Although random drug testing has not been a big issue over the past few years, Florida is determined to bring it back to life. This past week, Florida adopted two new drug testing requirements: one imposed on welfare recipients and the other on state employees. The irony is that these quintessential illustrations of Big Government were promoted by the Tea Party and one of its darlings, Governor Rick Scott.
Wasn't the Tea Party all about restoring limits on our government and protecting our constitutional rights?
The U.S. Supreme Court has repeatedly held that government-mandated drug testing is a "search" governed by the Fourth Amendment to the Constitution. That provision says in part: "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 mandates that government have "probable cause" before a search warrant is authorized. Random drug testing is what is known as a "suspicion-less" search. Even without probable cause to believe the person required to pee in a cup has done anything wrong, he or she is forced to turn over bodily fluids for government inspection.
The Supreme Court has upheld the ability of government to mandate random drug tests in a few limited circumstances. The earliest cases held that people with sensitive government jobs in high-risk public safety environments, like railroad operators, or involving national security, like border and customs agents, could be required to submit to testing. The Court's most expansive ruling allowed public high schools to randomly test student athletes, even though the public safety concerns weren't nearly as apparent.
High school students, however, have historically enjoyed fewer constitutional protections than mature adults, and courts have generally frowned upon random drug testing of them. Indeed, courts have stuck down policies just like the ones put in place by Florida this week. (See, for example, here and here.)
Governor Scott insists the drug tests are necessary to insure that recipients of welfare payments don't use that money to commit crimes, like purchasing drugs. He adds that taxpayers shouldn't be required to finance someone's drug habit.
Yet the government almost always has decent reasons to justify an invasion of personal privacy. The question for Scott and the Tea Party is why are these reasons sufficient to support an expansion of government--especially when other compelling public policy reasons, like fixing our healthcare mess or restricting access to guns by people who can't pass a background check aren't?
Perhaps the Tea Party is not the shiny new force for libertarianism on the American political scene it often claims. Promoting big government when it comes to moral and cultural issues makes the Tea Party seem like just the latest incarnation of the New Right and the Moral Majority so popular in the 1980s and '90s.
And it's not just outlier elected officials in Florida. Some in Congress have proposed a similar bill to require drug testing of all federal welfare recipients. It's unlikely to pass--and even if it does, that law, like Florida's, is almost certain to be struck down in court.
Which raises another question for the Tea Party. If the goal is to reduce government expenditures and protect taxpayer money, why are we passing laws that will cost the government valuable resources to defend even though they are almost certain to be invalidated?