How Judicial Activism Devastated TANF Drug-Testing Programs


As promised in part four, this fifth installment explores how the courts have made it impossible for states to implement effective drug-testing programs for TANF recipients.

In 1999, Michigan became the first state to enact a pilot drug-testing program in just three counties. Shortly after the program started, the ACLU filed a lawsuit on behalf of Tanya L. Marchwinski challenging the constitutionality of requiring a drug test in order to receive welfare.

In ensuing federal case, Marchwinski v. Howard (2000), they alleged the drug-testing condition violated fourth amendment protections.  The plaintiffs were fortunate to have Judge Victoria A. Roberts preside over the case.  Throughout her tenure, she’s attracted a reputation for unethical judicial behavior.  Her propensity for radically progressive judicial activism ensured the ACLU’s victory before opening arguments began.

In her ruling, Roberts openly defied the doctrine of stare decisis, a fundamental legal principle of following past precedents. Instead, Roberts pursued her decidedly liberal agenda in opposition to previous court rulings on drug-testing.  Past Supreme Court decisions outline a clear precedent in favor of drug-testing in similar circumstances.

The Court first addressed suspicionless drug-testing in Skinner (1989).  It held since the railroad industry is highly regulated, and substantial interest exists to ensure employees’ sobriety when operating trains, their diminished expectations of privacy and compelling government interests to ensure public safety permitted suspicionless drug-testing policies under the special needs doctrine

In Von Raab (1989), the Court upheld these programs for U.S. customs agents.  In Vernonia (1995), conditioning student athletes’ participation on suspicionless drug-tests was upheld. County v. Earls and Penny v. Kennedy are among copious other examples in which suspicionless drug-testing programs were ruled constitutionally permissible by the Supreme Court.

In Wyman v. James the Court upheld home visitation requirements for welfare benefits.  The court ruled that under the conditional benefit doctrine, a voluntary governmental benefit can be conditioned on waving a constitutional right. Only in one case did the Supreme Court deem suspicionless drug-testing unconstitutional.

In Chandler v. Miller, the Court struck down Georgia’s statute requiring candidates for elected office pass a drug test.  The ruling’s reasoning renders Chandler irrelevant to the concerns in Marchwinski.  Georgia’s statute forced individuals to choose between a constitutional right to seek office, and the fourth amendment right to privacy, violating the doctrine of unconstitutional conditions.  It didn’t involve discretionary government benefits, and concerned constitutional considerations than were not factors in Marchwinski.

In Marchwinski (2000), Judge Roberts ignored every single precedent set by the Court.  In her opinion striking down Michigan’s program, the sole precedent relied upon was Chandler, which wasn’t applicable.  Her abuse of judicial discretion didn’t go unnoticed when appealed.  The Federal Appeals Court of the Sixth Circuit noted this and the other flaws in its 2002 Marchwinski reversal.  The opinion of the court offers proper legal analysis that Roberts neglected to provide, and the response from legal academics largely echoed its findings.

It was heard de nova because of how gravely Roberts abused her judicial discretion.  In reversing the original ruling, the Appeals Court followed precedent and correctly applied the special needs and conditional requirement doctrines.  The court ruled that the government interests in ensuring the proper use of public funds and the well-being of the children of TANF recipients outweighed the already diminished privacy expectations of TANF recipients.  It concluded that state drug-testing programs, as a conditional requirement to receive TANF benefits, were constitutionally permissible.

However, the Sixth Circuit was notorious for partisan divide.  Following the ACLU’s pleas, the entire bench flocked to the Court to rehear the case.  In the ensuing rehearing, partisanship yielded a 6-6 split among the bench.  As noted in the National Law Journal, Marchwinski (2003) epitomized the problematic partisanship characterizing the Sixth Circuit at that time.

The Court’s failure to issue a majority ruling meant the judgment was reversed to the original district court ruling.  The ACLU and Michigan agreed to a settlement, entailing future drug-testing programs would establish suspicion before employing empirically effective methods, creating the ineffective programs witnessed in states since.

This is how effective drug-testing programs, those that are randomized, spontaneous, indiscriminate, and empirically verifiable, were barred from implementation. In a society claiming to provide equal protection under the law, Roberts’ radical activism has created two classes of people maintaining fourth amendment protections against suspicionless drug-testing; candidates running for elected office and people on welfare.

Should the Supreme Court ever take up a challenge to the Marchwinski standard, it would affirm its own precedents.  If this, or a similar case were brought before the Supreme Court, effective drug-testing programs would become constitutionally permissible.  Hopefully, this insult to the foundations of our legal system will soon be rectified.