Petition to the Inter-American Commission on Human Rights

This petition was withdrawn in May, 2004, and is currently under revision for resubmission. For further information regarding the status of the petition contact the Poor People's Economic Human Rights Campaign. It is available here as a model for those individuals and groups interested in pursuing petition mechanisms at the Inter-American Commission.

In 2003, CESR worked with a number of other groups to bring a petition before the Inter-American Commission. The other groups included the Economic Human Rights Campaign of West Virginia, the Poor People's Economic Human Rights Campaign, the Center for Constitutional Rights, and the International Women’s Human Rights Clinic at CUNY Law School.

June 9, 2003

Inter-American Commission on Human Rights
Organization of American States

1889 F Street, N.W.

Washington, D.C. 20006

United States

Dear Ambassador Cantón:

Economic Human Rights Campaign of West Virginia, the Poor People's Economic Human Rights Campaign,¹ the Center for Economic and Social Rights, the Center for Constitutional Rights, and the International Women’s Human Rights  Clinic at CUNY Law School bring this petition before the Inter-American Commission for Human Rights (hereinafter the “Commission”) against the United States of America for violating the rights of Ms.Jane Doe and her children under article II (Right to equality before the law),  article VI (right to establish a family, the basic element of society, and to receive protection therefore), and article XVI (Right to social security), of the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration”).  Ms. Doe and her children suffered the above-mentioned violations as a result of having her welfare benefits arbitrarily and discriminatorily terminated under the 1996 Personal Responsibility and Work Opportunity Reconciliation Act. The US government estimates there are 231,000 families who may soon be placed in Ms. Doe’s situation.²

- Introduction

Despite vast resources, the United States (US) government has increasingly enacted laws and implemented policies designed to reduce, erode, and outright eliminate protection of economic and social rights for its poor citizens and residents.  The working poor and unemployed face growing economic insecurity threatening the health and well-being of countless individuals and families across the country. Moreover, the harshest consequences of these changes in social welfare law and policy, such as hunger and homelessness, fall principally on single mothers and their children.

The 1996 enactment and subsequent implementation of the Personal Responsibility Work Opportunity and Reconciliation Act (PRWORA) represent one of the most dramatic examples of this process.  PRWORA has had far reaching effects in terms of its impact on the structure of the welfare system and the level and scope of benefits to the poor.  PRWORA de jure excluded categories of persons from receiving any benefits at all and sets arbitrary limits on the amount of time an individual may receive benefits.³  Structurally, PRWORA also created incentives for states to reduce the number of recipients of welfare benefits, and many states did so through coercive and diversionary tactics indifferent to the needs of the poor.

By reducing and eliminating survival benefits for the poor, PRWORA violates the obligation of the US under the American Declaration to progressively realize the enjoyment of economic and social rights and to eliminate discrimination based on economic status.  Specifically, PRWORA, inter alia, constitutes an illegal retrogression in the area of social and economic rights and contributes to a failure to guarantee the core minimum content of these rights to the population.

PRWORA also represents the first social experiment on a national scale with an intent towards dismantling longstanding entitlements.  Portions of PRWORA are currently being promoted as a model for dismantling other entitlements such as access to health care for the poor (Medicaid).  Proposals are being finalized to introduce what are termed “option block grants” for Medicaid.  This means that the federal government would no longer share the cost of the rising price of health care.  Also, States would be allowed to cut some services, including those for the elderly or disabled.  The TANF reauthorization bill passed by the House of Representatives would introduce similar programs for food stamps in five states.  These states would be allowed to eliminate categories of recipients and reduce the amount of aid received.  Another part of this bill would allow the federal government to waive statutory and regulatory provisions, potentially greatly reducing the number of aid recipients and the quantity of aid received.  This could deprive families in the United States of even basic sustenance.  It is critical that this severe and escalating regression by the federal government in ensuring economic and social rights is recognized and addressed as a fundamental human rights crisis.  

This petition is brought on behalf of Ms. Jane Doe who had her welfare benefits terminated for the sole reason that she had been receiving those benefits for 60 months.  In no way was the decision to deny Ms. Doe continuing benefits based on a change in her or her family’s economic situation.  Indeed, the benefits were terminated with no regard for ensuring Ms. Doe’s right to social security. 

³ For example, states may limit individuals to as little as 24 months of benefits throughout a lifetime.  Nationwide, benefits are cut off by the federal government after 60 months, at most.  Also, recipients lose their benefits if they have ever been convicted of a drug felony, regardless of the amount or type of substance involved, despite the absence of any similar policy for those convicted of such serious crimes as murder or torture.

I. DOMESTIC LAW AND FACTS

A. PRWORA ELIMINATES GUARANTEES TO MINIMAL SOCIAL WELFARE

In the United States, welfare benefits for individuals and families with little or no income were almost non-existent prior to the 1930s.  With millions of people unemployed during the Great Depression, the federal government recognized it was facing a national crisis in securing the right to social security for the population.  Among other actions taken by the government at that time,⁴ the Social Security Act of 1935 launched federal grants to support state welfare programs for the disabled, low-income elderly, and low-income families with children.  The grants supporting families with children developed into the “Aid to Families with Dependent Children (AFDC)” program – usually simply referred to as “welfare.”⁵

Welfare remains the primary federal program that protects the rights of poor women⁶ and children to social security when those families are jobless and have no significant source of income.⁷  It provides the lowest-income families in the country, who -- by definition -- have inadequate resources for survival, with cash benefits and other services.    Welfare, however, underwent a dramatic change in 1996 with the enactment of PRWORA.  PRWORA replaced AFDC with the Temporary Assistance to Needy Families program (TANF).

Under the prior AFDC program, the US guaranteed that every person defined as needy⁸ residing in a participating state⁹ was entitled to receive assistance for as long as that assistance was necessary.  The program was administered through the individual states that form the US, and each state had limited discretion as to how the program would be implemented locally, including the discretion to set the level of cash benefits awarded.  This discretion was coupled, however, with federal minimum guarantees that protected welfare recipients.  PRWORA in some instances eliminated federal guarantees, and in others imposed significant limitations on how states may use TANF funds to guarantee a minimal level of social security, only a few of which this petition details.

The most profound change wrought by PRWORA was the revoking of the “entitlement” that needy persons in the US had to social welfare assistance.  This change was reflected in sections of the law stating the legislative intent of the act, changes in the structure of the program, and changes in the definition of an eligible recipient.

1. Legislative Intent

Under the pre-1996 AFDC legislation, families were considered “entitled” to benefits based on need.  The US Supreme Court interpreted this statutory entitlement as giving rise to a quasi-property right to benefits requiring a certain level of due process guarantees under the US Constitution.  The US Supreme Court specifically found that AFDC “benefits are a matter of statutory entitlement for persons qualified to receive them” and that “[i]t may be realistic today to regard welfare entitlements as more like ‘property’ than ‘gratuity’.” Goldberg v. Kelley, 397 US 254, 262 n.8 (1970). [emphasis added].¹⁰  The Court found that this entitlement was “recognized by public policy” and constituted “essentials, fully deserved, and in no sense a form of charity.”  Id.at 262 n.8.¹¹

The US Supreme Court also concluded, however, that as a matter of national Constitutional law “[p]ublic assistance benefits are ‘a privilege’ and not a ‘right,’”  Shapiro v. Thompson, 394 US 618, 627 n.6 (1969).  Therefore, federal legislation is the sole determinant of whether a recipient has any federal “right” or “entitlement” -- whether as a matter of property or on some other grounds -- to public assistance benefits.  For this reason, the pre-1996 statutorily created entitlement was of immense importance.

