On February 26, 2013, a panel of the US Court of Appeals for the Eleventh Circuit preliminarily found in Lebron v. Florida Department of Children and Families that suspicionless drug testing of welfare recipients is unconstitutional under the Fourth Amendment, and that requiring consent to such testing as a condition of receiving welfare violates the doctrine of unconstitutional conditions. More specifically, the court upheld the US District Court for the Middle District of Florida ruling on the ground that it did not abuse its discretion in finding the plaintiffs likely to succeed on the merits of their claim. Thus, Florida's recently enacted drug testing program must be suspended. The program required all applicants for Temporary Assistance for Needy Families (TANF) to pay for a urinalysis. If the results were positive, applicants would become ineligible to receive TANF benefits for one year.
In a forthcoming note in the Stanford Law Review, I argue that, under current Fourth Amendment doctrine, drug testing welfare recipients is indeed unconstitutional. The doctrine of unconstitutional conditions, however, requires a different analysis under which conditioning welfare on consent to such testing may very well be a constitutional condition. No court until the Eleventh Circuit panel has addressed this doctrine in this context; and, unfortunately, the Eleventh Circuit misunderstood and misapplied the doctrine. This doctrine arises when the government offers a benefit that it is "permitted but not compelled to provide" such as direct subsidies or exemptions from regulation or taxation conditioned on the recipient of the benefit performing or foregoing an activity which he has autonomous choice to participate in and which "a preferred constitutional right normally protects from government interference." There must be a connection, however, between the condition and the benefit; this requirement is usually described as "germaneness."
The germaneness inquiry is intuitive: is the reason the government attaches the condition a reason for which it might refuse to offer the benefit altogether? For example, in Nollan v. California Coastal Commission, California informed the owners of a beachfront property that the state would only grant their building permit on "the condition that they allow the public an easement to pass across a portion of their property," which "would make it easier for the public to get to [neighboring areas]." The question was whether this was a constitutional condition. The Court answered that if the state had desired to seize a portion of the property for the purpose of protecting the public's right to view the ocean the same reason for which it could legitimately deny the building permit altogether then the condition would pass constitutional muster:
[T]he Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end.But if the purpose was unrelated, the condition was merely extortion.
A key case in the welfare area is Lyng v. International Union, UAW in which the Court upheld a 1981 amendment to the Food Stamp Act that denied eligibility to anyone engaged in a strike and denied increased allotments if a decrease in income resulted from striking. Striking is a First Amendment right, but the Court held that the law did not have a "substantial impact on any fundamental interest" and thus did not unduly coerce individuals to forgo exercising their rights. Rather, the law "merely declines to extend additional food stamp assistance to striking individuals simply because the decision to strike inevitably leads to a decline in their income." Though the Court did not use the language of germaneness, the conclusion must be that the condition on benefits is germane: because the government could deny benefits on the ground that a recipient willfully reduces his income, it can grant the benefit on the specific condition that the recipient not take such actions, even if that means forgoing a constitutional right.
We are now in a position to understand the Eleventh Circuit's discussion of unconstitutional conditions in Lebron. The panel restated the district court's holding that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests." This proposition is not, however, the thrust of the doctrine, which permits some denying of benefits even when constitutionally protected interests are at stake. Indeed, the panel quoted a US Supreme Court case, Dolan v. City of Tigard, that should have provided better guidance:
Under the well-settled doctrine of 'unconstitutional conditions,' the government may not require a person to give up a constitutional right ... in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to [the right].This is precisely right: the government may not do so where the benefit sought has little or no relationship to the right. When the benefit does have a relationship to the right, the government may, perhaps, withhold the benefit.
The panel cites some decisions to buttress its initial statement that the government simply may not condition the benefit on forgoing a constitutional right; but in all of the cited cases, the issue was either that the germaneness requirement was not met or that the right at issue was too significantly burdened. It is insufficient to determine the outcome of the unconstitutional conditions analysis by citing only to those cases in which the condition was, in fact, found to be unconstitutional and ignoring those in which a condition was upheld.
The concurring opinion in Lebron was more forthright in concluding that the unconstitutional conditions doctrine is muddled and unclear, and hence emphasizes that the panel's holding is no more than that the district court did not abuse its discretion by finding a likely violation of the unconstitutional conditions doctrine. The Supreme Court's holding in Perry v. Sindermann, seems to be particularly determinative for the concurring judgeand for the majority, which also quoted itwhich made the blanket statement that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests[.]" Yet Perry is hardly the only case on unconstitutional conditions.
Perry can stand for nothing more than the proposition that in the context of public employment of college professors, requiring that the employee accept an infringement on his rights to free speech is an unconstitutional condition. In an article titled Unconstitutional Conditions, former Stanford Law Dean Kathleen Sullivan surveys Perry and other public employment cases, and concludes that the government may sometimes deny First Amendment rights to public employees as a condition of employment, even if it could not do so in Perry:
Other conditions on public employee speech also may be upheld because some overriding government purpose justifies them, not because they do not pressure rights. Although the Court has held that the first amendment bars the state from firing public employees for speaking out on matters of public concern, and to bar dismissal from nonpolicymaking government jobs based on political affiliation, it has upheld restrictions on speech or political association that would destroy workplace electoral neutrality, or would impair 'the efficiency of the public services the state performs through its employees,' by, for example, exacerbating labor grievances ... [S]uch conditions [in the latter decisions] should be treated as infringing speech and thus in need of strong justification, but as arguably justified by the need for an efficient or depoliticized bureaucracy.Early cases did, in fact, permit the government to infringe upon the first amendment rights of public employees. As Justice Oliver Wendell Holmes said in perhaps the most famous of the earlier cases, McAuliffe v. Mayor of New Bedford, that a policeman "may have a constitutional right to talk politics but he has no constitutional right to be a policeman." Sullivan writes that Perry and a long line of other cases have held "that government may not sanction employees for speech on matters of public concern," and thus tempered Holmes' notion "that government may condition employment on silence that it could not constitutionally require of ordinary citizens." But while it is an unconstitutional condition to deny political speech rights to public employees, it does not follow that any condition that infringes upon constitutional rights is an unconstitutional condition.
My forthcoming Stanford Law Review note explains how these cases when applied in the drug testing context are better explained and certain contradictions in Fourth Amendment doctrine are resolved. For present purposes, it is sufficient to point out how the doctrine examined above would apply to drug testing welfare recipients: for what purposes may the government deny welfare benefits generally? Does conditioning the receipt of these benefits on drug testing further this purpose? It seems that there are only two coherent positions one can adopt. Either drugs do have an impact on productivity, unemployment and absenteeism, and the condition of a drug search is germane, or they do not have such impacts and are not germane. But if one adopts the latter position, one must also question why drug use is illegal at all. The entire premise of criminalizing drug use is that there is some societal harm in that use. The most common arguments for criminalization are either that drug users harm others (and themselves) or they become less productive members of society.
If the aim of public welfare is to help the poor become self-sufficient and productive members of society, then, it seems to this author, all of the stated reasons why drugs should be illegal suggest that the drug search condition might be germane and, thus, constitutional.
Suggested citation: Ilan Wurman, Unconstitutional Conditions and Drug Testing Welfare Recipients , JURIST - Dateline, Mar. 13, 2013, http://jurist.org/dateline/2013/03/ilan-wurman-drug-testing.php
This article was prepared for publication by Endia Vereen, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org