# Harrell v. Tobriner

> District Court, District of Columbia · March 4, 1968 · 279 F. Supp. 22

URL: https://www.frixlaw.com/law-library/cases/9756848

## Case

- **Full name:** Minnie HARRELL Et Al., Plaintiffs, Clay Mae LeGrant, Plaintiff-Intervenor, v. Walter N. TOBRINER Et Al., Defendants; Vera M. BARLEY Et Al., Plaintiffs, v. Walter N. TOBRINER Et Al., Defendants; Gloria Jean BROWN Et Al., Plaintiffs, Clay Mae LeGrant, Plaintiff-Intervenor, v. Walter N. TOBRINER Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** March 4, 1968
- **Citations:** 279 F. Supp. 22
- **Precedential status:** Published
- **Opinion:** Dissent by Holtzoff
- **Judges:** Bazelon, Fahy, Holtzoff
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756848

## Opinion text

HOLTZOFF, District Judge
(dissenting).
I respectfully dissent from the conclusion of the majority that the District of Columbia statute prescribing a residence requirement of one year for eligibility for receiving public assistance is unconstitutional, as transgressing the Equal Protection of the Laws Clause of the Fourteenth Amendment, and as interfering with freedom of travel. In my opinion the enactment is a valid exercise of legislative power.
Each of the three consolidated actions now before the Court was instituted by an applicant for public assistance from the District of Columbia, whose request was denied by the local Welfare authorities, on the ground that she was ineligible because she had not been a resident of the District of Columbia for at least one year. In each instance, the plaintiff seeks a judgment setting aside the adverse action of the local Public Welfare authorities; requiring them to pass on the application for relief without regard to the residence requirement; and declaring the statutory provision imposing the residence requirement to be unconstitutional.
The District of Columbia statute involved in these cases is D.C.Code § 3-203, the pertinent provisions of which read as follows:
§ 3-203. Eligibility for public assistance.
“Public assistance shall be awarded to or on behalf of any needy individual who either (a) has resided in the District for one year immediately preceding the date of filing his application for such assistance; or (b) who was born within one year immediately preceding the application for such aid, if the parent or other relative with whom *32 the child is living has resided in the District for one year immediately preceding the birth; or (c) is otherv/ise within one of the categories of public assistance established by this chapter: * * * ” [Emphasis supplied.]
The constitutionality of clauses (a) and (b) of the above statute is attacked in these actions.
In two of these cases the plaintiff is a mother with dependent children. The funds out of which public assistance for dependent children is disbursed by the States (including the District of Columbia) are in part provided by the individual States and in part by a grant from the Federal Government, authorized by the Social Security Act, Subchapter IV, entitled, “Grants to States for Aid and Services to Needy Families with Children”, 42 U.S.C. § 601 et seq. In order to be eligible for a Federal grant for this purpose, a State is required to submit a plan to the Secretary of Health, Education and Welfare, containing certain specified provisions, 42 U.S.C. § 602 (a). Subsection (b) of that section contains the following requirement:
“(b) The Secretary shall approve any plan which fulfills the conditions specified in subsection (a) of this section, except that he shall not approve any plan which imposes as a condition of eligibility for aid to families with dependent children, a residence requirement which denied aid with respect to any child residing in the State (1) who has resided in the State for one year immediately preceding the application for such aid, or (2) who was born within one year immediately preceding the application, if the parent or other relative with whom the child is living has resided in the State for one year immediately preceding the birth.”
In other words, the Social Security Act expressly authorizes States receiving Federal grants for aid to dependent children, to impose residence requirements for eligibility for relief, with the limitation that such residence requirements shall not exceed one year. Consequently, insofar as aid to dependent children is concerned, the residence requirement exacted by the District of Columbia was expressly authorized by the Social Security Act, under which Federal grants are made to the States for that purpose. While the complaints in these actions do not expressly attack the validity of this provision of the Social Security Act, nevertheless, by necessary implication, a ruling that the District of Columbia statute is unconstitutional must also strike down in its wake the provision of the Social Security Act authorizing the enactment of such local requirements.
