The importance of due process protections after welfare reform: client stories from New York City.

• Author: Jeffrey, Randal S.

1. INTRODUCTION

   The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (1) threatens the due process protections that, for over thirty years, have applied to public assistance programs throughout the country. This article will demonstrate, through an exploration of New York City's administration of its cash assistance programs and the consequence on impoverished City residents (2) that any diminution of due process protections in the public assistance arena would result in unnecessary harm to those that these programs are intended to help.

   The federal welfare reform law fundamentally changed the nature of the foremost federal program by providing impoverished families with cash assistance (3) to meet their most basic needs. The federal welfare reform law transformed the federally funded, state-administered program from a highly federally regulated program to a block grant program with few constraints on the state. (4) This fundamental change was epitomized by the alteration in the name of the program from Aid to Families with Dependent Children (AFDC) to Temporary Assistance for Needy Families (TANF). This transformation occurred after years of debate about the benefits and harms of public assistance, (5) a promise to "`end welfare as we know it,'" (6) and two presidential vetoes of earlier versions of the legislation. (7)

   While the welfare reform law brought sweeping changes to the structure of the federal public assistance program, one new feature not frequently discussed in popular accounts, but with potentially profound consequences on the daily administration of the program, is the section of the law that provides that public assistance is no longer an "entitlement." (8) Decades before the welfare reform law, the Supreme Court in Goldberg v. Kelly (9) recognized that public assistance recipients were entitled to certain due process rights. (10) Since then, public assistance programs throughout the country have been administered under a due process regime. The fact that the welfare reform law's provision states that the TANF program does not "entitle" any person to assistance (11) threatens the entire structure of due process protections that have applied to the administration of public assistance programs since the Goldberg decision. (12)

   Recognizing the importance of due process protections for public assistance clients is essential. First, despite the fact that the federal welfare reform law was enacted over six years ago, (13) few courts have yet to rule on whether due process protections remain. Documenting the practical importance of due process can influence courts' decisions determining whether due process protections continue to apply. Second, the TANF program is scheduled for reauthorization in 2002, (14) which means that every aspect of the TANF program, including its "no entitlement" provision, is subject to reconsideration. Whether the no entitlement provision remains part of the TANF statute will depend on whether Congress and the President are convinced that the significance of due process merits the removal of this provision. Third, while the Food Stamp Program was reauthorized in 2002, (15) Congress might take the opportunity provided by the TANF reauthorization to block grant the Food Stamp Program, with a similar disentitlement to food stamp benefits.

   This article illustrates the importance of due process by documenting the impact that the lack of due process has had on impoverished families and individuals in New York City. (16) The hardships that they have experienced serve as a reminder that there are real-life consequences behind the sometimes formalistic and legalistic debates over the applicability and scope of due process protections. (17) In fact, it is precisely this real-life impact that contributed to the establishment of due process protections in public assistance. (18) This article's strategy thus reproduces past efforts through the use of contemporary stories. (19)

   While only four stories are discussed to show the importance of due process, these stories represent thousands of other similar accounts, both from New York City and from throughout the country. (20) While some critics might attempt to marginalize the relevance of these individual stories as merely isolated incidents of due process violations, in a certain sense it does not matter whether these stories are typical or extraordinary. Rather, these stories illustrate what could happen not just in New York City, but throughout the country, if the administration of public assistance programs is freed from due process protections. Without these protections, clients lose significant legal remedies for any systemic violations, whether they are intentional violations or not. (21)

   Part II of this article presents a brief overview of how procedural due process was established as a protection for public assistance benefits. Part III discusses whether, after the passage of the federal welfare reform law, public assistance continues to be a protected property interest under either federal or state law--such that clients might continue to enjoy procedural due process protections. Part IV explains the appropriateness of using stories from New York City clients to illustrate the impact of the failure to comply with procedural due process protections. Parts V through VIII discuss the stories of four clients who were denied due process. Each story is presented in the context of systemic due process violations that were caused by particular City programs, and each story helps to illustrate how and why the client's due process rights were violated.

2. THE DEVELOPMENT OF PUBLIC ASSISTANCE AND THE APPLICABILITY OF DUE PROCESS (22)

   The modern public assistance program began when the Social Security Act of 1935 established the Aid to Dependent Children (ADC) program. (23) The ADC program originally and primarily benefited widows and their children. (24) Over time, the ADC program expanded to include single parents and was renamed AFDC in 1962. (25) The number of persons receiving AFDC benefits increased during the 1960s (26) as advocates worked to ensure client access to the program. (27) The attachment of due process to public assistance benefits followed the expansion of the program in the 1960s and culminated in the landmark Supreme Court case, Goldberg v. Kelly. (28)

   The Goldberg Court considered whether the procedures employed by New York City program administrators when they terminated recipients from the AFDC program and New York State's Home Relief program (29) satisfied due process. (30) As is the case with all modern due process analyses, the Court engaged in a two-step process to adjudicate the constitutionality of the challenged procedures. (31) The first step in this analysis is to determine whether a protected property interest is at stake. (32) If a property interest is at stake, the second step is to determine if the procedures governing the revocation of the property interest are in compliance with due process. (33)

   In answering the first question, the Goldberg court noted the appellant's concession of the applicability of procedural due process to the termination of welfare benefits and explained that "[s]uch benefits are a matter of statutory entitlement for persons qualified to receive them." (34) Expanding on this statement, the Court cited two seminal articles by Charles A. Reich, The New Property (35) and Individual Rights and Social Welfare: The Emerging Legal Issues. (36) Both articles support the proposition that welfare benefits are "more like `property' than a `gratuity.'" (37) In his influential article, The New Property, Reich argued that government "benefits" had so pervaded society, affecting both the wealthy and those in poverty, that they should receive protection from government interference--much like traditional forms of property. This includes procedural due process protections. (38)

   After establishing that a protected property interest was at stake, the Goldberg court next turned to whether the challenged procedures violated due process. In doing so, the Court distinguished the case at hand from those in which a pretermination evidentiary hearing was not required based on the nature of the interests at stake. (39) In particular, the Court noted that "welfare provides the means to obtain essential food, clothing, housing, and medical care." (40) In even more sweeping language, the Court stated that welfare is not "mere charity" but that it is instead "a means to `promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.'" (41) Based on the importance of welfare, the Court held that the challenged procedures failed to satisfy due process. (42)

   In addition to specifying that program administrators must provide recipients an opportunity for a pre-termination hearing when they intend to discontinue public assistance, the Court also provided the basic framework for such hearings. (43) The Court held that, under due process, recipients must be provided the following prior to a proposed termination becoming effective: "timely and adequate notice detailing the reasons for a proposed termination;" (44) the opportunity to make an oral presentation at a pre-termination hearing; (45) "an opportunity to confront and cross-examine the witnesses" at the hearing; (46) the right to retain counsel to represent them at the hearing; (47) and the right to present the case to an impartial decision maker. (48)

   The Goldberg decision generated a series of lower court decisions that elaborated on the due process protections that apply to public assistance programs. For example, while the Supreme Court has not directly addressed the issue, (49) lower federal courts have extended many of the Goldberg due process protections afforded to recipients to applicants. (50) Additionally, as discussed below, other decisions have elaborated on the notice, fair...