Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits [January 29, 2014] [open pdf - 291KB]
"For decades, federal policymakers and state administrators of governmental assistance programs, such as the Temporary Assistance for Needy Families (TANF) block grants (formerly Aid to Families with Dependent Children (AFDC)), the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), the Section 8 Housing Choice Voucher program, and their precursors, have expressed concern about the 'moral character' and worthiness of beneficiaries. […] Constitutional challenges to suspicionless governmental drug testing most often focus on issues of personal privacy and Fourth Amendment protections against 'unreasonable searches.' For searches to be reasonable, they generally must be based on individualized suspicion unless the government can show a 'special need' warranting a deviation from the norm. However, governmental benefit programs like TANF, SNAP, 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 limit the negative consequences of failed tests to the assistance program in question would be on firmer constitutional ground."
CRS Report for Congress, R42326