Drug Testing All Welfare Applicants: One Part “Suspicion-less Search”, Two Parts Wasteful Government Spending, and Three Parts Stereotype Based Policy

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“I wonder how much this cost the taxpayers in Tennessee. Didn't work too well in Florida either. Too bad the politicians didn't check the data in other states before implementing this costly policy”.  The previous statement is that of a colleague of mine posted online in a social media site.   My colleague was commenting

on a news item regarding Tennessee’s move to subject welfare applicants to a drug test.  Like Florida, which implemented a similar policy, Tennessee found that an extremely low percentage of welfare applicants/recipients tested positive for drugs.  According to the report, out of 800 applicants in Tennessee, only one person tested positive for drugs.  You may have heard a few years ago that Florida had similar results.  In 2011, only 2% of the applicants for TANF (Temporary Assistance for Needy Families), aka “welfare”, tested positive for drug use.  This is a percentage that is lower than the percentage of Florida’s general population that uses drugs.  Soon after the posting, an acquaintance of my colleague responded with:

The purpose of the program is completely lost on you. Florida's program was only for the "Cash Assistance" portion of SNAP. That means the state will not just hand you cash without knowing you are not on drugs. The requirement being on the books simply deters these inappropriate applications. How much money did the state save not having to even process the thousands or millions of applications simply because those who knew they were going to fail the drug test opted not to apply?

Before continuing, here is some background on the issue and the role of the states from the nonpartisan National Conference of State Legislatures:

States have proposed drug testing of applicants and recipients of public welfare benefits since federal welfare reform in 1996. The federal rules permit drug testing as part of the Temporary Assistance for Needy Families block grant. In recent years, many states have proposed some form of drug testing or screening for applicants.  In 2009, over 20 states proposed legislation that would require drug testing as a condition of eligibility for public assistance programs. In 2010 at least 12 states had similar proposals. None of these proposals became law because most of the legislation was focused on “suspicionless” or “random” drug testing, which is at odds with a 2003 Michigan Court of Appeals case. Marchwinski v. Howard ruled that subjecting every welfare applicant in Michigan to a drug test without reason to believe that drugs were being used, was unconstitutional.

The proposals gained momentum beginning in in the 2011 session. Three states passed legislation in 2011, four states enacted laws in 2012, two states passed legislation in 2013, and two states has passed legislation in 2014, bringing the total number of states to eleven. In 2013, Kansas enacted legislation to require drug testing for applicants and recipients suspected of using controlled substances. In 2012, Utah passed legislation requiring applicants to complete a written questionnaire screening for drug use and Georgia passed legislation requiring drug tests for all applicants for Temporary Assistance for Needy Families. Tennessee approved a bill to require the department to develop a plan for substance abuse testing for all applicants and Oklahoma passed a measure requiring all applicants for TANF to be screened for illegal drug use (Source link).

In Georgia, a bill was passed by the state legislature and signed into law by Governor Deal in 2012 that required all recipients of TANF to not only agree to submit to the drug screening, but also to pay for the test themselves.  This despite the fact that there was no obligation of the state to demonstrate that the applicant had any prior history of drug use.  Thankfully in 2014, the Georgia state legislature revised the law.  Georgia’s law now requires that there be reasonable suspicion of drug use before requiring the test. 

I was a little put off by the reply of my colleague’s acquaintance.  Not because of the counter argument, which is a reasonable opinion on the matter; but by the arrogant and condescending tone of the first line, “the purpose of the program is completely lost on you.”  Therefore, I felt compelled to come to my colleague’s defense, though as a smart and thoughtful man highly educated in Economics, he is perfectly capable of defending himself.   Here is my reply:

It's policy making based on a stereotype. Leads to inefficiency. I don't believe there was any data to support the costly testing to begin with. So if I move to Florida or Tennessee and get a refund on my state taxes in April, should I expect a drug test? No probably not because I need to be on welfare or food stamps as a govt benefit, rather than a tax subsidy so it can be assumed that I'm lazy and on drugs. By the way it's a suspicion less search that is not given to others who get cash benefits from the state like unemployment or subsidies. Which is why, I believe, there is a lawsuit out there challenging one of these state drug test programs. So it's not all that illogical that the purpose of the program is not lost on the many who see this as a stereotype based policy.

My concern with the policy of these states did not originate with my colleague’s posting and the reply of his acquaintance.  Moreover, my concern was not aroused simply by the cost of the program.  What bothers me the most is policy making based on stereotypes and perceptions that often are formed with a lack of evidence, or the necessary amount of data to support the perception.  Unfortunately for many, perception is indeed reality.  And the evidence sighted, is often just anecdotal evidence.  Anecdotal evidence simply notes something that was witnessed or heard about, and does not imply that there are relatively large numbers of that occurrence.  For example, we hear on the news from time to time that a pit bull has mauled a small child.  There is however, no mention of the total pit bull population and the possibly low percentage of cases in which a pit but harms another.   

