Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are gaining increasingly substantial political support, suggesting that the enactment of drug testing legislation is now a real and immediate prospect. Given the gravity of the suspicionless searches at issue, the proposals raise serious concerns under conventional Fourth Amendment doctrine. Nevertheless, there is considerable doubt whether the federal courts will accede to that authority and prohibit the proposed intrusions, given the long tradition of relegating the privacy rights of the poor to inferior and indifferent enforcement. This Article explores these legislative developments and the constitutional context within which they arise, and makes the case for using the impending battle over suspicionless drug testing to reclaim for the indigent the full reach of the Fourth Amendment’s privacy right.
