My adopted state of Florida is once again in the news. This time, we are making headlines for a law that requires recipients of temporary cash assistance to undergo drug testing.
Although this new law is getting the most attention, the state also now requires its agencies to randomly test state workers and that all new hires be subject to a drug test.
There are three main arguments in favor of these laws.
First, it has been claimed that Floridians support the testing of public employees. Since this is a democracy, an appeal to what people believe or want need not be fallacious. Of course, even if it is assumed that most people support these laws, it hardly follows that the laws are just, correct or constitutional. To think otherwise would, of course, be to fall victim to an appeal to belief.
Second, there is the appeal to the private sector’s use of drug testing. Private businesses routinely screen employees for drug use and can fire people who fail. If the private sector can do this, then it would seem to be reasonable for the state to do this as well. Given the impact of drug use on a person’s work performance, it does seem reasonable to test for drugs and this does provide support for the law being reasonable.
In reply, there is a rather important distinction between the private sector and the state. To be specific, the Fourth Amendment guarantees the right not to be subject to an unreasonable search. The Supreme Court has consistently held that drug testing by the government cannot be done without either reasonable suspicion or in certain special cases (for example, cases in which drug testing is needed to ensure safety). As such, these across the board drug tests would certainly seem to be unconstitutional. After all, the state must abide by the constitution even when it is acting in the role as employer-it does not get special exemptions from the constitution simply because someone wants to emulate business practices.
Third, there is the concern that state money would be used to support drug addicts. Given the limited resources available to the state, it certainly seems reasonable to check to see if money is going to someone who is likely to use it for drugs.
In reply, this also seems likely to run afoul of the constitution since being in need of welfare is not adequate grounds for suspicion that a person is using drugs. There is also the concern that it would set a precedent for denying people benefits based on disliked behavior. For example, it is easy enough to imagine a law that requires female welfare recipients to be checked to see if they have had an abortion.
There are also practical concerns with these laws. One is, of course, the cost of this drug testing. While this will be a nice chunk of cash for whatever contractor is handling the tests, it will cost the state. An obvious question is whether or not the testing is worth the cost. A second practical concern is the impact on morale from random drug tests. Of course, the obvious reply is that private sector employees are routinely assumed to be drug abusers and hence it should have no more negative impact in the public sector than it has in the private sector. A third concern is that the tests do not test for legal drugs that are commonly abused and are highly detrimental. Of course, this reflects the inconsistent approach we take to drugs.
As a final point, it would seem that consistency would require that elected officials be tested for drugs as well. If they fail a drug test, then they should be immediately denied their salaries. After all, we would not want any state money going to drug users. They should also probably be fired on the spot. After all, if testing state employees and welfare recipients is good and just, then the testing of the politicians who passed and signed such laws would be equally good and just (if not more so). Naturally, any arguments that the politicians give against being tested should apply to everyone else as well. After all, they are public employees and receive money from the state. “Time to pee in a cup, Governor Scott. Please don’t Tweet it, though.”