Principles of Non-Arbitrariness: Lawlessness in the Administration of Welfare

Abstract

This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context.

In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach those ends. Second, clear standards must exist so that individuals are able to conform their conduct according to a predictable system. Third, the rules and standards that do exist must be equally and fairly applied. And finally, the government must be accountable, and courts must be able to review governmental action to determine its legality.

The article’s primary goal is to demonstrate that the concept of non-arbitrariness is foundational to American law and has some relevance for a welfare program that is administered without rules or standards. Specifically, the concept of non-arbitrariness and the requirement of rules and standards that are fairly and equitably applied create a necessary foundation from which other rights may flow. Courts may not move toward a broad prohibition against arbitrary action affecting welfare recipients any time soon, but they may be willing to regulate certain governmental action or inaction through concepts of non-arbitrariness. Ultimately, the article concludes that a welfare program being administered at the local level without any rules, regulations, policies or procedures is an instance where courts should be willing to regulate governmental arbitrariness. The appropriate remedy would be one that traditional constitutional procedural due process and administrative law remedies have not clearly provided - namely, a requirement that governments have rational rules and standards that are applied fairly and equitably.

Keywords: arbitrary, welfare, public assistance, procedural due process, administrative law, 1st amendment, substantive due process, prosecutorial misconduct