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1970 Wis. L. Rev. 450 (1970)
Unconstitutional Conditions on Welfare Eligibility

handle is hein.journals/wlr1970 and id is 468 raw text is: UNCONSTITUTIONAL CONDITIONS ON WELFARE ELIGIBILITY ALLEN REDLICH* A Wisconsin mother, separated from her husband, must satisfy certain eligibility requirements before she can receive public as- sistance under the Aid to the Families with Dependant Children program (AFDC). She must commence divorce or separation pro- ceedings against her husband, or file criminal abandonment or nonsupport charges against him. Until this is done, her family is denied assistance, irrespective of need. Recent federal court decisions and long standing guidelines of the United States Department of Health, Education and Welfare (HEW) raise serious questions as to the validity of eligibility conditions. This article will examine the legitimacy and wisdom of such condi- tions in light of developing federal law and state interests ostensibly protected. To place the developing federal law in proper perspec- tive, the article will touch briefly on the general trend toward uni- form national standards in the area of public assistance. The Wisconsin statute and its operation are discussed in part I; part II deals with the trend towards uniform national standards of eligibility under the Social Security Act as implemented by HEW and interpreted by the federal courts; the validity of Wiscon- sin's eligibility requirements under the Social Security Act are examined in part III; and part IV is a critical examination of the state interests ostensibly protected by the eligibility conditions. The article concludes that, as a matter of sound public policy, the state interests provide little support for the Wisconsin require- ments. Moreover, recent court decisions and HEW guidelines sug- gest they are invalid as a matter of federal statutory law. I. THE STATUTE Wisconsin's program of Aid to Families with Dependent Chil- dren,1 like those of sister states, is structured to enable the state to receive financial assistance from the federal government pur- suant to the Social Security Act of 1935.2 The present statute is the end product of a long historical process beginning with the Elizabethan Poor Laws.3 However, the statute ceased to change in * Visiting Professor of Law, University of Wisconsin. B.A., 1951, New York University; L.L.B., 1954, Harvard Law School. 1 WIS. STAT. § 49.19 (1967). 2 42 U.S.C. §§ 601-09 (Supp. IV, 1968). 3 The development of social welfare legislation in England is discussed in tenBroek, California Dual System of Family Law: Its Origin, Develop- ment and Present Status, 16 STAN. L. Rv. 257-91 (1964); Developments in