After amendments, does Tennessee's drug-testing-for-TANF bill still raise Fourth Amendment problems?

Subject

Opinion No. 12-45, Limitations on Drug Testing as a Condition of Receiving Public Assistance, April 3, 2012

Plain-English summary

Two weeks after the AG issued Opinion 12-41 on drug-testing-for-welfare bills, the Tennessee Department of Human Services (TDHS) came back with a follow-up question. SB 2580 had been amended by Amendments 2 and 3, and TDHS Commissioner Raquel Hatter wanted to know whether the amended bill still ran into the constitutional problems flagged in 12-41.

The amendments did two things. Amendment 2 narrowed the testing universe to adult TANF applicants and recipients who had been arrested or convicted of a Tennessee Drug Control Act offense in the previous five years. Amendment 3 added a separate provision: in addition to Amendment 2's testing, TDHS would test any applicant or recipient where TDHS had "reason to believe" they had used illegal drugs, using a suspicion-based urine drug test.

The AG's analysis split. Amendment 3 looked closer to constitutional. It tracked the Marchwinski v. Howard standard of "individualized suspicion" by requiring TDHS to have "reason to believe" the person had used illegal drugs. Missouri's 2011 statute, Mo. Rev. Stat. § 208.027, used similar language and had not been struck down.

Amendment 2, by contrast, was constitutionally suspect. A drug arrest or conviction up to five years old does not, by itself, establish a reasonable suspicion that the person is currently using illegal drugs. Reasonable suspicion requires "an objective standard, and must be determined from the totality of the circumstances." A stale arrest record alone wouldn't satisfy that. The AG warned the burden of proof was on the state, by a preponderance of the evidence, to establish reasonable suspicion (State v. Day, 263 S.W.3d 891 (Tenn. 2008)).

The opinion also reiterated the unconstitutional-conditions doctrine: even if applicants "consented" to a drug test as a condition of receiving TANF, that consent did not save an otherwise unconstitutional search. LeBron v. Wilkins, 2011 WL 5040993 (M.D. Fla. Oct. 24, 2011); Perry v. Sindermann, 408 U.S. 593, 597 (1972).

The second question was housekeeping: did the amendments apply to both applicants and recipients, or just applicants? Both, the AG said. The plain text of Amendments 2 and 3 covered both groups.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

The amended bill text

Amendment 2 deleted the original first sentence of SB 2580 § 3(a) and replaced it with:

To the extent not prohibited by federal law, the department of human services shall implement a program of substance abuse testing for each adult applicant or recipient who has been arrested for or convicted of a violation of the Tennessee Drug Control Act, compiled at title 39, chapter 17, part 4, within the previous five (5) years and who is otherwise eligible for temporary assistance for needy families referred to in this part as (TANF), or a successor program.

Amendment 3 added new subsection (a)(2):

In addition to testing required by subdivision (a)(1), to the extent not prohibited by federal law, if the department has reason to believe that an individual who applies for or who receives Temporary Assistance for Needy Families (TANF) has used illegal drugs, then the department shall institute and require a suspicion-based urine drug test program consistent with this part to screen each such individual.

The Sixth Circuit's binding precedent

Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), aff'd en banc by an evenly divided court, 60 Fed. Appx. 601 (6th Cir. 2003), held that Michigan's suspicionless drug testing of TANF applicants violated the Fourth Amendment. The Sixth Circuit's evenly-divided affirmance left the district court ruling standing as binding precedent in the Sixth Circuit. Tennessee is in the Sixth Circuit, so this is binding federal law for Tennessee federal courts. Denning v. Metropolitan Gov't of Nashville, 564 F. Supp. 2d 805, 813 (M.D. Tenn. 2008), aff'd, 330 Fed. Appx. 500 (6th Cir. 2009).

The Marchwinski court emphasized that where "public safety is not genuinely in jeopardy, the Fourth Amendment precludes suspicionless searches." 113 F. Supp. 2d at 1140 (citing Chandler v. Miller, 520 U.S. 305 (1997), which rejected Georgia's drug-testing of state-office candidates). TANF was created to end government dependence, not to address child abuse or neglect, and no public safety concern justified suspicionless testing. Marchwinski warned that to hold otherwise would let the government conduct suspicionless searches of any government benefit recipient.

