by Steven Hale
In a letter to the governor, ACLU-TN executive director Hedy Weinberg urges Haslam to veto SB2580/HB2725, which would require drug-testing for Temporary Assistance for Needy Families (TANF) applicants, if they raise suspicion on a screening. Initially, the bill, sponsored by Republicans Sen. Stacey Campfield and Rep. Julia Hurley, would have required drug-testing for all TANF applicants, as well as some already receiving benefits. After two unfavorable opinions from the state's attorney general, and in light of the troubles faced by other states with similar programs, the bill was rewritten.
In the letter — here in PDF form — Weinberg says the bill "raises a number of serious constitutional concerns and risks wasting precious taxpayer dollars in a time of economic turmoil to address a nonexistent problem."
Asked by Pith if Haslam's signature would result in a lawsuit from the ACLU, Weinberg declined to be specify how they would respond.
"We remain hopeful that the governor will choose not to target the poor and will instead uphold due process and veto the bill," she wrote in an email. "If the bill does become law, ACLU will consider a range of options."
Among the ACLU's criticisms of the bill is the assertion that it "implies that there is some correlation between poverty and drug use." The letter calls that claim "baseless" and cites this 2003 journal article from the Journal of Health and Social Policy (which you'll have to pay to read).
However, this 2011 issue brief from the U.S. Department of Health and Human Services, which the letter also cites later on, says "most studies" find rates of substance abuse among TANF recipients to be "somewhat higher than those in the general population."
Still, it is true that there doesn't appear to be any solid evidence either way as to what the rate of substance abuse is among TANF recipients in Tennessee, and whether it's higher or lower than that of the general population.
A broader drug-testing program in Florida — which was halted by a federal judge and is now being contested in court — resulted in only 2 percent of welfare applicants testing positive, an amount far below what the state had anticipated. Some supporters of the proposal have argued that the low number of positive tests was due to a large amount of people — who they presume to be drug-users — deciding not to apply for benefits, rather than submit to a test.
With all that said, the argument over whether or not welfare recipients use drugs at a higher rate than the general population seems irrelevant. While that issue does reveal how stereotypes can quickly find their way into the law — a noteworthy revelation, to be sure — it doesn't answer the question of the bill's constitutionality.
The pertinent issue is whether or not the bill violates Fourth Amendment protections against unreasonable search and seizure — protections that are not voided even if a person does belong to a group that uses drugs at a higher rate than the general population. One might reasonably assume, and may well have proof, that Widespread Panic concert attendees use drugs at a higher rate than the general population. But a fan's tour T-shirt would not constitute a just cause to search his or her car. Not yet, anyway.
The argument for proposals to drug-test welfare applicants is that the people deserve to know that their tax dollars are not going to support someone's drug habit. That would also appear to be the argument that such drug-testing does not constitute an unreasonable search and seizure. Of course, most state workers are not required to take a drug test. Neither are state lawmakers, and while some have expressed support for the idea, others would rather not talk about it.
According to two separate opinions from state attorney general Robert Cooper, earlier versions of the bill did not meet the Fourth Amendment requirement. But after the rewrite, representatives from the state's Department of Human Services told a House committee that the bill was in "better shape" legally. A Haslam administration representative told the same committee that they were "deferred to the will of the legislature" on the bill.