INDIVIDUAL RIGHTS AND SOCIAL WELFARE:

THE EMERGING LEGAL ISSUES

CHARLES A. REICH*

THE time has come for lawyers to take a major interest in social welfare,
and for the welfare profession to concern itself with the rapidly growing rele-
vance of law. Although welfare has always existed within a structure of law,
until recently there has been little recognition or study of the basic legal issues
underlying decisions affecting recipients of public assistance and other welfare
beneficiaries. These issues will lie quiet no longer; they urgently demand our
attention.
The New Deal undertook a far-reaching experiment in social welfare, with
the rapid enactment of new legislation in the fields of social security, unemploy-
ment compensation, public housing, and other forms of public aid. Since that
time the experiment has been accepted as a fundamental and permanent aspect
of our society. But although thirty years have passed, and a vast amount of
experience has accumulated, there has been little in the way of critical exami-
nation of the legal issues in these welfare statutes - least of all by those who
support the general principles of social welfare, and least of all vith respect
to issues concerning the substantive and procedural rights of individual bene-
ficiaries. It is not surprising, then, that the legal status of these individuals'
rights requires critical reexamination.
The law of social welfare grew up on the theory that welfare is a "gratuity"
furnished by the state, and thus may be made subject to whatever conditions
the state sees fit to impose. A corollary legal theory holds that since all forms of
welfare represent the expenditure of public funds, the public may properly in-
terest itself in these funds even after they have reached the hands of bene-
ficiaries. With these justifications at hand, recipients have been subjected
to many forms of procedure and control not imposed on other citizens. No
one will deny that fair and reasonable eligibility standards and effective
protection against fraud are necessary when benefits are handed out. But
the poor are all too easily regulated.' They are an irresistible temptation to
*Professor of Law, Yale University. The author wishes to thank Mrs. Elizabeth
Wickenden for invaluable help both on the general philosophy of this article and on its
discussion of specific issues; also Brian Glick and David Pittinsky for their assistance
on legal research.
1. "Paradoxical though it may seem, the most serious threat to freedom in our
programs of public services and public benefits is to the freedom of the recipient. The
original Agricultural Adjustment Act was once described, rather harshly, as government
by bribery. The power of the purse is great; it is sometimes possible, by paying people
to do things or not to do them, to control their actions as effectively as by threatening
to send them to jail. It behooves us to be constantly on our guard lest, out of zeal to
better people's lot, we impose on them patterns of behavior in matters in which, under
our scheme of things, government ought not to meddle."
Willcox, Patterns of Social Legislation: Reflections on the Welfare State, 6 J. oF
Pu. L- 3, 7 (1957).
1246 THE YALE LAW JOURNAL [Vol. 74:1245

moralists, who want not only to assist but to "improve" by imposing virtue.
They are subject to social workers' urges to prescribe "what is best."2 And
they are necessarily caught up in the workings of large organizations which by
their nature are rigid and dehumanizing.
The Social Security Act represented a departure from this general welfare
philosophy. The framers of the Act had a clear concept concerning the "right'
to public assistance, and provided devices to protect these rights. Thus, in the
program for aid to families with needy children, the Act requires that states
afford an opportunity for a fair hearing to any individual whose claim is
denied or not acted upon with reasonable promptness, provide safeguards
which restrict the use or disclosure of information concerning recipients, and
ensure that all individuals wishing to make application for aid have op-
portunity to do so.3 Despite these and other statutory safeguards, problems
have grown up with respect to federal as well as state programs. In part, these
are the outgrowth of difficulties in administration.
Welfare is surrounded by the processes of administrative procedure. The
procedures of the New Deal regulatory agencies were looked upon with high
hopes by the reformers of thirty years ago, who sought fair and simplified al-
ternatives to the cumbersome methods of the courts. But the administrative
process has developed its own abuses and oppressiveness. These abuses are
harmful whatever the work of an agency, but their impact on people as in-
dividuals is perhaps greatest in the welfare field. The clients of many govern-
ment agencies are large organizations; those who deal with the Federal Com-
munications Commissioi or the Civil Aeronautics Board are usually well able
to protect themselves. Welfare clients are often ignorant of their rights, lack
adequate representation by counsel, and lack the resources to fight a large
public agency. If even our biggest corporations sometimes find government
(no matter how well-meaning) to be arbitrary and oppressive, we may ex-
pect to find that the welfare beneficiary often suffers far more from heavy
handed governmental regulation. There is mounting evidence to confirm this
expectation.
A SAMPLING OF ISSUES
Although there has as yet been no systematic effort to uncover legal issues
involving welfare beneficiaries, some problems have, particularly in recent
months, forced themselves upon persons working in the social welfare field. 4
These problems arise in many different welfare programs, federal and state,
including aid to families with needy children, other forms of public assistance,
2. See Schorr, The Trend to Rx, SocIAL WORX, January, 1962.
3. 42 U.S.C. § 602 (1962).
4. See generally Wickenden & Bell, PUBLIc WELFARE - TI ME FOR A CHANCGE (1961);
U.S. Dn. oF HEALTH, EiucATioN AND WELFARE, THE ExTESioN o LEGAL SErvicrs
TO THE POOR (1964); Wickenden, Memorandum: Poverty and the Law, The Constitu-
tional Rights of Assistance Recipients, March 25, 1965; U.S. ADviSORY
COMMIssION ON
INTERGOVERNmENTAL RELATIONS, STATUTORY AND ADMINISTRATIVE CONTROLS ASsoCTED
WITH FEDERAL GRANTS FOR PUBuC AssisTANcE (1964).
19651 RIGHTS OF THE WELFARE RECIPIENT 1247

