Editorial: Positively Ridiculous; Drug Tests for N.H. Welfare Recipients
When we read the other day that two New Hampshire state representatives had introduced legislation that was costly, ineffective and probably unconstitutional at a time when the state faces serious fiscal challenges, we wondered, “Are these folks on drugs, or what?”
The bill, introduced by Reps. Donald LeBrun of Nashua and Jeanine Notter of Merrimack, both Republicans, would require applicants for Temporary Assistance for Needy Families (the program formerly known as welfare) to pass a drug test. The Department of Health and Human Services estimates that 2,670 applicants would need to be screened twice a year under the legislation, since recipients of aid must reapply every six months. The applicant would have to front the cost of the $45 test and would be reimbursed if he or she passed.
There are so many things wrongheaded about this proposal that it’s hard to know where to start, but since it’s New Hampshire, let’s start with the cost. The department cites data indicating that somewhere between 2.6 percent and 8.8 percent of applicants would test positive for drugs. That would result in program savings of between $50,000 and $170,000, while reimbursement costs would range between $220,000 and $235,000. The department cites numerous other expenses that cannot yet be quantified.
Of course, drug tests are susceptible to rendering false positives and do not speak to alcohol use, so their overall utility is doubtful.
And then there’s the fact that the incidence of drug use among welfare recipients generally mirrors that of the rest of the population. As Sarah Mattson, a lawyer with New Hampshire Legal Assistance, put it during testimony on the bill before a House committee this week: “There is a persistent and vicious myth that people who are receiving welfare are engaging in drug use at higher percentages than people in the general population and that is simply not borne out.”
The final objection is perhaps the most telling one: If passed into law, the drug testing regimen would likely be declared unconstitutional. The U.S. Supreme Court has ruled that, with very limited exceptions, drug testing must be based on an individualized suspicion of wrongdoing if it is not to run afoul of the Fourth Amendment’s prohibition against unreasonable searches. Similar laws in Florida and Michigan have been successfully challenged in court by the American Civil Liberties Union. “If you choose to go down this road, you will be choosing lots of litigation,” Deputy Attorney General Ann Rice told the committee. This is a choice the Legislature has made numerous times in recent years, with unhappy results. In this case, the road not taken is the preferable one.
All this is not to say that there isn’t room for any program of regular drug testing in New Hampshire. There might be a compelling case for testing legislators themselves. After all, they operate dangerous legislative machinery, many of them are armed (although fewer than last session), they often seem disoriented and the bills they pass often bear the hallmarks of impaired judgment. We don’t presume that members use drugs at a higher rate than the general population — unless they are of the geriatric prescription variety — but, hey, you never know.