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31 Ariz. L. Rev. 53 (1989)
A Re-Evaluation of Mathews v. Eldridge in Light of Administrative Shortcomings and Social Security Nonacquiescence

handle is hein.journals/arz31 and id is 65 raw text is: A RE-EVALUATiON OF MATHEWS V. ELDRIDGE IN LIGHT OF ADMINISTRATIVE SHORTCOMINGS AND SOCIAL SECURITY NONACQUIESCENCE Carolyn A. Kubitschek* Twelve years ago, in Mathews v. Eldridge,' the Supreme Court of the United States dramatically altered the law of procedural due process. First, the Court ruled that the due process clause of the fifth amendment of the United States Constitution does not require that recipients of Social Security Disability Insurance Benefits (Social Security benefits) have a full hearing prior to the termination of these benefits. The Court distinguished Social Security benefits from public assistance benefits, which it had previously found to require a pretermination hearing.2 More importantly, the Court instituted a new test to determine what process is due when the government seeks to interfere with a protected property interest. That test consists of balancing three factors: (1) the private interest involved; (2) the pub- lic/government interest involved; and (3) the risk of erroneous deprivation of the property interest. The Supreme Court's decision in Eldridge was controversial: many commentators disagreed with both the test which the Court established and the result the Court obtained when it applied that test to Social Security benefits.3 This Article does not take issue with the tripartite test itself. Rather, it is the thesis of this Article that application of the test should lead to a result contrary to that reached by the Supreme Court. Specifically, this Article asserts that recipients of Social Security benefits are constitutionally entitled to notice and an opportunity to be heard prior to the termination of those benefits. The conclusion is opposite that reached by the Court in Eldridge for two major reasons. First, the Court based its decision upon a number of assumptions about the Social Security benefits program which may or may * Assistant Clinical Professor of Law, Hofstra University. B.A., 1970, Oberlin College; J.D., 1973, University of Chicago. The author has represented hundreds of individuals seeking Social Security disability benefits, both in proceedings before the Social Security Administration and in federal court. The author gratefully acknowledges the comments and suggestions of Professor An- drew Schepard. 1. 424 U.S. 319 (1976). 2. Goldberg v. Kelly, 397 U.S. 254 (1970). 3. See, eg., Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudica- tion in Mathews v. Eldridge Three Factors in Search of a Theory of Value, 44 U. CHi. L. REv. 28 (1976).

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