Statutes imposing specific residence prerequisites for receiving relief have been in existence in many States for a long time. They are not restricted to aid to dependent children, but in a broad scope are generally applicable to relief payment of all kinds. The usual residence requirement is one year. Without any attempt at making an exhaustive enumeration, a partial survey shows that the following States, among others, impose a residence requirement of at least one year as a qualification for receiving relief of any type: Maryland, West Virginia, North Carolina, South Carolina, Ohio, Illinois, Michigan, Wisconsin, Nebraska, Kansas, Texas, Colorado, Utah and Oregon. Virginia imposes such a condition for several types of relief. Such provisions are accepted as appropriate and prudent, if not indispensable, features of any system of administering relief to needy persons. The obvious purpose of such restrictions is to minimize the likelihood of imposition and abuses, even though at times they result in hardship to some individuals. The wisdom, policy, desirability, and expediency of such conditions are not within the purview of the judiciary, but must be determined by the legislature. The powers of Government are vested primarily in an elective Legislative body and an elective Executive. Were they to be shifted in whole or in part to the courts, composed of members holding office by permanent tenure, we would cease to have a popular form of govern *33 ment. An oligarchy would supplant it, no matter how benevolent.
If the conclusion of the majority is sound, the necessary consequence would be 'that all such local statutes must be deemed invalid and that no specific residence requirement may be constitutionally imposed by the States as eligibility for welfare payments. The relief systems of most of the States would have to be revamped, transformed, and reorganized.
While the number and nature of statutes relating to welfare legislation that would be rendered invalid under the ruling of the majority need not deter the courts from declaring all of them unconstitutional, if in fact they clearly transgress some constitutional limitation, nevertheless, the number and extent of such statutes and the fact that they are an accepted feature of welfare legislation generally, should lead the court to pause. Doubts should be resolved in favor of validity, instead of upsetting all over the country well-established local plans for administering relief funds.
Members of the judiciary must not be influenced by their own views of the wisdom, expediency, or desirability of legislation, or by their own attitude toward charity. They must limit themselves to considering objectively and solely the constitutional power to enact the statute that is being challenged. As was said by Cardozo in The Paradoxes of Legal Science, “Legislature as well as court is an interpreter and a guardian of constitutional immunities.” (p. 121).
While in determining justiciable cases and controversies brought before the Courts by persons having standing to sue, the courts in case of a conflict between an applicable statute and a pertinent constitutional provision, must have recourse to the Constitution as the supreme law of the land and ignore the statute, thereby adjudging the statute to be unconstitutional, the power to render such a decision must be exercised with caution, circumspection and deliberation. Statutes may not be lightly set aside by the judiciary on the theory that they contravene some constitutional limitation. It is a basic principle that there is a strong presumption of constitutionality as to every legislative enactment. This presumption must be clearly overcome before a statute may be declared invalid. The presumption of validity is not a mere form, but a potent rule that must be actively applied by the courts. Again, as was said by Cardozo, 1 “The presumption of validity should be more than a pious formula, to be sanctimoniously repeated at the opening of an opinion and forgotten at the end.”
Chief Justice Marshall developed and expounded the doctrine that if in a justiciable controversy instituted by a party having standing to sue, it is determined that an applicable statute is in conflict with the Constitution the issues should be determined in accordance with the Constitution and the statute declared invalid, Marbury v. Madison, 1 Cranch. 137, 2 L.Ed. 60 . He, nevertheless, called for caution in the exercise of this prerogative and announced that it should be exerted only if the conviction of incompatibility was clear and strong. He said in Fletcher v. Peck, 6 Cranch. 87, 128, 3 L.Ed. 162 :
“The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”
*34 He reiterated this doctrine in Brown v. State of Maryland, 12 Wheat. 419, 436 , 6 L.Ed. 678 :
“It has been truly said, that the presumption is in favor of every legislative act, and that the whole burden of proof lies on him who denies its constitutionality.”
Chief Justice Waite summarized' the same principle in the following manner, Sinking-Fund Cases, 99 U.S. 700, 718 , 25 L.Ed. 496 :
“It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States; but this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch-of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.”
Coming down to our own times, Mr. Justice Stone in Hardware Dealers’ Mutual Fire Insurance Co. of Wisconsin v. Glidden Co. et al., 284 U.S. 151, 158 , 52 S.Ct. 69, 71 , 76 L.Ed. 214 , emphasized that when legislation deals with a subject that is within the scope of legislative power, “the presumption of constitutionality is to be indulged.”
In United States v. National Dairy Products, 372 U.S. 29, 32 , 83 S.Ct. 594 , 9 L.Ed.2d 561 , Mr. Justice Clark referred to the principle that a strong presumptive validity attaches to an Act of Congress.
