Amicus Curiae Brief — Saenz v. Roe

In the Supreme Court of th

OCTOBER TERM, 1998

ELOISE ANDERSON, DIRECTOR, CALIFORNIA

DEPARTMENT OF SOCIAL SERVICES, ET AL.,

PETITIONERS

Vv.

BRENDA ROE AND ANNA DOE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS

CURIAE SUPPORTING PETITIONERS IN PART AND

RESPONDENTS IN PART

SETH P. WAXMAN

Solicitor General

Counsel of Record

FRANK W. HUNGER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

EDWARD C. DUMONT

Assistant to the Solicitor

General

MARK B. STERN

KATHLEEN MORIARTY MUELLER

PETER J. SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Section 404(c) of the Social Security Act, 42 U.S.C. 604(c)

(Supp. II 1996), authorizes any State that receives a block

grant under the federal program for Temporary Assistance

for Needy Families (TANF) to “apply to a family the rules

(including benefit amounts) of the [TANF] program * * *

of another State if the family has moved to the State from

the other State and has resided in the State for less than 12

months.” Section 11450.03 of the California Welfare and

Institutions Code (West Supp. 1998) provides, in turn, that

cash benefits paid by the State to “families that have resided

in [California] for less than 12 months shall * * not

exceed the maximum aid payment that would have been

received by that family from the state of prior residence.”

The question presented is:

Whether Section 11450.03, as authorized by Section 404(c),

impermissibly burdens an aid recipient’s federal consti-

tutional right to establish residence and citizenship in a new

State.

(1)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

1. Congress authorized individual States to impose

some temporary benefit limitations based on

changes in state residency when it compre-

hensively reformed the Nation’s welfare laws

in 1996

II. The particular benefit restriction imposed by

California must be examined to determine

whether it is substantially related to the na-

tional governmental purposes that underlie

Congress’s genera! authorization of such limi-

tations in the context of the TANF program

Conclusion

TABLE OF AUTHORITIES

Cases:

Anderson v. Green, 518 U.S. 557 (1995)

Attorney General v. Soto-Lopez, 476 U.S. 898

ae

11

18

30

5, 12

(1986) 18, 19, 21, 22, 23

Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994)

Bray v. Alexandria Women’s Health Clinic,

506 U.S. 2638 (1998)

City of Cleburne v. Cleburne Living Ctr., 473 US.

482 (1985)

Clark v. Jeter, 486 U.S. 456 (1988)

Dunn v. Blumstein, 405 U.S. 330 (1972)

Edwards v. California, 314 U.S. 160 (194157

FCC v. Beach Communications, Inc., 508 U.S.

307 (1993)

(Ii

4

IV

Cases—Continued: Page

Green v. Anderson:

811 F. Supp. 516 (E.D. Cal. 1993) 4,5

26 F.3d 95 (9th Cir. 1994) 5

Hooper v. Bernalillo County Assessor, 472 US.

612 (1985) 19, 21

Memorial Hosp. v. Maricopa County, 415 U.S. 250

(1974) 4, 21, 28

Passenger Cases, 48 U.S. (7 How.) 282 (1849) 23

Phillips Petroleum Co. v. Shutts, 472 U.S. 797

(1985) 24

Romer v. Evans, 517 U.S. 620 (1996) 19

Shapiro v. Thompson, 394 U.S. 618 (1969) 4, 8, 19,

20, 21, 24, 25, 28

Sosna v. Iowa, 419 U.S. 398 (1975) 21,24

Supreme Court of New Hampshire v. Piper, 470

U.S. 274 (1985) 27

Turner Broad. Sys. v. FCC, 512 U.S. 622 (199) 21

Viandis v. Kline, 412 U.S. 441 (1978) 21

Zobel v. Williams, 457 U.S. 55 (1982) 19, 21, 22,

23, 27

Constitution, statutes and regulations:

US. Const.:

Art. I, § 8, Cl. 3 (Commerce Clause) 23

Art. IV, § 1 (Full Faith and Credit Clause) 24

Art. IV, § 2, Cl. 1 (Privileges and Immunities

Clause) 22,27

Personal Responsibility and Work Opportunity Re-

conciliation Act of 1996, Pub. L. No. 104-198, Tit.

