New York's Aid to Families with Dependent Children (AFDC)
program, stressing "close contact" with beneficiaries, requires
home visits by caseworkers as a condition for assistance
"in order that any treatment or service tending to restore
[beneficiaries] to a condition of self-support and to relieve their
distress may be rendered and . . . that assistance or care may be
given only in such amount and as long as necessary."
Visitation with a beneficiary, who is the primary source of
information to welfare authorities as to eligibility for
assistance, is not permitted outside working hours, and forcible
entry and snooping are prohibited. Appellee, a beneficiary under
the AFDC program, after receiving several days' advance notice,
refused to permit a caseworker to visit her home, and, following a
hearing and advice that assistance would consequently be
terminated, brought this suit for injunctive and declaratory
relief, contending that a home visitation is a search and, when not
consented to or supported by a warrant based on probable cause,
would violate her Fourth and Fourteenth Amendment rights. The
District Court upheld appellee's constitutional claim.
Held: The home visitation provided for by New York law
in connection with the AFDC program is a reasonable administrative
tool, and does not violate any right guaranteed by the Fourth and
Fourteenth Amendments. Pp.
400 U. S. 315-326.
(a) Home visitation, which is not forced or compelled, is not a
search in the traditional criminal law context of the Fourth
Amendment. Pp.
400 U. S.
317-318.
(b) Even assuming that the home visit has some of the
characteristics of a traditional search, New York's program is
reasonable, as it serves the paramount needs of the dependent
child; enables the State to determine that the intended objects of
its assistance benefit from its aid and that state funds are being
properly used; helps attain parallel federal relief objectives;
stresses privacy by not unnecessarily intruding on the
beneficiary's rights in her home; provides essential information
not obtainable through secondary sources; is conducted, not by a
law enforcement
Page 400 U. S. 310
officer, but by a caseworker; is not a criminal investigation;
and (unlike the warrant procedure, which necessarily implies
criminal conduct) comports with the objectives of welfare
administration. Pp.
400 U. S.
318-324.
(c) The consequence of refusal to permit home visitation, which
does not involve a search for violations, is not a criminal
prosecution but the termination of relief benefits.
Camara v.
Municipal Court, 387 U. S. 523;
See v. City of Seattle, 387 U. S. 541,
distinguished. Pp.
400 U. S.
324-325.
303 F.
Supp. 935, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACK, HARLAN, and STEWART, JJ., and WHITE, J.
(except for Part IV) joined. DOUGLAS, J., filed a dissenting
opinion,
post, p.
400 U. S. 326. MARSHALL, J., filed a dissenting opinion,
in which BRENNAN, J., joined,
post, p.
400 U. S.
338.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This appeal presents the issue whether a beneficiary of the
program for Aid to Families with Dependent Children (AFDC)
[
Footnote 1] may refuse a home
visit by the caseworker without risking the termination of
benefits.
Page 400 U. S. 311
The New York State and City social services commissioners appeal
from a judgment and decree of a divided three-judge District Court
holding invalid and unconstitutional in application § 134 of the
New York Social Services Law, [
Footnote 2] § 175 of the New York Policies Governing
Page 400 U. S. 312
the Administration of Public Assistance, [
Footnote 3] and §§ 351.10 and 351.21 of Title 18
of the New York Code of Rules and Regulations, [
Footnote 4] and granting injunctive relief.
James v. Goldberg, 303 F.
Supp. 935 (SDNY 1969). This Court noted probable jurisdiction
but, by a divided vote, denied a requested stay. 397 U.S. 904.
The District Court majority held that a mother receiving AFDC
relief may refuse, without forfeiting her right to that relief, the
periodic home visit which the cited New York statutes and
regulations prescribe as a condition for the continuance of
assistance under the program. The beneficiary's thesis, and that of
the District
Page 400 U. S. 313
Court majority, is that home visitation is a search and, when
not consented to or when not supported by a warrant based on
probable cause, violates the beneficiary's Fourth and Fourteenth
Amendment rights.
Judge McLean, in dissent, thought it unrealistic to regard the
home visit as a search; felt that the requirement of a search
warrant to issue only upon a showing of probable cause would make
the AFDC program "in effect another criminal statute" and would
"introduce a hostile arm's length element into the relationship"
between worker and mother, "a relationship which can be effective
only when it is based upon mutual confidence and trust"; and
concluded that the majority's holding struck "a damaging blow" to
an important social welfare program. 303 F. Supp. at 946.
I
The case comes to us on the pleadings and supporting affidavits
and without the benefit of testimony which an extended hearing
would have provided. The pertinent facts, however, are not in
dispute.
Plaintiff Barbara James is the mother of a son, Maurice, who was
born in May, 1967. They reside in New York City. Mrs. James first
applied for AFDC assistance shortly before Maurice's birth. A
caseworker made a visit to her apartment at that time without
objection. The assistance was authorized.
Two years later, on May 8, 1969, a caseworker wrote Mrs. James
that she would visit her home on May 14. Upon receipt of this
advice, Mrs. James telephoned the worker that, although she was
willing to supply information "reasonable and relevant" to her need
for public assistance, any discussion was not to take place at her
home. The worker told Mrs. James that she was required by law to
visit in her home, and that refusal to
Page 400 U. S. 314
permit the visit would result in the termination of assistance.
Permission was still denied.
On May 13, the City Department of Social Services sent Mrs.
James a notice of intent to discontinue assistance because of the
visitation refusal. The notice advised the beneficiary of her right
to a hearing before a review officer. The hearing was requested,
and was held on May 27. Mrs. James appeared with an attorney at
that hearing. [
Footnote 5] They
continued to refuse permission for a worker to visit the James
home, but again expressed willingness to cooperate and to permit
visits elsewhere. The review officer ruled that the refusal was a
proper ground for the termination of assistance. His written
decision stated:
"The home visit which Mrs. James refuses to permit is for the
purpose of determining if there are any changes in her situation
that might affect her eligibility to continue to receive Public
Assistance, or that might affect the amount of such assistance, and
to see if there are any social services which the Department of
Social Services can provide to the family."
A notice of termination issued on June 2.
Thereupon, without seeking a hearing at the state level, Mrs.
James, individually and on behalf of Maurice, and purporting to act
on behalf of all other persons similarly situated, instituted the
present civil rights suit under 42 U.S.C. § 1983. She alleged the
denial of rights guaranteed to her under the First, Third, Fourth,
Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments, and under
Subchapters IV and XVI of the Social Security Act and regulations
issued thereunder. She further alleged that
Page 400 U. S. 315
she and her son have no income, resources, or support other than
the benefits received under the AFDC program. She asked for
declaratory and injunctive relief. A temporary restraining order
was issued on June 13,
James v. Goldberg, 302 F.
Supp. 478 (SDNY 1969), and the three-judge District Court was
convened.
II
The federal aspects of the AFDC program deserve mention. They
are provided for in Subchapter IV, Part A, of the Social Security
Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. §§ 601410 (1964
ed. and Supp. V). Section 401 of the Act, 42 U.S.C. § 601 (1964
ed., Supp. V), specifies its purpose, namely,
"encouraging the care of dependent children in their own homes
or in the homes of relatives by enabling each State to furnish
financial assistance and rehabilitation and other services . . . to
needy dependent children and the parents or relatives with whom
they are living to help maintain and strengthen family life. . .
."
The same section authorizes the federal appropriation for
payments to States that qualify. Section 402, 42 U.S.C. § 602 (1964
ed., Supp. V), provides that a state plan, among other things,
must
"provide for granting an opportunity for a fair hearing before
the State agency to any individual whose claim for aid to families
with dependent children is denied or is not acted upon with
reasonable promptness;"
must "provide that the State agency will make such reports . . .
as the Secretary [of Health, Education, and Welfare] may from time
to time require"; must "provide that the State agency shall, in
determining need, take into consideration any other income and
resources of any child or relative claiming aid"; and must
"provide that, where the State agency has reason to believe that
the home in which a relative and child receiving aid reside is
unsuitable for the child because of the neglect, abuse, or
exploitation of
Page 400 U. S. 316
such child it shall bring such condition to the attention of the
appropriate court or law enforcement agencies in the State. . .
."
Section 405, 42 U.S.C.'§ 605, provides that
"Whenever the State agency has reason to believe that any
payments of aid . . . made with respect to a child are not being or
may not be used in the best interests of the child, the State
agency may provide for such counseling and guidance services with
respect to the use of such payments and the management of other
funds by the relative . . . in order to assure use of such payments
in the best interests of such child, and may provide for advising
such relative that continued failure to so use such payments will
result in substitution therefor of protective payments . . . or in
seeking the appointment of a guardian . . . or in the imposition of
criminal or civil penalties. . . ."
III
When a case involves a home and some type of official intrusion
into that home, as this case appears to do, an immediate and
natural reaction is one of concern about Fourth Amendment rights
and the protection which that Amendment is intended to afford. Its
emphasis indeed is upon one of the most precious aspects of
personal security in the home: "The right of the people to be
secure in their persons, houses, papers, and effects. . . ." This
Court has characterized that right as "basic to a free society."
