Benefits are not constitutionally protected

Nelson Spear

Nelson Spear

Congressman Pearce’s proposed legislation requiring people to pass a drug test before receiving unemployment or TANF benefits is facially constitutional.

This is in response to Gary Mitchell’s recent column, “Drug testing the poor is unconstitutional and un-American.”

I start my response by recognizing that Gary Mitchell is an experienced attorney. As such, he is quite capable of protecting and representing anyone who has been charged with a crime or whose constitutional rights may have been infringed upon. With that said, I am surprised that Gary did not do a more in-depth constitutional analysis before claiming that any limiting conditions for the free receipt of unemployment TANF benefits are unconstitutional.

Gary’s claim presumes that the people seeking free governmental assistance have a fundamental constitutional right to the assistance. Nothing could be further from the truth.

Government benefits are not guaranteed

Nowhere within the United States Constitution can anyone point to a provision that says that the government must provide this type of assistance without condition. The granting of benefits in either area is an act of benevolence on behalf of the government. Because the applicants are not required by the government to apply for the free unemployment and TANF benefits, the court cannot and will not intervene. The court will also not intervene in Congressman Pearce’s proposed law.

Even if Gary could overcome the huge hurdle of establishing that providing of these benefits were a fundamental constitutional right, the court would easily rule that Congressman Pearce’s proposed law did not violate the class’ liberty or due-process rights. Moreover, even if the court were to apply the highest form of review to Congressman Pearce’s proposed law, Gary’s claim would fail under that form of review.

Pearce’s bill passes the compelling governmental test

Pearce’s legislation clearly indicates what action the government wants to control – i.e., keeping government beneficiaries of the unemployment and TANF off of illegal drugs. There are valid reasons why the government would want to monitor the applicant/beneficiary’s behavior for illegal drugs, as the government has a compelling interest in seeing that the money meant for one purpose is not misspent.


In this case, the government wants to make sure that the money is spent on the beneficiary’s direct needs and their family — not on drugs. Drug testing is a very limited action that creates accountability with the beneficiary to make sure that the money is not misspent. It will be an incentive to those who stumble in this area to stay clean.

The government also has an interest in monitoring drug use of people who are receiving government unemployment benefits to help them get employment. Here in Midland, Texas, most physically able males between the ages of 21 and 30 can find a job in the oilfield if they want that kind of job. Because the oilfield inherently involves interaction with motorized equipment, all employers require the applicants and job holders to pass a drug test. If they cannot pass a drug test, they will either not get the job or will get fired.

Pearce’s bill passes the least restrictive means test

Gary claims that there is unfair intrusion into the lives of applicants/beneficiaries but he does not address how else the government can deal with their concerns of drug use because he cannot define a lesser intrusive methodology of meeting the government’s goal. In reality, the best way to measure the level of intrusion is by comparison. Submitting to a drug test is minimally intrusive when compared to the other intrusions we all have to go through in life.

For example, many jobs — public and private — already require the applicants and the job holders to pass a drug test for security and safety reasons. In Midland, the drilling company has a legitimate interest in not putting an employee on a drilling platform that has been using alcohol or drugs. If that employee is the slightest degree intoxicated, people could get hurt or killed and the drilling company would get sued.

Additionally, when we go through all of our airports, we go through a far more invasion of our privacy by scans and pat downs than any drug test.

Intrusiveness can also be measured by the amount of privacy that has to be surrendered. Drug tests are privately conducted tests between the applicant/beneficiary and the examiner. The results of that test are confidential between the applicant/beneficiary, the examiner and the examiner’s agency.

Narrowly tailored to keep benefit recipients off drugs

I point out that meeting and maintaining conditions for receiving governmental help are not unusual. Consider those applying for Pell grants for education loans. The application process can be extensive, and it is possible to lose that right to those funds if the conditions are not maintained.

Also consider the other business that is done between the public and the government. If the federal government does not want to give me a loan for my widget manufacturing business, it does not have to.

The best example of this point is with the government’s dealings with the auto industry. When the auto industry was recently bailed out, those funds given to the bailed out manufacturers came with a host of conditions. Under normal market conditions the Chevy Volt would never have been marketed in the way it was. However, because of the “deal” struck with the government, the Volt was marketed anyway to nonexistent customers.

Those offered the deal with the government did not have to take it; however, they chose to take the money with certain conditions.

