Touro Law Review


In Goldberg v. Kelly, the Supreme Court held that welfare recipients have a right under the Due Process Clause to notice and a meaningful opportunity to be heard before the state may terminate assistance. However, the Court stopped short of holding due process requires states to appoint counsel to represent claimants at these constitutionally mandated hearings. As a result, in the vast majority of administrative hearings involving welfare benefits, claimants- desperately poor, and often with little formal education- must appear pro se while trained advocates represent the government. Drawing on the theory of underenforced constitutional norms, first articulated by Dean Lawrence Sager of the University of Texas School of Law, this Article argues that state legislatures have an independent constitutional duty to recognize and fund a qualified right to appointed counsel at welfare administrative hearings. Although the courts feel themselves to be institutionally constrained from implementing the Due Process Clause to its full extent, elected representative officials suffer from no such incapacity. Indeed, they must conscientiously enforce the requirements of due process to protect against the "brutal need" poor people will suffer if erroneously deprived of subsistence benefits, and also to assure administrative integrity. This Article concludes with a legislative proposal that aims to effectuate the due process mandate of counsel at welfare administrative hearings, taking into account the direct and indirect cost of implementation.