Melnick examines the congressional reforms that eventually culminated in the Family Support Act of 1988. He finds that Congress overturned a "surprisingly large" number of court decisions limiting technical rules such as calculating step-parents' income in determining eligibility, limiting benefits to newcomers, and limiting benefits to college students. Nevertheless, the basic legal edifice of the welfare state remained and federal control continued over many aspects of state programs, thereby constraining innovation and increasing bureaucratic costs.
Throughout this legal history, courts and the Congress grappled with various theories of rights. Melnick skillfully explores the implications of those theories, from the "common law of need" created by the courts in the 1960s as welfare was expanded, to the "right to a free and appropriate education."
While not grounded in a natural-rights philosophy, Melnick brings scholarly skepticism to the ambiguous and loose ways in which "rights" have been created and enforced by law. This is not a book intended to propose policy reforms, but Melnick's skillful analysis indicts our legal system for its lack of a consistent natural rights-based approach to decisions. He accomplishes his goal of studying the programmatic consequences of court decisions to force the reader to link legal abstractions with real-world problems.
The reader will not come away from this book with a comfortable assurance that welfare as we know it will end anytime soon. For better or for worse, the courts will continue to play a defining role in the growth (or demise) of the welfare state. Litigation like that currently pending in New Jersey will determine the course of welfare reform at the state and national level. The political dynamics, institutional inertia, and unmoored decision making inherent in welfare law, mean that advocates for a diminished welfare state must be relentless in their efforts nowhere more than in court.
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