I, 110 Stat. 2110 2

Social Security Act, 42 U.S.C. 601 et seq. (Supp. II

1996) 1,2

§ 401, 42 U.S.C. 601 (1994) 2

§ 401(a), 42 U.S.C. 601(a) (Supp. II 1996) 2

§ 401(b), 42 U.S.C. 601(b) (Supp. II 1996) 2

§ 402, 42 U.S.C. 602 (Supp. IT 1996) 2

V

Statutes and regulations Continued:

Page

§ 402(a), 42 U.S.C. 602(a) (Supp. II 1996) 34

§ 402(a)(1)(A)(ii)-(iii), 42 U.S.C. 602(a)(1A)

(ii)-(iii) (Supp. II 1996) 8

§ 402(a)(1)(B)(i), 42 U.S.C. 602(a)(1KBXi)

(Supp. IT 1996) 8, 6, 12-18

2

4, 12,25

2,4

8, 15

§ 402(a)-(b), 42 U.S.C. 602(a)-(b) (1994)

§ 402(b), 42 U.S.C. Sh (1994)

§ 408(a), 42 U.S.C. 608(a) (1994)

§ 403(a), 42 U.S.C. 608(a) (Supp. II 1998

§ 403(a)(1), 42 U.S.C. 608(a)(1) (Supp. II 1998) 17

§ — U.S.C. S (Supp. II

4

§ 404, 42 U.S.C. 604 (Supp. II 1996) 2

§ 404(a)(1), 42 U.S.C. S,] (Supp. II 1996) — 2

§ 404(c), 42 U.S.C. 604(c) (Supp. II 1996). passim

§ 404(d), 42 U.S.C. 604(d) (Supp. II 1996) 3

§ 407(a), 42 U.S.C. 607(a) (Supp. II 1998) . , 15

§ 407(e), 42 U.S.C. 607(e) (Supp. II 1996) 3

§ 407-408, 42 U.S.C. 607-608 (Supp. II 1998 2

§ 408(a)(7), 42 U.S.C. 608(a)(7) (Supp. II 1996) ........... 8

§ 408(b), 42 U.S.C. 608(b) (Supp. II 1996) 14

§ 408(b)(3), 42 U.S.C. 608(b)(3) (Supp. II 1998) 8

40 (a)), 42 U.S.C. 609(a)(3) (Supp. II 1996). 3, 15

Cal. Welf. & Inst. Code § 11450. 00 (West Supp.

1998) passim

805 Ill. Comp. Stat. Ann. 5/11-30 (West 1993) 29

45 C. F. R.:

Section 233.20(a)(2)(iii) 4

Section 233.40(a) 4

Miscellaneous:

H.R. Rep. No. 651, 104th Cong., 2d Sess. (1998) . 12, 13,

15, 16

H.R. Conf. Rep. No. 725, 104th Cong., 2d Sess.

(1996) 11,12

Letter from Andrew Fois, Assistant Attorney General

for Legislative Affairs, to the Hon. Robert Dole,

Majority Leader, United States Senate (Nov. 9,

1995) 13

VI In the Supreme Court of the United States

OCTOBER TERM, 1998

Moffitt, Incentive Effects of the U.S. Welfare No. 98-97

A Review, 30 J. Econ. Lit. 1 (1992) * ELOISE ANDERSON, DIRECTOR, CALIFORNIA

’ *

P. Lang M. Rom, Welfare Magnets (Brookings * DEPARTMENT OF SOCIAL SERVICES, Er AL.,

Restatement (Second) of Conflict of Laws (1971) sm 24 PETITIONERS

States’ Perspective on Welfare Reform: Hearing v.

Before the Senate Comm. on Finance, 104th Cong., BRENDA ROE AND ANNA DOE

Ist Sess. (1995) 13, 16

4 10 THE UNITED STATES COURT OF APPEALS

— Berm — 1 — — — a x FOR THE NINTH CIRCUIT

81 Val. U. L. Rev. 898 (1996) * BRIEF FOR THE UNITED STATES AS AMICUS

CURIAE SUPPORTING PETITIONERS IN PART AND

RESPONDENTS IN PART

INTEREST OF THE UNITED STATES

This case involves the constitutionality of a state statute

of a type that Congress has specifically authorized States to

enact in connection with their participation in the nationwide

program of Temporary Assistance for Needy Families estab-

lished and funded by Congress under the Social Security

Act, 42 U.S.C. 601 et seq. (Supp. II 1996). The United States

has a substantial interest in the proper analysis of the con-

stitutional validity of such state laws.

