Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 Social Security, Welfare, and Other Public Payments Public Assistance In general; right to support Public Assistance Administrative Proceedings 90 S.Ct. 1011 Supreme Court of the United States Jack R. GOLDBERG, Commissioner of Social Services of the City of New York, Appellant, v. John KELLY et al. No. 62. | Argued Oct. 13, 1969. | Decided March 23, 1970. New York City residents receiving financial aid under federally-assisted program of Aid to Families with Dependent Children or under New York State's general Home Relief program brought suit challenging adequacy of procedures for notice and hearing in connection with termination of such aid. The three-judge United States District Court for the Southern District of New York, 294 F.Supp. 893, entered judgment in [2] favor of plaintiffs, and defendant appealed. The Supreme Court, Mr. Justice Brennan, held that procedural due process requires that pretermination evidentiary hearing be held when public assistance payments to welfare recipient are discontinued, and further held that procedures followed by city of New York in terminating public assistance payments to welfare recipients were constitutionally inadequate in failing to permit recipients to appear personally with or without counsel before official who finally determined continued eligibility and failing to permit recipient to present evidence to that official orally or to confront or cross-examine adverse witnesses. Affirmed. [3] Mr. Chief Justice Burger and Mr. Justice Black dissented. For dissenting opinions of Mr. Chief Justice Burger and Mr. Justice Stewart see 397 U.S. 282, 285, 90 S.Ct. 1028, 1029. West Headnotes (25) [1] Welfare benefits are a matter of statutory entitlement for persons qualified to receive them and their termination involves state action that adjudicates important rights, and procedural due process is applicable to termination of welfare benefits. U.S.C.A.Const. Amend. 14. 224 Cases that cite this headnote Constitutional Law Public funds and assistance A constitutional challenge to termination of welfare benefits cannot be answered by argument that public assistance benefits are a \"privilege\" rather than a \"right.\" U.S.C.A.Const. Amend. 14. 29 Cases that cite this headnote Constitutional Law Social Security, Welfare, and Other Public Payments Relevant constitutional restraints apply to withdrawal of public assistance benefits. U.S.C.A.Const. Amend. 14. 13 Cases that cite this headnote Constitutional Law 2012 Thomson Reuters. No claim to original U.S. Government Works. 1 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 [4] Constitutional Law Proceedings in general welfare recipient is no longer eligible and by reducing number of evidentiary hearings actually held would not be sufficient to justify failure to provide pretermination evidentiary hearing and instead delay evidentiary hearing until after discontinuance of grants. U.S.C.A.Const. Amend. 14. Extent to which procedural due process must be afforded welfare recipient is influenced by extent to which he may be condemned to suffer grievous loss and depends on whether recipient's interest in avoiding that loss outweighs governmental interest in summary adjudication. U.S.C.A.Const. Amend. 14. 47 Cases that cite this headnote 302 Cases that cite this headnote [8] [5] Constitutional Law Proceedings in general Constitutional Law Proceedings in general Due process does not require two hearings in connection with termination of public assistance benefits to welfare recipients, and if a state wishes to continue benefits until after a fair hearing there will be no need for a preliminary hearing. U.S.C.A.Const. Amend. 14. Some governmental benefits may be administratively terminated without affording recipient a pretermination evidentiary hearing. U.S.C.A.Const. Amend. 14. 66 Cases that cite this headnote 280 Cases that cite this headnote [9] [6] Constitutional Law Proceedings in general Public Assistance Notice and hearing Hearing prior to termination of public assistance benefits to welfare recipients has only function of producing an initial determination of validity of welfare department's grounds for discontinuance of payments in order to protect recipient against an erroneous termination of his benefits. U.S.C.A.Const. Amend. 14. Procedural due process requires that pretermination evidentiary hearing be held when public assistance payments to welfare recipient are discontinued. U.S.C.A.Const. Amend. 14. 167 Cases that cite this headnote 33 Cases that cite this headnote [7] Public Assistance Notice and hearing [10] Governmental interests in conserving fiscal and administrative resources by stopping payments promptly on discovery of reason to believe that Public Assistance Notice and hearing Hearing prior to termination of public assistance 2012 Thomson Reuters. No claim to original U.S. Government Works. 2 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 benefits to welfare recipients need not provide complete record and comprehensive opinion that would serve primarily to facilitate judicial review and need not take form of judicial or quasi-judicial trial. U.S.C.A.Const. Amend. 14. on proposed termination of public assistance benefits to recipients of financial aid under federally-assisted program of Aid to Families With Dependent Children or under New York State's general Home Relief program was not constitutionally insufficient per se although there might be cases where fairness would require that longer time be given. U.S.C.A.Const. Amend. 14; Social Security Act, 401-410 as amended 42 U.S.C.A. 601-610; Social Services Law N.Y. 157-166, 158, 343-362. 22 Cases that cite this headnote [11] Constitutional Law Notice and Hearing Fundamental requisite of due process of law is opportunity to be heard and hearing must be at meaningful time and in meaningful manner. U.S.C.A.Const. Amend. 14. 210 Cases that cite this headnote [14] 340 Cases that cite this headnote [12] Public Assistance Notice and hearing Notice given by city of New York of proposed termination of public assistance payments to welfare recipients by employing both letter and personal conference with caseworker to inform recipient of precise questions raised about his continued eligibility satisfied constitutional requirements as to content or form of notice. U.S.C.A.Const. Amend. 14; Social Security Act, 401-410 as amended 42 U.S.C.A. 601- 610; Social Services Law N.Y. 157-166, 158, 343-362. Constitutional Law Proceedings in general Due process would require that welfare recipient on proposed termination of public assistance benefits be given timely and adequate notice detailing reasons for proposed termination and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own argument and evidence orally. U.S.C.A.Const. Amend. 14. 14 Cases that cite this headnote 676 Cases that cite this headnote [15] [13] Public Assistance Reduction, Termination, or Temporary Termination of Benefits Public Assistance Notice and hearing Seven days' notice provided by New York City Public Assistance Notice and hearing Procedures followed by city of New York in terminating public assistance payments to welfare recipients were constitutionally inadequate in failing to permit recipients to appear personally with or without counsel before official who finally determined continued eligibility and failing to permit recipient to 2012 Thomson Reuters. No claim to original U.S. Government Works. 