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Domestic Remedies are Unavailable

  1. Domestic remedies must be exhausted prior to filing claims in the Inter-American Commission, however, that requirement does not apply when no remedy is available. Exhaustion is satisfied by article 37 of the Regulations of the Inter-American Commission on Human Rights because US law "does not afford due process of law for protection of [the economic and social] rights that have allegedly been violated." Inter-Am. C.H.R. Regulations, supra par. 13, at art. 37. Challenges, constitutional as well as statutory, to the Personal Responsibility and Work Opportunity Act of 1996, PRWORA, and Temporary Assistance for Needy Families, TANF, in the courts of the United States would be futile thus exhaustion of domestic remedies requirement does not obstruct this claim in the Inter-American Commission.
  1. Courts of the United States have recognized this exception in their interpretation of international law. The general rule regarding exhaustion, as recognized by courts of the United States, is that a claimant must have first pursued and exhausted domestic remedies that allegedly have caused the injury, Greenpeace, Inc. (USA) v. State of France, 946 F.Supp. 773, 783 (C.D.Cal.1996) (citing Interhandel (Switz. V. U.S.) 1959 I.C.J. 6, 26-27, 1959 WL 2 (1959)); however, “[t]he requirement of exhaustion…does not apply when such a remedy is clearly inadequate or ‘when the claim is for an injury for which the respondent state firmly denies responsibility.’” Millicom International Cellular, S.A. et al. v. Republic of Costa Rica et al., 995 F.Supp. 14, 23 (1998) (citing Mckesson Corp. v. Islamic Republic of Iran, 1997 WL 361177, at 15 n. 25 (D.D.C. June 23, 1997) (quoting Restatement (Third) of the Foreign Relation Law of the United States § 713 cmt. f)
  2. The US legal system does not recognize any remedy for deprivation of a poor persons right or entitlement to basic needs under recent Congressional legislation guaranteeing either economic or social rights enumerated under international law through the OAS Charter, the American Declaration, the American Convention or the Protocol of San Salvador.1 
  3. The Personal Responsibility and Work Opportunity Act of 1996 and the subsequent federal regulations under Temporary Assistance to Needy Families is consistent with US constitutional requirements: There is no right to welfare in the United States including, generally, no positive obligations by the State, nor are there guaranteed economic or social rights; the U.S. does not recognize the concept of indivisibility nor does the US provide the means of effectuating civil and political rights when denied because of a person’s indigent status (i.e. the state is not required to provide funds to allow for free expression); welfare had received a modicum of protection as an entitlement under AFDC but welfare is no longer an entitlement under PRWORA; under Supreme Court case law regarding Equal Protection challenges based in the Fourteenth amendment the poor are not considered a suspect class, therefore legislation passed which discriminates against the poor receives deferential review and will almost always sustain a constitutional challenge; and even when a protected class, such as race or sex, is harmed by the disproportionate impact of facially neutral legislation the law will stand absent intent to bring harm to the class protected; lastly legislation thus far has been upheld against constitutional challenges.  Despite the futility of any legal challenges to PRWORA and TANF many of the attorneys for public assistance recipients are barred, as Legal Services attorneys, from challenging welfare laws due to conditions placed on Legal Services Corporation’s source of funding therefore many welfare recipients have no access to attorneys able to challenge the existing welfare law and therefore have no access to remedies because of this structural impediment.  
  4. Under the old system of welfare, administered through federal Aid To Families with Dependent Children, AFDC, public assistance had attained entitlement status but was never conferred as a right. King v. Smith, 392 U.S. 309, 325-27 (1968) (establishing entitlement status of federal AFDC benefits and limiting state authority to deny assistance).
    1. Under U.S. law the United States Supreme Court has found that, as a general matter, the US government has no affirmative constitutional obligations holding, “the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” The obligation of the State stretches only so far as to avoid affirmatively injuring a citizen’s life, liberty or property with no obligation to provide protection, adequate housing, medical, or basic subsistence needs thereby placing positive rights outside the scope of the constitution.  DeShaney v. Winnebago Co. Dep't. of Soc. Serv., 489 U.S. 189 (1989). The US Supreme Court rejected guarantees to “necessities of life” ensuring basic minimum entitlements or status of such “necessities” as “fundamental interests” of the individual. See Harris v. McRae, 448 U.S. 297, 318 & n.20 (1980) (finding no right to government assistance to facilitate the reproductive choices of indigent women even when dangerous to the health of the mother, supporting the negative right concept only to be free of government interference and not to receive funds or services); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (rejecting a federal constitutional guarantee of minimum shelter); Dandridge v. Williams, 397 U.S.471, 485 (1970) (refusing to recognize a right to a minimum level of public welfare assistance, according to actual need, under the Fourteenth Amendment because it lay in the area of “economics and social welfare”).  
