The New Jersey Child Exclusion: Model or Mess?

James M. Sullivan

Georgetown University Law Center; Class of 1995

With his plan to "end welfare as we know it," President Clinton hopes to turn welfare recipients into working families. In order to achieve this goal, Clinton's plan authorizes states to implement a Child Exclusion, also known as a family cap. The Child Exclusion eliminates welfare payments for children born while a family is receiving welfare. New Jersey has had a Child Exclusion provision since 1992, providing other states with a preview of the effects of a Child Exclusion.

Currently, states must apply for a federal waiver in order to implement a Child Exclusion. As part of the Reagan-Bush strategy of welfare reform, waivers were granted to states willing to implement demonstration projects, as long as they were cost neutral. In New Jersey, the state enacted the Family Development Plan, including the Child Exclusion provision, to encourage parental responsibility and promote self-sufficiency. Thus, if a family bears a child after a ten month grace period (from the time they applied for welfare), the family will receive no additional benefits for that child. However, New Jersey did increase their income disregard for these families.

The Child Exclusion provision has been subject to legal challenges. The provision has been found to violate the fundamental right to procreate which exists under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The statute's purpose and effect are neither legitimate nor constitutionally compelling because the statute creates a classification that serves to deter and penalize the exercise of a fundamental right. The provision cannot withstand a constitutional challenge, under strict scrutiny or even rational basis review.

From a policy perspective, the New Jersey Child Exclusion should not be implemented nationwide. The provision does not reduce welfare dependence because it acts as a disincentive to work and does not address the reasons a family seeks welfare. Also, the provision penalizes innocent children and puts pressure on welfare recipients to seek unwanted abortions.

Vol II, No. 1, p. 127 (1994)

Revised July 17, 2003 (MD)