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“Walker Pushing Drug War Testing Scheme”: And He Doesn’t Care That The Courts Say That’s Unconstitutional

According to Wisconsin Governor Scott Walker, what American employers are really looking for these days is “someone who can pass a drug test.”

Walker made that remark in a question-and-answer session in Washington, D.C., Friday following his remarks at the American Action Forum’s inaugural Fred Malek lecture series, which are named after the GOP powerbroker who served as Richard Nixon’s “Jew counter”). The Wisconsin governor is expected to formally unveil the drug testing proposal in his budget next week.

The imitative would require drug testing for recipients of government benefits like food stamps and Medicaid. Walker says his plan is justified because there are many open jobs waiting for people who can pass drug tests and know “how to show up [for work] everyday five days a week.”

Walker first touted the idea while running for re-election last year, and pledged to “require a drug test for those requesting unemployment and able-bodied, working age adults requesting Food Stamps from the state.” But, sadly for Walker, the plan is almost certainly unconstitutional.

Federal courts have found that laws that require all recipients of welfare benefits to be drug tested violate the 4th Amendment as an unconstitutional search and seizure. However, states have recently passed laws that only require drug tests for those on government assistance for whom there is “a reasonable suspicion” of illegal drug use. This is considered far more likely to pass constitutional muster than blanket drug testing of everyone who applies for public assistance.

Walker did seem aware of these obstacles at the event, describing the pushback from the courts as “a classic example where the federal government pushes back and says you can’t do that.”

But even if Walker does manage to require drug testing for welfare recipients, the plan would likely be quite expensive for taxpayers. Before it was overturned in federal court, Florida’s mandatory drug test law ended up costing the state more money than it saved.

In the meantime, it does make for good political rhetoric. Very few candidates have won election on a platform giving more money to drug addicts. But Walker’s plan is unlikely to turn into effective or lasting legislation.

 

By: Ben Jacobs, The Daily Beast, January 30, 2015

January 31, 2015 Posted by | Drug Testing, Scott Walker, 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

“Crossing A Constitutional Line”: Will The Supreme Court Let Florida Drug-Test All Its Government Employees?

It might seem reasonable that Florida’s governor Rick Scott wants to ensure all state agencies are drug-free workplaces; after all, why would you want your taxpayer money going to support the habit of some stoned, slothful bureaucrat? But what is the state really asking for when it demands that each public servant pee in a cup?

When Governor Scott issued an executive order for mandatory drug testing across the state’s entire public workforce in March 2011, the political logic seemed straightforward: “the State, as an employer, has an obligation to maintain discipline, health, and safety in the workplace.” But underlying that seeming moral obligation are some questionable social assumptions. What does a positive test mean when your economic fate hinges on the result? What kind of “discipline” is maintained by subjugating bodily privacy in the name of “public safety”?

Today the Supreme Court is weighing the constitutional question the policy has evoked: When your boss is the state, can the “drug-free workplace” be a Fourth Amendment free zone?

The Supreme Court is considering whether to take up Scott v. American Federation of State, County and Municipal Employees Council (AFSCME) 79, to review whether the state can legitimately administer “drug testing in the absence of reasonable suspicion of drug use,” based on the state’s interest in ensuring a drug-free workplace for 85,000 state employees and applicants for state jobs.

Scott’s Supreme Court petition attempts to revive the issue following a series of lower-court defeats. AFSCME, representing tens of thousands of public servants, filed a legal challenge in May 2011 contending that the testing violated Fourth Amendment protections from unreasonable searches, and that the state had offered no real safety-related reason for such a broad testing requirement. The union argues in its brief, “allowing the state to define its interests at such a high level of generality would create an exception that swallows the rule.”

The federal district court ruled in 2012 that the executive order was an unconstitutional violation of workers’ privacy and the US Court of Appeals for the Eleventh Circuit affirmed that decision. However, while the state has since suspended the policy (and a similar statute passed by the legislature has also been halted), it has been remanded to the lower court for further litigation to rework the mandate. The administration is now trying to revamp the mandate to apply to a narrower set of jobs—mirroring existing policies targeted to safety-related positions, like corrections officers.

The Supreme Court will conference on whether to take up the case or just let the lower-court sausage-making proceed. For now, the main outcome is the Eleventh Circuit’s decision that the original order was unacceptably broad, amounting to, in the words of the court, “a drug testing policy of far greater scope than any ever sanctioned by the Supreme Court or by any of the courts of appeals.”

Labor advocates don’t necessarily object to drug test policies for certain jobs based on specific work-related safety concerns. Rather, AFSCME objects to the sweeping mandate of drug testing the whole workforce and prospective future employees, screening the bodies of school bus drivers and museum ticket vendors alike, for anything from a meth habit to an occasional joint.

