At last Monday’s Committee on Human Services hearing on “The Homeless Services Amendment Act (HSRA) of 2013,” Georgetown University Law Professor Peter Edelman testified about the potential for Mayor Gray’s proposed HSRA changes to violate community members’ Constitutionally guaranteed rights to due process. As introduced, the Mayor’s amendments would allow the DC Government to terminate a resident’s shelter or housing before giving that family or individual the opportunity to challenge the basis of such termination. Professor Edelman’s testimony is set out below. 
(You can find more information on some of these due process concerns in previous posts on this blog and in our legal analysis of the bill).

Mr. Chairman and Members of the Committee:

Thank you for the opportunity to testify today. I will be very brief. I teach constitutional law and poverty law and policy, and I have looked at the pending bill through both of those sets of lenses. The main thrust of the provisions in the bill is a large step backward in the degree of due process we accord some of the most vulnerable people in our city.

I frankly don’t know why these retrogressive provisions are being seriously considered.  The current law provides for emergency terminations and short-term suspensions. The current provisions make sense. Beyond that, I believe that the Supreme Court’s eloquent decision in the case of Goldberg v. Kelly is applicable to the situation of people who are homeless. In holding that a hearing must be accorded prior to the termination of welfare, Justice Brennan described cash assistance for mothers and children as “the very means by which to live.” I think it is quite clear that the situation of a homeless person or family is like that of the welfare recipient in Goldberg – and in fact is, if anything, more dire.

The Court limited the application of Goldberg in its subsequent decision in Mathews v. Eldridge, which dealt with disability benefits. Such benefits, the Court said, are “not based upon financial need, . . . [and are] wholly unrelated to the worker’s income or support from many other sources.” That is manifestly different from the situation of a homeless person or family. And even if Mathews were held to apply here, triggering the application of that case’s balancing test, the risk of erroneous deprivation here is vastly greater than was the situation in Mathews which involved a decision based on medical documentation.

I trust that all of us would prefer to see everyone possible housed in a stable permanent fashion. We want to see the number of people in shelter reduced to a bare minimum.  But we must not rob Peter to pay Paul. We need a balanced strategy that provides shelter to those who need it and invests what is necessary to move the previously homeless into stable housing which they will be able to afford (perhaps with subsidies) for the longer term. I worry that with this legislation our friends in the District government are opting for a short cut that will hurt people far more than it helps. I urge the committee not to move forward with this legislation as it is currently written.