Alabama Senate approves welfare drug testing

[moobu2]

Source: seattlepi.com

The bill provides that when a person applies to the state Department of Human Resources for Temporary Assistance to Needy Families, the person is suspected of using illegal drugs if they have had a drug conviction in the last five years. The person must take a drug test paid for by the state and will get the welfare benefits while awaiting the results of the drug test. If the person passes the drug test, that's it.
If the person fails, they get a warning and tested again later. If they fail again, they lose their share of the welfare benefits, but keep the children's share and they have to take a third test. If they fail that, the children's share is transferred to another person, such as a relative.
"This is an attempt to get people off drugs," Pittman said.
He said it does not involve widespread drug testing and should affect a couple of hundred people each year. The drug testing does not apply to people applying for food stamps, he said.


Read more: http://www.seattlepi.com/news/crime/article/Alabama-Senate-approves-welfare-drug-testing-4460584.php#ixzz2RQPzqycK

Read more: http://www.seattlepi.com/news/crime/article/Alabama-Senate-approves-welfare-drug-testing-4460584.php

---

Haven't other states tried this ALEC Bill and it was found to be very expensive then found to be unconstitutional?

The probable cause is that the person is suspected if they "had a drug conviction in the last five years". Will that pass the 4th amendment smell test?

The 4th amendment says....

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

[neffernin]

1. If it only affects a couple hundred people

Maybe there's a better way of spending taxpayer money of trying to get them drug free?

[frylock]

2. so tired of this shit

[RiverNoord]

13. Get used to it - it's going to get

an awful lot worse. We no longer have a 'progressive' element with any significant power in national government, or in most of the South. Progressives can't get into major office, because it's damn near impossible to run without mega-bucks, and big money pays for the whole system.

Until there's a national Constitutional Amendment blanket banning corporate funds from going toward electioneering or lobbying, it will not change. End of story.

[underpants]

3. Wow that is going to a gut shot to their economy

I mean if, as they clearly think, all the welfare people are on drugs their economy heavily relies on Uncle Sucker money.

They are going to spend a lot more on cops than they realize.

[L0oniX]

4. It will fail just like it did in Florida.

[appleannie1]

5. More money wasted on BS. Alabama has kids that only eat at school but they waste money on

stuff like this.

[olddots]

6. who makes and provides these drug tests ??????

how much do they cost ? many questions few answers .

[moobu2]

10. I bet they are lobbying hard for these drug testing laws.

they seem to be the only beneficiaries.

[Brigid]

7. Does Pittman get tested too?

And the rest of the AL senate?

[happyslug]

8. Great Law, completely constitutional and legal

The only problem is Alabama gives no money OTHER then in TANF program. Transitional Aide to Needy Family (TANF) is a joint Federal State program where the Federal Government pays 50% of the cost to families with Children under age 18. For the State to receive its 50% cost, the State Program MUST meet Federal requirements, Since the Feds will NOT approve of a State Plan with requirement for testing, the state will submit a plan with it, be rejected by the Feds, then submit a new plan with it. Most States have laws that whatever is accepted by the Feds is what the State Welfare Department will do.

Thus the State can pass a law that all people on Welfare stand on their head in the middle of the Street, and that will be the law in that state as to any non-federal aided welfare program. Most states have no such non-federal aided welfare program so such requirements are meaningless UNLESS the Federal Government agrees to them (and the Feds never will).

i.e. the state can pass this law, but it will have little or no effect on people on Welfare.

The South pays the least for welfare AND, as a general rule, do NOT pay for anyone who is NOT eligible for TANF. Other states tend to have some non-federal welfare, but none of them are proposing drug testing.

AS to single adults, the only Federal Program they are entitled to are Food Stamps, and that program, while run by State Welfare Departments, are governed by Federal Law and Federal Regulations that the States have no control over. Technically a state can say the Federal Government can NOT use its welfare system to distribute Food Stamps, but the Federal Government, as part of the Welfare program, pays the State for the use of the State Program (i.e. if the State opts out, the State loses money).

The Food Stamps program is like the Social Security program, every state can opt out of the Social Security Program. The resident of that state will no longer be able to get Social Security Payments, but they still will have to pay Social Security Taxes. FDR when he set up the Social Security Program set it up that way for they is some question as to the Constitutionality of the Social Security System, but there is no question as to the ability of the Federal Government to Tax. If someone would challenge the Constitutionality of the Social Security System, he may win, but all he will win is a lost of benefits, the Tax will remain. Thus no one attacks the Social Security System through the Court System.

The Food Stamp program was set up like the Social Security System, with the Federal Government providing all of the money (no 50-50 share like in TANF), thus states have no reason NOT to give out Food Stamps.

