Unconstitutional

I learned early in my career at the ACLU to use the word "unconstitutional" sparingly. We may view a particular government policy as violating the spirit of the United States Constitution, but ultimately, the courts rule on the constitutionality of any particular government action or law. On Monday I testified against two bills the ACLU of MAINE believes to be unconstitutional -- LD 605 and LD 150. LD 150 would require random drug testing of Medicaid recipients with prescriptions for scheduled drugs. LD 605 would require random drug testing of all MaineCare recipients. Michigan is the only state in the country that has attempted to impose random drug testing on benefit recipients. The ACLU of Michigan sued, and the law was struck down as unconstitutional.

From my testimony to the legislature:

The Fourth Amendment almost always requires individualized suspicion to justify a drug test, which is a search under the Constitution. In order to implement a policy of suspicionless drug testing – as is proposed in LD 605– the government entity conducting the tests must (1) articulate “special needs” beyond the normal need for law enforcement,[1] and (2) show that the special needs are “substantial,” meaning “important enough to override the individual’s acknowledged privacy interest [and] vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion.”[2]