Cases enunciating and applying this doctrine are legion. The following are a few of them: Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 625 , 4 L.Ed. 629 ; Legal Tender Cases, 12 Wall. 457, 531 , 20 L.Ed. 287 ; Munn v. State of Illinois, 94 U.S. 113, 123 , 24 L.Ed. 77 ; United States v. Harris, 106 U.S. 629, 635 , 1 S.Ct. 601 , 27 L.Ed. 290 ; Close v. Glenwood Cemetery, 107 U.S. 466, 475 , 2 S.Ct. 267 , 27 L.Ed. 408 ; Atchison, Topeka & Santa Fe R. R. v. Matthews, 174 U.S. 96, 104 , 19 S.Ct. 609 , 43 L.Ed. 909 ; Middleton v. Texas Power & Light Co., 249 U.S. 152, 157 , 39 S.Ct. 227 , 63 L.Ed. 527 ; O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251, 257-258 , 51 S.Ct. 130 , 75 L.Ed. 324 .
The principles that the Supreme Court formulated as a guide primarily for itself in deciding constitutional questions are a fortiori binding and controlling on District Courts and Courts of Appeals. From the early years of the Republic and through the first half of the Nineteenth Century, the Supreme Court consistently and rigidly adhered to these doctrines in passing upon the validity of legislative enactments. Thus, between 1790 and 1860 only two Acts of Congress were declared unconstitutional by the Supreme Court. 2 One of them, which was stricken down in Marbury v. Madison, 1 Cranch 137 , 2 L.Ed. 60 , was a provision of the Judicial Code of minor importance relating to the jurisdiction of the Supreme Court.
A shift in the attitude toward the validity of legislative measures began after the Civil War and the subsequent enactment of the Fourteenth Amendment. From time to time legislation in the social and economic field was held invalid as repugnant to the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. These provisions were deemed to enact into the Constitution the right of freedom of contract and the privilege of using one’s property without governmental interference. During the decade beginning in 1920, the number of Acts of Congress declared invalid rose to a high point. 3 Almost invariably these decisions were reached against emphatic protests contained in dissenting opinions of members of the Court who were in the minority, but who have been regarded as en *35 lightened, progressive and far-sighted. Their dissenting opinions form part of the classics of our constitutional history and constitutional law.
In Lochner v. State of New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 , in which a statute regulating the hours of labor in a bakery was held invalid as interfering with the freedom of contract, Mr. Justice Holmes wrote a forceful dissenting opinion, which has been often quoted and which is worthy of repetition. He said (p. 75, 25 S.Ct. p. 546):
“This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of the majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this interfere with the liberty to contract. * * * The Hth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” [Emphasis supplied.]
Mr. Justice Holmes again spoke out emphatically in protest against the decision of the majority in Hammer v. Dagenhart, 247 U.S. 251 , 38 S.Ct. 529 , 62 L.Ed. 1101 , in which the Supreme Court invalidated an Act of Congress prohibiting transportation in interstate commerce of goods manufactured in a factory employing child labor. In his dissenting opinion, Mr. Justice Holmes said, in part (p. 280, 38 S.Ct. p. 534):
“I had thought that the propriety of the exercise of a power admitted to exist in some cases was for the consideration of Congress alone and that this Court always had disavowed the right to intrude its judgment upon questions of policy or morals. It is not for this Court to pronounce when prohibition is necessary to regulation if it ever may be necessary * *
During that era there were numerous expressions in dissenting opinions of a similar tenor culminating in the celebrated dissenting opinion of Mr. Justice Stone in United States v. Butler, 297 U.S. 1 , 56 S.Ct. 312 , 80 L.Ed. 477 , in which the Court held the Agricultural Adjustment Act to be unconstitutional. His ringing words deserve frequent reiteration. He said, in part (pp. 78-79, 87, 56 S.Ct. pp. 325, 329):
“The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.”
******
“Courts are not the only agency of government that must be assumed to have capacity to govern.” [Emphasis supplied.]
