[Excerpt] Federal or state laws that condition the initial or ongoing receipt of governmental benefits on passing drug tests without regard to individualized suspicion of illicit drug use may be subject to constitutional challenge. Constitutional challenges to suspicionless governmental drug testing most often focus on issues of personal privacy and Fourth Amendment protections against “unreasonable searches.” To date, two state laws requiring suspicionless drug tests as a condition to receiving governmental benefits have sparked litigation, and neither case has been fully litigated on the merits. The U.S. Supreme Court has not rendered an opinion on such a law; however, the Court has issued decisions on drug testing programs in other contexts that have guided the few lower court opinions on the subject. These Supreme Court opinions also likely will shape future judicial decisions on the topic.
To effectively evaluate the constitutionality of laws requiring suspicionless drug tests to receive governmental benefits, this report first provides an overview of the Fourth Amendment. It then reviews five Supreme Court decisions that have evaluated government-administered drug testing programs in other contexts and provides an analysis of the preliminary lower court opinions directly on point. The report concludes with a synthesis of the various factors that likely will be important to a future court’s assessment of the constitutionality of these laws, which also may guide policymaking on the subject.