Wednesday, January 01, 2014

Drug testing beneficiaries unconstitutional Florida judge rules

From Reason.com:
A district court judge in Florida granted summary judgment for the plaintiff in a case challenging the constitutionality of a law requiring welfare recipients to submit to drug testing.
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Fair enough. Making beneficiaries pass a drug test as a condition of receiving welfare is a bridge too far in my opinion. The drug-testing Work and Income conduct is on people who will be referred to jobs that require applicants to be drug-free. That's a different matter.

Paula Bennett:
“Around 40 percent of the jobs listed with Work and Income require drug tests and it’s reasonable for employers to expect people to be drug free.”
As I've commented before the whole drug-testing issue is thorny for me, beneficiary or not. If private companies want drug-free employees that's their prerogative. However it's unrealistic to broaden the expectation to ever-increasing types of employment. And a breach of people's privacy rights...which I think is what this judge is ruling.

10 comments:

Anonymous said...

Oh for goodness sake Lindsay: this judge is at least half-right: welfare is unconstitutional in the US.

Certainly that was the overwhelming view of all constitutional scholars until 1936. Right back to the time of the founding fathers, it was well known that the constitution permitted government actions to support the "general welfare" but not what was known as "particular welfare". Under an originalist reading of the US constitution, all welfare is unconstitutional. period.

So this judge got it half-right. The other half? Well if you have welfare, paid for by the 10% of Americans who actually pay net taxes, then those "recipients" (aka buldgers) can be placed under any condition whatsoever congress may by law or regulation establish - drug testing, relinquishing the franchise, requirements to live in a workhouse or attend a chain gang --- again, all of which have been found completely constitutional for the first 200 years at least of the constitution of these United States.


In New Zealand, the situation is much, much simpler. Parliament is sovereign, and it can impose absolutely any condition upon welfare recipients, --- unlike even in the UK where the European Court of Human Rights provides some check on the parliament.

PM of NZ said...

"unrealistic to broaden the expectation to ever-increasing types of employment"



By similar reasoning, can I assume that it shouldn't be unrealistic of employers to expect their employees abide with the laws of the land whilst in their employ?

Irrespective of your personal views, as any drug usage is currently deemed illegal, employees and prospective ones should be totally drug free.

Lindsay Mitchell said...

What an employee does in his private life should be no business of the employer so long as the employee does the job he is paid to do. Again, a problem shouldn't arise if the employee is taking personal responsibility for his actions. If drug use affects his work effort and productivity he should manage or curtail it. At the same time, an employer not fairly served by the employee should be free to sack him. That creates a feedback loop in which it is in the employee's interests to not abuse drugs.

The tightly regulated, worker protected environment we have created just adds problems instead of alleviating them.

In any case PM of NZ, the trend now seems to be towards decriminalisation of cannabis. So your question will ultimately be redundant.

PM of NZ said...

Lindsay, your first para lays out the ideal closed loop scenario with which I would fully agree.

Unfortunately in the real world, employees do not 'take personal responsibility for their actions', requiring an evermore stringent 'tightly regulated, worker protected environment'.

We already have generations of the welfare addicted/entitled that are unwilling to get off their backsides regularly enough to work, let alone letting them decide that they'll turn up drugged to the eyeballs.

As for the decriminalisation of cannabis, again maybe fine in theory, I feel drug laws re employment will remain necessary.

Brendan said...

Lindsay

Anecdotally, substance abuse of all kinds is a substantial reason why people remain unemployed, or are simply unemployable.

Why should the tax payer be forced to keep someone whose lifestyle prevents them from obtaining employment and getting off welfare?

When it comes to 'competing rights' then surely we must reward responsible rather than irresponsible behaviour?

Lindsay Mitchell said...

"Why should the tax payer be forced to keep someone whose lifestyle prevents them from obtaining employment and getting off welfare?"

I agree. That's why I support what WINZ are doing with the unemployed.
Perhaps I didn't make that clear.

But what about someone who is terminally ill, uses some cannabis because it is the only painkiller that doen't make them nauseous, and is on a Supported Living Payment (ex invalid's benefit)?

Or the parent of a severely disbled child, who smokes a joint once a week when their child is in respite care, who is also on SLP?

What I can't condone is drug-testing across the board as a prerequisite for benefit eligibility.

The ruling the Florida judge made applied to parents seeking Temporary Assistance for Needy Families which is time-limited (in that state) to 4 years in a lifetime anyway.



PM of NZ said...

"someone who is terminally ill, uses some cannabis"

"who smokes a joint once a week"

Specific exceptions with conditions to justify the crime. In my black and white worldview, illegal.

"What I can't condone is drug-testing across the board as a prerequisite for benefit eligibility"

So by your justifications you're quite happy to pay for someone to break the law, whereas i fully agree with Brendan with his "Why should the tax payer be forced to keep someone whose lifestyle prevents them from obtaining employment and getting off welfare?".



Brendan said...

Hi Lindsay

The two examples you give of "justifiable" drug use must surely be considered exceptions rather than the rule?

And in my experience as a former user, (in my youth of course) cannabis smokers rarely limited their intake to 'once a week' when their children were in responsible care.

Typically exceptions do not provide a sound basis for crafting legislation.

I note that Denver has now legalised cannabis so it will be interesting to see how that experiement plays out over time. It's hard to see how you keep a drug that is legal out of the hands of children, and the research I have read suggests that cannabis is most harmful to those under the age of 18.

I appreciate that drug use by consenting adults is a popular libertarian cause, and in a perfect world it might cause no harm. :-)

Brendan W said...

Welfare comes with terms and conditions set by the person who provides it.

If you don't like those terms then don't apply.

This apply to drugs.

Anonymous said...

That's why I support what WINZ are doing with the unemployed.

What are WINZ doing with the "unemployed" Throwing them off the benefits and into the gutter? No? Didn't think so: that's why I don't support anything WINZ does.

Welfare comes with terms and conditions set by the person who provides it.

RIght. And bludgers (and I include codger-bludgers i.e. National™ Superannuitants in that list as well) don't deserve drugs. or booze. or smokes. or cars. or PlayStations. or xBoxen. or ice cream. or coke. or pepsi. or kids. or chocolate or gum or internet. or votes. or basically anything.

Just because something is legal doesn't mean bludgers deserve it!