Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits [January 19, 2012]   [open pdf - 241KB]

From the Summary: "For decades, federal policymakers and state administrators of governmental assistance programs, such as the Temporary Assistance for Needy Families (TANF) block grants, the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), the Section 8 Housing Choice Voucher program, and their precursors, have been concerned 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. In part prompted by tight state and federal budgets and increased demand for federal and state governmental assistance resulting from precarious economic conditions, some policymakers recently have shown a renewed interest in conditioning the receipt of governmental benefits on passing drug tests. For example, the House of Representatives, on December 13, 2011, passed a provision that would have authorized states to require drug testing as an eligibility requirement for certain unemployment benefits. Additionally, lawmakers in a majority of states reportedly proposed legislation in 2011 that would require drug testing beneficiaries of governmental assistance under certain circumstances. 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 are vulnerable to constitutional challenge. To date, only 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. To date, 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."

Report Number:
CRS Report for Congress, R42326
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