Congress Just Voted to Allow States to Drug Test the Unemployed

Under a new GOP bill,  people could be drug tested to receive unemployment benefits. The bill passed the Senate by a party-line vote of 51-48 and now heads to the White House for President Donald Trump's signature.

“The American people are sick and tired of Washington bureaucrats abusing their authority to undercut the will of Congress and the American people... The President’s signature is all that remains to fully repeal this harmful Obama-era regulation and empower our states to help fully qualified workers get back to work,” said Congressman Kevin Brady, chairman of the House Ways and Means Committee.

The Republican governors of Mississippi, Texas, and Wisconsin, the only three states to enact such a law, sent a letter in support of the bill arguing that drug testing people applying for unemployment “can help individuals suffering from substance abuse to access necessary care and treatment so they may re-enter the workforce as healthy and productive members of society.”

Senator Ron Wyden pointed out the contradiction in the combination of this bill and the new Republican health care proposal, which would cut requirements for insurance coverage of drug treatment.

The bill was also opposed by  50 civil rights, faith, and criminal justice organizations including the AFL-CIO, the American Civil Liberties Union, MomsRising, and the NAACP. In their letter to the House, they argued

that the bill would shift costs from employers to states, stigmatizes the unemployed unfairly, may violate the Fourth Amendment, and is a poor use of government funds.

Research of similar laws that apply to welfare recipients has shown that the results do not match the rhetoric. The percentage of positive tests is no higher than in the general population, and the cost of testing far outweighs any savings from kicking drug users off the rolls.

Current guidelines for drug testing unemployed citizens, put in place by the Obama administration, restricted unemployment drug testing to fields where regular testing is required, such as air traffic controllers and people who carry firearms. Republicans, seeking to expand drug testing, passed the bill using the Congressional Review Act.

The CRA allows the legislature to overturn an executive branch rule by a majority vote and prohibits filibusters. It can only be used in the first sixty days that Congress is in session after the new executive guidance comes out. Because it is subject to presidential veto, it has little impact most of the time. However, the transition from one presidential administration to another opens a short window for Congress.

This is the eighth use of the Congressional Review Act this year, with six more bills pending. Prior to 2017, the CRA had only been used once in the twenty years it has been law. After the law is used to revoke an executive rule, the executive branch is prohibited from issuing a similar guideline.

This may prove problematic for the Republicans since it could limit Trump's ability to widen the scope of drug testing. If the president and the Labor Department are unable to issue new guidance, states may be unable to require drug testing for the unemployed.