3 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 present evidence to that official orally or to confront or cross-examine adverse witnesses. U.S.C.A.Const Amend. 14; Social Security Act, 401-410 as amended 42 U.S.C.A. 601- 610; Social Services Law N.Y. 157-166, 158, 343-362. 95 Cases that cite this headnote [16] are wholly unsatisfactory basis for decision. 35 Cases that cite this headnote [19] Constitutional Law Proceedings in general Public Assistance Evidence On proposed termination of public assistance payments to welfare recipient, recipient must be allowed to state his position orally but informal procedures will suffice and due process does not require a particular order of proof or mode of offering evidence. U.S.C.A.Const. Amend. 14. Constitutional Law Notice and Hearing Due process requirement of opportunity to be heard must be tailored to capacities and circumstances of those who are to be heard. U.S.C.A.Const. Amend. 14. 254 Cases that cite this headnote 233 Cases that cite this headnote [20] [17] Constitutional Law Proceedings in general It is not enough to satisfy due process that welfare recipient on proposed termination of public assistance payments be permitted to present his position to decisionmaker in writing or secondhand through caseworker; instead, recipient must be allowed to state his position orally and be given an opportunity to confront and cross-examine witnesses relied on by department. U.S.C.A.Const. Amend. 14. Constitutional Law Witnesses; confrontation and crossexamination In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and crossexamine adverse witnesses. U.S.C.A.Const. Amend. 14. 152 Cases that cite this headnote 291 Cases that cite this headnote [21] [18] Administrative Law and Procedure Decision Particularly where credibility and veracity are at issue, written submissions of person's position Criminal Law Right of Accused to Confront Witnesses Privileged Communications and Confidentiality Public Officers and Records It has been a relatively immutable principle that where governmental action seriously injures an individual and reasonableness of that action 2012 Thomson Reuters. No claim to original U.S. Government Works. 4 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 depends on fact-findings, evidence used to prove government's case must be disclosed to individual so that he has opportunity to show that it is untrue. for his determination and indicate evidence he relied on, though his statement need not amount to full opinion or even formal findings of fact and conclusions of law. U.S.C.A.Const. Amend. 14. 34 Cases that cite this headnote 351 Cases that cite this headnote [22] Administrative Law and Procedure Production and reception of evidence in general Rights of confrontation and cross-examination apply not only in criminal cases but also in all types of cases where administrative actions are under scrutiny. 15 Cases that cite this headnote [23] Public Assistance Notice and hearing At hearing to be provided welfare recipient prior to termination of public assistance benefits, recipient must be allowed to retain an attorney if he so desires. U.S.C.A.Const. Amend. 14. [25] Administrative Law and Procedure Bias, prejudice or other disqualification to exercise powers Public Assistance Notice and hearing An impartial decision maker is essential in hearing provided welfare recipient prior to termination of public assistance payments and, though prior involvement in some aspects of case will not necessarily bar welfare official from acting as decision maker, decision maker should not have participated in making determination under review. U.S.C.A.Const. Amend. 14. 122 Cases that cite this headnote 37 Cases that cite this headnote Attorneys and Law Firms **1013 *255 John J. Loflin, Jr., New York City, for appellant. [24] Public Assistance Notice and hearing Public Assistance Findings and determination Decision maker's conclusion as to welfare recipient's eligibility to public assistance payments must rest solely on legal rules and evidence adduced at pretermination hearing and, to demonstrate compliance with that requirement, decision maker should state reasons **1014 Lee A. Albert, New York City, for appellees. Opinion Mr. Justice BRENNAN delivered the opinion of the Court. The question for decision is whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in 2012 Thomson Reuters. No claim to original U.S. Government Works. 5 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 violation of the Due Process Clause of the FourteenthSocial Services promulgated Procedure No. 6818. A Amendment. caseworker who has doubts about the recipient's continued eligibility must first discuss them with the recipient. If the This action was brought in the District Court for the Southern caseworker concludes that the recipient is no longer eligible, District of New York by residents of New *256 York Cityhe recommends termination *259 of aid to a unit supervisor. If receiving financial aid under the federally assisted program of the latter concurs, he sends the recipient a letter stating the Aid to Families with Dependent Children (AFDC) or under reasons for proposing to terminate aid and notifying him that New York State's general Home Relief program. 1 Theirwithin seven days he may request that a higher official review complaint alleged that the New York State and New York City the record, and may support the request with a written officials administering these programs terminated, or were statement prepared personally or with the aid of an attorney or about to terminate, such aid without prior notice and hearing, other person. If the reviewing official affirms the thereby denying them due process of law. 2 At the time *257determination of ineligibility, aid is stopped immediately and the suits were filed there was no requirement of prior notice or the recipient is informed by letter of the reasons for the action. hearing of any kind before termination of financial aid. Appellees' challenge to this procedure emphasizes the absence However, the State and city adopted procedures for notice and of any provisions for the personal appearance of the recipient hearing after the suits were brought, and the plaintiffs, before the reviewing official, **1016 for oral presentation of appellees here, then challenged the constitutional adequacy of evidence, and for confrontation and cross-examination of those procedures. adverse witnesses.4 However, the letter does inform the recipient that he may request a post-termination 'fair The State Commissioner of Social Services amended the State hearing.'5 This is a proceeding before an independent *260 Department of Social Services' Official Regulations to require state hearing officer at which the recipient may appear that local social services officials proposing to discontinue or personally, offer oral evidence, confront and cross-examine suspend a recipient's financial aid do so according to a the witnesses against him, and have a record made of the procedure that conforms to either subdivision (a) or hearing. If the recipient prevails at the 'fair hearing' he is paid subdivision (b) of s 351.26 of the regulations as amended. 