    2. In particular, the US has no duty or obligation to create the conditions necessary to protect social and economic rights. Harris v. Mcrae 448 U.S. 297 (1980). The Supreme Court in regard to social and economic legislation stated, “[T]he Equal Protection Clause allows the States wide latitude…and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” City of Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
    3. Neither does US law recognize the principle of indivisibility. Consequently, US law fails to provide a remedy where a failure to ensure social and economic rights erodes a citizens capacity to access 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) (refusing assistance to an indigent woman who could not access her right to an abortion).
  5. Although welfare was not considered a right or “fundamental interest” under Supreme Court case law, prior to the enactment of PRWORA, it did become a legal entitlement under AFDC; this assured assistance based on need and as such afforded some protection. See, e.g., King v. Smith, 392 U.S. 309, 325-27 (1968) (establishing entitlement status of federal Aid to Families with Dependent Children benefits and limiting state authority to deny assistance).  Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (holding that due process protections attach to welfare benefits); Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (holding that states may not withhold welfare benefits in ways that “penalize” the exercise of constitutional rights).2 In Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, (1969) (rejecting the argument that welfare was a privilege not a right under AFDC) the court recognized the significance of entitlements and listed other similar entitlements stating, “Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), or to denial of a tax exemption, Spieser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2L.Ed.2d 1460 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). The “relevant constitutional restraints” afforded to welfare, as an entitlement, under the Procedural due process clause, is the guarantee of evidentiary hearings before the termination of benefits.3 Procedural due process is triggered when an individualized determination regarding an individual’s continued participation in a program is in question. In other words, when an act requires that each participant be subjectively evaluated the need for procedural due process through a “fair hearing” is required before a person can be removed from the program to which there is an entitlement. But the passage of PRWORA removed welfare as an entitlement thus eliminating any federal safety net for indigent families and their children. Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193 110 Stat. 2105 (codified at 42 U.S.C. §§ 601-1788 (Supp. V 1999)) (eliminating the federal statutory entitlement to welfare created when the AFDC program was enacted on Aug. 14, 1935)).  
  6. Challenging the changes made to welfare by the PRWORA would not be made under a Procedural Due Process claim; instead challenges to the categorical changes in welfare, that will prevent groups of people categorically ineligible from ever receiving public assistance4, falls under a Substantive Due Process argument. When AFDC was replaced by PRWORA and TANF categorical eligibility requirements were altered in three significant respects. First, assistance is denied to entire groups of people regardless of need. For example, TANF denies assistance to all: immigrants who arrived in the U.S. after August 22, 1996; convicted drug felons; and adults who remain on TANF for a period 5-years.5  The second major difference between AFDC and TANF is that the Social Security Act establishing the AFDC program was a program based on need whereby public assistance was unlimited and would be provided so long as an applicant demonstrated the level of need required. Social Security Act of 1935 49 Stat. 620 as amended 42 U.S.C. §§ 301 – 1394. TANF however, is a bloc grant scheme in which a limited set of funds are available and when that money is spent no one, despite the level of need, is able to receive benefits exceeding the grant thereby effectively eliminating welfare as an entitlement.6 (CITE) Lastly, under AFDC the categorical eligibility requirements determined assistance based on the needs of the “dependant child.”7  Instead under PRWORA it is the parent, not the child, who must meet the eligibility requirements. Substantive Due Process challenges apply when challenging categorical definitions, like the ones mentioned above, establishing the eligibility requirements for potential participants in a program. A Substantive Due Process challenge of the PRWORA/TANF legislation would prove futile because U.S. case law has denied basic “necessities” of life status as a “fundamental interest.” “Fundamental interests” that receive heightened scrutiny typically include protection of the traditional marriage, child-bearing, and child-rearing. Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942); Pierce v. Society of Sisters, 268 U.S. 510 (1925). See Also Shapiro v. Thompson, 394 U.S. 618, 638 (1969) (invalidating the residency requirement for welfare benefits because it interfered with the fundamental right of interstate travel); Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 667 (1966) (striking down poll tax that interfered with fundamental right to vote). When a “fundamental interest” exists any legislation infringing on the interest is given heightened scrutiny under judicial review, requiring that the enacted legislation state a compelling interest to a legitimate state objective and that the means of achieving that objective be tailored by the least burdensome means possible.  