STATEMENT

1. California has for many years participated in a variety

of cooperative federal-state welfare programs that provide,

among other benefits, cash grants to eligible families. Until

1996, such grants were provided primarily through the Aid

to Families with Dependent Children (AFDC) program, un-

der which the federal government provided States with funds for

distribution, in combination with state funds, under state plans that

were required to comply with detailed federal requirements and to

(1)

be approved by the Secretary of Health and Human Services. See

42 U.S.C. 601, 602(a)-(b), 603(a) (1994).

In 1996, as part of a comprehensive revision of various

federally sponsored welfare programs, Congress replaced

AFDC with a new program known as Temporary Assistance

for Needy Families (TANF). Personal Responsibility and

Work Opportunity Reconciliation Act of 1996 (PRWORA),

Pub. L. No. 104-1938, Tit. I, 110 Stat. 2110, enacting provi-

sions codified at 42 U.S.C. 601 et seg. (Supp. II 1996).’ De-

signed to “increase the flexibility of States in operating” pro-

grams to assist needy families while encouraging self-reli-

ance and family stability, see 42 U.S.C. 601(a), the TANF

program eliminates any individual entitlement to benefits

($ 601(b)), sets out certain common goals and general re-

quirements (§§ 602, 607-608), and provides for block grants

(§ 603) that participating States may generally use “in any

manner that is reasonably calculated to accomplish the

purpose(s] of the federal program (§ 604(a)(1)). Thus, for

example, a participating State is not required to provide any

particular level of cash benefits (or, indeed, to provide cash

benefits at all). Each State instead has broad discretion to

use its TANF grant to provide whatever mix of cash pay-

ments, child care, job training, or other benefits it believes

will most effectively advance the statutory goals of promot-

ing the care of children in their own homes; encouraging

parental self-sufficiency through job preparation, work, and

marriage; reducing out-of-wedlock pregnancies; and en-

couraging the formation and maintenance of two-parent

families. See 42 U.S.C. 601(a), 604.

Although most aspects of particular TANF-funded pro-

grams are left to the discretion of participating States,

federal law imposes some specific requirements and condi-

1 Unless otherwise noted, references to Title 42 of the United States

Code are to the 1996 Supplement, reflecting the amendments made by

PRWORA.

3

tions. With some exceptions, for example, States must re-

quire recipients to engage in “work activities” (including

educational or job training programs) once the State deter-

mines they are “ready to engage in work,” but no later than

24 months after they begin receiving benefits. See 42 U.S.C.

602(a)(1)(A)(ii)-(iii), 607(d). If a recipient fails to comply with

applicable work requirements, his or her family’s benefits

may be reduced or terminated. See 42 U.S.C. 607(e),

608(b)(3). A State may also lose some of its federal grant if

the percentage of adult welfare recipients engaged in work

activities falls below minimum percentages. See 42 U.S.C.

607(a), 609(aX(3). In addition, a given family generally may

receive federally funded assistance for no more than five

years, whether in one State or in several. See 42 U.S.C.

608(a)(7). The level of the federal block grants provided to

participating States is largely fixed through fiscal year 2002.

See 42 U.S.C. 608(a).

Federal law also contains a number of specific authori-

zations relating to state use of TANF funds. In particular, as

relevant here, the 1996 Act contains a specialized choice-of-

law provision under which a] State operating a [TANF]

program * * * may apply to a family the rules (including

benefit amounts) of the [TANF] program of another

State if the family has moved to the State from the other

State and has resided in the State for less than 12 months.”

42 U.S.C. 604(c). The plan a State submits to the Secretary

must “indicate whether the State intends to treat families

moving into the State from another State differently than

other families under the program, and if so, how the State

intends to treat such families under the program.” 42 U.S.C.

602(a)(1)(BXi). So long as the Secretary finds that a sub-

mitted plan “includes” all of the elements specified by the

1996 Act, however, the TANF program, unlike AF'DC, does

not require any further approval by the Secretary before a

State becomes eligible for a TANF grant. Compare 42

4

U.S.C. 602(a), 603(a)(1A) (Supp. II 1996) with 42 U.S.C.

602(b), 603(a) (1994).

2. In 1992, four years before Congress created the TANF

program, California sought to undertake an experiment in

welfare reform that would have included both a work incen-

tive program (combining decreased cash aid with an increase

in the amount of income that a recipient could earn without

losing benefits) and a residency-based limitation, under

which an otherwise eligible family could receive, for its first

12 months of residency in California, no more cash aid than

the maximum that would have been paid by the AFDC

program of the State where the family previously resided.

See Beno v. Shalala, 30 F.3d 1057, 1060-1061 (9th Cir. 1994).

Because both aspects of the experiment would have violated

requirements of the AFDC program, the State sought and

received from the Secretary a waiver of inconsistent federal

law and rules. See id. at 1061-1062; Pet. App. 46-48; see also

45 C.F.R. 233.40(a)(residency requirements), 233.20(a)(2)(iii)

(uniform application throughout State).