All things considered, the imposition of limited conditions for the receipt of free unemployment and TANF benefits do not unfairly affect the liberty or due process of the applicants/beneficiaries. Congressman Pearce’s proposed legislation is facially constitutional.

Spear, who now lives in Midland, Texas, holds a Bachelor of Arts in political science from S.M.U. and a law degree from Washburn University School of Law. His career includes 12 years as a prosecuting attorney and serving as a full-time commissioner on the New Mexico Gaming Control Board. Currently, Nelson co-operates a family owned oil and gas business with his brother.

20 thoughts on “Benefits are not constitutionally protected

  1. Hemingway,
    Thank you for posting something regarding the constitutional law analysis.

    As you noted, the federal judge hearing the case has not issued a final ruling.  It was a temporary ruling to be held in place until trial.  This was a first glance by the federal judge and not an in-depth trial.  If the judge finalizes her ruling, it will likely be appealed to the Circuit Court of Appeals.  The appellate review of the cited case should be interesting to see how the 11th Circuit court of Appeals will handle the 4th amendment issue alone.

    I would say be on the lookout for these issues from the 11th Circuit.  1). A lengthy discussion on the issue of whether or not the plaintiff/applicant consented to the search and thus waived his right to the 4th Amendment protection.  2). Whether or not the free government benefit is a fundamental constitutional right.  I do note from one article that the judge hearing the case specifically stated that the government failed to prove that any money would be saved from TANF funds by the implementation of the Florida law.  What I wonder is whether or not the government argued that the benefits that might be lost due to failing to take a drug test might be found in the private (i.e., charity) sector.  We shall see.

    Again, I note that one federal judge’s decision (either way) does not finalize the constitutionality or unconstitutionality of such laws.  She is just one judge and the process is just beginning.  If such a law were to be passed in the legislatures of any state within the 10th Circuit (i.e., Colorado, Kansas, New Mexico, Oklahoma, Utah, or Wyoming), a federal court judge’s decision would be appealed to the 10th Circuit Court of Appeals.  If the 10th Circuit were to hear the matter, my guess is that (depending upon the way the law was crafted) the law’s constitutionality would be upheld.  My opinion is partly based upon the reputation of the Tenth Circuit being more conservative than other Circuit Courts and partly based upon my personal experience in appearing before different members of the Tenth Circuit.

    Ultimately, the United States Supreme Court will have to decide the issue as several states has opted for pursuing similar legislation.  See here:  It is interesting to note that New Mexico is the only state of the 10th Circuit that has not passed any similar type of legislation.  Until several Circuit Courts of Appeals issue their ruling or the United States Supreme Court steps in and finalizes the issue, I remain convinced that Pearce’s legislation is constitutional.

  2. The legal arguments are complex, but unfortunately the author starts out from the beginning with a series of poorly thought-out and factually incorrect assumptions.  The most glaring example is his characterization of unemployment as the act of a kind government giving away free things.  Ummm…it’s called unemployment insurance for a reason–workers (and companies) pay into it with every paycheck.  It’s not some giveaway, it’s insurance in case a person loses their job for reasons beyond their control.

    It’s unquestionably an interesting legal issue, but unfortunately the author shows such meager understanding of the basic elements of unemployment that it destroys his credibility throughout the rest of the column, which in any event is far more argumentative than actual legal analysis.

  3. Unreasonable Congressman Steve Pearce is simply trashing the Constitution – Read the 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    In October 2011 in Lebron v. Wilkins a federal judge in Orlando temporarily blocked the state of Florida from conducting drug tests on welfare applicants. U.S. District Judge Mary S. Scriven wrote in her ruling that drug tests are “well established” as a means of search under the Fourth Amendment and that the state had not demonstrated a substantial need to justify “suspicionless” drug testing. Furthermore she wrote:
    “the State invokes the government’s general interest in fighting the “war on drugs” and the associated ills of drug abuse generally to contend that TANF funds should not be used to fund the drug trade. The Court agrees. But, if invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need, the State could impose drug testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment.
    What the Fourth Amendment requires is that such incursions by the Government must be reserved for demonstrated special needs of government or be based on some showing of reasonable suspicion or probable cause. The State has made no showing that it would be “impracticable” to meet these prerequisites in the context of TANF recipients. Any suggestion that it would be impracticable should be based on some evidentiary showing, and any such showing would likely be belied by the fact that other states competently administer TANF funds without drug tests or with suspicion-based drug testing and no other state employs blanket suspicionless drug testing.”

