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St. Mary's Law Journal

Abstract

President Franklin D. Roosevelt spoke of a “social duty” owed by the government to those unfortunate citizens who strive to maintain themselves but cannot. However, the nature of “social duty” remains ambiguous and unclarified today. The failure to define its nature has caused much of the confusion surrounding welfare law today. Specifically, the confusion has resulted in a wide judicial continuity regarding the weight given to the recipient's interest in welfare payments that ranges from stating that the interest may be sufficient to enjoin the Secretary of Health, Education, and Welfare from freezing state funds to stating that this interest is not subject to due process at all. The right of an individual to due process before property is taken from them is fundamental in our system of law. Because welfare is a kind of property, a recognition of the right to welfare should be created to protect its confiscation before due process. The absence of due process protection to welfare recipients is the result of a distinction between protected individual rights and unprotected governmental privileges. This “right-privilege” distinction continues to put at risk an individual’s interest in welfare payments because each state determines the specific requirements for placing a person within a welfare classification. And most states, including Texas, have enacted amendments to their constitution that prohibit welfare grants with the only way for needy individuals to receive welfare is by way of exceptions to their state’s constitution. When courts are called to interpret these exceptions, they need to understand the social duty that the exceptions arose in and recognize that welfare is a right, not a privilege, and that it needs for due process protection like other protected individual rights.

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St. Mary's University School of Law

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