In its defense of the policy, the state points out that drug testing is already common in private sector workplaces. But civil libertarians note that the state, unlike a private firm, is bound by Fourth Amendment restrictions on unreasonable government searches.

On top of its crusade for a drug-free state payroll, Florida has also sought to clean up its welfare rolls with a policy of mandatory drug testing for welfare applicants. The law, enacted by the legislature in 2011, was ultimately struck down in federal court. But it also sparked a national outrage (and some notable satire), because it invoked the classic Reaganite trope of public aid recipients as undeserving miscreants looking to “game the system.” The stereotype has historically been reflected in the image of black “welfare queen,” or more recently, in the underworked, overpaid state bureaucrat. Nationwide, lawmakers have glommed onto this convenient political logic of drug-screening people involved with public assistance programs, with recent proposals for mandatory testing in Texas, Pennsylvania, Washington and other states.

Whether the urinalysis dragnet targets people seeking government support or those delivering public services, the presumptions underlying mandatory testing feed into the oppressive stigma of being tied to the public system, which in turn stokes public mistrust and backlash against government itself.

Shalini Goel Agarwal, an ACLU of Florida attorney who is working on the case, says that for welfare recipients, blanket drug-testing reflects “an assumption that if they’re relying on public benefits, must be because those folks are at fault in some way, it’s because they’re using drugs…. The facts don’t seem to bear out the stereotype, but there is this kind of villainization that’s going on.”

But despite Scott’s arbitrary drug-test mandate, Agarwal says, “The Fourth Amendment applies just as surely to poor people and just as surely to state employees as it does to anybody else.”

Historically, drug testing in both public and private workplaces has been controversial, not only because of its physical intrusiveness, but because it is often just inaccurate. Civil liberties groups point out the risk of botched results and false positives. Moreover, arbitrary surveillance of workers’ behavior through invasive tests can have a toxic impact on the workplace social environment.

In some cases, the data debunks the political rhetoric it was supposed to bolster. Advocates cite research data on welfare applicants suggesting that impoverished people actually live pretty clean: only about 2.5 percent of the applicants tested had positive results, compared to a rate of about 9 percent for the general population. Similarly, testing of employees and applicants at the state Departments of Transportation, Juvenile Justice, and Corrections showed positive results ranging from less than one percent to about 2.5 percent.

But whatever the data say, labor advocates argue that the state has crossed a constitutional line in both privacy and labor rights in its workplaces.

Many of the legal challenges to drug-test policies, Agarwal notes, have been led by unions, because “individual employees are scared to come forward, they’re scared for their own job security, they’re scared what’s going to happen to them and their families, and so they don’t come forward. And the only way effectively to get at this issue and to challenge the employers head on is to do it through the union.”

While labor has effectively resisted Florida’s effort to track drug use in its workforce, the draconian testing policy has exposed the government’s problem with data abuse. The behavioral policing of workers and the poor tells us little about their social values, but reveals much about how supposed “public safety” interests at the center of power can become a tool for invading bodily privacy at the social margins.

 

By: Michelle Chen, The Nation, April 18, 2014

April 21, 2014 Posted by | Constitution, Rick Scott | , , , , , , , | 1 Comment

“Gun Nuts Target One Of Their Own”: No Space For People Of Good Will To Seek Common Ground

Here is what he said: “…all constitutional rights are regulated, always have been, and need to be.”

It would seem to be a self-evident truth. After all, your First Amendment right to freedom of speech is regulated. If you don’t believe it, write something libelous about a guy with deep pockets and man-eating lawyers. Your Fourth Amendment right to freedom from unreasonable searches and seizures is regulated and then some. If you don’t believe that, pick up your phone and ask the NSA agent tapping your line.

Unfortunately for him, Dick Metcalf, who made the aforementioned observation, was not referring to the First Amendment or the Fourth. No, he was talking about the Second. He’s been out of work ever since.

We are indebted to New York Times reporter Ravi Somaiya for bringing this story to light on Sunday. Metcalf, who lives in Barry, Illinois, is not a gun hater. To the contrary we are told that he is — or was, at any rate — one of the most prominent gun journalists in the country, a self-described “Second Amendment fundamentalist” who, at 67, has devoted most of his adult life to gun rights. He hosted a TV program about guns. Gun makers flew him around the world and sent him their products for review. And he had a regular column in Guns & Ammo magazine.

In his December column, Metcalf offered a nuanced argument that gun enthusiasts should accept some minor regulation of their Second Amendment rights. Specifically, he said, a requirement that people who wanted to carry concealed weapons undergo 16 hours of training was not “excessive.” The way his fellow gun lovers responded to this, you’d have thought he’d argued for U.N. confiscation of every gun, arrow and slingshot in America.

There were death threats. He lost his show. Subscription cancelations poured in. Advertisers demanded he be fired. And he was.

