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:

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.