Participation in Welfare Is Not Voluntary
Drug testing welfare recipients is an intrusion into private lives not consistent with U.S. values
December 15, 2011
The U.S. has always been distinctive in the priority that we give to individuals' rights and the associated limits that we place on the ability of government to intrude into private lives. That focus on liberty drives the answer to the question as to whether it is appropriate to allow drug testing for welfare recipients.
My colleague Christopher Kulp at the Santa Clara University notes that where personal liberty is a priority, consent becomes a central factor in determining how much intrusion is acceptable. And consent requires that we have a choice in the matter. Private organizations can impose most any requirements on their members they want in part because individuals are free to not join or to quit those organizations. Employers are allowed to test job applicants for drugs under the same logic: One need not apply for such jobs. Even in public schools, which students have a right to attend, we have decided that mandatory drug tests are acceptable for participation in sports and certain clubs because such participation is voluntary.
That takes us to the issue of drug testing welfare recipients. To be clear, the proposed legislation is not about criminal prosecution. Police already have the right to require drug tests where there is probable cause of relevant criminal activity, such as driving while impaired. The right would be broader here, allowing drug testing for welfare recipients short of that legal standard of probable cause.
Do welfare recipients effectively consent to receiving welfare? That depends on whether we think they have a genuine choice in the matter. If we think individuals choose to be on welfare by making decisions over which they have control--like whether to play football for your local high school--then drug testing could be appropriate. But if we think individuals end up on welfare because of circumstances largely beyond their control or because of poor decisions made in the distant past, resulting in no real alternatives, then it is more like the "your money or your life" choice offered by the bandit robbing you at gunpoint. Not a reasonable choice.
I believe the evidence indicates that most people on welfare, and all the children potentially affected, are not there by any reasonable sense of choice. They cannot really "consent" to a drug-testing requirement, and therefore it is an intrusion into private lives not consistent with U.S. values.