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“Court Ends Florida Governor Scott’s Plan On Drug Tests”: Impaired Public Official’s Can Do More Harm Than The Impaired Unemployed

Gov. Rick Scott’s callous and condescending plan to drug-test welfare recipients has been demolished by a federal appeals court.

In a 54-page rebuke, the 11th U.S. Circuit Court of Appeals vigorously upheld a lower court’s ruling that it’s unconstitutional to make welfare applicants undergo warrantless and “suspicionless” drug screens, as mandated in a law championed and signed by Scott.

“The State has failed to establish a demonstrable or peculiar drug-use problem among (welfare applicants),” the three-judge panel said unanimously. “If anything, the evidence extant suggests quite the opposite.”

Scott’s law, it concluded, “offends the Fourth Amendment,” which protects Americans against unreasonable search and seizure.

The opinion was written by Judge Stanley Marcus, not exactly a raging liberal. A former organized-crime prosecutor and U.S. Attorney in Miami, Marcus was nominated for the federal bench by President Ronald Reagan.

Although experts had warned that Florida’s broad drug-testing statute wouldn’t survive a court challenge, Scott and the Republican-led Legislature sanctimoniously charged ahead. Now the state’s clanking legal appeals are costing taxpayers a fortune.

The man who upended the law was Luis W. Lebron, a Navy veteran and college student in Orlando. At the time the ACLU filed suit on Lebron’s behalf, he was the single father of a young child, and was also taking care of his disabled mother.

He’d applied for benefits under a program called Temporary Assistance for Needy Families (TANF). The maximum amount he could have received was about $241 monthly over a cumulative period not to exceed 48 months.

At first Lebron consented to a urine test, but later changed his mind. The Department of Children and Families then said he was ineligible for benefits.

The controversial drug law was in effect less than four months before a court intervened in 2011. The state insisted it had the right to require urine tests (paid for by the applicants themselves) in order to protect their children.

As witnesses it offered a Georgetown University psychiatrist who had done some reading on the subject, and two DCF employees who told anecdotes about possible drug use among TANF recipients.

One of the workers said he had “personally detected the odor of marijuana on applicants.” The other said he often met welfare cases who had slurred speech or bloodshot eyes.

That was basically Scott’s whole case. It was shamefully weak.

Marcus ruled that the state “presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families.”

He pointed to a 2000 study done by DCF itself, called the Demonstration Project. Only 335 out of 6,462 TANF applicants tested positive for drugs.

That trend of relatively low usage was “altogether consistent” with data collected 11 years later, after Scott’s law took effect. Of 4,046 TANF applicants who gave urine samples, a measly 2.67 percent tested positive.

By contrast, the rate for the general population is 9.2 percent, according to the National Institute on Drug Abuse.

About a third of those who started a TANF application didn’t finish it, and never took the drug screen. There’s no way to determine if they were substance users, couldn’t afford the test — or were simply offended by the idea of it.

“Citizens,” wrote Marcus, “do not abandon all hope of privacy by applying for government assistance.”

In another case arising from the governor’s urine crusade, the 11th Circuit also struck down his initiative to randomly drug-test state employees for pot, meth, coke, opiates and PCP.

Among those who would have been excluded from that dope screen were Scott himself and all 160 elected members of the House and Senate. Several times I’ve offered to pay the cost for each of them to pee in a cup and send it to a lab, yet there’s no enthusiasm in Tallahassee for that proposal.

Why not? An impaired public official can do way more harm than an impaired unemployed person.

If the governor and legislators are so worried about drug use by others, they should stand up (or sit down) and do the right thing.

Set an example by giving a sample.

If you can’t prove that you’re smart, at least prove that you’re clean.

 

By: Carl Hiaasen, Columnist for The Miami Herald; The National Memo, December 9, 2014

December 11, 2014 Posted by | Drug Testing, Rick Scott, Welfare Recipients | , , , , , | Leave a comment

“Invasive And Humiliating”: Court Deals Blow To Drug Testing Of Florida Welfare Recipients

A federal appeals court on Wednesday upheld a lower federal court ruling that Florida Gov. Rick Scott’s crusade to conduct drug tests on welfare recipients as a condition of their benefits was unconstitutional.

The unanimous ruling came from a bipartisan panel of judges and broadly concluded that people cannot be forced to surrender their constitutional rights as a condition of receiving a government benefit. The decision came just two weeks after the 11th U.S. Circuit Court of Appeals judges heard arguments in the case.

In an exhaustive, 54-page ruling, Judge Stanley Marcus concluded that “citizens do not abandon all hope of privacy by applying for government assistance.” He said that “the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable” and that “by virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy.”

In 2011, Scott initiated a program to require drug testing as a condition for welfare applicants to receive Temporary Assistance for Needy Families benefits. The ACLU sued the state on behalf of Luis Lebron, a Navy veteran and single father.

