Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits [February 24, 2012] [open pdf - 241KB]
"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. [...] Constitutional challenges to suspicionless governmental drug testing most often focus on issues of personal privacy and Fourth Amendment protections against 'unreasonable searches.' The reasonableness of searches generally requires individualized suspicion, unless the government can show a 'special need' warranting a deviation from the norm. However, governmental benefit programs like TANF [Temporary Assistance for Needy Families], SNAP [Supplemental Nutrition Assistance Program], unemployment compensation, and housing assistance do not naturally evoke special needs grounded in public safety that the Supreme Court has recognized in the past. Thus, if lawmakers wish to pursue the objective of reducing the likelihood of taxpayer funds going to individuals who abuse drugs through drug testing, legislation that only requires individuals to submit to a drug test based on an individualized suspicion of drug use is less likely to run afoul of the Fourth Amendment. Additionally, governmental drug testing procedures that restrict the sharing of test results and that limit the negative consequences of failed tests to the assistance program in question will be on firmer constitutional ground."
CRS Report for Congress, R42326