Wolf v. Colorado, 338 U. S. 25,
338 U. S. 27
(1949);
Camara v. Municipal Court, 387 U.
S. 523,
387 U. S. 528
(1967). And over the years, the Court consistently has been most
protective of the privacy of the dwelling.
See, for example,
Boyd v. United States, 116 U. S. 616,
116 U. S.
626-630 (1886);
Mapp v. Ohio, 367 U.
S. 643 (1961);
Chimel v. California,
395 U. S. 752
(1969);
Vale v.
Louisiana, 399
Page 400 U. S. 317
U.S. 30 (1970). In
Camara, MR. JUSTICE WHITE, after
noting that the
"translation of the abstract prohibition against 'unreasonable
searches and seizures' into workable guidelines for the decision of
particular cases is a difficult task,"
went on to observe,
"Nevertheless, one governing principle, justified by history and
by current experience, has consistently been followed: except in
certain carefully defined classes of cases, a search of private
property without proper consent is 'unreasonable' unless it has
been authorized by a valid search warrant."
387 U.S. at
387 U. S.
528-529. He pointed out, too, that one's Fourth
Amendment protection subsists apart from his being suspected of
criminal behavior. 387 U.S. at
387 U. S.
530.
IV
This natural and quite proper protective attitude, however, is
not a factor in this case, for the seemingly obvious and simple
reason that we are not concerned here with any search by the New
York social service agency in the Fourth Amendment meaning of that
term. It is true that the governing statute and regulations appear
to make mandatory the initial home visit and the subsequent
periodic "contacts" (which may include home visits) for the
inception and continuance of aid. It is also true that the
caseworker's posture in the home visit is perhaps, in a sense, both
rehabilitative and investigative. But this latter aspect, we think,
is given too broad a character and far more emphasis than it
deserves if it is equated with a search in the traditional criminal
law context. We note, too, that the visitation, in itself, is not
forced or compelled, and that the beneficiary's denial of
permission is not a criminal act. If consent to the visitation is
withheld, no visitation takes
Page 400 U. S. 318
place. The aid then never begins, or merely ceases, as the case
may be. There is no entry of the home and there is no search.
V
If however, we were to assume that a caseworker's home visit,
before or subsequent to the beneficiary's initial qualification for
benefits, somehow (perhaps because the average beneficiary might
feel she is in no position to refuse consent to the visit), and
despite its interview nature, does possess some of the
characteristics of a search in the traditional sense, we
nevertheless conclude that the visit does not fall within the
Fourth Amendment's proscription. This is because it does not
descend to the level of unreasonableness. It is unreasonableness
which is the Fourth Amendment's standard.
Terry v. Ohio,
392 U. S. 1,
392 U. S. 9
(1968);
Elkins v. United States, 364 U.
S. 206,
364 U. S. 222
(1960). And Mr. Chief Justice Warren observed in
Terry
that "the specific content and incidents of this right must be
shaped by the context in which it is asserted." 392 U.S. at
392 U. S. 9.
There are a number of factors that compel us to conclude that
the home visit proposed for Mrs. James is not unreasonable:
1. The public's interest in this particular segment of the area
of assistance to the unfortunate is protection and aid for the
dependent child whose family requires such aid for that child. The
focus is on the
child, and, further, it is on the child
who is
dependent. There is no more worthy object of the
public's concern. The dependent child's needs are paramount, and
only with hesitancy would we relegate those needs, in the scale of
comparative values, to a position secondary to what the mother
claims as her rights.
2. The agency, with tax funds provided from federal as well as
from state sources, is fulfilling a public trust. The State,
working through its qualified welfare agency,
Page 400 U. S. 319
has appropriate and paramount interest and concern in seeing and
assuring that the intended and proper objects of that tax produced
assistance are the ones who benefit from the aid it dispenses.
Surely it is not unreasonable, in the Fourth Amendment sense or in
any other sense of that term, that the State have at its command a
gentle means, of limited extent and of practical and considerate
application, of achieving that assurance.
3. One who dispenses purely private charity naturally has an
interest in, and expects to know, how his charitable funds are
utilized and put to work. The public, when it is the provider,
rightly expects the same. It might well expect more, because of the
trust aspect of public funds, and the recipient, as well as the
caseworker, has not only an interest, but an obligation.
4. The emphasis of the New York statutes and regulations is upon
the home, upon "close contact" with the beneficiary, upon restoring
the aid recipient "to a condition of self-support," and upon the
relief of his distress. The federal emphasis is no different. It is
upon "assistance and rehabilitation," upon maintaining and
strengthening family life, and upon "maximum self-support and
personal independence consistent with the maintenance of continuing
parental care and protection. . . ." 42 U.S.C. § 601 (1964 ed.,
Supp. V);
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 479
(1970), and
id. at
397 U. S. 510
(MARSHALL, J., dissenting). It requires cooperation from the state
agency upon specified standards and in specified ways. And it is
concerned about any possible exploitation of the child.
5. The home visit, it is true, is not required by federal
statute or regulation. [
Footnote
6] But it has been noted that the
Page 400 U. S. 320
visit is "the heart of welfare administration"; that it affords
"a personal, rehabilitative orientation, unlike that of most
federal programs"; and that the "more pronounced service
orientation" effected by Congress with the 1956 amendments to the
Social Security Act "gave redoubled importance to the practice of
home visiting." Note, Rehabilitation, Investigation and the Welfare
Home Visit, 79 Yale L.J. 746, 748 (1970). The home visit is an
established routine in States besides New York. [
Footnote 7]
6. The means employed by the New York agency are significant.
Mrs. Janes received written notice several days in advance of the
intended home visit. [
Footnote
8] The date
Page 400 U. S. 321
was specified. Section 134-a of the New York Social Services
Law, effective April 1, 1967, and set forth in
n 2,
supra, sets the tone. Privacy is
emphasized. The applicant-recipient is made the primary source of
information as to eligibility. Outside informational sources, other
than public records, are to be consulted only with the
beneficiary's consent. Forcible entry or entry under false
pretenses or visitation outside working hours or snooping in the
home are forbidden. HEW Handbook of Public Assistance
Administration, pt. IV, §§ 2200(a) and 2300; 18 NYCRR §§ 351.1,
351.6, and 351.7. All this minimizes any "burden" upon the
homeowner's right against unreasonable intrusion.
7. Mrs. James, in fact, on this record presents no specific
complaint of any unreasonable intrusion of her home and nothing
that supports an inference that the desired home visit had as its
purpose the obtaining of information as to criminal activity. She
complains of no proposed visitation at an awkward or retirement
hour. She suggests no forcible entry. She refers to no snooping.
She describes no impolite or reprehensible conduct of any kind. She
alleges only, in general and nonspecific terms, that, on previous
visits and, on information and belief, on visitation at the home of
other aid recipients,
"questions concerning personal relationships, beliefs and
behavior are raised and pressed which are unnecessary for a
determination of continuing eligibility."
Paradoxically, this same complaint could be. made of a
conference held elsewhere than in the home, and yet this is what is
sought by Mrs. James. The same complaint could be made of the
census taker's questions.
See MR. JUSTICE MARSHALL's
opinion, as United States Circuit Judge, in
United States v.
Rickenbacker, 309 F.2d 462 (CA2 1962),
cert. denied,
371 U.S. 962. What Mrs. James appears to want from the agency that
provides her and her infant son with the necessities for life is
the right to receive those necessities upon her own
Page 400 U. S. 322
informational terms, to utilize the Fourth Amendment as a wedge
for imposing those terms, and to avoid questions of any kind.
[
Footnote 9]
8. We are not persuaded, as Mrs. James would have us be, that
all information pertinent to the issue of eligibility can be
obtained by the agency through an interview at a place other than
the home, or, as the District Court majority suggested, by
examining a lease or a birth certificate, or by periodic medical
examinations, or by interviews with school personnel. 303 F. Supp.
at 943. Although these secondary sources might be helpful, they
would not always assure verification of actual residence or of
actual physical presence in the home, which are requisites for AFDC
benefits, [
Footnote 10] or
of impending medical needs. And, of course, little children, such
as Maurice James, are not yet registered in school.
9. The visit is not one by police or uniformed authority. It is
made by a caseworker of some training [
Footnote 11] whose
Page 400 U. S. 323
primary objective is, or should be, the welfare, not the
prosecution, of the aid recipient for whom the worker has profound
responsibility. As has already been stressed, the program concerns
dependent children and the needy families of those children. It
does not deal with crime or with the actual or suspected
perpetrators of crime. The caseworker is not a sleuth, but rather,
we trust, is a friend to one in need.
10. The home visit is not a criminal investigation, does not
equate with a criminal investigation, and despite the announced
fears of Mrs. James and those who would join her, is not in aid of
any criminal proceeding. If the visitation serves to discourage
misrepresentation or fraud, such a byproduct of that visit does not
impress upon the visit itself a dominant criminal investigative
aspect. And if the visit should, by chance, lead to the discovery
of fraud and a criminal prosecution should follow, [
Footnote 12] then, even assuming that the
evidence discovered upon the home visitation is admissible, an
issue upon which we express no opinion, that is a routine and
expected fact of life and a consequence no greater than that which
necessarily ensues upon any other discovery by a citizen of
criminal conduct.