Congress can also revoke an entitlement, however, and in fact did so in 1996.  Under PRWORA, Congress took pains to note that the act “shall not be interpreted to entitle any individual or family to assistance under any State program funded under this part.”  42 U.S.C. § 601(b) (1999).  Thus, welfare benefits are no longer an entitlement recognized by public policy.  This change in the purpose of welfare law is reflected both in the structure of the TANF program and in the new definitions of “eligible” recipients.

2. Structural Changes

Prior to the enactment of PRWORA, there were no arbitrary limits on the amount of funds the federal government provided to the states to assist needy persons.¹²  If the number of needy persons in a state increased, the funds increased, and states were required to assist all families that qualified as needy.¹³  PRWORA placed permanent ceilings on the amount of federal funding states receive for welfare.  The law gives each state a “block grant,” i.e. a defined and limited amount of money, to serve that state’s welfare population.  The amount does not increase even when the number of needy families in a state increases.  Likewise, it does not take inflation into account.¹⁴

PRWORA also creates incentives to cut families off the welfare rolls through its work requirements.  A state loses up to 5% of its grant if less than 50% of its recipients (exclusive of children) fail to meet work requirements.¹⁵  Thus, perversely, where State economies are weakest - i.e. where there are an insufficient number of jobs for low-wage workers - the law creates the strongest incentives to eliminate families that are unable to meet the work requirement from the program.¹⁶  If these families are eliminated, they do not affect the overall percentage of work participation achieved by the state in a way that may decrease federal funding.¹⁷  Consequently, many States removed recipients from the program through onerous, and often contradictory, bureaucratic requirements, illegal tactics, and coercion.¹⁸

PRWORA also imposes time limits on public benefits wholly unrelated to the need of recipients.  Under federal law -- with the exception limited exemptions -- States may not provide more than a total of 60 months of TANF assistance to needy families.¹⁹  States may opt to limit the number of months a needy family is eligible even further or let only a certain number of months be used continuously.²⁰  West Virginia, where the petitioner resides, affords the longest period of support.  However, recipients often need assistance beyond the sixty month limit. 

The combination of a block grant structure, penalties for failing to meet work requirements, rewards to states for reducing caseloads, and time limits for receiving benefits is designed to significantly reduce the number of needy families receiving welfare support without necessarily reducing the number of needy families.

3. Definition of An Eligible Recipient

Prior to the 1996 enactment of PRWORA, welfare law considered a family eligible for benefits if they were needy as defined by their level of income. The law excluded no family that met that definition.  PRWORA excludes categories of persons based on factors wholly unrelated to need – such as immigration status, age, prior convictions, or inability to meet work requirements.

Of particular relevance to this petition is the lifetime limit that PRWORA placed on the receipt of welfare benefits.  As noted above, PRWORA limits welfare support for 60 months in a recipient’s lifetime, unless the recipient falls under a limited exemption. See supra at n. 19.  Recipients that have already reached this limit are no longer defined as “eligible.”  Moreover, although a state may exempt some families, the federal law offers no guarantee that families in severe economic distress can access ongoing support.  Economic conditions which make it extremely difficult or even impossible to find a job are likewise not taken into consideration.

B. THE IMPACT ON THE POOR

1. General Impact of “Welfare Reform”

The US Congress enacted PRWORA in 1996 during a period of great economic prosperity which lasted until almost the end of 2000.²¹  However, between November 2000 and November 2001 women workers who maintained families experienced the largest increase in unemployment since 1981-82.²²  A recession formally began in March 2001, and intensified as result of the events of September 11, 2001.  Low-wage workers were significantly impacted and lost, inter alia, jobs, income, and health insurance.²³  Between 2000 and 2002, single mothers, by far the largest category of adult welfare recipients, faced an unemployment rate of 18% if they had not completed high school, and 10% if they had not attended college.²⁴

The US also enacted PRWORA in the face of high levels of child poverty.²⁵  This is significant because children comprise the largest number of TANF recipients and thus are the most affected category by the 1996 law.   After the law went into effect, the number of children receiving assistance dropped dramatically.  Literally millions of recipients (adults and children) either left or were cut-off the welfare rolls.²⁶  In particular, “[w]elfare recipiency among poor young children [fell] sharply.”²⁷  For example, in 1993 57% of poor children lived with families receiving public assistance, while only 40% did so in 1998.  This represents a shift of over three million six hundred thousand children.  Moreover, while “[s]ubstantially smaller proportions of poor children [participated in welfare] programs,” the proportion of children in poverty remained high.²⁸

Thus, the number of recipients no longer receiving benefits does not correlate with the number of families who escaped poverty.²⁹  This applies to both adults and children.  For example, during the years 1995 to 1997, the number of people receiving AFDC/TANF benefits dropped by 22.2 (three million) while the number of single mother families that were poor before factoring in benefits declined by 5.4 (770,000).  "[T]he drop in participation between 1995 and 1997 is much steeper than can be explained by increases in the earnings of poor households. In other words, caseloads [i.e. the number of recipients] declined more rapidly than economic need."³⁰

As a consequence of this decline in welfare participation, the poorest families in the country became significantly poorer.³¹  Other families experienced gains in earnings, but not disposable income as a result of losing benefits.³²   Again, children as a category were the most affected, and extreme poverty among children increased.³³ 

PRWORA weakened the safety net for those in greatest need, and families who previously turned to the welfare system to avoid extreme poverty could no longer do so.³⁴  The number of families in extreme poverty (with cash income below one-half of the poverty line) who received no welfare benefits jumped from 1.0 million in 1995 to nearly 1.2 million in 2000 - a rise of 16 percent.  Whereas a majority of extremely poor families received welfare or similar means-tested cash assistance before the signing of national welfare legislation in 1996, only one in three was receiving such help by 2000.³⁵

The 1996 law caused the decline in participation in the welfare program through several avenues.  One significant factor in the continuing decline of the number of recipients is the policy of sanctions, i.e. states eliminating or reducing a family's benefits because the adult in the household purportedly did not comply with one of PRWORA's rules as implemented by the states. ³⁶  The 1996 law also categorically banned other categories of former recipients from participating in the program. 

Many former recipients of TANF cash benefits earn no money after their benefits are eliminated; even when former recipients find employment, many remain in poverty.

One follow up study in Maryland tracked 1,600 families whose cases closed between October 1996 and June 1997. They found that only a little more than half of respondents reported earnings the quarter after leaving welfare. The median earnings for those with earnings were $2,082. One out of ten reported earnings of more than $4,296. This means that only one out of twenty recipients whose case had closed was earning above the poverty level for a family of four, while many earned nothing at all.³⁷

A New York state survey showed that from July 1996 through March 1997, only 29% of former recipients made more than $100 in the first three months after the state eliminated their benefits.³⁸  Nationally, "[b]y March 1998, only 8% of the previous year's recipients' had jobs paying weekly wages above the three person poverty line . . . [and] the proportion with weekly wages below three-quarters poverty line surged upward [between 1990 and 1998] from 6% to 14.5%."³⁹

Moreover, because of a generalized fear among recipients of public assistance regarding the impact of PRWORA, many "voluntarily" left the program even prior to the law's enactment.  Most of these former recipients who attempted to survive economically on their own did not fare well.  A University of Wisconsin study shows five of six persons who left AFDC in 1996, i.e. left the cash assistance program immediately before Congress enacted PRWORA, had lower earnings or no earnings under Wisconsin's new welfare system.⁴⁰  Just one in six of those who lost their benefits had incomes above the poverty level, and 34 had no earnings whatsoever.  Only 28 had annual earnings of $10,000 for two consecutive quarters -- which is still below the official poverty line of $13,880 per year for a family of three.⁴¹

While many former recipients found some sort of employment after the state eliminated their benefits, one national study found that the employment rate for former TANF recipients was at 61%, and that the rate was even lower for single mothers.⁴²  Yet, PRWORA provides no support in finding employment for persons sanctioned under the program, or those who have reached the 60 month time limit and had their benefits removed, or those who are no longer eligible because of a drug felony conviction or immigration status.  While there are patchwork job support programs at the federal and state level, there is no “entitlement” or “right” to support in finding work anywhere in the legal system. 

