The opinion
WOOD, District Judge
(dissenting).
I must respectfully dissent.
This is a class action brought on behalf of resident aliens to challenge the constitutionality of Section 432(2) of The Pennsylvania Welfare Code, 62 P.S. § 432(2) insofar as it denies general public assistance to persons otherwise qualified to receive it solely on the ground that they are not citizens of the United States. 1 The defendants, who are the state officials charged with administration of the statutory provision which is challenged, concede that the named plaintiffs would qualify for general assistance except for the fact of their alienage, but they maintain that neither federal law nor the constitution precludes the state from denying to aliens that assistance which it dispenses to citizens solely from its own resources.
Plaintiffs first contend that Pennsylvania’s citizenship requirement is invalid because it places an undue burden on their right to interstate travel. They place great reliance on Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed. 2d 600 (1969) in which the Supreme Court invalidated Pennsylvania’s one-year residence requirement for welfare recipients because it “touche [d] on the fundamental right of interstate movement” of citizens and was not justified by any “compelling state interest.” However even assuming in arguendo that aliens have the same right in all respects to travel freely between states as do citizens, 2 I do not think that the statutory *257 classification in this case “touches on the fundamental right of interstate movement” 3 in the same respect as the classification proscribed by the Court in Shapiro and that the Court in Shapiro did not intend its holding to encompass state statutes such as the one before us. In Shapiro , it was undisputed and the Court found that the Pennsylvania statute created two classes, the only difference between them being that members of one had been residents of Pennsylvania for a year and members of the other had not, and proceeded to favor the former class on that ground alone. Here, on the other hand, the distinction drawn by the statute in question is between aliens and citizens of the United States. Whether an alien is a long-time resident of Pennsylvania or is newly-arrived from another state is irrelevant; plaintiffs are denied welfare by Pennsylvania not because they have traveled to Pennsylvania from another state, but rather because they are aliens.
To extend Shapiro by holding that the state statutory classification in this case touches on the “fundamental right of interstate movement” and must be abandoned absent a “compelling” state interest would be to put in jeopardy all state laws which treat a certain group of people less generously than that group is treated by another state, and which therefore might disincline persons of lesser means from travelling into that state. Such a holding would virtually require states to provide indigents moving inside its borders with enough money to stay. I am unable to go so far. Since I would not find that Pennsylvania’s classification here touches on the right of interstate movement enunciated in Shapiro , I would not reach the question of whether Pennsylvania has demonstrated a “compelling” interest in the classification.
Plaintiffs secondly contend that Pennsylvania’s citizenship requirement is invidious and offensive to the equal protection clause. Both parties agree that, as a general proposition, the word “person” in the Fourteenth Amendment includes resident aliens, and that therefore aliens are entitled to the same substantive and procedural benefits of the Amendment as citizens. Yick Wo v. Hopkins, 118 U.S. 356, 369 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886). Further, the plaintiffs concede that in a number of cases in the wake of Yick Wo the Court carved out a number of exceptions to the foregoing general proposition, one among them being that the “moneys of the state belong to the people of the state” and “do not belong to aliens” and therefore the state may favor its citizens to aliens in the distribution of the common property or resources of the people of the state. McCready v. Virginia, 94 U.S. 391 , 24 L.Ed. 248 (1877). As Justice Cardozo, at the time a member of the New York Court of Appeals, stated in a case involving state preference of citizens over aliens in public works contracts:
“Every citizen has a like interest in the application of the public wealth to the common good and the right to demand that there be nothing of partiality, nothing of merely selfish favoritism in the administration of the trust. But an alien has no such interest; and hence results a difference in the measure of his right. To disqualify citizens from employment on the public works is not only discrimination but arbitrary discrimination. To disqualify aliens is discrimination indeed, but not arbitrary discrimination, for the principle of exclusion is the restriction of the resources of the state to the advancement and profit of the members of the state. Ungenerous and unwise, such discrimination may *258 be. It is not for that reason unlawful.” People v. Crane, 108 N.E. 429 (1915).