A federal district court enjoined implementation of the

State’s residency limitation pending resolution of a suit

brought by three individuals who sought AFDC benefits

within 12 months of having established California residency,

and who claimed that limitation of their benefits on that

basis violated their rights to equal protection and to free

interstate migration. Green v. Anderson, 811 F. Supp. 516

(E.D. Cal. 1993). Relying on this Court’s decisions in

Shapiro v. Thompson, 394 U.S. 618 (1969), Memorial Hospi-

tal v. Maricopa County, 415 U.S. 250 (1974), and other cases,

2 Section 11450.08 of the California Welfare and Institutions Code

(West Supp. 1998) provides that otherwise eligible “families that have

resided in this state for less than 12 months shall be paid an amount

calculated in accordance with” the State’s ordinary benefit formula, “not to

exceed the maximum aid payment that would have been received by that

family from the state of prior residence.”

5

the district court held that California’s residency limitation

“must be invalid” because it placeld] a penalty on the deci-

sion of new residents to migrate to the State and be treated

on an equal basis with existing residents.” 811 F. Supp. at

521. The court concluded that the State could advance no

“compelling” governmental purpose for the limitation, that a

purpose “to deter settlement into the state of persons who

need welfare and seek a higher benefit” would be constitu-

tionally impermissible, and that “[s]tripped of the unconsti-

tutional purpose of deterring migration, the measure

lack(ed] a rational design.” Id. at 521-523.

The court of appeals affirmed the preliminary injunction

in Green “for the reasons stated in the district court’s order.”

Green v. Anderson, 26 F.3d 95, 96 (9th Cir. 1994). This Court

granted certiorari, but it ultimately concluded that the case

had become moot because of the intervening invalidation, on

other grounds, of the Secretary’s waiver of federal require-

ments on which California’s ability to enforce its residency

limitation depended under the AFDC program (and under

California law). Anderson v. Green, 513 U.S. 557 (1995) (per

curiam). The Court accordingly vacated the Ninth Circuit’s

judgment and ordered the case dismissed. Id. at 560.

3. In August 1996, the President signed PRWORA. As

discussed above, that Act replaces AFDC with TANF, and

expressly authorizes any State that receives a TANF grant

to apply to a family, during its first 12 months of residence in

that State, the rules (including benefit amounts) of the

TANF program of the family’s prior State of residence. 42

U.S.C, 604(c); see also Pet. App. 16-17. That change remov-

ed any impediment under the Social Security Act to Cali-

8 The Secretary later granted a new waiver to permit California to

proceed with other aspects of its welfare-reform experiment, but she de-

clined to renew the waiver that would have permitted implementation of

the residency limitation imposed by Section 11450.08. See Pet. App. 16,

49-52.

6

fornia’s again seeking to implement Section 11450.03. The

TANF plan that California submitted to the Secretary

noted, in accordance with Section 602(a)(1)(B)(i), the State’s

intention to apply such a limit on cash benefits, and the State

instructed its administrators to begin implementing Section

11450.03 on April 1, 1997. See Pet. App. 7 n.3.

Respondents represent a class of benefit applicants who

would be affected by California’s implementation of Section

11450.03. See Pet. App. 7 & n.4. Respondent Roe was a resi-

dent of Oklahoma until early 1997, when she and her hus-

band moved to Long Beach, California. Jd. at 19. When she

applied for TANF benefits, she was informed that, until she

had been a California resident for 12 months, she would be

limited to the Oklahoma grant level of $307 per month in-

stead of a full California grant of $565. Ibid. Respondent

Doe was a resident of Washington, D.C., until she moved to

Los Angeles, where she became eligible for cash assistance

in April 1997, at the six-month point of her pregnancy. Ibid.

Doe was advised that she would temporarily receive cash

benefits at the District of Columbia level of $330 per month

rather than at the otherwise applicable California level of

$456. Id. at 19-20.

The district court entered a preliminary injunction barr-

ing implementation of Section 11450.03. Pet. App. 13-31; see

id. at 7-8, 20. After concluding that implementation of Sec-

tion 11450.03 would lead to “disparities, even significant dis-

parities, among California [benefit] recipients as between

newcomers and recipients who have resided in the state for

one year” (id. at 25), the court largely adopted] its discus-

sion in Green of the Supreme Court’s right of migration and

equal protection cases” that “set aside as unconstitutional

distinctions drawn among residents of a state—all of whom

are bona fide residents—based on the incipiency or duration

of their residency” (id. at 27). The court rejected the State’s

argument that “so long as the benefit provided to new

residents of California is the same as that provided to

7

residents of their former states, there is no penalty on

migration and no violation of equal protection.” Id. at 28; see

id. at 28-30. And although it recognized that Congress now

considered a temporary benefit limitation “appropriate,” the

court observed that, “[flacing a similar congressional permis-

sion in Shapiro,” this Court had “held that ‘Congress may

not authorize the States to violate the Equal Protection

Clause. Id. at 30. The court accordingly concluded that

Section 11450.03 “must be found unconstitutional.” bid.

