Drug War

Rick Scott's Urine Fetish

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Last March, around the same time he was resisting electronic monitoring of painkiller prescriptions as a wasteful invasion of privacy, Florida Gov. Rick Scott signed an order (PDF) mandating random drug testing of all executive branch employees. This week the ACLU of Florida challenged the order in federal court, noting that it is clearly unconstitutional under the relevant precedents. In two 1989 cases, the Supreme Court ruled that government-mandated urinalysis, although a "search" governed by the Fourth Amendment, can be justified without "particularized suspicion" in special circumstances. Specifically, the Court upheld testing of railroad employees who are involved in accidents or violate safety rules and  customs agents who apply for positions that require them to carry guns or interdict drugs. In two subsequent cases, the Court upheld random drug testing of high school students who participate in sports or other extracurricular activities, again based on a "special need": preventing drug use by minors. By contrast, in 1997 the Court rejected a Georgia law requiring all candidates for public office to undergo drug testing, ruling that it "does not fit within the closely guarded category of constitutionally permissible suspicionless searches."

Based on these precedents, U.S. District Judge Robert Hinkle in 2004 overturned a Florida drug testing policy that was much narrower than Scott's, applying to employees of the state Department of Juvenile Justice (DJJ). Hinkle began his opinion (PDF) by noting that "DJJ now virtually concedes the policy cannot constitutionally be applied to at least some DJJ employees." He noted that Roderick Wenzel, the DJJ employee who brought the case after he was fired for refusing to surrender his bodily fluids, was "a long-term strategic planner who worked in an office, did not interact with juveniles in DJJ's care, and did not access confidential information on juveniles." Hinkle concluded that the department had failed to show "a concrete risk of real harm" that would justify suspicionless testing of employees like Wenzel.

"I'm not sure if Governor Scott does not know that the policy he ordered has already been declared unconstitutional or if he just doesn't care," says ACLU of Florida Executive Director Howard Simon. "But I do know that the state of Florida cannot force people to surrender their constitutional rights in order to work for the state."

On the same day that the ACLU filed its suit, Scott signed a bill that requires welfare recipients to pass drug tests, the only law of its kind in the country. The ACLU, which noted that a similar law in Michigan was overturned on Fourth Amendment grounds in 2003, plans to challenge that policy as well.

The ACLU complaint is here (PDF).

[via the Drug War Chronicle]

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  1. U.S. District Judge Robert Hinkle

    Juuuuudge Robert Hinkleheimerschmidt
    His name is my name, too!
    Whenever we go out
    People always shout
    “There goes Juuuuudge Robert Hinkleheimerschmidt!”
    LALALALALALALA….

    1. PWNAGE!

    2. I was really hoping you wouldn’t do that.

      1. I was really hoping you would.

  2. “I’m not sure if Governor Scott does not know that the policy he ordered has already been declared unconstitutional or if he just doesn’t care”

    Any port in a storm, General Welfare, Executive Privelege, Cause I Said So…whatever.

    THINK OF TEH CHILDREN!

    1. “privilege”, even…

      1. now Exit, stage left…

  3. CAPTION: “I looked like a Ninja Turtle until I removed the mask and lost weight…”

    1. CAPTION 2: “Yes, Ed Harris and I ARE related. Why do you ask?”

      1. “My precioussssss!”

        1. “Who said The Dark Lord can’t get a fucking nose job?!”

  4. Too bad. Scott hadn’t been doing okay, then he takes a bunch of stimulus cash, and now this.(LD-welfare)

    1. Agreed. I wonder what his motive for doing this is? If it’s just sticking it to the state administration, I sympathize, but I doubt it’s anything that noble.

    2. What, fucking government workers by their own rules? The only way it could have been better is if it was nonrandom and all legislative and judicial authorities, since all the state judges would have to recuse themselves.

  5. that the department had failed to show “a concrete risk of real harm” that would justify suspicionless testing of employees

    But testing members of the Executive branch? No, no harm at all in governing drunk/high, none at all.

    1. …and I don’t wanna catch anybody NOT drinking.

    2. frankly, it could only help…

  6. I have no problem with drug screens as a requirement for employment in the private sector. If people don’t want to be tested, they can apply elsewhere. For government workers, I see no reason why their employer, the taxpayers, should not be able to set conditions for employment, as long as those conditions would be acceptable and are non-discriminatory.

    I may be way off the libertarian reservation on this one (I’m not sure), but employers have a right to ensure their workers meet their standards of behavior, even if those employers are taxpayers.

    1. Except this is not the taxpayers putting this policy in place, it is the governor. When you are talking just about employees, I have less of a problem with this. But I’ve heard a lot of suggestions about piss testing elected officials. While it would be fun to watch some hypocrites squirm, I don’t think anything should disqualify anyone from elected office. If voters want to elect a bunch of drug using hypocrites, that is their choice. Though perhaps if the results of the tests were simply made public, but had no other consequences, I could get behind such a program.

      But generally, I oppose any drug testing by government, largely because it is mostly not a safety issue, but an extension of the horrible war on drugs simply intended to punish drug users even if drug use has no effect on their job performance.

      1. I don’t think anything should disqualify anyone from elected office.

        Citizenship? Felony conviction? The 22nd Amendment? FWIW, I think anything should disqualify everyone from elective office.

        1. OK, I was a bit too broad. Citizenship should be a qualification. Felony conviction should not exclude someone from office (as long as the voters are fully informed). Presidential term limits seem like a good idea. I haven’t made up my mind on legislators. And sure, if everyone followed my more or less anarchistic principles to their logical consequences, no one should be qualified to govern.