Why Amendment 2 fails

Amendment 2 triggered testing based on a drug-related arrest or conviction within five years. The AG concluded that did not constitute reasonable suspicion of current drug use. Reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 21 (1968), and the Tennessee analog State v. Levitt, 73 S.W.3d 159, 172 (Tenn. Crim. App. 2001), requires objective facts that would cause a reasonable officer (or here, TDHS official) to suspect criminal activity by this individual. It is an objective standard determined from the totality of the circumstances. State v. Levitt, 73 S.W.3d at 172.

A five-year-old arrest that never led to conviction, or a conviction several years past with subsequent rehabilitation, would not without more support a reasonable suspicion of current illegal drug use. The state would carry the burden of proof on this by a preponderance of the evidence if contested. State v. Day, 263 S.W.3d 891, 905 (Tenn. 2008).

Why Amendment 3 looks closer to constitutional

Amendment 3 required TDHS to have "reason to believe" the individual had used illegal drugs before testing. That language tracks the Marchwinski standard of individualized suspicion. The AG noted Missouri had recently enacted a similar law, Mo. Rev. Stat. § 208.027, that required "reasonable cause to believe, based on the screening, that an applicant engages in the illegal use of controlled substances." That formulation appeared to pass constitutional muster, though no court had ruled on the Missouri statute by 2012.

Practical challenges

Even if Amendment 3 were enacted, TDHS would face the practical challenge of accurately identifying when objective circumstances created a reasonable suspicion. Wrong determinations could expose TDHS and the state to civil liability. Bivens v. Six Unknown Named Agents of FBI, 403 U.S. 388, 395-97 (1971); United States v. Vite-Espinoza, 342 F.3d 462, 471 (6th Cir. 2003).

Unconstitutional conditions

A common defense to drug-testing-for-benefits programs is that applicants consent in advance. The AG rejected this. The doctrine of unconstitutional conditions, Perry v. Sindermann, 408 U.S. 593, 597 (1972), prevents the state from coercing waiver of a constitutional right as a condition of receiving a government benefit. The Florida court in LeBron applied this in the TANF drug testing context.

Bill structure: amendments control where they conflict with the original

The second question asked whether Amendments 2 and 3 applied to both applicants and recipients or just applicants. The AG said both. The amendments' text was clear. Where amendments conflict with sections of the original bill, the specific provisions in the amendments control. Washington v. Robertson County, 29 S.W.3d 466, 475 (Tenn. 2000); Bible & Godwin Const. Co., Inc. v. Faener Corp., 504 S.W.2d 370, 372 (Tenn. 1974). The opinion noted several remaining provisions of the original bill that conflicted with the amendments and suggested the General Assembly reconcile those if the bill moved forward.

Common questions

What's the difference between a "suspicion-based" and "suspicionless" drug test?

A suspicion-based test is triggered by objective evidence that the specific person being tested is using illegal drugs. That evidence can come from observation, behavior, statements, or prior reliable information. A suspicionless test is applied across the board to everyone in a defined group, regardless of any individual-specific evidence. The Fourth Amendment generally permits the first and prohibits the second when public safety isn't genuinely at risk.

Was Amendment 2's "arrested or convicted within 5 years" criterion really not suspicion?

The AG said it wasn't enough. A five-year-old arrest tells you nothing about current drug use. The standard requires objective facts giving rise to suspicion of current criminal activity. A stale arrest or conviction without anything more current is insufficient under Terry and Levitt.

What if Amendment 2 added "and there is some current indicator of drug use"?

The opinion doesn't say, but the analysis implies that adding a current-indicator requirement would have moved Amendment 2 closer to Amendment 3 territory, where reasonable suspicion is more clearly present.

Did the AG endorse Amendment 3?

The AG said Amendment 3 "appears likely to meet the Marchwinski standard" but flagged practical implementation challenges. The opinion did not give a green light, just noted that the constitutional risk was lower than for Amendment 2.