The court of appeals affirmed. Pet. App. 1-12. Noting that

it would not decide the case on the merits in reviewing the

grant of a preliminary injunction (see id. at 4, 12), the court

held that its previous affirmance in Green nonetheless re-

mained “persuasive authority” (id. at 9), and it agreed with

the district court that the passage of PRWORA could “not

affect the constitutional analysis” (ibid.). Concluding that

the “apparent purpose” of the challenged provision was “to

keep poor people out of the state,” the court was “satisfied”

that respondents had “demonstrated a probability of success

on the merits.” Jd. at 10. Like the district court, the court of

appeals rejected the State’s argument that a court should

compare “the ‘position of newcomers before and after travel

to California,“ and it held that a benefit reduction, even

* * * ofa relatively small magnitude,” would “impose irre-

parable harm on recipient families.” Jd. at 10-11. The court

accordingly concluded that the district court “did not abuse

its discretion in granting the preliminary injunction.” Id. at

11. The court declined to render any more definitive ruling

“before the district court has had a chance to address the

underlying merits upon a fully developed record.” Jd. at 12.

SUMMARY OF ARGUMENT

In comprehensively reforming the Nation’s welfare sys-

tem in 1996, Congress authorized each State participating in

the TANF program to “apply to a family [receiving benefits]

the rules (including benefit amounts) of another State

8

if the family has moved to the State from the other State and

has resided in the State for less than 12 months.” 42 U.S.C.

604(c). Section 11450.03 of the California Welfare and Insti-

tutions Code, challenged by respondents in this litigation, is

a residency-based restriction of the type facially authorized

by Section 604(c).

The legislative history of the 1996 Act reveals that the

federal authorization addresses at least two related con-

cerns. First, Congress was concerned that the national wel-

fare program itself might create real or perceived incentives

to migrate between States—a concern that would have been

particularly acute in the context of the new, highly decen-

tralized TANF program, which was expected to lead to

many variations in the specific programs implemented in dif-

ferent States. Those variations could produce both new in-

centives to move and new problems of interstate coordina-

tion, to which Congress could reasonably respond with a spe-

cialized choice-of-law-type provision allowing destination

States to apply the benefit rules of origin States during a

limited transition period. Second, Congress was concerned

that, without some permission to impose such a transitional

limitation, States might engage in a “race to the bottom” in

setting the benefit levels in their TANF programs. That con-

cern, too, was potentially exacerbated by the 1996 reforms.

The courts below determined that California’s Section

11450.03 would likely be held unconstitutional under this

Court’s decisions in Shapiro v. Thompson, 394 U.S. 618

(1969), and other cases involving challenges to state legis-

lation based on the freedom of interstate migration guar-

anteed by the federal Constitution. We agree that there is

sufficient doubt concerning the constitutionality of Section

11450.03 to sustain the district court’s entry of a preliminary

injunction in this case. That court erred, however, to the ex-

tent it concluded (Pet. App. 30), at the outset of the pro-

ceedings in this case, that the California law “must” be

struck down, without taking full account of Congress’s affir-

mative authorization of the imposition of some limitations of

this type in the unique context of a nationwide but decen-

tralized federal welfare program.

Some of this Court’s cases have held that particular lines

drawn by state legislatures on the basis of length of state

residency bore no rational relationship to any legitimate

state purpose. Here, however, the statute at issue is one of a

type that Congress has authorized the States to enact in a

limited context, and the national governmental purposes

that support that authorization would also support state

legislation that fairly implements it. Those purposes are

plainly legitimate from a national perspective, and at least

some temporary limitations on benefits payable to new resi-

dents would be calculated to advance them.

In other cases, including Shapiro, the Court has applied

strict constitutional scrutiny in striking down state legisla-

tion that classified state citizens on the basis of length of

residency. We in no way question Shapiro’s invalidation of

an absolute one-year ban on welfare eligibility. In our view,

however, the constitutional calculus must change somewhat

in the different and unusual circumstances of this case.

Here, Congress has considered and acted on a question

affecting the freedom of interstate migration—a freedom

that has special structural characteristics and is in important

respects a right of national citizenship, as to which Congress

stands in a different relation to individual citizens than do

the legislatures of the several States. In structuring a de-

centralized national welfare program, Congress has author-

ized the States to adopt, not an outright bar on the receipt of

benefits after an interstate move, but a temporary applica-

tion of the benefit limits of the State of former residence—a

sort of specialized choice-of-law rule. While of course Con-

gress may not abrogate the right to travel, or “authorize”

States to violate the Equal Protection Clause, judicial review

of a state statute that purportedly implements Congress’s

express authorization must take full account of that federal

10

action. On the other hand, this Court’s precedents set

outside limits on what sorts of burdens may permissibly be

imposed on the freedom to migrate; that freedom is not only

a structural implication from the nature of the Union, but

also an important personal liberty, and state laws that

burden it should always merit more than minimal consti-

tutional scrutiny; and the very purposes that support the

congressional authorization in this case may also serve

appropriately to limit its scope and constitutional effect.

