DOJ Files Lawsuit Against Federal Government Over Drug Testing Requirements for Welfare Recipients

Jul 14 2015

MADISON — On behalf of the State of Wisconsin, Attorney General Brad D. Schimel today filed a lawsuit against the federal government seeking clarification that the State can require certain welfare recipients to undergo drug testing to satisfy the work requirement for food-stamp benefits.  The lawsuit was filed against United States Secretary of Agriculture Tom Vilsack in the United States District Court for the Eastern District of Wisconsin.



“This lawsuit seeks to provide clarity that the State of Wisconsin has the authority to require drug testing for FoodShare recipients,” said Schimel. “In previous communications with the State of Wisconsin, the federal government has taken the opposite position despite the clear statutory language in federal law.”


Following is a summary of the lawsuit:


Name: State of Wisconsin v. Vilsack


Parties: Plaintiffs are the State and Kitty Rhoades, Secretary of Wisconsin Department of Health Services (DHS). The Defendants are the United States Secretary of Agriculture (USDA), Tom Vilsack, and his subordinate managers of the USDA federal food-stamp program.


Court: Eastern District of Wisconsin


Summary of Lawsuit

  • FoodShare is the Wisconsin version of the federal food-stamp program.
  • FoodShare is administered by the State and local governments, but paid for by the USDA.
  • The USDA sets conditions of eligibility and other requirements, which are imposed on the states.
  • The recently enacted biennial budget bill (2015 Wisconsin Act 55) signed by Governor Scott Walker) includes a new law requiring DHS to screen and, if indicated, test and treat certain individuals for controlled substances who receive FoodShare in Wisconsin as a condition of eligibility.

  • Not all FoodShare recipients are to be tested – only able-bodied adults without dependents who meet the FoodShare work requirement through participation in the FoodShare Employment and Training Program (FSET). These individuals account for about a quarter of all FoodShare recipients.

  • While the Wisconsin Legislature was considering this legislation, the USDA sent an email to DHS indicating that drug testing was not permitted in the FoodShare program.

  • It is Wisconsin’s position that FoodShare recipients may be drug tested as a condition of eligibility. Wisconsin bases its position on a 1996 federal law that provides as follows:

    • “Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.”1

  • It is Wisconsin’s position that FoodShare recipients are “welfare recipients” and therefore may be tested and sanctioned for the use of controlled substances.

  • Because Wisconsin and the Obama administration disagree about the meaning of federal law, Wisconsin is asking the federal court to declare that Wisconsin’s position is correct, and to issue an injunction preventing the federal government from applying their standards in an unlawful way.


21 U.S.C. §