unemployment insurance, job retraining, public housing, and the new Economic
Opportunity Act. They are most readily sorted out, however, in terms of the
impact on the recipient or his family.
Morals. Some welfare regulation attempts to impose a standard of moral
behavior on beneficiaries. Louisiana cut off aid to needy children in all cases
where the mother gave birth to an illegitimate child after going on the relief
rolls, except where she could prove that she had subsequently "ceased such
illicit relationships." Twenty-three thousand children, a large proportion of
them Negro, were removed from assistance before the Secretary of Health,
Education and Welfare ruled Louisiana's plan invalid under the Department's
own standards.5 In other states mothers of illegitimate children may be dis-
suaded from applying for assistance by threats of neglect proceedings leading
to loss of custody of the child or children.0 Sometimes mothers who, while re-
ceiving assistance for their children, give birth to an illegitimate child are sub-
jected to the charge that the latest pregnancy constitutes "neglect" of the pre-
vious children.7 In California, if a mother receiving aid to dependent children
uses any portion of the grant to support a man "assuming the role of spouse"
to whom she is not married she may be charged with the crime of misusing
the grant," despite the fact that such grants may be used to support a lawful
husband or other caretaker-relatives. She is also in danger of being charged
with grand theft if she receives assistance and fails to disclose that she is living
with a man deemed capable of rendering financial support, although he may
be far less than a full time member of the family;9 thus illicit relationships are
hazardous. In the District of Columbia, the courts were faced with the question
whether the mother of nine must be denied aid because her estranged legiti-
mate husband visited her too frequently. 10 In no other area of entitlement,
such as social security or veterans' benefits, are there similar pressures to im-
pose a moral code.
Privacy. In order to administer public welfare funds, investigation of eligi-
bility and extent of need are both normal and necessary. Merchants may be
asked for information, financial data is checked, the whereabouts of relatives
5. Memorandum for The Commissioner of Social Security from Secretary Flemming,
January 16, 1961. See Vickenden, The Indigent and Welfare Administration, in U.S.
Dept. of Health, Education and Welfare, Conference Proceedings: The Extension of
Legal Services to the Poor, 42 (1964).
6. Wickenden, Memorandum: Poverty and the Law, The Constitutional Rights of
Assistance Recipients (March 25, 1965) p. 6.
7. Ibid. at 5.
8. See OPINION OF ATTON EY GENEAL OF CALiFORNIA 64163, 44. A.G.O. 155; C.u'.
WELFARE An I sTrruTIoNs CODE § 1508, 1575.
9. People v. Shirley, 360 P.2d 33, 55 Cal. App. 2d 521 (1961). See CALI. WELF , &
INsIuTIoNs CODE § 508. 42 U.S.C. § 605 sanctions the use of state criminal penalties to
punish relatives who do not use aid for the benefit of the children on whose behalf it
is received.
10. Simmons v. Simmons, Civil No. D 2545-61, D.C. Ct. of Gen. Sessions, Domestic
Relations Branch, June 12, 1964; See Washington Post, Nov. 10, 1964, p. C 1.
1248 THE YALE LAW JOURNAL [Vol. 74: 1245

