WELFARE RIGHTS (Update)

The twentieth century has witnessed the continuing evolution of a variety of governmental programs aimed at providing aid, in cash or in kind, to the poor. Once a supplement to private and religious charitable programs, governmental aid to the poor has become the single most important source of poverty relief in contemporary America. Some of these programs are denominated insurance programs, providing benefits to people who make, or have made for them, contributions to a fund upon the occurrence of certain events. The most important examples of these types of programs are Social Security and unemployment insurance. The former provides payments to certain categories of the aged, the infirm, and their dependents, and the latter provides for a finite number of periodic payments in the event of certain kinds of job loss. In each case, such payments can significantly exceed and usually bear very little relationship to an individual's contributions to the "fund" from which payments are made. What we have come to know as "welfare" does not include programs such as these. Instead, welfare, or public assistance, has come to mean public programs, financed from federal, state, or local funds, that furnish financial assistance or assistance in kind to families or individuals who meet specific conditions. The most important program of in-kind aid is administered through the Food Stamp Act of 1964, which subsidizes the purchase of food by permitting a recipient to pay for food with program vouchers (or "food stamps"). For able-bodied unemployed men, for women without minor children, or for two-parent families, the most likely sources of public assistance are state or local programs of general assistance. These are the oldest programs of American public assistance and trace their origins directly to the Elizabethan Poor Laws. These programs serve as the last resort of governmental aid for people who are ineligible for unemployment compensation or Social Security related programs, and who are unable to qualify for any other program of governmental assistance.

For roughly sixty years prior to 1996, however, the largest and most significant form of welfare was the elaborate system of federal supplemental payments to states for payments to certain categories of the poor, primarily poor women with minor children. This federal grant program was known as Aid to Families with Dependant Children (AFDC). AFDC was originally conceived as a program to provide supplemental federal assistance to state welfare programs targeted to destitute children where the family breadwinner was dead, disabled, or absent. Most of the beneficiaries were white widows. By the 1990s, it had evolved into a primary source of benefits for poor women who headed their households alone and had minor children. Disproportionate numbers of beneficiaries were Latina or African American. While the federal government provided most of the funds for the program, and imposed significant regulations for the administration and availability of the program, participating states retained great latitude in the construction of their programs. Under AFDC rules, no eligible person could be denied benefits, but states had wide latitude in setting benefit levels and in implementing the minimal program requirements imposed by federal rules. The AFDC program proved highly controversial during the last forty or so years of its existence. Political liberals tended to believe that the program was too restrictive, its benefit levels too low, and its reliance on state administration archaic. Political conservatives insisted that the AFDC program benefits were too high, subsidized out-of-wedlock births and single-parent homes (which they considered an undesirable substitute for marriage), and created a "culture of dependency" passed down from mothers to children.

By 1995, political conservatives had won the day. Their solution to the problem posed by AFDC was the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The act eliminated the entitlement status of payments, replacing AFDC with Temporary Assistance for Needy Families (TANF). Federal assistance continues to be delivered to the states as a targeted supplement to state assistance programs, but now such payments are bundled as block grants to the states. TANF grants remain contingent upon compliance with a number of minimum federal requirements, but the quantity and scope of such requirements have decreased substantially from those under the old AFDC program. PRWORA tightens the rules for the receipt of food stamps, permits states the power to deny cash assistance to children born to women while they are receiving benefits, and tightens rules of eligibility for Medicare and Supplemental Social Security Income payments. Under PRWORA, state aid programs must impose significant work requirements on recipients and must meet certain minimum state funding requirements based on the level of state contributions to their AFDC programs. In addition, PRWORA gives a state broad authority to limit the amount of aid recipients may receive over their lifetime and to restrict aid to young mothers and documented and undocumented noncitizen immigrants. PRWORA also creates a comprehensive system for collecting child support payments from absent fathers.

Beyond these minimal federal requirements, PRWORA devolved substantial authority over the scope and means of the provision of benefits to the individual states. Subject to minimal standards set forth in PRWORA or in related regulations, states have authority to set benefit levels, eligibility criteria, and time limits for welfare benefits. Indeed, a state now appears to have power to determine the form of benefit as well as its level. In-kind benefits may be substituted for cash benefits, though few states have chosen to shift significantly to programs of in-kind benefits. States have leeway to define work requirements and the punishments for individual failure to comply, and to set the terms for income and asset acquisition for recipients making the transition from welfare benefits to self-sufficiency. As a result, much of the political conflict over welfare policy has shifted from the federal level to the state level, and the possibility of uniform standards of poverty relief is remote.

The Supreme Court has given great deference to legislative judgments, both state and federal, concerning welfare benefits. As the Court wrote in dandridge v. williams (1970), "here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights." "Congress is not, by virtue of having instituted a social welfare program, bound to continue it at all, much less at the same benefit level," the Court explained in Bowen v. Gilliard (1987). Where the Justices are persuaded that the issue is "economic" or "social," they have declined to extend federal constitutional protection to the substantive right to benefits. Thus, the Court held that the federal Constitution does not create a right to subsistence nor does it compel states to raise benefit levels to some minimally acceptable level. Nor is the federal government constitutionally compelled to maintain programs at any particular funding level. In contrast, several state courts have interpreted their state constitutions as requiring the provision of benefits.

The Supreme Court's deference has extended beyond the realm of welfare benefit programs. In a perversely ironic example of this reasoning, the Court held in United States v. Kras (1973) that the poor have no constitutional right to seek the protection of the federal bankruptcy laws without paying filing fees. The Court reasoned that there existed no constitutional right to bankruptcy protection and that the fees did not deny the indigent plaintiff the equal protection of the laws. Rather than being a fundamental right, "bankruptcy legislation is in the area of economics and social welfare. This being so, the applicable standard, in measuring the propriety of Congress' classification, is that of the rational justification." A similar result was reached in Ortwein v. Schwab (1973), in which the Court held that the Constitution does not prohibit the imposition of a fee for appellate review of state administrative determination of welfare benefits.

