Children in Poverty: In Search of State and Federal Constitutional Protections in the Wake of Welfare 'Reforms'

Overall, the Article emphasizes that in exploring the potential constitutional protections for families in poverty, it will be important to focus on the detrimental effects that welfare reforms have on children. By emphasizing the impact that welfare cuts have on children, it may be possible to provide a framework for judicial review that minimizes the prejudices and stigmas about welfare recipients and focuses on the harm caused by the elimination of access to basic subsistence income. The focus on harm to children is important because our society does not acknowledge every person's "inevitable dependency" and has, therefore, stigmatized rather than empathized with welfare recipients. The stigmatization of welfare recipients is compounded and reinforced by the history of racial discrimination in welfare policy and the media coverage of welfare recipients. Each of these have, in turn, led to a strong link between people's perceptions about welfare and their racial prejudices. With a change in focus away from the behavior of parents to the suffering of children, it is more likely that courts will acknowledge constitutional protections for families in poverty at the state and possibly even at the federal level. For example, procedural protections may be strengthened by highlighting a child's right to continuing benefits in the face of new program requirements. Equal protection claims by illegitimate children may be more successful now that the clearly articulated purpose of federal reforms is to prevent out-of-wedlock births. Further, in this epoch of "New Federalism" and state welfare law innovation, state courts have the exciting opportunity to develop the rich texts of their own state constitutions. State courts should develop this text to act as a check on legislative measures that are projected to plunge eight million families with children further into poverty. Part II of this Article describes the radical shift in the national public assistance program worked by the 1996 passage of the Personal Responsibility and Work Opportunity Reconciliation Act ("PRA" or the "Act"). This part explains the elimination of the previous federal program, Aid to Families with Dependent Children (AFDC) and its replacement with the block grant program called Temporary Assistance to Needy Families (TANF). It also explains some of the stated reasons for those changes. Part III exposes the harm that these changes have already caused, and are likely to cause, to children in poverty. Part IV explores the application of federal constitutional analysis in view of the radical shift in federal welfare policy. Without constitutionally protected procedural rights, other constitutional rights can ring hollow for families in dire poverty. Because the PRA, on its face, raises serious questions about whether procedural due process protections remain for welfare recipients, this issue is examined first. Part IV further discusses some of the limited opportunities for substantive due process and equal protection claims under the federal constitution, surveying some of the critiques of the federal analysis. Part V renews the call for development of protections for children under state constitutional provisions. This Part explains why state courts should develop a state constitutional jurisprudence of positive rights for children who will find themselves in dire poverty as the new welfare regime holds them accountable for the actions, and inactions, of their parents, leaving them without access to the basic necessities of life.