[Ford_Prefect]

11. Federal appeals court has ruled the same law passed in Florida and Arizona violates 4th amendment.

Which by definition makes it unconstitutional and therefore Not legal. By attaching presumed guilt of drug abuse to the class of people applying for TANF the state is violating the presumption of innocence and requiring illegal search. Furthermore the state at no time has proven the need for such action in response to known violations of the law. ( my paraphrase of the court's response.)

Bad law, unfounded in real evidence, and unconstitutional.

http://thinkprogress.org/justice/2013/02/28/1649111/federal-appeals-court-rejects-drug-testing-of-welfare-applicants/

[Comrade Grumpy]

12. This is a bit trickier, though, and is a response to such rulings.

It seeks to get around them by establishing a form of "probable cause" to test a sub set of applicants. A handful of states now have such "probable cause" welfare drug testing laws, but I haven't seen them litigated yet.

[Ford_Prefect]

14. It seems to me that probable cause still must somehow provide evidence otherwise its just hearsay.

If it could not actually generate a warrant I think it fails probable cause. You must show an act that relates directly to violation, or you must have prior behavior likely to lead to violation. Otherwise its like the argument that the presence of 2 flies in the same place proves horseshit is present.

The secondary issue is placing an excessive burden on all members of the class to prove innocence when the state has not shown likely guilt.

I know they imagine they can "bend" the law to oppress anyone but you still have to prove guilt enough to assign a warrant, unless you do something which activates the "special exceptions" we saw applied in Boston.

Just my 5 cent ideas...

[happyslug]

15. The Actual Case, was to require TANF recipents to be drug tested, not non-TANF welfare receiptents

http://www.ca11.uscourts.gov/opinions/ops/201115258.pdf

Interesting case, but notice it was restricted to TANF applications NOT welfare in general. Florida tried to require TANF recipients to be drug tested, apparently the the Administration agreed to that as part of Florida's State Plan.

Secondary, the issue was a temporary injunction NOT the final decision of the District Court. In such cases, the Court of Appeals has to defer to the Trial judge as to his determination as to who would most likely win the case at the end of the case. In the case you cite, the Trial Judge ruled in against the State of Florida and the Court of Appeals upheld that decision.

At actual trial, the Trial court may rule otherwise, and at the appeal at the end of the trial the Court of Appeal may change its decision based on the evidence presented below. Thus this is NOT a final decision, even as far as these two courts are concerned (and given the nature of the Decision I do NOT see the US Supreme Court taking on the case, if they wanted to take on such a case they will wait for a case that has gone through trial and a proper appeal after trial).

Furthermore this case should NEVER have gone to Court, the Obama Administration should have disapproved of the Plan submitted by Florida and tell them to submit a new one without the drug testing. That is all Obama's administration had to do to kill this program.

The big issue, one the Court of Appeals made an effort to work around, is consent. Florida maintains that by requiring all recipients to consent to drug testing, such testing is constitutional for they is NO constitutional right to Welfare benefits.

We turn then to the State’s alternative argument that even if we find no substantial special need supporting Florida’s mandatory drug testing of TANF recipients, the drug testing program is still constitutionally valid because it is based on consent. As noted, under Florida’s program, an applicant is required to sign an acknowledgment that he or she consents to drug testing. Accordingly, the State argues that because the drug test is administered only to those persons who have consented to the test and because a consented-to search is deemed reasonable,
Florida’s mandatory drug testing program does not run afoul of the Fourth Amendment.

We cannot say that the district court abused its discretion in concluding that the “State’s exaction of consent” failed to render the otherwise unconstitutional drug testing valid for Fourth Amendment purposes. We disagree with the State that the mandatory “consent,” which Florida’s drug-testing statute makes a condition to the receipt of benefits, is of any constitutional significance. Although a “search conducted pursuant to a valid consent is constitutionally permissible,” see Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), a valid consent means one which is “in fact, freely and voluntarily given,” see Bumper v. North Carolina,
391 U.S. 543, 548 (1968). The State’s assertion that the “consent” that is provided by TANF applicants renders the drug testing reasonable for Fourth Amendment purposes is belied by Supreme Court precedent, which has invalidated searches premised on consent where it has been shown that consent “was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” See Johnson v. United States, 333 U.S. 10, 13 (1948) (holding as invalid a search of defendant’s home which “was demanded under color of office” even though the government officials did not possess a search warrant); see also Bumper, 391 U.S. at 548–49 (“[The government’s] burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”); Amos v. United States, 255 U.S. 313, 317 (1921) (“The contention that the constitutional rights of defendant were waived when his wife admitted to his home the government officers, who came, without warrant, demanding admission to make search of it under government authority, cannot be entertained. . . . t is perfectly clear that under the implied coercion here presented, no such
waiver was intended or effected.”).

