Poverty-bashers like to forget: Drug testing for public benefits is unconstitutional

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The headlines seem to surface every few months or so: So-and-so politician wants to drug test the (choose one) unemployed/welfare recipients/food stamp families/Medicaid enrollees/public housing residents. They make a big fuss for one news cycle, for the benefit of people not using these programs--so they can bang their fist on the dinner table and say, "Damn right, my tax dollars shouldn't be going toward drug addicts!"

They leave one thing out. Every time. It's pretty funny, actually. Drug testing for public benefits? Some courts have already declared it unconstitutional. South Carolina Sen. Harvey Peeler, Sen. Orrin Hatch and anyone else who's planning to shoot their mouth off on the topic: Could you just read the rest of this article before you do? You might learn something about our nation's civil liberties.

Here's the basic premise for why you can't drug test people getting public benefits: Receiving public assistance is not reasonable suspicion of committing a crime. The fourth amendment protects us all against unreasonable searches and seizures. Being poor can't be a justification for suspending someone's civil rights.

That's what the Sixth Circuit Court of Appeals ruled in Marchwinski v. Howard, where the American Civil Liberties Union challenged the validity of a Michigan statute that requires all welfare recipients to be drug tested. The court struck down the program, saying it was unconstitutional.

The Court Hereby Grants Plaintiffs' Motion for Preliminary Injunction and enjoins
Defendant from conducting suspicionless drug testing of FIP applicants or recipients, such a practice being an unconstitutional infringement of Plaintiffs' Fourth Amendment rights.

The Supreme Court hasn't ruled specifically on this issue, but they have covered several other drug testing cases. They laid out a standard for suspicionless drug testing--that it had to be conducted on a narrow group of people where the state could show there was a serious safety risk as a reason to test--air traffic controllers, for example. They also ruled that high school students could be randomly drug tested by their schools, but not teachers. But they haven't ruled that a large, indiscriminate group of people, like all welfare recipients, could be tested.

Despite the fact that many people believe that people on public assistance are more likely to use drugs, statistics haven't actually shown that to be true. Poor people use drugs at about the same level as rich people, according to a 1996 study by the National Institute of Health. Even when the Michigan drug testing program was going on, it found levels of drug use similar to that of society as a whole.

Politicians who suggest these programs are effectively playing on stereotypes, pitting their middle-class constituents against their poor ones. But what if drug testing was necessary for all government programs? For applying for a passport, to get a student loan or to get a mortgage interest deduction on your income taxes? If poor people are no more likely to use drugs than the rich, let's make sure not even a dime of our tax dollars are going to drug addicts, no matter their tax bracket.

Of course, such a suggestion would be wildly unpopular. Which is why politicians put forth these suggestions to make headlines, promise to enact legislation and let them fall by the wayside. Their bark is bigger than their bite.

However, to rule a program unconstitutional, you have to have someone to challenge it. Which is why drug testing for public benefits, even though it's been ruled unconstitutional, still exists. In fact, it's going on right here in Chicago.

The Chicago Housing Authority drug tests residents of Lake Parc Place, a two-tower public housing development in Kenwood-Oakland. I've been told a few times by the ACLU that it would love to challenge the law, but they just need someone to stand up against it.

How well does the policy work? That's a little unclear. Late last year, I sent a Freedom of Information Act Request to CHA to ask for the number of positive drug tests at Lake Parc Place and how many subsequent evictions occurred. Their reply? The documents did not exist.

I scratched my head a little bit at that one. It was an odd reply. All the residents have to be drug tested, but no one keeps any records of it? Perhaps they're throwing all those little cups of pee into the garbage?

But maybe CHA has more in common with the politicians than I thought. Without any records of drug testing, is the policy at Lake Parc Place just for show? When it comes to actually implementing drug testing, maybe their bark is bigger than their bite.

Photo credit: Lisa Padilla 


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  • Yes, CHA is playing a game of "look, all our paperwork is in order -- everything is fine, nothing to see here!"

    Ms Megan, let me state my opinion on this if I may. To the constitutional argument I would make another one which might complicate things. Many people, including myself, would argue that public benefits are unconstitutional at the federal level (the states, counties, and cities are free to experiment with it).

    In fact, the general welfare clause used to justify them is actually specifically meant to keep the feds from doing things like this. It is meant to make sure public money cannot be taken out of one person's pocket and put in another's. "General welfare" means money cannot be targetted to benefit only one group, cannot be given to corporations, etc.

    Just because something has been done for a long time doesn't mean it's suddenly legal by default. HUD and CHA have always been unconstitutional.

    Additionally, many people's perspective on this is framed by the idea that we need these programs because without them people might have nowhere else to turn, no alternatives. Allow me to argue that our cultural memory is often very short, and society seems unable to remember how things were done before. People didn't just live in piles of garbage on the street before federal housing assistance. But the market's way of dealing with poverty is for more people to live in each building, and for buildings to have lower standards of upkeep than those of the middle class.

    In the decades after the 50s the houses of the poor were declared "substandard" and demolished wholesale throughout Chicago. We destroyed the naturally developed poor neighborhood with stately buildings and strong bones (that would enable the neighborhood to cycle back to middle class later), with the small amounts of purchasing power concentrated in dense buildings resulting in better commercial, shopping, and employment options for residents (keeping crime manageable), and the crime-reducing pride coming from cultural memory and elder residents remaining in the neighborhood.

    But we traded this kind of poor neighborhood for a far more hopeless kind. The older neighborhood anchors and the density are not advantages of section 8. Section 8 artificially increases the amount of living space per poor family (the state decides only certain conditions are "adequate"), diffusing purchasing power over a wide enough area that commerce cannot be supported. This results in lack of opportunities and therefore crime. Crime, if coupled with the exodus of commerce and remaining long enough, drives out the neighborhood anchors and leaves a shell of a neighborhood stuck in a poverty trap.

    There is a fundamental difference between the old kind of poor neighborhood and the modern "ghetto." The old neighborhoods were filled with associations and open air markets and clubs and activity and avenues out of poverty. The new ghettos simply trap the next generation.. and on and on. It is the difference between centrally planned poverty and the market solution to poor people's need for housing.
    But as with many other issues, people forget the way it used to be dealt with. For another contentious issue and the way it used to be dealt with, see this article about fraternal associations:
    http://mises.org/daily/5388/Welfare-before-the-Welfare-State

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