The decision of the New York Court was thereafter unanimously affirmed by the Supreme Court in an opinion which summarily dismissed as “without foundation” the plaintiffs’ claim that the state’s preference of citizens over aliens in public works violated the equal protection clause. Crane v. New York, 239 U.S. 195, 199 , 36 S.Ct. 85 , 60 L.Ed. 218 (1915). See also Heim v. McCall, 239 U.S. 175 , 36 S.Ct. 78 , 60 L.Ed. 206 (1915). 4
The plaintiffs contend, however, that these early precedents have in effect been overruled sub silentio by other decisions. I disagree because I think to the contrary that subsequent decisions have either affirmed or left untouched the Crane doctrine. In Truax v. Raich, 239 U.S. 33 , 36 S.Ct. 7 , 60 L.Ed. 131 (1915), cited by the plaintiffs, the Court held that a state statute providing for discrimination against aliens in matters relating to “ordinary private enterprise” violates the right of aliens to “enter and abide” in that state unless there is a “special state interest” involved and invalidated an Arizona law requiring all private commercial business to have work forces composed of at least 80 per cent United States citizens. The Court found in that case that there was no “special state interest” in such an all encompassing regulation of “all ordinary private enterprise”. 5 In its decision, which was handed down the same year as Crane, the Court said nothing to diminish the effect of the McCready-Crane doctrine and in fact specifically cited McCready and some of its progeny with approval. See 239 U.S. at p. 40, 36 S.Ct. 7 .
More recently, in Takahashi v. Fish and Game Commission, 334 U.S. 410 , 68 S.Ct. 1138 , 92 L.Ed. 1478 (1948), also relied upon by the plaintiff, the Court cited with approval the standards enunciated in Truax and invalidated a California law forbidding Japanese aliens from commercial fishing off the California coast on the ground that the state had not demonstrated a “special public interest” in regulating Takahashi’s commercial fishing. It is true that in Talcahashi the Court recognized the technical possibility that California might in some sense “own” those fish which ventured inside the three-mile ocean limit, 6 but the Court treated the California law as a regulation of aliens in private enterprise under the Truax test and left untouched the McCready-Crane doctrine.
I have not found, nor do I find in Shapiro v. Thompson, 7 supra, or Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970), 8 cited by the plaintiffs (neither of which relates to *259 aliens) any indication that the Court has overruled the doctrine of Crane and Truax 9 that while the state, absent a special state interest, is not permitted to intrude upon an alien’s right to “enter and abide” by statutes which discriminate against them as opposed to citizens in the conduct of ordinary private enterprise, the state as proprietor of the resources of the citizens of the state may favor its own citizens in the disbursement of those resources. 10 Being mindful of the recent admonition of the Supreme Court that the “Fourteenth Amendment gives the federal courts no power to impose on the states their views of wise economic or social policy” 11 I would not overturn what I consider to be a settled precedent.
Plaintiffs’ final contention is that Pennsylvania’s general assistance citizenship requirement conflicts with federal laws relating to the admission and naturalization of aliens and is therefore preempted pursuant to the supremacy clause. We are specifically directed to several provisions of federal law relating to the admission of indigents to this country: Title 8 U.S.C. § 1182 (a) (7, 8, and 15) provide inter alia that the following classes of aliens shall be excluded from admission: “paupers”, “aliens * * who are likely at any time to become public charges”, and “aliens * * * who are certified * * * as having a physical defect, disease, or disability * * * of such a nature that it may affect the ability of the alien to earn a living. * * * ” Section 1251 allows the Attorney General under certain circumstances to deport an alien who has become a public charge. Section 1183 provides that an alien excludable because he is likely to become a public charge may be admitted at the discretion of the Attorney General after posting a bond.
I take the standard for determining whether a state law relating to aliens is preempted by federal law from Hines v. Davidowitz, 312 U.S. 52 , 61 S.Ct. 399 , 85 L.Ed. 581 (1941). In that case, where the Court invalidated a Pennsylvania alien registration law because it overlapped federal law, Justice Black stated inter alia that:
“ * * * where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the *260 registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” 312 U.S. 66 -67, 61 S.Ct. 403 .
It was further stated that any concurrent power in such a field must be “restricted to the narrowest of limits”, 312 U.S. at 68 , 61 S.Ct. at 404 , but that “in the final analysis, there can be no one crystal clear distinctly marked formula” for determining whether the state law is inconsistent with federal law:
“Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”. 312 U.S. at 67 , 61 S.Ct. at 404 .
In the light of these standards I cannot conclude that Pennsylvania’s citizenship requirement is preempted by federal law. Hines and the other cases relied upon by the plaintiffs were concerned with requirements under state law which would hinder, obstruct, or harass aliens in such a way as to interfere with the federal scheme of regulation. Pennsylvania’s citizenship requirement does not regulate the conduct of aliens, but rather excludes them from an affirmative benefit which the state may or may not decide to dispense to its own citizens. If the state had no welfare program at all, federal laws relating to aliens would not be obstructed; it is difficult to see, how federal laws are obstructed any more because the state decides to give welfare payments to citizens.
By the same token, I am unable to conclude that the specific statutory provisions cited previously and relied on by the plaintiffs evidence any Congressional intent to require the states to include (or, for that matter, not to include) aliens as beneficiaries of their welfare programs. To the contrary, the federal laws cited previously leave the impression that Congress wanted to relieve the states (and the federal government) of the burden of aliens who were, or might become, public charges. I cannot infer from such an intent to relieve the states of such a burden, a corresponding intent to require the states to pay welfare to aliens.