The minority in many of these cases intimated from time to time that the majority were unconsciously influenced by their own personal predilections in social and economic matters. The situation became of sufficient moment for two Presidents of the United States to register protests in different ways. President Theodore Roosevelt suggested one remedy, and President Franklin D. Roosevelt recommended another. 4 As a matter of coincidence at about the time *36 when the proposal of President Franklin Roosevelt was defeated in Congress, the Supreme Court seemed to reverse its attitude, going as far as overruling some of the prior decisions to which reference has been made, West Coast Hotel Co. v. Parrish, 300 U.S. 379 , 57 S.Ct. 578 , 81 L.Ed. 703 , in which Mr. Chief Justice Hughes wrote the prevailing opinion. A new era in American constitutional history arrived. The tendency of the Supreme Court to annul social welfare legislation, which had prevailed for several decades was drastically ended, and was supplanted by a more progressive trend. It is to be hoped that the pendulum will not swing back and inaugurate another cycle when it may be said that personal, social and economic predilections of judges unconsciously influence decisions on constitutionality of legislation, — even though the predilections may be different.
In my opinion the statutory provision challenged in these cases is clearly a valid exercise of legislative power. Relief and welfare payments by the Government are grants. They are not the payment of legal obligations. The legislative branch of the Government in providing grants has a right to select objects for which and the persons to whom they shall be made. That it chooses to make grants to members of one group does not mean that it is under an obligation to make similar grants to members of another group, even though the second group may be similar to the first and equally worthy. A fortiori the fact that Congress has authorized grants to be made to members of one group, does not empower the courts to extend them to members of the second group.
Even in connection with meeting legal and moral obligations, the Congress may make distinctions between objects and persons. For example, by the Federal Tort Claims Act the Congress waived the sovereign immunity of the United States to suit in tort. It excepted, however, certain specified torts. Surely, it would not be contended that the exceptions are invalid and that, therefore, the immunity should extend to torts in the excepted list. So, too, certain groups of persons, such as Government employees, have been held to be outside of the scope of the Federal Tort Claims Act. Surely, it cannot be contended that these exceptions are likewise invalid and that, therefore, by judicial construction Government employees are entitled to the benefits of the Federal Tort Claims Act.
No basis for invalidity is discernible in a limitation of grants or welfare and relief funds to residents of the State. In fact, the majority opinion so concedes. The legislature, however, is not compelled to leave the matter of determining whether a particular person is or is not a resident to administrative officials. Such a course would be administratively inefficient, ponderous and slow, as well as expensive. No reason is perceived why Congress may not provide a simple formula for distinguishing permanent residents of the State from other persons who happen to be sojourning in it at any one time. Residence for one year is such a test. There are numerous rights and privileges that are conferred on residents of a State but which are denied to other persons within its boundaries. An outstanding example is the residence requirement for voters, imposing a specified length of residence within the State. Certain occupations are at times limited to residents. Numerous examples may be cited.
A somewhat similar question arose in Flemming v. Nestor, 363 U.S. 603 , 80 S.Ct. 1367 , 4 L.Ed.2d 1435 . The Social Security Act contains a provision cutting off old age insurance benefits and disability insurance benefits from any person who has been deported from the United States on any one of specified grounds, 42 U.S.C. § 402 (n) (1). The validity of this provision was challenged in that case. The Supreme Court upheld the constitutionality of this Section, even though it related to benefits of a contributory insurance scheme to which the insured had made periodic payment, instead of consisting of mere grants, as *37 is the case here. In discussing this question the Supreme Court wrote as follows (p. 611, 80 S.Ct. p. 1373):
“In judging the permissibility of the cut-off provision of [§ 402(n)] * * * from this standpoint, it is not within our authority to determine whether the Congressional judgment expressed in that section is sound or equitable, or whether it comports well or ill with the purposes of the Act. ‘Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power not with wisdom.’ * * * Particularly when we deal with a withholding of a non-contractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.”
As concerns the Equal Protection of the Laws Clause of the Fourteenth Amendment, it needs no citation of authorities to establish that reasonable classifications are not a violation of that constitutional provision. Admittedly, it is reasonable to differentiate between residents and non-residents for the purpose of making relief payments^ The one-year requirement is a simple method of distinguishing between the two groups. The Legislature does not have to adopt a ponderous system of taking evidence as to each applicant to determine whether the applicant is a bona fide resident of the State. As heretofore stated, such a method of administration might well bog down the whole relief system in delays, expenses and frustration. Legislatures may have valid reasons for limiting relief payments to residents of the State for a specific minimum period. Whether we would approve the same course as a matter of policy and expediency is immaterial. The manifest purpose of the legislation is to prevent a particular State or District from becoming a Mecca for migrants from other States where relief payments are smaller. This is a reasonable and legitimate purpose.
