Georgia’s proposal to drug-test parents who seek welfare faces significant questions about its constitutionality as well as challenges of how to set up the program, despite support by state lawmakers and similar efforts in other states.
An Atlanta-based advocacy group has already begun preparing a lawsuit, as Gov. Nathan Deal faces a decision of whether to sign House Bill 861 or not. The bill received final passage March 29, supported by a solid Republican majority on the last day of this year’s legislative session. Their approval came despite an ongoing legal challenge in Florida against a similar measure.
Opponents argue that drug testing of welfare recipients violates the Fourth Amendment’s protection against unreasonable searches. Supporters believe it will save the state money and promote personal responsibility. Both sides in Georgia appear willing to fight the issue out in court.
“Tax dollars should never be spent on and enabling illegal activity,” said Sen. John Albers, R-Roswell, a sponsor of the bill. Ideally, he said, it meant “assuring we are giving people a hand up, not just a handout. Level the playing field for others in the private sector and civil service jobs who submit to drug tests. Ultimately, help people with tough love to get clean and become tax-productive members of society.”
HB 861 would require parents who apply for the federal Temporary Assistance for Needy Families program to pay for and pass a drug test that would cost at least $17. TANF provides temporary financial help to low-income families with children. Passing the drug test once would be a condition of eligibility to receive benefits.
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Georgia is one of the first states in 2012 to pass a drug-testing law for those receiving public benefits, though more than 25 are considering similar legislation in various combinations.
“They range from bills like Georgia’s bill calling for wholesale suspicionless testing to others who are introducing bills to require testing for a range of services,” said Rachel Bloom, a policy strategist for the American Civil Liberties Union.
Among other mandates in Georgia’s bill, the state would have to:
● Make at least one parent in a two-parent household comply.
● Make a teen parent comply if she does not live with a parent, legal guardian or other adult caretaker.
● Assure results are not subject to the state’s Open Records law or part of a criminal investigation (or subject to subpoena) or in civil action unless consented to.
● Inform a applicant who tests positive of his or her ability to retest.
● Provide a list of substance abuse treatment programs for an applicant who tests positive.
Another adult who passes a test could accept payments on behalf of a child of an ineligible parent. The bill does provide for certain exemptions, including for parents with physical or mental disabilities. The bill also asks the state to figure out how applicants can make officials aware they take medically prescribed drugs that could affect their test.
State officials said it was hard to pinpoint the financial impact of the bill. During the session, they suggested an impact that could range from a net cost of about $84,500 to a savings of about $103,000 annually. They also estimated 800 of 19,000 applicants would likely test positive and be denied TANF.
The bill would become law upon Deal’s signature, unless he vetoes the measure. The $17 testing fee assumes an applicant is on Medicaid. If not, he or she would have to foot the full bill, which some opposing lawmakers said could exceed $30.
The National Conference of State Legislatures is tracking proposed bills including drug testing for unemployment, Medicaid, TANF and food stamps.
Florida was the first to pass a TANF drug-testing bill in 2011, prompting the ACLU to sue on behalf of a military veteran and single father who believed the state was forcing him to pay for and undergo an unconstitutional search without probable cause to believe he used drugs.
A federal judge suspended Florida’s program until the suit is resolved. She noted in her opinion that Florida operated a pilot program before implementing statewide testing that showed 5 percent of TANF applicants tested positive for drug use. That was lower than the estimated 8 percent of the general population that used illegal drugs.
The pilot program “undermined the underlying assumption regarding the prevalence of substance abuse among TANF applicants,” wrote U.S. District Judge Mary S. Scriven.
The case is before the 11th U.S. Circuit Court of Appeals in Atlanta.
Gerry Weber, an attorney for the Atlanta-based Southern Center for Human Rights, said the U.S. Supreme Court has allowed suspicionless testing under rare circumstances — tests for school bus drivers, for example. Georgia’s proposal, however, goes too far, he said. “We believe this requirement is unconstitutional,” Weber said. The center is preparing a lawsuit, which it would file if Deal signs the bill.
The ACLU also has issues with the bill. “We think Georgia’s law is problematic, as problematic as Florida’s,” said Jason Williamson, an ACLU staff attorney.
The steady flow of similar bills across the country shows him that states are not going to wait until the 11th Circuit weighs in before trying to pass similar laws, he said.
“These type bills play well politically with the public,” Williamson said, “so even if they are struck down, there is little political risk for the legislators.”
Though Congress authorized drug testing for welfare recipients under the 1996 Welfare Reform Act, it provided no guidance on how to do so constitutionally.
Utah tried to jump the constitutional hurdle this year by passing a law that requires recipients to fill out a questionnaire that may give indications of the likelihood of drug use before the test. The ACLU’s Bloom said the Utah law also set aside money for treatment, and anyone who fails the drug test can continue to get benefits while they remain in treatment.
In committee, Georgia legislators discussed providing drug treatment, but could not get the votes to approve it.
Brian Robinson, Deal’s spokesman, said the bill was under review. Otherwise, “we cannot comment on legislation that was not an explicit part of the governor’s 2012 agenda,” he said.
Georgia has had similar laws struck down by the courts, including a former mandate to drug-test candidates running for public office.
Albers, however, said lawmakers worked hard to make the bill constitutional.
“We have the best attorney general in the country,” Albers said of the state’s Sam Olens. “He and his staff are qualified and annually budgeted to respond to any frivolous litigation that may arise. It is absolutely worth it to change the ideology back to the principles that made America great.”
According to the Georgia proposal that would require parents who apply for the federal Temporary Assistance for Needy Families program to pay for and pass a drug test:
● An applicant who fails one drug test would be ineligible for benefits for a month.
● Test positive twice, and an applicant would not qualify for benefits for three months.
● For a third or subsequent positive result, the applicant would be ineligible for one year. Those with three strikes could qualify earlier than a year if they complete a substance abuse treatment program.
● In all cases, an applicant would still have to pass a drug test before being eligible for the program.