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Why the government can't require drug testing for benefits

1/3/2014

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On Tuesday, December 31, a federal judge in Florida struck down that state's law requiring drug testing of all welfare recipients.  The law had only been in effect for less than four months when the judge issued an injunction preventing the law from being enforced, while she decided the merits of the case.  Gov. Rick Scott has already announced that he will appeal the ruling.

This ruling highlights the debate over the issue of government drug testing for recipients of welfare and other benefits.  Why can't the welfare recipient be required to pass a drug test to get a check from public funds, while a working person can be required to pass a drug test to get a paycheck?  The answer lies in the Constitution.

The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Basically, this means that any time the government wants to search your person, house, papers, or effects, it has to provide specific evidence to show that the search will provide evidence of illegal activity.  And Judge Scriven apparently felt that being poor and seeking government assistance does not constitute good evidence.

But if being poor isn't sufficient evidence to require a drug test, then how does having a job count as sufficient evidence?  Simply put, it doesn't.  The Constitution does not regulate the conduct of private entities (with an exception that just doesn't apply here).  So, a private company can require drug tests of its employees, and the Fourth Amendment won't stop it.  It will stop the government, though -- the government is not allowed to randomly drug test its employees unless they are in a sensitive position or do something to raise the suspicion that they are under the influence.  It may seem unfair that poor people can collect money from the government without jumping through the hoops that middle-class workers must, but it is constitutional.

By Chris Wencker

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A recall election is not unconstitutional.

4/24/2013

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Some of Sheriff Joe Arpaio's supporters have filed a lawsuit against the campaign seeking to recall the Sheriff.  Some of his supporters also have claimed that the recall effort is "an unconstitutional attempt to harass him."  This couldn't be less true.

Arguments like this are, unfortunately, far too common.  When someone doesn't like what another person or group is doing, he or she often claims that the behavior is "unconstitutional."  First, the U.S. Constitution applies only to government activity (with the exception of the 13th Amendment's prohibition of slavery), so the efforts of a group of private individuals cannot be unconstitutional.

Second, the recall is proceeding according to state statutes setting out the procedures for a recall election.  Whenever there is a procedure such as this, it generally constitutes what is called "due process of law."  (In this case, it would be specified as "procedural due process.")  Such procedures are constitutional unless they have absolutely no reasonable basis.  Here, Arizona's recall statutes are fair and evenly applied.  There is no reason to claim that they are unconstitutional.

Those are the two primary reasons that Sheriff Joe's supporters are wrong.  There are other reasons (including the fact that Sheriff Joe has no constitutional right to remain in office without facing a recall, and the fact that the citizens' right to hold a recall election is set forth in the Arizona Constitution, among others), but these suffice.  Is the recall petition drive something that harasses him?  Perhaps.  But it cannot be considered unconstitutional.

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    Chris Wencker has been advising and representing local and small government entities for as long as he has been an attorney.  He has represented cities, towns, fire districts, and occasionally other special taxing districts.  Chris has a firm understanding of the extent and limits of government power.

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