On the other hand, the Court has applied federal constitutional principles of procedural fairness to deprivations of property in both the commercial and welfare context. In a celebrated decision, goldberg v. kelly (1970), the Court held that constitutional due process principles required the state to afford recipients meaningful notice and a meaningful opportunity to be heard before terminating welfare benefits. But the rights accorded under Goldberg left the basic structure of welfare untouched. It increased the cost to the state of individual deprivations but did not prohibit the state from limiting or eliminating welfare entirely.

Litigation over programs in aid of the poor has generated a significant body of case law treating issues of federalism, but not really touching on the fundamental constitutional condition of the poor themselves. In each of these cases, all decided under the AFDC rules, the Court shifted to the federal government the locus of the authority to interpret and control state welfare programs largely dependent on federal support. In these cases, the Court has consistently reasoned that because federal money was being used to subsidize and largely finance state welfare programs, and because the transfer of such money was conditioned by compliance with a host of complicated and far-reaching rules, the proper interpretation and implementation of such programs at the state level became the province of the federal government, subject to limitations, if any, of the federal Constitution.

This reasoning was sharpened in three cases in which the Court chose to concentrate on issues of federalism in the interpretation of the welfare statutes themselves. In King v. Smith (1968), the Court interpreted federal welfare rules to preclude Alabama from denying welfare benefits to otherwise eligible families because the mother might have an intimate relationship with a man who was not her husband. In Townsend v. Swank (1971), the Court determined that states had no power to vary the terms of optional programs under federal welfare legislation. In Carlson v. Remillard (1972), state rules that denied benefits to the family of a soldier serving in the vietnam war were voided for conflicting with federal welfare eligibility rules. In each of these cases, the Court focused on a determination of the appropriate level of governmental authority to make and alter the challenged welfare rules, rather than on the substance of the welfare rules themselves. In each of the cases, the Court favored the federal over the state power to regulate welfare. The Court, however, carefully avoided constitutionalizing its placement of power or limiting the power of government to change the substance of the rules at issue. The federal government was constitutionally free to devolve power to the states, or to legislate a different substantive result—just as Congress did when it overhauled the federal government's involvement in welfare in the form of PRWORA.

The poor fare better when deprivations related to their socioeconomic position also directly affect another constitutionally protected right or interest. The most important "fundamental interests" protected by the courts are the right to travel, the right to family life, and the right to liberty. The most significant case in this vein was shapiro v. thompson (1969), which held that special waiting period requirements for eligibility for federal categorical relief programs unreasonably burdened the constitutionally protected right to travel. State residency rules were not at issue in this case; instead, the Court was concerned only with the power of states to create, through waiting period rules, unacceptable local deviations in a federally subsidized program, which might hinder the ability of beneficiaries to take advantage of the program's terms nationally. In a sense, the case held no more than that the right of the poor to travel was no less worthy of protection than the right to interstate commerce in goods.

In saenz v. roe (1999), the Court again visited the issue of state residency rules for the receipt of state government assistance. In striking down a California provision limiting new residents, for the first year they lived in California, to the amount of benefits they would have received in the state of their former residence, the Court reaffirmed the constitutional protection of the right to travel and, more importantly, expanded on the meaning of the privileges and immunities clause of the Fourteenth Amendment. The Court held that the privileges and immunities clause guarantees the right of newly arrived citizens of a state to be treated the same as all other citizens. Though the Constitution does not restrict a state's right to limit benefits, a state cannot create different levels of benefits based on the duration of residence of its citizens.

The Court has also been solicitous of a poor person's right to family life. A poor person has a constitutionally protected right to access to a divorce court under boddie v. connecticut (1971). Preservation of the right of indigents to control their family lives has also been protected based on the Court's interpretation of the due process and equal protection clauses of the Fourteenth Amendment. In Lassiter v. Department of Social Services (1981), the Court held that under certain circumstances the state is constitutionally required to appoint counsel for an indigent person seeking to defend against state proceedings to terminate parental rights. The poor also have, under m. l. b. v. s. l. j. (1996), the right to access to appeals from decisions terminating their parental rights without having to pay court fees.

In criminal cases, the poor have been conceded the right to counsel and access to the courts, without charge, under some circumstances. These include, under gideon v. wainright (1963), when the indigent defendant is charged with a felony or, under douglas v. california (1963), when the indigent defendant is accorded an appeal as of right. Indigents must also, under griffin v. illinois (1956), be provided with the record required for a criminal appeal.

Larry CatÁ Backer
(2000)

Bibliography

Abramovitz, Mimi 1988 Regulating the Lives of Women: Social Welfare Policy From Colonial Times to the Present. Boston: South End Press.

Backer, Larry CatÁ 1995 Medieval Poor Law in Twentieth Century America: Looking Back Towards a General Theory of Modern American Poor Relief. Case Western Reserve Law Review 1995:871–1041.

——1996 Poor Relief, Welfare Paralysis, and Assimilation. Utah Law Review 1996:1–49.

Handler, Joel F. and Hasenfeld, Yeheskel 1991 The Moral Construction of Poverty: Welfare Reform in America. Newbury Park, Calif.: Sage Publication.

Katz, Michael 1989 The Undeserving Poor: From the War on Poverty to the War on Welfare. New York: Pantheon Books.

Marmor, Theodore 1990 America's Misunderstood Welfare State: Persistent Myths, Enduring Realities. New York: Basic Books.

Murray, Charles 1984 Losing Ground: American Social Policy, 1950–1980. New York: Basic Books.