In light of these considerations, we believe that the state

statute at issue in this case should be subject to an

intermediate level of constitutional review: It should be

upheld if the State can demonstrate that the particular lines

it has drawn in Section 11450.03 are substantially related to

an important governmental objective. The premise for

applying that test here is that Congress has specifically

authorized a general type of state classification, and we think

it clear that the goals of the congressional authorization—

achieving interstate integration and coordination, prevent-

ing the distortion of incentives, and promoting the effective-

ness of the federal program—are important ones. Thus, if

the state statute implements the federal authorization, then

the dispositive question will be whether the particular form

of implementation selected by California is “substantially

related” to those federal purposes.

The proper answer to that question is not clear on the

present record. The fact that California’s statute was en-

acted four years before Section 604(c), and its apparent

overbreadth in relation to the relevant federal purposes,

give rise to sufficient doubt concerning its constitutionality

to support the district court’s decision to enter a preliminary

injunction. The judgment below should accordingly be

affirmed. In further proceedings below, however, the State

should be afforded the opportunity to show that Section

11450.03 in fact seeks to implement, and is substantially

11

related to achieving, the purposes underlying the federal

statute.

ARGUMENT

I. Congress Authorized Individual States To Impose Some

Temporary Benefit Limitations Based On Changes In

State Residency When It Comprehensively Reformed The

Nation’s Welfare Laws In 1996

A. By enacting PRWORA, Congress sought to “put{) in

place the most fundamental reform of welfare since the pro-

gram’s inception.” H.R. Conf. Rep. No. 725, 104th Cong., 2d

Sess. 261 (1996). As we have explained (see pp. 2-4, supra),

the Act eliminated the familiar program of individual AFDC

“entitlements” and replaced it with a new program based on

block grants, subject to limited federal requirements, that

was intended to “restore[] the States’ fundamental role in

assisting needy families.” Jbid. In signing the Act, the

President described it as bipartisan legislation that provided

“an historic opportunity to end welfare as we know it and

transform our broken welfare system by promoting the fun-

damental values of work, responsibility, and family.” 32

Weekly Comp. Pres. Doc. 1487-1488 (Aug. 26, 1996).

In setting the limited federal parameters for its new

program of Temporary Assistance for Needy Families, Con-

gress specifically considered the question of temporary

benefit limitations based on changes in state residency. In

42 U.S.C. 604(c), it specified that in operating a TANF

program a State might “apply to a family the rules (including

benefit amounts) of the [TANF] program of another

State if the family has moved to the State from the other

State and has resided in the State for less than 12 months.”

That provision on its face imports a general authorization to

impose temporary benefit differentials of the sort estab-

lished by California’s Section 11450.03.

The nature and purpose of that authorization are clarified

by PRWORA’s legislative history. The House Budget Com-

12

mittee’s report noted both that existing law “forb[ade] the

Secretary to approve a plan that denies AFDC eligibility to

a child unless he hald] resided in the State for 1 year” (see 42

U.S.C. 602(b) (1994)) and that this Court had “invalidated

some State laws that withheld aid from persons who had not

resided there for at least 1 year.” H.R. Rep. No. 651, 104th

Cong., 2d Sess. 1337 (1996). The report went on to observe,

however, that the Court “has not ruled on the question of

paying lower amounts of aid for incoming residents.” Ibid.;

see also H.R. Conf. Rep. No. 725, supra, at 272-273. The

report then explained Congress’s reasons for enacting Sec-

tion 604(c):

States are allowed to pay families who have moved from

another State in the previous 12 months the cash benefit

the» would have received in the State from which they

moved because research shows that some families move

across State lines to maximize welfare benefits.

Furthermore, States that want to pay higher benefits

should not be deterred from doing so by the fear that

they will attract large numbers of recipients from

bordering States.

H.R. Rep. No. 651, supra, at 1337.

B. 1. From this discussion, including the reference to “the

question of paying lower amounts of aid for incoming [state]

residents,” it seems clear that Congress was aware of this

Court’s decision in Shapiro v. Thompson and the Court’s

inconclusive consideration, only the year before, of the very

California statute that is again at issue in this case. See

Anderson v. Green, supra.‘ Notwithstanding acknowledged

In letters presenting its views on earlier versions of the legislation

eventually enacted as PRWORA, the Department of Justice specifically

directed Congress’s attention to Shapiro, Green, and other cases,

commenting that “{ujniess and until the Supreme Ccurt revisits this issue,

courts applying this case law are very likely to hold unconstitutional state

laws passed pursuant to the[] provisions of the bills” now codified at 42

13

uncertainty concerning the scope of applicable constitutional

constraints, Congress determined that it was desirable, as a

matter of federal statutory welfare policy, to authorize each

participating State to adopt at least some form of temporary

limitation on the benefits made available to new state

residents, should the State deem it necessary to do so in

designing its own system of benefits within the federal

TANF program.