        2. I think requirements for office should always be set at the constitutional level.

          If they’re set by legislation, one set of legislators can attempt to control the composition of future sets of legislators, and I don’t think that’s kosher.

          Looking at it another way, if the Constitution says all natural-born citizens age 35 and up can run for President, the state of Georgia shouldn’t get to say, “…but you have to take a drug test to do so in our state.”

          1. Should Georgia be able to require a drug test for our own governor? The Constitution doesn’t say shit about State offices.

            1. Yeah, what she said 😉

            2. What does the Georgia constitution say?

            3. No person who is not a registered voter; who has been convicted of a felony involving moral turpitude, unless that person’s civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude; who is a defaulter for any federal, state, county, municipal, or school system taxes required of such officeholder or candidate if such person has been finally adjudicated by a court of competent jurisdiction to owe those taxes, but such ineligibility may be removed at any time by full payment thereof, or by making payments to the tax authority pursuant to a payment plan, or under such other conditions as the General Assembly may provide by general law ; or who is the holder of public funds illegally shall be eligible to hold any office or appointment of honor or trust in this state. Additional conditions of eligibility to hold office for persons elected on a write-in vote and for persons holding offices or appointments of honor or trust other than elected offices created by this Constitution may be provided by law.

              The Georgia Constitution does not allow for the creation by law of additional requirements to hold elected office.

              So no, they can’t do that.

            4. Beyond that, I would say that the 14th Amendment, properly applied, would probably bar Georgia from setting a requirement to hold a public office that violated the federally-enumerated rights of any US citizen.

              If Georgia wanted to bar atheists, or gun owners, or people who had invoked the 5th amendment during a trial, from being governor, I think that would not be constitutional, even if they amended their own state constitution to do it.

              1. I don’t either but under current legal precedent such as “a special need” to be governed by someone not under the influence of drugs, it would be held constitutional.

      2. I thought it was a law he was signing. My bad on that. I’m not too keen on executive orders. I think this should be taken up by the elected officials and should follow the normal legislative process. One caveat: no exemptions. It would have to apply to every individual who is either employed by a state or local government, and the tests have to be for illegal steroids (they have not even brought this up) as well as recreational drugs (which is what they are after). I want to see the cop union’s stance on the testing.

        1. no it should be fine too. Let the executive manage his employees as he sees fit. Don’t like it? Give up your paycheck.

          1. the legislature is there to write laws and decide how funds should be allocated, not be a personnel micromanager. This would be like congress deciding on whether or not the army should allow tattoos on their foot soldiers.

      3. “If voters want to elect a bunch of drug using hypocrites, that is their choice.”

        Let me be clear. I no longer use drugs.

    2. I 100% agree. Live by the teat, die by the teat.

    3. On the one hand, yes, employers have the right to set standards for employment, on the other, people aren’t at work 24 hrs a day. What is the justification for an employer deciding what substances you can use when you are not at work?

      1. What is the justification for an employer deciding what substances you can use when you are not at work?

        Determining who they want to employ?

        1. If the use of drugs do not interfere with their job, and they are not doing it on company time, the employer should have no say in it.

          1. What if you run a marijuana dispensary and you only want to employ users of your product?

            Employers should have the right to fire anybody, including druggies. I think they’d be stupid to do it, but the government’s job should NOT be to keep people from doing stupid things.

    4. I agree that any employer, even the gov’t, should be able to fire employees based on drug status.

      I think they’d be stupid to do so, but I don’t see how it violates anybody’s rights. Unless it’s somewhere in the constitution that everybody has a right to work for the government.

    5. State employees pay taxes too. This is going to cost us all alot of money

  7. Yes, that is my name in the snowbank, and yes, it is in your mom’s handwriting.

    1. Hey. . .wait a second.

      1. What? You wanna pee sword fight?

    2. my mom’s dead so triple eeuuwwww

  8. I may be way off the libertarian reservation on this one

    No you’re not. The government should be able to drug test any and all employees (including elected officials), both as a pre-employment screen and randomly. They should be able to test all welfare recipients as well.

    1. I’m curious how you justify testing of elected officials. What if an elected official is pro-legalization and makes no attempt to hide whatever drugs he might enjoy? Why shouldn’t I be allowed to vote for that person? What if the majority of voters want to elect drug users to office?
      I know that these are unlikely hypotheticals at the moment, but laws are not just if they are not just in every conceivable application.

  9. If we delve a little further we find…Florida Gov. Rick Scott, was CEO of a chain of hospitals found guilty of the single largest case of MEDICARE FRAUD IN HISTORY on his watch. Systematically bilking medicare of BILLIONS and fined 1.7 BILLION. Since then he started a chain of clinics, multiplying like an epidemic, in Florida, while hospitals are going bankrupt. Scott recently transferred ownership of his chain of Solantic Clinics…to HIS WIFE. I wonder where half the state of Florida will be going, 4 times a year, to get their cup to pee in?

    1. I wonder where half the state of Florida will be going, 4 times a year, to get their cup to pee in?
      Half the State of Florida is a parasite class? Can we cut them off if they test positive for blood or urine?

      1. Hey, don’t ruin the conspiracy buzz.

        1. March 31, 2011
          –> ..Fla. Gov. Rick Scott’s Big Govt Program to Drug Test State Workers Could Cost Taxpayers $23.5 Mil Per Year
          Will a Big Chunk of It Go to Scott’s Own Company, Solantic?
          Jon Ponder | Mar. 30, 2011
          Part of the series, Assault on Florida.

