Center for Contract and Economic Organization
Program in the Law and Economics of Capital Markets
The constitutional mandates of procedural due process have been more sharply defined in recent years as a result of the decision of the Supreme Court in Goldberg v. Kelly 1 Although the full extent of the doctrine has not yet been delimited,2 the core proposition seems well established that in the absence of an overriding governmental interest, procedural -due process requires that an individual be accorded notice and a hearing prior to an administrative decision that would adversely affect his ability to subsist by contemporary standards.3 In applying this principle to the termination of public assistance payments, the Court in Goldberg held that a welfare recipient is entitled to a pre-termination evidentiary hearing to determine the probable validity of the welfare agency's grounds for discontinuance of payments.4 In addition, the recipient must be afforded timely and adequate notice detailing the reasons for the proposed termination and an opportunity to defend himself by confronting adverse witnesses and orally presenting his own arguments and evidence. 5 The mandatory imposition of these procedural requirements is apparently subject to two criteria: (1) the deprivation of benefits will have the effect of reducing the recipient to a condition of "brutal need" thus requiring a strong certainty of accuracy by the decision maker; and (2) the administrative decision raises, to at least some degree, issues of fact to which the recipient can contribute in evaluation of the evidence.5
The decision in Goldberg dealt only with the termination and suspension, not the xeduction, of public assistance payments.7 Assuming that the- procedural due process concept which is presently emerging embraces a balancmg of competing interests, the issue of benefit reductions is potentially more troublesome than termination or suspension, especially where the action arises out of an across-the-board reduction of benefits pursuant to a change in agency policy.8 Nonetheless, it seems clear that both of the preconditions to the imposition of the Goldberg requirements are equally as applicable to the question of benefit reductions as to termination and suspension.9 Based on this analysis, the constitutional implications of Goldberg can be clearly stated: Due process requires than any adverse change in the terms and conditions for receipt of public assistance benefits arising out of individual questions of fact or judgment must be preceded by adequate notice to the recipient and an opportunity for an evidentiary hearing prior to the effective date of the proposed agency action.
The growth of procedural due process as reflected in Goldberg and its progeny has been the subject of extended commentary 1 0 An examination of the constitutional bases of the decision and its implication in terms of developing legal theory, though valuable, tends to ignore the actual effect of the decision in terms of the specific factual context out of which it emerged-the welfare hearing process. A more complete insight into the operation of this procedure, now invested with constitutional sanctity, requires an analysis of the administration of the hearing process at the state level. In the absence of adequate administrative compliance, the new requirements of procedural due process, whatever their content, are of little benefit to welfare recipients." To gauge accurately what due process means in operation, it is necessary, therefore, to analyze not only the implications of Goldberg on the legal framework of welfare appeals, but to explore as well the reality of procedural safeguards in the administration of public assistance.
Robert E. Scott,
The Reality of Procedural Due Process- A Study of the Implementation of Fair Hearing Requirements by the Welfare Caseworker,
Wm. & Mary L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/313