The people we send to the state Capitol to pass our laws have always reminded me of a goofy, flop-eared puppy that keeps making mistakes as it romps inside the house. No matter how many times you rub their noses in it, they never seem to learn from their mistakes.
We were reminded of this again last week when state officials were told that the law they enacted this year requiring some food stamp applicants to take a drug test is illegal.
The U.S. Department of Agriculture, which funds the Supplemental Nutrition Assistance Program, told the Georgia Department of Human Services that federal policy prohibits all states from mandating drug testing of food stamp applicants and recipients.
“Requiring SNAP applicants and recipients to pass a drug test in order to receive benefits would constitute an additional of eligibility, and therefore, is not allowable under law,” said the letter from Regional Administrator Robin Bailey to DHS Commissioner Keith Horton.
Gov. Nathan Deal referred the issue to the state’s top legal officer, Attorney General Sam Olens, who subsequently advised the governor that Georgia cannot legally proceed with the drug-testing law.
“The state must comply with the terms and conditions of the federal program, or risk potential loss of the federal funding for the program (over $3 billion annually),” Olens said in his letter to Deal.
Olens was reinforcing a basic legal principle that any first-year law student could tell you: State law cannot pre-empt federal law or the protections contained in the U.S. Constitution.
“Challenging this federal provision would not uphold the rule of law; it would undermine it,” Olens wrote.
This was the second time in two years that a Georgia law requiring drug tests for the recipients of public benefits has been junked on legal grounds.
In 2012, Deal signed a bill that would have required persons applying for welfare benefits to pay for and pass a drug-screening test. Opponents of the measure said at the time it would never withstand legal review and would ultimately be thrown out in the federal courts.
The state delayed implementing that bill because a similar welfare drug-testing law had been challenged in Florida. A panel of appellate court judges unanimously rejected the Florida law on the grounds it violated the U.S. Constitution’s Fourth Amendment protections against unreasonable searches. Georgia’s law never went into effect.
You’d think lawmakers would have learned their lesson from that experience. You’d think they would have been smart enough not to try passing another drug-test requirement for public benefits. You would have been wrong.
One of the legislators who did not heed the lesson was Rep. Greg Morris, R-Vidalia, the sponsor of the ill-fated drug testing measure.
There was no pressing need to enact the bill in the first place. Georgia is the only state, in fact, that has passed a law to require drug tests for food stamp applicants.
Morris introduced the bill in January after he learned he would have opposition in the upcoming Republican primary race from a tea party-backed candidate, Lee Burton.
Regardless of the bill’s legal soundness, it has already served its political purpose: Morris won the May 20 primary election over Burton by a margin of 71 votes and is assured of re-election to another term.
“I believe the bill will withstand a court challenge and believe the state of Georgia should defend suspicion-based drug testing,” Morris said.
This legal wisdom was offered by a legislator who is not an attorney. Without being too unkind to Morris, let me suggest that he may not be the best person to consult on legal questions.
Rep. Mary Margaret Oliver, D-Decatur, on the other hand, is one of the most knowledgeable attorneys in the General Assembly. When the current drug-test bill was being debated, she tried to warn lawmakers that the measure was going to run into the legal problems it has since encountered.
“It cannot be sustained by any court,” Oliver told her House colleagues. “This is not a risk (of losing in court) — this is a certain ending of defeat.”
She was correct, of course, but no matter. The House and Senate passed the bill anyway, proving the original point that some people just never learn.
Tom Crawford is editor of The Georgia Report. His column appears Wednesdays and at gainesvilletimes.com/viewpoint.