Job insecurity for former recipients is extremely high. One study found that 75% of those in Wisconsin's program who found jobs lost them within 9 months. This is typical of the experience in other states where recipients were forced out of the TANF cash benefits program.⁴³  Additionally, nonstandard work is widespread and often substandard. While approximately 70% of all workers were employed in regular full-time jobs, nearly 30% worked in different nonstandard work arrangements.⁴⁴  In fact, temporary agencies have become the greatest source of employment.⁴⁵

Finally, former TANF recipients stated they had to cut the size of meals ranging from 30% for two-parent families to 35% for single-parent families.⁴⁶  According to the Urban Institute American Family Survey, 49% of parents who recently left welfare reported that, in at least one instance, they ran out of food and could not buy more.⁴⁷  Thus, the PRWORA has further undermined economic security for the poor in the US and negatively impacted the population’s well-being in a range of ways. ⁴⁸  

Because the lifetime limit is only now beginning to affect a significant number of recipients, there are no studies specifically on its impact.  However, recipients reaching their lifetime limit are even more likely to suffer economic vulnerability than recipients leaving the welfare rolls for other reasons.  Thus, we can expect to see similar, if not more severe, impacts like those described above on this population.  The negative impacts will also be magnified by the current recession.  This is illustrated by the experience of Ms. Leggett.

⁴     The government also enacted an unemployment insurance scheme and a social security program providing a pension after retirement (Social Security).

⁵ This program was supplemented with “in kind” benefits providing health care (Medicaid) and food (Food Stamps).

⁶ The program is available to both men and women if they qualify, however, the overwhelming majority of actual adult recipients are women. Children are the largest group of welfare recipients.

⁷ The US government also administers an unemployment insurance program which provides funds to those who are unemployed. This program, however, is severely limited as it only provides funds for a maximum of 6 months, and only provides these funds if the individual had been working continuously for several months prior to becoming unemployed. It also does not cover workers in the informal sector.

⁸ Under AFDC a recipient’s eligibility was determined by the level of family income.

⁹ All 50 states participate in the welfare program, although theoretically a state could decline to participate.

¹⁰ The Court went on to state that:

Much of the existing wealth in this country takes the form of rights that do not fall within traditional common law concepts of property. It has been aptly noted that society today is built around entitlement. The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long-term contracts for defense, space, and education; social security pensions for individuals. Such sources of security,

whether private or public, are no longer regarded as luxuries or gratuities; to the recipients, they are essentials, fully deserved, and in no sense a form of charity. It is only the poor whose entitlements, although recognized by public policy, have not been effectively enforced.

at n.8.

¹¹ Specifically, the Supreme Court was addressing whether recipients had procedural due process rights to their benefits. Even under the post-1996 law, recipients still have some procedural rights. The major change was not in this arena, but rather whether they would be “entitled” to benefits based solely on need, or whether other unrelated conditions would be imposed (such as time limits).

¹² The federal government provided states open-ended matching funds for all needy persons. In other words, for every $1 a state spent providing assistance to a needy person, the federal government provided approximately $2 more under an average 66% (50% to 79% depending on the state) federal match rate. This created an enormous incentive for the state to provide funds, as otherwise it would forgo federal assistance.

¹³ States did have the discretion to set the level of benefits.

¹⁴ Congress froze TANF block grants at the level they were in 1997. Between 1997 and 2007 purchasing power will decrease by 22% due to inflation. Sharon Parrott and Zoe Neuberger, Center on Budget and Policy Priorities, States Need More Federal TANF Funds 1 (May 2002).

¹⁵ The 50% figure is for single parent homes, 90% of two parent families must be engaging in work activities.

¹⁶ The work requirement can also be met by jobs specifically designed for recipients (“workfare”) whereby recipients work for private employers but are “paid” in benefits by the state. States are not obligated to provide this option, and many do not. Moreover, the benefits provided are not a living wage, keep the family in poverty, and often preclude the recipient from investing time in training in order to obtain a living wage job. Finally, this option is also less attractive to states with weaker economies as they present an administrative and financial burden for the State. By eliminating families from the program, the State both saves money and minimizes the administrative burden.

¹⁷ Moreover, overall reduction of caseload itself – i.e. overall decline in families receiving assistance can substitute for meeting federal work participation requirements. Finally, where States do not spend their block grant directly on eligible families due to a shrinking of the caseloads, they have a great deal more latitude as to how to spend that money.

¹⁸ Welfare Law Center, TANF Sanctions: Opportunities, Ideas and Strategies, June 1999.

¹⁹ States are permitted an exemption for 20% of their caseload for “hardship,” but they may not continue providing TANF benefits for more than 20% of families, and are not required to use the exemption. Thus, if a state did not exempt even one family for “hardship,” it would be in compliance with federal law.

²⁰ For example, a family may be eligible for 24 months of assistance, then have to wait several months or years to become eligible for another 24 months, regardless of the length of time assistance is needed originally.

²¹ As noted by President Clinton when commenting on the political debate around welfare reform, "[w]e have the longest peacetime expansion in history, nearly 19 million new jobs; the lowest unemployment in a generation; the lowest minority unemployment ever recorded; the highest home ownership in history. From a deficit of $290 billion we are moving to a surplus of $99 billion. And this year alone we will be paying 85 billion on our national debt." President William Clinton, Remarks at the National Forum on Welfare to Work at Navy Pier Festival Hall, Chicago, Illinois (Aug. 3, 1999) http://clinton4.nara.gov/WH/New/html/19990803.html.

²² Between November of 2000 and November of 2001 the US experienced the largest increase in unemployment in any 12-month period in almost two decades. Notably, during this period, “the unemployment rate for women who maintain families increased by 3.1 percentage points over the past year, from 5.2 percent to 8.3 percent. This is the largest increase in the unemployment rate for that population in a 12-month period since the period December 1981 to December 1982.” Center on Budget and Policy Priorities, Press Release, Increase in Number of Unemployed over Past 12 Months Was Largest in Nearly 20 Years – Increase in Number of Long-term Unemployed Set Post-World War II Record in November, Dec. 7, 2001.

²³ In early 2002, the Center on Budget and Policy Priorities reported on the radically changed economy, in a recession: “Over the past year, millions of families have lost jobs, income, and health insurance as a result of the recession, which formally began in March 2001 and intensified as a result of the events of September 11. . . . The service industry, which employs a high percentage of low-income workers, has been particularly hard-hit by this downturn as compared to past recessions. In January 2002, the employment rate (a broad measure of labor demand) fell to its lowest level since the summer of 1994.” Recent information from the Bureau of Labor Statistics shows that unemployment rose from 3.9 percent to 6.0 percent between October 2000 and April 2003, an increase of 2.8 million people. John Springer and Heidi Goldberg, Center on Budget and Policy Priorities, Relieving the Recession – Nineteen Ways States Can Assist Low-Income Families during the Downturn (Feb. 2002); US Department of Labor, Bureau of Labor Statistics, Department of Labor, Current Employment Statistics Survey (May 2003).

