Between the Lines: Interpreting Welfare Rights.

"WHAT WE OBJECT TO MOST is the undermining of the fundamental principle of national entitlement." So asserted the director of the Coalition of Human Needs when Congress last attempted to pass a welfare-reform measure. Despite such protests from welfare advocates, Congress passed the Family Support Act of 1988. Far from radical reform, its focus was job training and education.

The act did recognize that successful welfare reform was unlikely to come from the top down through the system. So it allowed states to experiment with different types of programs to see what worked best. New Jersey pioneered the state reforms by passing a comprehensive program in 1992. One provision of the New Jersey law provides that women who bear children while on welfare will no longer receive an increased welfare grant for each additional child.

The Legal Services Corporation, the National Organization for Women, and the American Civil Liberties Union charged into court. In carefully orchestrated litigation, those groups sought to enshrine the principle of national entitlement by establishing that the denial of increased welfare payments upon the birth of a child violates the mother's right to procreate.

This still-pending litigation is just the latest round in a 30-year campaign by welfare advocates to use the courts to expand the reach and scope of the welfare state. They have been abetted by Congress, which passes welfare laws prompting, indeed compelling, wide-ranging litigation. Courts have responded in fascinating and sometimes surprising ways. And although courts have thus far refused to recognize a constitutional right to welfare, they have played a central and evolving role in shaping the welfare system of today.

WEAVING COHERENT THEMES OUT OF THE many statutes and case law permutations requires a deft hand. Drawing from those themes real insights into the role of courts in policy making is an even more daunting task. R. Shep Melnick, chair of the politics department at Brandeis University, takes on this challenge in his new book, Between the Lines: Interpreting Welfare Rights.

Melnick offers the best analysis to date of how courts have addressed the issues surrounding welfare over the past 50 years, and he provides a penetrating appreciation of the courts' policy-making function. In keeping with the book's rigorous academic style, Melnick uses case studies to examine how courts interpreted sweeping, ambiguous, and at times contradictory statutes passed by Congress. Three programs, Aid to Families with Dependent Children (AFDC), education for the handicapped, and food stamps, offer fascinating insights on how over time, regardless of whether the Supreme Court was dominated by liberals or conservatives, court action expanded program benefits and increased federal control over state and local government.

The accretion of federal power occurred through both constitutional and statutory interpretations. For instance, in 1967, the Supreme Court in Goldberg v. Kelly ruled that welfare recipients facing "brutal need" are entitled to a due process hearing before benefits can be terminated. The ensuing years saw welfare procedures grow enormously complicated and difficult to modify. (One of the many reasons President Clinton's welfare-reform proposal will never achieve its purported goal of ending welfare as we know it is the myriad rights of appeal provided recipients under existing law and increased in the Clinton plan.)

Meanwhile, as the influence of the Rehnquist Court began to be felt, the Supreme Court displayed less willingness to second-guess Congress or administrative agencies. This restraint culminated in 1984 in Chevron v. NRDC, where the Court held that "when the statute is silent or ambiguous with respect to the specific issues," the sole issue for the court is whether the administrative agency adopted a "permissible construction of the statute." That decision gave a green light to federal agencies that in classic public-choice fashion maximize their budgets and programs as much as possible.

Even as the Supreme Court retreated from the activism of the 1960s, the lower courts decided dozens of cases that continued to expand welfare programs and procedures. Typically, those cases turned on statutory or regulatory interpretations of a very technical nature (such as what constitutes a "standard filing unit" for Medicaid eligibility; whether disability payments should be counted as "earned" or "unearned" income). The cumulative effect of those decisions, especially when pushed by the Legal Services Corporation, was to create an enormous, legally complex welfare system prone to litigation over every procedural or policy dispute.

THE CASE STUDIES DEMONSTRATE HOW statutorily created rights inevitably mean different things to Congress, interest groups, and scholars, and how in the end the courts are always called upon to resolve ambiguities. Each case study provides lessons that illuminate the results of court interpretations. For instance, Melnick draws five lessons from the AFDC litigation.

His first lesson is that litigation that is part of a national policy agenda is more likely to bring the extreme case before the court, with a resulting increased likelihood of novel rulings. The paradigm example was King v. Smith, in which the Supreme Court, propelled by Legal Services Corporation's vivid portrayal of racial animus in George Wallace's welfare program, blithely ignored jurisdictional constraints and struck down the program. Jurisdiction was presumed in welfare disputes increasingly from then on as courts federalized welfare programs.

Second, "litigation tends to isolate what in the real world is merged." For example, welfare eligibility and benefits have received starkly different treatment from the courts, with the result that as more people became eligible, benefits became harder to obtain. Third, when the Supreme Court relies on legislative silence to assume congressional intent, it risks paralyzing the system through the uncertainty created when lower courts attempt to apply Supreme Court rulings in particular cases. In the aftermath of King v. Smith, lower courts groped inconclusively for consistent principles to apply to the rising load of welfare issues placed before the court. Such uncertainty continues to this day.

Fourth, Supreme Court rulings have gone through three phases (the Warren, Burger, and Rehnquist Courts) with conflicting rulings, many still unresolved, as a result. And finally, AFDC cases have gone from grand principles to wooden rules focusing on administrative minutiae. As this has happened, the moral authority of welfare advocates has waned.

Sometimes courts are prompted by skillful advocates with a national litigation agenda. Melnick, like others before him, traces the successful courtroom strategy used by the Legal Services Corporation to expand the procedural and substantive rights of welfare recipients. But Melnick goes further and explores what he calls the "central irony" of AFDC litigation: "Reformers seeking to make AFDC more nationally uniform, more generous, and more widely available turned to the courts because their efforts had repeatedly been met with failure in Congress; the courts then justified their policies in claiming that this is just what Congress intended all along." Congress was often duplicitous in this charade by passing vague and sweeping laws that were deliberately left to the courts to interpret by "reading between the lines."

MELNICK EXAMINES THE CONGRESSIONAL reforms that eventually culminated in the Family Support Act of 1988. He finds that Congress overturned a "surprisingly large" number of court decisions limiting technical rules such as calculating step-parents' income in determining eligibility, limiting benefits to newcomers, and limiting benefits to college students. Nevertheless, the basic legal edifice of the welfare state remained and federal control continued over many aspects of state programs, thereby constraining innovation and increasing bureaucratic costs.

Throughout this legal history, courts and the Congress grappled with various theories of rights. Melnick skillfully explores the implications of those theories, from the "common law of need" created by the courts in the 1960s as welfare was expanded, to the "right to a free and appropriate education."

While not grounded in a natural-rights philosophy, Melnick brings scholarly skepticism to the ambiguous and loose ways in which "rights" have been created and enforced by law. This is not a book intended to propose policy reforms, but Melnick's skillful analysis indicts our legal system for its lack of a consistent natural rights-based approach to decisions. He accomplishes his goal of studying the programmatic consequences of court decisions to force the reader to link legal abstractions with real-world problems.

The reader will not come away from this book with a comfortable assurance that welfare as we know it will end anytime soon. For better or for worse, the courts will continue to play a defining role in the growth (or demise) of the welfare state. Litigation like that currently pending in New Jersey will determine the course of welfare reform at the state and national level. The political dynamics, institutional inertia, and unmoored decision making inherent in welfare law, mean that advocates for a diminished welfare state must be relentless in their efforts nowhere more than in court.

William H. Mellor III is president and general counsel of the Institute for Justice, which is opposing NOW in the New Jersey litigation.