11. The warrant procedure which the plaintiff appears to claim
to be so precious to her, even if civil in nature, is not without
its seriously objectionable features in the welfare context. If a
warrant could be obtained (the plaintiff affords us little help as
to how it would be obtained), it presumably could be applied for
ex parte, its execution would require no notice, it would
justify entry
Page 400 U. S. 324
by force, and its hours for execution [
Footnote 13] would not be so limited as those
prescribed for home visitation. The warrant necessarily would imply
conduct either criminal or out of compliance with an asserted
governing standard. Of course, the force behind the warrant
argument, welcome to the one asserting it, is the fact that it
would have to rest upon probable cause, and probable cause in the
welfare context, as Mrs. James concedes, requires more than the
mere need of the caseworker to see the child in the home and to
have assurance that the child is there and is receiving the benefit
of the aid that has been authorized for it. In this setting, the
warrant argument is out of place.
It seems to us that the situation is akin to that where an
Internal Revenue Service agent, in making a routine civil audit of
a taxpayer's income tax return, asks that the taxpayer produce for
the agent's review some proof of a deduction the taxpayer has
asserted to his benefit in the computation of his tax. If the
taxpayer refuses, there is, absent fraud, only a disallowance of
the claimed deduction and a consequent additional tax. The taxpayer
is fully within his "rights" in refusing to produce the proof, but,
in maintaining and asserting those rights, a tax detriment results,
and it is a detriment of the taxpayer's own making. So here, Mrs.
James has the "right" to refuse the home visit, but a consequence
in the form of cessation of aid, similar to the taxpayer's
resultant additional tax, flows from that refusal. The choice is
entirely hers, and nothing of constitutional magnitude is
involved.
VI
Camara v. Municipal Court, 387 U.
S. 523 (1967), and its companion case,
See v. City
of Seattle, 387 U. S. 541
(1967), both by a divided Court, are not inconsistent
Page 400 U. S. 325
with our result here. Those cases concerned, respectively, a
refusal of entry to city housing inspectors checking for a
violation of a building's occupancy permit, and a refusal of entry
to a fire department representative interested in compliance with a
city's fire code. In each case, a majority of this Court held that
the Fourth Amendment barred prosecution for refusal to permit the
desired warrantless inspection.
Frank v. Maryland,
359 U. S. 360
(1959), a case that reached an opposing result and that concerned a
request by a health officer for entry in order to check the source
of a rat infestation, was
pro tanto overruled. Both
Frank and
Camara involved dwelling quarters.
See had to do with a commercial warehouse.
But the facts of the three cases are significantly different
from those before us. Each concerned a true search for violations.
Frank was a criminal prosecution for the owner's refusal
to permit entry. So, too, was
See. Camara had to
do with a writ of prohibition sought to prevent an already pending
criminal prosecution. The community welfare aspects, of course,
were highly important, but each case arose in a criminal context
where a genuine search was denied and prosecution followed.
In contrast, Mrs. James is not being prosecuted for her refusal
to permit the home visit and is not about to be so prosecuted. Her
wishes in that respect are fully honored. We have not been told,
and have not found, that her refusal is made a criminal act by any
applicable New York or federal statute. The only consequence of her
refusal is that the payment of benefits ceases. Important and
serious as this is, the situation is no different than if she had
exercised a similar negative choice initially and refrained from
applying for AFDC benefits. If a statute made her refusal a
criminal offense, and if this case were one concerning her
prosecution under that statute,
Camara and
See
would have conceivable pertinency.
Page 400 U. S. 326
VII
Our holding today does not mean, of course, that a termination
of benefits upon refusal of a home visit is to be upheld against
constitutional challenge under all conceivable circumstances. The
early morning mass raid upon homes of welfare recipients is not
unknown.
See Parrish v. Civil Service
Comm'n, 66 Cal. 2d
260, 425 P.2d 223 (1967); Reich, Midnight Welfare Searches and
the Social Security Act, 72 Yale L.J. 1347 (1963). But that is not
this case. Facts of that kind present another case for another
day.
We therefore conclude that the home visitation as structured by
the New York statutes and regulations is a reasonable
administrative tool; that it serves a valid and proper
administrative purpose for the dispensation of the AFDC program;
that it is not an unwarranted invasion of personal privacy; and
that it violates no right guaranteed by the Fourth Amendment.
Reversed and remanded with directions to enter a judgment of
dismissal.
It is so ordered.
MR. JUSTICE WHITE concurs in the judgment and joins the opinion
of the Court with the exception of
400 U. S.
[
Footnote 1]
In
Goldberg v. Kelly, 397 U. S. 254,
397 U. S. 256
n. 1 (1970), the Court observed that AFDC is a categorical
assistance program supported by federal grants-in-aid but
administered by the States according to regulations of the
Secretary of Health, Education, and Welfare.
See New York
Social Services Law §§ 343-362 (1966 and Supp. 19691970). Aspects
of AFDC have been considered in
King v. Smith,
392 U. S. 309
(1968);
Shapiro v. Thompson, 394 U.
S. 618 (1969);
Goldberg v. Kelly, supra; Rosado v.
Wyman, 397 U. S. 397
(1970); and
Dandridge v. Williams, 397 U.
S. 471 (1970).
[
Footnote 2]
"§ 134. Supervision"
"The public welfare officials responsible . . . for
investigating any application for public assistance and care, shall
maintain close contact with persons granted public assistance and
care. Such persons shall be visited as frequently as is provided by
the rules of the board and/or regulations of the department or
required by the circumstances of the case, in order that any
treatment or service tending to restore such persons to a condition
of self-support and to relieve their distress may be rendered and
in order that assistance or care may be given only in such amount
and as long as necessary. . . . The circumstances of a person
receiving continued care shall be reinvestigated as frequently as
the rules of the board or regulations of the department may
require."
Section 134-a, as added by Laws 1967, c. 183, effective April 1,
1967, provides:
"In accordance with regulations of the department, any
investigation or reinvestigation of eligibility . . . shall be
limited to those factors reasonably necessary to insure that
expenditures shall be in accord with applicable provisions of this
chapter and the rules of the board and regulations of the
department and shall be conducted in such manner so as not to
violate any civil right of the applicant or recipient. In making
such investigation or reinvestigation, sources of information,
other than public records, shall be consulted only with the
permission of the applicant or recipient. However, if such
permission is not granted by the applicant or recipient, the
appropriate public welfare official may deny, suspend or
discontinue public assistance or care until such time as he may be
satisfied that such applicant or recipient is eligible
therefor."
[
Footnote 3]
"Mandatory visits must be made in accordance with law that
requires that persons be visited at least once every three months
if they are receiving . . . Aid to Dependent Children. . . ."
[
Footnote 4]
"Section 351.10.
Required home visits and contacts.
Social investigation as defined and described . . . shall be made
of each application or reapplication for public assistance or care
as the basis for determination of initial eligibility."
"a. Determination of initial eligibility shall include contact
with the applicant and at least one home visit which shall be made
promptly in accordance with agency policy. . . ."
"Section 351.21.
Required contacts. Contacts with
recipients and collateral sources shall be adequate as to content
and frequency and shall include home visits, office interviews,
correspondence, reports on resources and other necessary
documentation."
Section 369.2 of Title 18 provides in part:
"(c)
Welfare of child or minor. A child or minor shall
be considered to be eligible for ADC if his home situation is one
in which his physical, mental and moral wellbeing will be
safeguarded and his religious faith preserved and protected. (1) In
determining the ability of a parent or relative to care for the
child so that this purpose is achieved, the home shall be judged by
the same standards as are applied to self-maintaining families in
the community. When, at the time of application, a home does not
meet the usual standards of health and decency but the welfare of
the child is not endangered, ADC shall be granted and defined
services provided in an effort to improve the situation. Where
appropriate, consultation or direct service shall be requested from
child welfare."
[
Footnote 5]
No issue of procedural due process is raised in this case.
Cf. Goldberg v. Kelly, 397 U. S. 254
(1970), and
Wheeler v. Montgomery, 397 U.
S. 280 (1970).
[
Footnote 6]
The federal regulations require only periodic redeterminations
of eligibility. HEW Handbook of Public Assistance Administration,
pt. IV, § 2200(d). But they also require verification of
eligibility by making field investigations "including home visits"
in a selected sample of cases. Pt. II, § 6200(a)(3).