This high standard of review results in near absolute defeat under the scrutiny; however, if there is no “fundamental interest” the Court applies weak deferential “rational basis” review, “legislative classifications are valid unless they bear no rational relationship to the State’s objectives.” Legislation receiving deferential review almost invariably stands against the challenge.  Thus, denying “fundamental interest” status to issues of economic need ensures the survival of PRWORA and TANF legislation under constitutional challenges based in the Due Process clause of the Fifth Amendment.  Because welfare is not a “fundamental interest” the Court will not overturn PRWORA under a Substantive Due Process claim therefore the Due Process clause of the Fifth amendment provides claimants with no remedy. 
  7. Equal Protection challenges, like Due Process challenges for “fundamental interests,” under the Fourteenth Amendment receive varying levels of scrutiny according to the protected status of a class. Heightened scrutiny is not only applied to legislation when a “fundamental interest” is challenged under the Due Process clause of the Fourteenth amendment but legislation can also receive heightened scrutiny when a suspect class is threatened under the Equal Protection clause of the Fourteenth amendment. Only classifications based on race and a few other suspect characteristics are subject to varying degrees of heightened review and as such are almost always invalidated. Conversely, classifications not drawn on a “suspect basis” are subject to deferential or “rational basis” review and are almost always upheld.  The poor, according to Supreme Court case law, do not constitute a suspect class therefore judicial scrutiny of the statute will only receive weak “rational basis” review. Lyng v. UAW, 485 U.S. 360 (1988); Lindsey v. Normet, 405 U.S. 56 (1972); Dandridge v. Williams, 397 U.S. 471 (1970). San Antonio Indep. Sch. Dist. V. Rodriguez, 411 U.S. 1, 55 (1973) (the Court denied residents of poor districts suspect class status where the system of financing public education was based on property taxes resulting in a grossly inequitable education).  In applying deferential review of “rational basis” the Court found the State’s objective of encouragement of employment by prohibiting payments that could compare favorably with employment  a rational relation to deny more aid to families with more children based on need as a legitimate state objective. Dandridge v. Williams, 397 U.S. 471 (1970). To survive an equal protection attack, the different treatment of the two classes must be justified by a relevant difference between them.
  8. The Supreme Court’s general equal protection rule is: “Legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
  9. Even when a suspect class, such as race or sex,  is harmed by the disproportionate impact of a facially neutral statute no constitutional violation has occurred absent the specific intent to harm the class afforded protection. US law does not protect against PRWORA's systematic discrimination against and harmful impact on children, women, and racial minorities, as mentioned above the US Constitution only protects against intentional or invidious discrimination and not legislation that may have a disproportionate impact on a protected group, even when based on sex or race. Personnel Admin'r of Mass. v. Feeny, 442 U.S. 256 (1979); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977); Washington v .Davis, 426 U.S. 229  (1976).
  10. Absent successful constitutional claims 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).
  11. Also many of the lawyers who represent people on welfare are barred from challenging welfare laws. See Legal Servs. Corp. v. Velazquez, 121 S. Ct. 1043, 1046 (2001) (“[The restriction] prohibits legal representation funded by recipients of LSC moneys if the representation involves an effort to amend or otherwise challenge existing welfare law.) See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 § 504(a) (1996) (barring attorneys employed by a law office that receives any federal Legal Services Corporation, LSC, funds from engaging in legislative advocacy, administrative advocacy or organizing, or facilitating or encouraging client participation in those activities).
  12. Constitutional challenges of PRWORA and TANF legislation against welfare recipients has been upheld. See Costello, 273 N.J. Super at 540, 642 A.2d at 1036(App. Div. 1994) (“Placing workfare within this exclusion from the definition of employment is rationally related to the State’s legitimate interest in creating and preserving a[n unemployment] fund, financed by employer and employee contributions…”); Brukman v. Giuliani, 678 N.Y.S.2d 45, (App. Div. 1998) (“There is a rational distinction between qualifying public employees selected from civil service lists or by provisional hiring, and WEP participants selected solely, and temporarily, to help them enter the workplace.”). Most equal protection challenges to welfare legislation have failed because courts have only applied the deferential review of rational basis. Costello v. Board. of Review, Dep’t of Labor, 273 N.J. Super. 536, 540-41, 642 A.2d 1034, 1036.
  13. Because challenges within the courts of the U.S. would prove futile claimants need not exhaust domestic remedies. According to US law welfare recipients in the United States may be discriminated against on the basis of economic status and may be forced to work for such basic necessities shelter and food which are commonly understood as economic and social rights. Constitutional challenges will therefore not provide a remedy.