  4. Mick: Nothing’s wrong with that.  Did I say there was?  I won’t go into Voter ID anymore on this thread. 

  5. Concerning my main premise that the laws proposed by Congressman Pearce are facially constitutional:
    I am still waiting for a rebuttal.

  6. Regarding the comments that the oil and gas industry is receiving government subsidies:
    1.       Please enlighten me as to what specific programs that you are referring to.  I honestly can’t think of any government checks that I have received for either investing or not investing in a drilling program.
    2.       My investments in drilling programs create and have created many jobs.
    3.       A lot of government actions are actions to encourage specific kinds of activities,  Even if there were some kind of subsidy to the industries listed by GFA, the government and those industries would have a bargained for exchange that activity – which is highly regulated by the way.
    Regarding the question whether Nelson Spear would pass a drug test:
    I have never tried marijuana, cocaine, heroin, meth or any other illegal drug.  I never have wanted to.
    Responding to other counter policy arguments:
    1.       Again, the article was not a policy piece.  It was a rebuttal to an unfounded accusation that Pearce’s legislation was unconstitutional.
    2.       Others put forth the position that Florida’s law was bad policy.  That position was based upon one article.  I made a rebuttal argument to that position. 
    If you want to see my secular and non-secular policy statements and arguments in favor of keeping marijuana illegal, please go to my earlier article on Heath’s website.

  7. @ stever: Those opposed, in principle, remain unpersuaded by law, facts, or experience.

    Stever, I assume that your principles are shaped by your experience, by your processing of facts, and by the law. What’s wrong with that? Don’t hesitate to share them.

    My opinion on Voter ID is based on my processing of my life’s experience, some of which includes growing up in the Jim Crow South, hence my skepticism for what looks to me like an expansion of the Nixon/Reagan Southern Strategy. That is, the appeal to fear and the blaming of outsiders. By the way, I actually voted for Nixon in the first election in which I could vote.

    As to the topic at hand, Mr. Spear seems to be able to handle himself quite well. It is clear to me that he has given both his article and his response an honest effort. I definitely am not accusing him of fear tactics and propaganda. I for one welcome his efforts and his perspective.

    Let the discussion continue.

    Respectfully, Michael J. Flynn


  8. Mr. Spear,  As an oil and gas company owner or whatever, you are on the government dole as much as a welfare receipient.   Could you pass a drug test? 

  9. 1.       As to the non-legal arguments:
    Oh good. I’d like to hear some arguments as to why it’s good policy
    a.       Whether it is a good idea or not is different than the question is it constitutional.  The whole point of the article was to rebut Gary Mitchell’s statement that the proposed bills were unconstitutional.
    That’s not an argument as to why it’s good policy.  That’s a statement about why you wrote the article.
    b.      As to the cost/savings to Florida … how many people who were habitually addicted to drugs did not apply for benefits who would otherwise normally have applied?  We do not know.  How many people were wrongly denied benefits that would otherwise not have been denied?  We do not know.  The supporting evidence of the referenced “study” rebuking the Florida law is long on policy but short on persuasive evidence.
    That’s not an argument as to why it’s good policy. The Florida study may be totally and completely bogus – but saying the Florida study is bogus is not the same thing as saying the policy is good
    c.      Lifestyles:  Drug use and addiction is a lifestyle?  I refuse to pay for anyone’s lifestyle that includes me paying for their addictions.
    That’s not an argument as to why it’s good policy. That’s your personal policy preference – but why should your policy preference carry any weight whatsoever?
    d.     Is assisting people keeping clean and somber an important governmental function?  I think so.  With unemployment rates at staggering levels, the government has a very compelling interest in making sure that the applicants and beneficiaries have no impediments in finding jobs.
    That’s not an argument as to why it’s good policy; it’s an argument that it WOULD be good policy IF it actually helped keep people clean and somber. But we’ve already got penalties out the wazoo, and it’s hardly obvious that imposing new additional penalties will prevent drug use.
    So I’d say you haven’t presented a single valid argument in favor of the policy.
    On the other hand, the policy would clearly give us a bigger, more expensive, more intrusive more nanny-state type government. I had thought that Pearce was all about reducing the size and intrusiveness of the government – so I see this as being directly contrary to his claimed values, and an indication that his small government claims are lies.