sought.'1 Investigation is, however, inevitably an invasion of privacy, and all

the more so if steps are not taken to keep the findings confidential.'- One
specific invasion of privacy that seems both illegal and unwarranted is the wide-
spread practice of conducting "midnight raids" on homes receiving aid to de-
pendent children, to see if there is a "man in the house" who is or should be
contributing to the family's support. 8 Investigators may burst in, frighten the
children, and threaten the mother with loss of assistance. Several states have
14
halted this practice, but elsewhere it continues unchecked.
Responsibility. Welfare laws sometimes seek to impose duties of financial
1
responsibility for relatives beyond those required by the general law. 5 The
concept of relatives' responsibility is a survival from the Elizabethan poor laws,
which attempted to compel relatives to support indigent members of their
families. 16 Controversy over such requirements is active today; California's
highest court recently held unconstitutional the requirement that children be
1
compelled to support the care of aged parents in mental institutions. Under
aid to fimilies with dependent children programs in many states, a "man in the
house," although not married, may be presumed to be responsible for contribut-
ing to the support of the woman's children.
Residence. Another survival of the Elizabethan poor laws is the doctrine that
public assistance is basically a matter of local concern, and the corollary that
8
only residents of the states are entitled to be assisted.' Many states have stat-
utes denying assistance to persons who do not qualify as residents, and making
it difficult to become a "resident."' 9 Many laws now on the books are designed
to hinder the migration of indigents. Some of these laws have been held un-
constitutional,2 0 but New York has a law disqualifying one who comes to the
21
state for the purpose of obtaining welfare, South Dakota has a law making
11. E.g., N.Y. SOCIAL WELFARE LAW § 132, 143(a); CALIF. WELFARE & INSTITUTIONS
CODE § 1523, 1572.
12. See, e.g., CAL_ WELFARE & INSTITUTIONS CODE § 1552.6.
13. Reich, Midnight Welfare Searches and the Social Security Act, 72 YALE LE.
1347 (1963); U.S. COMPTROLLER GENERAL, REPORT ON THE ADEQUACY OF THE NATIONWIDE
REVIEW OF ELIGIBILITY IN THE AID TO FAMILIES WITH DEPENDENT CHILDREN PROGtAM
WELFARE ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE JANUARY-
JULY 1963, 18-22.
14. See, e.g., Baltimore Sun, January 19, 1964, p. 1, 20; N.Y. Times, August 23, 1964,
p. 66; AmERICN CIVm LIBERTIES WEEKLY BULLETIN No. 2209, (1964) p. 1.
15. CALIF. WELFARE & INSTITUTIONS CODE § 2181, 2224, 2576, 2881; N.Y. SOCIAL
WELFARE LAW § 101. See generally Mandelker, General Assistance in the United States,
Ch. III 1955 (unpublished thesis in Yale Law School Library).
16. ten Broek, California'sDual System of Family Law: Its Origin, Development and
Present Status: I, 16 STAN. L. REv. 257, 283 (1964).
17. Department of Mental Hygiene v. Kirchner, 60 C.2d 716, 36 Cal. Rptr. 488, 388
P.2d 720 (1964), vacated. and remanded, 380 U.S. 194 (1965).
18. tenBroek, supra note 16, at 262-65 (1964).
19. N.Y. SOCIAL WELFARE LAW § 117-21, 149 (McKinney Supp. 1964); N.Y. SOCIAL
WELFARE LAW § 148.
20. Edwards v. California, 314 U.S. 160 (1941).
21. N.Y. SociAL WELFARE LAw § 139-a (Supp. 1964).
19651 RIGHTS OF THE WELFARE RECIPIENT 1249

it virtually impossible for migrants to receive general public assistance,- and

many states have laws authorizing the "removal" of indigents back to their
state of origin. 2 The removal statutes seem plainly unconstitutional, but re-
main on the books and are indirectly enforced by the threatened withdrawal of
assistance. In one New York case, assistance was denied because the authorities
deemed it "socially valid" for the applicant to return to her family in a southern
state from which she had departed.2 4 Settlement and removal laws, and more
recent reciprocal agreements concerning the settlement of children, may also
hinder the interstate placement of children in foster homes or for adoption, mak-
ing it difficult for a court or agency to send a child to a family in a state which
-
demands assurances that the child will not become a public charge. 5
Employment. Whether a welfare recipient must work to obtain assistance,
and what work he may be compelled to do, have also been issues since the days
of the Elizabethan poor laws? 6 "Work relief" still exdsts. Recently several
men in upstate New York challenged the power of St. Lawrence County to
compel them, subject to criminal penalties, to work cutting brush in deep
snow.28 Fathers refusing work relief have been criminally prosecuted for non-
support. An even more difficult problem concerning employment arises in con-
nection with vocational retraining programs which are part of some state
schemes for unemployment compensation,2" and an important part of the new
federal poverty programs. 30 Here an individual is put under pressure to
22. SOUTH DAxoTA CODE § 50.0102(6).
23. See generally Mandelker, Exclusion and Removal Legislation, 1956 Wxsc. L RE%.
57; Note, Depression Migrants and the States, 53 HAIV. L Rnv. 1031 (1940); Note,
Interstate Migratio; and PersonalLiberty, 40 CoLTni. L. REv. 1032 (1940).
24. Preliminary Statement, in Brief for Appellant4 In the Matter of the Appeal of
Minnie Lee Nixon, State of New York, Department of Social Velfare (1964).
25. Matter of Anonymous, Docket No. 1146/64, New York County Court, May 12
1965. The Uniform Transfer of Dependents Act (U. C. A. 9 C, p. 218) provides that
states may enter into reciprocal agreements with corresponding states regarding the
interstate transportation of indigent persons and the acceptance, transfer and support of
persons receiving public aid in other states. See, e.g., Virginia Code § 63-114. Under
§ 63-244 of the Virginia Code no nonresident child may be placed in a foster home in
Virginia without the consent of the Welfare Commissioner. The State Welfare Board
is authorized to require any placing agency to agree to remove a child from the state at
any time at the Commissioner's request, and the Commissioner may require any placing
agency to post a bond not in excess of $2500 conditioned on fulfillment of the agreement.
26. tenBroek, supra note 16, at 270-79 (1964).
27. N.Y. SOcIAL WELFARE LAW § 164. See also § 131(4) (1964 Supp.) See generally,
Mandelker, supra note 15, at 36-42. See also 42 U.S.C. § 607, sanctioning State plans for aid
to families with dependent children under which parents may be required to seek
employment.
28. See N.Y. Times, July 30, 1964.
29. See CA=. WELFARE & INSTITUTIoNS CODE § 1523 and Note, Charity versus Social
numirance in Unemployment Compensation Laws, 73 YALE UJ. 357, 332, n. 94 (1963).
See also N.Y. Soc-L Wr.LFA LAW § 131(4) and 131(5) (b) (Supp. 1964).
30. See the Area Redevelopment Program, 75 Stat. 57 (1961), 42 U.S.C. § 2513
(Supp. V, 1963) (occupational retraining) and the Manpower Development and Training
Program, 76 Stat. 25 (1962), 42 U.S.C. § 2582 (Supp. V, 1963).
1250 THE YALE LAW JOURNAL [Vol. 74: 1245

