Liberty Defense League Timothy Baldwin Romans 13

 
You Are Here: Articles Monday, May 18, 2015

by Tim Baldwin

For the past eleven years I have been practicing law as a criminal prosecutor and defense attorney. I have closely seen how the “War on Drugs” has ruined people’s lives and given tremendous, over-reaching police power to government. If you want to reduce police power and reduce taxes, there is a tremendous place to start. However, some Republicans only want to grow this police power. The latest example of this is Gov. Scott Walker’s intended policy of mandatory drug testing of welfare and unemployment recipients without even a suspicion of illegal drug use.

Some political analysts speculate that Walker is making mandatory drug testing a key issue because he feels all Republicans support this; and as a 2016 presidential candidate, gaining popularity in the realm of economics will be the Republican’s main thrust, undoubtedly, to take back the Whitehouse. Since many Republicans deem the welfare and unemployment system unconstitutional and financially burdensome (without a balancing benefit), they support Walker’s policy because they think it will end the welfare system as we know it. In my estimation, Walker’s intended policy is driving many people away from the Republican Party.

The philosophical contradiction is too obvious for comfort. Republicans tout themselves as small-government, constitution-loving advocates. Yet, these same people advance intrusive War-on-Drugs policies, which are some of most costly to taxpayers and egregious to our rights. Walker’s plan to mandate drug testing on recipients of welfare benefits and unemployment benefits makes this War on Drugs much worse because he intends to mandate drug testing without one smidgeon of suspicion, unlike other States that execute drug testing by requiring “reasonable suspicion” of illegal drug use—a much more prudent approach. One report notes about Walker’s plan,

Walker’s intention to apply this standard to anyone seeking federal assistance, even benefits into which they have paid like unemployment insurance, without any reasonable suspicion of drug abuse is a much more aggressive reform and one which may be unconstitutional. (source)

Indeed, federal courts have ruled that mandatory suspicion-less drug testing is unconstitutional, invoking the Fourth Amendment, guaranteeing the right to be free from unreasonable searches and seizures, as the basis. One such case is the Lebon case. There, the 11th Federal Circuit Court of Appeals stated:

None of the State’s asserted concerns will be ameliorated by drug testing. While we recognize that Florida has a significant interest in promoting child welfare, the State has presented no evidence that the general welfare of the children in the TANF program is at greatest risk absent its drug testing. Nor has the State shown that Florida’s children will be better protected because of mandatory drug testing of TANF applicants…There is no evidence that there is a greater drug use and child abuse within the population of economically disadvantaged families who participate in the TANF program. However, even if child neglect or abuse, for whatever reasons, impacts the lives of families in the TANF program, Florida has a separate, well-established and comprehensive statutory, administrative and judicial scheme…which governs Florida’s obligation to protect children from abuse, abandonment and neglect. (Lebron v. Sec’y, Fla. Dept of Children & Families, 710 F.3d 1202, 1213 (11th Cir. Fla. 2013).

In that case, Florida mandated drug testing in the name of “protecting children,” but the 11th Circuit ruled that such an interest was not so closely connected with mandatory drug testing of welfare recipients as the State proposed. Too, the Court noted that if the State is concerned about abused children (or illegal drug users), it has a system to deal with those problems. Indeed, the judicial dockets are packed with police charging people with illegal drug use and abuse or neglect of children.

The Lebon court rightly stated,

There is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspicion of the Fourth Amendment. (Id.)

Yet, Walker’s plan does not come close to a substantial government interest as "protecting children." His purpose: save the State money. To Walker, we can forget the Fourth Amendment as long as the State saves money. This policy is extremely dangerous to liberty and should be rejected by any advocate of limited government.

Now, compare Walker’s plan to, say, a driver-license holder’s “implied consent” (because driving is a privilege granted by the government) to give a breath or blood sample. Notably, state laws that mandate an implied consent require an officer to have reasonable or particularized suspicion of DUI before having authority to require the driver’s breath or blood sample. Walker’s plan is like police having power to establish random checkpoints where all passing drivers are mandated to provide a breath test. This is a blatant violation of the Fourth Amendment.

Yet Walker and many Republicans see no problem with the kind of mandatory drug testing where those tested are receiving public benefits. Some Republicans may say: if the recipients are not using illegal drugs, they have nothing to hide and should submit to this government mandate. What an insult to liberty! These good Republicans seem to forget that every tyrannical regime that ever existed used this line of logic to advance tyranny and trample individual liberty.

Now, let's bring the underlying issue a little closer to the homes of Republicans. What about mandating other government intrusions into those individuals and corporations that receive tax subsidies, such as churches that are tax-exempt under IRC 501(c)(3)? You say, what right does a welfare recipient have to receive a public benefit? Well, what right do these corporations have to receive tax credit or exemption? If Mr. Joe has no right to public subsidy, neither do corporations, regardless of their registered purpose.

So, should government drug test the pastors and staff of those churches to ensure that they are not wasting tax-exempt dollars? Imagine how Republicans would rise in righteous indignation at such a proposal (see example of this here). Naturally, the indignation would be even greater if a Democrat made the proposal! Yet, when it comes to intruding the privacy of the poor and needy—those that many Republicans assume are the worst of society—Walker sees no moral or constitutional dilemma.

Some Republicans suppose that mandatory drug tests would save taxpayers money by depriving public benefits to people who test positive for an illegal substance (even though there are studies to show that creating more bureaucracy to regulate this will cost more money than it saves). Still, assuming some people’s benefits are denied benefits under Walker’s plan, what gain has been made? and what has been lost?

When virtually everything in our society is deemed a privilege, opening the door to this kind of arbitrary government power and making the Fourth Amendment meaningless are prices too high to pay where the Constitution and individual liberty are supposed to be supreme. In other words, there is a higher value we should protect: i.e. protecting the privacy and rights of all citizens. 

Unfortunately, many Republicans really do not want to decrease the size and power of government, nor do they want to operate by the Constitution. They simply want to decrease portions of government they dislike while increasing portions of government they like. Walker’s policy epitomizes this reality. While some Republicans may think sacrificing the Constitution for the sake of saving money is a good thing; I think it is a much greater evil.

If Republicans want to reconnect with the people and if they want follow their own message of limited government, they should consider more than the economical bottom-line. They should consider the individual’s interests and the Constitution.

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