Equal Protection As A Measure of Competing Interests in Welfare Litigation

Presently legal attacks on welfare programs focus upon the basic theory of the program, its definitions of need and obligation, and dissatisfaction with aspects of daily administration. Because these attacks seek to invalidate state action and federal forums are usually sought, conventional constitutional arguments of due process and equal protection are adapted to the peculiar issues posed by welfare cases. These attacks in substance allege that the state has so failed to support a needy person that its actions are fundamentally unfair and unacceptable. Equal protection has been raised often in welfare cases and some courts have granted relief based upon it. These cases, however, do not articulate any distinction between due process and equal protection, and do not give proper analysis to various interests which a state asserts. Although traditionally the welfare recipient was denied challenge summarily because of the no-right argument, presently courts, after imprecisely hurdling the no-right argument, are granting relief virtually automatically without articulating why. An intermediate position ought to be taken. The recipient ought to be readily allowed challenge, but relief should be granted only if the arbitrary state action cannot be justified by the opposing interests asserted by the state as the bases for the differential treatment. This comment urges an intermediate position be adopted by the courts. It compares equal protection and due process and demonstrates the significance of equal protection in welfare law. Equal protection allows challenge where a due process claim typically could not be made, because it is not dependent upon any initial characterization of individual right. The comment then focuses on the key issue in an equal protection analysis; the arbitrariness asserted. It will be demonstrated that it is not arbitrariness in the abstract which can be challenged successfully, but rather constitutional arbitrariness considered against the purpose of the welfare program, and the competing interests asserted. In a welfare situation, it is the individual's need which must be balanced against the competing needs of the state.