undergo retraining in a new occupation, not necessarily of his own choosing.

The issues are sharpest where a proposed retraining program involves work
that is foreign to a man's prior skills, requires acceptance of a lower status,
demands transfer to a new locality, or presents the risk that no jobs will be
available even after retraining.8 1
Housing. Public housing authorities have the power to select tenants, and
also to oust them. 2 Within the limits set by family income qualifications this
power can be exercised in a way that is largely discretionary, based in part
upon officials' intangible impressions from interviews and home visits. In de-
ciding to admit initially or to terminate a lease, housing authorities are appar-
ently free to use such criteria as whether any member of the family has a police
3
record, keeps undesirable company, or engages in immoral conduct.8 The
standards are generally vague, and there are no clearly articulated methods of
proof. There may be little in the way of procedure to make certain that the
authorities' information is true. Month-to-month leases maintain tenants in a
state of insecurity.
Loyalty Oaths. Legislators apparently have a great urge to impose loyalty
tests which neither the general public nor the legislators themselves are re-
quired to meet. For a time several states required a loyalty oath of applicants
for public housing,3 and Ohio still has a loyalty oath for unemployment com-
pensation.35 These instances might be dismissed as the irrational residue of the
vindictive McCarthy years, were it not for the shocking fact that President
Johnson's new poverty program contains the requirement that every recipient
of aid thereunder take a loyalty oath.30
Criteriaof Eligibility. Many of the forms of assistance contained in present-
day social welfare programs, and particularly those under the Economic Op-
portunity Act, are, like public housing, available only on a selective basis. The
31. Strauss, Retraining and Unemployment Compensation: New Wine in Old Bottles
(1964) (unpublished paper in Yale Law Library).
32. See N.Y. PUB. Housra LAw § 156.
33. New York City Housing Authority Resolution No. 53-3-185, Article II, Section
2.01(g) provides that tenancy in an authority project may be terminated for: "Non.
Desirability. The conduct or behavior of the tenant which is objectionable, or which Im-
perils the health, safety or morals of his neighbors or the community, or is a source of
danger or causes damages to the premises or to the property of the Authority or to the
peaceful occupation of the other tenants, or constitutes a nuisance, or violates accepted
social norms."
34. See Reich, The New Property, 73 YAI.E L.J. 733, 747 n. 81 (1964).
35. Note, Charity versus Social Instrance in Unemployment Compensation Laws, 73
YA=E L.J. 357, 379 n. 87 (1963).
36. Economic Opportunity Act, 78 Stat. 508, 533, 42 U.S.C. § 2701, 2966:
"No part of any funds appropriated or otherwise made available for expenditure
under authority of this chapter shall be used to make payments to any individual unless
such individual has executed and filed with the Director an affidavit that he does not
believe in, and is not a member of and does not support any organization that believes
in or teaches, the overthrow of the United States Government by force or violence
or any illegal or unconstitutional methods."
19651 RIGHTS OF THE WELFARE RECIPIENT 1251