As the explanation offered by the House Report makes

clear, at least two related grounds underlie that congres-

sional judgment. First, Congress was concerned that “some

families move across State lines to maximize welfare bene-

fits.” H.R. Rep. No. 651, supra, at 1337. Because Congress

was fashioning a national social welfare program that would,

nonetheless, depend heavily for its success on the full and

committed participation of the several States, it could prop-

erly be concerned to avoid having that federal program in-

troduce real or perceived distortions into the ordinary pat-

terns of interstate migration that would have prevailed in

the absence of federal intervention. See, eg., States’ Per-

spective on Welfare Reform: Hearing Before the Senate

Comm. on Finance, 104th Cong., Ist Sess. 9 (1995) (state-

ment of Sen. Graham) (noting that one argument in favor of

completely federalizing the welfare program was that “with

unequal standards, you could create incentives for popula-

tions to move from one State to another in order to access

the higher benefits. That is not in the nation’s

interest to be trying to stimulate that kind of population

movement.”).

That concern would have been particularly acute in the

context of the new TANF block grants, which were designed

to encourage experimentation by the States and therefore

U.S.C. 602(aX 1 Bi) and 604(c). See Letter from Andrew Fois, Assistant

Attorney General for Legislative Affairs, to the Hon. Robert Dole,

Majority Leader, United States Senate 2-3 (Nov. 9, 1995).

14

could lead to a high degree of variation among state anti-

poverty programs. Because TANF programs will typically

be more complex than simple cash grants to needy families,

featuring a mixture of benefits (such as child care and job

training) and incentives (such as time limitations on the

availability of benefits) designed to move recipients into the

workforce, they may become significantly more difficult to

implement successfully as the population receiving assis-

tance becomes more transient. Because TANF programs

will also typically demand from each recipient a substantial

commitment to work toward bettering his or her own

situation (see, e.g., 42 U.S.C. 608(b), which allows States to

require recipients to sign “individual responsibility planſs]“

and to reduce benefits for noncompliance), the varying state

aid-and-incentive structures encouraged by the federal

block-grant program could also produce new incentives for

interstate relocation on the part of recipients who might

seek to avoid those new responsibilities or otherwise to take

advantage of the variable rules operative in different

jurisdictions. A benefit recipient’s movement from State to

State within the federal program could also raise choice-of-

law considerations, because Congress could reasonably de-

termine that the standards applicable to the recipient in the

State where he or she was previously receiving benefits

need not be disregarded for purposes of continued partici-

pation in the overall federal program as implemented by the

destination State, at least for a limited transition period.

5 Under TANF, for example, States A and B might each have a

limited portion of the federal grant—for purposes of illustration, say

$100—available to commit, over time, to providing cash aid to help move

any one recipient from welfare to work. State A might adopt a program

that provides relatively high cash benefits for a relatively short time—say

$50 per year for two years—so as to free recipients to focus on job

training, while giving them an incentive to move quickly toward inde-

pendence. State B might adopt a different approach, providing lower cash

benefits but for a longer period of time—say $25 per year for four years.

15

Finally, in its effort to encourage the development of new

and effective ways to break the cycle of long-term welfare

dependency, Congress in PRWORA chose to eliminate any

individual entitlement to benefits and to give the States

specific incentives by providing them with stable but gener-

ally non-increasing annual grants for an extended period.

See 42 U.S.C. 603(a) (fixing grant levels through 2002); H.R.

Rep. No. 651, supra, at 1332 (system “provides States with

an incentive to help recipients leave welfare because, unlike

{under the AFDC program], States do not get more money

for having more recipients on the welfare rolls”); see also 42

U.S.C. 607(a), 609(a)(3) (authorizing reduction of State

grants if percentage of adult welfare recipients engaged in

work activities falls below specified percentages). In short,

much of the thrust of the 1996 Act was to give both the

States and welfare recipients themselves the ability and

responsibility to address the issue of moving needy families

from welfare to work. In the context of that effort, it was

reasonable for Congress to seek, through a specialized

choice-of-law provision, to mitigate incentives for interstate

migration, and to accommodate the interests of various

States and the federal government, that stem from the

decentralized structure of the TANF program itself.

