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Abstract

This Article proposes that courts should subject unconstitutional conditions cases to intermediate scrutiny rather than presuming that a conditioned benefit is either valid or invalid based on its formal attributes. In conducting intermediate scrutiny, courts should consider: (i) the degree of equality or neutrality demanded by the underlying constitutional right; (ii) the importance of the benefit to the recipient; (iii) the germaneness of the condition to the reason the government may legitimately deny the benefit in the absence of the condition, and thus whether the government is attempting to use its economic and regulatory powers to gain leverage over a constitutional right; and (iv) whether the offer of the conditioned benefit would make an individual worse off, overall, than she otherwise would or should have been. It examines historical and current welfare benefits and unconstitutional conditions cases, and presents potential unconstitutional conditions challenges to current welfare reform proposals, the durational residency requirement and a child exclusion provision.

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