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ACLU Background Briefing, April, 1994
During his campaign for President, Bill Clinton promised voters that if
elected he would "end welfare as we know it." This promise has given impetus
to a welfare reform debate in Congress, within the Clinton administration,
in the 50 states and among the general public. While there is a consensus
that the welfare program is in need of change, there is little agreement
about how to change it.
The Clinton Administration's Working Group on Welfare Reform -- an
interagency task force created to construct a comprehensive welfare reform
package -- is expected to announce its proposal in May. Members of Congress
are also weighing in on the issue with new legislation being introduced
Within this rich mix of competing and overlapping approaches, several issues
have emerged that raise civil liberties concerns. The American Civil
Liberties Union is monitoring the various welfare reform proposals, with
particular attention to certain problematic aspects discussed more fully
Although the Constitution does not guarantee the right to receive welfare,
the ACLU believes that reform of the public assistance system will likely
implicate a variety of constitutional rights. In particular, once the
government decides to give welfare benefits -- as the United States did
during the New Deal -- there are constitutional limits to the conditions
that it can attach to those benefits and to the treatment afforded
Welfare reform holds out many opportunities for strengthening the civil
liberties of some of society's most vulnerable individuals. If not properly
designed, however, welfare reform poses many threats to due process, privacy
and equal protection rights, as well as to First Amendment freedoms.
The ACLU will oppose any welfare reform proposal that:
> Conditions the receipt of welfare upon the recipients' willingness to
waive constitutional rights to privacy and free association.
> Removes or reduces benefits arbitrarily or without due process.
> Targets groups of individuals for unfair treatment in a manner that
offends the equal protection principles of the Constitution.
The remainder of this briefing paper will examine some of the myths and
realities of welfare and then provide a more detailed review of our civil
The Myths and Realities of Welfare
Welfare is an umbrella term for a variety of programs that provide income
support and create a social safety net for impoverished individuals and
families. The program discussed most often in the context of federal welfare
reform is Aid to Families with Dependent Children (AFDC), a program that
enables states to provide cash subsistence payments to children who are
deprived of a parent's care or support. Welfare benefits also include food
stamps, housing allowances, Medicaid, Supplemental Security Income (SSI)
and, at the state level, General Assistance (GA).
As a result of structural changes in the American economy, the number of
individuals receiving welfare benefits has increased in recent years. The
majority of these individuals are single mothers and children. At the same
time, the public has grown increasingly intolerant of women on welfare, and
many have bought into the myths and stereotypes about who these women are.
In the same manner that Willie Horton became a lightning rod for our fears
and stereotypes in the context of crime, the "welfare queen" who is presumed
to continue to have children and drive up to the welfare office in her
Cadillac while stubbornly refusing to work, has become the hot button image
of American fears and stereotypes of the poor.
The reality of life on welfare is strikingly different from this stereotype.
Numerous studies and reports have found that no one gets rich, or even lives
comfortably on welfare. The combined benefits available to families from
AFDC and food stamps are below the poverty line in all 50 states and the
District of Columbia. In 41 of these jurisdictions, the benefits give a
family an income that is at least 25 percent below the poverty line, or less
than $8,700 a year for a family of three.
Contrary to the myth of large and ever growing welfare families, the
Congressional Budget Office reports that most parents receiving AFDC have
only one or two children. The average size of a family on welfare is
slightly smaller than the average size of American families in general.
A Civil Liberties Concern:
Unconstitutional Conditions On the Receipt of Welfare
The Child Exclusion. One proposal that has received a great deal of
attention is the child exclusion or family cap. Currently, a family's
benefits level is calculated on a per capita basis, so that payments
increase with the birth of an additional child -- just as a middle class
family's dependent tax deduction increases with the birth of an additional
child. Child exclusion proposals would eliminate the incremental increase in
benefits if a child is born or conceived while his or her parent is
receiving benefits, thereby depriving that child of the welfare safety net
and depriving the entire family of assistance needed to pay rent and other
The child exclusion is not about saving money; it is about singling out poor
children for punishment. There is no valid basis for the government to
distinguish between middle class parents who get income support through tax
deductions and poor parents who get income support through AFDC. Neither is
there any basis for distinguishing between children born before a parent
enters the AFDC program and children born afterwards.
Empirical evidence strongly suggests that women do not choose to have
children because of the small increase in welfare benefits. A 1992 report by
Child Trends Inc. found that the five states with the highest birth rates
among 18- and 19-year-old women -- Arizona, Arkansas, Mississippi, Nevada
and New Mexico -- all have AFDC benefits below the national median; the four
states with the lowest birth rates among 18- and 19-year-old women --
Massachusetts, New Hampshire, North Dakota and Vermont -- all have AFDC
benefits above the national median. If living far below the poverty line
does not, in itself, reduce childbearing, there is no reason to expect that
the denial of a very small incremental increase will have that effect.