The community he had supported so faithfully had made him a non-person. See, that community has a simple credo: guns — no restrictions. And even the slightest deviation from that absolutist mantra is grounds for expulsion. If you are only with them 99 percent, you are not with them at all. George Orwell had a word for it: groupthink.

Metcalf’s experience is eye-opening, disheartening and worth remembering next time there is a mass shooting — they come with the regularity of buses — and you find yourself wondering why we can’t all agree on some simple, common-sense ideas to take weapons of mass destruction out of the hands of those who should not have them.

Why not expanded background checks? Why not mandatory gun-safety classes? Why not some system of mental-health reporting?

Think of Metcalf when you hear yourself asking those questions. Then ask yourself how many other Metcalfs must be out there, how many other gun-rights advocates who know in their hearts something has gone haywire when mass shootings are so frequent they barely count as news. And maybe these people would speak up as Metcalf did — except they know they’d be treated as Metcalf was. So they say nothing. And silence enforces silence.

This is the tragedy of the American gun debate. It offers no space for people of good will to seek common ground. Gun-rights advocates have embraced a “with us or agin us” ethos under which even someone as unimpeachably pro-gun as Dick Metcalf becomes an enemy just because he has a (slightly) different idea.

For their sake and the country’s, thoughtful gun owners must find the moral courage to face and fix that sad state of affairs. Until they do, the debate over guns is likely to ricochet from one mass tragedy to the next without ever finding consensus. It takes two sides to reach consensus.

And in America, one side’s not even trying.

 

By: Leonard Pitts, Jr., The National Memo, January 8, 2014

January 9, 2014 Posted by | Gun Control, Guns | , , , , , , , | Leave a comment

“A Lucrative Fight Against Big Brother”: Much Of Movement Conservatism Is A Con And The Base Are The Marks

In recent months, the extent to which fundraising drives Republican tactics has come into sharper focus. As conservatives prepared for their government shutdown, for example, Brian Walsh, a former spokesperson for the National Republican Senatorial Committee, said, “[T]his is about political cash, not political principle.”

This quote came to mind late last week when Sen. Rand Paul (R-Ky.) announced he plans to lead a class action lawsuit against the NSA over its data collection programs.

Paul claimed on Fox News that since he started collecting signatures six months ago, hundreds of thousands of people have signed on. Paul wants to take his suit to the Supreme Court.

“The question here is whether or not, constitutionally, you can have a single warrant apply to millions of people,” Paul said of the suit. “So we thought, What better way to illustrate the point than having hundreds of thousands of Americans sign up for a class action suit?”

Because of the scope of the NSA’s activities, Paul added, “every person in America who has a cell phone would be eligible for this suit.”

To be sure, legal challenges to NSA surveillance programs are important and noteworthy, and lawmakers should be engaged in a meaningful debate over the scope and utility of the national security state. A class-action suit like this one would be worth watching closely.

But taking a closer look at Rand Paul’s initiative raises questions about what’s really driving the effort.

In this case, Paul hasn’t actually filed the lawsuit; he’s simply talking to conservative media outlets about his intention to eventually go to court. When might we expect this to begin? “His office did not give the specific timeline for when the senator would file the suit,” The Hill reported.

Well, at least it’ll break new legal ground, right? Actually, no: “So far though, the details of Paul’s lawsuit are murky. A legal counsel for Paul told Daily Intelligencer Friday that he expects the case will be similar to another NSA suit filed by birther provocateur Larry Klayman.”

Hmm. So, Rand Paul is eager to talk to conservative media about a lawsuit he hasn’t filed that will be duplicative of a lawsuit someone else has already filed. So why bother? Steve M. at No More Mister Nice Blog flagged a likely explanation:

Paul’s Senate campaign website already encourages individuals to “please sign below and join my class-action lawsuit and help stop the government’s outrageous spying program on the American people.”

The solicitation, which asks for individuals’ names, email addresses and zip codes, also asks for a donation to help “stop Big Brother from infringing on our Fourth Amendment freedoms.”

Oh, I see. Rand Paul’s campaign operation – as opposed to his Senate office – is overseeing this project. Like-minded Americans can fight “Big Brother” by giving a U.S. senator their name, email address, zip code, and their credit card number if they don’t mind. Paul isn’t talking to conservative media to talk about the lawsuit – because at this point, there is no lawsuit – so much as he’s making the rounds to encourage people to go to his campaign website. That way, they can support a project that will encourage the senator to go to court to file a suit that another conservative group is already litigating.

Chris Hayes made a comment last year that continues to resonate: “Much of movement conservatism is a con and the base are the marks.”

 

By: Steve Benen, The Madow Blog, January 7, 2014

January 8, 2014 Posted by | Conservatives, Rand Paul | , , , , , , | Leave a comment

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