          Last week, Florida’s already wildly unpopular new Republican governor, Rick Scott, issued an executive order requiring state employees to submit to drug tests at least four times a year.

          Last night, Rachel Maddow cited Scott’s order to illustrate the wide gap between Republican campaign rhetoric about small government and the sort of big-government policies they pursue when they get elected.

          “Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace,” Scott said, when he announced the order. “Just as it is appropriate to screen those seeking taxpayer assistance, it is also appropriate to screen government employees.”

          Scott has only lived in Florida for a few years and so was not in the state in 1998 when an earlier government experiment with drug-testing poor people proved not to be cost-effective. At a cost of $90 per test, the program was zilched after it failed to produce evidence of widespread drug abuse among people on public assistance.

          Who will be tested, when and how often?

          Here’s the key paragraph from Scott’s Executive Order Number 11-58 [PDF]:

          I hereby direct all agencies within the purview ofthe Governor to amend their drug-testing policies to provide for pre-employment drug testing for all prospective new hires and for random drug testing of all employees within each agency. The amended policy should provide for the potential for any employee, including all full-time and part-time employees, and employees of any employment classification ? including but not limited to, Senior Management Service, Select Exempt Service Career Service; and other Personal Services ? to be tested at least quarterly.

          So “all full-time and part-time employees, and employees of any employment classification” are to be tested “at least quarterly.”

          How many state employees are there in Florida?

          According to the State Personnel System Annual Workforce Report 2009-2010 [PDF],”There were 167,797 total established positions in all state employment systems at the end of fiscal year 2009/2010.”

          And how much will each drug test cost?

          It appears that the cost of drug-testing has gone down from $90 each in 1998. The governor’s office did not release an official figure, but here perhaps is a clue:

          One of the more popular services at Solantic, the urgent care chain co-founded by Florida Gov. Rick Scott, is drug testing, according to Solantic CEO Karen Bowling.

          Given Solantic’s role in that marketplace, critics are again asking whether Scott’s policy initiatives ? this time, requiring drug testing of state employees and welfare recipients ? are designed to benefit Scott’s bottom line.

          The Palm Beach Post reported in an exclusive story two weeks ago that while Scott divested his interest in Solantic in January, the controlling shares went to a trust in his wife’s name?

          Solantic charges $35 for drug tests.

          It is unclear who will provision the testing ? and there’s no indication it would be Solantic ? but that decision will have to be fast-tracked. The governor’s decree orders testing to begin on job applicants in less than two months.

          So What’s the Bottom Line?

          Using Solantic’s price as a base, at $35 per test for 168,000 employees, the cost for one round would be $5.8 million. If all employees are tested once a quarter, that’s a cost to Florida taxpayers of $23.5 million per year. (If the tests still cost $90 each, the price tag for taxpayers would rise to $60.4 million a year.)

          Scott’s spokespeople deny there’s a conflict of interest here, but given Scott’s history of corruption ? Columbia/HCA, the company he headed for 10 years, was fined $1.7 billion for defrauding Medicare in 1997 ? it’s hard to imagine why anyone would give him the benefit of a doubt.

          1. So drug testing FL State employees and welfare recipients is OK if they are barred from using the Governor’s wife’s clinics? OK, should be easy enough.

          2. “Given Solantic’s role in that marketplace, critics are again asking whether Scott’s policy initiatives ? this time, requiring drug testing of state employees and welfare recipients ? are designed to benefit Scott’s bottom line.”

            If it improves our bottom line that who cares?

          3. “Rachel Maddow cited Scott’s order to illustrate the wide gap between Republican campaign rhetoric about small government and the sort of big-government policies they pursue when they get elected.”

            On the other hand, if it winds up with mass government firings, it will be perfectly consistent.

          4. Palm Beach Post

            Gov. Rick Scott answered critics who accuse him of a conflict of interest, saying that the state will not do business with Solantic, the urgent care clinic he co-founded in 2001.

            Orlando Sentinel

            So, could Solantic benefit from Scott’s drug testing plan?

            “No,” said Solantic CEO Karen Bowling in a phone conversation Friday. “We will not bid on that business.”

    2. You’re right. Quest diagnostics have propped up all over. What % of their business is drug related and what % is medical?

      There are entrenched interests out there to ensure that we all end up pissing in a cup to get a job.

    3. Re: Biff|6.2.11 @ 12:50PM|#

      If we delve a little further we find…Florida Gov. Rick Scott, was CEO of a chain of hospitals found guilty of the single largest case of MEDICARE FRAUD IN HISTORY on his watch. Systematically bilking medicare of BILLIONS and fined 1.7 BILLION.

      After Scott resigned from the company, Columbia/HCA plead guilty to the charges in a plea bargain in exchange for reduced charges and reduced fines. Rick Scott left the company, which we had founded, during the investigation due to disagreement with the Board of Directors over how to handle the accusations. Scott wanted to fight the charges, but the Board thought it would be cheaper to settle than to go to court. Some accounts say the Board forced Scott out, others say it was Scott’s choice to leave.

      How strong of a case did the feds have against HCA? Well, in addition to the corporation, four HCA executives were indicted on fraud charges. Two of them were acquitted, and the other two were originally convicted, but those convictions were both overturned on appeal. IOW, the government did not have a strong enough case to convict any of the executives who were supposedly behind the fraud.