[
Footnote 7]
See, e.g., Ala., Manual for Administration of Public
Assistance, pt. I-8(b) (1968 rev.); Ariz. Regulations promulgated
pursuant to Rev.Stat.Ann. § 46-203 (1956), Reg. 3-203.6 (1968);
Ark.Stat.Ann. § 83-131 (1960); Cal. State Dept. of Social Welfare
Handbook, C-012.50 (1964); Colo.Rev.Stat.Ann. § 119-9-1
et
seq. (Supp. 1967), as amended, Laws 1969, c. 279; Fla.Public
Assistance c. 100; Cal. Division of Social Administration -- Public
Assistance Manual, pt. III, § V(D)(2) , pt. VIII(A)(1)(b) (1969);
Ill.Rev.Stat., c. 23, § 4-7 (1967); Ind.Ann.Stat. § 52-1247 (1964),
Dept.Pub. Welfare, Rules & Regs., Reg. 2-403 (1965);
Mich.Public Assistance Manual, Item 243(3)(F) (Rev.) (1967);
Miss.Code Ann. § 7177 (1942) (Laws of 1940, c. 294); Mo.Public
Assistance Manual, Dept. of Welfare, § III (1969); Nebraska, State
Plan and Manual Regulations, pt. IX, §§ 5760, 5771; N.J.Manual of
Administration, Division of Public Welfare, pt. II, §§ 2120, 2122
(1969); N.M.Stat.Ann. § 13-1-13 (1953), Health and Social Services
Dept. Manual, §§ 211.5, 272.11; S.C.Dept. of Public Welfare Manual,
Vol. IV(D)(2); S.D.Comp.Laws Ann. § 28-7-7 (1967) (formerly
S.D.Code § 55.3805); Tenn.Code Ann. § 14-309 (1955), Public
Assistance Manual, Vol. II, p. 212 (1968 rev.); Wis.Stat. §
49.19(2) (1967).
[
Footnote 8]
It is true that the record contains 12 affidavits, all
essentially identical, of aid recipients (other than Mrs. James)
which recite that a caseworker "most often" comes without notice;
that, when he does, the plans the recipient had for that time
cannot be carried out; that the visit is "very embarrassing to me
if the caseworker comes when I have company"; and that the
caseworker "sometime asks very personal questions" in front of
children.
[
Footnote 9]
We have examined Mrs. James' case record with the New York City
Department of Social Services, which, as an exhibit, accompanied
defendant Wyman's answer. It discloses numerous interviews from the
time of the initial one on April 27, 1967, until the attempted
termination in June, 1969. The record is revealing as to Mrs.
James' failure ever really to satisfy the requirements for
eligibility; as to constant and repeated demands; as to attitude
toward the caseworker; as to reluctance to cooperate; as to
evasiveness; and as to occasional belligerency. There are
indications that all was not always well with the infant Maurice
(skull fracture, a dent in the head, a possible rat bite). The
picture is a sad and unhappy one.
[
Footnote 10]
§ 406(a) of the Social Security Act, as amended, 42 U.S.C. §
606(a) (1964 ed., Supp. V); § 349B1 of the New York Social Services
Law.
[
Footnote 11]
The
amicus brief submitted on behalf of the Social
Services Employees Union Local 371, AFSCME, AFL-CIO, the bargaining
representative for the social service staff employed in the New
York City Department of Social Services, recites that "caseworkers
are either badly trained or untrained," and that "[g]enerally, a
caseworker is not only poorly trained, but also young and
inexperienced. . . ." Despite this astonishing description by the
union of the lack of qualification of its own members for the work
they are employed to do, we must assume that the caseworker
possesses at least some qualifications and some dedication to
duty.
[
Footnote 12]
See, for example, New York Social Services Law §
145.
[
Footnote 13]
New York Code Crim.Proc. § 801.
MR. JUSTICE DOUGLAS, dissenting.
We are living in a society where one of the most important forms
of property is government largesse which some call the "new
property." [
Footnote 2/1] The
payrolls of government are but one aspect of that "new property."
Defense contracts, highway contracts, and the other multifarious
forms of contracts are another part. So are subsidies to air, rail,
and other carriers. So are
Page 400 U. S. 327
disbursements by government for scientific research. [
Footnote 2/2] So are TV and radio licenses
to use the air space which of course is part of the public domain.
Our concern here is not with those subsidies but with grants that
directly or indirectly implicate the
home life of the
recipients.
In 1969 roughly 127 billion dollars were spent by the federal,
state, and local governments on "social welfare." [
Footnote 2/3] To farmers alone almost four billion
dollars were paid, in part for not growing certain crops. Almost
129,000 farmers received $5,000 or more, their total benefits
exceeding $1,450,000,000. [
Footnote
2/4] Those payments were in some instances very large, a few
running a million or more a year. But the majority were payments
under $5,000 each.
Yet almost every beneficiary whether rich or poor, rural or
urban, has a "house" one of the places protected by the Fourth
Amendment against "unreasonable searches and seizures." [
Footnote 2/5] The question in this case is
whether receipt of largesse from the government makes the home of
the beneficiary subject to access by an inspector of the agency of
oversight, even though the beneficiary objects to the intrusion and
even though the Fourth Amendment's procedure for access to one's
house or
home is not followed. The penalty here
is not, of course, invasion of the privacy of Barbara James, only
her loss of federal or state largesse. That, however, is merely
rephrasing the problem. Whatever the semantics,
Page 400 U. S. 328
the central question is whether the government, by force of its
largesse, has the power to "buy up" rights guaranteed by the
Constitution. [
Footnote 2/6] But
for the assertion of her constitutional right, Barbara James in
this case would have received the welfare benefit.
We spoke in
Speiser v. Randall, 357 U.
S. 513, of the denial of tax exemptions by a State
because of exercise of First Amendment rights.
"It cannot be gainsaid that a discriminatory denial of a tax
exemption for engaging in speech is a limitation on free speech. .
. . To deny an exemption to claimant who engage in certain forms of
speech is, in effect, to penalize them for such speech. Its
deterrent effect is the same as if the State were to fine them for
this speech."
Id. at
357 U. S.
518.
Likewise, while second-class mail rates may be granted or
withheld by the Government, we would not allow them to be granted
"on condition that certain economic or political ideas not be
disseminated."
Hannegan v. Esquire, Inc., 327 U.
S. 146,
327 U. S.
156.
In
Sherbert v. Verner, 374 U.
S. 398, a State providing unemployment insurance
required recipients to accept suitable employment when it became
available or lose the benefits. An unemployed lady was offered a
job requiring her to work Saturdays but she refused because she was
a Seventh Day Adventist to whom Saturday was the Sabbath. The State
canceled her unemployment benefits and we reversed, saying:
"The ruling forces her to choose between following the precepts
of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept
work, on
Page 400 U. S. 329
the other hand. Governmental imposition of such a choice puts
the same kind of burden upon the free exercise of religion as would
a fine imposed against appellant for her Saturday worship."
"Nor may the South Carolina court's construction of the statute
be saved from constitutional infirmity on the ground that
unemployment compensation benefits are not appellant's 'right' but
merely a 'privilege.' It is too late in the day to doubt that the
liberties of religion and expression may be infringed by the denial
of or placing of conditions upon a benefit or privilege. . . . [T]o
condition the availability of benefits upon this appellant's
willingness to violate a cardinal principle of her religious faith
effectively penalizes the free exercise of her constitutional
liberties."
Id. at
374 U. S. 404,
374 U. S. 406.
These cases are in the tradition of
United States v. Chicago,
M., St. P. & P. R. Co., 282 U. S. 311,
282 U. S.
328-329, [
Footnote 2/7]
where Mr. Justice Sutherland, writing for the Court, said:
"[T]he rule is that the right to continue the exercise of a
privilege granted by the state cannot be made to depend upon the
grantee's submission to a condition prescribed by the state which
is hostile to the provisions of the federal Constitution. [
Footnote 2/8] "
Page 400 U. S. 330
What we said in those cases is as applicable to Fourth Amendment
rights as to those of the First. The Fourth, of course, speaks of
"unreasonable" searches and seizures, while the First is written in
absolute terms. But the right of privacy which the Fourth protects
is perhaps as vivid in our lives as the right of expression
sponsored by the First.
Griswold v. Connecticut,
381 U. S. 479,
381 U. S. 484.
If the regime under which Barbara James lives were enterprise
capitalism as, for example, if she ran a small factory geared into
the Pentagon's procurement program, she certainly would have a
right to deny inspectors access to her
home unless they
came with a warrant.
Page 400 U. S. 331
That is the teaching of
Camara v. Municipal Court,
387 U. S. 523, and
See v. City of Seattle, 387 U. S. 541. In
those cases, we overruled
Frank v. Maryland, 359 U.
S. 360, and held the Fourth Amendment applicable to
administrative searches of both the home and a business. The
applicable principle, as stated in
Camara as "justified by
history and by current experience," is that,
"except in certain carefully defined classes of cases, a search
of private property without proper consent is 'unreasonable' unless
it has been authorized by a valid search warrant."
387 U.S. at
387 U. S.
528-529. In
See, we added that the
"businessman, like the occupant of a residence, has a
constitutional right to go about his business free from
unreasonable official entries upon his private commercial
property."
Id. at
387 U. S. 543.
There is not the slightest hint in
See that the Government
could condition a business license on the "consent" of the licensee
to the administrative searches we held violated the Fourth
Amendment. It is a strange jurisprudence indeed which safeguards
the businessman at his place of work from warrantless searches, but
will not do the same for a mother in her
home.
Is a search of her home without a warrant made "reasonable"
merely because she is dependent on government largesse?