In a statement, Maria Kayanan, ACLU of Florida associate legal director, said she was “pleased” by the court’s opinion.

“This is a resounding affirmation of the values that the Fourth Amendment of the U.S. Constitution protects — that none of us can be forced to submit to invasive and humiliating searches at the whim of the government, and that the Constitution protects the poor and the wealthy alike,” she said.

A circuit court judge ruled in 2013 that the program was an unconstitutional violation of the 4th Amendment protections against unreasonable searches and seizures, and halted testing. Scott appealed to the federal appeals court and a hearing was held Nov. 20.

The Florida Department of Children and Families had argued that the drug tests were warranted for all TANF recipients because the state had an interest in protecting children of welfare recipients who were using drugs. But Marcus concluded that “the State has presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families. After all, the State acknowledges that drug use harms all individuals and families, but the State does not — and cannot — claim an entitlement to drug test all parents of all children.”

In a separate case, Marcus wrote the opinion that struck down Scott’s attempt to randomly test state workers for drugs. Scott has considered appealing that ruling to the U.S. Supreme Court after removing from the list about half of the state’s classes of workers who would be eligible for drug screening.

 

By: Mary Ellen Klas, The Miami Herald (TNS); The National Memo, December 3, 2014

December 5, 2014 Posted by | Drug Testing, Rick Scott, Welfare Recipients | , , , , , , , , , | Leave a comment

The 11th Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution

The key passage in today’s opinion striking down part of the Affordable Care Act appears on page 113, where the two judge majority explains how they will determine whether this law is constitutional:

In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.

This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. The Constitution provides that Congress may “regulate Commerce…among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution.

A law requiring most Americans to either carry insurance or pay slightly more taxes clearly regulates the national market for health care. It determines how people will finance health care purchases. It lowers the cost of health insurance. And it protects that market from something known as an “adverse selection death spiral.” So that should have been the end of the case. The Court cites no provision of the Constitution limiting Congress’ authority to pass this law because no such provision exists.

Instead, it imposes two extra-textual limits on national leaders’ ability to solve national problems. If the law is somehow “unprecedented,” and if a decision upholding the law lacks vague and undetermined “meaningful limit[s]” on Congress’ authority that somehow upset the balance between federal and state power, then the law must be struck down even if the Constitution’s text says otherwise.

Yet even if these two novel limits are taken seriously, the court’s analysis still makes no sense. For one thing, the law is only “unprecedented” in the sense that it preferred a market-driven solution to the problem of widespread uninsurance over more government driven solutions such as Medicare. The truth is that Congress already requires nearly all Americans to purchase health insurance — and they have done so for many years. Every year the federal government collects taxes which are in no way optional. A portion of these taxes are then spent to buy health insurance for the elderly (Medicare) for the poor (Medicaid) and for children (SCHIP).

So the only real question in this case is whether the government is required to first take your money and then buy health coverage for you, or whether the Constitution allows Congress to cut out the middle man.

The Court is also simply wrong to claim that a decision upholding the ACA would necessarily mean that there are no limits on federal power. The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.

Because the ACA’s regulation of the national insurance market cannot function without a requirement that nearly every American carry insurance. this requirement is clearly constitutional under Justice Scalia’s statement that Congress possess “every power needed” to make it’s economic regulations effective. Moreover, upholding the Affordable Care Act under Justice Scalia’s rule would require a court to do nothing more than hold that the Affordable Care Act is constitutional. There is no federal law which depends upon mandatory broccoli purchases, for example, in order to function properly in the same way that the ACA’s preexisting conditions provision can only function properly in the presence of an insurance coverage requirement. Accordingly, the court’s concern that upholding the law would destroy any limits on federal power is unwarranted.

As a final note, it is likely that conservatives will tout the fact that Judge Hull was appointed by President Clinton in the same way that progressives touted Bush-appointed Judge Sutton’s decision rejecting an ACA challenge. The two judges are not comparable, however. Judge Sutton is a former Scalia clerk who stood on the vanguard of the conservative legal movement for many years. Judge Hull, by contrast, is a compromise nominee Clinton selected in order to overcome obstruction from the Republican-controlled Senate.

Hull has a long record of conservative criminal and individual rights decisions. We now know that she is also very far to the right questions of federal power. That is unfortunate, but it also places her well to the right of some of the Supreme Court’s most conservative members.

 

By: Ian Millhiser, U. S. News and World Report, August 12, 2011

August 12, 2011 Posted by | Affordable Care Act, Commerce Clause, Congress, Conservatives, Constitution, Consumers, Democracy, Democrats, GOP, Health Care, Health Care Costs, Health Reform, Ideologues, Ideology, Individual Mandate, Insurance Companies, Medicaid, Medicare, Politics, Pre-Existing Conditions, President Obama, Republicans, SCOTUS, Supreme Court, Under Insured, Uninsured | , , , , , , , , , , , , , , | Leave a comment

   

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