      Since then he started a chain of clinics, multiplying like an epidemic, in Florida, while hospitals are going bankrupt. Scott recently transferred ownership of his chain of Solantic Clinics…to HIS WIFE.

      So, after resigning from one company, which he built from the ground up, he started another very successful company. I don’t see how that’s a bad thing. Whether or not hospitals, that he does not run, are going bankrupt is irrelevant. He transferred his shares in the company to a trust established in his wife’s name and administered by an executor. Neither Scott nor his wife has direct control of the trust.

      I wonder where half the state of Florida will be going, 4 times a year, to get their cup to pee in?

      Half the state of Florida? His executive order only applies to some offices of the executive branch. Even if it did apply to all state employees, that would be about 0.6% of the state of Florida. That’s beside the point, however, since Scott and the CEO of Solantic have stated that Solantic will not bid on or receive any state contracts. They could be lying, but so far I’ve seen no indication that they are.

  10. I kind of like the Governor’s proposal. The Exec Branch enforces the drug laws, and have been at the forfront of expanding search and seizure powers for years. If Exec Branch employees were subject to some of this nonsense, maybe they’d be a little less gung-ho in fighting the drug war.

    It’s also kind of hypocritical that school kids–who have to go to school or get arrested–are subject to urine screens with no particularized suspicion whereas public employees–who can always quit if they love doobie so much–are not.

    1. The problem with that logic is that it ensures that fucking one set of people (in this case school kids) ensures that all classes get equally fucked on theory that we can’t be hypocritical.

      I know it is possible that subjecting everyone to that kind of treatment will cause people to revolt and thus end the program. But I think it is just as likely to go the other way and make a small wrong into a giant wrong.

      Drug testing where it doesn’t advance safety (ie testing pilots to make sure they are not addicts) should be fought at every level and at every opportunity, even if that means sticking up for bureaucrats.

  11. I wonder if this means prosecutors and cops, the probation department (or is that part of the courts?) I wonder if it includes the governor himself?

  12. In two 1989 cases, the Supreme Court ruled that government-mandated urinalysis, although a “search” governed by the Fourth Amendment, can be justified without “particularized suspicion” in special circumstances.

    What, you don’t see the “special circumstances” exception to the Fourth Amendment on your copy of the Constitution? Perhaps a little drug screen could cast some light on your problem.

    I’m torn on this one. I tend to think that the government, as employer, should be able to do anything a private employer can do (and vice versa).

    However, when it comes to collecting evidence of criminal activity, the government is not just another employer, it is also the prosecutor.

    So, I think I’m with the ACLU on this one. Convince me otherwise.

    1. The government can access drug test data by private employers so why is this any different?

      1. Whatever happend to the idea that what you do off the clock is your own business?

        1. Whatever happened to the idea employers can set the condition of employment?

          I think,absent government coercion, most employers would find random testing a waste of resources. Pre-employment testing would remain quite useful.

          1. “”Pre-employment testing would remain quite useful.””

            I’m not so sure. One could quit while they are job seeking, then start again when hired. It reminds me of a retail job I had. The company required everyone to be interviewed by a security company for honesty, dispite that, theft was still a major problem. My guess is that they got a break on some sort of insurance.

            1. One could quit while they are job seeking, then start again when hired.

              That’s the whole point.An employer is throwing out a lot of chaff just by advertising they require a drug test. In the case of potsmokers I bet those that can quit long enough to get a job are , on the aggregate, more responsible and reliable employees.

    2. The government has no right to waste taxpayers’ money on useless expensive crap like this without at least putting it to a popular vote.

      1. Why is drug testing more useless and expensive than anything else the government does? If they don’t replace everyone who gets fired over a positive drug test it will pay for itself.

      2. Drug testing state employees was one of Scott’s campaign promises. He was elected by popular vote. By virtue of that election, the majority of Florida voters have indicated that they do not want their employees to use drugs.

    3. What, you don’t see the “special circumstances” exception to the Fourth Amendment on your copy of the Constitution?

      I don’t see that, but I also don’t see the absolute prohibition of searches without a warrant there.

      I do see something about “unreasonable” searches. Seems like special circumstances might make a search reasonable.

      1. So because the government theoretically can do somthing in your view, that makes it a good idea or any way less loathsome? Private sector employers who drug test are authoritarian dickheads. Yeah, I don’t have to work there and I don’t own the company, so there is not much I can do. But I do in a sense own the government. And I can use my vote to ensure that the government is not as dickish as the worst private sector employees.

        1. Of course you can use your vote to influence politicians to run the govt the way you want.

          But there’s no 4th amendment question here.

        2. Floridians used their votes to elect a governor who promised to drug test state employees.

  13. […]constitutionally permissible suspicionless searches.”

    Holy shit, how can they even consider writing something this fucking insane.

    1. wait right there & they will reeducate you

  14. […]Florida Gov. Rick Scott signed an order (PDF) mandating random drug testing of all executive branch employees.

    Why does this make me smile?

  15. Personally I find drug testing to be the single most offensive aspect of the war on drugs. Last time I got pulled for a “random” I felt a visceral disgust that shook through the core of my being. Of course I was clean, that’s not the point. The metabolites that may or may not be in my urine has no bearing on my effectiveness at my job. Testing in it’s most common form only punishes marijuana users by barring them from gainful employment. Disgusting.

    I know of a surgeon who smokes nearly every evening and has never been drug tested. However, everyone else in the office from the receptionist to the guy running the floor cleaner have to piss in a cup. Disgusting.

