Abstract

http://ssrn.com/abstract=1153128
 


 



Reconstructing the Constitutional Case against Mandatory Welfare Home Visits


Steven D. Schwinn


John Marshall Law School (Chicago)


Clearinghouse Review Journal of Poverty Law and Policy, Vol. 42, p. 42, May-June 2008

Abstract:     
The unconstitutional conditions doctrine holds that government may not condition benefits on the surrender of individual constitutional rights. But since the U.S. Supreme Court's 1971 decision, Wyman v. James, courts have upheld increasingly aggressive, intrusive, and investigative mandatory welfare home visits against Fourth Amendment challenges.

This article argues that the essential nexus test offers an appealing alternative to advocates challenging mandatory welfare home visits under the unconstitutional conditions doctrine. This test came from a pair of cases holding that a local government violates the Fifth Amendment takings clause (and thus the unconstitutional conditions doctrine) when it requires a property owner to provide a public easement in exchange for a building permit. But while the essential nexus test grows out of the takings clause, it is not restricted to it. Indeed, the test appears to provide a minimal standard for any unconstitutional conditions claim. Thus advocates may entirely recalibrate their challenges against mandatory welfare home visits, focusing on the mere lack of "essential nexus" between the visit and the goals of the welfare program, and avoiding the nearly insurmountable Fourth Amendment claim.

Number of Pages in PDF File: 7

Keywords: unconstitutional conditions welfare search fourth amendment essential nexus

JEL Classification: I30, I31, I38, I39

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Date posted: June 29, 2008  

Suggested Citation

Schwinn, Steven D., Reconstructing the Constitutional Case against Mandatory Welfare Home Visits. Clearinghouse Review Journal of Poverty Law and Policy, Vol. 42, p. 42, May-June 2008. Available at SSRN: http://ssrn.com/abstract=1153128

Contact Information

Steven D. Schwinn (Contact Author)
John Marshall Law School (Chicago) ( email )
315 South Plymouth Court
Chicago, IL 60604
United States
312.386.2865 (Phone)
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