Goldberg v. Kelly: Pre-Termination Hearings and Due Process

In Goldberg v. Kelly, 397 U.S. 254 (1970), the Supreme Court held that welfare benefits are a form of property protected by the Fourteenth Amendment’s Due Process Clause, and that the government cannot terminate them without first giving the recipient an evidentiary hearing. The 5–3 decision, written by Justice William Brennan, reshaped the legal relationship between individuals and the administrative state. Its core rule still governs how agencies must handle the loss of government entitlements more than five decades later.¹

The New York Procedure That Prompted the Case

Twenty New York City residents sued in the U.S. District Court for the Southern District of New York after city and state officials terminated, or moved to terminate, their public assistance without prior notice or a hearing. Fourteen received federal Aid to Families with Dependent Children (AFDC); six received New York’s state-funded Home Relief. The named defendant, Jack Goldberg, was the city’s Commissioner of Social Services.¹

Under the city’s “Procedure No. 68–18,” a caseworker who doubted a recipient’s eligibility would raise the concern with the recipient, then recommend termination to a supervisor. If the supervisor agreed, the recipient got a letter explaining the reasons and seven days to request review by a higher official and submit a written statement. If that reviewer upheld the decision, aid stopped immediately. A full “fair hearing” before an independent state officer was available, but only after termination. In the meantime, the recipient had already lost the money needed for rent, food, and medicine.²

Nothing in the pre-termination process allowed the recipient to appear in person, present oral evidence, or question the witnesses whose statements had triggered the cutoff. That was the gap the plaintiffs asked the courts to close.

Why Welfare Counts as Property

Before Goldberg, courts treated welfare as a privilege rather than a right, meaning the government could impose conditions on it or take it away without triggering constitutional protections. Justice Brennan’s opinion rejected that framing. Welfare benefits, he wrote, are “a matter of statutory entitlement for persons qualified to receive them,” and losing them can strip a recipient of “the very means by which to live while he waits” for a later hearing.³

The Court drew on legal scholar Charles Reich’s theory of “the new property,” which argued that government-created benefits function as a modern form of wealth people rely on for daily survival and should carry corresponding legal protections.⁴ Once benefits were classified as a property interest, the Fourteenth Amendment applied: the government could not take them away “without due process of law.”

What a Pre-Termination Hearing Must Include

The Court did not require a full trial before an agency could stop payments. It did require a real hearing with specific elements. Any pre-termination proceeding must give the recipient:

Timely and adequate notice of the proposed termination, with the factual and legal reasons spelled out clearly enough for the recipient to prepare a response.³
An opportunity to appear in person and present evidence orally. The Court noted that many recipients lack the writing skills to make their case on paper.¹
The right to confront and cross-examine any adverse witnesses the government relies on.³
The right to retain counsel at the recipient’s own expense. The state is not required to appoint a free attorney.⁵
An impartial decision-maker who was not involved in the initial termination decision. General prior awareness of the case does not disqualify an official; direct participation in the recommendation does.¹
A written decision that states the reasons and identifies the evidence relied on, based solely on what was presented at the hearing. Formal findings of fact and conclusions of law are not required.³

A hearing that skips any one of these elements fails the constitutional standard.

How the Court Weighed the Competing Interests

The Court reached its holding by weighing the recipient’s stake against the government’s. On the individual side, the interest was “obtaining funds essential to procuring the necessities of life.” For someone at the margin of subsistence, losing benefits pending a hearing means missed rent, missed meals, and lost access to medical care during a bureaucratic delay that could stretch for weeks.¹

New York argued the state needed to protect tax revenues by quickly removing ineligible recipients and pointed to the administrative cost of holding hearings before every termination.² The Court found those concerns insufficient. The recipient’s interest, joined with the state’s own interest in not erroneously cutting off someone who actually qualifies, “clearly outweighs the State’s competing concern to prevent any increase in its fiscal and administrative burdens.”³

The Dissent

Chief Justice Warren Burger and Justices Hugo Black and Byron White dissented. Justice Black wrote the principal opinion. He argued that the majority had effectively legislated from the bench, saying there was “not one word, phrase, or sentence from the beginning to the end of the Constitution from which it can be inferred that judges were granted any such legislative power.”²

Black also challenged the underlying premise. He wrote that it “somewhat strains credulity to say that the government’s promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment.” If a recipient believes the agency is wrong, Black argued, the recipient can go to court like anyone else claiming an unpaid debt. He predicted that the majority’s logic would keep expanding into further procedural requirements, would eventually push toward appointed counsel, and would prompt agencies to make it harder to qualify in the first place, since removing anyone from the rolls would become so difficult.²

How the Rule Has Been Narrowed Since 1970

Goldberg has never been overruled, and its specific requirement of a pre-termination hearing for welfare recipients remains good law. Two later decisions, however, shaped how far its reasoning reaches.

In Board of Regents v. Roth (1972), the Court refined what counts as a property interest triggering due process. A person must have “a legitimate claim of entitlement” to a benefit, not merely a need or a unilateral expectation. Property interests come from independent sources like state statutes, not from the Constitution itself. That gave courts a filter for deciding which government benefits carry due process protection.

The more significant limitation came in Mathews v. Eldridge (1976), a case about Social Security disability benefits. Instead of applying Goldberg directly, the Court announced a three-factor balancing test: the strength of the private interest, the risk of erroneous deprivation under existing procedures and the value of additional safeguards, and the government’s interest in efficient administration.⁶ Applying that test, the Court held that disability benefits could be terminated without a pre-termination hearing, because the medical evidence involved was less subjective than welfare eligibility decisions and existing written procedures already protected against error. Justice Brennan, the author of Goldberg, dissented.

The Mathews test is now the default framework for procedural due process claims, applied to everything from license revocations to public school suspensions. Goldberg‘s specific rule about welfare stands, but the wider principle that individual need essentially dictates the answer has been replaced by a more flexible balancing approach, one that sometimes lets the government act first and hear the challenge later.

1
Justia. Goldberg v. Kelly
2
Legal Information Institute (LII). Goldberg v. Kelly
3
Supreme Court of the United States. Goldberg v. Kelly
4
Yale Law Journal. Constituting Security and Fairness: Reflecting on Charles Reich’s Imagination and Impact
5
CUNY School of Law. Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings
6
Justia. Mathews v. Eldridge