    I imagine my revulsion is similar to the pathos Epi and Sugarfree have for cops. This is the violation that turned me libertarian.

    1. I hate drug testing too but I support an employer setting the terms of employment. I don’t understand why the government can’t test their own. Is this the last thing the 4th is going to protect? The right of those who live and prosper off the earnings of the productive class to avoid drug tests as a condition of their theft employment?

      1. The problem with private employers doing it is that it often isn’t their choice. The company often has an insurance policy that mandates employees be drug tested. As a result nearly all companies drug test.

        So freedom to choose who you hire/work for is great but there’s really very little chance to avoid pissing in the cup. If everyone is drug tested that does not make it OK with me. I am not so petty that I would advocate more drug testing just so others could feel my pain. Maybe I am, who knows. I do know that the next random drug test has a greater than zero chance of prompting a frank discussion about why I will be quitting effective immediately.

        1. UM, in that case , it IS their choice. insurance companies are free to require that, and companies are free to choose another insurance company. it’s called the free market

          1. I agree it is their choice. But for the employee there is not a whole lot you can do to escape this system. It’s kind of like the people who have to cross state lines to get an abortion. I would have to cross states and industries to get a testing-free workplace.

            Sure my dissent amounts to complaining. I better just shut up and keep my head down lest I get the cup again.

            1. as an employer you can offer a market alternative “my company doesn’t drug test – work for us”. as an employee you can say “fuck you, I quit then” etc. free market. or you could come work for the govt. here in WA. they can’t drug test employees with reasonable suspicion, because we have a right to privacy under our state constitution!

              yah! privacy

              1. FL constitution, Art.I, Sec.23:
                “Right of privacy.?Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

                Regularly ignored by the rulers.

        2. My sentiments exactly. I have been fortunate enough never to have been asked to pee for work, but any such request is likely to be met with a big “fuck you”.

          Private employers absolutely have the right to make testing a condition of employment. But too few employees remember that they also have the right to say “no. do you want me to work here or not.” Everyone should be offended by such a request, regardless of what the results could be expected to show.

          1. true dat. and of course private employers have a right to set policies that offend their employees. and employees have a right to say “fuck you, i quit”.

            welcome to the free market. i would argue, in THIS employement environment, employers of course have the upper hand. that’s part of the free market, too

          2. Everyone should be offended by such a request, regardless of what the results could be expected to show.

            Nice to see that libertarian conformism is catching on again. I’m not clear what the reason someone should be offended is.

      2. govt. is often, and should often be, MORE restricted in their practices towards employees than the private sector is. among other reasons, that’s because the constitutional amendments apply to them

        for example, since my employer is govt. they are more restricted in regards to respecting my speech rights than a private employer.

        subway can certainly fire an employee for making fun of jared. it may not be smart, but i could make fun of my chief (off duty) and they could not touch me. 1st amendment.

        1. Your government employment is different from mine. Making fun of President Obama will, very quickly, find me touched.

        2. subway can certainly fire an employee for making fun of jared. it may not be smart, but i could make fun of my chief (off duty) shoot an innocent old lady dead in a no-knock raid and they could not touch me.

          FIFY, Pig.

          1. i love you too, pip! (smooches)

      3. I hate drug testing too but I support an employer setting the terms of employment. I don’t understand why the government can’t test their own.

        I think the government should be able to set the terms of employment, but not if the terms they set end up infringing on the enumerated rights of any citizen.

        Can the government set as a condition of employment that you sign a paper agreeing that you waive all of your enumerated rights for all time?

        Can they make that a condition of receiving a particular tax credit?

        I don’t see why not, if they can make you waive your 4th amendment rights in order to apply for a welfare benefit.

        1. You waive 4th amendment rights when purchasing a hunting license to hunt on your own property. You waive 4th amendment rights when you drive. I’m sure there are plenty more examples.

          1. That is precisely what I am saying should not be the case.

            The fact that the courts are not properly applying the Constitution in those cases doesn’t mean they shouldn’t properly apply it in this case.

            If that makes it more difficult for the state to operate hunting and driving license regimes, oh fucking well.

          2. you do not waive 4th amendment rights when you drive. i know you are going to make some half assed, legally insufficient argument about implied consent or some such, but the fact is – you don’t

            in states, like mind, that have a right to privacy, DUI roadblocks for example – are illegal.

            but under the 4th, they aren’t

            1. If somebody runs a red light and slams into your car causing mutual injury they can’t draw and test blood w/o consent in Washington?

              1. the law is

                RCW 46.20.308
                (3) If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which there has been serious bodily injury to another person, a breath or blood test may be administered without the consent of the individual so arrested.

                so, no

                the blood draw w/o consent AND w/o a warrant only applies in the above circs.

                fwiw, as far as the injuries go it doesn’t matter what injuries they cause themselves, but if they cause “serious” (which means broken bones, etc.) injury to another AND they are under arrest for DUI a blood draw may be taken w/o consent

                so, in answer to your question… no

                here’s vehicular assault, which also authorizes mandatory draw…

                (1) A person is guilty of vehicular assault if he or she operates or drives any vehicle:

                (a) In a reckless manner and causes substantial bodily harm to another; or

                (b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and causes substantial bodily harm to another; or

                (c) With disregard for the safety of others and causes substantial bodily harm to another.

                (2) Vehicular assault is a class B felony punishable under chapter 9A.20 RCW.

                (3) As used in this section, “substantial bodily harm” has the same meaning as in RCW 9A.04.1

              2. SIV,

                Yeah they could draw blood without consent. But in the situation you describe, they would have probable cause.