list includes the Manpower Development and Training Program, Child Wel-
fare Services, 38 The Maternal and Child Health Program'3 The Crippled
Children Service,40 as well as the programs of the Office of Economic Oppor-
tunity.41 The problem here is what criteria of eligibility are employed by the
various agencies having the power of choice. A -major difficulty is that in many
cases the governing statutes supply no criteria at all, and the criteria actually
employed by administrators are not easily discovered. For example, no regu-
lations have been published in the Federal Register spelling out standards for
the programs of the Economic Opportunity Act. The new federal job corps
is reported to refuse automatically all youths with police records. In other areas
standards may exist on paper but are not readily enforced.
Independence. Programs for the relief of poverty raise basic issues over how
much independence is to be allowed the recipients. Under nonfederal general
assistance programs "supervision" of beneficiaries by authorities is permitted. 42
When such welfare is administered under a means test, the welfare agency may
gain detailed control over the family budget.4 3 A specific type of supervision
results from relief in kind, such as direct payment of rent under general assist-
ance programs; this limits recipients' freedom of choice.44 Beyond the ques-
tion of specific supervision lies a broader question - an issue which will
become increasingly troublesome as programs to combat poverty grow. How
much shall individuals be supervised from above, and how much by them-
selves?4 5 This fundamental issue furnishes a fitting place to halt the present
sampling. Next it is important to consider what general legal problems are
raised by these many issues.
THE, UNDERLYING QuEsTioNs or LAW
Although the issues discussed in the previous section are diverse in nature
and fortuitous in selection, they do have in common some underlying legal
questions. Broadly speaking, these involve matters of procedure, of constitu-
tional law, and questions relating to the nature of the individual rights created
by public welfare legislation.
By way of prologue, it should be noted that the interpretation of the appli-
cable welfare statutes provides a series of additional important legal questions.
37. 78 Stat. 23, 42 U.S.C. § 2571 (1964).
38. 78 Stat. 182, 42 U.S.C. § 721 (1964).
39. 77 Stat. 273,42 U.S.C.§ 701 (Supp. V 1963).
40. 77-Stat. 273,42 U.S.C. § 711 (Supp. V 1963).
41: 78-Stat. 508 (1964), 42 U.S.C.A. § 2701 (1958).
42. See N.Y. SoCIA WELFARE CODE § 134, 214, 215, 350; Schorr, Policy Ises in
Fighting Poverty, 11 CHnxm_- 127 (1964); Schorr, The Trend to Rx, SocIAL Wo.u,
January 1962.
43. tenBroek & Wilson, Public, Assistance and Social Insurance - A Normative
Approach, 1 U.C.LA.L. REv.'237, 264-67 (1954). On the means test generally see Man-
delker, supra note 15, CI. IV.
44. E.g., C..xn. %V=AREu & INxsT0nos CODE § 15522.
45. See Calm & Calm, The War on Poverty: A Civilian Perspective, 73 YALE LJ.
1317 (1964).
1252 THE YALE LAW JOURNAL [Vol. 74 : 1245

Because welfare clients seldom have legal assistance, statutory interpretations

by administrators have generally gone unchallenged. But when a real challenge
is made, a significant change in prevailing practice may result. Absent chal-
lenge, welfare administrators are permitted broad areas of discretion in which
they make the law by administrative interpretations under the pressures of
current public opinion - interpretations that may be neither consistent from
one jurisdiction to another nor in accord with the original purposes of the legis-
lature. Each statutory question is, however, a distinctive legal problem in itself;
the present discussion will be limited to the more general questions already
listed.
Procedure. In the sampling of issues already given there were many in-
stances of welfare decisions capable of having a major impact on the lives of
individuals. Many of these decisions are made in a manner that is lacking in
basic safeguards. 46 In the case of a decision removing a family from public
housing, or a decision denying aid to families with dependent children, generally
the matter is finally determined at some level within the appropriate agency,
after investigation by the agency, and with comparatively informal procedures,
if any, available to the persons affected. In the welfare area procedures often
exist on paper, but are not pursued in practice. This contrasts sharply with
what happens in agencies dealing with business regulation, where lawyers have
made paper procedures a practical reality.
In the past thirty years a large body of experience and law has grown up
with respect to the procedures of government agencies which undertake regu-
lation of economic affairs, or dispensation of benefits such as airline routes or
television licenses. In a general way, the standards which have developed are
as follows. (1) The rules which are to furnish the standard of decision should
be clearly formulated in advance of any action; (2) the rules should be avail-
able to the public; (3) every action should begin with actual notice of the pro-
posed action and a full statement of the basis for it; (4) the relevant facts
should be determined in a proceeding at which the person or company affected
can know the evidence and have an opportunity to rebut it; factual findings
should not be based on hearsay or secret evidence known only to the agency;
(5) the person or company should have the right to be represented by counsel;
(6) there should be a distinct separation between those officials who investi-
gate and initiate action and those who find the facts and make the decision;
the latter officials should be subject to different authority than the former and
free of any of the atmosphere in which the action was begun; (7) the decision,
once made, should be accompanied by findings and reasons; (8) there should
be opportunity for review of the decision within the agency, and, ultimately,
47
in the courts.
46. See generally Mandelker, Judicial Review in General Assistance, 6 J. of Pub. L.
100 (1957). Some of the most recent legislation on poverty has provisions for "finality"
of determinations designed to preclude challenge and review. 75 Stat. 59 (1961), 42
U.S.C. § 2514(e) (1958); 76 Stat. 26 (1962), 42 U.S.C. § 2583(g) (1958).
47. A fairly complete administrative procedure is found in New York City -lousing
Authority Resolution No. 53, 3-185. Article III of the Resolution sets up a Continued
19651 RIGHTS OF THE WELFARE RECIPIENT 1253