²⁴ Community Service Society, Recession and Reauthorization, The Economic Downturn and Federal Welfare Policy, Data Brief #9, April 2003, <www.cssny.org/reports/databrief/frontb.htm.>.

²⁵ Child poverty, in particular, is extraordinarily high in the US economic context. It "is higher now than in any other Western industrialized nation. A child in the United States is 60% more likely than a British child, and three times more likely than a French or German Child to live in poverty." Arloc Sherman, Children’s Defense Fund, Poverty Matters: The Cost of Child Poverty in America 33 (1997). [hereinafter "Poverty Matters"]. According to the Children’s Defense Fund more than 11 million children lived below the federal poverty line in 2000. The organization states that although the rate of poverty has dropped in recent years, more children are poor today than twenty or thirty years ago. Children’s Defense Fund, Facts and FAQs, (Dec. 2001) <http://www.childrensdefense.org/fairstart-faqs.htm>. Overall, more than 31.1 million people in the United States live below the official poverty line. U.S. Department of Commerce, Press Release, Nation's Household Income Stable in 2000, Poverty Rate Virtually Equals Record Low, Census Bureau Reports, Sept. 25, 2001. <http://www.census.gov/Press-Release/www/2001/cb01-158.html>.

²⁶ Five million families received benefits in 1994, while only approximately three million received them in mid-1998. US General Accounting Office, GAO/HEHS-99-48, Welfare Reform – Information on Former Recipients’ Status (1999). In March 1999, according to data from the US Department of Health and Human Services, the number of recipients dropped 47% from its 1994 peak, and in six states they dropped more than 70%.

²⁷ National Center for Children in Poverty of the Columbia Univ. Joseph L. Mailman School of Public Health, Young Children in Poverty – A Statistical Update 9 (1999).

²⁸ Wendell Primus, et al., Center on Budget and Policy Priorities, The Initial Impacts of Welfare Reform on the Incomes of Single-Mother Families 5 (1999), [hereinafter “Primus, et al.”].

²⁹ In West Virginia, for example, the number of welfare recipients was cut by 68.5 % between January 1997 and June 1999. Yet less than a third of those whose benefits were eliminated left welfare because they had found employment. Even after time had passed, barely half of former recipients were employed. Robert Jay Dilger et al., WV Works Case Closure Study, 17 The W. Va. Public Affairs Reporter, 2-4 (2002).

³⁰ Primus, et al. at VI. The actual decline in the number of families receiving TANF cash benefits began even prior to the enactment of PRWORA because some states, in anticipation of the new federal welfare law, imposed strict work requirements even prior to its passage. The decline was accelerated dramatically, however, upon the enactment of the law.

³¹ “The average disposable income of families in this group increased between 1993 and 1995 [before PRWORA] but declined during the 1995-1997 period.” Primus et al at 9. The group referred to in this study is “the poorest fifth of persons in single-mother families,” which constitute around half of those under the federal poverty line and thus about half of those eligible for TANF benefits. Id.

³² Most of the remainder of those eligible for welfare benefits fall into this category. Id.

³³ According to a Children's Defense Fund study, there has been a sharp increase in extreme child poverty after the drop in TANF caseloads. The study defined extreme poverty as family income below one-half of the federal poverty line, or $6,401 a year for a three-person family. In calculating income, the study included income from tax credits and the value of non-cash benefits such as Food Stamps, a definition broader than what the federal government uses to define poverty. The report found that between 1996 and 1997 the number of children living in extreme poverty as defined above increased by 426,000 (from 2.3 million to 2.7 million). Most of the increase occurred in single parent female-headed households. Arloc Sherman, Children’s Defense Fund, Extreme Child Poverty Rises Sharply in 1997 4 (1999).

³⁴ Average disposable incomes of the poorest 20% of female-headed families (two million families, which include six million people living below 75% of the official poverty line) fell an average of 6.7%, or $580, per family between 1995 and 1999. About $460 of this income loss, or about 80% of it, was due to declines in social welfare programs. During the same period only single-mother families with the highest incomes experienced income increases due to the expanding economy. Primus et al; Pamela Loprest, the Urban Institute, How Families that Left Welfare Are Doing: A National Picture (1999)

³⁵ Children’s Defense Fund, Release “Overall Child Poverty Rate Dropped in 2000 But Poverty Rose for Children in Full-Time Working Families” (September 25, 2001).

³⁶ Federal statistics show that in one three-month period in 1997, 38% of the recipients who left welfare did so because of state sanctions imposed for a variety of infractions that ranged from missing or being late for appointments with caseworkers to allegedly refusing to look for work. Donna Haig Friedman, et al, A Policy Brief: (T) AFDC Case Closing October 1993 – August 1997 (1998); Betty Reid Mandell, Falling Through the Safety Net: Women and Children First (1997) [hereinafter " Falling Through the Safety Net"].

³⁷ Falling Through The Safety Net.

³⁸ Id.

³⁹ Children’s Defense Fund, Welfare to What? How are Children and Families Faring After Three Years of the Welfare Law? (2000).

⁴⁰ Id.

⁴¹ K.B. Miranne and A.H. Young, Women Reading the World: Challenging Welfare Reform in Wisconsin, 25 J. of Sociology and Soc. Welfare 155 (1998) [hereinafter "Women Reading the World"].

⁴² Pamela Loprest, Urban Institute, Families Who Left Welfare: Who Are They and How Are They Doing (1999) [hereinafter "Families Who Left Welfare"].

⁴³ Women Reading the World.

⁴⁴ Economic Policy Institute, The State of Working America, 1998-1999

⁴⁵ Jeremy Rifkin, The End of Work, (1996).

⁴⁶ Families Who Left Welfare at 20.

⁴⁷ Id.

⁴⁸ PRWORA also impacted access to higher education. Since the US enacted PRWORA, there has been a steep drop in college enrollment among welfare recipients. Nationally, in 1995, under Aid to Families with Dependent Children, there were approximately 648,763 receiving benefits enrolled in full-time educational programs. By the 1998-1999 school year, this figure dropped by 47.6% to under 340,000 students. Mark Greenberg et al., Center for Law and Social Policy, How State Welfare Laws Treat Postsecondary Education (1999). See also National Urban League Institute for Opportunity and Equality, Negative Effects of TANF on College Enrollment (2002). (“College enrollment of welfare recipients under AFDC and TANF indicate lower enrollment rates for welfare recipients in the post welfare reform period. For instance, since 1995, enrollment of welfare recipients at the City University of New York decreased from 27,000 in 1995 to 5,000 in 2000 (see Figure 1) a drop of about 81.5 percent. Data from the Urban Institute’s National Survey of America’s Families 1997 and 1999, which is used for this study, reaffirms the trend seen at CUNY. Nationally, welfare recipients are attending college less after the passage of PRWORA.”).

II. THE VICTIMS

Jane Doe is a 27 year old woman with three children, ages three (Doe 1), four (Doe 2) and six (Doe 3).  She is currently in the process of obtaining a divorce and is solely responsible for the welfare of her children.  She has attempted to obtain child support, but despite taking all appropriate steps she is not receiving any such support. 

