The current debate over welfare reform stems from a clash between two competing perspectives of the underlying objective of social welfare. Historically, the two ideologies have been categorized as residual and institutional.(1) The former espouses the notion that social welfare should be utilized as a safety net only after other resources have been unsuccessfully exhausted.(2) This has been a position traditionally articulated in conservative ideology. Conversely, the latter holds that social welfare programs should intervene earlier and provide assistance to prevent other resources from being exhausted.(3) This prevention perspective has been set forth in liberal ideology. The dichotomy present in the progressive era created by these perspectives is the fuel that feeds the fiery debates over modern welfare reform.
The focus of the politics concerning issues of poverty over the past quarter century has changed. Government policies aimed at addressing poverty in the 1960s were strictly economic in nature.(4) In contrast, modern policy has created an era of dependency that has shifted focus away from the economic paradigm, towards the social causes of poverty.(5) Welfare reform has been the subject of much debate in the past decade and, until recently, has been relatively stagnant. However, proponents of the residual ideology have grown in number -- illustrative of society's distaste for the paternalism of dependency-era politics and thirst for blaming the poor for their own condition.(6)
On August 21, 1996, United States President Bill Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.(7) Generally, the Act reduces federal funding to legal immigrants residing in the United States by $22 billion dollars.(8) Moreover, the Act drastically reduces federal aid to legal immigrants by two principal means. First, it denies federal aid to legal immigrants until they have resided in the United States for at least five years or until they become citizens, and second, it prohibits state government from using state funds to assist undocumented, and some legal, immigrants from receiving legal assistance.(9) Both of these provisions raise constitutional issues, and will be discussed in the following paragraphs.
The first problem created by the invocation of the new restrictions is whether the federal government may constitutionally require that legal immigrants satisfy a five-year residency requirement before they can receive Medicaid. In Shapiro v. Thompson,(10) the Supreme Court held that a one-year durational residency requirement for receiving welfare benefits was unconstitutional because it interfered with one's fundamental right to travel freely.(11) The Court used a strict scrutiny standard and opined that there were less restrictive alternative time requirements available.(12) If the one-year residency requirement for federal aid is unconstitutional under Shapiro, then the new five-year residency requirement should raise a constitutional eyebrow.(13) At first glance, the citizenship requirement may seem favorable, but there are many legal immigrants -- such as the elderly and mentally handicapped -- who will suffer a complete loss of federal aid only because they are mentally unable to successfully complete the citizenship process.(14)
The second problem raised by the new requirements is whether the federal government's restrictions upon state government's spending is a valid exercise of its authority under the Tenth Amendment.(15) In New York v. U.S.,(16) the Supreme Court held that federal guidelines that substantively limit state authority are unconstitutional because they are coercive to the states and lack electoral accountability.(17) However, the Court held that providing economic incentives was constitutional.(18) The Personal Responsibility Act prevents states from using their own funds to provide aid to certain categories of legal immigrants.(19) The new welfare reform's restriction upon expenditures of state's revenue is not an economic incentive; instead, it is a coercive measure to prevent states from spending funds on certain types of legal aid. Although the Supreme Court has historically given Congress great latitude in its creation of economic incentives, this new restriction is not an incentive because it does not give the states a choice as to how they will be allowed to spend their own money. Hence, this new restriction is coercive in nature. Furthermore, the new guidelines unjustly impose a federal agenda within the borders of states wherein they should, under the Tenth Amendment, be allowed to exercise the powers not explicitly granted to the federal government.(20) Nowhere in the Constitution is there an explicit grant of power to the federal government that allows it to control states' spending programs, so long as those programs exist within the borders of each state.
A brief analysis of the above-mentioned provisions of the Personal Responsibility Act of 1996
leads to the concluson that Congress and the President have, reflective of the currently popular
residual perspective of social welfare, overstepped their constitutional authority by passing
legislation that is violative of two modern Supreme Court cases. Lastly, it is important that such
constitutional issues be examined by the Court because legal immigrants, who could not choose
where they were born and have been negatively affected because of it, lack an electoral remedy of
their predicament.
1. Harold L. Wilensky & Charles N. Lebeaux, Industrial Society & Social Welfare 2 (1958).
2. Id. at 3.
3. See id.
4. The progressive era politics sought economic programs that would publicly regulate industry, progressively tax incomes, increase union rights, and raise the minimum wage. Lawrence M. Mead, The New Politics of the New Poverty, Public Interest, Spring 1991, at 21.
5. The dependency era politics proscribe programs that attempt to improve families, neighborhoods and schools. Id.
6. Id. at 22.
7. Pub L. No. 104-193, 110 Stat. 2105 (1996) [hereinafter Act].
8. NASW Gov't Rel. Update 1 (August 27, 1996).
9. Id. at 9.
10. 394 U.S. 618 (1969).
11. Id. at 620.
12. Id. at 621.
13. See supra note 7, § 403.
14. See supra note 8.
15. U.S. Const. amend. X.
16. 505 U.S. 144 (1992).
17. Id. at 152.
18. Id. at 153.
19. See supra at note 7, § 412.
20. See supra note 8.