Vol. 4, No. 5 (May 1994), pp. 61-63
BETWEEN THE LINES: INTERPRETING WELFARE RIGHTS by R. Shep
Melnick. Washington: The Brookings Institution, 1994. 344 pp.
Cloth, $36.95. Paper $16.95.
Reviewed by Louis Fisher, Congressional Research Service, The
Library of Congress.
During the Iran-Contra hearings in 1987, Secretary of State
George Shultz was asked about the control his department
exercised over foreign policy. He replied, with unerring
accuracy: "Nothing ever gets settled in this town. You have
to keep fighting, every inch of the way." His observation
applies to this fine book by Shep Melnick, who examines three
areas of welfare policy: Aid to Families with Dependent Children
(AFDC), education for the handicapped, and food stamps. Nothing
is ever settled for these programs. Issues bounce back and forth
between Congress, the agencies, the courts, interest groups, and
academic studies. Melnick's book, elegantly written and incisive
in analysis, provides a penetrating view into separation of
powers and domestic policy. Readers will come away enriched and
highly appreciative.
After setting forth some basic concepts about legislative
strategy, agency rulemaking, and statutory interpretation by the
courts, Melnick recounts the history of welfare reform in these
three case studies. The stages of action by all three branches,
with each one checking and modifying the other, are described
with admirable lucidity. Out of these cases studies come some
generalizations about court involvement. Federal judges have at
their disposal "no generally accepted, authoritative methods
for interpreting statutes" (p. 6). Existing guidelines
provide support for varying approaches. Melnick quotes Judge
Harold Levinson's aphorism that citing legislative history is
akin to "looking over a crowd and picking out your
friends" (p. 251), noting that his observation fits the case
studies in this
Another generalization is that judicial interpretation usually
expands program benefits and costs and increases federal control
over state and local governments. That is not too surprising,
giving the orientation and location of federal judges. Despite
the courts' profound influence on the welfare programs under
scrutiny in this book, agency officials rather than judges
"have borne primary responsibility for turning general laws
into specific program guidelines" (p. 238).
In interpreting statutes, courts can look at the plain text or
add to it portions of the legislative history. Justice Antonin
Scalia is a well-known proponent of looking only at the statutory
language and ignoring the committee reports and floor debate that
amplify congressional intent. On many occasions he has stated
that legislative history is largely the product of congressional
staff and should not be given any weight for statutory
construction. His analysis has been challenged by Judge Patricia
Wald, a former colleague on the D.C. Circuit. She claims that his
"textualism" is inherently "executive-
expanding" (p. 21).
Melnick does more than study the three branches and the constant
pressures from interest groups. In one of many instructive
passages he refers to the impact of outside studies. At the very
point when the three branches were struggling to reach some kind
of accord on welfare policy, the rug would be pulled out by the
release of a study that undermined a cherished premise. For
example, the move to a guaranteed income policy suffered a
"stunning setback" because of income maintenance
experiments in Seattle and Denver. The results indicated that
income guarantees "significantly increased the rate of
family breakup, especially for racial minorities" (p. 117).
Senator Daniel Patrick Moynihan, a strong supporter of a
guaranteed income, conceded that the new evidence
"discredited fifteen years of social policies that I had
been trying to press."
Melnick does a fine job of capturing the many subtleties of
separation of powers. During the Reagan years, Congress attached
a rider to an appropriations bill to prevent Department of
Education rules from taking effect. Although President Reagan
vetoed the bill, the department "saw it was fighting a
losing battle and withdrew the proposed regulations" (p.
163). To make sure that the department did not change its mind,
Congress added language to the reauthorization of
Page 62 follows:
the Education of the Handicapped Act prohibiting the department
from implementing rules that would lessen the protections
provided to handicapped children.
For those interested in "statutory reversals"
(situations in which Congress passes new laws to reverse a
statutory construction by the courts), this book provides telling
evidence of the frequency of these actions and the political
motivations and steps that are required. In SMITH V. ROBINSON
(1984), the Supreme Court held that plaintiffs who prevail in
certain handicapped children cases cannot collect attorneys'
fees. Both Houses of Congress unanimously passed legislation to
authorize courts to award attorneys' fees to prevailing parties.
