Academic journal article Law & Society Review

Confronting Government after Welfare Reform: Moralists, Reformers, and Narratives of (Ir)responsibility at Administrative Fair Hearings

Academic journal article Law & Society Review

Confronting Government after Welfare Reform: Moralists, Reformers, and Narratives of (Ir)responsibility at Administrative Fair Hearings

Article excerpt

Almost 40 years ago, the Supreme Court, in the landmark case Goldberg v. Kelly (1970), provided welfare participants with a potentially potent tool for challenging the government welfare bureaucracy by requiring pre-termination hearings before welfare benefits were discontinued or reduced. In 1996, with the passage of the Personal Responsibility Work Opportunity Reconciliation Act (PRWORA), the rights talk of Kelly was officially replaced with the discourse of individual responsibility. Using observational data of administrative hearings and interviews with administrative law judges and appellants, this study explores how fair hearings have been affected by this official reconceptualization of rights. I find that hearings are not a panacea for challenging the more punitive aspects of welfare reform, but nor are they devoid of the possibility of justice. While hearings can replicate in style and substance the inequities, rigid adherence to rules, and moral judgments that characterize welfare relationships under the PRWORA, they can also be used as a mechanism for creating counternarratives to the dominant discourse about welfare. This study identifies two types of judges-moralist judges and reformer judges-and examines how their differing approaches determine which narrative emerges in the hearing room.

Almost 40 years ago, the Supreme Court, in the landmark case Goldberg v. Kelly (1970), provided welfare participants with a potentially potent tool for challenging the government welfare bureaucracy. By requiring pre-termination hearings before welfare benefits were discontinued or reduced, the Court gave recipients a more meaningful opportunity to be heard and to participate in the institutions of government. The Court also brought participants into the fold of citizenship, framing welfare as a right, not a privilege, and proclaiming that "welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community" (Goldberg v. Kelly 1970:265).

In 1996, with the passage of the Personal Responsibility Work Opportunity Reconciliation Act (PRWORA), the rights talk of Kelly was officially replaced with the discourse of individual responsibility. Welfare was recast from a government obligation to a reciprocal obligation, to be dispensed only after the poor - through work - demonstrated their responsibility. In a highly symbolic and meaningful choice of words, the law also proclaims that the PRWORA "should not be interpreted to entitle any individual or family to assistance" (PRWORA 1996: 42 USC 601(b); emphasis added). The obligation remains, though, to provide recipients with an opportunity to be heard in a state administrative or appeals process when their benefits are reduced or denied (PRWORA 1996: 42 USC 602(a)(1)(B) (iii)).

Administrative hearings (commonly referred to as "fair hearings") constitute a significant form of civil justice. As one example, there were more than 130,000 requests for welfare hearings in New York City in 2007, which is three times the number of small claims court cases filed there yearly (New York State Office of Temporary and Disability Assistance 2007:43; New York State Unified Court System 2009). For many citizens, hearings are their primary contact with legal systems. Because hearings are also welfare participants' only recourse for challenging government when it denies them access to life-sustaining benefits, they are also "the primary social justice system for poor people in the United States" (Brodoff 2008: 132).

Few studies have focused on fair hearings or the use of legal mechanisms to challenge the welfare system (see Sarat f 990; White f990a). While several studies have investigated welfare participants' interactions with state workers post-welfare reform (see for example Gilliom 2001; Soss 2002; Lurie 2006), with the exception of this author's earlier study (Lens 2007, in press), none focus specifically on the fair hearing system. …

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