3 all funds erroneously withheld.6 HEW Handbook, pt. IV, ss The City of New York *258 elected to **1015 promulgate a 62006500; 18 NYCRR ss 84.284.23. A recipient whose local procedure according to subdivision (b). That subdivision, aid is not restored by a 'fair hearing' decision may have so far as here pertinent, provides that the local procedure must judicial review. N.Y.Civil Practice Law and Rules, Art. 78 include the giving of notice to the recipient of the reasons for a (1963). The recipient is so notified, 18 NYCRR s 84.16. proposed discontinuance or suspension at least seven days prior to its effective date, with notice also that upon request the recipient may have the proposal reviewed by a local welfare official holding a position superior to that of the I supervisor who approved the proposed discontinuance or suspension, and, further, that the recipient may submit, for The constitutional issue to be decided, therefore, is the narrow purposes of the review, a written statement to demonstrate one whether the Due Process Clause requires that the recipient why his grant should not be discontinued or suspended. The be afforded an evidentiary hearing before the termination of decision by the reviewing official whether to discontinue or benefits.7 The District Court held *261 that only a suspend aid must be made expeditiously, with written noticepretermination evidentiary hearing would satisfy the of the decision to the recipient. The section further expressly constitutional command, and rejected the argument of the state provides that '(a)ssistance shall not be discontinued orand city officials that the combination of the post-termination suspended prior to the date such notice of decision is sent to 'fair hearing' with the informal pre-termination review the recipient and his representative, if any, or prior to the disposed of all due process claims. The court said: 'While proposed effective date of discontinuance or suspension,post-termination review is **1017 relevant, there is one overpowering fact which controls here. By hypothesis, a whichever occurs later.' welfare recipient is destitute, without funds or assets. * * * Pursuant to subdivision (b), the New York City Department of Suffice it to say that to cut off a welfare recipient in the face of 2012 Thomson Reuters. No claim to original U.S. Government Works. 6 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 * * * 'brutal need' without a prior hearing of some sort isas we said in Cafeteria & Restaurant Workers Union, etc. v. unconscionable, unless overwhelming considerations justify McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 17481749, 6 it.' Kelly v. Wyman, 294 F.Supp. 893, 899, 900 (1968). TheL.Ed.2d 1230 (1961), 'consideration of what procedures due court rejected the argument that the need to protect the process may require under any given set of circumstances public's tax revenues supplied the requisite 'overwhelmingmust begin with a determination of the precise nature of the consideration.' 'Against the justified desire to protect public government function involved as well as of the private interest funds must be weighed the individual's overpowering need in that has been affected by governmental action.' See also this unique situation not to be wrongfully deprived of Hannah v. Larche, 363 U.S. 420, 440, 442, 80 S.Ct. 1502, assistance. * * * While the problem of additional expense 1513, 1514, 4 L.Ed.2d 1307 (1960). must be kept in mind, it does not justify denying a hearing [5] [6] It is true, of course, that some governmental benefits meeting the ordinary standards of due process. Under all the may be administratively terminated without affording the circumstances, we hold that due process requires an adequaterecipient a pre-termination evidentiary hearing. 10 *264 But we hearing before termination of welfare benefits, and the fact agree with the District Court that when welfare is that there is a later constitutionally fair proceeding does not discontinued, only a pre-termination evidentiary hearing alter the result.' Id., at 901. Although state officials were partyprovides the recipient with procedural due process. Cf. defendants in the action, only the Commissioner of Social Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. Services of the City of New York appealed. We noted probable 1820, 23 L.Ed.2d 349 (1969). For qualified recipients, welfare jurisdiction, 394 U.S. 971, 89 S.Ct. 1469, 22 L.Ed.2d 751 provides the means to obtain essential food, clothing, housing, (1969), to decide important issues that have been the subject and medical care.11 Cf. Nash v. Florida Industrial of disagreement in principle between the three-judge court in Commission, 389 U.S. 235, 239, 88 S.Ct. 362, 366, 19 the present case and that convened in Wheeler v. Montgomery,L.Ed.2d 438 (1967). Thus the crucial factor in this contexta 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307. We affirm. factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer [1] [2] [3] [4] Appellant does not contend that procedural duedenied a tax exemption, or virtually anyone else whose process is not applicable to the termination of welfare benefits.governmental entitlements are endedis that termination of *262 Such benefits are a matter of statutory entitlement for aid pending resolution of a controversy over eligibility may persons qualified to receive them.8 Their termination involvesdeprive an eligible recipient of the very means by which to state action that adjudicates important rights. The live while he waits. Since he lacks independent resources, his constitutional challenge cannot be answered by an argument situation becomes immediately desperate. His need to that public assistance benefits are \"a 'privilege' and not a concentrate upon finding the means for daily subsistence, in 'right.' \" Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 turn, adversely **1019 affects his ability to seek redress from S.Ct. 1322, 1327 (1969). Relevant constitutional restraintsthe welfare bureaucracy.12 apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation,Moreover, important governmental interests are promoted by Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d affording recipients a pre-termination evidentiary hearing. 965 (1963); or to denial of a tax exemption, Speiser v.From its founding the Nation's basic *265 commitment has Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958);been to foster the dignity and well-being of all persons within or to discharge from public employment, Slochower v. Boardits borders. We have come to recognize that forces not within of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. the control of the poor contribute to their poverty. 13 This 692 (1956).9 The extent to **1018 which procedural dueperception, against the background of our traditions, has process *263 must be afforded the recipient is influenced bysignificantly influenced the development of the contemporary the extent to which he may be 'condemned to suffer grievous public assistance system. Welfare, by meeting the basic loss,' Joint Anti-Fascist Refugee Committee v. McGrath, 341 demands of subsistence, can help bring within the reach of the U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) poor the same opportunities that are available to others to (Frankfurter, J., concurring), and depends upon whether the participate meaningfully in the life of the community. At the recipient's interest in avoiding that loss outweighs the same time, welfare guards against the societal malaise that governmental interest in summary adjudication. Accordingly, may flow from a widespread sense of unjustified frustration 2012 Thomson Reuters. No claim to original U.S. Government Works. 