A survey of relief payments in some of the neighboring States, as compared with those made in the District of Columbia, clearly demonstrates the reason for the possible fear of the District of Columbia that it might be confronted with an invasion of prospective applicants for relief from other States, if it were not for the residence qualification. For example, during the fiscal year ending June 30, 1967, the average monthly grant of aid to dependent children in the District of Columbia for a family was $168.08; in Virginia, it was $123.59; in Maryland, it was $153.22; in West Virginia, only $98.14; in North Carolina, it was $24.24 per person. The average grant of old age assistance in the District of Columbia was $67.20, as compared with $60.29 in Maryland; $48.16 in West Virginia; and $58.06 in North Carolina. The average monthly grant of aid to disabled was $81.72 in the District of Columbia, as compared with $75.57 in Maryland; $77.82 in Virginia; $45.77 in West Virginia; and $64.36 in North Carolina.
The second infirmity found in the statute by the majority opinion is that the limitation interferes with freedom of travel. The right to travel throughout the realm is concededly one of the privileges and immunities of a citizen of the United States. Clearly the District of Columbia or any one of the States, would be without power to block the entrance of any person residing within the United States, or in any way directly to interfere with travel between the States. The existence of this right does not bar the Congress, however, from imposing a tax on railroad, airline or bus tickets and thereby making travel more costly. It does not constitute an invalid interference with the right of travel from State to State, or from any State to the District of Columbia, to impose residence requirements for voters, or for the pursuit of specified occupa *38 tions. The same reasoning applies to residence requirements for eligibility to relief payments.
The decision in Edwards v. People of State of California, 314 U.S. 160, 174 , 62 S.Ct. 164 , 86 L.Ed. 119 is clearly distinguishable. The statute held invalid in that case made it a criminal offense to bring in or assist in bringing in to the State any indigent person who was not a resident of the State. This enactment created a direct interference with the right of travel. The opinion of the Supreme Court pointed out clearly that all that was being determined was the propriety of an attempt by a State to prohibit transportation of indigent nonresidents and the question of relief to newcomers was not involved. At page 174, 62 S.Ct. at page 167 the Court stated:
“ * * * we are not now called upon to determine anything other than the propriety of an attempt by a State to prohibit the transportation of indigent non-residents into its territory. The nature and extent of its obligation to afford relief to newcomers is not here involved.”
There is another and very important aspect to the subject under discussion. If the exclusion of persons who have not resided in the jurisdiction for at least one year is stricken down, the entire relief plan falls. This is not a case where one provision of the statute is so disconnected from the balance that the rest can stand even if the one provision be held invalid. Here the residence requirement is part of the scheme enacted by the Congress. If it is held that the Congress may not provide for welfare payments of one kind or another without including persons who have sojourned in the jurisdiction for less than one year, it does not follow that if the exclusion is annulled payment may be made to those persons whom Congress has expressly excluded. If the Congress passes an Act making grants to members of Group A and the Court holds that Congress may not constitutionally do so without extending the benefits to members of Group B, the result is that the entire scheme becomes invalid. The Courts may not accord the benefits of the Act to members of Group B by practically amending the statute. Congress may well say that if we cannot limit our grants to members of Group A, no grants shall be made at all if we must include members of Group B. In other words, the subject must go back to Congress, and the entire statute dealing with public assistance, D.C.Code § 3:201-223 must be deemed invalid.
Mr. Justice Brandeis in Dorchy v. State of Kansas, 264 U.S. 286, 290 , 44 S.Ct. 323, 324 , 68 L.Ed. 686 , a case that has often been cited as authoritative, summarized the governing principle as follows:
“But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall.”
The fact that the statute contains a severability clause is not decisive. It merely shifts the burden of proof from the plaintiff to the defendant on the question whether the balance of the statute can remain operative if one part is excised as invalid.
In Hill v. Wallace, 259 U.S. 44, 71 , 42 S.Ct. 453, 459 , 66 L.Ed. 822 , the Court stated:
“ * * * undoubtedly such a provision furnishes assurance to courts that they may properly sustain separate sections or provisions of a partly invalid act without hesitation or doubt as to whether they would have been adopted, even if the Legislature had been advised of the invalidity of part. But it does not give the court power to amend the act.” [Emphasis supplied.]
