Thursday, July 28, 2011

Florida, Kentucky and Drug Testing

Conservatives have gone viral recently in places like Facebook with this simplistic little diddy on drug testing welfare reciepients:
THANK YOU FLORIDA AND KENTUCKY!!!! Florida and Kentucky the first states that will require drug testing when applying for welfare, effective July 1st! Some people are crying this is unconstitutional. How is this unconstitutional? It's OK to drug test the people who work for their money but not those who don't? Re-post if you want all states to do this.
I love their rhetorical question: How can this be unconstitution? The question is followed by a piece of misinformation: It's OK to drug test the people who work...

The truth is it's not always "OK" (I think that's code for "constitutional") to test people who work. In the private sector it's a contractional agreement that you enter into before you take a job. You enter into it voluntarily (since you could choose to go work omewhere else, instead). If you work for the government, the courts have ruled that you can be required to take drug tests if your job performance could endanger public safety. Washington can drug test air traffic controllers, but not clerical staff.

Many of the viral status updates that Conservatives circulate make perfect sense - as long as you believe the little untruth planted at the heart of them (in this case,"It's OK to drug test the people who work..."). And if you're well informed on the issue, that little piece of untruth is usually easy to spot.

The "drug test for welfare" issue has been around for a long time now. I wrote this about it over three years ago here.


Harry said...

Every Job I have accepted in the last 20+ years has required a mandatory drug test (and several have continuing mandatory drug testing), I have no problem with that, as you said its voluntary, if I want to work then I pee in the cup.
Yes I choose to work to get a paycheck, small price to pay. Now, for recipients of Welfare and other forms of public assistance, should they be required to pee in the cup to get their handout? I believe they should. They are choosing to ask for assistance, therefore the same exact voluntary aspect is in effect.

Harry Anderson

Greg_Cruey said...

And you work where: Burger King? Don't you have a graduate degree in something like nuclear engineering? I'm going to go out on a lmib and suggest that the nature of your work could possibly make it reasonable for you to be drug tested; you might meet the criteria of the special needs exception. Here's the million dollar question, Harry: Do you work for the government, or in the private sector? Here and on Facebook we continue to talk about two different things. You want to discuss whether it's RIGHT (SHOULD they be tested?) and I want to discuss whether it's LEGAL (CAN the be tested). You sound like you want to do what YOU THINK IS RIGHT, and screw what's legal or constitutional.

Ken said...

Um, Greg, don't know where YOU live, but in Democratic New Jersey, Burger King, McDonald's, and most every other place I know of requires drug testing. So for you to say"Go work someplace is" is both uninformed and a bit simple-minded. Have you seen the economy lately for one? And secondly,good luck finding someplace else to work where they don't require drug testing. I'm currently on unemployment,and would gladly take a drug test if asked. My feeling is the government has a right to ask this of everyone(and it should be asked of everyone)getting any form of assistance. My one problem with Florida is I understand they require the applicants to pay for the test. That's an unfunded mandate. Private employers pay for the testing,so should the government.

Greg_Cruey said...

Hi Ken,

If you look at my blog for more than a few minutes you'll find out that I live in the heart of Appalachia. For the last few years I've driven through the middle of a mountain top removal strip mine to get from my house in Virginia to the school I taught at in West Virginia (I’m changing schools this year). I can be in Bluefield on I-77 in 25 minutes, at the race track in Bristol in just under 90 minutes, or in Pikeville, KY in just under two hours.

Here in small town Appalachia, some fast food places test and some don't. I know of a franchise of one national chain that's discussing it. But my point to Harry was that it's not like he's flipping burgers at a hamburger chain somewhere; IF he's a government employee (I'm not certain) he probably meets the special needs exception. Maybe not.

Your problem, Ken, is simple. Like Harry, you seem to think this issue has something to do with what seems right to you at the moment, and perhaps even with how you feel about it. It doesn't. It has to do with law, and with what the law allows. Whatever your feelings, the US Constitution holds the opinion of the Supreme Court in a special regard; and the Supreme Court has said that when the government asks for your body fluids, that constitutes a search.

You can use the word "should" as many times as you like, but until that court changes its opinion (which is possible), the 4th Amendment says a government agency needs a warrant to compel a urine test. And as with Roe V. Wade today or with the Dred Scott decision of 1867, as long as that's the Court's opinion, it doesn't matter what you think should happen...

Robert said...

I work in a grocery warehouse picking up boxes and we've had random urine testing for years. New hires must agree to a hair follicle drug screen which are more expensive and track further back. Refusal simply makes them ineligible for the job. Greg, one might say necessity compels us to agree to testing for need/want of the money the job/benefits provide but we are not compelled by law to apply in either case. It is an at-will situation and we can decline at any time thus forfeiting the benefits in either situation. I don't think the question should be "Is it right?" but "Is it practical?,""Is it a good idea?,""Does it trend towards benefiting society as a whole?"
I'm not seeing a big brother problem here, it seems more like watching our nickels and dimes to me. I'm not fond of the idea of people who would draw state assistance, which by definition is a short term solution and was never meant to be generational, might use that money for illegal purposes such as drug use. This money is supposed to help them subsist while they get back on their feet. The same applies to unemployment benefits, it short term assistance.
As for the legality of it, society makes the laws to govern itself and while on the whole, they do tend to be consistent, they can change to small degrees as the needs and wants of citizens and their country change. Look at the corporate liability laws in effect post WWII and now. Very different in certain areas.
Regardless, society isn't going into these applicants homes and invading their privacy. These people are going out and asking for financial assistance and society is saying besides the usual conditions, we've added one more. Have you read the conditions should they refuse? Sheesh, to me, it sounds like there an easy go-around and I wonder how effective these drug screens will be

Greg_Cruey said...

Hi Robert,

A grocery warehouse sounds like the private sector. Ineligible; you seem to be saying that refusal is a deal breaker in the process of forming a contract between new applicants and your employer. And since your employer is part of the private sector, fair enough.

You say that no one is compelled by law to apply for a job or for benefits. That makes you and a welfare recipient similar in that way, and since you have to take a drug test… But you’re looking at the wrong side of the equation on that issue. You’re employer is not compelled to hire new workers, but governments usually are compelled by their legislatures to offer benefits. The situations are not comparable.

You seem to want to set up a conflict between the idea of what’s good for society as a whole and what’s good for individual citizens, as though individual rights can be expanded or compressed based on the needs of society. The Bill of Rights was intended to prevent that. And while society may not be going into private homes over this, the Supreme Court says it’s a search.

Do laws (and court opinions) change? I believe that I’ve already said as much. We’ve been arguing about public opinion on the issue here. Change will come with a Constitutional amendment, or when the Supreme Court modifies its opinion on the issue. In the meantime, you’re advocating the violation of someone’s 4th Amendment rights over “nickels and dimes” (your term) for society. So I’m curious: what are YOUR rights worth? If it became cost effective for society or the government, would you give up you right to, oh let’s say, freedom of religion? Or the right to own a gun? I find it distressing that you can talk about other people’s rights in terms of nickels and dimes.