Mitch Daniels’ Drug Testing Law Isn’t Any More Constitutional Than Rick Scott’s

Many of the laws passed by the Indiana legislature and signed by Gov. Mitch Daniels (R) during the first half of the year take effect today, and while the law that defunds the state chapters of Planned Parenthood was blocked by a federal judge last week, another controversial law that likely could not withstand judicial muster did go on the books today. SEA 86, signed into law in April, requires unemployed workers to submit to a drug test in order to collect unemployment benefits. A person who fails the test or refuses to take it “is considered to have refused an offer of suitable work”:

Requires that a drug test used for unemployment purposes be performed at a United States Department of Health and Human Services certified laboratory, with specimen collection performed by a collector certified by the United States Department of Transportation, and that the cost of the drug test be paid by the employer. Provides that an individual is considered to have refused an offer of suitable work if the individual: (1) tests positive for drugs after; or (2) refuses without good cause to submit to; a drug test required by a prospective employer as a condition of an offer of employment. Specifies the conditions under which a drug test is positive for purposes of the unemployment insurance system.

The law is similar to one passed earlier this year in Florida that requires recipients of welfare benefits to pass a drug test. When that law passed, the American Civil Liberties Union promptly filed a lawsuit challenging its constitutionality. As UCLA law professor Adam Winkler explained at the time, the ACLU suit likely will succeed in court:

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.

Winkler notes that while the Supreme Court has “in a few limited circumstances” approved the use of random drug tests, they have primarily involved either public safety concerns or the drug testing of high school athletes, even though the Court “generally frowns” on the testing of students.

Though the Florida and Indiana laws involve different programs, they are consistent in that they require drug testing without probable cause for access to a government program, and courts have repeatedly struck down these types of policies.

At a time when hundreds of thousands of Hoosiers remain unemployed, the state should be doing everything it can to assist jobless workers. Instead, legislators are attempting prevent workers from accessing benefits with a law that is likely unconstitutional. Unfortunately, in Indiana, that’s hardly shocking.