Florida's law requires welfare applicants to pay for and pass a drug test to receive benefits. It was in effect from July through October last year before being temporarily blocked by a federal judge after the American Civil Liberties Union filed a lawsuit challenging it. The judge said the law may violate a constitutional ban on unreasonable searches and seizures.
The state appealed that decision to the 11th U.S. Circuit Court of Appeals in Atlanta, which will decide whether the preliminary order blocking the drug testing should remain in place pending the outcome of the broader legal challenge. A three-judge panel of the court grilled both lawyers during the oral arguments.
Florida has argued that Temporary Assistance for Needy Families, or TANF, benefits are meant to ensure family stability and child welfare during times of financial crisis and to prepare parents to get and keep a job so the assistance is temporary. The state argues drug use by recipients undermines both those goals.
"Drug testing in the TANF program is a common-sense measure to make sure the purposes of the program are advanced," Jesse Panuccio, an attorney for Florida Gov. Rick Scott, said following the hearing.
The ACLU argues drug testing is an unreasonable search under the Fourth Amendment and makes unfair and baseless assumptions that welfare recipients use drugs at a higher rate than the rest of the population.
The drug tests do not amount to unreasonable searches because welfare applicants are essentially consenting to the test when they apply for the program, Panuccio argued.
"What does consent mean when you're required to take the drug test?" Circuit Judge Rosemary Barkett said.
Panuccio also argued that one of the stated goals of the program is to help people get back to work and said that drug use makes it hard to get and keep a job.
Maria Kayanan, a lawyer with the ACLU of Florida, argued that there was no nexus between a positive drug test and employability.
She also faced tough questions from the judges, who asked whether there are situations where it would be permissible for a state to require drug testing, for example for foster parents, and how that would differ. But she expressed optimism following the hearing.
"It was a very well-prepared, very engaged panel, and we're optimistic that the court will recognize the overarching Fourth Amendment concerns here."
The National Conference of State Legislatures says Florida was the first state to enact such a law since Michigan tried more than a decade ago. Michigan's random drug testing program for welfare recipients lasted five weeks in 1999 before it was halted by a judge, kicking off a four-year legal battle that ended with an appeals court ruling it unconstitutional.
Georgia has followed Florida's lead, adopting a similar law this year, but the governor has put that law on hold pending the outcome of the legal challenge. Dozens of other states have considered such laws in recent years.
Five other states — Arizona, Missouri, Utah, Tennessee and Oklahoma — have adopted laws to test at least some welfare applicants or recipients, according to NCSL. But those states took a more cautious approach, opting for some sort of screening process for welfare applicants and requiring tests only from those applicants they have reason to believe are using illegal substances.