7 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 and insecurity. Public assistance, then, is not mere charity, but F.Supp., at 904905. a means to 'promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.' The same governmental interests that counsel the provision of welfare, II counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are [8] [9] [10] We also agree with the District Court, however, indispensable to that end. that the pre-termination hearing need not take the form of a Appellant does not challenge the force of these considerations judicial or quasi-judicial trial. We bear in mind that the but argues that they are outweighed by countervailing statutory 'fair hearing' will provide the recipient *267 with a governmental interests in conserving fiscal and administrative full administrative review.14 Accordingly, the pre-termination resources. These interests, the argument goes, justify the delay hearing has one function only: to produce an initial of any evidentiary hearing until after discontinuance of the determination of the validity of the welfare department's grants. Summary adjudication protects the public fisc bygrounds for discontinuance of payments in order to protect a stopping payments promptly upon discovery of reason to recipient against an erroneous termination of his benefits. Cf. believe that a recipient is no longer eligible. Since most Sniadach v. Family Finance Corp., 395 U.S. 337, 343, 89 S.Ct. terminations are accepted without challenge, summary1820, 1823, 23 L.Ed.2d 349 (1969) (Harlan, J., concurring). adjudication also conserves both the fisc and administrative Thus, a complete record and a comprehensive opinion, which time and energy by reducing the number of evidentiarywould serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination hearings actually held. stage. We recognize, too, that both welfare authorities and *266 [7] We agree with the District Court, however, that theserecipients have an interest in relatively speedy resolution of governmental interests are not overriding in the welfare questions of eligibility, that they are used to dealing with one context. The requirement of a prior hearing doubtless involves another informally, and that some welfare departments have some greater expense, and the benefits paid to ineligible very burdensome caseloads. These considerations justify the recipients pending decision at the hearing probably cannot be limitation of the pre-termination hearing to minimum recouped, since these recipients are likely to be judgment- procedural safeguards, adapted to the particular characteristics proof. But the State is not without weapons to minimize these of welfare recipients, and to the limited nature of the increased costs. Much of the drain on fiscal and administrative controversies to be resolved. We wish to add that we, no less resources can be reduced by developing procedures for promptthan the dissenters, recognize the importance of not imposing pre-termination hearings and by skillful use of personnel and upon the States or the Federal Government in this developing facilities. Indeed, the very provision for a post-termination field of law any procedural requirements beyond those evidentiary hearing in New York's Home Relief program isdemanded by rudimentary due process. itself cogent evidence that the State recognizes the primacy of[11] [12] 'The fundamental requisite of due process of law is the public interest in correct eligibility determinations andthe opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, therefore in the provision of procedural safeguards. Thus, the 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). The hearing interest of the eligible recipient in uninterrupted receipt of must be 'at a meaningful time and in a meaingful manner.' public assistance, coupled with the State's interest that his Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, payments not be erroneously terminated, clearly outweighs the 14 L.Ed.2d 62 (1965). In the present context these principles State's competing concern to prevent any increase in its fiscal require that a recipient have timely and adequate notice and administrative burdens. As the District Court correctly detailing the reasons for a *268 proposed termination, and an concluded, '(t)he stakes are simply too high for the welfare effective opportunity to defend by confronting any adverse recipient, and the possibility for honest error or irritable witnesses and by presenting his own arguments and evidence misjudgment too great, to allow termination of aid without orally. These rights are important in cases such as those before giving the recipient a chance, if he so desires, to be fully us, where recipients have challenged proposed terminations as informed **1020 of the case against him so that he may resting on incorrect or misleading factual premises or on contest its basis and produce evidence in rebuttal.' 294misapplication of rules or policies to the facts of particular 2012 Thomson Reuters. No claim to original U.S. Government Works. 8 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 cases.15 opportunity to confront and cross-examine adverse witnesses. E.g., ICC v. Louisville & N.R. Co., 227 U.S. 88, 9394, 33 [13] [14] We are not prepared to say that the seven-day notice S.Ct. 185, 187188, 57 L.Ed. 431 (1913); Willner v. currently provided by New York City is constitutionallyCommittee on Character & Fitness, 373 U.S. 96, 103104, insufficient per se, although there may be cases where fairness 83 S.Ct. 1175, 11801181, 10 L.Ed.2d 224 (1963). What we would require that a longer time be given. Nor do we see any said in *270 Greene v. McElroy, 360 U.S. 474, 496497, 79 constitutional deficiency in the content or form of the notice. S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959), is particularly New York employs both a letter and a personal conference pertinent here: with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the 'Certain principles have remained relatively recipient is told the legal and factual bases for the immutable in our jurisprudence. One of these is Department's doubts. This combination is probably **1021 that where governmental action seriously the most effective method of communicating with recipients. injures an individual, and the reasonableness of [15] The city's procedures presently do not permit recipients to appear personally with or without counsel before the official who finally determines continued eligibility. Thus a recipient is not permitted to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures. the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and crossexamination. They have ancient roots. They find expression in the Sixth Amendment * * *. This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, * * * but also in all types of cases where administrative * * * actions were under scrutiny.' [16] [17] [18] [19] The opportunity to be heard must be tailored to the *269 capacities and circumstances of those who are to be heard.16 It is not enough that a welfare recipient may present his position to the decision maker in writing or second-hand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions Welfare recipients must therefore be given an opportunity to are a wholly unsatisfactory basis for decision. The secondconfront and cross-examine the witnesses relied on by the hand presentation to the decisionmaker by the caseworker has department. its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the**1022 [23] 'The right to be heard would be, in many cases, presentation of the recipient's side of the controversy cannot of little avail if it did not comprehend the right to be heard by safely be left to him. Therefore a recipient must be allowed to counsel.' Powell v. Alabama, 287 U.S. 45, 6869, 53 S.Ct. state his position orally. Informal procedures will suffice; in 55, 64, 77 L.Ed. 158 (1932). We do not say that counsel must this context due process does not require a particular order of be provided at the pre-termination hearing, but only that the proof or mode of offering evidence. Cf. HEW Handbook, pt. recipient must be allowed to retain an attorney if he so desires. IV, s 6400(a). Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, [20] [21] [22] In almost every setting where important and generally safeguard the *271 interests of the recipient. We decisions turn on questions of fact, due process requires an 2012 Thomson Reuters. No claim to original U.S. Government Works. 9 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 do not anticipate that this assistance will unduly prolong orThe dilemma of the ever-increasing poor in the midst of otherwise encumber the hearing. Evidently HEW has reachedconstantly growing affluence presses upon us and must the same conclusion. See 45 CFR s 205.10, 34 Fed.Reg. 1144inevitably be met within the framework of our democratic (1969); 45 CFR s 220.25, 34 Fed.Reg. 13595 (1969). constitutional government, if our system is to survive as such. It was largely to escape just such pressing economic problems [24] [25] Finally, the decisionmaker's conclusion as to a and attendant government repression that people from **1023 recipient's eligibility must rest solely on the legal rules andEurope, Asia, and other areas settled this country and formed evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC,our Nation. Many of those settlers had personally suffered 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); Unitedfrom persecutions of various kinds and wanted to get away States v. Abilene & S.R. Co., 265 U.S. 274, 288289, 44 from governments that had unrestrained powers to make life S.Ct. 565, 569570, 68 L.Ed. 1016 (1924). To demonstratemiserable for their citizens. It was for this reason, or so I compliance with this elementary requirement, the decision believe, that on reaching these new lands the early settlers maker should state the reasons for his determination and undertook to curb their governments by confining their powers indicate the evidence he relied on, cf. Wichita R. & Light Co.*273 within written boundaries, which eventually became v. PUC, 260 U.S. 48, 5759, 43 S.Ct. 51, 5455, 67 L.Ed. written constitutions.2 They wrote their basic charters as 124 (1922), though his statement need not amount to a full nearly as men's collective wisdom could do so as to proclaim opinion or even formal findings of fact and conclusions of law. to their people and their officials an emphatic command that: And, of course, an impartial decision maker is essential. Cf. In'Thus far and no farther shall you go; and where we neither re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 delegate powers to you, nor prohibit your exercise of them, we (1955); Wong Yang Sung v. McGrath, 339 U.S. 33, 4546, the people are left free.'3 70 S.Ct. 445, 451452, 94 L.Ed. 616 (1950). We agree with the District Court that prior involvement in some aspects of a Representatives of the people of the Thirteen Original case will not necessarily bar a welfare official from acting as a Colonies spent long, hot months in the summer of 1787 in decision maker. He should not, however, have participated in Philadelphia, Pennsylvania, creating a government of limited making the determination under review. powers. They divided it into three departmentsLegislative, Judicial, and Executive. The Judicial Department was to have Affirmed. no part whatever in making any laws. In fact proposals looking to vesting some power in the Judiciary to take part in the legislative process and veto laws were offered, considered, Mr. Justice BLACK, dissenting. and rejected by the Constitutional Convention. 4 In my *274 judgment there is not one word, phrase, or sentence from the In the last half century the United States, along with many, beginning to the end of the Constitution from which it can be perhaps most, other nations of the world, has moved far inferred that judges were granted any such legislative power. toward becoming a welfare state, that is, a nation that for one True, Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), reason or another taxes its most *272 affluent people to helpheld, and properly, I think, that courts must be the final support, feed, clothe, and shelter its less fortunate citizens. The interpreters of the Constitution, and I recognize that the result is that today more than nine million men, women, andholding can provide an opportunity to slide imperceptibly into children in the United States receive some kind of state or constitutional amendment and law making. But when federal federally financed public assistance in the form of allowances judges use this judicial power for legislative purposes, I think or gratuities, generally paid them periodically, usually by the they wander out of their field of vested powers and transgress week, month, or quarter.1 Since these gratuities are paid on theinto the area constitutionally assigned to the Congress and the basis of need, the list of recipients is not static, and some people. That is precisely what I believe the Court is doing in people go off the lists and others are added from time to time. this case. Hence my dissent. These ever-changing lists put a constant administrative burden The more than a million names on the relief rolls in New on government and it certainly could not have reasonably York,5 and the more than nine million names on the rolls of all anticipated that this burden would include the additional the 50 States were not put there at random. The names are procedural expense imposed by the Court today. 2012 Thomson Reuters. No claim to original U.S. Government Works. 10 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 there because state welfare officials believed that those people woefully deficient. Once the verbiage is pared away it is were eligible for assistance. Probably in the officials' haste to obvious that this Court today adopts the views of the District make out the lists many names were put there erroneously in Court 'that to cut off a welfare recipient in the face of * * * order to alleviate immediate suffering, and undoubtedly some'brutal need' without a prior *276 hearing of some sort is people are drawing relief who are not entitled **1024 underunconscionable,' and therefore, says the Court, the law to do so. Doubtless some draw relief checks from time unconstitutional. The majority reaches this result by a process to time who know they are not eligible, either because they are of weighing 'the recipient's interest in avoiding' the not actually in need or for some other reason. Many of thosetermination of welfare benefits against 'the governmental who thus draw undeserved gratuities are without sufficient interest in summary adjudication.' Ante, at 1018. Today's property to enable the government to collect back from thembalancing act requires a 'pre-termination evidentiary hearing,' any money they wrongfully receive. But the Court today holds yet there is nothing that indicates what tomorrow's balance that it would violate