Note

Constitutional Concerns in Section 8 Housing: Transfer Voucher Terminations and the Impact on Participant Families

Amanda R. Engel

Currently, there is a procedural due process void in the existing Section 8 housing regulations, which is having immediate, harmful effects on program participants. When a Section 8 Housing Assistance Program participant wishes to move, he receives a transfer voucher from the local Public Housing Agency (PHA). The PHA then has the discretion to choose not to extend the term of this transfer voucher, effectively terminating the family’s participation in the program. Despite the ramifications of the local PHA’s decision, the participant family has no right to a pre-termination hearing, where they can present their case and appeal to the PHA to reverse its decision.

Courts have consistently held that participants in the Section 8 Housing Program have a constitutionally recognized, protectable property interest in their program benefits.1 In general, the fact that this is a constitutionally protected interest means that participants are entitled to proper due process before their participation in the program can be terminated.2 However, when the PHA allows a participant’s transfer voucher to expire, the U.S. Department of Housing and Urban Development’s regulations allow a participant’s housing benefits to be revoked without proper observance of their due process rights.3

In Parts II and III, this Note examines the legislative and judicial context of Section 8 Housing Assistance Vouchers, including judicial decisions requiring due process procedures within the context of public assistance. Part IV then analyzes a recent case in Illinois where the court found that the local PHA must satisfy due process procedures before terminating a Section 8 transfer voucher, a decision that challenged persuasive precedent.4 Part V will then examine current legal and social trends toward greater accountability within housing assistance programs, and consider the opportunity presented by the Illinois case within that context. Finally, Part VI considers the implication of the Illinois court case and how this case might serve as a catalyst for judicial and legislative corrective response to this constitutional violation.