Making Conditions Constitutional by Attaching Them to Welfare: The Dangers of Selective Contextual Ignorance of the Unconstitutional Conditions Doctrine

Abstract

This article examines the lack of judicial consistency in applying the Unconstitutional Conditions doctrine with regard to the same constitutional guarantee but involving different public benefits. Professor Nice posits that the courts frequently apply a lower level of scrutiny when conditions are attached to welfare benefits than when conditions are attached to other types of government benefits. She specifically examines this inconsistency among decisions involving Free Exercise and Takings. She shows that the Supreme Court has reduced its regular level of heightened scrutiny and instead applied Dandridge-style deference to uphold welfare conditions. For example, in a series of free exercises cases involving unemployment insurance benefits, the Court regularly has applied strict scrutiny and invalidated work requirements that violated the employee’s religious beliefs. In contrast, when the work condition was attached to welfare benefits, the Court splintered and failed to apply strict scrutiny in Bowen v. Roy. Similarly, the Court applied heightened scrutiny and invalidated the taking of a beach access easement as a condition for receiving a building permit, but just the previous day the Court applied only rational basis review and upheld the government’s taking of child support to repay welfare benefits in Bowen v. Gilliard. Professor Nice argues no difference justifies the inconsistent constitutional treatment of conditions attached to welfare and non-welfare benefits.

Keywords: Unconstitutional Conditions Doctrine, Welfare Law, Constitutional Law