            2. you do not waive 4th amendment rights when you drive.

              That may technically be true, but if you insist on your 4th amendment rights you can have driving privileges taken away…which is functionally the same thing.

              1. In Minnesota it is a crime to refuse a sobriety test.

                1. and Pip, that is saying that you have no more 4th Amendment rights. It may be true. But that doesn’t make it right or anything other than what it is.

                  1. I completely agree. i was shocked when I learned that just a few weeks ago from a news story.

                2. imo, THAT is unconstitutional

                  note, fwiw that sobriety tests do not fall under miranda, etc. though because they are not testimonial, but are direct evidence.

                  miranda, at least under the original meaning applies to testimonial evidence only.

        2. You’re only getting tested as long as you are receiving the benefit. So the comparison to an eternal alienation of rights is not appropriate.

    2. “Testing in it’s most common form only punishes marijuana users by barring them from gainful employment.”

      Last I checked having access to the government teat was not a natural right.

  16. This guy keeps showing up everywhere… Damages, Heroes, The Event, 24

  17. The government can access drug test data by private employers so why is this any different?

    (1) The government mandating drug tests by anyone is different than the government accessing drug tests.

    (2) How does the government access that data? If it gets it by a search warrant, fine (theoretically). If it has mandated itself access via some law or regulation, then that, too, is a violation of the 4A.

    1. I assume the FAA knows if a pilot tests positive. The USDOT if a commercial vehicle operator does? I signed a waiver for a potential client that said they could release testing data to any party they chose. That client’s business is heavily regulated and actively monitored by an agency of the FedGov.

      1. Last time I read the FARs, a pilot is obligated to report a positive drug test to the FAA.

  18. Because the man that signed the bill will make BILLIONS from it!

  19. florida sucks. i like the fact that my state has a right to privacy (WA). so, despite federal rulings, my employer cannot require urinalysis w/o “reasonable suspicion”.

    Yah, privacy!

    otoh, golden showers require no indicia of suspicion!

    1. No offense, but I’ll take Florida over Washington any day. Though the mountains are nice.

      1. to each their own. that’s another great thing about our democratic republic. you can choose your state. i chose one with a right to carry, and a VERY LIBERTARIAN state constitution. the simpering liberal legislature and the rain are drawbacks though

        1. Florida is a mix, but we have guns, guns, and more guns–we’re known for our guns–and we have more fiscal responsibility than any other large state. We will do something strangely libertarian, then go typical statist. After all, a disproportionate number of insane people live here.

          1. um, sorry bud. we RULE when it comes to insane people, and specifically serial killers- gary ridgway, ted bundy, etc. on a per capita basis, it’s not even close. maybe it’s seasonal affective disorder.

            my theory is that crazies and outcasts also keep “going west, young man” but eventually reach the pacific ocean. they end up- here.

            we have pretty low crime, great privacy protections and no income tax.

            but again, the simpering nanny liberal legislature sucks- these are the morons that made online poker a C felony

            1. Please. Let’s take a vote right here–Florida or Washington: Where do the crazies live? That’s Washington state, to avoid unduly skewing the results.

              We have no income tax, and, despite this issue, we have fairly strong privacy rights (in the state constitution).

              1. well, as far as our privacy rights
                1) cops have no right to search a car incident to arrest in WA
                2) cops have no right to search open curtilage (generally speaking) w/o a warrant
                3) DUI checkpoints are illegal
                4) pretext stops are illegal
                5) admission of evidence in court is amongst the strictest in the nation. we were among the last states to accept HGN, and i get voir dired every fucking time i testify to it
                6) right to carry openly w/o permit
                7) shall issue permits
                8) legal carry on college campuses
                9) medical marijuana
                10) inevitable discovery rule rarely applied – iow more evidence gets suppressed
                11) ferrier standard for knock and talks at a residence

                etc.

                i’d argue that’s pretty fucking sweet

        2. “to each their own. that’s another great thing about our democratic republic. you can choose your state.”

          Oh REALLY?

        3. “that’s another great thing about our democratic [constitutional] republic.”

          FTFY. It’s not the same thing.

  20. I actually have come to think that the “You have a right to free speech, but not a right to be a police officer” line of reasoning is dangerous and corrupt precisely because it leads to this sort of thing.

    Personally, I think that the lost New Deal SCOTUS precedent in US v. Butler is very helpful in this regard. In that case, the court heroically held that the federal government couldn’t using taxing and spending schemes to attain compliance with demands it would not constitutionally be able to attain directly. Had that precedent survived, just about every kangaroo court element of the modern regulatory state would not exist. Had that precedent survived, the use of licensing to induce citizens to surrender their constitutional rights would not exist.

    And had that precedent survived, you wouldn’t be able to use state-paid relief payments to try to get citizens to relinquish 4th amendment rights you wouldn’t be able to override directly.

    The problem with exercising your [justifiable] outrage against welfare payments in this way is that once you do that you let it ALL in. If the state can say, “If you want to collect welfare, you have to give up your 4th Amendment rights” then the state can ALSO say, “If you want to get a business license, you have to give up your associational rights” and “If you want a business license, you have to give up your 5th and 7th amendment rights and come to our kangaroo administrative courts and let our bureaucrats issue fines without trials.” It’s all or nothing, folks.

