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
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, I39Accepted Paper Series
Date posted: June 29, 2008
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