right, to “welfare,” basic well-being, from the governments to which they gave their allegiance. Decades earlier, legal theorist Charles Reich identified this entitlement idea as a key part of modern American governance in a renowned article about the “new property” interest all individuals acquired in the economically valuable benefits generated by the post–New Deal state—everything from broadcast licenses granted by the Federal Communications Commission, to professional licenses granted or regulated by state agencies, to old-age pensions and mothers’ benefits under the Social Security statute.36 By the time Congress passed TANF, few disputed the rights of workers in covered jobs to claim benefits in old age. But the economic invisibility of parental care work and pejorative ideas about mothers and children who need welfare made the idea of “entitlement” for single-mother families seemingly indefensible.
In TANF policy, the loss of entitlement meant that no individual or family, no matter how destitute or deserving, no matter how moral a mother or nondeadbeat a father, could make a legally enforceable claim for assistance just because they were poor. If the state ran out of TANF money or if the family did not meet ongoing conditions for receiving aid, then the family would be left to sink or swim on its own. Further, absolute lifetime time limits for TANF participation added a chronological condition of assistance, marking a point in time beyond which families could not receive aid ever again, no matter their behavior, attitudes, or needs.37
TANF law included a national cumulative time limit of five years during which families could get help. State governments were explicitly permitted to shorten these limits, and many have done so. By statute, additional conditions a parent must meet vary from state to state. They are enforced by sanctions ranging from partial welfare benefit cuts for a period of time to a family’s complete loss of aid. Conditions that expose families to sanctions include mandatory paternity establishment and cooperation with child support enforcement by mothers, work requirements, and regular school attendance by school-age children in TANF families.38
In contrast to this approach, consider the principles foregrounded in legislation Representative Mink introduced to Congress during initial debates over welfare reform in 1993–94, a similar version of which she reprised after Republicans began to formulate PRWORA in 1995. Mink argued that if mothers wanted to work for wages, then “there must be opportunities to work” via training and education, up to and including opportunities to attend college. She argued that these mothers must be able to secure child care, financial aid, and other supports to make education and training truly accessible.39 Moreover, she argued, “if people have small children, they should be able to take care of their children, at home”—a choice to which she believed all primary parents should have access. In this regard, she wrote, as in all others, “a poor family is no different from a rich family.”40
Cutting Cash and Caseloads
Title I of the welfare reform law allowed the prerogatives of individual states to billow. To be sure, TANF legislation charged states with new duties, in cluding enforcement of new program rules. Further, TANF provisions required states to meet certain program participation goals in exchange for federal funds. Also, the new funding formula, block grants to states, capped federal funding to each state and required states to maintain a financial contribution to overall welfare spending under a “maintenance of effort” provision. Still, within the punitive paradigm, states were given wide disciplinary discretion over how to spend those funds—discretion wider than they had had at any time since the implementation of federal public assistance in the 1930s and 1940s.41
Under the 1996 law, individual state governments can turn away applicants for aid even if they meet every criterion of eligibility. If, for example, certain people have the misfortune to apply after state funds and the federal block grant have been exhausted, officials can legitimately turn them away. States also can discourage TANF enrollment even if funds are available, as many have done through “diversion” programs that direct applicants to exhaust all possible private aid before turning to public welfare. Indeed, caseload reduction incentives in the TANF law, combined with sanctions provisions and capped funding, have pushed states to constrict TANF participation even as the need for aid has failed to abate.
Welfare reform recused states from the scrutiny and pressure they would have faced under an entitlement-based antipoverty system. Before 1996, state officials were subject to greater oversight by officials in Washington, who at least occasionally threatened “conformity hearings” to investigate whether they were following national law. State governments would risk losing the federal portion of their budgets for public assistance if, for example, they turned eligible applicants away.42
In contrast, PRWORA grants state officials leeway to decide whether and how to meet the needs of poor families, as long as state practices advance the goals of the TANF program—principally marriage, the reduction of nonmarital childbearing, and labor market participation. Yet despite the discretion permitted under TANF, state governments are not free to be generous: they may not extend federally funded benefits for most participants past the national time limit, relax paternity establishment and child support enforcement rules, or dilute work requirements.43 PRWORA gave states new flexibility but tethered all states to the new fundamentals of welfare.
When the TANF framework gave states new discretion to regulate and discipline poor parents, it invited states to deploy ostensibly neutral levers of effectively race-based discrimination. Studies have shown, for example, that the greater the density of African Americans in the potential TANF population, the more likely a state is to police recipients with a “family cap” that denies benefits to a child born while his or her mother is receiving TANF aid, and with full-family sanctions that withdraw all the support to a family in retaliation for a mother’s failure to follow all the program’s rules.44
Another dimension of the assault on welfare rights embodied in TANF policy was a retreat from the principle of cash assistance that had formed the core of the federal welfare program since its creation during the New Deal of the 1930s. Under the New Deal welfare policy, means- or income-tested aid was provided to mothers without wage-earning male partners. New Deal assistance to poor single-mother families comprised cash grants, primarily—an income substitute for poor families in which male heads of household and their earnings were missing. In a paradigm shift away from the hoary idea that poverty indicated moral failing, New Dealers abjured the morals tests that local charities had long applied to sift the undeserving from the deserving poor. Further, they ruled out moralistic controls on the spending choices of poor mothers that had been routine in private charity and in some local welfare efforts.45
But although cash assistance was the shining core of federal welfare policy, it was vulnerable almost from the start. For one thing, the level of cash benefit, determined by individual states, was often set so low as to prolong the immiseration of poor families rather than set a course out of poverty. For another, states invented morals tests as add-ons to the federal policy—such as Alabama’s “substitute father” rule that Smith challenged successfully in 1968, some thirty years after federal policy had officially declined to employ moral gauges and levers. Finally, the federal embrace of cash aid for poor mothers did not signal an end to the popular view that poor people either had to prove their moral worthiness or pay for aid by submitting to moral regulation.
The cash principle came under sustained attack when the national government and advocates challenged state and local strategies to keep poor people off the welfare rolls and public assistance became increasingly associated with never-married mothers and African Americans.46 Amendments to the Social Security Act in 1962 specifically allowed for compromises of this principle.47 Civil and welfare rights activists saw a further compromise of the cash principle in the expansion of food stamps under Presidents Kennedy and Johnson, which occurred alongside widening gaps between what state governments calculated as the “standard of need,” or amount people needed to live decently, and cash welfare grants.48 Why, poor people wondered, could the food stamps not simply