Ms. Doe received welfare benefits from 1997 to 2001.  She initially applied for and received support because she was the sole provider for her child and was unemployed.  During this 5 year period, however, Ms. Doe also held various jobs.  The welfare program provided reduced cash benefits and a child care stipend during these periods of employment.  Ms. Doe also received, and continues to receive, Food Stamps and Medicaid (public health insurance).  When she lost her TANF benefits (cash benefits and child care stipend) due to the life-time limit enacted in 1996, as detailed below, Ms. Doe’s economic situation significantly worsened, negatively impacting her entire family.  Ms. Doe has made all possible efforts to obtain a stable job, but a range of factors out of her control – including the depressed economy in her part of the country – have made this impossible.  Under welfare law in the United States prior to the 1996 act, Ms. Doe would still be eligible for welfare benefits. 

Ms. Doe is a high school graduate.  She took computer courses while in high school, and the school awarded her a “business administration diploma.”  She obtained a job as soon as she graduated (1995) at Catholic Community Services in Eckman, West Virginia.  She was teaching computer classes and was paid $6.56 an hour.  She became pregnant with her first child during the time she had this employment, but three months before her son was born in October 1996, she was laid off from work because the program ran out of money.

Her first child, Doe 1, was born in 1997, and while she later married the child’s father, at the time she was a single mother.  She lived at her parents’ home in Northfork, West Virginia.  Because she was unemployed and was the sole provider for her infant, she applied for and was awarded welfare benefits at this time.  The state agency that processed her benefits did not require or offer any job training or child care support nor discuss with her how she might be able to re-enter the workforce.

In August of 1998 she had a second child, Doe 2.  At that time she was able to obtain government assistance for housing and moved into her own apartment and out of her increasingly overcrowded parents’ home.  She paid $10 a month for rent, water, garbage and sewage services and was also fully responsible for her electricity and phone bill.  She also married at this time, but the marriage was very brief and divorce proceedings are still pending.   

She was not able to re-enter the workforce until Doe 2 was one year old, when her parents opened up a restaurant in Welch, West Virginia.  Thus, in the fall of 1999 she was able to work in the family business.  At the restaurant Ms. Doe cooked, ran the cash register, cleaned, and took on any other necessary task that presented itself.  Ms. Doe was paid as an employee at the rate of $5.00 an hour, and worked on average between 12-14 hours a day. She took home $400 every two weeks after taxes.  While employed at the restaurant in May of 2000, she had her third child, Doe 3.

While she was working at the restaurant, she was still receiving support from the welfare program.  She received $79 a month, but more importantly she received child care assistance from the welfare program for all her children through an agency called Mountainheart.  She reports that she was very happy with her situation.  The quality of the childcare was high, and she enjoyed and felt satisfied with her job.  The childcare support was a critical factor in allowing her to work at the restaurant as the costs for three children, at minimum, would otherwise have been $300 every two weeks, three-quarters of her take home salary.

In October of 2000, however, the restaurant had to close because it was not making a profit.  She re-applied for and received full welfare benefits at that time.  She received approximately $512 a month in cash benefits as well as $363 in food stamps.

In early 2001, she was again able to re-enter the work force.  She obtained a job as a dispatcher at an emergency phone line (911) and worked the 4:00pm to midnight shift.   Because she worked a later shift, regular childcare was not available.  Both of her parents were working at the time from 8:00am to 2:00pm, and the family only had one car, as Ms. Doe lacked the resources to purchase her own car.  Her parents would come home from work and pick Ms. Doe up to take her to work.  Her parents would then take care of the three children for more than 8 hours at Ms. Doe’s apartment, pick Ms. Doe up at work and take her home, and then drive home themselves.

After seven months in July 2001, the routine was modified because Ms. Doe’s apartment was flooded and condemned, and she had to move back in with her parents.  A federal insurance program compensated Ms. Doe for some of her losses in the flood and gave her a trailer to provide housing for her and her family.  She moved into the trailer in October of 2001.  At this point, her parents - who are around 50 years of age - told her that the grueling schedule was more than they could physically bear.  When her parents informed her they where incapable of continuing this routine, she was forced to quit her job.

In October 2001, she again reapplied for and received full welfare cash benefits.  Unfortunately, the trailer given to her by the government was built for warmer weather and required the use of propane gas to keep warm, which is extremely expensive.  Her gas bills were between $150 and $300 a month in the winter, and the only way to keep it down to $150 a month was to keep the trailer as cold as the family was able to withstand.  Thus, her expenses were unusually high due to this government error.  Additionally, she was informed by the state that she had reached her lifetime limit for welfare support and would receive no additional benefits.  She received her last check in December 2001.  As of January 2002, she is still receiving food stamps ($465 worth of food a month) and Medicaid (public health insurance).  These are her only resources to support her children.

After she was cut off welfare benefits, Ms. Doe had no resources to pay for heat, water, electricity, transportation, clothing, cleaning products, personal hygiene products, educational materials for her children, or any of life’s other necessities except for food.  Her parents, both low wage workers, attempted to pay all her bills and drive her where she needed to go.  At this time her mother worked at a “Help Center” preparing meals for other people in need, and her father had a temporary job working with the flood recovery program.

Ms. Doe was actively seeking work during this period.  She obtained a job for $6 an hour in May 2002 at a “Quickserve” – a convenience store gas station.    She worked from 11:00pm to 7:00 am.  Her mother provided childcare at night, drove Ms. Doe home from work at 7:00 am, and then arrived at her own job, after a 30 minute ride, by 8:00 am.  To make the situation more workable, Ms. Doe’s mother and father began sleeping at the trailer as well.  Despite having to work the night shift, Ms. Doe was happy with the job.  In June, however, her parents again felt they could no longer continue this type of grueling schedule because it was having an impact on their physical health.  Consequently, Ms. Doe was again forced to quit her job. 

As of June 2002, Ms. Doe’s parents began to pay all of the family’s bills again.  Because her father’s temporary job had ended, the entire family relied on Ms. Doe’s mother’s modest income.  They would allow some bills to get delayed in order to pay others in full, and the financial juggling caused tremendous stress.  Eventually, Ms. Doe’s water and electricity were cut-off for non-payment, and she had to move back in with her parents in November of 2002.  She is currently still living with her parents in an overcrowded housing situation.  

During this time, Ms. Doe considered moving away to an area that might afford more job opportunities.  She decided against this for two reasons.  First, separating her children from their grandparents would have a significant emotional impact.  Secondly, if she was unable to support her children after moving away, she would not be able to rely on her parents or access welfare benefits, leaving her children completely without support.  She concluded that the option of re-locating posed too high a risk to the well-being of her children.  

Currently, Ms. Doe is trying to sell her trailer in order to buy a small house that is cheaper to heat.  She is also looking for work. She reported that the worst part of losing welfare support was the anxiety from being unable to pay her bills and properly care for her children when she became unemployed and the guilt for placing such a burden on her parents.  Welfare support had previously given her both psychological and economic security in the process of working towards securing a stable job to support her family. 

Ms. Doe’s children also suffer from asthma and severe allergies.  She is nervous that Medicaid (the public health insurance program) will follow in the footsteps of the welfare program and further jeopardize the well-being of her children.  She reports that the threats to, and the diminishing size of the package of, the remaining entitlements (Food Stamps, Medicaid, and welfare support) she previously considered secure have drastically affected her sense of economic security.

Like the rest of the country, the State of West Virginia is suffering the effects of a recession.  For example, there has been a 16% rise in participation in the food stamp program over the last two years – a prime indicator of rising poverty.⁴⁹  Moreover, the area in which Ms. Doe was born and currently lives is economically devastated.  The town previously had a thriving coal business nearby, and Ms. Doe reports that when she was a child the trains ran through the town constantly.  The town has now been devastated by two recent floods (July 2001 and May 2002), and the coal mines no longer rely on laborers as much as they did in the past due to the mechanization of the industry.  She reports that businesses continue to close in her town.  They still have one supermarket, one pharmacy, and one clothing store left, but no gas station, no appliance store, no movie theatre, no public schools, and no hospital (just a clinic).  The transit system is extremely limited.  Buses run only once an hour or so and stop running after 5:00 p.m.   

