In conversations about government assistance, rights language often emerges as a danger: when benefits become “rights,” policymakers lose flexibility, taxpayers suffer, and the poor lose their incentive to work. Absent from the discussion is an understanding of how, when, and why Americans began to talk about public benefits in rights terms. This Article addresses that lacuna by examining the rise of a vibrant language of rights within the federal social welfare bureaucracy during the 1930s and 1940s. This language is barely visible in judicial and legislative records, the traditional source base for legal-historical inquiry, but amply evidenced by previously unmined administrative records. Using these documents, this Article shows how concepts of “welfare rights” filtered through federal, state, and local administrative channels and into communities around the nation.
This finding contradicts conventional wisdom, which dates the birth of “welfare rights” language to the 1960s. This Article reveals that as early as 1935, some Americans—government officials, no less—deliberately and persistently employed rights language in communications about welfare benefits. In addition to challenging dominant interpretations, this Article identifies an under-studied aspect of rights language. An abundant “rights talk” literature chronicles and critiques claimants’ use of rights language. This Article, by contrast, identifies rights language emanating from government and being used for government purposes. Specifically, this Article argues that federal administrators used rights language as an administrative tool, a way to solve tricky problems of federalism and administrative capacity at a time in which poor relief was shifting from a local to a state and federal responsibility. Thus, this Article not only enriches debates about the role of rights in contemporary social welfare reforms, but also brings fresh insights to scholarship on the techniques of administrators and the limits of federal power.
Regularly invoked by the Supreme Court in diverse contexts, the maxim nemo iudex in sua causa—no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. I will argue that the nemo iudex principle is a misleading half-truth. Sometimes rulemakers in public law do and should design institutions to respect the value of impartiality that underlies the nemo iudex principle. In other cases, they do not and should not. In many settings, public law makes officials or institutions the judges of their own prerogatives, power, or legal authority. Officials or institutions may determine their own membership, award their own compensation, rule on the limits of their own jurisdiction, or adjudicate and punish violations of rules they themselves have created.
I will attempt to identify the general conditions under which rule designers sensibly depart from, override, or qualify the nemo iudex principle. In some cases, there is no impartial official or institution in the picture, so that wherever decisionmaking authority is lodged, someone or other will have to be the judge in his own case. In other cases, even where it would be feasible to respect the principle, the costs of doing so will exceed the benefits. In general, this will be so when and because impartiality trades off against one or several competing considerations: the benefits of expertise, the value of institutional autonomy and independence, or the motivation and activity level of officials and institutions.
The upshot is that it is never sufficient to argue that a proposed institution, or a proposed interpretation of ambiguous constitutional rules or practices, would violate the nemo iudex principle. One must go on to ask whether the conflict is avoidable or unavoidable, and, if it is avoidable, whether it would be good or bad overall to avoid it.