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.