Bridging the Federalism Gap: Procedural Due Process and Race Discrimination in a Devolved Welfare System

As recent Supreme Court decisions limit the power of the federal government to legislate and the federal courts to provide redress in areas such as civil rights, Congress is devolving significant power to states and localities to create and implement poverty-related programs. The discretion and authority that is further devolved to local caseworkers and administrators can be tainted with racial bias, raising the risk of and resulting in a disparate impact on people of color. Individuals may thus face a greater risk of race discrimination within the welfare system with fewer statutory protections available to challenge such discrimination. This article examines the effects of federalism on poor and low-income people of color and explores whether, in this context, Constitutional procedural due process protections, which historically have been used to guard against the unfair administration of government benefits, may provide an effective tool to curb race discrimination in the welfare system