These procedures, however cumbersome they may seem, have come to repre-
sent a fundamental standard of fairness in administrative process. They may
be exaggerated and misused until they produce inordinate delay and expense,
but they represent effective checks on the characteristic evils of proceedings in
any large public or private organization: closed doors, Kafka-like uncertainty,
difficulty in locating responsibility, and rigid adherence to a particular point of
view. They are fundamental safeguards for those who must deal with govern-
ment.
In a society where a significant portion of the population is dependent on
social welfare, decisions about eligibility for benefits are among the most im-
portant that a government can make. By one set of values the granting of a
license to broadcast over a television channel, or to build a hydroelectric project
on a river, might seem of more far-reaching significance. But in a society that
considers the individual as its basic unit a decision affecting the life of a person
or a family should not be taken by means that would be unfair for a television
station or power company. Indeed, full adjudicatory procedures are far more
appropriate in welfare cases than in most of the areas of administrative proce-
dure. In the licensing of television or hydroelectric dams, policy-making and
planning are so mixed with fact-finding as to severely limit the possibility of
reaching "objective" decisions. Welfare cases rest on comparatively objective
statutory criteria, are less subject to ad hoc policy-making, and demand high
standards of fairness and equitable treatment for large numbers of individuals.
At a minimum, there should be notice to beneficiaries of regulations and pro-
posed adverse action, and fact finding should be carried on in a scrupulous
fashion. There is much to be said for a genuine separation of the functions of
investigator and judge, so that welfare workers are not put in the psychologi-
cally impossible position of having to evaluate their own actions, or those of
their colleagues. And a clear statement of reasons, plus some form of review,
would give a beneficiary one more opportunity to argue his side of the case.
Procedures can develop gradually and pragmatically, but as welfare grows in
importance in our society, it will be necessary to give increasing attention to
the procedures by which welfare rights are granted or refused. Here the ex-
perience of lawyers can be of great assistance; whatever the outcome of par-
ticular decisions, adequate procedure gives a sense of fairness that is vital to
community acceptance of a welfare program.
Constitutional Questions. The welfare issues discussed earlier present a
number of important constitutional questions. Some of these, like the previously
mentioned questions of statutory interpretation, relate to only one specific issue.
Midnight searches appear to violate the Fourth Amendment. Settlement and
removal statutes seem an invasion of liberty to travel and to choose one's
place of abode. Relatives' responsibility laws may present issues of due process
Occupancy Board consisting of three Authority Officials empowered to hold hearings
to review findings of ineligibility for continued occupancy. See also the provision. for
departmental appeal in the case of denial of assistance, N.Y. Socul.. "V x.An LAv,
§§ 139(a), 353.
1254 THE YALE LAW JOURNAL [Vol. 74: 1245

in imposing financial responsibility without adequate basis. But aside from

these individual questions at least two problems cut across the welfare field.
They involve personal liberty and equal protection of the laws.
(a) PersonalLiberty. The most difficult and challenging constitutional ques-
tion presented by welfare programs relates to invasions of personal liberty and
privacy. "Liberty" is protected in the Fifth and Fourteenth Amendments, but
nowhere defined. For many years it was used as a protection against various
forms of economic and business regulation; this view is now largely discredited.
But if liberty has any remaining meaning in the constitutional sense, it must
at least cover the management of personal and family affairs - the sort of
things that are, to the average person, nobody else's business, certainly not
government's. 48 Hence undue interference with the private lives of welfare
beneficiaries may present serious constitutional issues.
Closely related to liberty is the concept of privacy. Privacy is not protected
by any specific provision of the Constitution. But many sections of the Bill of
Rights involve aspects of a right to privacy, centering on home and family.
This right was expressly affirmed by the Supreme Court in the recent case
of Griswold v. Connecticut, holding unconstitutional a state statute barring the
use of contraceptive devices. 4 9 Although this is a major forward step, the law
has not yet developed a constitutional theory of privacy fully adequate to the
present-day interdependent world. The rise of the welfare state would seem
to demand that this development be delayed no longer.
(b) Equal Protection. Another developing constitutional problem is the de-
gree to which it is valid to impose different standards of behavior upon people
because they happen to receive some form of public assistance. The constitu-
tional concept of equal protection has never been that everyone should be
treated exactly the same; women may be treated differently from men, children
from adults, and so forth; the guiding principle is that classifications must be
reasonable. But the status of being a welfare beneficiary does not necessarily
justify all of the differential forms of treatment which now exist under the law.
Why should recipients of aid under the poverty program be required to take
a special loyalty oath? Why should the relatives of indigent people have a
greater financial responsibility than is applicable generally? As noted above,
the Supreme Court of California has ruled that it violates equal protection to
48. See Griswold v. Connecticut, 33 U.S.L. WEEY, 4587 (1965); see also Harlan, J.,
dissenting in Poe v. Ullman, 367 U.S. 497 (1961), 522, 543:
"This 'liberty' is not a series of isolated points pricked out in terms of the taking of
property; the freedom of speech, press and religion; the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on. It is a rational con-
tinuum which, broadly speaking, includes a freedom from all substantial arbitrary Im-
positions and purposeless restraints . . . and which also recognizes, what a reasonable
and sensitive judgment must, that certain interests require particularly careful scrutiny
of the state needs asserted to justify their abridgment."
49. 33 U.S.L. W=nn 4587 (1965). See Brief for Appellants, pp. 79-90, Griswold v.
Connecticut, No. 496, U.S. Supreme Court, Oct. Term, 1964.
19651 RIGHTS OF THE WELFARE RECIPIENT 1255