First, however, let me appeal to those that support the policy because they accept the stereotype in the first place; and, simultaneously appeal to those that do not believe this is a stereotype based policy but support the policy for perhaps a variety of beliefs and concerns.  Requiring all participants of anything to submit to a drug test, whether it be for employment, admission to a school or participation in an activity is an example of a “suspicionless search”.  A “suspicionless search” is a search without “reasonable suspicion” that the individual has committed a crime in the first place.  It is generally accepted that private employers can require random drug tests if that is how they see fit to run their business.  It is a whole other matter when it is the government, which is bound by the Constitution.  Very broadly speaking, the 4^th Amendment of the U.S. Constitution is interpreted as protecting us against searches without reasonable suspicion:  “The right of the people to be secure in their persons, houses, papers, and effects,^[a] against unreasonable searches and seizures, shall not be violated,…”.   Recently, in Board of Education of Pottawatomie County v. Earls, the U.S. Supreme Court ruled that the school system could indeed require drug testing of all students seeking to participate in voluntary extracurricular activities.  Therefore, the courts have not deemed all “suspicionless searches” as unconstitutional.  Note that our rights are not absolute, but that the government may prove a compelling interest or reason in denying a right, and in such cases, the government action would not be in violation of the Constitution. 

There are two major differences, perhaps more, between the effort of some states to drug test all welfare applicants and the circumstance of the public school drug testing and the subsequent Supreme Court ruling.  One, the courts carve out a special consideration for minors; and, in their capacity of caring for minors during a large portion of the day, the courts give a great deal of leeway to schools in preventing violence and drug use.  Second, the school’s policy, to remain constitutional, was not allowed to apply to just one type of extra-curricular activity.  This means that the policy would be unconstitutional if it only applied to student athletes, such as football players, and not to other activities and organizations outside of regular school hours, such as math club.  As I stated in my social media reply, the requirements of states like Tennessee and Florida applied only to recipients of one type of cash benefit and not to recipients or applicants of other types of cash benefits from the state, such as unemployment compensation.  Therefore, the argument that state funds supplied by tax payers should not go to someone who may use the money to purchase drugs does not hold up under these circumstances.  If this were the only motive for the policy, than I find it perplexing that the state did not implement drug testing of other cash benefit applicants seeking unemployment compensation, or perhaps those that receive some other sort of subsidy or refund from the government as the result of meeting a qualification for a benefit. 

Second, this is a great example of wasteful government spending that should be detested not just by fiscal conservatives, but by all taxpayers.   The data demonstrated that the policy was not warranted given the cost to the state or the cost to the applicant who, if applying for welfare, is short on funds in the first place.  Does this policy now sound as reasonable as it first did when you saw the headlines referring to the effort of these states to drug test those requesting welfare?  If so, then I am quite convinced that I could show up to your door and convince you to spend thousands of dollars on something that might prevent an event that may or may not happen without any data to support that the possible event is indeed a threat or problem to begin with.   As proven by the financial burden and the lack of results, this policy flies in the face of fiscal conservatism as an additional regulation put on an individual, implemented by the government, and is costly to the taxpayer.  The reply to my colleague’s statement on social media referred to what may have been prevented:  “The requirement being on the books simply deters these inappropriate applications. How much money did the state save not having to even process the thousands or millions of applications simply because those who knew they were going to fail the drug test opted not to apply?”  The problem with this assertion is that we cannot measure who may not have applied.  In fact, he suggests that it could have been thousands or millions that did not receive welfare because they did not apply due to their drug use.  But there is no way to know if his claim is accurate, grossly exaggerated, or completely false.  My common sense and perhaps educated opinion tells me that it is at least grossly exaggerated.  However, it is not a good use of government time and money to implement policies where there exists no data to warrant them in the first place, and when the policy is not regarding national security or a threat to the immediate safety of others.

Third, and tying in with the earlier points, the policy is based in a stereotype that typical welfare recipients are lazy freeloaders that would rather sit on a couch, preferably to get high or drunk, rather than work like the rest of us.  The reality is that a large portion of welfare recipients are women with children and that most of their budget goes to necessary items such as food and shelter.  In fact, welfare recipients spend a small portion of their overall budget on frivolous items than do non welfare recipients.  As stated earlier, if the motive were primarily based in a desire prevent government money going to dangerous activities, the policy would not just apply to welfare applicants, but to all those that receive a direct cash benefit or is a benefit that frees up cash that can then be potentially used for drugs.  Rather, the primary motivation may be a perception of and disdain for those that receive welfare from the state. 

Government must avoid enacting policy based on a feeling particularly when the policy is costly, puts an unnecessary and unwarranted burden on individuals, and may indeed be in violation of constitutional protections.  Policy that is motivated by a feeling, a perception, or a stereotype leads to inefficiency and waste.  I hope that our legislators would not do such a disservice to the state and the nation.  I too prefer that government funds are not used for drugs or to hurt innocents; however, I do not believe in throwing money at something that does not produce results and that only has an extremely minimal impact, if any at all.  Moreover, because my motivation lies in preventing drug use and government waste, I would be more apt to support a policy that requires all those that receive any sort of government benefit to submit to a drug test, in addition to all those employed by the government, including our state legislators.  However, I would then only support said policy if the size of the problem warrants the size of the solution.