the Due Process Clause of the Fourteenth will be. Although the majority attempts to bolster its decision Amendment to stop paying those people weekly or monthly with limited quotations from prior cases, it is obvious that allowances unless the government first affords them a full today's result doesn't depend on the language of the 'evidentiary hearing' even *275 though welfare officials areConstitution itself or the principles of other decisions, but persuaded that the recipients are not rightfully entitled to solely on the collective judgment of the majority as to what receive a penny under the law. In other words, although some would be a fair and humane procedure in this case. recipients might be on the lists for payment wholly because of deliberate fraud on their part, the Court holds that theThis decision is thus only another variant of the view often government is helpless and must continue, until after anexpressed by some members of this Court that the Due evidentiary hearing, to pay money that it does not owe, neverProcess Clause forbids any conduct that a majority of the has owed, and never could owe. I do not believe there is any Court believes 'unfair,' 'indecent,' or 'shocking to their provision in our Constitution that should thus paralyze the consciences.' See, e.g., Rochin v. California, 342 U.S. 165, government's efforts to protect itself against making payments 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). Neither these words nor any like them appear anywhere in the Due Process to people who are not entitled to them. Clause. If they did, they would leave the majority of Justices Particularly do I not think that the Fourteenth Amendment free to hold any conduct unconstitutional that they should should be given such an unnecessarily broad construction. conclude **1025 on their own to be unfair or shocking to That Amendment came into being primarily to protectthem.6 Had the drafters of the Due Process Clause meant to Negroes from discrimination, and while some of its language leave judges such ambulatory power to declare *277 laws can and does protect others, all know that the chief purpose unconstitutional, the chief value of a written constitution, as behind it was to protect ex-slaves. Cf. Adamson v. California,the Founders saw it, would have been lost. In fact, if that view 332 U.S. 46, 7172, and n. 5, 67 S.Ct. 1672, 1686, 91 L.Ed. of due process is correct, the Due Process Clause could easily 1903 (1947) (dissenting opinion). The Court, however, reliesswallow up all other parts of the Constitution. And truly the upon the Fourteenth Amendment and in effect says that failure Constitution would always be 'what the judges say it is' at a of the government to pay a promised charitable instalment to given moment, not what the Founders wrote into the an individual deprives that individual of his own property, indocument.7 A written constitution, designed to guarantee violation of the Due Process Clause of the Fourteenthprotection against governmental abuses, including those of Amendment. It somewhat strains credulity to say that the judges, must have written standards that mean something government's promise of charity to an individual is property definite and have an explicit content. I regret very much to be belonging to that individual when the government denies that compelled to say that the Court today makes a drastic and the individual is honestly entitled to receive such a payment. dangerous departure from a Constitution written to control and limit the government and the judges and moves toward a I would have little, if any, objection to the majority's decision constitution designed to be no more and no less than what the in this case if it were written as the report of the House judges of a particular social and economic philosophy declare Committee on Education and Labor, but as an opinion on the one hand to be fair or on the other hand to be shocking ostensibly resting on the language of the Constitution I find it and unconscionable. 2012 Thomson Reuters. No claim to original U.S. Government Works. 11 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 The procedure required today as a matter of constitutional law 799 (1963). Thus the end result of today's decision may well finds no precedent in our legal system. Reduced to its simplest be that the government, once it decides to give welfare terms, the problem in this case is similar to that frequently benefits, cannot reverse that decision until the recipient has encountered when two parties have an ongoing legal had the benefits of full administrative and judicial review, relationship that requires one party to make periodic payments including, of course, the opportunity to present his case to this to the other. Often the situation arises where the party 'owing'Court. Since this process will usually entail a delay of several the money stops paying it and justifies his conduct by arguingyears, the inevitable result of such a constitutionally imposed that the recipient is not legally entitled to payment. Theburden will be that the government will not put a claimant on recipient can, of course, disagree and go to court to compel the rolls initially until it has made an exhaustive investigation payment. But I know of no situation in our legal system in to determine his eligibility. While this Court will perhaps have which the person alleged to owe money to *278 another isinsured that no needy person will be taken off the rolls without required by law to continue making payments to a judgment- a full 'due process' proceeding, it will also have insured that proof claimant without the benefit of any security or bond to many will never get on the rolls, or at least that they will insure that these payments can be recovered if he wins his remain destitute during the lengthy proceedings followed to legal argument. Yet today's decision in no way obligates the determine initial eligibility. welfare recipient to pay back any benefits wrongfully received during the pretermination evidentiary hearings or post any For the foregoing reasons I dissent from the Court's holding. bond, and in all 'fairness' it could not do so. These recipients The operation of a welfare state is a new experiment for our are by definition too poor to post a bond or to repay the Nation. For this reason, among others, I feel that new benefits that, as the majority assumes, must be spent as experiments in carrying out a welfare program should not be frozen into our constitutional structure. They should be left, as received to insure survival. are other legislative determinations, to the Congress and the The Court apparently feels that this decision will benefit the legislatures that the people elect to make our laws. poor and needy. In my judgment the eventual result will be just the opposite. While today's decision requires only an Parallel Citations administrative, evidentiary hearing, the inevitable logic of the approach taken will lead to constitutionally imposed, time- 90 S.Ct. 1011, 25 L.Ed.2d 287 consuming delays of a full adversary process of administrative and judicial review. In the next case the welfare recipients are bound to argue that cutting off benefits before judicial review of the agency's decision is also a denial of due process. Since, by hypothesis, **1026 termination of aid at that point may still 'deprive an eligible recipient of the very means by which to live while he waits,' ante, at 1018, I would be surprised if the weighing process did not compel the conclusion that termination without full judicial review would be unconscionable. After all, at each step, as the majority seems to feel, the issue is only one of weighing the government's pocketbook against the actual survival of the recipient, and surely that balance must always tip in favor of the individual. Similarly today's decision requires only the opportunity to have the benefit of counsel at the administrative hearing, but it is difficult to believe that the same reasoning process would not require the appointment of counsel, for otherwise the right to counsel is a meaningless one since these *279 people are too poor to hire their own advocates. Cf. