Gov. Rick Scott’s administration has now received two stern rebukes from federal judges about his unconstitutional push to drug-test Florida’s welfare applicants. The first judge in 2011 blocked the new policy as likely unconstitutional. This week, a three-judge appeals court panel chimed in with the same conclusion. Florida, the judges unanimously ruled, has “failed to meet its burden in establishing a special need for its mandatory, suspicionless drug testing.”
Since four judges agree that his drug-testing rule is most likely illegal, you would think that the governor would feel at least slightly chastened. Unsurprisingly, Gov. Scott is unapologetic and unwavering. On Tuesday, he vowed that “this decision will be appealed to the Supreme Court.”
Good luck with that. The U.S. Supreme Court takes up only a small fraction of the appeals it receives, and those tend to be cases where the justices can clarify areas of law or resolve conflicting lower court decisions. In this case, there is no ambiguity. Everyone except Gov. Scott’s attorneys agrees that his drug-testing push was unconstitutional.
Not long after Gov. Scott signed the bill two years ago, its senselessness became clear. The mandatory drug tests demonstrated that welfare applicants do not use illegal drugs at an unusually high rate, and the tests ended up costing the state money, since the state covers the cost whenever applicants pass the test.
But the real problem with the law is that is violates Floridians’ Fourth Amendment protection against unreasonable government searches and seizures. Courts allow governments to conduct drug tests only when they can show a “special need” that justifies imposing on citizens.
In this case, the state has offered no valid reason to suppose that welfare applicants should be singled out for drug tests. As Judge Rosemary Barkett wrote for the 11th Circuit Court of Appeals, “The simple fact of seeking public assistance does not deprive a (welfare) applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy.”
Gov. Scott, however, presses on with an issue that has strong, if ill-informed, public support. His general counsel vows to “keep pursuing it until there’s finality.” By all means, pursue. Rejection from the highest court in the land finally might give the governor a needed inkling of self-doubt.
for The Post Editorial Board