"Why Rick Scott’s Drug Testing Scheme Violates The Constitution"
On Tuesday, Florida Gov. Rick Scott (R) signed a law requiring welfare recipients to undergo drug testing — potentially providing thousands of new customers to Solantic, a company Scott used to run that is now owned by a trust in his wife’s name. The ACLU responded almost immediately with a lawsuit challenging this law, and, as Professor Adam Winkler explains, this lawsuit is very likely to succeed:
Random drug testing is what is known as a “suspicion-less” search. Even without probable cause to believe the person required to pee in a cup has done anything wrong, he or she is forced to turn over bodily fluids for government inspection.
The Supreme Court has upheld the ability of government to mandate random drug tests in a few limited circumstances. The earliest cases held that people with sensitive government jobs in high-risk public safety environments, like railroad operators, or involving national security, like border and customs agents, could be required to submit to testing. The Court’s most expansive ruling allowed public high schools to randomly test student athletes, even though the public safety concerns weren’t nearly as apparent.
High school students, however, have historically enjoyed fewer constitutional protections than mature adults, and courts have generally frowned upon random drug testing of them. Indeed, courts have stuck down policies just like the ones put in place by Florida this week. (See, for example, here and here.)
Scott’s self-enriching drug testing plan is merely the latest example of Republicans ignoring the Constitution to push their own partisan agenda. Indeed, GOP attempts to rewrite the Constitution to achieve their own partisan objectives have become so common that Scott’s assault on the Fourth Amendment is almost passé:
- Child Labor: In three separate opinions, conservative Justice Clarence Thomas called for a return to a discredited theory of the Constitution that early 20th century justices used to declare federal child labor laws unconstitutional. Many GOP elected officials — including several sitting senators –have embraced rhetoric suggesting that they agree with Justice Thomas that child labor laws are unconstitutional. Thomas’ view of the Constitution also endangers other basic labor protections such as the minimum wage.
- Whites Only-Lunch Counters: In a now-infamous interview with MSNBC’s Rachel Maddow, Sen. Rand Paul (R-KY) claimed that there are constitutional problems with the federal ban on whites-only lunch counters. Justice Thomas’ pre-New Deal understanding of the Constitution also supports Paul’s view.
- Education: Sen. Tom Coburn (R-OK) believes that all federal education programs — including Pell Grants and student loan assistance — are unconstitutional. And he is far from alone among GOP members of Congress.
- Gender Discrimination: Conservative Justice Antonin Scalia recently expressed his view that the Constitution has nothing to say about discrimination against women.
- Ending Senate Elections: Sen. Mike Lee (R-UT) recently claimed that the ratification of the 17th Amendment, which allows voters to elect their own senators, “was a mistake.” Scalia agrees.
- Social Security and Medicare: Even though the House GOP’s plan to eliminate Medicare has thrown the GOP’s poll numbers into a nose dive, several GOP senators want to repeal Medicare and Social Security by having them declared unconstitutional.
Scott, however, may win a prize as the first GOPer to sign an unconstitutional law that may be designed to increase his own already massive fortune.