This chapter begins with a forgotten story from American constitutional law. Raymond Belcher worked for a coal mining company in Lynco, West Virginia. During his working life, he paid into the federal insurance scheme for disability—Social Security Disability Insurance (SSDI). Belcher later broke his neck on the job and claimed on his federal SSDI insurance. But he was in for a bad surprise. In 1965, after he began contributing but before he became disabled, Congress enacted an “offset” provision to reduce benefits for individuals like him who qualified for both state-run worker’s compensation and federal SSDI. Belcher went all the way to the Supreme Court to challenge Congress’s offset provision—and coming on the heels of iconic Goldberg v. Kelly (1970), it seemed like he might very well succeed. But in Richardson v. Belcher (1971), the Court said that although there was procedural due process for social insurance awards, there was no substantive protection from arbitrary Congressional action—even though there were plenty of disabled workers who were receiving the full SSDI check and a separate (non-worker’s compensation) insurance payout and who therefore, from Belcher’s perspective, appeared identical.
The result under German constitutional law is the opposite. Under German constitutional law, individuals like Belcher have a property right that triggers a proportionality analysis, that gives rise to robust equality analysis of statutory programs, and that frequently requires grandfathering treatment when social insurance programs are changed after individuals begin contributing but before life circumstances force them to draw upon the social insurance. This American-German contrast applies not just to payments from contributory social insurance schemes but to the entire range of administrative programs that affect the entire range of material rights—negative rights such as money, positive rights such as the basic income necessary for dignity, and the vast set of rights that fall in between, including payouts from social insurance schemes and operating a business in a regulated market. The comparative, German law serves to draw out the distinctiveness of American constitutional law—tall on procedure but short on substance. It also points to possible lessons for contemporary American debates on the administrative state’s legitimacy and economic justice.
GW Paper Series
Francesca Bignami, Material Liberty and the Administrative State: Market and Social Rights in American and German Law, in OXFORD HANDBOOK OF COMPARATIVE ADMINISTRATIVE LAW, Forthcoming, (Peter Cane et al., eds. 2021)