certain people seeking unemployment compensation.

The federal law that grants states this power is the “The Personal Responsibility and Work Opportunity Reconciliation Act of 1996.” This Act was passed by the Congress with both Republican and Democrat majorities, though 118 Democrats voted against it. Just two House Republicans and no Senate Republicans opposed it. President Bill Clinton signed it into law and it was the major element in what he called “welfare reform”.

The constitutionality of such drug testing is suspect. The state of Michigan was sued in 2002 for its program where everyone applying for Temporary Assistance for Needy Families (TANF, or “welfare”) was drug tested, and 20 percent of recipients were randomly tested every six months. In the case Marchwinski v. Howard, the US Sixth Circuit Court of Appeals ruled that testing all applicants and random recipients violated their Fourth Amendment rights against unreasonable search and seizure. Merely being poor is not a “probable cause” to believe someone is violating controlled substance laws.

Undeterred, states continued pushing drug testing as a means to insure the lazy welfare queens weren’t spending their tax dollars on a bag of weed. Florida instituted its program to drug test for TANF benefits in 2011 and it ran for four months before the US Eleventh Circuit Court of Appeals upheld a lower court’s injunction halting the Florida law.

The Florida experience shows, not only is drug testing the poor unconstitutional, it’s wasteful and ineffective. The New York Times reported that just 2.6 percent of the TANF applicants failed the drug test, the most common reason being for marijuana. The statewide average for failed employment drug tests in Florida is around 8 percent. Since the state had to reimburse all the poor people who passed the $30 test, it ended up paying out $45,000 more than it saved by not giving assistance to the 108 people in poverty who failed the test. Proponents predicted that the demand for TANF would drop by weeding out weed smokers. But the overall caseload remained steady. Ultimately, the state saved nothing on the imaginary poor people who didn’t bother to apply for TANF.

In order to pass constitutional muster, the latest states are rolling out their welfare drug testing without the suspicion-less drug testing mandates of Florida’s and Michigan’s laws. In 2012, Oklahoma and Tennessee adopted laws that screen applicants to find a reasonable suspicion they are engaged in drug use. Utah’s 2012 law uses a questionnaire designed to screen applicants to find that reasonable suspicion. Kansas’s law, passed in April this year, can manufacture a reasonable suspicion to drug test for TANF based on “on a person’s demeanor, missed appointments, police records, termination from previous employment due to substance use or prior drug screening records.”

Most of these state laws provide a way for parents who have failed the drug test to have the TANF benefits paid out to another adult on behalf of the children, so long as that adult passes the drug test. Lawmakers add this provision to blunt the criticism of being unsympathetic to the children of the poor, since the average TANF recipient is a single mom with two kids getting $412 a month, and almost half of all TANF recipients are children.

While Republicans have largely been driving this recent spate of drug testing bills, some Democrats’ urge even more drug testing. As Minnesota debated a Republican-sponsored amendment for TANF drug testing requirements, a Democrat moved that the lawmakers’ own salary and benefits be dependent on passing a drug test. Republican State Rep. Duane Quam said, “Bring on the cup!” The House agreed, passing the drug testing for both poor people and lawmakers by a 70-64 vote.

Unfortunately, this is the same reaction from some of the public, even a few who use marijuana themselves.  “If I have to pee in a cup to get a job,” goes the common refrain on comment boards, “why shouldn’t someone getting welfare have to?”  

It’s a sad commentary on Americans’ understanding of civil liberties to react to one’s own oppression by demanding the oppression of others.

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