Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits

David H. Carpenter
Legislative Attorney

For decades, federal policymakers and state administrators of governmental assistance programs, such as the Temporary Assistance for Needy Families (TANF) block grants, the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), the Section 8 Housing Choice Voucher program, and their precursors, have been concerned about the “moral character” and worthiness of beneficiaries. For example, the Anti-Drug Abuse Act of 1988 made individuals who have three or more convictions for certain drug-related offenses permanently ineligible for various federal benefits. A provision in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 went a step further by explicitly authorizing states to test TANF beneficiaries for illicit drug use and to sanction recipients who test positive. In part prompted by tight state and federal budgets and increased demand for federal and state governmental assistance resulting from precarious economic conditions, some policymakers recently have shown a renewed interest in conditioning the receipt of governmental benefits on passing drug tests. For example, in February 2012, the President signed into law an amendment to the Social Security Act that authorizes states to condition the receipt of certain unemployment compensation benefits on passing drug tests. Additionally, lawmakers in a majority of states reportedly proposed legislation in 2011 that would require drug testing beneficiaries of governmental assistance under certain circumstances.

Federal or state laws that condition the initial or ongoing receipt of governmental benefits on passing drug tests without regard to individualized suspicion of illicit drug use are vulnerable to constitutional challenge. To date, only two state laws requiring suspicionless drug tests as a condition to receiving governmental benefits have sparked litigation, and neither case has been fully litigated on the merits. To date, the U.S. Supreme Court has not rendered an opinion on such a law; however, the Court has issued decisions on drug testing programs in other contexts that have guided the few lower court opinions on the subject.

Constitutional challenges to suspicionless governmental drug testing most often focus on issues of personal privacy and Fourth Amendment protections against “unreasonable searches.” The reasonableness of searches generally requires individualized suspicion, unless the government can show a “special need” warranting a deviation from the norm. However, governmental benefit programs like TANF, SNAP, unemployment compensation, and housing assistance do not naturally evoke special needs grounded in public safety that the Supreme Court has recognized in the past. Thus, if lawmakers wish to pursue the objective of reducing the likelihood of taxpayer funds going to individuals who abuse drugs through drug testing, legislation that only requires individuals to submit to a drug test based on an individualized suspicion of drug use is less likely to run afoul of the Fourth Amendment. Additionally, governmental drug testing procedures that restrict the sharing of test results and that limit the negative consequences of failed tests to the assistance program in question will be on firmer constitutional ground.

Numerous CRS reports focusing on policy issues associated with governmental benefit programs also are available, including CRS Report R40946, The Temporary Assistance for Needy Families Block Grant: An Introduction, by Gene Falk; CRS Report R42054, The Supplemental Nutrition Assistance Program: Categorical Eligibility, by Gene Falk and Randy Alison Aussenberg; CRS Report RL34591, Overview of Federal Housing Assistance Programs and Policy, by Maggie McCarty et al.; and CRS Report RL33362, Unemployment Insurance: Programs and Benefits, by Katelin P. Isaacs and Julie M. Whittaker.


Date of Report: February 24, 2012
Number of Pages: 16
Order Number: R42326
Price: $29.95

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