You don’t win them all, but once in awhile you win one. And in this case, it really matters.
The U.S. Supreme Court refused Monday to hear an appeal by Florida Governor, Republican and presidential-candidate wannabe Rick Scott. Scott, since 2011, has been trying to mandate random drug tests for some 85,000 state workers because, yeah, drugs are bad or something. Scott’s executive order did not apply only to employees, such as drivers or pilots, whose duties might in fact be severely affected by drug use. Everybody, from receptionists to scuba divers, would be subject. By refusing to reopen the case, the Supreme Court agreed that Scott’s order was so broad as to violate Constitutional protections against unwarranted search and seizure.
Scott issued a statement saying state employees “should have the right to work in a safe and drug free environment, just like in any other business.” The governor noted that portions of the case are still being debated in Miami federal court and that he would “continue to fight” for expanded employee drug testing despite the Supreme Court’s decision not to take up the case.
How Did the Supreme Court Get Involved Anyway?
The interesting thing is that this issue was put on the Supreme Court’s doorstep at all. A lower court already conclusively said no, sweeping random drug tests are not Constitutional. Done, next issue please. The state of Florida didn’t want to let the tests go, and sought to appeal to the Supreme Court, hoping they might say yes when all the lower courts had already said no. The thing is that lots of people want their cases heard by the Supremes, and so there is a weeding out process. Basically, you have to first ask the Court to take your case. Such asking is done quite formally, via a petition, called a writ of certiorari, or simply a cert. Through the cert process, the court sets its own agenda. Some 10,000 certs are submitted in a typical year.
Typically, fewer than 100 of those 10,000 petitions are chosen to move forward for a possibly precedent-setting decision. However, only a tiny number of all the certs filed are initiated by the government; on average, just 15 in a Supreme Court term. Tough odds. The bottom line is if the Supreme Court chooses not to hear from case, the lower court decision stands. That’s what happened with Florida, and Scott lost. Again.
It’s undoubtedly a measure of the importance the Scott administration gives to random drug testing above all else that it chose to take such an aggressive stance, especially given the desperately low odds of success. In fact, Scott pressed the appeal despite a warning from U.S. District Judge Ursula Ungaro — who first ruled against the program in April 2012 — that there was “probably about zero” chance of success.
Keep in mind that putting together an appeal isn’t cheap, but Scott won’t say how much taxpayer money it cost. So, the ACLU has filed a public records request seeking how much the state has been spending on the case. Howard Simon, executive director of the ACLU of Florida, said it’s likely to run into the hundreds of thousands of dollars of taxpayer money.
You may thus not be surprised to learn Scott is up for re-election this fall.
You’ll be equally not surprised that of all the state employees Scott wanted to randomly drug test, he did not include the Florida legislature or any Florida judges. He also did not include himself. You think if Floridians might want one employee to have a clear head at work, it’d be the top guy.
Small world, huh? Rick Scott, the guy who just can’t seem to find enough excuses to try and drug test more people in Florida, owned a $62 million stake in the Soltanic Corporation, a chain of urgent care centers that, among other things, specializes in confidential drug testing. He transferred the shares of the company to his wife in January of 2011 just three months before both mandating that state employees would be tested and signing another law (below) for welfare testing into effect. Scott in fact founded the company himself in 2001, but claims due to the transferrance of shares to his wife he no longer as any connection to its business.
Interestingly, during the brief period of time the random testing program was actually in force in Florida, the state actually lost money on the deal. Florida required people to pay upfront for their own tests, and then reimbursed those who passed. Since such a small number of people did indeed test positive, the state actually lost $45,780 because of the program.
Welfare and Drugs
This isn’t the first time that a federal court has had to step in against Scott’s drug test fetish. A judge in December refused to hear an appeal to overturn a previous ruling requiring applicants for welfare benefits to undergo mandatory drug testing. That decision made it clear that Florida could not require drug tests as a precondition for public benefits someone was otherwise entitled to receive. Scott also seeks to appeal that case, and has until a May 5 deadline to file with the 11th U.S. Circuit Court of Appeals. Scott does love him some random drug testing, yes he does.
In the decision to stay the drug testing, Judge Mary Scriven issued a 37-page order saying the law could violate the Constitution’s Fourth Amendment ban on illegal search and seizure. Scriven issued a scathing assessment of the state’s argument in favor of the drug tests, saying the state failed to prove “special needs” as to why it should conduct such searches without probable cause or reasonable suspicion, as the law requires.
“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,” Scriven wrote, “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.”
The judge went on to say “there is nothing inherent in the condition of being impoverished that supports the conclusion that there is a concrete danger that impoverished individuals are prone to drug use.”
During the time the law was in effect, only 2.6 percent of recipients tested positive for illegal drugs, mostly marijuana. The failure rate was well below that of the general population. The U.S. Department of Health and Human Services found in a 2009 survey that about 8.7 percent of the population had used illicit drugs in the previous month.
But Should My Tax Money Go to Dope Heads?
Now about this point in these discussions, someone (I see a hand in the back there, you sir) asks: Why should my tax dollars go to giving welfare to drug users? Shouldn’t state employees not be using drugs?
So let’s figure out why people who say those things are dumbasses.
Welfare to Drug Users. Sure, nobody wants to encourage illegal drug use. But benefits go to people who are hungry (yes of course there are welfare cheats, maybe not as many as tax cheaters on Wall Street, but there are indeed always cheats no matter what.) 73 percent of enrollments in America’s major public benefits programs are from working men and women. They work in jobs that pay wages so low that their paychecks do not generate enough income to provide for life’s basic necessities.
An awful lot of people who receive benefits are also children, who are dependents of the adult claiming the need. Cut off the (drug using) adult and you cut off the kid. Indeed, about 45 percent of food stamp benefits go to children. Maybe cutting them out is what Governor Scott wants. Many public benefits recipients are elderly. Anyone want to take food from them? Anybody want to mandate they travel for drug tests? Anybody want to tangle with the range of medicines they may take that can trigger false positives? Oh, don’t want to test the elderly? Not much random in that is there, just profiling.
Drugged out state employees are bad. Sure. But does Rick Scott have any stats to even suggest there is a drug problem among his employees he needs to solve with a complex and expensive random testing program? Isn’t random drug testing just a politically-neat solution to a problem that may not exist? Doesn’t it matter that some of the employees who may do drugs do them on their own time in a way that has no effect whatsoever on their day jobs? Isn’t Rick Scott equally worried about drunk employees? Nope, apparently not. No testing for booze. Nothing in Scott’s plans that mentions mandatory breathalyzer tests.
Why It Matters
Since Supreme Court rulings create precedent for lower courts to follow throughout the United States, the Florida decisions are very important. The American Civil Liberties Union of Florida, which challenged both drug-testing plans as unconstitutional, said federal courts have clearly rejected blanket mandatory drug testing by the state.
“The question of whether the state has the power to compel all employees to submit to suspicionless searches without good reason is settled and the answer is no,” said the lead ACLU attorney in the state employees case.
But the most important reason sweeping drug testing (or sweeping electronic surveillance) is wrong is because we have a Constitution. The Fourth Amendment of that beautiful document assures Americans that they have a right to privacy that excludes unwarranted searches. You don’t have to decide if you want the right, it is the default and the government can’t just take it away from you simply because you happen to live in Florida.
That’s what really is at stake here, and why efforts like that of Florida Governor Rick Scott are so wrong. They are, in fact, un-American.