The New Contract : Welfare Reform, Devolution and Due Process

This Article analyzes the due process implications of the change in welfare administration from a federal statutory entitlement model to the devolved contractual model and posits that, despite the changes, due process protections still exist. These protections arise from the private law of contracts on two different levels. The first level is the macro, or implied, contract, that I refer to as the social contract between the government and the populace. The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of governmental authority; foundational democratic legal sources, such as the Declaration of Independence and the United States Constitution; and the body of social contract rhetoric that permeates social welfare discourse. Finding support to determine that a social contract between the government and the populace does exist, this Article then explores the terms of the social contract and concludes that at a minimum the social contract insures the government will not act in an arbitrary manner. The second level is the micro, or express, contract encompassing the terms of the agreement between the recipient and the government. These contracts take the form of Individual Responsibility Plans (IRPs) or Individual Responsibility Contracts (IRCs) that are created by welfare caseworkers and govern the terms of assistance. This Article suggests that these agreements can be construed as legally cognizable contracts between the government and each recipient. As such, the IRPs can constitute “property” requiring the applicant of procedural due process protections pursuant to the 14th amendment to the Constitution. This Article ultimately concludes that both the macro and micro elements of the devolved contractual model create a new basis of due process protections for welfare recipients