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 2012 Thomson Reuters. No claim to original U.S. Government Works. 12 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 Footnotes 1 AFDC was established by the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. ss 601610 (1964 ed. and Supp. IV). It 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 N.Y. Social Welfare Law ss 343362 (1966). We considered other aspects of AFDC in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), and in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Home Relief is a general assistance program financed and administered solely by New York state and local governments. N.Y. Social Welfare Law ss 157165 (1966), since July 1, 1967, Social Services Law ss 157166. It assists any person unable to support himself or to secure support from other sources. Id., s 158. 2 Two suits were brought and consolidated in the District Court. The named plaintiffs were 20 in number, including intervenors. Fourteen had been or were about to be cut off from AFDC, and six from Home Relief. During the course of this litigation most, though not all, of the plaintiffs either received a 'fair hearing' (see infra, at 10151016) or were restored to the rolls without a hearing. However, even in many of the cases where payments have been resumed, the underlying questions of eligibility that resulted in the bringing of this suit have not been resolved. For example, Mrs. Altagracia Guzman alleged that she was in danger of losing AFDC payments for failure to cooperate with the City Department of Social Services in suing her estranged husband. She contended that the departmental policy requiring such cooperation was inapplicable to the facts of her case. The record shows that payments to Mrs. Guzman have not been terminated, but there is no indication that the basic dispute over her duty to cooperate has been resolved, or that the alleged danger of termination has been removed. Home Relief payments to Juan DeJesus were terminated because he refused to accept counseling and rehabilitation for drug addiction. Mr. DeJesus maintains that he does not use drugs. His payments were restored the day after his complaint was filed. But there is nothing in the record to indicate that the underlying factual dispute in his case has been settled. 3 The adoption in February 1968 and the amendment in April of Regulation s 351.26 coincided with or followed several revisions by the Department of Health, Education, and Welfare of its regulations implementing 42 U.S.C. s 602(a)(4), which is the provision of the Social Security Act that requires a State to afford a 'fair hearing' to any recipient of aid under a federally assisted program before termination of his aid becomes final. This requirement is satisfied by a post-termination 'fair hearing' under regulations presently in effect. See HEW Handbook of Public Assistance Administration (hereafter HEW Handbook), pt. IV, ss 62006400. A new HEW regulation, 34 Fed.Reg. 1144 (1969), now scheduled to take effect in July 1970, 34 Fed.Reg. 13595 (1969), would require continuation of AFDC payments until the final decision after a 'fair hearing' and would give recipients a right to appointed counsel at 'fair hearings.' 45 CFR s 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR s 220.25, 34 Fed.Reg. 1356 (1969). For the safeguards specified at such 'fair hearings' see HEW Handbook, pt. IV, ss 62006400. Another recent regulation now in effect requires a local agency administering AFDC to give 'advance notice of questions it has about an individual's eligibility so that a recipient has an opportunity to discuss his situation before receiving formal written notice of reduction in payment or termination of assistance.' Id., pt. IV, s 2300(d)(5). This case presents no issue of the validity or construction of the federal regulations. It is only subdivision (b) of s 351.26 of the New York State regulations and implementing procedure 6818 of New York City that pose the constitutional question before us. Cf. Shapiro v. Thompson, 394 U.S. 618, 641, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969). Even assuming that the constitutional question might be avoided in the context of AFDC by construction of the Social Security Act or of the present federal regulations thereunder, or by waiting for the new regulations to become effective, the question must be faced and decided in the context of New York's Home Relief program, to which the procedures also apply. 4 These omissions contrast with the provisions of subdivision (a) of s 351.26, the validity of which is not at issue in this Court. That subdivision also requires written notification to the recipient at least seven days prior to the proposed effective date of the reasons for the proposed discontinuance or suspension. However, the notification must further advise the recipient that if he makes a request therefor he will be afforded an opportunity to appear at a time and place indicated before the official identified in the notice, who will review his case with him and allow him to present such written and oral evidence as the recipient may have to demonstrate why aid should not be discontinued or suspended. The District Court assumed that subdivision (a) would be construed to afford rights of confrontation and cross-examination and a decision based solely on the record. Kelly v. Wyman, 294 F.Supp. 893, 906907 (1968). 5 N.Y. Social Welfare Law s 353(2) (1966) provides for a post-termination 'fair hearing' pursuant to 42 U.S.C. s 602(a)(4). See n. 3, supra. Although the District Court noted that HEW had raised some objections to the New York 'fair hearing' procedures, 294 2012 Thomson Reuters. No claim to original U.S. Government Works. 13 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 F.Supp., at 898 n. 9, these objections are not at issue in this Court. Shortly before this suit was filed, New York State adopted a similar provision for a 'fair hearing' in terminations of Home Relief. 18 NYCRR ss 84.284.23. In both AFDC and Home Relief the 'fair hearing' must be held within 10 working days of the request, s 84.6, with decision within 12 working days thereafter, s 84.15. It was conceded in oral argument that these time limits are not in fact observed. 6 Current HEW regulations require the States to make full retroactive payments (with federal matching funds) whenever a 'fair heairng' results in a reversal of a termination of assistance. HEW Handbook, pt. IV, ss 6200(k), 6300(g), 6500(a); see 18 NYCRR s 358.8. Under New York State regulations retroactive payments can also be made, with certain limitations, to correct an erroneous termination discovered before a 'fair hearing' has been held. 18 NYCRR s 351.27. HEW regulations also authorize, but do not require, the State to continue AFDC payments without loss of federal matching funds pending completion of a 'fair hearing.' HEW Handbook, pt. IV, s 6500(b). The new HEW regulations presently scheduled to become effective July 1, 1970, will supersede all of these provisions. See n. 3, supra. 