Could TDHS use a screening questionnaire to develop the "reason to believe" suspicion?

The opinion does not specify what triggers count as reason to believe. Missouri's law, which the AG analogized to, used screening-questionnaire procedures. The accuracy and reliability of those questionnaires would affect both constitutional and practical risk.

What happens if TDHS gets it wrong and tests someone without adequate basis?

The opinion warns of civil liability under Bivens and § 1983 doctrine for unconstitutional searches. The state could be on the hook for damages if a court found the suspicion threshold was not met.

Citations

• 21 U.S.C. § 862b (state authority to drug-test welfare recipients)
• Mo. Rev. Stat. § 208.027 (Missouri reasonable-cause drug-testing law)
• U.S. Const. amend. IV (Search and Seizure)
• Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), aff'd en banc by evenly divided court, 60 Fed. Appx. 601 (6th Cir. 2003)
• Denning v. Metropolitan Gov't of Nashville, 564 F. Supp. 2d 805 (M.D. Tenn. 2008), aff'd, 330 Fed. Appx. 500 (6th Cir. 2009)
• Chandler v. Miller, 520 U.S. 305 (1997)
• Wyman v. James, 400 U.S. 309 (1971)
• Terry v. Ohio, 392 U.S. 1 (1968)
• State v. Levitt, 73 S.W.3d 159 (Tenn. Crim. App. 2001)
• United States v. Cortez, 449 U.S. 411 (1981)
• State v. Day, 263 S.W.3d 891 (Tenn. 2008)
• LeBron v. Wilkins, No. 6:11-cv-01473, 2011 WL 5040993 (M.D. Fla. Oct. 24, 2011)
• Perry v. Sindermann, 408 U.S. 593 (1972)
• Graham v. Caples, 325 S.W.3d 88 (Tenn. 2010)
• Washington v. Robertson County, 29 S.W.3d 466 (Tenn. 2000)
• Bible & Godwin Const. Co., Inc. v. Faener Corp., 504 S.W.2d 370 (Tenn. 1974)
• Op. Tenn. Att'y Gen. 07-84 (June 1, 2007)
• Op. Tenn. Att'y Gen. 12-41 (March 20, 2012)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-045.pdf

Original opinion text

April 3, 2012
Opinion No. 12-45
Limitations on Drug Testing as a Condition of Receiving Public Assistance

QUESTIONS

1. What, if any, federal or Tennessee constitutional limitations would apply to Senate Bill 2580/House Bill 2725, 107th General Assembly, 2nd Sess. (2012), as amended, ("SB2580"), which would require the Tennessee Department of Human Services ("TDHS") to implement a program of substance abuse testing for certain applicants or recipients of the federal Temporary Assistance for Needy Families ("TANF") program?

2. Would SB2580, as amended, require a program of substance abuse testing for both applicants and recipients of TANF meeting certain defined conditions, or would its substance abuse testing be program limited only to TANF applicants meeting such conditions?

OPINIONS

1. As this Office has previously opined in Op. Tenn. Att'y Gen. 07-84 (June 1, 2007) and Op. Tenn. Att'y Gen. 12-41 (March 20, 2012), drug testing of TANF applicants and recipients without some quantum of individualized suspicion constitutes an unconstitutional search and seizure under the Fourth Amendment of the United States Constitution. To the extent that SB2580, as amended, would require drug testing in circumstances that lack an individualized suspicion that the applicant or recipient is using illegal drugs, such testing would likely be found unconstitutional.

2. Amendments 2 and 3 to SB2580 apply to both applicants and recipients of TANF benefits who have certain defined characteristics.

ANALYSIS

1. This opinion request seeks further guidance on any constitutional limitations on proposed SB2580. The focus of the request centers upon Amendments 2 and 3 to SB2580. As originally filed, SB2580 required, to the extent not prohibited by federal law, drug testing of all applicants for TANF and disallowed eligibility for one year after any positive drug test. SB2580 in this regard provided in pertinent part:

(a) To the extent not prohibited by federal law, the department of human services shall implement a program of substance abuse testing for each adult applicant who is otherwise eligible for temporary assistance for needy families referred to in this part as (TANF), [sic], or a successor program. The department shall require a [sic] the results of a recent urine drug test be submitted by each individual who applies for TANF. The cost of drug testing is the responsibility of the individual tested.