Judge Skelly Wright has stated the problem succinctly:
"Welfare has long been considered the equivalent of charity, and
its recipients have been subjected to all kinds of dehumanizing
experiences in the government's effort to police its welfare
payments. In fact, over half a billion dollars are expended
annually for administration and policing in connection with the Aid
to Families with Dependent Children program.
Page 400 U. S. 332
Why such large sums are necessary for administration and
policing has never been adequately explained. No such sums are
spent policing the government subsidies granted to farmers,
airlines, steamship companies, and junk mail dealers, to name but a
few. The truth is that, in this subsidy area, society has simply
adopted a double standard, one for aid to business and the farmer
and a different one for welfare."
Poverty, Minorities, and Respect For Law, 1970 Duke L.J. 425,
437-438.
If the welfare recipient was not Barbara James but a prominent,
affluent cotton or wheat farmer receiving benefit payments for not
growing crops, would not the approach be different? Welfare in aid
of dependent children, like social security and unemployment
benefits, has an aura of suspicion. [
Footnote 2/9] There doubtless are frauds in every sector
of public welfare whether the recipient be a Barbara James or
someone who is prominent or influential. But constitutional rights
-- here the privacy of the home -- are obviously not dependent on
the poverty or on the affluence of the beneficiary. It is the
precincts of the home that the Fourth Amendment protects; and
Page 400 U. S. 333
their privacy is as important to the lowly as to the mighty.
[
Footnote 2/10]
"[S]tudies tell us that the typical middle income American
reaches retirement age with a whole
Page 400 U. S. 334
bundle of interests and expectations: as homeowner, as small
investor, and as social security 'beneficiary.' Of these, his
social security retirement benefits are probably his most important
resource. Should this, the most significant of his rights, be
entitled to a quality of protection inferior to that afforded his
other interests? It becomes the task of the rule of law to surround
this new 'right' to retirement benefits with protections against
arbitrary government action, with substantive and procedural
safeguards that are as effective in context as the safeguards
enjoyed by traditional rights of property in the best tradition of
the older law. [
Footnote
2/11]"
It may be that, in some tenements, one baby will do service to
several women and call each one "mom." It may be that other frauds,
less obvious, will be perpetrated. But if inspectors want to enter
the precincts of the home against the wishes of the lady of the
house, they must get a warrant. The need for exigent action as in
cases of "hot pursuit" is not present, for the lady will not
disappear; nor will the baby.
I would place the same restrictions on inspectors entering the
homes of welfare beneficiaries as are on inspectors entering the
homes of those on the payroll of government, or the homes of those
who contract with the government, or the homes of those who work
for those having government contracts. The values of the home
protected by the Fourth Amendment are not peculiar to capitalism as
we have known it; they are equally relevant to the new form of
socialism which we are entering. Moreover, as the numbers of
functionaries and inspectors multiply, the need for protection of
the individual becomes
Page 400 U. S. 335
indeed more essential if the values of a free society are to
remain.
What Lord Acton wrote Bishop Creighton [
Footnote 2/12] about the corruption of power is
increasingly pertinent today:
"I cannot accept your canon that we are to judge Pope and King
unlike other men, with a favourable presumption that they did no
wrong. If there is any presumption, it is the other way against
holders of power, increasing as the power increases. Historic
responsibility has to make up for the want of legal responsibility.
Power tends to corrupt and absolute power corrupts absolutely.
Great men are almost always bad men, even when they exercise
influence and not authority: still more when you superadd the
tendency or the certainty of corruption by authority."
The bureaucracy of modern government is not only slow,
lumbering, and oppressive; it is omnipresent. It touches everyone's
life at numerous points. It pries more and more into private
affairs, breaking down the barriers that individuals erect to give
them some insulation from the intrigues and harassments of modern
life. [
Footnote 2/13] Isolation
is not a constitutional guarantee, but the sanctity of the
sanctuary of the home is such -- as marked and defined by the
Fourth Amendment,
McDonald v. United States, 335 U.
S. 451,
335 U. S. 453.
What we do today is to depreciate it.
I would sustain the judgment of the three-judge court in the
present case.
Page 400 U. S. 336
|
400
U.S. 309app1|
APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING
bwm:
STATISTICAL ABSTRACT OF THE UNITED STATES, 1970, P. 277.
SOCIAL WELFARE EXPENDITURES, BY SOURCE OF FUNDS AND
PUBLIC PROGRAM: 1967 TO 1969
(In millions of dollars)
------------------------------------------------------------------------------------------------------------
1967 1968 1969 (prel.)
PROGRAM
----------------------------------------------------------
Federal State Federal State Federal State
and local and local and local
------------------------------------------------------------------------------------------------------------
TOTAL . . . . . . . . . . . . . . . . . . . . 53,244 46,499
60,548 51,497 68,595 58,206
----------------------------------------------------------
Social Insurance. . . . . . . . . . . . . . . . . 30,544 6,724
35,391 7,302 40,824 7,896
Old age, survivors, disability, health Ins. . . 24,581 (x)
28,748 (x) 33,389 (x)
Health insurance for the aged . . . . . . . . 3,395 (x) 5,347
(x) 6,598 (x)
Railroad retirement . . . . . . . . . . . . . . 1,278 (x) 1,417
(x) 1,547 (x)
Public employee retirement{1} . . . . . . . . . 3,725 2,178
4,167 2,416 4,739 2,740
Unemployment ins. and employment serv.{2} . . . 790 1,963 873
2,055 932 2,021
Railroad unemployment insurance . . . . . . . . 38 (x) 46 (x) 45
(x)
Railroad temporary disability insurance . . . . 38 (x) 36 (x) 58
(x)
State temporary disability insurance{3} . . . . (x) 530 (x) 574
(x) 635
Hospital and medical benefits . . . . . . . . (x) 54 (x) 55 (x)
58
Workmen's compensation{4} . . . . . . . . . . . 94 2,054 103
2,257 114 2,500
Hospital and medical benefits . . . . . . . . 14 681 15 750 17
833
Public Aid. . . . . . . . . . . . . . . . . . . . 5,244 3,567
6,455 4,637 7,851 5,592
Public assistance . . . . . . . . . . . . . . . 4,266 3,567
5,250 4,637 6,389 5,592
Vendor medical payments . . . . . . . . . . . 1,157 1,226 1,760
1,821 2,186 2,235
Other{5}. . . . . . . . . . . . . . . . . . . . 979 - 1,205 -
1,462 -
Health and medical programs{6}. . . . . . . . . . 3,681 4,128
4,233 4,038 4,497 4,321
Hospital and medical care . . . . . . . . . . . 1,596 2,658
1,835 2,708 1,967 2,827
Civilian programs . . . . . . . . . . . . . . 164 2,658 187
2,708 200 2,827
Defense Department{7} . . . . . . . . . . . . 1,432 (x) 1,648
(x) 1,766 (x)
Maternal and child health programs{8} . . . . . 139 171 161 176
192 190
Medical research. . . . . . . . . . . . . . . . 1,290 65 1,479
69 1,401 73
School health (educational agencies). . . . . . (x) 178 (x) 190
(x) 204
Other public health activities{9} . . . . . . . 373 667 427 434
551 527
Medical facilities construction . . . . . . . . 284 389 332 461
386 500
Defense Department. . . . . . . . . . . . . . 50 (x) 29 (x) 59
(x)
Other . . . . . . . . . . . . . . . . . . . . 234 389 305 461
327 500
Veterans programs . . . . . . . . . . . . . . . . 6,857 23 7,329
33 7,996 40
Pensions and compensation{10} . . . . . . . . . 4,487 (x) 4,716
(x) 5,041 (x)
Health and medical programs . . . . . . . . . . 1,346 (x) 1,465
(x) 1,585 (x)
Hospital and medical care . . . . . . . . . . 1,250 (x) 1,372
(x) 1,478 (x)
Hospital construction . . . . . . . . . . . . 49 (x) 46 (x) 54
(x)
Medical and prosthetic research . . . . . . . 47 (x) 46 (x) 53
(x)
Education . . . . . . . . . . . . . . . . . . . 297 (x) 466 (x)
672 (x)
Life insurance{11}. . . . . . . . . . . . . . . 548 (x) 504 (x)
503 (x)
Welfare and other . . . . . . . . . . . . . . . 179 23 179 33
197 40
Education{12} . . . . . . . . . . . . . . . . . . 5,279 30,389
5,108 33,648 5,079 37,954
Elementary and secondary. . . . . . . . . . . . 2,497 25,247
2,638 28,065 2,472 31,963
Construction{13}. . . . . . . . . . . . . . . 33 3,937 35 4,184
34 4,620
Higher. . . . . . . . . . . . . . . . . . . . . 2,089 4,400
1,807 4,800 1,943 5,100
Construction. . . . . . . . . . . . . . . . . 719 900 474 1,000
431 1,100
Vocational and adult{13}. . . . . . . . . . . . 552 742 519 783
514 891
Housing . . . . . . . . . . . . . . . . . . . . . 283 95 325 103
446 110
Other social welfare. . . . . . . . . . . . . . . 1,356 1,524
1,706 1,736 1,903 2,293
Vocational rehabilitation, total. . . . . . . . 319 91 363 106
431 127
Medical services and research . . . . . . . . 78 17 98 26 116
31
Institutional care{14}. . . . . . . . . . . . . 15 880 23 1,015
26 1,495
School meals. . . . . . . . . . . . . . . . . . 442 147 544 162
624 171
Child welfare{15} . . . . . . . . . . . . . . . 47 406 50 453 50
500
Special OEO programs{16}. . . . . . . . . . . . 452 (x) 608 (x)
647 (x)
Social welfare, not elsewhere classified{17}. . 81 (x) 118 (x)
124 (x)
------------------------------------------------------------------------------------------------------------
ewm:
- Represents 0 x Not applicable
1. Excludes refunds to those leaving service. Federal data
include military retirement.
