For decades, federal policymakers and state administrators of governmental assistance programs, such as the Temporary Assistance for Needy Families (TANF) block grants (formerly Aid to Families with Dependent Children (AFDC)), the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), the Section 8 Housing Choice Voucher program, and their precursors, have expressed concern about the “moral character” and worthiness of beneficiaries. For example, the Anti-Drug Abuse Act of 1988 made individuals who have three or more convictions for certain drug-related offenses permanently ineligible for various federal benefits. A provision in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 went a step further by explicitly authorizing states to test TANF beneficiaries for illicit drug use and to sanction recipients who test positive. Some policymakers have shown a renewed interest in conditioning the receipt of governmental benefits on passing drug tests. For example, in February 2012, the President signed into law an amendment to the Social Security Act that authorizes states to condition the receipt of certain unemployment compensation benefits on passing drug tests. Additionally, lawmakers in a majority of states reportedly proposed legislation in 2011, 2012, and 2013 that would require drug testing beneficiaries of governmental assistance under certain circumstances, while at least nine state governments over that time have enacted such legislation.
Federal or state laws that condition the initial or ongoing receipt of governmental benefits on passing drug tests without regard to individualized suspicion of illicit drug use may be subject to constitutional challenge. To date, two state laws requiring suspicionless drug tests as a condition to receiving governmental benefits have sparked litigation, and neither case has been fully litigated on the merits. The U.S. Supreme Court has not rendered an opinion on such a law; however, the Court has issued decisions on drug testing programs in other contexts that have guided the few lower court opinions on the subject.
Constitutional challenges to suspicionless governmental drug testing most often focus on issues of personal privacy and Fourth Amendment protections against “unreasonable searches.” For searches to be reasonable, they generally must be based on individualized suspicion unless the government can show a “special need” warranting a deviation from the norm. However, governmental benefit programs like TANF, SNAP, unemployment compensation, and housing assistance do not naturally evoke special needs grounded in public safety that the Supreme Court has recognized in the past. Thus, if lawmakers wish to pursue the objective of reducing the likelihood of taxpayer funds going to individuals who abuse drugs through drug testing, legislation that only requires individuals to submit to a drug test based on an individualized suspicion of drug use is less likely to run afoul of the Fourth Amendment. Additionally, governmental drug testing procedures that restrict the sharing of test results and limit the negative consequences of failed tests to the assistance program in question would be on firmer constitutional ground.