Revisiting the Promise of Kelly v. Goldberg in the Era of Welfare Reform. Georgetown Journal on Poverty Law and Policy.

Over forty years ago, the Supreme Court in Kelly v. Goldberg held that due process protections applied to statutorily provided welfare benefits. Since then, the welfare system has undergone massive changes, and has been transformed from a cash assistance program to a work-based temporary one, with participants required to work in exchange for benefits. One of the few vestiges of the old system preserved in the new is the requirement that participants be given an opportunity for an administrative fair hearing when benefits are reduced or denied. Although virtually all of the states have retained their pre-welfare reform fair hearing systems, we know little about whether, or how, these systems have adapted to the new demands wrought by welfare reform, including how useful such hearings are under a regime that emphasizes the denial of, rather than an entitlement to, assistance. This article reports on the first empirical study of fair hearings using a method of social science analyses called focused ethnography. The findings reveal that the current system works unevenly. Some administrative law judges act as “super bureaucrats” adopting the normative practices of the welfare system, including its focus on procedural compliance over substantive need, while other judges fully employ the tools of the adversarial system to decide disputes, thus acting as a check on agency error. However, even their efforts fall short in scrutinizing potential deficiencies in administrative systems and decision-making processes regarding the work rules and sanctions. A restructuring of the fair hearing system is required to enhance the efficacy of hearings post welfare reform, and to better serve its intended users. Specifically the present adversarial model should be replaced with the inquisitorial model, thus granting ALJs wider powers to define and investigate disputes. Additionally, the role of the agency representative should be redefined from agency advocate to a “friend of the court” responsible for seeking out opposing evidence and legal arguments. The proposed changes would allow for a fuller and fairer vetting of the types of disputes generated by a work based welfare system, and the administrative practices underlying them. It would also harness the skills, resources and knowledge of government officials in ways that would remedy appellants’ deficiencies in these areas