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State Bill Would Require Drug Testing for Unemployment Benefits, but Would the Law be Constitutional?

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By Javier Lavagnino, Esq. on April 02, 2009 10:07 AM

In a move critics are calling politically-motivated, or just plain "cruel", West Virginia legislator Craig Blair has introduced a bill requiring random drug testing of individuals filing for unemployment benefits. According to CNN, Blair and his supporters (who have a website at say they are motivated not only by the "rampant" use of drugs in the country, but also by their desire for proper use of taxpayer funds.

CNN noted that the bill would "require random drug testing for any government assistance" and someone who failed their drug test "would get the benefits and 60 days to clean up." A failure of a subsequent drug test would result in an individual losing their benefits for two years.

Political opinions regarding such a law aside, people might be wondering whether such random drug testing would be legal. After all, the Constitution doesn't allow for anyone driving to be randomly tested for their blood alcohol content (BAC), despite the fact that they are partaking in the government-granted privilege of driving. In most (but not all) circumstances, the Constitution requires some sort of individualized suspicion of wrongdoing prior to a search and seizure by the government.

Via his aforementioned website, Craig Blair, for one, dismisses any constitutional concerns raised by drug testing for unemployment:

"As for the constitutional issue, it has never been considered by the US Supreme Court.  Furthermore, 'Big Brother' already invades welfare recipient's lives by requiring proof of need via payroll receipts and bank account information."

But what about the courts that actually have addressed the issue? One instance where the issue was brought to the fore was almost a decade ago after Michigan passed a law allowing for drug testing of certain individuals receiving government welfare assistance. A federal district court enjoined the law "based on Michigan's failure to identify a 'special need' related to public safety that would allow the state--without a requirement of individualized suspicion-- to drug test" the plaintiffs. An appeal ensued, and even though a three-judge panel of a federal appeals court disagreed with the lower court (finding that there was indeed a sufficient "special need" shown by the state for the testing), the entire court of appeals eventually deadlocked in the case.

As a result, the original opinion of the lower court was left standing and Michigan's law was struck down. Considering that other states grappling with their budget woes have begun to consider laws on the issue, courts may soon end up considering the constitutionality of drug testing for benefits again.

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