make children responsible for the care of aged parents in mental institutions.-
Again, why should welfare recipients have less freedom to take up residence
in any part of the country? The test of each discrimination is that it be rcason-
ably related to a proper object of legislative policy. And if a discrimination has
come into being by administrative practice, without a basis in legislation, it
should be open to much more severe questioning by the courts.
Entitlement. Beyond the procedural and constitutional problems already con-
sidered lies a further legal problem that embraces large issues of public policy.
This is the question of entitlement.51
Society today is built around entitlement. The automobile dealer has his
franchise, the doctor and lawyer their professional licenses, the worker his
union membership, contract, and pension rights, the executive his contract and
stock options; all are devices to aid security and independence. Many of the
most important of these entitlements now flow from government: subsidies to
farmers and businessmen, routes for airlines and channels for television sta-
tions; long term contracts for defense, space, and education; social security
pensions for individuals. Such sources of security, whether private or public,
are no longer regarded as luxuries or gratuities; to the recipients they are
essentials, fully deserved, and in no sense a form of charity. It is only the poor
whose entitlements, although recognized by public policy, have not been effec-
tively enforced.
Perhaps at one time we could have justified this discrimination by arguing
that the poor are to blame for their poverty. But today we see poverty as the
consequence of large impersonal forces in a complex industrial society - forces
like automation, lack of jobs and changing technologies that are beyond the
control of individuals. It is closer to the truth to say that the poor are affirma-
tive contributors to today's society, for we are so organized as virtually to com-
pel this sacrifice by a segment of the population. Since the enactment of the
Social Security Act, we have recognized that they have a right - not a mere
privilege - to a minimal share in the commonwealth.
Even were this not so, the experience of thirty years has shown how much
danger there is to society as a whole when any group in the population lacks
entitlements and hence chronically suffers from insecurity and dependence.
These same years have also shown how dangerous it is to permit government
to have widespread discretionary powers over business or individuals; how
50. It is established in this state that the mere presence of wealth or lack thereof in
an individual citizen cannot be the basis for valid class discrimination ....
Section 6650 by its terms imposes absolute liability upon, and does not even pur-
port to vest in, the servient relatives any right of control over, or to recoup from,
the assets of the patient. A statute obviously violates the equal protection clause if
it selects one particular class of persons for a species of taxation and no rational
basis supports such classification.... Such a concept for the state's taking of a free
man's property manifestly denies him equal protection of the law.
Department of Mental Hygiene v. Kirchmer, 60 C2d 716, 721-23; 388 P.2d 720, 723-24
(1964).
51. See generally tenBroek and Wilson, Public Assistance and Sodal Insurance -
A Normative Evaluation, 1U.C.L.A.L. Rav. 237 (1954).
1256 THE YALE LAW JOURNAL [Vol. 74: 1245

abuses and oppressions grow, and how the very structure of bureaucracy causes
a constant reaching out for new power.
The idea of entitlement is simply that when individuals have insufficient
resources to live under conditions of health and decency, society has obligations
to provide support, and the individual is entitled to that support as of right.
To the greatest degree possible, public welfare should rest upon a comprehen-
sive concept of actual need spelled out in objectively defined eligibility that as-
sures a maximum degree of security and independence. The concept of equal
treatment also inheres in entitlement, and argues against basing eligibility on
special statuses, such as maternity.
The evils of any public welfare system consist, to a large degree, in subjecting
large numbers of people to bureaucratic discretion, in making their source of
livelihood insecure by uncertain or changeable standards of eligibility, and in
keeping their benefits constantly subject to the visitorial powers of the state,
so that there is an excess of supervision and a lack of sufficient independence
of action. The concept of entitlement attempts to meet these evils. It means
objective eligibility safeguards against revocation or loss of benefits, and it
means that the individual's rights, whatever they may be, should be known to
him and enforceable through law. Thus entitlement is a problem for lawyers,
for while the policy of entitlement is one developed by philosophers of welfare,
effectuating it (particularly when the ideal must be approached pragmatically)
is within the professional competence of lawyers alone.