2. Includes compensation for Federal employees and
ex-servicemen, and trade adjustment and cash training
allowances.
3. Programs operate in 4 States only ; Calif., N.J., N.Y. and
R.I.
4. Benefits by private insurance carriers, State funds, and
self-insurers.
5. Work relief, other emergency aid, surplus food for the needy,
food stamps, and Job Corps, Neighborhood Youth Corps, and
Work-Experience programs under the Economic Opportunity Act.
6. Excludes domiciliary care in institutions other than mental
or tuberculosis, and services included with other programs in
social welfare series.
7. Includes cost of medical care for military dependent
families.
8. Includes services for crippled children.
9. Excludes water supply and sanitation services.
10. Includes burial awards.
11. Excludes servicemen's group life insurance.
12. Federal expenditures for administrative costs (Office of
Education) and research not shown separately but included in
total.
13. Construction costs of vocational and adult education
programs included under elementary-secondary expenditures.
14. Represents primarily surplus food for nonprofit
institutions.
15. Represents primarily child welfare services under title V of
the Social Security Act.
16. Includes community action, migrant workers, and VISTA
programs and all administrative expenses of the Office of Economic
Opportunity.
17. Includes administrative expenses of the Secretary of Health,
Education, and Welfare; Indian welfare; aging activities; certain
manpower activities; and other items.
Source: Dept. of Health, Education, and Welfare, Social Security
Administration; Social Security Bulletin, December 1969.
Page 400 U. S. 337
|
400
U.S. 309app2|
APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING
Hearings on H.R. 17923 before the Senate Committee on
Appropriations, 91st Cong., 2d Sess., pt. 3, p. 1979.
U.S. Department of Agriculture
Agricultural Stabilization and Conservation Service
ASCS Payments to Producers, All Programs,{1} Calendar Year
1969
--------------------------------------------------------------------
Amount Percent of total
--------------------------------------------------------------------
Total payments. . . . . . . . . . . $3,794,996,353 100
Payments below $5,000 . . . . . . . 2,078,439,326 55
Payments $5,000 or above. . . . . . 1,457,635,442 38
Undistributed{2}. . . . . . . . . . 258,921,585 7
--------------------------------------------------------------------
1. Includes acreage diversion payments on cotton, feed grain,
and wheat; price support payments on cotton and feed grain; wheat
marketing certificates; cost-share payments under the Agricultural
Conservation Program, emergency conservation and Appalachia
programs; land retirement and conservation assistance payments
under the cropland conversion, cropland adjustment, and
conservation reserve programs; and the milk indemnity payment
program. Does not include any price support loans or purchases, and
payments under the Sugar Act and the National Wool Act.
2. Includes payments to producers under the Sugar Act and the
National Wool Act and payments to vendors for costs of conservation
materials and services and funds transferred to other agencies for
conservation technical services under the Agricultural Conservation
Program; promotion fund deduction withheld under the National Wool
Act which were transferred to the National Sheep Producers
Council.
ASCS Payments by Size Groupings $5,000 and over
(Excludes sugar and wool payments)
--------------------------------------------------------------
Range Number Amount
--------------------------------------------------------------
$5,000 to $7,499. . . . . . . . . . . 61,330 $ 370,839,000
$7,500 to $9,999. . . . . . . . . . . 25,859 222,488,754
$10,000 to $14,999. . . . . . . . . . 21,147 254,979,861
$15,000 to $24,999. . . . . . . . . . 12,856 242,547,832
$25,000 to $49,999. . . . . . . . . . 6,029 200,524,421
$50,000 to $99,999. . . . . . . . . . 1,404 91,191,225
$100,000 to $499,999. . . . . . . . . 346 55,113,824
$500,000 to $999,999. . . . . . . . . 11 7,668,176
$1,000,000 and over . . . . . . . . . 5 12,282,349
Total . . . . . . . . . . . . . . . . 128,987 $1,457,635,442
--------------------------------------------------------------
Page 400 U. S. 338
[
Footnote 2/1]
See Reich, The New Property, 73 Yale L.J. 733,
737-73.
[
Footnote 2/2]
See Ginzburg, What Science Policy?, Columbia Forum,
Fall 1970, p. 12.
[
Footnote 2/3]
See 400
U.S. 309app1|>Appendix I to this opinion.
[
Footnote 2/4]
See 400
U.S. 309app2|>Appendix II to this opinion.
[
Footnote 2/5]
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized."
[
Footnote 2/6]
See Note, Unconstitutional Conditions, 73 Harv.L.Rev.
1595, 1599.
[
Footnote 2/7]
And see Hale, Unconstitutional Conditions and
Constitutional Rights, 35 Col.L.Rev. 321 (1935);
Frost &
Frost Co. v. Railroad Comm'n, 271 U.
S. 583,
271 U. S.
594.
[
Footnote 2/8]
Flemming v. Nestor, 363 U. S. 603, is
not in accord with that tradition. There, we upheld the right of
Congress to strip away accrued social security benefits. Nestor, an
alien, came to this country in 1913. From the enactment of the
Social Security Act until 1955, Nestor and his employers
contributed payments to the fund. In 1955, Nestor became eligible
for old-age benefits. One year later he was deported for having
been a member of the Communist Party between 1933 and 1939 -- a
time when it was perfectly legal to be a member. In 1954, Congress
passed a law which provided for the loss of social security
benefits for anyone deported for having been a member of the
Communist Party. Like the law providing for deportation for
membership this law, too, was fully retroactive. Thus, Nestor was
deported after he had retired based on a law condemning membership
in the Communist Party at the time when it was legal to be a
member, and stripped of his retirement income based on a law which
was triggered by that deportation. We upheld the constitutionality
of the 1954 law by a 5-4 majority.
The majority stated Nestor's property had not been taken without
due process because Nestor had no property rights; his interest was
"noncontractual," and could "not be soundly analogized to that of
the holder of an annuity." 363 U.S. at
363 U. S. 610.
The majority then went on to hold social security benefits were
only protected from congressional action which is "utterly lacking
in rational justification."
Id. at
363 U. S.
611.
If it was unconstitutional in
Speiser to condition a
tax exemption on a limitation on freedom of speech, it was equally
unconstitutional to withhold a social security benefit conditioned
on a limitation of freedom of association. A right-privilege
distinction as implicitly rejected in
Speiser and
explicitly rejected in
Sherbert. Today's decision when
dealing with a state statute joins
Flemming as an anomaly
in the cases dealing with unconstitutional conditions.
[
Footnote 2/9]
Juvenal wrote:
"Poverty's greatest curse, much worse than the fact of it, is
that it makes men objects of mirth, ridiculed, humbled,
embarrassed."
Satires 39 (Indiana Univ. Press 1958).
In the 1837 Term, the Court held in
City of
New York v. Miln, 11 Pet. 102, that New York could
require ships coming in from abroad to report the names, ages,
etc., of every person brought to these shores. The Court said:
"We think it as competent and as necessary for a state to
provide precautionary measures against the moral pestilence of
paupers, vagabonds, and possibly convicts as it is to guard against
the physical pestilence which may arise from unsound and infectious
articles imported, or from a ship the crew of which may be
labouring under an infectious disease."
Id. at
36 U. S.
142.
I regretfully conclude that today's decision is ideologically of
the same vintage.
[
Footnote 2/10]
An individual who refuses to allow the home visit could either
be a welfare recipient at the time or an applicant for assistance.
In neither case would the outcome of the refusal be different.
If the mother is already a recipient, Social Services
Regulations § 351.21, 18 NYCRR § 351.21, requires continuing
contacts at home between the recipient and the social worker.
Should a recipient refuse a visit, then § 175 of the Policies
Governing the Administration of Public Assistance ("Mandatory
visits must be made in accordance with law that requires that
persons be visited. . . .") would require termination. When the
decision to "discontinue, suspend or reduce" benefits is made, the
recipient would receive a hearing under § 351.26 at which the
recipient could present "written and oral relevant evidence and
argument to demonstrate why his grant should not be discontinued,
suspended or reduced." Since § 134 of the Social Services Law
requires visits, the refusal to allow the visit would apparently be
dispositive of the matter.
That seems to be conceded here by the commissioner. In light of
that fact, the failure of appellee, who went to a hearing and was
denied relief, to pursue any further state remedy seems irrelevant,
as the only question posed was the constitutionality under the
Fourth Amendment of the termination of assistance for failure to
agree to the warrantless entry into her home.