The goal of child exclusion proposals, as outlined by its proponents, is to
coerce "welfare mothers" into not having children. But just as the
government cannot outlaw abortion and require women to bear children, the
government cannot prevent some women from having children.
This argument is supported by the long line of decisions from the U.S.
Supreme Court about the constitutional right to privacy with respect to
reproductive freedom decisions. From the 1965 ruling in Griswold v.
Connecticut, which held that the government cannot prohibit married couples
from practicing birth control, to 1973's Roe v. Wade, when the Court held
that women have the right to terminate their pregnancies, to 1992's Planned
Parenthood v. Casey, when the Justices reaffirmed the basic right to obtain
an abortion, the Supreme Court has recognized that the decision to bear
children or not to bear children is solely an individual woman's decision.
Child exclusions are also reminiscent of the era of officially sanctioned
social engineering earlier in this century when government authorities tried
to limit the reproductive capacities of "non-desirables." In 1942, for
example, the U.S. Supreme Court examined -- and struck down as
unconstitutional -- the Oklahoma Habitual Criminal Sterilization Act.
Justice William Douglas, writing for the majority of the Court in Skinner v.
Oklahoma, noted that "This case touches a sensitive and important area of
human rights. Oklahoma deprives certain individuals of a right which is
basic to the perpetuation of the race -- the right to have offspring."
Ultimately, though, the child exclusion punishes the child, and by
stretching the family's resources, the other children in the family for the
actions of the parent. In 1982, in the landmark case of Plyler v. Doe, the
Supreme Court struck down a Texas law that prevented children of
undocumented aliens from attending school on the grounds that the law
impermissibly punished the children for the conduct of their parents. The
child exclusion has the same impermissible effect.
Norplant. Another welfare "reform" that would restrict the privacy rights
of poor women would link benefits to the use of birth control. And, once
again, just as the government cannot condition the receipt of welfare on
whether a family attends church or whether a mother takes a loyalty oath
because such conditions would violate the First Amendment, the government
cannot condition the receipt of benefits on whether a mother chooses not to
Norplant is a new contraceptive that became commercially available in the
United States in February, 1991, after its approval by the Food and Drug
Administration. It consists of six matchstick-size silicone capsules
inserted in a woman's upper arm that release small amounts of progestin over
a five-year period. Norplant works automatically, is easily monitored, and
cannot be removed without medical assistance, making it susceptible to
attempts by government authorities to coerce women into using it.
Particularly for low-income women, the offer of money to feed, clothe and
house their families -- even if it is in exchange for giving up their
constitutional rights -- may be difficult to refuse.
But we must remember that Norplant is an invasive medical procedure which
leaves a majority of women experiencing serious side effects. And government
coercion or encouragement of medical treatment has been repeatedly examined
by the courts and found to be an unconstitutional violation of an
individual's right of bodily integrity.
As the Supreme Court observed in United Pacific R. Co. v. Botsford in 1891,
"no right is held more sacred, or is more carefully guarded, by the common
law, than the right of every individual to the possession and control of
[her] own person, free from all restraint or interference of others, unless
by clear and unquestionable authority of law." In 1990, in Cruzan v.
Director, Missouri Health Department, the Supreme Court made explicit a
principle that has long been an implicit legal rule: There is a
constitutional right to refuse medical treatment. Poor women, of course,
share that constitutional right and their receipt of subsistence benefits
cannot be conditioned upon the exercise of their private medical decisions.
Teenage Residency Requirements. The Clinton Administration is likely to
propose that mothers under the age of 18 must live with their parents to
receive welfare benefits. Many teenage mothers do choose to live with their
parents, and are welcomed in their parents' homes. But the ACLU believes
that forcing a teen parent to live with people she may not choose to be a
part of her family is a violation of core civil liberties.
The idea of requiring teen parents to live with their parents is
particularly troubling given the disproportionate number of teen mothers who
have been abused by family members. Of women who had become pregnant during
adolescence, according to a study by the U.S. Department of Health and Human
Services, 66 percent reported that they had been sexually abused, with 54
percent of those who reported being molested saying they had been victimized
by a family member.