A few years later, in MUTH V. DELMUTH (1989), the Court ruled
that in most instances federal courts cannot order state and
local schools to reimburse parents for educational expenses
previously incurred. Such a result would be permissible only if
Congress made its intention "unmistakably clear in the
language of the statute." Congress did precisely that within
a year, overturning the Court. Many fascinating examples of
statutory reversals are included in this book.
Melnick uses his data and observations to reject a central
finding in Gerald Rosenberg's THE HOLLOW HOPE (1991), which
challenges the conventional view that courts are major players in
shaping social policy. Rosenberg argued that U.S. courts
"can ALMOST NEVER be effective producers of significant
social change" (p. 338). It is therefore a mistake for
reformers to litigate their causes, depending on "an
institution that is constrained from helping them" (p. 236)
But Melnick points out that legal reformers are more politically
astute than Rosenberg realizes. They recognize the necessity of
combining litigation with "other forms of lobbying and to
build broad political alliances," using litigation to
"force, delay, and focus legislative and administrative
action" (p. 237).
In these separation of power dynamics, Melnick draws some
interesting conclusions. His case studies provide no support for
a "runaway" bureaucracy. Federal agencies did not
violate a clear congressional directive or attempt to sabotage
statutory policies. At most, administrators had to interpret
ambiguous phrases or gaps in a statute. If they misjudged,
Congress would have the final word, and agencies knew that.
Ironically, Melnick says that the most obvious distortion of both
statutory language and legislative history came from the courts,
not from the agencies. When Congress managed to write clear,
detailed legislation, "administrators almost always
complied" and litigation had little impact. The importance
of litigation rose not because administrators acted lawlessly but
because executive officials and judges were forced to read
"between the lines of statutes produced by fractious
legislators" (pp. 240-241).
These three case studies demonstrate the range and depth of the
dialogue that goes on between the three branches of government.
Early in the book, Melnick says that "while it takes a
constitutional amendment to overturn a court's interpretation of
the Bill of Rights or the Fourteenth Amendment, Congress can
reverse decisions based on statutory interpretation merely by
passing new laws" (p. 6). This formulation squares with
traditional teachings from law schools, but in fact Congress is
constantly in the business of overturning judicial decisions
involving the Bill of Rights and the Fourteenth Amendment.
Legislative prerogatives over the latter realm is evident in
Section 5 of the Fourteenth Amendment, which gives Congress the
"power to enforce, by appropriate legislation, the
provisions of this article." When Congress speaks on the
Fourteenth Amendment, courts listen. Judges are highly
deferential to Congress on Fourteenth Amendment issues
Congress is also active in pushing its interpretation of the Bill
of Rights. In 1987 it reversed the Supreme Court's decision in
GOLDMAN V. WEINBERGER (1986), which sustained an Air Force
regulation prohibiting the wearing of a yarmulke. Within a year
Congress had enacted legislation telling the Air Force to change
the regulation to give greater freedom to religious liberties. In
1993, Congress passed the Religious Freedom Restoration Act,
directly challenging the Court's decision in EMPLOYMENT DIVISION
V. SMITH.
Page 63 follows: Congress decided that the Court's test in SMITH
gave inadequate protection to religious minorities. Many other
examples could be cited where Congress passes legislation to give
greater protection to the Bill of Rights. At best, the Court
establishes a floor for individual rights. Congress can pass
legislation that goes above those minimum levels. In this sense,
Melnick's book is an excellent exploration of all disputes,
statutory and constitutional, in the American system of
government.
REFERENCES:
Gerald N. Rosenberg (1991), THE HOLLOW HOPE: CAN COURTS BRING
SOCIAL CHANGE Chicago: University of Chicago Press.
EMPLOYMENT DIVISION V. SMITH, 494 U.S. 872 (1990)
GOLDMAN V. WEINBERGER, 475 U.S. (1986)
DELLMUTH V. MUTH, 491 U.S. 223 (1989)
SMITH V. ROBINSON, 468 U.S. 992 (1984)
Copyright 1994