By informing TANF applicants that the drug test is one of many conditions to receiving this government-issued benefit and that the applicant’s refusal to give consent means that he is ineligible to receive TANF assistance, the State conveys a message that it has the unfettered lawful authority to require such drug testing—period. But it does not and can only do so upon a showing of individualized suspicion or a special need beyond the need for normal law enforcement, both of which are absent in Florida’s drug testing program. Accordingly, a TANF
applicant’s “consent” to the testing by signing a form waiving his constitutional rights amounts to nothing more than “submission to authority rather than . . . an understanding and intentional waiver of a constitutional right.” Johnson, 333 U.S. at 13.We note that even though each of the drug testing regimes in Skinner, Von Raab, Vernonia, Chandler, and Earls required the affected employees, students or political office candidates to “consent” to the drug testing in order to maintain employment, participate in school activities or gain access to the ballot, the
Supreme Court has never held that such drug testing regimes were constitutionally reasonable because of consent. Instead, every time that the Supreme Court has been asked to address the validity of a government mandated drug testing policy, it has applied the same special needs analysis and reasonableness balancing, whether upholding or rejecting those policies. Simply put, we have no reason to conclude that the constitutional validity of a mandated drug testing regime is satisfied by the Case: 11-15258 Date Filed: 02/26/2013 Page: 24 of 38 25
fact that a state requiresthe affected population to “consent” to the testing in order to gain access or retain a desired benefit.

The State’s reliance on Wyman v. James, 400 U.S. 309 (1971)to support its contention that the mandatory consent here renders the drug testing reasonable for Fourth Amendment purposes is misplaced. Fundamentally, Wyman is inapplicable to whether Florida’s drug testing of TANF applicants is a constitutionally reasonable search. In Wyman, the Court addressed whether the State of New York could make home visits by state welfare workers a mandatory condition to the initial or ongoing receipt of Aid to Families with Dependent Children (“AFDC”) benefits, or whether the recipient could refuse entry to her home without risking eligibility for benefits. 400 U.S. at 310. The recipient argued, among other grounds, that the state welfare worker’s home visit was a search subject to the requirements of the Fourth Amendment. Id. at 313. Although the Court acknowledged the principle that “a search of private property without proper consent is unreasonable unless it has been authorized by a valid warrant,” it concluded that “[t]his natural and quite proper protective attitude, however, is not a factor in this case.” Id. at 317 (emphasis added). Instead, the Court went on to hold that the state welfare worker’s home visit was not a search, and thus the Fourth Amendment or any of its requirements or protections did not matter. “[W]e Case: 11-15258 Date Filed: 02/26/2013 Page: 25 of 38 26
are not concerned here with any search by the New York social service agency in the Fourth Amendment meaning of that term.” Id.

Notice the Court of Appeals accepted consent would permit such drug testings, but then says consent agreed to, to get welfare benefit, is not consent. The problem with that is the cases the Court pf Appeals relies on either is someone agreeing to a search, when a Police Officer said he had the right to search without his permission OR Consent was required to agree to do certain types of employment, due to students wanting to do after school activities or be on the ballot. The Court of Appeals down plays that only the Drug testing of people who wanted to be on ballot was struck down by the Supreme Court (and that had First Amendment and Election issues involved and for those reasons the Supreme Court ruled unconstitutional the drug testing of people on the ballot, while upholding mandatory testing of employees and students who wanted to do after school activities). The Court cite the Drug Testing of Students for After School Activities and of Employees but then said those decision was decided on a balancing test by the Supreme Court between such activities and the desire for drug testing.

The Court of Appeals rejected the idea that drug testing of Welfare applicants was more like drug testing of Students who wanted to perform after School Activities (i.e. Such Students had to Consent to drug testing to do the after school activities which were NOT mandated by the School) or the drug testing of employees (having to consent to drug testing to be hired). The State of Florida position was that agreeing to apply for welfare is a VOLUNTARY ACT like wanting to due after school activities or being employed. Economic distress is NOT legal Distress and thus if you want to apply for Welfare benefits that is a VOLUNTARY act and the state can say to get Welfare Benefits such Voluntary welfare Applicants must consent to drug testing.