7 Appellant does not question the recipient's due process right to evidentiary review after termination. For a general discussion of the provision of an evidentiary hearing prior to termination, see Comment, The Constitutional Minimum for the Termination of Welfare Benefits: The Need for and Requirements of a Prior Hearing, 68 Mich.L.Rev. 112 (1969). 8 It may be realistic today to regard welfare entitlements as 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. It has been aptly noted that '(s)ociety today is built around entitlement. The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long term contracts for defense, space, and education; social security pensions for individuals. Such sources of security, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity. It is only the poor whose entitlements, although recognized by public policy, have not been effectively enforced.' Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965). See also Reich, The New Property, 73 Yale L.J. 733 (1964). 9 See also Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926) (right of a certified public accountant to practice before the Board of Tax Appeals); Hornsby v. Allen, 326 F.2d 605 (C.A.5th Cir. 1964) (right to obtain a retail liquor store license); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C.A.5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961) (right to attend a public college). 10 One Court of Appeals has stated: 'In a wide variety of situations, it has long been recognized that where harm to the public is threatened, and the private interest infringed is reasonably deemed to be of less importance, an official body can take summary action pending a later hearing.' R. A. Holman & Co. v. SEC, 112 U.S.App.D.C. 43, 47, 299 F.2d 127, 131, cert. denied, 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1962) (suspension of exemption from stock registration requirement). See also, for example, Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (seizure of mislabeled vitamin product); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (seizure of food not fit for human use); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (adoption of wartime price regulations); Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964) (disqualification of a contractor to do business with the Government). In Cafeteria & Restaurant Workers Union, etc. v. McElroy, supra, 367 U.S. at 896, 81 S.Ct. at 1749, summary dismissal of a public employee was upheld because '(i)n (its) proprietary military capacity, the Federal Government, * * * has traditionally exercised unfettered control,' and because the case involved the Government's 'dispatch of its own internal affairs.' Cf. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). 11 Administrative determination that a person is ineligible for welfare may also render him ineligible for participation in statefinanced medical programs. See N.Y. Social Welfare Law s 366 (1966). 12 His impaired adversary position is particularly telling in light of the welfare bureaucracy's difficulties in reaching correct decisions on eligibility. See Comment, Due Process and the Right to a Prior Hearing in Welfare Cases, 37 Ford.L.Rev. 604, 610611 (1969). 13 See, e.g., Reich, supra, n. 8, 74 Yale L.J., at 1255. 2012 Thomson Reuters. No claim to original U.S. Government Works. 14 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 14 Due process does not, of course, require two hearings. If, for example, a State simply wishes to continue benefits until after a 'fair' hearing there will be no need for a preliminary hearing. 15 This case presents no question requiring our determination whether due process requires only an opportunity for written submission, or an opportunity both for written submission and oral argument, where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues. See FCC v. WJR, 337 U.S. 265, 275277, 69 S.Ct. 1097, 11031104, 93 L.ed. 1353 (1949). 16 '(T)he prosecution of an appeal demands a degree of security, awareness, tenacity, and ability which few dependent people have.' Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev. 326, 342 (1966). 1 This figure includes all recipients of Oldage Assistance, Aid to Families with Dependent Children, Aid to the Blind, Aid to the Permanently and Totally Disabled, and general assistance. In this case appellants are AFDC and general assistance recipients. In New York State alone there are 951,000 AFDC recipients and 108,000 on general assistance. In the Nation as a whole the comparable figures are 6,080,000 and 391,000. U.S. Bureau of the Census, Statistical Abstract of the United States: 1969 (90th ed.), Table 435, p. 297. 2 The goal of a written constitution with fixed limits on governmental power had long been desired. Prior to our colonial constitutions, the closest man had come to realizing this goal was the political movement of the Levellers in England in the 1640's. J. Frank, The Levellers (1955). In 1647 the Levellers proposed the adoption of An Agreement of the People which set forth written limitations on the English Government. This proposal contained many of the ideas which later were incorporated in the constitutions of this Nation. Id. at 135147. 3 This command is expressed in the Tenth Amendment: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' 4 It was proposed that members of the judicial branch would sit on a Council of Revision which would consider legislation and have the power to veto it. This proposal was rejected. J. Elliot, 1 Elliot's Debates 160, 164, 214 (Journal of the Federal Convention); 395, 398 (Yates' Minutes); vol. 5, pp. 151, 161166, 344349 (Madison's Notes) (Lippincott ed. 1876). It was also suggested that The Chief Justice would serve as a member of the President's executive council, but this proposal was similarly rejected. Id., vol. 5, pp. 442, 445, 446, 462. 5 See n. 1, supra. 6 I am aware that some feel that the process employed in reaching today's decision is not dependent on the individual views of the Justices involved, but is a mere objective search for the 'collective conscience of mankind,' but in my view that description is only a euphemism for an individual's judgment. Judges are as human as anyone and as likely as others to see the world through their own eyes and find the 'collective conscience' remarkably similar to their own. Cf. Griswold v. Connecticut, 381 U.S. 479, 518 519, 85 S.Ct. 1678, 17001701, 14 L.Ed.2d 510 (1965) (Black, J., dissenting); Sniadach v. Family Finance Corp., 395 U.S. 337, 350351, 89 S.Ct. 1820, 1827, 23 L.Ed.2d 349 (1969) (Black, J., dissenting). 7 To realize how uncertain a standard of 'fundamental fairness' would be, one has only to reflect for a moment on the possible disagreement if the 'fairness' of the procedure in this case were propounded to the head of the National Welfare Rights Organization, the president of the national Chamber of Commerce, and the chairman of the John Birch Society. 2012 Thomson Reuters. No claim to original U.S. Government Works. 15 Goldberg v. Kelly, 397 U.S. 254 (1970) 90 S.Ct. 1011, 25 L.Ed.2d 287 End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works. 2012 Thomson Reuters. No claim to original U.S. Government Works. 16