This Note examines the right of welfare recipients to request a prior hearing in the context of state-wide, across-the-board benefit reductions by a state. After reviewing the due process requirement of a pretermination hearing articulated by the Supreme Court in Goldberg v. Kelly, the Note examines the standard for reductions established by the HHS regulations. The Note also considers the various approaches taken by the courts in attempting to determine the constitutional and statutory requirements of a prior hearing in a state-wide reduction. The Note argues that the standard delineated by the HHS regulations and by some courts fails to provide the full procedural protection necessary to safeguard the benefits of impoverished individuals from wrongful reduction. Observing that the Supreme Court has declined to recognize a substantive due process right to welfare, the Note points out that recipients must depend upon the requirements of procedural due process to protect their very means of economic survival. The Note contends that Goldberg dictates that states be extremely cautious in reducing benefits and that consequently, because a wrongful reduction would subject recipients to a condition of "brutal need," due process requires that states provide the opportunity for a fair hearing even when the intended reduction is due to a policy of whole-sale cutbacks. Because the regulations have in fact encouraged blanket denials of requests for prior hearings in across-the-board reductions, the Note concludes that, in order to reconcile the statutory requirements for prior hearings with the constitutional imperatives, HHS must either rewrite or eliminate the provision of the federal regulations concerning automatic, state-wide reductions.
Stephen A. Owens,
Welfare, Due Process, and "Brutal Need": The Requirement of a Prior Hearing in State-Wide Benefit Reductions,
34 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol34/iss1/5