    1. you have no right to be a police officer. they can test all sorts of stuff when you apply. but ONCE you get hired and pass probation, the government is far more restricted in violating privacy, etc. than a private employer would be – that’s because the constitution applies to public employers

      the best example i can give is i can publically ridicule my boss (not a good idea, but i can) without my employer being able to fire me (generally speaking). 1st amendment

      this does not apply to private employers, obviously

      1. The quote I used is from Oliver Wendell Holmes, and it may be an ad hominem to say it, but the fact that it comes from that source should warn us that it’s probably a statist time bomb of bullshit.

        Undo everything that arises from Holmes’ reasoning in McAuliffe v. Bedford and we’ll see how it goes. I doubt it will be the end of the world.

        1. i’m not making a normative argument. i’m talking about de jure reality.

    2. A business license is different because it’s not really a government benefit; it’s just a promise to stay out of the way (somewhat).

      Welfare and govt employment actually confer benefits. In particular, govt employment is entered into voluntarily. If you want a business license you *have to* get it from the govt. If you want a job you don’t have to get it from the govt.

  21. Libertarians often (correctly) point out that employers have the right to set whatever standards they want for employment. But what often is not mentioned is that employees have power too. There is no right to privacy in employment, but employees sure have the right to ask that employers respect their privacy. Of course, it is perfectly reasonable for the employer to respond by firing uppity employees, but if more people would grow some nuts and say “fuck you, do you want me to work for you or not” the pervasiveness of unnecessary drug testing might change.

    1. and of course OTHER employers can offer an alternative “come work for us. no drug testing”

      and if i was going to contract for a company to do paving or construction, i’d choose the one that drug tests.

      again, free market

      if i was going to hire graphic designers, poets, or strippers. i’d choose the company that doesn’t test! 🙂

    2. When I think about how difficult it would be for me to sack up for that challenge I realize it would be thousands of times more difficult to make it pervasive.

      But I’ve already decided to “just say no”. But I only have that luxury becuase I have savings and no dependents. Not everyone can afford to be so ballsy.

      1. which kind of explains unions.

        one employee saying fuck you, in a company with 1000 employees doesn’t have much power.

        you can argue they should NOT have much power, of course. if they don’t like it , go work somewhere else

      2. It depends how in demand your skills are (not how valuable).

      3. That’s a good point. Most people will, understandably, choose security over principle. You have to feed your family.

      4. The problem is that once you start treating employment as an inherently coercive relationship, you welcome in the whole gamut of labor laws that leftists love.

        Someone’s going to get the shit end of the stick either way. Life ain’t fair. The libertarian approach of treating employment as a non-coercive relationship is far more flexible and more friendly to prosperity and freedom.

        1. the issue i have, from a libertarian perspective with urine tests is that they don’t regard ON SITE behavior but regard off site private behavior as well.

          iow, since they test for metabolites, the employer isn’t merely testing as to whether an employee is actually under the influence, or at least has the active drug in their bloodstream while at work (clearly something an employer has the right to know) but is also informative as to what people are doing in their own private time.

          that’s the big problem imo

  22. you do not waive 4th amendment rights when you drive. i know you are going to make some half assed, legally insufficient argument about implied consent or some such, but the fact is – you don’t

    Yet, nonetheless, I am deemed to give non-waivable implied consent to searches that would otherwise theoretically be subject to the 4th Amendment when I drive. Because I am driving, the police don’t need to meet any 4th Amendment standards in order to run a BAC test on me.

    And guess what? If I refuse to blow into the straw, they can forcibly draw blood.

    Sounds exactly like what the Founders had in mind.

    1. um, IF you refuse to blow AND they have PC to believe there is evidence of a crime in your bloodstream, of course under the 4th amendment they can forcibly draw blood. the 4th amendment certainly means that given probable cause, cops should be allowed to search.

      as for the implied consent argument (which generally applies to the civil, not criminal aspects in most states – at least in mine), that applies to the PRIVILEGE of using a de facto dangerous weapon on public roadways, generally speaking. there is no constitutionally established ‘right to drive’. so, the state can legitimately say (imo), if you want to engage in this privilege, certain rules apply – considering engagement in this privilege is the #1 cause of accidental death in the nation.

      i personally think you shoudl be able to drive as drunk as you want to be – on your own property. and the law in many states, agrees

      1. This is why I live on a farm. I’m trying to talk my wife into letting me buy an old Ford Festiva so I can get loaded and jump over stuff.

        Needless to say, she is not so thrilled with the idea. Even though I promised to wear a seatbelt…

  23. Is urine testing even a reliable method for testing for dugs/alcohol?

    Correct me if I’m wrong, but I am under the impression that it is most able to detect cannabis metabolites because of the long duration they are detectable in urine and “hard” drugs are evacuated in a matter of days.

    I believe this is why when I was considering applying for a BNSF job I found out they did hair tests.

    1. *drugs

    2. urine testing, generally speeaking, tests for drug METABOLITES, not the drugs themselves.

      this can be very problematic for many drugs- iow false positives.

      there are all sorts of legal (and prescription) drugs that can result in false positives for amphetamines, for instance.

      1. Yeah, but I saw on Mythbusters that there are ways they control for that. They split the sample into two halves, and if the first half tests positive, they ship the second half to a more precise lab. A positive result is only reported if that second sample also tests positive.

        1. there probably are ways to control for that, but they aren’t necessarily used in practice.

          it’s cheaper for the employer in many cases just to go with the presumptive result, given that there are not TOO many false positives.

          a guy who happened to use bronkaid as a bronchodilator shouldn’t be fired because his employer erroneously thinks he is using an illegal drug.

          just because there ways to control for X, doesn’t mean those protections will be employed. and from a strictly libertarian approach they need not be. iow, if an employer can fire somebody for ANYTHING, then they can certainly fire for a false positive in a drug test w/.o the due diligence of determining if it WAS a false positive, nu?

