A federal appeals court Tuesday agreed to block enforcement
of a Florida law that requires people who apply for welfare to submit to drug
testing, calling it an unreasonable search.
“The simple act of seeking public assistance does not
deprive a TANF applicant of the same constitutional protection from
unreasonable searches that all other citizens enjoy,” the judges said.
“I am thrilled for Luis and his family, and for the
thousands of class members he represents, that yet another court has affirmed
that all of us are protected from unreasonable, invasive, suspicion-less
searches,” Maria Kayanan, associate legal director for the ACLU of Florida,
said in a statement. “The state of Florida can’t treat an entire segment of our
community like suspected criminals simply because they are poor and are trying
to get temporary assistance from the government to support their families.”
I disagree with the ACLU and the court on this one.
First, the Fourth Amendment is a cornerstone of our criminal
law and procedure. It is a critical
safeguard against the power of the state to arrest, and to confiscate private
property. Outside of the context of criminal
law, one doesn’t see or hear much of the 4th Amendment but the
principles are enduring and essential to safeguard our private property.
Second, the “simple act of seeking public assistance” has
all of the earmarks of a contract. AN offer, followed by an acceptance, with
specified terms and performance obligations, for a legal transfer between
competent parties. The only element
arguably missing is the want of
“consideration” which is the quid pro quo (something for something, or
“this for that”) requirement . Consideration may be found when a party to the
contract performs an act, or refrains from performing an act that he is
otherwise entitled to perform. Making
application for someone else’s money
should, as a matter of conscience and morality, demand something in return.
Especially when the recipient is not required to pay back the money (s)he
receives.
Third, the application of the word “unreasonable”, taken from its criminal
context and plunked down into a civil context, seems to me intellectually
dishonest and morally reprehensible.
What is “unreasonable” about requiring the recipient of a “gift’ to meet
a minor condition?
Judge Rosemary Barkett said in the ruling that the state
failed to prove that there was any reason to treat poor families in Florida as
more likely to be drug users.
Right. What attorney out there,
especially a state attorney, is going to make the case that (1) Blacks make up
a disproportionate number of TANF recipients, and (2) Blacks also make up a
disproportionate number of persons incarcerated for drug offenses. No elected
official, nor anyone who works for an elected official, nor anyone in
government is EVER going to make that assertion, regardless of the facts. But more importantly, why is that even the focus? It should be a simple, non biased,
non-racial, accounting procedure. The government, using tax money coerced from
its working citizens, determines to re-allocate this money to its non-working
citizens, ostensibly for furtherance of some valid (this being a highly
subjective term) public policy goal. To
insure that the government maintains itself as the steward of the “common
wealth” it owes a duty to the “donors” to maximize effect use by the “donee”s.
Why should re-distribution of the “common wealth” NOT
consider drug use as a “deal-breaker” ?
Since being poor is not a crime, then why are we using criminal
procedure concepts to regulate (or fail to regulate) what is essentially a civil transaction by
and between consenting adults.
The article concluded with this:
“In 2011, Florida Gov. Rick Scott, a Republican, issued an
executive order requiring state employees to undergo mandatory drug tests as
well. A federal judge also blocked that move.” I ask the same question, using
the same logic. I used to be a Florida
employee. I have also been an employee in several other states. Nobody, no person, no government, no entity
OWES me a job. I agree to work under the
conditions, and to the performance stands my employer requires. ESPECIALLY when
I am being paid public dollars, the public has a right expect that their (our)
money is getting the best employee that they can get for that money. Asking me
to take drug test is NOT an infringement on My rights as an employee. Rather,
not requiring a drug test for public employees is an infringement on my right
as a taxpayer.
JAS
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