. . .

(f) An individual who tests positive for controlled substances as a result of a drug test required under this section is ineligible to receive TANF for one (1) year from the date of the positive drug test unless the individual meets the requirements of subsection (j).

SB2580, §3.

Amendments 2 and 3 to SB2580 both expand and restrict the categories of persons subject to drug testing under SB2580. The amendments expand SB2580 by requiring drug testing of both applicants and recipients; they restrict SB2580 by requiring drug testing only of applicants and recipients who meet certain defined criteria. Both amendments also retain SB2580's caveat that no drug testing of any individual is allowed to the extent such testing is prohibited by federal law.

Amendment 2 deletes the first sentence of Section 3(a) and substitutes the following:

To the extent not prohibited by federal law, the department of human services shall implement a program of substance abuse testing for each adult applicant or recipient who has been arrested for or convicted of a violation of the Tennessee Drug Control Act, compiled at title 39, chapter 17, part 4, within the previous five (5) years and who is otherwise eligible for temporary assistance for needy families referred to in this part as (TANF), or a successor program.

SB2580, Amend. 2. Amendment 3 adds the following new subsection (a)(2) to Section 3:

(2) In addition to testing required by subdivision (a)(1), to the extent not prohibited by federal law, if the department has reason to believe that an individual who applies for or who receives Temporary Assistance for Needy Families (TANF) has used illegal drugs, then the department shall institute and require a suspicion-based urine drug test program consistent with this part to screen each such individual.

SB2580, Amend. 3.

SB2580 seeks to utilize drug testing to ensure that those receiving TANF public benefits are not using illegal drugs. As one court addressing a similar statute has observed, such legislation attempts to reach the laudable goal of removing substance abuse as a barrier to employment, given the federal mandate of TANF to move welfare recipients to work. Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1140 (E.D. Mich. 2000), aff'd en banc, 60 Fed. Appx. 601 (6th Cir. 2003). Other jurisdictions have struggled with how best to address this issue, as evidenced by a recent publication of the United States Department of Health and Human Services ("HHS") that catalogues and reviews the numerous proposals designed to drug test public welfare recipients. ASPE Issue Brief, Drug Testing Welfare Recipients: Recent Proposals and Continuing Controversies, Office of the Assistant Secretary for Planning and Evaluation, Office of Human Services Policy-United States Department of Health and Human Services (October 2011).

As stated in this Office's prior opinions, the Sixth Circuit Court of Appeals has held that the drug testing of TANF applicants and recipients without some quantum of individualized suspicion constitutes an unconstitutional search and seizure under the Fourth Amendment of the United States Constitution. Marchwinski v. Howard, 60 Fed. Appx. 601 (6th Cir. 2003), aff'g en banc, 113 F. Supp. 2d 1134 (E.D. Mich. 2000) (affirmed on rehearing by an evenly divided en banc panel). Tennessee is part of the Sixth Circuit; thus the Sixth Circuit's decision on this interpretation of federal law is binding on Tennessee federal courts. Denning v. Metropolitan Government of Nashville, 564 F. Supp. 2d 805, 813 (M.D. Tenn. 2008), aff'd, 330 Fed. Appx. 500 (6th Cir. 2009).

The Marchwinski decision arose from a pilot program operated by Michigan's Family Independence Program ("FIP"). Marchwinski, 113 F. Supp. 2d at 1135-36. The pilot program required substance abuse testing and treatment for FIP applicants in certain regions of the State of Michigan. Id. at 1136. At the time of the Marchwinski decision, Michigan was the only state to implement drug testing for TANF recipients and to sanction those recipients who test positive, as permitted by 21 U.S.C. 862b. Id. Persons testing positive were required to have a substance abuse assessment and, if the assessment resulted in a referral for treatment, to comply with the treatment plan. Id. Failure or refusal to submit a specimen for testing, complete an assessment, or comply with a treatment plan resulted, with certain exceptions, in the denial, reduction, or termination of benefits. Id. at 1136-37.

