Tuesday, February 26, 2013

Federal Court Blocks Drug Testing for TANF Recipients

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. 

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