TEXAS LONE STAR FORUM
By F. Scott McCown
As part of legislation to extend federal unemployment insurance benefits through 2012, Congress is considering a very bad policy idea: encouraging states to drug test every applicant for unemployment insurance and deny compensation to any who fail. It's such a bad idea that it has twice failed to make it through the Texas House of Representatives, as conservative a legislative body as they come.
The whole thing is really a ploy. The proponents of drug testing are trying to undermine public support for UI by associating UI applicants with drug users. They want the public to think about UI like it does welfare, blaming the unemployed-rather than the economy-for their plight.
Unemployment insurance is not welfare. By definition, people who qualify lost their job through no fault of their own. They are typically men and women who have worked steadily, often for years or even decades, and have largely covered the cost of their employer's UI tax indirectly through reduced wages.
Congress should not subject these American workers to the indignity of drug testing. In the first place, research shows that American workers are very unlikely to use illegal drugs. And federal courts have squarely held that mandatory drug testing in situations of this sort violates the Fourth Amendment's prohibition against unreasonable search and seizures because there is no individualized suspicion of wrongdoing or special need that outweighs a person's right to keep the government off his back and out of his business.
The personal invasion goes beyond having to pee in a cup. The worker would also have to disclose to the government all the medications they are taking to explain any false positive. And there will be many false positives, subjecting people to searching government inquires in their effort to clear their name.
Not only is drug testing unnecessary and intrusive, it is expensive. States would have to create an entire new bureaucracy and pay significant lab cost to drug test every UI applicant in America. New claims for unemployment insurance average about 400,000 a week. Weeding out false positives can be particularly costly. At a time when states are struggling to fund vital services such as public education, Congress should not encourage them to waste money on such drug testing.
Drug issues should be dealt with in the criminal justice or social services systems, not the UI system. Of course, as I already said, this debate isn't really about drug policy; it's about undermining public support for UI.
But let's talk drug policy.
UI is designed to pay for a family's food, clothing and shelter while the breadwinner finds a new job. What if your brother-in-law foolishly smokes pot, but also works steadily to support your sister and their children? If he loses his job because of the economy, do you really think it's smart to deny his family unemployment benefits, forcing them onto welfare or worse yet leaving them destitute?
To automatically deny these benefits when an unemployed worker fails a drug test is like imposing a massive, mandatory fine for drug use without any of the discretion or treatment provided by our criminal justice and social services systems. Such a penalty is both too harsh and counterproductive.
Admittedly, Congress is merely considering giving states an option to drug test applicants. But this is the beautiful part of the ploy. Congress would take none of the responsibility while igniting debates in the 50 states. In the face of such a congressional endorsement, it would be hard for states to just say no.
Frankly, how Congress ultimately comes down on this issue is sort of a test itself. Congress says its top priority is the American worker. But if Congress encourages states to subject American workers to unnecessary, intrusive, expensive, and ill-advised drug tests, it is proof positive that for Congress, the American worker really doesn't count for much.
McCown is executive director of the Center for Public Policy Priorities.
Copyright (C) 2012 by the Texas Lone Star Forum. 3/12