  24. Would far prefer he just eliminate welfare. Problem solved.

  25. The good news is that you can at least still shit in someones yard and keep your job, so there’s that.

  26. Look on the bright side evil weekend pot smokers, we can still at least shit in folks’ yards on camera while on the clock.

  27. Oh look, beltway cosmotarians standing up for special rights for government workers that private sector workers don’t have.

    Way to stand up for the little guy. Say hi to the bureaucrats for me at the next cocktail party.

  28. I’m a bit torn on this issue, and frankly I have a political discussion group discussing this very issue.

    I initially came down on the side of drug-testing recipients of welfare, simply because if they are taking tax money and using it to buy drugs, I think that they should be taken off of their financial support as a breach of trust.

    The argument came up about this being an “erosion” of the 4th Ammendment. My viewpoint was to compare this to being employed.

    As someone who is employed, it is in my contract that they can randomly drug test me. Although I am against the war on drugs, I don’t use, so it wasn’t an issue for me. I willingly entered into the contract and accepted the terms in order to receive “my paycheck”. I don’t see myself as a victim of a “violation of my rights’, because employment asks you to give up several of your rights in exchange for a paycheck. I do not have the “right to assemble” while on the job, I do not have a “freedom of speech” on the job, I don’t have a “freedom not to be detained against my will” if I’m required to be there for 8 hours a day and I don’t have a “freedom of religion” on the job (in the sense that I have no protection if I engage in a religious discussion with someone who is offended by it – which may fall under freedom of speech more than religion). In essence, I willingly suspend certain rights in exchange for compensation. It’s part and parcel of “being employed”. If I have any kind of moral or philosophical objection to any of these policies, I am free to walk away at any time and pursue employment with someone who has a more relaxed system.

    I have difficulty in separating that scenario from drug testing recipients of welfare, who are – in essence – receiving a “paycheck” from the government. If they object to testing, they can walk away and pursue another avenue of receiving money. Welfare funds are not “their property”.

    I can see the argument of this being the decree of a governor, rather than the people themselves, but since the governor is freely elected on our behalf, are we not agreeing to several policies he would enact on our behalf? We do not vote individually on every policy he should enact, we simply either re-elect him or not? Am I looking at this wrong?

    1. a lot of it depends on how one looks at welfare (given that it’s a reality). is it a RIGHT that thus means that govt. can place little or no restrictions on you for receiving, or is it closer to a privilege and.or a right with less scrutiny, such that govt. can test you for drug use, etc. while on it?

      considering that there is at least a reasonable presumption that somebody using illegal drugs
      1) may in fact divert some of the welfare money to the drug trade
      2) could very well not even NEED welfare if they spent the money they spent on drugs… on like food and stuff…

      one could argue the govt. has a legitimate interest in testing welfare recipients for drug usage

      i’m not sold on whether they should or shouldn’t, frankly.

      1. Thanks for your input, It is a difficult rationalization. I’m definitely interested in what other people have to say in this forum. Other than a rare few, everyone seems to be pretty relaxed and tolerant of opposing viewpoints.

        1. lol. come for the insight. stay for the flamefests!

    2. There is of course the nightmare scenario where the govt charges 100% income tax (which has been ruled constitutional in past SCOTUS decisions) and then gives out tax breaks or welfare which come with strings attached…if tax breaks and welfare are always considered non-coercive and thus not subject to constitutional protections, then this gives the govt a way to circumvent the constitution.

      Of course, in that case I would say the tax breaks and welfare restrictions are de facto coercive since it would be extremely difficult for anyone to survive without accepting those restrictions.

  29. “”or is it closer to a privilege and.or a right with less scrutiny, such that govt. can test you for drug use, etc. while on it?””

    Well driving is a privilege, so a state could make random drug tests for those who carry a drivers license. So is taking public transportation for that matter. Perhaps you will not have to take a drug test if you sign a promise to walk to work.

  30. Maybe he is partners with facility that does the testing. They split the cash?

    He knows he is unelectable and is cashing in.

    1. If you had read the preceding comments, you would know that this issue has already been addressed.

  31. I am not against this idea. My only issue is the cost of this procedure, it is going to be very expensive to test every single welfare recipient. That money could be used for far better things like creating some kind of jobs for the poor.

  32. Look, I don’t have an opinion on whether this is constituional, and as folks have already pointed out many private companies do drug testing so why shouldn’t the government.

    My problem is this symbolizes that the government continues to obsess over what people put into their bodies, and the government seeks to continue to criminalize people with substance abuse problems. The Florida legislature’s and governor’s actions since they came to power show they wish to continue, if not expand, the war on drugs rather than consider any alternative approaches.

    That said, on certain economic and spending issues, I have seen significant changes and proposals.

  33. The issue is….Rick Scott is passing laws that will directly benefit his family to the tune of 100’s of Millions of dollars.
    Fla. Gov. Rick Scott’s Big Government Program to Drug Test State Workers Could Cost Taxpayers $23.5 Mil Per Year
    Will a Big Chunk of It Go to Scott’s Own Company, Solantic?

  34. Drug test them and save us some money already, and why would someone argue this? Just so they can get thier name out there in the legal world? Thats like defending a child molester…I’ll never understand people that pick those cases up.

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