Legal, Payment Questions Linger on Welfare Drug Testing Bill

Legislation calling for drug testing of welfare applicants leaves unclear who will pay for the tests, reports the Tennessean, and it could face a court challenge from the ACLU or others.
The legislation’s latest fiscal note said TANF beneficiaries would cover the costs of the drug tests, estimated at one time to be around $30 apiece. But its Senate sponsor, Sen. Stacey Campfield, R-Knoxville, said after the bill passed that the Department of Human Services would try to help people pay for screenings and possibly the drug tests. A DHS official, Valisa Thompson, said development of the program will not start until July, so nothing specific about it has been determined — including who will bear what costs.
“The department will develop the plan with a goal of minimizing financial impact for all parties,” Thompson said in a statement.
But even as officials develop an implementation plan for the program — estimated to cost more than $200,000 on average in each of the next three years — they may have to confront constitutional questions.
…(Attorney General Bob) Cooper has yet to weigh in formally on the current bill, but others say the new law might not withstand a constitutional challenge.
“I don’t think it comes close. It’s undefined and unspecified,” said Ed Rubin, a professor of law and political science at Vanderbilt University. “It just allows for general surveillance. It doesn’t provide any probable cause, which is required by the Fourth Amendment.”
Rubin said that while the Fourth Amendment does allow people seeking certain jobs, such as airplane pilots and machinery operators, to undergo mandatory drug tests, cases like these occur when public safety is at stake.
“That rationale is completely lacking here,” he said. “There is no plausible public safety argument from the general Fourth Amendment.”
The legislation also has drawn criticism from the Tennessee chapter of the American Civil Liberties Union, which sent a letter to the governor calling the bill into question and urging Haslam to veto it.
The organization has not yet decided to sue the state, said Hedy Weinberg, executive director for the ACLU’s Tennessee chapter. State chapters of the ACLU sued over similar legislation in Florida and Michigan. The state already expects to spend more than $100,000 in legal costs, according to the bill’s fiscal note.
Weinberg said the legislation lacks clear guidelines and needs clarification, including its implementation policy and treatment referral process, but still might not pass the legal test.
“The bottom line is that it targets a certain socioeconomic group of people without suspicion or probable cause,” she said.

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