Yet Ms. Doe still maintains hope for her economic future and continues to make plans.  She hopes to receive vocational training in cutting and styling hair and open up a small business.  There is a school 1 ½ hours away which offers financial aid, and she and another family member want to attend together.  The modest welfare benefits the state previously afforded not only provided critical support to meet her family’s basic needs, but also played a role in allowing Ms. Doe to focus on creating a secure financial future.   The removal of the benefits affected the entire family’s health and well-being, in addition to creating counter-productive and harmful obstacles to securing a better future. 

As Ms. Doe’s mother stated when interviewed:

They should take care of the kids, - the program is for the kids - they are dwelling on the adults and whether they should or can work, but they forget about the kids. It’s been hard on us because we have to help her – when me and my husband was working, we could afford to keep her in her own place, but on one income we can’t take care of two households. When she tried to work we just couldn’t do it, too exhausting, it was too expensive, gas, car wear and tear. You think you are ok, but your body shuts down on you – when you lay down to go to sleep and you don’t wake up when the clock goes off, you know you are tired.

As noted above, the US government estimates that 231,000 families either are or may soon be in the situation in which Ms. Doe finds herself.  Some face depressed rural economies, others high levels of urban unemployment.  Still others may have to care for sick children or face a host of other obstacles to steady employment.  In each of these cases, however, the families – by definition – are in need of economic support to ensure their well-being.  Consequently, the instability and harms suffered by Ms. Doe and her children are quietly, but horribly, being duplicated all over the United States.

⁴⁹ Food and Nutrition Service, US Department of Agriculture, Program Data http://www.fns.usda.gov/pd/fs_hh_(latest).htm, http://www.fns.usda.gov/pd/fsfyhh.htm

III. PROCEDURAL REQUIREMENTS

A. EXHAUSTION OF LOCAL REMEDIES

Petitioner is exempt from exhausting federal domestic remedies pursuant to art.31, par. 2 of the Rules of Procedure of the Inter-American Commission on Human Rights. Specifically, the “domestic [federal] legislation of the [United States] does not afford due process of law for” the right to preservation of health and well-being or the right to social security.  As in the case of economic and social rights generally, these rights are not recognized under United States federal law.  As a matter of national Constitutional law, “[p]ublic assistance benefits are “a privilege” and not a “right,””  Shapiro v. Thompson, 394 US 618, 627, n.6 (1969).  Thus, limiting the time period that benefits are available “does not implicate a fundamental right” domestically.  Turner v. Glickman, 207 F. 3d 419, 424 (C.A.7, 2000).

Moreover, the United States Constitution imposes no positive obligations on the State to guarantee rights, regardless of their nature – civil, political, economic, social or cultural.  The US Supreme Court has found that the federal Constitution’s Due Process Clause “is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security,” and thus “cannot fairly be extended to impose an affirmative obligation on the State ....”  Deshaney v. Winnebago County Dept. of Social Services, 109 S.Ct. 998, 1000 (1989).  The Supreme Court has also stated that the “Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life . . . .”Id. at 196.  In particular, United States law imposes no governmental duty or obligation to create the conditions necessary to protect social and economic rights.⁵⁰  Consequently, the legislature has full discretion in this arena to limit or eliminate social welfare programs. See Lyng v. UAW, 485 U.S. 360 (1988); Lindsey v. Normet, 405 U.S. 56 (1972); Dandridge v. Williams, 397 U.S. 471 (1970). ⁵¹

Finally, petitioner has exhausted state level domestic remedies.  Petitioner was part of a class of plaintiffs in the case of State of West Virginia Ex. Rel. K.M. A minor child by her mother and next friend et al vs. West Virginia Department of Health and Human Resources et al. 575 S.E. 2^nd 393 (W.Va. 2002), challenging the lifetime limit for welfare benefits under the West Virginia Constitution.  On December 9, 2002, the West Virginia Supreme Court decided that, despite the state Constitution’s mandate to the legislature to provide for the poor, regression in the area of welfare benefits was constitutionally permissible.⁵²

B. TIMELINESS

Petitioner’s domestic remedies were exhausted on December 9, 2002. See supra Sect. III.   Thus, this petition is within the six month time period required by the Rules of Procedure.

C. OTHER INTERNATIONAL PROCEEDINGS

The subject matter of this petition is not pending settlement pursuant to another procedure before an international governmental organization.  Nor does this petition duplicate any petition pending or already examined and settled by the Commission or by another international governmental organization.

⁵⁰ Thus, the United States Supreme Court has found that the government has no obligation to fund abortions or other medical services, Harris v. McRae, 448 U.S. 297, 317-318 (1980), and no obligation to provide adequate housing, Lindsay v. Normet, 405 U.S. 56, 74 (1972).

⁵¹ Nor does US law recognize the principle of indivisibility. Consequently, US law fails to provide a remedy where a failure to protect economic and social rights undermines civil and political rights. See e.g. Lyng v. UAW, 485 U.S. 360 (1988). (upholding 1981 Amendment which precluded households from becoming eligible for food stamps due to a member of the household going on a legally protected strike despite impact on freedom of association); Harris v. McRae,448 U.S. 297 (1980).

⁵² The West Virginia Court opinion did leave open the possibility of recipients applying for a one time six month extension of benefits after the 60 month time limit expired.  The local welfare agency (Department of Health and Human Resources) sent out letters informing recipients that they had 90 days to apply for extensions.  Ms. Doe never received such a letter (in all likelihood the letter was sent to a prior address).  Ms. Doe first became aware of the possibility of the extension in June 2003.  She immediately went to her local welfare office where she was informed that she had “waited too long” and was no longer eligible for the extension.  She explained repeatedly that she never received the letter, but the caseworkers stated that despite her not receiving the letter, she was no longer eligible. 

IV. US HUMAN RIGHTS OBLIGATIONS UNDER INTER-AMERICAN LAW

A. THE COMMISSION HAS JURISDICTION OVER THE UNITED STATES FOR VIOLATIONS OF THE AMERICAN DECLARATION

By becoming a member of the OAS through ratification of the OAS Charter, the US government has accepted the competence and authority of the Commission to hear petitions regarding violations of the human rights protected by the American Declaration.⁵³  The Statute of the Commission⁵⁴ - as well as rulings by the Inter-American Court on Human Rights⁵⁵ - make clear that where a member state of the OAS has not ratified the American Convention on Human Rights, it is the rights set forth in the American Declaration that constitute that member’s regional human rights obligations.⁵⁶

Additionally, the Regulations of the Inter-American Commission state that "[t]he Commission shall receive and examine any petition that contains a denunciation of alleged violations of the human rights set forth in the American Declaration of the Rights and Duties of Man, concerning the member states of the Organization that are not parties to the American Convention on Human Rights."⁵⁷ Indeed, the Commission has repeatedly found it has jurisdiction over the United States for violations of the American Declaration.⁵⁸

B. THE AMERICAN DECLARATION REQUIRES THE PROGRESSIVE IMPLEMENTATION OF ECONOMIC AND SOCIAL RIGHTS

The OAS Charter commits member States to “equality of opportunity, the elimination of extreme poverty, [and] equitable distribution of wealth and income, and the full participation in decisions relating to their own development ….⁵⁹  The OAS Charter also commits member States “to dedicate every effort to … the principle” that “all human beings, without distinction as to race, sex, nationality, creed or social condition, have a right to material well-being . . .  and economic security.”  It also commits member states to the “development of an efficient social security policy . . . ."⁶⁰

The American Declaration further reaffirms these rights and “is the text that defines the human rights referred to in the Charter."⁶¹

The American Declaration specifically provides protection for the following rights relevant to this petition:

Art. II:  All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

Art VI: Every person has the right to establish a family, the basic element of society, and to receive protection therefore. 