Except in very limited circumstances (Social Services
Regulations §§ 351.10 and 372 (Emergency Assistance)), an initial
home visit and investigation is necessary before receiving
benefits. Should a potential recipient refuse the initial visit, he
would be notified under § 351.14(b) of the reason for the denial.
Then he could request a "fair hearing" under Board Rule 85 and
Social Services Regulations § 358. Again, it appears that refusing
the visit would be dispositive of the claim.
The extent to which a person could receive emergency assistance
after refusal of a visit is unclear. Social Services Regulations §
372.3 recognizes that emergency assistance could be available to a
person while the "fair hearing" is pending. It would seem, however,
that implicit in § 372.3 is the notion that, if the claim is
disposed of, then the emergency assistance would terminate. Also
emergency assistance is limited to periods not in excess of 30
consecutive days in any 12-month period. Social Services
Regulations § 372.1.
[
Footnote 2/11]
Jones, The Rule of Law and the Welfare State, 58 Col.L.Rev. 143,
154-155 (1958).
[
Footnote 2/12]
J. Acton, Essays on Freedom and Power 364 (H. Finer
ed.1948).
[
Footnote 2/13]
Mass raids upon the homes of welfare recipients are matters of
record.
See Parrish v. Civil Service
Comm'n, 66 Cal. 2d
260, 425 P.2d 223, where an inspector was discharged because he
refused to engage in such "illegal activity," and was granted
relief by way of back pay.
MR. JUSTICE MARSHALL, whom MR. JUSTICE BRENNAN joins,
dissenting.
Although I substantially agree with its initial statement of the
issue in this case, the Court's opinion goes on to imply that the
appellee has refused to provide information germane to a
determination of her eligibility for AFDC benefits. The record
plainly shows, however, that Mrs. James offered to furnish any
information that the appellants desired and to be interviewed at
any place other than her home. Appellants rejected her offers and
terminated her benefits solely on the ground that she refused to
permit a home visit. In addition, appellants make no contention
that any sort of probable cause exists to suspect appellee of
welfare fraud or child abuse.
Simply stated, the issue in this case is whether a state welfare
agency can require all recipients of AFDC benefits to submit to
warrantless "visitations" of their homes. In answering that
question, the majority dodges between constitutional issues to
reach a result clearly inconsistent with the decisions of this
Court. We are told that there is no search involved in this case;
that, even if there were a search, it would not be unreasonable;
and that, even if this were an unreasonable search, a welfare
recipient waives her right to object by accepting benefits. I
emphatically disagree with all three conclusions. Furthermore, I
believe that binding regulations of the Department of Health,
Education, and Welfare prohibit appellants from requiring the home
visit.
I
The Court's assertion that this case concerns no search "in the
Fourth Amendment meaning of that term" is neither "obvious" nor
"simple." I should have thought that the Fourth Amendment governs
all intrusions by agents of the public upon personal security,
Page 400 U. S. 339
Terry v. Ohio, 392 U. S. 1,
392 U. S. 18 n.
15 (1968). As MR. JUSTICE HARLAN has said:
"[T]he Constitution protects the privacy of the home against all
unreasonable intrusion of whatever character. . . . '[It applies]
to all invasions on the part of the government and its employes of
the sanctity of a man's home.'"
Poe v. Ullman, 367 U. S. 497,
367 U. S.
550-551 (1961) (dissenting opinion). This Court has
rejected as "anomalous" the contention that only suspected
criminals are protected by the Fourth Amendment,
Camara v.
Municipal Court, 387 U. S. 523,
387 U. S. 530
(1967). In an era of rapidly burgeoning governmental activities and
their concomitant inspectors, caseworkers, and researchers, a
restriction of the Fourth Amendment to "the traditional criminal
law context" tramples the ancient concept that a man's home is his
castle. Only last Term, we reaffirmed that this concept has lost
none of its vitality,
Rowan v. United States Post Office,
397 U. S. 728,
397 U. S. 738
(1970).
Even if the Fourth Amendment does not apply to each and every
governmental entry into the home, the welfare visit is not some
sort of purely benevolent inspection. No one questions the motives
of the dedicated welfare caseworker. Of course, caseworkers seek to
be friends, but the point is that they are also required to be
sleuths. The majority concedes that the "visitation" is partially
investigative, but claims that this investigative aspect has been
given too much emphasis. Emphasis has indeed been given. Time and
again, in briefs and at oral argument, appellants emphasized the
need to enter AFDC homes to guard against welfare fraud and child
abuse, both of which are felonies. [
Footnote 3/1] The New York
Page 400 U. S. 340
statutes provide emphasis by requiring all caseworkers to report
any evidence of fraud that a home visit uncovers, N.Y. Social
Services Law 145. And appellants have strenuously emphasized the
importance of the visit to provide evidence leading to civil
forfeitures including elimination of benefits and loss of child
custody.
Actually, the home visit is precisely the type of inspection
proscribed by Camara and its companion case,
See v. City of
Seattle, 387 U. S. 541
(1967), except that the welfare visit is a more severe intrusion
upon privacy and family dignity. Both the home visit and the
searches in those cases may convey benefits to the householder.
Fire inspectors give frequent advice concerning fire prevention,
wiring capacity, and other matters, and obvious self-interest
causes many to welcome the fire or safety inspection. Similarly,
the welfare caseworker may provide welcome advice on home
management and child care. Nonetheless, both searches may result in
the imposition of civil penalties -- loss or reduction of welfare
benefits or an order to upgrade a housing defect. The fact that one
purpose of the visit is to provide evidence that may lead to an
elimination of benefits is sufficient to grant appellee protection
since Camara stated that the Fourth Amendment applies to
inspections which can result in only civil violations, 387 U.S. at
387 U. S. 531.
But here the case is stronger since the home visit, like many
housing inspections, may lead to criminal convictions.
The Court attempts to distinguish
See and
Camara by telling us that those cases involved "true" and
"genuine" searches. The only concrete distinction offered is that
See and
Camara concerned criminal prosecutions
for refusal to permit the search. The
Camara opinion did
observe that one could be prosecuted for a refusal to allow that
search; but, apart from the issue of consent, there is neither
logic in, nor precedent for, the view that the
Page 400 U. S. 341
ambit of the Fourth Amendment depends not on the character of
the governmental intrusion but on the size of the club that the
State wields against a resisting citizen. Even if the magnitude of
the penalty were relevant, which sanction for resisting the search
is more severe? For protecting the privacy of her home, Mrs. James
lost the sole means of support for herself and her infant son. For
protecting the privacy of his commercial warehouse, Mr. See
received a $100 suspended fine.
Conceding for the sake of argument that someone might view the
"visitation" as a search, the majority nonetheless concludes that
such a search is not unreasonable. However, its mode of reaching
that conclusion departs from the entire history of Fourth Amendment
case law. Of course, the Fourth Amendment test is reasonableness,
but, in determining whether a search is reasonable, this Court is
not free merely to balance, in a totally
ad hoc fashion,
any number of subjective factors. An unbroken line of cases holds
that, subject to a few narrowly drawn exceptions, any search
without a warrant is constitutionally unreasonable,
see, e.g.,
Agnello v. United States., 269 U. S. 20,
269 U. S. 32
(1925);
Johnson v. United States, 333 U. S.
10,
333 U. S. 13-14
(1948);
Chapman v. United States, 365 U.
S. 610,
365 U. S.
613-615 (1961);
Camara v. Municipal Court,
387 U. S. 523,
387 U. S.
528-529 (1967);
Chimel v. California,
395 U. S. 752,
395 U. S. 762
(1969);
Vale v. Louisiana, 399 U. S.
30,
399 U. S. 34-35
(1970). In this case, no suggestion that evidence will disappear,
that a criminal will escape, or that an officer will be injured
justifies the failure to obtain a warrant. Instead, the majority
asserts what amounts to three state interests that allegedly render
this search reasonable. None of these interests is sufficient to
carve out a new exception to the warrant requirement.
First, it is argued that the home visit is justified to protect
dependent children from "abuse" and "exploitation."
Page 400 U. S. 342
These are heinous crimes, but they are not confined to indigent
households. Would the majority sanction, in the absence of probable
cause, compulsory visits to all American homes for the purpose of
discovering child abuse? Or is this Court prepared to hold as a
matter of constitutional law that a mother, merely because she is
poor, is substantially more likely to injure or exploit her
children? Such a categorical approach to an entire class of
citizens would be dangerously at odds with the tenets of our
democracy.
Second, the Court contends that caseworkers must enter the homes
of AFDC beneficiaries to determine eligibility. Interestingly,
federal regulations do not require the home visit. In fact, the
regulations specify the recipient himself as the primary source of
eligibility information, thereby rendering an inspection of the
home only one of several alternative secondary sources. [
Footnote 3/2] The majority's implication
that a biannual home visit somehow assures the verification of
actual residence or actual physical presence in the home strains
credulity in the context of urban poverty. Despite the caseworker's
responsibility for dependent children, he is not even required to
see the children as a part of the home visit. [
Footnote 3/3] Appellants offer scant explanation
for their refusal even to attempt to utilize public records,
expenditure receipts, documents such as leases, non-home
interviews, personal financial records, sworn declarations, etc. --
all sources that governmental agencies regularly accept as
adequate
Page 400 U. S. 343
to establish eligibility for other public benefits. In this
setting, it ill behooves appellants to refuse to utilize
informational sources less drastic than an invasion of the privacy
of the home.
