Maintaining Procedural Protections for Welfare Recipients: Defining Property for the Due Process Clause


Wisconsin’s new welfare program requires recipients to periodically search for employment and to attend job training to the satisfaction of individual caseworkers. Caseworkers shall “determine satisfactory search efforts for unsubsidized employment for each participant on a case by case basis” and deny benefits to those who do not comply.

Allowing caseworkers such broad discretion invites abuses of powerand will cause some needy families to go without benefits for trivial violations of policy. On the other hand, such discretion may enable welfareprograms to move people into working environments. A certain degree of flexibility in working with welfare recipients is necessary to provide the most effective assistance. No matter what amount of discretion is allowed to caseworkers, however, welfare recipients must be assured of certain procedural protections. Because welfare benefits are crucial for survival, individual recipients should be able to challenge the termination of benefits in an administrative hearing before the termination is effectuated.

The Supreme Court established the due process right of welfare recipients to pre-termination hearings in Goldberg v. Kelly. After Goldberg, however, the Court determined that due process protections apply only to those government benefits to which people have a “legitimate claim of entitlement” under the applicable statute. Recent changes in federal andstate welfare law call into question the degree of entitlement held by welfare recipients in Wisconsin. These legislative changes end the statutory guarantee of welfare assistance to eligible recipients and arguably insulate the new welfare program from the requirements of the Due Process Clause. Because Wisconsin’s welfare system is often seen as a national model, it is vital that we understand its possible implications on the procedural rights of recipients.

This paper analyzes the continued applicability of the Due Process Clause to welfare benefit decisions and, more broadly, explores the nature of our due process jurisprudence. I begin by outlining the current understanding of procedural due process and explain the procedural protections that were constitutionally mandated for recipients of assistance under Aid to Families with Dependent Children, the previous welfare system. I com-pare those with the procedural protections available to recipients under Wisconsin’s new welfare program. I then analyze a due process challenge to Wisconsin’s welfare program under the existing jurisprudence. With that hypothetical challenge as a backdrop, I trace the development of the current procedural due process jurisprudence and identify its limitations. I then review a recent case in which the Supreme Court held that the importance of the interest at stake must be considered when deciding if that interest is a “liberty” protected by the Due Process Clause. In Part VI, I argue that the Court should incorporate the importance of the benefit at issue when deciding whether it is “property” for the purposes of Due Process. The revision I propose will more accurately reflect the multiple values served by procedural due process. Finally, I define more explicitly my understanding of an improved due process jurisprudence and respond to some potential challenges.

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