Further, requiring teen parents to live with an adult may be a back door
method of excluding teen parents from receiving benefits altogether. To
qualify for benefits, an applicant must have resources and an income below a
specified amount. But if the state counts the teenager's parent's income in
assessing eligibility -- even if the money is not actually available to the
child -- that teenager may not qualify for much-needed benefits. This
process of assuming that income is available to the welfare applicant even
when it is not is known as "income deeming" or "income assumption." These
practices raise due process concerns because they arbitrarily deny benefits
to impoverished individuals in need of assistance. The next section of this
paper deals more fully with due process concerns.
A Civil Liberties Concern: Due Process Protections
Procedural Protections. Welfare recipients, just like other beneficiaries of
government programs, have due process rights. This principle was spelled out
in a landmark case involving a New York State man, John Kelly, who started
receiving state disability payments after being injured in a hit-and-run
accident. Kelly's troubles began after his caseworker asked him to move out
of his home in the Broadway Central Hotel to the Barbara Hotel, a move Kelly
resisted because the Barbara Hotel was filled with drug addicts and
alcoholics. When Kelly's caseworker discovered he had not moved, she
terminated his benefits without any advance notice and his benefit checks
simply stopped coming. After a futile attempt to discuss the problem with
his caseworker, who refused to see him, Kelly eventually filed a lawsuit
challenging the arbitrary termination of his benefits.
Since the Supreme Court's decision in Goldberg v. Kelly more than 20 years
ago, the courts have recognized that welfare recipients have a property
interest in the continuation of benefits that cannot be terminated without
due process of law. To comply with the due process protections of the
Constitution, government agencies must provide for a hearing that includes:
advance notice, an opportunity to be heard, the right to cross-examine
adverse witnesses, the right to be represented by counsel and the right to
have a statement of reasons for the decisionmaker's determination. The
courts have also required that there be an opportunity for judicial review
of a decision to end benefits so the initial hearing does not become the
forum of last resort.
As a result of the Goldberg decision, there is a due process system
currently in effect in every state to review the termination of AFDC
benefits. The ACLU believes that any rule that would categorically exclude a
class of individuals from receipt of benefits -- such as teen parents who do
not live with their parents -- would not only be bad public policy, but
would also violate the Constitution unless the recipient had due process
rights to challenge her categorization. Without these protections, an
indigent person has no opportunity to respond to a decision that affects his
or her liberty, property or even life. The recipient must have an
opportunity to contest the government's factual contention that she or he is
a member of the excluded class.
It is critical that categorical exemptions from the AFDC program comply with
the same due process protections as any termination or denial decision.
Thus, if there is a requirement that teen parents live with their parents,
but there is an exemption for teens who are the objects of abuse, any ruling
on the exemption must be made with all the procedural protections required
by Goldberg so a caseworker's decision is subject to review.
Data Collection. Anytime the government makes large-scale decisions about
people's lives there is the danger that such policies will be tainted by
discrimination. This is particularly true when the decisions are insulated
from public scrutiny. For that reason, it is important that the government
collect data about the number and characteristics of individuals who become
exempt or have their benefits terminated as well as the individuals who
receive benefits. It is important that the data include information on the
race, ethnicity and gender of recipients and that the data is specific and
Once the data is collected, it should be publicized periodically so that the
public can see the results. Of course, the confidentiality of individual
recipients must be protected. If the information reveals any pattern of
discrimination, the data is important as a tool to challenge the
discrimination in court.
A Civil Liberties Concern: Arbitrary and Unfair Targeting of Groups
Two-Year Limit. One proposal that is common to many of the welfare reform
packages is to terminate welfare benefits after two years for recipients who
are "able to work." The ACLU is scrutinizing these proposals to ensure that
they do not arbitrarily target those who have been receiving benefits for
more than two years for punishment, particularly when the reasons for not
working are beyond their control.
If the government is going to deny benefits to a group of individuals while
allowing benefits for others who are similarly situated, the Equal
Protection Clause of the Constitution requires the government to have a very
strong reason for distinguishing between the two groups. Yet the two-year
time limit is a random one picked for political expediency and not tied to
any realistic public policy goal.
Furthermore, the social costs of a two-year limit are potentially
devastating. According to a study by the Center on Social Welfare, Policy
and the Law, within seven months of instituting a two-year cut-off for
General Assistance, the state of Michigan saw homelessness among former GA
beneficiaries increase to 25 percent, from 2 percent before termination.
Another study found that an estimated 27,000 former Michigan GA recipients
went without food for 24 hours or more after termination. The New York Times
reported that an elderly woman died because she did not have money to buy
her heart medicine.
Despite occasional anecdotal evidence to the contrary, it is a pernicious --
and dangerous -- myth that people on welfare are willfully avoiding work.