We are told that the plight of Mrs. James is no different from
that of a taxpayer who is required to document his right to a tax
deduction, but this analogy is seriously flawed. The record shows
that Mrs. James has offered to be interviewed anywhere other than
her home, to answer any questions, and to provide any documentation
that the welfare agency desires. The agency curtly refused all
these offers and insisted on its "right" to pry into appellee's
home. Tax exemptions are also governmental "bounty." A true analogy
would be an Internal Revenue Service requirement that, in order to
claim a dependency exemption, a taxpayer must allow a specially
trained IRS agent to invade the home for the purpose of questioning
the occupants and looking for evidence that the exemption is being
properly utilized for the benefit of the dependent. If such a
system were even proposed, the cries of constitutional outrage
would be unanimous.
Appellants offer a third state interest that the Court seems to
accept as partial justification for this search. We are told that
the visit is designed to rehabilitate, to provide aid. This is
strange doctrine indeed. A paternalistic notion that a complaining
citizen's constitutional rights can be violated so long as the
State is somehow helping him is alien to our Nation's philosophy.
More than 40 years ago, Mr. Justice Brandeis warned:
"Experience should teach us to be most on our guard to protect
liberty when the Government's purposes are beneficent."
Olmstead v. United States, 277 U.
S. 438,
277 U. S. 479
(1928) (dissenting opinion).
Page 400 U. S. 344
Throughout its opinion, the majority alternates between two
views of the State's interest in requiring the home visit. First we
are told that the State's purpose is benevolent so that no search
is involved. Next we are told that the State's need to prevent
child abuse and to avoid the misappropriation of welfare funds
justifies dispensing with the warrant requirement. But when all the
State's purposes are considered at one time, I can only conclude
that the home visit is a search and that, absent a warrant, that
search is unreasonable. [
Footnote
3/4]
Although the Court does not agree with my conclusion that the
home visit is an unreasonable search, its opinion suggests that,
even if the visit were unreasonable, appellee has somehow waived
her right to object. Surely the majority cannot believe that valid
Fourth Amendment consent can be given under the threat of the loss
of one's sole means of support. Nor has Mrs. James waived her
rights. Had the Court squarely faced the question of whether the
State can condition welfare payments on the waiver of clear
constitutional rights, the answer would be plain. The decisions of
this Court do not support the notion that a State can use welfare
benefits as a wedge to coerce "waiver" of Fourth Amendment rights,
see Reich, Midnight Welfare Searches and the Social
Security Act, 72 Yale L.J. 1347, 1349-1350 (1963); Note,
Rehabilitation, Investigation and the Welfare Home Visit, 79 Yale
L.J. 746, 758
Page 400 U. S. 345
(1970). In
Sherbert v. Verner, [
Footnote 3/5] this Court did not say, "Aid merely
ceases. There is no abridgment of religious freedom." Nor did the
Court say in
Speiser v.Randall, [
Footnote 3/6] "The tax is simply increased. No one is
compelled to relinquish First Amendment rights." As my Brother
Douglas points out, the majority's statement that Mrs. James'
"choice [to be searched or to lose her benefits] is entirely hers,
and nothing of constitutional magnitude is involved" merely
restates the issue. To MR. JUSTICE DOUGLAS' eloquent discussion of
the law of unconstitutional conditions, I would add only that this
Court last Term reaffirmed
Sherbert and
Speiser
as applicable to the law of public welfare:
"Relevant constitutional restraints apply as much to the
withdrawal of public assistance benefits as to disqualification for
unemployment compensation . . . denial of a tax exemption . . . or
. . . discharge from public employment."
Goldberg v. Kelly, 397 U. S. 254,
397 U. S. 262
(1970).
II
The Court's examination of the constitutional issues presented
by this case has constrained me to respond. It would not have been
necessary to reach these questions, for I believe that HEW
regulations, binding on the States, prohibit the unconsented home
visit. [
Footnote 3/7]
Page 400 U. S. 346
The federal Handbook of Public Assistance Administration
provides:
"The [state welfare] agency especially guards against violations
of legal rights and common decencies in such areas as entering a
home by force,
or without permission, or under false
pretenses; making home visits outside of working hours, and
particularly making such visits during sleeping hours. . . ."
Part IV, § 2300(a) (emphasis supplied). Although the tone of
this language is descriptive, HEW requirements are Stated in terms
of principles and objectives, Handbook, pt. I, § 4210(3); and
appellants do not contend that this regulation is merely advisory.
Instead, appellants respond with the tired assertion that consent
obtained by threatening termination of benefits constitutes valid
permission under this regulation. There is no reason to suspect
that HEW shares this crabbed view of consent. The Handbook, itself,
insists on careful scrutiny of purported consent, pt. IV, § 2400.
Section 2200(a) is designed to protect the privacy of welfare
recipients, and it would be somewhat ironic to adopt a construction
of the regulation that provided that any person who invokes his
privacy rights ceases to be a recipient.
Appellants next object that the home visit has long been a part
of welfare administration, and has never been disapproved by HEW.
The short answer to this is that we deal with only the unconsented
home visit. The general utility and acceptance of the home visit
casts little light on whether HEW might prefer not to impose the
visit on unwilling recipients. Appellants also remind us that the
Federal Government itself requires a limited number of home visits
for sampling purposes.
Page 400 U. S. 347
However, while there may well be a special need to employ
mandatory visits as a part of quality control samples, Mrs. James'
home was not a part of such a sample. Furthermore, appellants admit
that § 2200(a) governs the quality control program, so it is not
clear that unconsented home visits are allowed even for sampling
purposes. Although there appears to be no regulatory history,
appellants tell us § 2200(a) merely permits a recipient to refuse a
particular home visit, and does not allow him to forbid home visits
altogether. I suppose that one could read such a limitation into
the section, but, given the regulation's explicit language, given
that HEW does not require home visits and views the visits as only
one of several alternative sources of eligibility information,
given HEW's concern for the privacy of its clients, and given the
durable principle of this Court that doubtful questions of
interpretation should be resolved in a manner which avoids
constitutional questions,
United States v. Delaware &
Hudson Co., 213 U. S. 366,
213 U. S. 407
(1909), I would conclude that Mrs. James is protected by §
2200(a).
III
In deciding that the homes of AFDC recipients are not entitled
to protection from warrantless searches by welfare caseworkers, the
Court declines to follow prior case law, and employs a rationale
that, if applied to the claims of all citizens, would threaten the
vitality of the Fourth Amendment. This Court has occasionally
pushed beyond established constitutional contours to protect the
vulnerable and to further basic human values. I find no little
irony in the fact that the burden of today's departure from
principled adjudication is placed upon the lowly poor. Perhaps the
majority has explained why a commercial warehouse deserves more
protection than does this poor woman's home. I am not convinced,
and therefore I must respectfully dissent.
[
Footnote 3/1]
For example, appellants' Reply Brief offers two specific
illustrations of the home visit's efficacy. In the first, a man was
discovered in the home and benefit were terminated. In the second,
child abuse was discovered.
[
Footnote 3/2]
HEW Handbook of Public Assistance Administration, pt. IV, §
2200(e)(1).
[
Footnote 3/3]
Appellants respond by asserting that, if the caseworker becomes
suspicious concerning the child's absence, further investigation
may take place. One certainly would hope that the caseworker would
continue his investigation, but the fact remains that the failure
to require that the child be seen undercuts the argument that the
home visit is designed to protect the child's welfare and necessary
to verify his presence in the home.
[
Footnote 3/4]
Since the majority refuses to sanction the warrant procedure in
any form, I have not discussed what standard should be required for
a warrant to issue. Certainly, if one of the purposes of the
welfare search is to obtain evidence of criminal conduct, that is
no reason to permit less than probable cause. And because the home
visit is a more severe intrusion than is the housing inspection and
there are less drastic means to obtain eligibility information, I
would apply the analysis of
Camara and would be inclined
to utilize a traditional probable cause standard.
[
Footnote 3/5]
374 U. S. 374 U.S.
398 (1963).
[
Footnote 3/6]
357 U. S. 357 U.S.
513 (1958).
[
Footnote 3/7]
It is a time-honored doctrine that statutes and regulations are
first examined by a reviewing court to see if constitutional
questions can be avoided,
Ashwander v. TVA, 297 U.
S. 288,
297 U. S.
346-348 (1936) (Brandeis, J., concurring);
see,
e.g., Dandridge v. Willlams, 397 U. S. 471
(1970);
King v. Smith, 392 U. S. 309
(1968). The court below chose not to invoke this doctrine, and
litigation in this Court has emphasized the constitutional issues.
However, the nonconstitutional questions were briefed by an
amicus curiae and appellants responded fully in their
Reply Brief. The parties may prefer a decision on constitutional
grounds; but we, of course, are not bound by their litigation
strategies.