Michigan argued that substance abuse was a major barrier to employment properly addressed through its abuse testing requirement. Id. at 1140. The Marchwinski court determined that Michigan's rationale was not sufficient to warrant departure from the rule that where public safety is not genuinely in jeopardy, the Fourth Amendment precludes suspicionless searches. Id. (citing Chandler v. Miller, 520 U.S. 305 (1997)) (rejecting Georgia's requirement that all candidates for state office to pass a drug test)).

Michigan further argued that a correlation between drug abuse and child neglect justified the State's drug testing in order to guarantee the safety of minor FIP recipients. Marchwinski, 113 F. Supp. 2d at 1142. However, the Marchwinski court rejected this argument, finding that TANF was primarily created to end government dependence, was not created to address child abuse or neglect, and invoked no public safety concern sufficient to justify Michigan's suspicionless drug testing. 113 F. Supp. 2d at 1141.

Therefore, the Marchwinski court determined the Michigan drug testing program departed from the requirement that some quantum of individualized suspicion be established for constitutional search and seizure under the Fourth Amendment of the United States Constitution. Id. at 1139. The fact that Michigan's program was a pilot program was not relevant to the Marchwinski decision. The court concluded that, where public safety is not genuinely in jeopardy, the Fourth Amendment prohibits government sponsored suspicionless searches. The court feared that to hold otherwise would allow the state or federal government to conduct suspicionless warrentless searches of persons receiving any government benefit in order to deprive any person using illegal drugs of the benefit. As the Marchwinski opinion observed:

If the State is allowed to drug test FIP recipients in order to ameliorate child abuse and neglect by virtue of its financial assistance on behalf of minor children, that excuse could be used for testing the parents of all children who receive Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from the State. In all cases in which the State offers a benefit on behalf of minor children, the State could claim that it has a broad interest in the care of those children which overcomes the privacy rights of the parents. Indeed, the query posed by Justice Marshall in his dissent in Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), is a pertinent inquiry to make here:

Would the majority sanction, in the absence of probable cause, compulsory visits to all American homes for the purpose of discovering child abuse? Or is this court prepared to hold as a matter of constitutional law that a mother, merely because she is poor, is substantially more likely to injure or exploit her children? Such a categorical approach to an entire class of citizens would be dangerously at odds with the tenets of our democracy.

Id. at 342, 91 S.Ct. 381.

Upholding this FIP suspicionless drug testing would set a dangerous precedent.

Marchwinski, 113 F. Supp. 2d at 1142. In so holding, Marchwinski did not condone the illegal use of drugs; instead Marchwinski determined that all citizens are protected against random suspicionless drug testing by the government under the Fourth Amendment.

Applying the principles enunciated in Marchwinski to Amendment 2 of SB2580, a court would likely require that TDHS establish some quantum of suspicion before TDHS can drug test an adult TANF applicant or recipient, including those who has been arrested or convicted of a violation of the Tennessee Drug Control Act within the previous five years. Under both federal and Tennessee law, a "reasonable suspicion" standard would exist when the events would cause an objectively reasonable officer (or in this case a TDHS administrative official) to suspect criminal activity by the individual. Terry v. Ohio, 392 U.S. 1, 21 (1968); State v. Levitt, 73 S.W.3d 159, 172 (Tenn. Crim. App. 2001). Reasonable suspicion is necessarily "an objective standard, and must be determined from the totality of the circumstances." State v. Levitt, 73 S.W.3d at 172 (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)). If a search is contested, the State will have the burden of proof establishing reasonable suspicion by a preponderance of the evidence. State v. Day, 263 S.W.3d 891, 905 (Tenn. 2008). Based on these criteria, it is likely that a drug conviction several years past, an arrest that never led to conviction, or other circumstances that might require drug testing under Amendment 2 in the absence of a reasonable suspicion of current illegal activity would be found insufficient to withstand constitutional scrutiny.