There are numerous reasons why someone would be unable to become employed
within two years. The United States has a high unemployment rate,
particularly for unskilled workers and even more so for minority unskilled
workers. Thus for many welfare recipients, the jobs are simply not there. In
addition, many individuals have physical limitations that may not rise to
the legal definition of disabilities, but which hinder their ability to
obtain employment. Finally, many recipients of welfare have very young or
disabled children who need parental care, particularly in the absence of an
adequate public system of child care. An Illinois study found that 42
percent of respondents indicated that child care problems were a barrier to
working full time; 20 percent indicated they had returned to AFDC within the
last two years in part because of child care problems.
A two-year cut-off that allows for exceptions in these situations -- in
combination with due process protections for how the exceptions are
determined -- would clearly be more acceptable than a simple termination
deadline. The question that the ACLU is focusing on in the various proposals
is: What happens after two years?
Workfare. Under a workfare program, welfare recipients are required to work
for their benefits, generally in make-work jobs with below minimum wage
payments or in return for AFDC payments, which are significantly below the
poverty line. In addition, workfare workers do not enjoy the usual
conditions of employment, such as guaranteed hours, medical benefits,
insurance, social security and the right to strike and organize.
The ACLU opposes any proposal that creates a caste of drones: a sub-labor
force working under sub-labor conditions. Any proposal that mandates work
without the usual benefits and conditions of work raises concerns about
violating the principles contained in the Equal Protection and Due Process
Clauses of the Constitution. Such a proposal threatens not only people in
the workfare program, but all workers who would see a decline in their
working conditions because of the example and competition of workfare.
One frightening aspect of workfare is that it shuts down worker mobility. A
recipient must stay in his or her job or jeopardize life-sustaining
benefits. The result is that workfare workers who are subjected to abuse or
harassment on their jobs have very little recourse. If they leave the job,
they risk losing their benefits.
The Clinton Administration appears committed to offering a scheme of "work
for wages." While the ACLU would applaud and encourage any proposal that
includes plans for a well-funded, voluntary job training and employment
program, we will scrutinize the details of any proposal to ensure that "work
for wages" is not an empty slogan to disguise an unfair -- or
unconstitutional -- workfare program.
Learnfare. Learnfare is a program that denies benefits to children if they
miss school. This approach punishes the child by depriving the entire
household -- including innocent children -- of essential subsistence.
As a practical matter, learnfare has failed in its stated goal of reducing
truancy. An evaluation of Wisconsin's Learnfare program, commissioned by
that state and completed by the University of Wisconsin-Milwaukee, found no
evidence of improved school attendance. The study found that after one year
of learnfare, sanctioned students showed the highest dropout rates with
about half dropping out; after two years there was an increase in the
percentage of students with poor attendance.
Immigrants. Like poor people, immigrants are particularly vulnerable to
civil liberties abuses. Under current law, undocumented immigrants are
already prohibited from receiving welfare benefits. And lawful permanent
residents are effectively precluded from receiving benefits their first five
years in the United States because the law deems their sponsor's income to
be available to them. Several welfare reform proposals would either extend
this deeming requirement into a permanent mandate or eliminate any benefits
even for legal immigrants.
Once again, targeting immigrants as a class for exclusion serves no positive
public policy goal. Since these immigrants come to the United States in full
compliance with, and often with strong encouragement of, the law, excluding
them will not curb illegal immigration. According to the Congressional
testimony of the Urban Institute, the only immigrant group that receives
benefits at a higher rate than citizens is refugees who are usually fleeing
war and oppression, often in haste. There are strong public policy reasons
to allow a welfare safety net for these individuals and no rational reason
for excluding them. Neither is there a rational reason for targeting non-
refugee lawful immigrants since they receive welfare coverage at a lower
rate than citizens, according to the Urban Institute.
Although the ACLU believes the practice of excluding lawful immigrants from
receiving welfare benefits during their first five years in the United
States violates their consitutional right to equal protection, the Supreme
Court in 1976 ruled in Mathews v. Diaz that the federal government could do
so because of Congress' authority to control the nation's borders. Congress,
we believe, has an independent obligation to interpret the Constitution and
the authority to change this discriminatory practice. At the very least, it
should not extend the five-year period of discrimination any further.
Lawful immigrants pay taxes. They also receive welfare benefits for the same
reasons that everyone else receives benefits: loss of jobs, illness,
disability, divorce or other changes in life circumstances. The only reason
to target immigrants for exclusion is that they are vulnerable, as they have
been throughout our history. The ACLU finds this an unacceptable basis for
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