The Court of Appeals goes out of its way to reject this position, but it is a position supported by the US Supreme Court Decisions as to after school activities and employment. The Court of Appeals then ends up attacking n Wyman v. James, 400 U.S. 309 (1971), where the US Supreme Court upheld a State Welfare Requirement that welfare recipents permit welfare workers into their home. The US Supreme Court ruled in Wyman that when a case worker goes to a welfare recipients home that is NOT a search, as that term is used in the Fourth Amendment, but a reasonable part of the welfare program and thus the consent to the visit was NOT a violation of the Fourth Amendment.

Wyman v. James, 400 U.S. 309 (1971):
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=400&invol=309

The Court of Appeals, says Wyman did not involved a "Search" while a drug test is clearly a "search". The problem is the US Supreme Court NEVER calls the visit by the Welfare worker anything, the US Supreme Court just says it is permitted under the Fourth Amendment. Thus while the Court of Appeals says Wyman was NOT a Search, reading Wyman it appears the US Supreme Court considered it a "Search" but one permitted under the Fourth Amendment as part of the requirements to get Welfare. i.e. applying for Welfare included an consent for such a search.

This possibility was mentioned by the Court of Appeals, and then rejected by them:

Thus, when the Court in Wyman noted that the home visit was not forced or compelled, that the denial of permission to enter the home was not a criminal act, and that the withholding of consent resulted in no home visit and the cessation of welfare benefits, it made these statements to explain why it reached its holding that the welfare home visit is not a Fourth Amendment search. Wyman, 400 U.S. at 317–18. It simply never reached the question of whether, and under what conditions, a mandatory “consent” could render an actual Fourth Amendment search reasonable.

Notice the Court of Appeals interpretation of Wyman, The Court of Appeal acknowledge that under Wyman, a refusal to permit a search would lead to termination of benefits but requiring the welfare recipient to consent to such a search was not a consent. With the Florida demand for drug testing, they is NO demand for drug testing, only it has to be done to get Welfare benefits. This is the same as in Wyman, in Wyman no visit, not benefits, in Florida, no testing No benefits.

The Court of Appeals then refers to BAILEY v. STATE OF ALABAMA, 219 U.S. 219 (1911) and Speiser v. Randall - 357 U.S. 513 (1958). Bailey is simply a decision that when you have a Federal Law that forbids States from adopting laws imposing work on people, the States can NOT bypass that law through its rule of Civil procedures that ends up imposing work on people when they violate a contract of labor with another person. Again not an issue of Consent, but an issue of forced labor (Which is prohibited by the 13th amendment).

Speiser was a case based on the First Amendment, the Court ruled a state can NOT force someone to violate their first amendment rights to get a State Benefit. The problem is the Florida law, while a Federal-State benefit, is NOT a violation of the First Amendment. The constitutional provision in question is the Fourth. No one is requiring the Recipient to say or do anything EXCEPT to consent to a drug test.

BAILEY v. STATE OF ALABAMA, 219 U.S. 219 (1911)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=219&invol=219

Speiser v. Randall - 357 U.S. 513 (1958)
http://supreme.justia.com/cases/federal/us/357/513/case.html

The court also quotes from Perry v. Sindermann, 408 U.S. 593 but then only the first phase of a sentence that goes on to say the issue was a freedom of Speech issue only:

It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." Speiser v. Randall, 357 U.S. 513, 526. Such interference with constitutional rights is impermissible.

Notice the concern is on SPEECH and ASSOCIATIONS NOT Searches. The Court of Appeals just hangs its head on these Freedom of Speech cases in a case involving consent to a "search" to obtaining Government benefits. They see no difference, for to see any you have to ignore the US Superme Court Decisions as to Student Activities and Employees.

Perry v. Sindermann, 408 U.S. 593
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0593_ZO.html

Thus, I see the US Supreme Court reversing the Court of Appeals, IF OBAMA CONTINUES TO AGREE TO THESE RESTRICTIONS IN THE STATE PLANS FOR WELFARE. The place to stop this action is in the Federal Government review of the State Plans submitted to the Federal Government. All the Federal Government has to do, is NOT agree to those terms as part of the State Plan and reject the plan.

Case where the US Supreme Court permitted Drug Testing of Students who wanted to do after school programs, BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 92 OF POTTAWATOMIE COUNTY et al. v. EARLS et al.:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=01-332

Case where the Court ruled a state can NOT require drug testing for a candidate to be on the Ballot: WALKER L. CHANDLER, et al., PETITIONERS v. ZELL D. MILLER, GOVERNOR OF GEORGIA, et al.:
http://www.law.cornell.edu/supct/html/96-126.ZS.html

Case upholding Drug Testing of Airport Federal Employees:
Nat'l Treas. Emp. Union v. Von Raab, 489 U.S. 656 (1989):
http://supreme.justia.com/cases/federal/us/489/656/case.html