Art XVI: Every person has the right to social security which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his [or her] control that make it physically or mentally impossible for him to earn a living.

Moreover, the Commission has recognized the relevance of both other regional documents, and international covenants and declarations to its jurisprudence regarding the American Declaration.  See infra.  Of particular note, the right to social security is also protected by the Universal Declaration of Human Rights (art. 22), the International Covenant on Economic, Social and Cultural Rights (art.9), and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador) (art.9).

Similarly, the right to protection of family is guaranteed by other instruments, including the Universal Declaration of Human Rights (art. 16), the International Coveneant on Economic, Social and Cultural Rights (art. 10), the American Convention on Human Rights (art. 17), and the Protocol of San Salvador (art. 15).  Finally, the right to equality before the law is protected by every major human rights instrument in both the OAS and United Nations systems of human rights. 

The Commission has addressed the binding character and justiciability of economic and social rights in Chapter V of its 1993 Annual Report.⁶²  The report makes clear the following key points:  1) Governments are obligated to take steps towards progressively realizing economic, social and cultural rights; 2) Governments have an immediate obligation to guarantee a minimum threshold for these rights; and 3) Governments have an immediate obligation to protect these rights without discrimination.

Like the core rights at issue here, these fundamental principals are found in all major regional human rights instruments, as well as international instruments.⁶³ As the Inter-American Court has noted:

The universality of the rights and freedoms which are entitled to protection form the core of all international protective systems. In this context, it would be improper to make distinctions based on the regional or non-regional character of the obligations assumed by States, and thus deny the existence of the common core of basic human rights standards.⁶⁴

On this basis, the Commission may draw from the range of jurisprudence on social and economic rights to adopt principles of justiciability.⁶⁵  In particular, the jurisprudence of the International Covenant on Economic, Social and Cultural Rights ("ICESCR "), General Comments of the Committee on Economic Social and Cultural Rights ("ICESCR Committee"), the Limburgh Principles, and the Maastricht Guidelines are all highly relevant.  Indeed, the principles articulated in the Commission’s 1993 report closely parallel this jurisprudence and form the most appropriate starting point for determining the applicability of the standards to the case at bar.

1. Obligation Regarding Progressive Realization of Economic and Social Rights

Practically every regional and international instrument regarding the implementation of economic and social rights has adopted the principle of progressive realization, including the Commission’s Annual Reports, the American Convention (art. 26), and the ICESCR.  International law experts have also universally endorsed this juridical approach.  See, Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights;⁶⁶ Maastricht Guidelines.⁶⁷

“The rationale behind the principle of progressive rights is that governments are under the obligation to ensure conditions that, according to the state's material resources, will advance gradually and consistently toward the fullest achievement of these rights."⁶⁸Despite the progressive nature of economic social and cultural rights, and of the programmatic obligations that arise from these norms, [however], there are very clear obligations, which are imposed immediately by these sets of rights. ⁶⁹ In particular, a State must take concrete steps towards fulfilling these rights.  

This obligation to adopt steps immediately also necessarily implies the duty of the State not to adopt any deliberately retrogressive measures. Indeed, “any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the [protected] rights … and in the context of the full use of the maximum available resources”⁷⁰

The Maastricht Guidelines on violations of Economic, Social, and Cultural Rights, list the following as regressive actions, inter alia, as examples of violations:

• The formal removal or suspension of legislation necessary for the continued enjoyment of an economic, social and cultural right that is currently enjoyed…;
• The adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the realization of economic, social and cultural rights for the most vulnerable groups;
• The reduction or diversion of specific public expenditure, when such reduction or diversion results in the non-enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence rights for everyone;
• The adoption of any deliberately retrogressive measure that reduces the extent to which any such right is guaranteed; and
• The calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant, unless the State is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure.

2. Obligation Regarding Minimum Core Content of Economic and Social Rights

The Commission has found that “the obligation of member states to observe and defend the human rights of individuals within their jurisdictions, as set forth in  

The UN Committee on Economic, Social and Cultural Rights provides the following relevant guidance:

The Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être.⁷³

Moreover, States must provide this minimum core content without regards to the available resources or other factors.⁷⁴

3.  Obligation Regarding Non-Discrimination

The duty to respect and fulfill economic and social rights without discrimination is the third immediately applicable obligation under human rights instruments. The principle of non-discrimination has been recognized in all major human rights instruments including the American Declaration, the American Convention on Human Rights and the International Covenant on Civil and Political Rights, as well as in the resolutions and precedents of human rights bodies, including the Commission and the Inter-American Court.⁷⁵

The OAS Charter specifically states that "[a]ll human beings, without distinction as to race, sex, nationality, creed or social condition, have a right to material well-being and to their spiritual development, under circumstances of liberty, dignity, equality of opportunity and economic security.”⁷⁶  The American Declaration not only requires that the government ensure there is no distinction on the basis of “race, sex, language, [and] creed...,” Declaration at art. II, in relation to the rights protected, but it also prohibits such a distinction based on “any other factor.”  In this regard, the Commission has commented on article 24 of the American Convention on Human Rights, which is substantially identical to Article II of the Declaration.  The Commission notes that not all distinctions in treatment are discriminatory, and states that:

(…) there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review.  These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind.⁷⁷

But the Commission has determined that a distinction is prohibited if:

a) The treatment in analogous or similar situations is different

b) The difference has no objective and reasonable justification

c) The means employed are not reasonably proportional to the aim being sought.⁷⁸

V. PRWORA'S LIFETIME LIMIT ON BENEFITS VIOLATES THE VICTIM'S RIGHTS UNDER THE AMERICAN DECLARATION

The lifetime limit on TANF benefits violates Ms. Doe’s human rights, in particular the rights protected by art. XVI, art. VI and art. II of the American Declaration.  Approximately, 231,000 families who have reached their lifetime limit and would otherwise be eligible for TANF benefits are victims of these violations.  

A. ARTICLE XVI (RIGHT TO SOCIAL SECURITY)

Article XVI of the Declaration states that:

Every person has the right to social security which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living.

Consistent with the requirements of the Declaration, TANF benefits are specifically designed to “protect [families with children] from the consequences of unemployment   Prior to the changes in the program in 1996, the government offered such protection universally and indefinitely to all families in need.  Currently, however, the government only offers such protection for a limited time and with many conditions attached. See supra. Nonetheless, the welfare program remains one of the primary vehicles through which the United States protects the right to social security for poor families. 

Ms. Doe clearly meets the criteria laid out by the American Declaration, as forces beyond her control, including the lack of jobs in her town, the cost of child care relative to her earning power, and her scarce transportation options which severely limit her capacity to work, all combine to keep her from supporting her family adequately.⁸⁰  Indeed, Ms. Doe has consistently and continuously made all efforts to seek work that would support her family and ensure the well-being of her children.  She has only been able to find low-wage jobs that do not provide enough income to pay for transportation in a rural environment, and that provide little, if any, job security or benefits.⁸¹  Yet, despite Ms. Doe’s obvious need – in order to achieve a minimal level of social security -- for the cash benefits provided by the program, the 1996 Act excludes her participation based on a wholly arbitrary factor – the date upon which she began receiving benefits. 

