Welfare Entitlements in the Era of Devolution

Abstract

In 1996, the Republican Congress and Democratic President enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), ushering in a new era of public benefits. This 1996 act’s fundamental change to the administration and substance of public benefits called into question the applicability of a substantial body of procedural due process doctrine. As a result, unanswered questions remain regarding the applicability of established due process doctrine in the welfare reform context.

This Article analyzes whether public law entitlements exist in the context of PRWORA’s first order devolution from the federal to state governments as well as some states’ second order devolution from state to county or local governments. This article suggests that the statutory “no entitlement” declaration does not determine whether recipients retain constitutional procedural due process protections. Instead, utilizing a public law analysis, the article posits that PRWORA creates legitimate expectations to the receipt of benefits through statutory language and the concept and nature of the contractual agreements entered into between recipients and governments. Ultimately, these agreements form the basis of legitimate expectations in recipients and, therefore, a property interest.

Using the example of one state’s devolution from the state to the county or local government, the articles explores the dangers that accompany unchecked agency discretion and highlights the continued, and arguably heightened, importance of procedural due process protections. The Article concludes that whether one focuses on the meanings of property interests, entitlements and/or legitimate expectations, or applies a fundamental requirement that government adhere to the rule of law, states remain accountable to welfare recipients when states offer benefits with conditions that impact the lives of their most impoverished residents.

Keywords: welfare, poverty, due process, entitlement, property interest, devolution, public benefits, procedural due process, welfare reform, public law, discretion, rule of law