CONCLUSION
The field of social welfare has developed for thirty years with relatively little
attention to the protection or clarification of the legal rights of beneficiaries,
especially in programs operating with a large degree of discretion. Where other
fields have seen the steady growth of rights through the processes of litigation,
rights that might have been developed out of existing welfare statutes have
atrophied from disuse. In point of fact, the legal profession does not even know
enough about agency practices in the welfare field to be able to identify possible
denials of rights. There has been no systematic effort to find out what statutes,
rules, administrative regulations or institutional practices may now be causing
unnecessary or unjustified injury to beneficiaries or giving rise to discrimina-
tion against some of them. The sampling of problems given above was un-
covered largely by fortuity; it is impossible to tell what might be revealed by a
systematic search. The clidnts of welfare themselves are rarely in a position to
know whether they are being wrongly treated.
We need a radically new approach to the field of social welfare. Today the
nation's poor stand as far from the enjoyment of basic rights as did the Negro
at the beginning of the Civil Rights movement. As in the case of the Negro,
the avenue of reform must be through law. In a society that is highly organized,
institutional and bureaucratic, law is the essential means by which individuals
are protected; law alone can ensure the fairness and lack of oppression that is
1965] RIGHTS OF THE WELFARE RECIPIENT 1257

essential to individual independence.52 The field of social welfare has grown up

with virtually no participation by lawyers at the level where individual rights
are at stake. Lawyers are desperately needed now.53
We need organized legal research to examine statutes, regulations, manuals
and practices to determine where changes are needed. We need institutions
capable of financing both legal research and test cases to determine the extent
of rights in given areas. And we need lawyers to represent individual
clients who cannot pay for help or secure that help from any existing organi-
zations; it is only through individual cases that the law comes into being and
keeps on growing.
The condition of the field of social welfare is an indictment of the present day
legal profession. Lawyers have simply not been available when help was needed.
There are virtually no organized sources of legal aid to assist persons with wel-
fare problems, law schools have no courses designed to prepare lawyers for
such service, and the need for lawyers is rarely recognized by the agencies them-
selves or the individuals concerned. Today, as law increasingly becomes our
central instrument of social policy, we can no longer afford this form of neglect.
By the same token, decisions concerning human rights are too important to
be left to public welfare workers and public administration officials without the
aid of law. Law is needed to help them to see issues clearly, to guide them, and
to strengthen their good intentions. In a constructive alliance of law and social
welfare there lies hope for a fundamental change in the status of the disadvan-
taged of our society - a bill of rights for the disinherited.
52. Jones, The Rule of Law and the Welfare State, 58 CoLuJ.. L REv. 143 (1958).
53. See The Availability of Couywel and Group Legal Scrvikcs: A Symposiun, 12
U.C.L.A.L. REv. 279 (1965), especially Sparer, The Role of the Welfare Clicnt's Latuwvcr,
12 U.C.L.A.L. REv. 361 (1965); Carlin & Howard, Legal Representation and Class Justice,
12 U.C.L.AL. REv. 381 (1965).
 THE YALE LAW JOURNAL
VOLUME 74 JUNE 1965 NUMBER 7
m,, i

PETER L. ZiMRoTn
Editor-in-Chief

E. EDwARD BRUCE BETSY LEvIN

CAMERON F. MACRAE, III Topics Editor
BENNO C. SCHMIDT, JR.
LARRY G. SIMON RAYMOND C. CLEVENGER, III
Note & Comnent MARx A. WALxER
Editors Article & Book
Review Editors

DENNIS E. CuRTIs
Managing Editor

JoHN R. ADLER C. STEPHEN HowARD CHARLES A. PuLAsm, JR,

CHARLES N. BURGER GEORGE L. JUROW LEONARD M. Ross
WALF E. DELLINGER, III LINDSEY C. Y. KIANG PHILIP GORDON ScIntAr.
W. LEE H. DUNHAM HowARD A. KNIGHT ALAN D. SISITSKY
GREGORY C. GLYNN SIMON LAZARUS, III ALLAN G. SPERLING
RICHARD GOODYEAR RONALD F. Lip LEONARD P. STRIC)CMAN
H. JE GREENFIEL FREDERICK B. McLANE DAVID F. TILLOTSON
CHARLES H. HERTZ JOSEPH N. ONEK MICHAEL S. WALD
B. BoYD HIGHT, JR. ROBERT F. WALKER

CAROLYN JONES BELLA SEIDENBAUm

Business Manager Business Secretary

The newly elected Board of Officers wishes to mark the retirement of its predecessor
with congratulations for an excellent volume.

CONTRIBUTORS TO THIS ISSUE

JOSEPH P. WITHERSPOON. A.B. 1936, University of Chicago; LL.B. 1948, University
of Texas; S.J.D. 1961, Harvard University.
CHARLES A. REIcH. B.A. 1949, Oberlin College; LL.B. 1952, Yale University.
H.L.A. HART. B.A. 1929, MA 1942, Oxford University.
WALT 0. WEYRAUCH. Dr. iur. 1951, University of Frankfort; LL.B. 1955, George-
town University; LL.M. 1956, Harvard University; J.S.D. 1962, Yale University.
MAX RHEmSTEIN. Dr. utr. iur. 1924, University of Munich.