The United States afforded Ms. Doe and women in her situation these benefits as an entitlement without time limits prior to 1996.  As the Maastricht Guidelines state any “[f]ormal removal or suspension of legislation necessary for the continued enjoyment of an economic, social and cultural right that is currently enjoyed. . .” is prohibited.  Ms. Doe enjoyed a minimal measure of social security when she had the TANF benefits to depend on during periods of unemployment.  The 1996 act represents the “removal” of that minimal guarantee, which in her particular circumstance – i.e. living in a town recently affected by natural disasters and plagued by high employment – is necessary for her continued enjoyment of “social security.” 

The lifetime limit in the 1996 act also represents “[t]he reduction . . . of specific public expenditures… result[ing] in the non-enjoyment of such rights. . .,” which also is clearly prohibited under the Maastricht Guidelines.  The government simply no longer expends welfare funds on families who need welfare beyond 60 months, even where the result is, as in Ms. Doe’s case, “the non-enjoyment” of the right to social security. The lifetime limit is a prohibited “deliberative retrogressive measure that reduces the extent to which … [the] right [to social security] is guaranteed.⁸²

As the UN Committee on Economic Social, and Cultural Rights has noted, “any deliberatively retrogressive measures  

The Commission has also recognized that “the principle of progressivity demands that as the level of development in a country improves, so must its level of commitment to guaranteeing economic, social and cultural rights.”⁸⁵  The United States is the wealthiest country in the world in aggregate terms, and even during economic recessions, there are high levels of resources available for these programs.  Indeed, the entire welfare program represents less than 1% of the national budget.⁸⁶  Consequently, the limitation and the resulting rights violation are merely punitive of poor women and their children. Thus, Ms. Doe’s current exclusion from the TANF program, as well as the potential exclusion of the approximately 231,000 families in her situation, constitutes a violation of the right to social security as it is a clear regression in the protection of this right.

B. ARTICLE VI (RIGHT TO PROTECTION OF FAMILY)

Article VI of the Declaration states that:

Every person has the right to establish a family, the basic element of society, and to receive protection therefore. 

As discussed above, the lifetime limit imposed by the 1996 Act constitutes an unjustified regression in protection of the right to social security.  For similar reasons, it also constitutes an unjustified regression with regards to the right to protection of family.  The lifetime limit undermines the right to protection of family because modest cash benefits often make the difference between survival and some level of thriving for children.  As Ms. Doe’s situation makes clear, only with the support provided by the cash benefits is Ms. Doe able to buy anything for her children over and above food.  Her parents are, at best, then able to provide overcrowded housing and transportation.  Even collectively, however, the family is unable to provide the children with books, toys to stimulate development, or adequate and comfortable clothing.  There is no library in Ms. Doe’s town, and there is only one park of fairly low quality – so there is little access to public goods and services that might compensate for the lack of money to spend on the children’s needs.  In their economic circumstances, TANF benefits were an important factor in protection of family, particularly of the children’s well-being. 

C. ARTICLE II (RIGHT TO EQUALITY BEFORE THE LAW)

Article II of the Declaration States that:

All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

The lifetime limit creates an arbitrary distinction between families who need welfare support for less than sixty months and families who need welfare support for more than sixty months.  Families in the former category receive support for the entire time they face the need for it, families in the latter category do not.  Distinctions regarding social and economic rights must be “based on substantial factual differences and there [must] exist a reasonable relationship of proportionality between these differences and the aims of the legal rule under review.”  See supra sect. IV (B)(3).  Additionally, “these aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind.  Id. If the distinction does not meet these criteria, it is a prohibited distinction under the Declaration and a violation of article II. 

Both categories of families – those who reach their lifetime limit and those that do not  – are equally needy and equally at risk of being unable to exercise their right to social security, work, and protection of family during periods of unemployment.  The factual differences are not substantial.  Moreover, the impact of the distinction is wholly disproportionate, and in fact in contradiction with, the aims purportedly served.  The stated aim of the 1996 act was to promote economic independence.  Eliminating support even when a recipient cannot find work in no way furthers this aim, and in fact, undermines it. Thus, because the law treats very similar families differently without a reasonable justification, and employs means  (imposing economic deprivation on poor women and children) that are not reasonably proportional to (and even undermine) promoting economic independence such a distinction is a violation of article II of the Declaration. 

⁸⁰ See supra sect. II.

⁸¹ Id.

⁸² Maastricht Guidelines at II, 14, e.

⁸⁵1993 Annual Report at par. 21, at cht. V. pt. II., “In theory, the more resources a state has, the greater its ability to provide services that guarantee economic, social and cultural rights. This idea is affirmed in article 32 of the OAS Charter which describes development as the "primary responsibility of each country and should constitute an integral and continuous process for the establishment of a more just economic and social order..." (emphasis supplied). …The commitment of states to take steps with the aim to achieving progressively the full realization of economic, social and cultural rights requires an effective use of resources available to guarantee a minimum standard of living for all.”  The Situation of ESCR in the Region.

⁸⁶ Budget of the United States Government, Fiscal Year 2003 395,412; see also Budget Committee Briefing Book on President’s Budget 63 (2003).

VI. THE VICTIM IS ENTITLED TO DECLARTORY RELIEF AND COMPENSATION

In light of clear violations under the American Declaration, Ms. Doe and her children are entitled to participate in the welfare program and receive compensation for the harm they have suffered.  Because of the economic downturn in the U.S., it is imperative that there be a safety net in place. The current block-granting of funds from the U.S. federal government to the states is not sufficient for states to provide relief to the poor. Thousands of families have reached time limits on TANF and have been unable to find self-sufficiency for their families through employment or other means. These families are not all to blame. When there are no jobs to be had, there are simply no jobs to be had. The states, in particular West Virginia, have tried to accommodate the funding restraints that the federal government has placed upon them. However, the current means of block-granting TANF and possible future means of block-granting Medicaid puts the poor of every state at risk.

The American Declaration promises a life of dignity. Families in West Virginia and other states are unable to even pay their bills without TANF, much less live a dignified life. The U.S. Government recently passed a huge tax cut for the wealthy. The government’s stated reasoning is that this will trickle down to the underclass and create jobs. Trickle-down economics has never been demonstrated to work. Instead of cutting taxes, the United States needs to realize its obligation to ensure fundamental economic and social rights for all of the nation's people, not just those with significant private resources.

It is imperative that the United States, as well as other countries, take progressive measures to lessen the gap between the haves and the have-nots. This is a necessity for the U.S. to continue to be the world role model that it has always been. The United States needs to be held to a higher standard of human rights than is currently the case. Human rights in the U.S. must extend to the everyday people – whether they are working low-wage jobs or unable to find jobs at all. Petitioners request that this Commission restore their dignity to them as a human right. Not because they need it, but because the U.S.  – like every member country of the OAS and United Nations – is bound to progressively realize the economic and social rights of every person within its borders.

Attorneys for Petitioners name of individual Center for Economic and Social Rights 162 Montague, 2nd Fl Brooklyn, New York 11201 name of individual Center for Constitutional Rights 666 Broadway, 6th Fl. New York, NY  10012 name of individual Int’l Women’s Human Rights Law Clinic 65-21 Main St Flushing, NY 11367

Petitioners name of individual Economic Human Rights Campaign of West Virginia 6 Altamont Avenue St. Albans, West Virginia 25177 name of individual Poor People’s Economic Human Rights Campaign POB 50678 Philadelphia, PA  19132