Category Archives: Welfare
News Coverage: David R. Wheeler, What If Everybody Didn’t Have to Work to Get Paid?, The Atlantic, May 18, 2015. [On a right to a basic guaranteed income].
New Article: Jennifer E.K. Kendrex, Punishing The Poor Through Welfare Reform: Cruel and Unusual?, 64 Duke L.J. Online 121 (2015).
New Report: “Assessing the Merits of Photo EBT Cards in the Supplemental Nutrition Assistance Program”
New Report: Gregory B. Mills & Christopher Lowenstein, Assessing the Merits of Photo EBT Cards in the Supplemental Nutrition Assistance Program (Urban Inst. 2015). Related NY Times story here.
New Article: “Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor”
New Article: Karen M. Tani, Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor, forthcoming Cornell L. Rev. 2015. Abstract below:
This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies — rather than courts — assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations are particularly important because of their interplay with cooperative federalism — specifically, with states’ ability to exercise their traditional police power after accepting federal money.
The Article’s argument is based on a story of change over time. In the late 1930s, when federal courts appeared reluctant to vindicate equal protection claims, the federal Social Security Board (later to become part of the Department of Health, Education and Welfare) took a more active role via its administration of federal grants for state-run public welfare programs. Through the 1940s and 1950s, agency lawyers developed and applied a nondeferential rationality model of equal protection to assess state welfare rules. When paired with the agency’s control over generous federal subsidies, this interpretation had tangible consequences: administrators challenged some of the era’s most restrictive state welfare laws and, in the process, spread the notion that poor Americans had constitutional rights, including under the Fourteenth Amendment. In the mid 1960s, as the agency became embroiled in battles over school desegregation, administrators deftly recharacterized their constitutional interpretation as a statutory one. They saw their constitutional arguments take on new life, however, as welfare rights advocates (including former agency personnel) wielded them in court. Both developments are visible in the landmark case King v. Smith (1968). There the Supreme Court affirmed the poor claimants’ victory in the court below, but rejected the lower court’s equal protection holding in favor of one grounded in the agency’s novel statutory interpretation. Administrative equal protection thus continued to operate as a meaningful constraint on state action — and in fact helped remake the administration of American poor relief in the late twentieth century — but remained hidden from view.
In addition to giving content and direction to the study of administrative constitutionalism, this history enriches legal scholarship in three ways: (1) it provides context for the “new federalism” revolution of the last decades of the twentieth century; (2) it opens up new questions about today’s “uncooperative federalism”; and (3) it helps explain the penurious protections that today’s equal protection jurisprudence offers the poor.
New Article: Mel Cousins, Equal Protection: Immigrants’ Access to Healthcare and Welfare Benefits, 12 Hastings Race & Poverty L.J. 21 (2015).
New Article: “States’ Rights, Welfare Rights, and the ‘Indian Problem’: Negotiating Citizenship and Sovereignty, 1935-1954”
New Article: Karen M. Tani, States’ Rights, Welfare Rights, and the ‘Indian Problem’: Negotiating Citizenship and Sovereignty, 1935-1954, Law and History Review forthcoming 2015. Abstract below:
Starting in the 1940s, American Indians living on reservations in Arizona and New Mexico used the Social Security Act of 1935 to assert unprecedented claims within the American federal system: as U.S. and state citizens, they claimed federally subsidized state welfare payments, but as members of sovereign nations, they denied states the jurisdiction that historically accompanied such beneficence. This article documents their campaign, and the fierce resistance it provoked, by tracing two legal episodes. In 1948, through savvy use of both agencies and courts, and with aid from former government lawyer Felix Cohen, reservation Indians won welfare benefits and avoided accompanying demands for state jurisdiction; the states, in turn, extracted a price–higher subsidies–from the federal government. Arizona officials re-opened the dispute in 1951, by crafting a new welfare program that excluded reservation Indians and suing the federal government for refusing to support it. The 1954 dismissal of the case was a victory for Indians, but also leant urgency to efforts to terminate their anomalous status. Together these episodes illustrate the disruptive citizenship claims that became possible in the wake of the New Deal and World War Two, as well as the increasingly tense federal-state negotiations that followed.
New Conference: “Reframing the Welfare Queen: Feminist and CRT Alternatives to Existing Poverty Discourse”
New Conference: “Reframing the Welfare Queen: Feminist and CRT Alternatives to Existing Poverty Discourse,” USC Gould School of Law, Apr. 23-24, 2015.
New Article: Joseph Fishkin & William E. Forbath, The Great Society and the Constitution of Opportunity, 62 Drake L. Rev. 1017 (2014).