Drug testing for unemployment benefits?

Megyn Kelly looks at the legality of the Arizona senate approving a jobless drug test bill

This is a RUSH transcript from "The O'Reilly Factor," March 15, 2012. This copy may not be in its final form and may be updated.

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O'REILLY: "Kelly File" segment tonight. Two very hot topics, a call for the U.N. to investigate U.S. voting laws. What?

But first, the Arizona Senate approves a measure requiring a drug test for anyone applying for unemployment benefits in that state. Here now, attorney and Fox News anchor, Megyn Kelly. All right so tell me about Arizona. What do they want?

MEGYN KELLY, FOX NEWS ANCHOR: So they want to test unemployment recipients for drug use.

O'REILLY: Why?

KELLY: But they only want to test those whom they have a reasonable suspicion about, if they have reasonable cause to believe you might be on drugs. And if you got arrested…

O'REILLY: So if you walk in and fall down?

KELLY: You know you smell like the Mary Jane when you walk into the office?

O'REILLY: Mary Jane? What's that?

KELLY: Try to keep up Bill.

O'REILLY: I can't.

KELLY: You call me little Bo Peep, you're little Bo Peep.

O'REILLY: I know what Mary Jane is.

KELLY: In any event. So, they don't want those people to get unemployment benefits for a year if they fail a drug test or if there's other reasonable cause to believe that they are on drugs.

O'REILLY: So, but isn't it very subjective that somebody would say well, step over here and urinate into a cup because you're wobbling down the road? I mean arrest I can understand.

KELLY: Well, that all goes to what's reasonable…

O'REILLY: A drug arrest I can understand.

KELLY: That's where the litigation will come up, what is reasonable? It is arbitrary… arbitrarily applied when you know the… the person making the decision sees one person versus another?

O'REILLY: Is… Does the law have any standard for state workers to ask? Are there a list of things that they have to comply with?

KELLY: I don't think so. No.

O'REILLY: So then it can't stand.

KELLY: But that's how… that's how the Fourth Amendment works, you know reasonable… reasonable suspicion is what you need to do a warrantless search.

So it's always up to the… in the eye of the beholder and then it gets checked by a court or another person.

O'REILLY: But in the Fourth Amendment you have trained police agents, ok, making the decision. Here you have some clerk sitting behind a desk.

KELLY: Not necessarily because we don't know how the… how the law is going… how the state is going to enforce it if they just go by an arrest if you had a drug arrest.

O'REILLY: Right.

KELLY: …and you're facing charges. Automatically there's reasonable suspicions.

O'REILLY: But you can't… how can Arizona pass a law if they don't know how it's going to be enforced?

KELLY: No, listen just because I don't know it doesn't mean they don't know.

O'REILLY: See in theory I'm with them I think there's a lot of fraud in welfare all over the place and there are a lot of drug-addicted and alcoholic people getting money and spending it on drugs and alcohol. The kids never see it.

So in theory, I like it. I want people to be held accountable. But this law has got to be specific about what you can and can't do.

KELLY: I… well, you can't be on drugs and use the money for… that you get for unemployment.

O'REILLY: But they have to find a way to make sure that…

KELLY: They can't make it more specific than reasonable suspicion or reasonable cause, Bill. Because then they're going to include a whole bunch of things that they shouldn't include and exclude a bunch of things they shouldn't exclude.

O'REILLY: Would you vote for this law if you were in Arizona.

KELLY: I mean, my own personal view is I don't like these laws because I do think that in the end that you could hurt families.

O'REILLY: How do you…

KELLY: They try to provide for the children. They try to provide for the children.

O'REILLY: Who is that?

KELLY: But here's my… but let me finish my point. Let me finish my point, the studies show --

O'REILLY: Yes.

KELLY: ...that those who are receiving welfare benefits or unemployment benefits are no more likely and actually may be less likely than the general population to be on drugs.

So I do think it may be targeting unfairly a group that…

O'REILLY: What study is that? What study is that?

KELLY: There's a few of them. There's several.

O'REILLY: Yes.

KELLY: We went through all of this when Florida tried to pass its law banning welfare recipients from getting their payments if they were on drugs. Now that applied to any applicant.

O'REILLY: Did that pass in Florida by the way?

KELLY: No it just got struck… it passed but it struck down.

O'REILLY: Got struck down, yes.

KELLY: Now still under review. But I just… I think that they are… they are unfairly assuming that people who apply for unemployment benefits or welfare benefits have a higher propensity for drug use.

O'REILLY: All right. But you dodged my question.

KELLY: ...and the studies don't support that.

O'REILLY: But you dodged my question, if you were in the Senate in Arizona would you vote for this law?

KELLY: I'm not going to answer that.

O'REILLY: Ok. the NAACP is complaining to the United Nations… the United Nations, that U.S. voting laws…

KELLY: Yes.

O'REILLY: …are some somehow unfair. Why?

KELLY: So now the U.N. Human Rights Council…

O'REILLY: Wasn’t Libya on that one, is it Libya on that one?

KELLY: They say that they want to shame us. The NAACP says they want to shame us, that's what they are doing this for. Because they think that these laws will disenfranchise minority voters.

O'REILLY: What laws?

KELLY: And -- these Voter ID Laws. They don't like the Voter ID Laws.

O'REILLY: Ok it's all about the Voter ID Laws.

KELLY: Yes.

O'REILLY: Ok.

KELLY: And so they want to shame the United States in front of this U.N. --

O'REILLY: Yes.

KELLY: ...world body, this Human Rights Commission.

O'REILLY: And Libya is on there.

KELLY: Libya is on there and so is other on this commission includes China.

O'REILLY: China… human rights.

KELLY: …where there is forced abortions millions of babies.

O'REILLY: Absolutely, yes.

KELLY: Saudi Arabia where women don't even get to vote; woman cannot vote in Saudi Arabia.

O'REILLY: And beheading, we have beheadings.

KELLY: But Saudi Arabia is going to decide whether our voting laws are appropriate or not. Uganda. Do I need to mention Kony?

O'REILLY: Ok, so the NCAAP -- Uganda is on it.

KELLY: And the list goes on and on.

O'REILLY: Right, he's not in -- Kony is not Uganda. But -- but they have a big problem with gays in Uganda where they have all kinds of laws against them.

KELLY: Can I -- I mean, the list of countries that will now pass judgment on the United States and our Voter ID law to decide whether we are just or not just.

O'REILLY: But don't you think -- don't you think that the NAACP knows there will be backlash against them for doing this and it doesn't mean anything anyway.

KELLY: Listen, historically they did this, they did this back in the late 1940s, the NAACP went to that same world body, the Human Rights Commission of the U.N. and talked about the discrimination against minorities here in the United States and they were right. They had an issue back then that was legitimate.

O'REILLY: Right.

KELLY: This may or may not be legitimate but given the scope of what is going on at those countries, you know, that they are now appealing to, China and the forced abortions and that's what they should be paying attention to as opposed to our photo ID laws.

O'REILLY: Yes these ACLU types and the far-left people really don't want anybody showing ID at the poll. They don't want it.

KELLY: No, they don't.

O'REILLY: They don't want it. I wonder why? Megyn Kelly, everybody, there she is.

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