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Drug Testing Welfare Recipients as a Constitutional Condition

Ilan Wurman

Winston & Strawn LLP

May 2013

Stanford Law Review, Vol. 65, No. 5, 2013

In the past few years, there has been a flurry of legislative proposals in the states to require welfare recipients to submit to suspicionless drug testing. A federal district court has recently granted a preliminary injunction enjoining such a program in Florida on the grounds that the plaintiffs were likely to succeed on the merits of a Fourth Amendment claim. Only the Sixth Circuit has otherwise addressed the question, with the appellate panel disagreeing with a trial judge who also granted a preliminary injunction on Fourth Amendment grounds, and the full Circuit upholding the trial judge by an equally divided, six-to-six vote. The constitutionality of these legislative proposals is, therefore, very much open to question. All the literature written on the question of suspicionless drug testing of welfare recipients have come to the same conclusion that such testing violates the Fourth Amendment.

This Note challenges the prior and current scholarship on suspicionless drug testing of welfare recipients, and the Supreme Court’s special needs doctrine more broadly, by applying the doctrine of unconstitutional conditions to the cases. It contends that the Fourth Amendment’s special needs doctrine is insufficient, because conditioning welfare benefits on drug testing may fail the special needs test but still be a constitutional condition. This Note argues that, where the unconstitutional doctrine could otherwise apply, the doctrine is in fact necessary to apply; that doing so resolves certain contradictions and fictions that currently exist in the Fourth Amendment doctrine, while better explaining some of the Fourth Amendment cases; and that conditioning welfare on drug testing is more likely to be constitutional under the unconstitutional conditions doctrine than under the current Fourth Amendment approach, which would instead stop the inquiry with the special needs doctrine.

More specifically, the Note concludes that if there is a connection between drug use and decreased productivity or increased unemployment, absenteeism, and occupational injury, then drug testing appears a 'germane' condition to the receipt of welfare benefits and thus constitutional. If there is no such connection, however, then we might begin to question why drugs are illegal at all.

Update: A discussion on the recent Eleventh Circuit decision in Lebron v. Secretary, Florida Department of Children and Families has been added. The Note argues that the decision did not properly apply the doctrine of unconstitutional conditions.

Number of Pages in PDF File: 41

Keywords: drug testing, welfare, Lebron v. Wilkins, TANF, Fourth Amendment, special needs, unconstitutional conditions, Germaneness

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Date posted: February 6, 2013 ; Last revised: August 1, 2014

Suggested Citation

Wurman, Ilan, Drug Testing Welfare Recipients as a Constitutional Condition (May 2013). Stanford Law Review, Vol. 65, No. 5, 2013. Available at SSRN: https://ssrn.com/abstract=2212509

Contact Information

Ilan Wurman (Contact Author)
Winston & Strawn LLP ( email )
1700 K Street N.W.
Washington, DC District of Columbia (DC) 20006
United States
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