The Constitutional Law of Remedies in Welfare Litigation

It is becoming increasingly obvious that the problems of poor people in the United States are dependent, more than those of other classes, upon the proper administration of government agencies. The contact of poor people with government agencies involves most of their chief concerns in life: Welfare, social security, adequate health care, adequate income from work, a safe and healthy place to live, whether privately or publicly owned, and schools that provide real education without racial or economic discrimination. Where payments are improperly withheld from a presumably destitute recipient, the need for a speedy and adequate remedy should be obvious. Yet, the remedies available to an aggrieved welfare applicant who has been denied benefits pursuant to an unconstitutional state eligibility rule are vague and speculative. The law of effective relief in federal courts for welfare plaintiffs, and indeed for other participants in federal transfer programs, is largely undeveloped. Judges and lawyers for the poor have searched with little success for authority in point. The search has confronted the doctrines of sovereign immunity, exhaustion of administrative remedies, and interests of federalism. This article considers whether a federal court may award retroactive payments to a class of welfare recipients specifically in a suit against state officers in their official capacity, when a state regulation or statute has been declared unconstitutional, without regard to the question of whether the defendants acted in bad faith. The thesis is that only one answer is correct—a class retroactive order of payment. This result is required by the constitutional law of remedies, by equity, and by sound judicial administration and, in light of the supremacy clause and the equal protection clause, is not prohibited by the eleventh amendment or the wording of section 1983.