In this instance if the exclusion of persons who have not resided in the jurisdiction for at least one year, is stricken down with the intention that *39 this group should receive the benefit of the Act, the majority of the Court would be amending the Act and expanding its scope. The exclusion is part of the warp and woof of the statute and not a separable clause.
In Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330, 362 , 55 S.Ct. 758, 767-768 , 79 L.Ed. 1468 , the Court discussed the effect of a severability clause as follows:
“Such a declaration provides a rule which may aid in determining the legislative intent, but is not an inexorable command. Dorchy v. Kansas, 264 U.S. 286 , 44 S.Ct. 323 , 68 L.Ed. 686 . It has the effect of reversing the presumption which would otherwise be indulged, of an intent that unless the act operates as an entirety it shall be wholly ineffective. * * * But notwithstanding the presumption in favor of divisibility which arises from the legislative declaration, we cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole.”
In Carter v. Carter Coal Co., 298 U.S. 238, 313 , 56 S.Ct. 855, 874 , 80 L.Ed. 1160 , the Court succinctly summarized this doctrine and the effect of the severability clause as follows:
“The statutory aid to construction in no way alters the rule that in order to hold one part of a statute unconstitutional and uphold another part as separable, they must not be mutually dependent upon one another.”
The conclusion is inescapable that if the Court strikes down the provision of the public assistance statute of the District of Columbia limiting the benefits of the Act to needy individuals who have resided in the District of Columbia for at least one year, the entire statute is nullified, because Congress did not legislate to make grants to anyone who does not meet the eligibility requirement, and if this qualification is annulled, the entire Act falls. The Court may not by construction extend the provisions of the Act to persons not included in it. The only remedy would be new legislation.
I am not unmindful of the fact that a similar residence requirement in Delaware has been recently held unconstitutional by a three-judge District Court, Green v. Department of Public Welfare, 270 F.Supp. 173 ; and likewise that a Connecticut statute that is somewhat akin to that involved here was held unconstitutional in Thompson v. Shapiro, 270 F.Supp. 331 , by a vote of two to one. With due deference and respect for these two courts, the decisions do not seem persuasive. In the Connecticut case Judge Clarie’s dissenting opinion is more convincing than the majority view. Moreover, the Connecticut statute is quite different from the customary residence requirement. It excludes from the benefits of the welfare statute any person who comes into the State without visible means for support and applies for aid within one year after arrival. It is not a provision basing eligibility on residence alone. Neither the Delaware case, nor the Connecticut decision, consider the question of severability and whether striking down the residence requirement would invalidate the entire statutory scheme. Apparently that point did not come to the attention of either Court.
The Social Security Act is a comprehensive, far-reaching, progressive statute of epochal social and economic significance. It was framed on the basis of detailed studies by Committees created by the President. It was thoroughly and carefully considered by the Congress and its Committees. The legislation was the fruit of long and thorough studies and scrutiny on the part of numerous persons. The statute introduced social insurance into the United States on a large scale. Its beneficent contributory plans for compulsory old age insurance and for unemployment insurance accorded permanent economic security and independence to millions of persons who had lived in dread as what was to become of them in old age or in case of loss of employment for a lengthy period. The public assistance features of the legislation, such as aid to dependent children, which is involved in this legislation, were created as auxiliaries to the insurance *40 schemes. The basic constitutionality of the Act was sustained by the Supreme Court in the leading case of Helvering v. Davis, 301 U.S. 619, 672 , 57 S.Ct. 904 , 81 L.Ed. 1307 . No feature of the statute has been invalidated until the present time.
If the decision of the majority stands, the provisions for aid to dependent children will be thrown into confusion and possibly destroyed. The entire District of Columbia legislation for public assistance likewise becomes a nullity. Such an outcome must be regretted.
. The Paradoxes of Legal Science, p. 125.
. Robert H. Jackson, The Struggle for Judicial Supremacy, p. 40.
. Robert H. Jackson, Id. p. 40.
. For interesting accounts by two active participants in the controversy involved in the proposals of President Franklin D. Roosevelt, see Robert H. Jackson, The Struggle for Judicial Supremacy, pp. 177 et seq.; and Burton K. Wheeler, Yankee from the West, pp. 319 et seq.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756848. Public record. Not legal advice.