Welfare Servitude

Abstract

In Welfare Servitude, Professor Nice considers whether mandating work as a condition for receiving welfare violates the Thirteenth Amendment’s prohibition of involuntary servitude and also explores the recurring intersection between race and class. She first describes the redoubling of efforts to increase enforcement of welfare work requirements once racial minorities were no longer excluded from receiving welfare benefits. Next she analyzes judicial decisions construing what constitutes involuntary servitude, including historic cases addressing indentured servitude, the padrone system, peonage, and the surety system, as well as modern cases challenging various welfare work requirements. Professor Nice distills three doctrinal types of involuntary servitude, involving coercion akin to African slavery, deprivation of physical subsistence, and compulsion to labor under threat of legal sanction. She argues that welfare servitude fits each type of unconstitutional servitude, any one of which would be sufficient to prohibit it. She also examines the unconstitutional conditions doctrine and argues that welfare servitude should trigger heightened judicial suspicion because the government holds a monopoly over welfare provision, because the government should not exploit a dependency it helped create, and because the Thirteenth Amendment specifically protects the autonomy of labor decisions. Finally, she argues that welfare recipients are particularly vulnerable to coercion and that no court has conducted a thorough application of Thirteenth Amendment doctrine to welfare work requirements.

Keywords: Thirteenth Amendment, welfare law, constitutional law, involuntary servitude, race, class