Accordingly, I respectfully dissent.
. Since the funds for the general assistance program here challenged are provided entirely by the state and municipalities therein and the program is not supported by federal grants, there is no question presented here of whether the state provisions are in conflict with the Federal Social Security Act or regulations thereunder.
. The right to travel between states is not specifically enumerated in the Constitution, but Courts have inferred such a right from several of it provisions. However, when such a right has been mentioned, the Court has referred to it as a right belonging to “citizens”. See Shapiro v. Thompson, 394 U.S. 618, 629, 633 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 , “* * * the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”; Edwards v. California, 314 U.S. 160, 181 , 62 S.Ct. 164, 170 , 86 L.Ed. 119 (1941) (“The conclusion that the right of free movement is a right of National Citizenship stands on firm ground.” Passenger Cases, 7 How. 283, 492 , 12 L.Ed. 702 (1849); Kent v. Dulles, 357 U.S. 116, 125 , 78 S.Ct. 1113 , 2 L.Ed.2d 1204 (1958); Ward v. Maryland, 12 Wall. 418, 430 , 20 L.Ed. 449 (1871). On the other hand, in Truax v. Raich, 239 U.S. 33, 42 , 36 S.Ct. 7 , 60 L.Ed. 131 (1915) and other cases, the Court has held that aliens lawfully admitted to the country under the authority of acts of Congress have the right to “enter and abide” in the various *257 states. The Court indicated that the alien’s right to “enter and abide” stemmed from federal law and not from the Fourteenth Amendment and could therefore be retracted by federal statute. Therefore, it is doubtful that this right to enter and abide of aliens is the same in all respects as the right of citizens to travel between states.
. 394 U.S. at 638 , 89 S.Ct. at 1333 .
. In which a unanimous court upheld against attack on Fourteenth Amendment grounds a New York statute, Laws 1909, c. 36, which provided that “In the construction of public works by the state or a municipality, only citizens of the United States shall be employed; and in all cases where laborers are employed on any such public works preference shall be given citizens of the State of New York.”
. The Court stated at 239 U.S. 43 , 36 S.Ct. ' 11 that “no special public interest with respect to any particular business is shown that could possibly support the enactment, for as we have said it relates to every sort.”
. The law in question barred all aliens residing in California from commercial fishing off the California coast, whether within or without the three-mile limit.
. Shapiro was decided on the ground of interference with the right of interstate movement and has already been discussed on that ground. We note in passing that contrary to the plaintiffs’ assertions, the “compelling state interest” required to justify state legislation relating to interstate movement in Shapiro does not apply to cases involving welfare legislation. Dandridge v. Williams, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970).
. In Goldberg , the Court held that whether welfare was considered as a privilege or a right, it could not be terminated without a fair hearing. However, subsequently in Dandridge v. Williams, supra, the Court intimated that the holding in Goldberg *259 was not intended to affect state determination of welfare eligibility:
“The constitution may impose certain procedural safeguards upon systems of welfare administration. * * * (citing Goldberg) But the constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.” (Emphasis mine) 397 U.8. 471, 487, 90 S.Ct. 1153, 1163 , 25 L.Ed.2d 491 (1970).
. I do not see anything in Takahashi, supra, 334 U.S. at p. 420 , 68 S.Ct. 1138 , to the effect that because state legislation relating to aliens affects a “disadvantaged minority” it is therefore subject to “strict judicial scrutiny” apart from the ordinary “rational basis” test ordinarily applied to state welfare legislation. Cf. Dandridge v. Williams, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970). At that point in Takahasi, supra., the Court in effect points out that in view of the general rule enunciated in Yick Wo v. Hopkins, supra., the superseding effect of federal laws regulating aliens, Hines v. Davidowitz, 312 U.S. 52 , 61 S.Ct. 399 , 85 L.Ed. 581 (1941), and 8 U.S.C. § 41 , the power of the states to pass laws relating to aliens is limited. Both parties here concede this. Moreover, the Court in Takahashi, supra., was making the point, with which all are in agreement, that pursuant to its powers to regulate aliens, Congress can make certain distinctions which the states cannot. Accordingly, the compelling state interest required to justify state legislation inhibiting an alien’s right to travel, Cf. Shapiro v. Thompson, supra, or to legislation affecting a “disadvantaged minority” would be inapplicable here.
. This distinction was cited with approval by the Supreme Court as recently as 1960 in Cafeteria and Kestaurant Workers v. McElroy, 367 U.S. 886 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961).
. (Emphasis mine) Dandridge v. Williams, supra, 397 U.S. at p. 486, 90 S.Ct. at p. 1163 (1970).