Amendment 3, in contrast, appears to track the Marchwinski standard and is similar to a recent statute enacted in the State of Missouri. Missouri's statute on drug testing of TANF applicants, codified at Mo. Rev. Stat. § 208.027, was enacted on July 12, 2011, to be effective ninety days after adjournment of the Missouri Legislature. Mo. House Bill No. 73, 96th Gen. Assembly, 2nd Sess. (2011). This statute provides in pertinent part:

The department of social services shall develop a program to screen each applicant or recipient who is otherwise eligible for temporary assistance for needy families benefits under this chapter, and then test using a urine dipstick five panel test, each one who the department has reasonable cause to believe, based on the screening, engages in illegal use of controlled substances.

Mo. Rev. Stat. § 208.027, § 1 (emphasis added).

Thus, unlike the original version of SB2580 considered in Opinion 12-41, the Missouri statute only requires drug testing "when the department has reasonable cause to believe, based on the screening, that an applicant engages in the illegal use of controlled substances." Id. Upon passage, one commentator noted that "[f]oes of the bill argued that the bill was possibly unconstitutional — though its use of a 'reasonable suspicion' standard may make that argument more difficult — that the program will be costly, and that it's an attack on society's most vulnerable." Philip Smith, Missouri Welfare Drug Test Bill Heads for Governor's Desk, Drug War Chronicle, Issue #683 (May 10, 2011). This Office is not aware of any legal challenge to the Missouri statute. As noted in Opinion 12-41, a Florida statute requiring suspicionless drug testing of all TANF applicants has recently been determined unconstitutional. LeBron v. Wilkins, Case No. 6:11-cv-01473-Orl-35DAB, 2011 WL 5040993 at *7-17 (M.D. Fla. Oct. 24, 2011).

Nonetheless, though Amendment 3 on its face appears likely to meet the Marchwinski standard, there exist practical considerations that may make implementation of Amendment 3 more difficult. The primary challenge will be for TDHS to accurately determine when objective circumstances create a reasonable suspicion of illegal drug use permitting a warrantless drug test. Making the wrong decision could subject TDHS and the State to liability in civil litigation. See Bivens v. Six Unknown Named Agents of Federal Bureau of Investigation, 403 U.S. 388, 395-97 (1971); United States v. Vite-Espinoza, 342 F.3d 462, 471 (6th Cir. 2003).

Finally, the State cannot generally require a person to consent to a drug test as a condition for obtaining benefits under TANF. While no person is required to apply for TANF benefits, a state's "exaction of consent to an otherwise unconstitutional search in exchange for TANF benefits would violate the doctrine of unconstitutional conditions." LeBron, 2011 WL 5040993 at *9 (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)).

2. In response to the second question posed, Amendments 2 and 3 clearly state TDHS must drug test both TANF applicants and recipients who meet defined criteria. See Graham v. Caples, 325 S.W.3d 88, 92 (Tenn. 2010) (stating the rule of statutory construction that, if the language of a statute is not ambiguous, courts should simply apply its plain meaning). Moreover, because these Amendments specifically refer to the persons to be tested and were subsequently added to SB2580, they would control over any conflicting provisions that remained in the original bill. See Washington v. Robertson County, 29 S.W.3d 466, 475 (Tenn. 2000) (holding that a specific statutory provision will control over a general statutory provision); Bible & Godwin Const. Co., Inc. v. Faener Corp., 504 S.W.2d 370, 372 (Tenn. 1974) (stating that, where there exists an irreconcilable conflict between two sections of a statute, the last one mentioned will control). Given the apparent inconsistency between Amendments 2 and 3 and certain remaining sections of the original bill (e.g. SB2580 § 3(a) second sentence, (d), (e), (g), (h)(1), (h)(4); § 6; and § 9) the General Assembly may want to reconcile such inconsistencies should SB2580 move forward.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

Requested by:
Commissioner Raquel Hatter
Tennessee Department of Human Services
Citizens Plaza Building, 400 Deaderick Street
Nashville, Tennessee 37243