  10. According to a Think Progress report, “. . . 56 percent of the total tax subsidies went to just four industries: financial, utilities, tele-communications, and oil, gas & pipelines.” And while there is a big difference between giveaways and assistance, I would suggest corporate execs be subjected to the same standard of drug testing before they receive our tax dollars. 

  11. Mr Spear,  This issue is like Voter ID.  Those opposed, in principle, remain unpersuaded by law, facts, or experience. Add in Rep Pearce and nothing will prevent a negative response.  Nothing.

  12. Great beginning responses everyone.  I am trying to convince a friend from law school to write a rebuttal.
    1.       As to the non-legal arguments:
    a.       Whether it is a good idea or not is different than the question is it constitutional.  The whole point of the article was to rebut Gary Mitchell’s statement that the proposed bills were unconstitutional.
    b.      As to the cost/savings to Florida … how many people who were habitually addicted to drugs did not apply for benefits who would otherwise normally have applied?  We do not know.  How many people were wrongly denied benefits that would otherwise not have been denied?  We do not know.  The supporting evidence of the referenced “study” rebuking the Florida law is long on policy but short on persuasive evidence.
    c.      Lifestyles:  Drug use and addiction is a lifestyle?  I refuse to pay for anyone’s lifestyle that includes me paying for their addictions.
    d.     Is assisting people keeping clean and somber an important governmental function?  I think so.  With unemployment rates at staggering levels, the government has a very compelling interest in making sure that the applicants and beneficiaries have no impediments in finding jobs. Can we trust people to not use drugs when we ask them not to?  Let me respond by what James Madison said in Federalist No. 51
    If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
    2.       As to the legal arguments,
    a.      Even if the reviewing Court examined if the affected persons are truly disenfranchised from the benefits if the applicants or beneficiaries were to be denied benefits if they failed to pass a drug test, the reviewing Court would be aware that the affected persons had benefits available in the private sector.  Many charitable organizations provided assistance to those who find themselves in a life crisis such as a loss of a job or the loss of a home.  The applicants/beneficiaries are always able to apply to these organizations for assistance.  There is no complete disenfranchisement for the denial of free benefits from the government especially when compared to voting rights cases.
    b.      The Michigan case of Marchwinski v. Howard was ultimately heard at the Sixth Court of Appeals.  While this decision would be reviewed and considered by other Circuit Courts it is neither persuasive not binding because the Marchwinski court has the same authority to make a decision as any other Circuit Court (New Mexico for example is in the Tenth Circuit Court of Appeals).  If New Mexico were to pass a similar law the judges at the Tenth Circuit would be free to reject the weight of the Marchwinski decision/ non decision.  The Tenth Circuit is a more conservative Court.  My guess is that the Tenth Circuit would have permitted the state action had the Marchwinski case been brought before them.
    This Marchwinski decision is also less persuasive because the final decision was so divided that no real decision was made.  As another reader noted, the case was ultimately heard en banc and the decision was 6 federal appellate judges voting for the constitutionality of the law and 6 federal judges voting against the constitutionality of the law. 
    c.       The Chandler v. Miller case, while binding Supreme Court precedence, adds little to bolster the argument that drug testing for benefits.  The Chandler decision focused on a constitutionally protected right – voting and running for office.  Receiving a free government benefit that it is not mentioned in the United States Constitution is quite different than trying to qualify for a political office.
    The Chandler decision also stated that:
    (d) The Court expresses no opinion on medical examinations designed to provide certification of a candidate’s general health or on financial disclosure requirements, and it does not speak to drug testing in the private sector, a domain unguarded by Fourth Amendment constraints. Pp. 16-17.

  13. A few observations:

    1.  Unemployment benefits are not a Government benefice, but rather a form of insurance, as in unemployment insurance. Whether paid directly by the employee or the employer, this is a direct cost of labor. In hard times such as these, the payments and payment period may be extended beyond the customary amount, in which case there is an argument for benevolence.

    2. In the law and in civil society there is a presumption of truth and of innocence, which is why, in general, a man’s word is his bond, and why a person is assumed innocent until proven guilty.