Case upholding drug testing of Railroad workers:
Skinner v. Railway Lab. Execs. Ass'n - 489 U.S. 602 (1989)
http://supreme.justia.com/cases/federal/us/489/602/case.html


Case upholding the right of School to require drug testing of student athletes:
Vernonia Sch. Dist. 47J v. Acton (94-590), 515 U.S. 646 (1995).
http://www.law.cornell.edu/supct/html/94-590.ZO.html

Side note: My original comment reflected the ability of the Federal Government to reject these proposal as part of the State's Plan submitted to the Federal Government. I did not know that Florida had actually done so AND THE OBAMA ADMINISTRATION HAD ACCEPTED IT. My position is that the Federal Government can end this administratively very quickly, by rejected any State plan with such a proposal in it. The State will either face losing all benefits OR drop the testing. Given the economy dropping benefits any more then they have would be harder then submitting a plan without the testing (Through you will never know with a GOP controlled State Legislature).

[Ford_Prefect]

16. Wow, what a mess. Would this then apply to ALL recipients even those previously approved?

It does seem that someone should have seen your argument about federal program approval.

I do wonder if we are not being played by both sides. The Obama Administration allowing the GOP to make enemies by passing such programs, and then arguing against it in public and in court, makes better political drama than simply using a bureaucratic NO. Of course bureaucratic refusal also looks like the kind of over-reaching Federal authority the Tea Party howls about, so it could play out to either side regardless.

I don't recall this administration seeming terribly wise about dealing with this kind of bullying. They frequently seem to avoid confronting it, or stumble over methodology where another president would exercise more tactical sense or better control of Federal authority. But then we have a president and administration who seem far more sensitive to confrontation and to potential negative press than I can recall seeing in office in the last 60 years. I guess that may be the effect of the president's political allies in big banking and other areas. What's good for General Bullmoose may be the talk loudly (when it is convenient) but carry a small stick approach?

[happyslug]

21. Yes, we need an LBJ or a Truman, and we have a FDR or worse a Cleveland

FDR has an excellent reputation do to the fact he only had to deal with Democratic Controlled Congresses (and then with overwhelming Democratic Control of Both houses). FDR rarely had to crack the whip (and when he did, it was mostly to keep the left wing of the party in line, After 1936 he was less tolerate of the right wing but he never truly embraced the left wing of the party even after 1936). FDR thus tended to accommodate the Right wing of the Democratic Party, reserving his veto power to veto bills supported by the Left wing (Which included paying the WWI bonus early, FDR veto the bill to do so, but his Veto was overridden by Congress, with even Republican voting to override that Veto).

LBJ had a less compliant Congress (With a lot of soon to be Republican who were still Democrats at that time period). LBJ decision to fight the longest Filibuster in History to get the Civil Rights Bill passed is something both JFK and Obama (as while as Clinton) would have avoided. The problem with Washington right now is we need a LBJ or a Truman, someone who can bend with the wind (as both Truman and LBJ did during their administration, for example LBJ's expansion of the War in Vietnam, something the GOP pushed and most Americans agreed with till 1968 when LBJ started to reduce the number of troops in Vietnam) AND also fight against that wind when they can (LBJ and the Civil Rights Act, his "Great Society Programs", Truman and his efforts to get the economy return to a peacetime economy without a major depression, the first efforts on Civil Rights and his defense of labor with his veto of the Taff-Hartly act).

[Turbineguy]

9. Next:

"Boys, we gonna re-invent the flat tire!"

[AngryOldDem]

17. Add Indiana to that list.

And what is galling -- and I think they may have had a flash of compassion and took this out of the bill, but I'm not sure -- Indiana would deny benefits to the children of those people who test positive.

This is unconstitutional, and I've heard that it will most likely be struck down as such. But never let that get in the way of a good Right wing overreach.

[sakabatou]

18. *facepalm*

[Ford_Prefect]

19. Soon to be seen in North Carolina.

Ever backwards into the middle ages,
always swearing God speaks through them,
rode the mighty Tea Party of GOP,
and they were as a plague upon the land.

[LannyDeVaney]

20. The is the second crazy bill they've passed in a few months by "cheating"...

They recently got a bill through providing tax credits to private schooled families in public school districts with "failing" public schools. (I won't cover the definition of failing here ... different topic).

This bill was passed last night in a similar manner - they use some procedural trick to get it through when nobody is in the chamber to vote against it. The school bill was actually modified in committee against what was voted on, while this bill was voted on after adjournment (I have no idea how they get away with this, but the Alabama state government is just horrible in nearly all respects). We are basically a hood-wearing cross-burning theocracy. I'm surprised we haven't made the Klu Klux Klam some sort of state animal.