1 The United States, unlike other advanced industrial nations, has never recognized an unconditional entitlement to basic subsistence benefits as a matter of right or need. See Handler, supra note 28, at 967 (‘In Europe citizenship included a universal right to a real income not proportionate to the market value of the claimant…[In the United States, the effort to] creat[e] entitlement-based social rights for the poor in the form of a decent income maintenance system…[has] stalled.’). Instead, a patchwork of categorical welfare programs coexisted uneasily within a framework that based assistance on a number of conditions aimed at identifying the so-called “deserving” poor who for reasons of disability or other ‘worthy’ characteristics, would be excused for their inability to support themselves.” See Joel F. Handler, The Transformation of Aid to Families with Dependent Children: The Family Support Act in Historical Context, 16 N.Y.U. REV. L. & SOC. CHANGE 457, 459 (1987-88) (describing segmentation of social welfare programs in the United States). CITING Article by Professor Stephen Loffredo of CUNY School of Law.

2 In Goldberg v. Kelly, 397 U.S. 254, 90 SCt. 1011, 1017 (1970), Justice Brennan writing for the majority described the legal significance of an entitlement in footnote 8, saying, welfare entitlements were “more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property…The automobile dealer has his franchise, the doctor and lawyer their professional licenses…all are devices to aid security and independence. Many of the most important of these entitlements now flow from government…Such sources of security, whether private or public, are no long regarded as luxuries or gratuities; to the recipients they are essentials’” [Justice Brennan quoting] Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965) [and referring to] Reich, The New Property, 73 Yale L.J. 733 (1964).

3 The rights associated with an evidentiary hearing include the right to be heard, certain notice requirements, the right to confront and cross-examine adverse witnesses, and to appear with counsel. Goldberg v. Kelly.

4 Denial of public assistance at the application stage does not afford an individual an opportunity to have a fair hearing.

5 Some states have shorter yearly limitations for receipt of benefits such as Utah where after 2-years, cumulatively, spent on welfare an individual is kicked off and is barred from receiving benefits for the rest of their life.

6 Due to a rising economy and lowering unemployment until the last 6 months, the bloc grant program did not pose a significant threat but in wake of the recent economic downturn compounded by the vents of September 11, 2001 the bloc grant programs limits will likely be felt next fiscal year.

7 Defined in sec. 406 of the ACT, 49 Stat. 629, as amended, 42 U.S.C. s606(a) (1964 ed., Supp. II), as an age-qualified [(under the age of 18, or 21 and a student)] ‘needy child’ who has been deprived of parental support or care by reason of the death, continued absence from the home or physical or mental incapacity of a parent, and who is living with ‘any one of several listed relatives….The States are also permitted to consider as dependent children needy children who have an unemployed parent.” King v. Smith interpreting and qouting AFDC.

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