    3. Any prosecution (perhaps persecution), including even administrative actions such as drug tests, requests for passwords and access to private computer networks, and the like, would, then violate the long held views of civil society and the law. Again, those unreasonable search and invasion of privacy protections enshrined in the Constitution.

    Now a remark: Mr. Pearce is wasting the Public’s time once again with legislation that might clear the House but will likely die in the Senate. If Mr. Pearce were really concerned about drug use among the poor, then I would find common ground with practical and dignified approaches to the problem. I would consider drug testing and drug rehabilitation for those who have been on public assistance for significantly long periods. Drug use is often a life style choice; it is more often a medical problem. Ask Rush Limbaugh.


    Michael J. Flynn 

  14. stever, FYI, check Chandler v. Miller.

    Mr. Spear, the federal government would have to give a special reason why unemployment and TANF recipients, alone among people receiving federal funding, would have to undergo drug testing. Without that special reason, your argument has no constitutional ground to stand on. The only thing you propose as being a special reason is

    “the government wants to make sure that the money is spent on the beneficiary’s direct needs and their family — not on drugs”

    How does drug testing accomplish this? It gives false positives and can be “tricked” to give false negatives with sufficient periods of abstinence (in some cases, a week; but more often a few days) from habitual drug usage. So it doesn’t actually catch smart drug addicts, but it does scare away people who are dumb recreational drug users.

  15. Here is a great video on the expensive drug testing of welfare recipients in Florida.  Governor Rick Scott’s program costs Florida millions. It is a big disaster.
    So this is what Congressman Pearce wants to do to America? This idea is rather ridiculous – no common sense!

  16. What a boondoggle for the drug testing companies.  This is only going to cost money and disenfranchise people from ever getting employment.  The poorest people will have to turn to the underground economy and are likely to end up packing those for profit prisons.  Remember, it is the taxpayers that pay for all of it.  These guys want to prioritize spending on this rather than higher education.

  17. On April 9, 2003, the U.S. Court of Appeals for the Sixth Circuit struck down a law that requires drug testing of Michigan welfare recipients. The decision was a setback for WLF, which filed a brief in the case in support of the State. The Sixth Circuit issued no opinion in the case. Rather, it split 6-6 on the constitutionality of the program; the tie vote had the effect of affirming a district court decision striking down the program. WLF’s brief argued that the program was a reasonable means of identifying welfare recipients in need of drug treatment. In October 2002, a three-judge panel of the Sixth Circuit upheld the program, agreeing with WLF that the drug testing did not vio  late the Fourth Amendment’s prohibition against unreasonable searches and seizures. But the Sixth Circuit’s decision to rehear the case en banc in front of all 12 of its judges had the effect of vacating that earlier panel decision.  

    Which “judge” ruled it unconsititional?  

  18. Mr. Spear, a lawyer, should study legal precedent. In other he should do his homework.  Michigan attempted to impose drug testing of welfare recipients, and the policy that was struck down as unconstitutional in 2003.  The case, Marchwinski v. Howard, concluded when the U.S. Court of Appeals for the Sixth Circuit upheld a lower court’s decision striking down the policy as unconstitutional. The judge ruled that  it was an unconstitutional infringement of Plaintiffs’ Fourth Amendment rights. So Pearce’s atrocious bill like Florida’s law is probably unconstitutional!

  19. So Hemingway, I understand its laughable to the extent you don’t agree with it but to his point that it not unconstitutional, stop laughing long enough to respond to that.    If Pearce proposed anything, you would object to it so that’s not a very high bar.  As to Allen West, way OT. 

  20. This column is laughable.  However, Mr. Spears and Mr. Pearce are serious despite the fact that  drug testing produces inaccurate results, and remains unproven as a means of stopping drug use. Mr. Pearce’s inane drug proposal constitutes a serious invasion of privacy. His plan simply focuses on  low-income communities and people of color.
    Here is an interesting story on the program in Florida:
    Sorry – Such bills amount to an unreasonable search and seizure under the Fourth Amendment. Drug testing is just the latest manifestation of the culture of fear in America today. Where Joseph McCarthy in the 1950’s told us that America was infiltrated by communists, Mr. Pearce is now telling us that welfare recipients are a bunch of pot-heads. This is a travesty.
    By the way there is a return of McCarthyism.  Freshman Congressman Allen West (R-FL) claimed  that about 80 members of Congress are communists. This is crazy – more culture of fear stuff.