While the real-world variables are obviously complex, a recipient who

sought to maximize cash benefits would have some incentive to reside in

State A for two years, collecting a full $100 and exhausting eligibility

under the State’s program, and then to move to State B for the succeeding

two years, collecting another $50. Free mobility from one state program

to the next within the overall federal program would thus both (i) reduce

the intended incentive effect of State A’s time limit and (ii) allow the

recipient to receive still further funds from State B (and, indirectly, from

the federal taxpayer) under that State’s lengthier pay-out period. For

present purposes, the most important point is that the incentive to move

would have been unintentionally but effectively created by the decen-

tralized structure of the federal program, which not only allowed, but

encouraged, States A and B to adopt different program approaches.

16

2. The second, and related, reason set out in the legis-

lative history for authorizing States to impose temporary

residence-related benefit limitations is that “States that

want to pay higher benefits should not be deterred from

doing so by the fear that they will attract large numbers of

recipients from bordering States.“ H.R. Rep. No. 651,

supra, at 1337. That statement expresses concern over a

phenomenon often referred to as the “race to the bottom”: In

a system in which (i) each State sets its own benefit levels,

(ii) the Stat»’s total resources available for welfare benefits

are limited, and (iii) there is no restriction on interstate

migration, each State has some incentive to set its benefit

level at or below the level selected by every other State, so

as to avoid attracting an influx of benefit-eligible migrants.

See, e.g., Zubler, The Right to Migrate and Welfare Reform:

Time for Shapiro v. Thompson to Take a Hike, 31 Val. U. L.

Rev. 893, 929-939 (1996); see also States’ Perspective on

Welfare Reform, supra, at 9 (statement of Sen. Graham)

(suggesting concern that a State might also have an

incentive to reduce its benefit level below the level in other

States in order to encourage emigration of benefit reci-

pients).

On this model, no State is necessarily motivated by an

invidious desire to “fence out” the poor. Rather, from the

State’s perspective, it is unfortunate but evident that,

although each needy immigrant may act on the expectation

that the State’s present (relatively high) benefit level will

continue to be available after his move, the inevitable effect

of many such individual choices to immigrate, over a limited

time, will be to depress the level of benefits the State can

pay to each recipient using a given level of resources.

Conversely, allowing the imposition of limited restrictions

that have the effect of eliminating or mitigating any given

individual’s perceived incentive to move in search of higher

benefits may, paradoxically, increase not only the stability of

the system, but also the average level of benefits offered by

17

States throughout the program (if the promise of stability

encourages States to commit greater resources to the

program, or to set and maintain higher benefit levels on the

expectation that they will prove sustainable, over time,

within the limits of the State’s resources).

As in the case of other incentives to move potentially

created by the federal welfare benefits program, this race-

to-the-bottom concern may have been exacerbated by the

1996 reforms. Unlike AFDC, in which federal payments to a

State were generally based on the number of benefit reci-

pients within the State in any given period, thus offsetting a

substantial portion of the additional cost to the State of any

welfare-eligible immigrant, TANF bases the amount of state

grants on a base period and generally provides for no in-

crease in the commitment of federal funds over an extended

period. See 42 U.S.C. 603(a)(1). The new program thus

significantly increases the degree to which the amount

available to a State for the payment of cash benefits is fixed,

and correspondingly increases the effect on average sus-

tainable benefit levels of the arrival of any new benefit

recipient. Particularly in light of that change introduced by

PRWORA, it was reasonapie for Congress to address the

race-to-the-bottom problem that might be caused by the

existence of variable state benefit programs by authorizing

individual States to include in their programs, should they

feel the need to do so, some temporary restrictions on a new

resident’s ability to receive welfare benefits more generous

than those provided by his or her former State.

It is important to observe, however, that Congress’s

action in this regard is permissive, not mandatory, and that

the federal authorization, although it sets some limits on the

restrictions a State may impose, does not purport to specify

what particular limitations may be appropriate in the con-

text of a particular state program. Those characteristics of

the federal action are consistent with PRWORA’s overall

approach of establishing relatively general federal para-

18

meters for the TANF program and leaving individual States

substantially free to design their own benefit programs in

accordance with local conditions and legislative judgments.

Moreover, like all legislation, the federal authorization is

bounded to some extent by the purposes that underlie it.

For those reasons, Congress’s general decision to authorize

some residency-based benefit limits does not resolve—

although, as we explain below, it is highly relevant to—the

question whether any particular benefit restriction adopted

by a State pursuant to that authorization falls within the

independent limits imposed on the State’s action by the

federal Constitution.

Il. The Particular Benefit Restriction Imposed By Cali-

fornia Must Be Examined To Determine Whether It Is

Substantially Related To The National Governmental

Purposes That Underlie Congress's General Authori-

zation Of Such Limitations In The Context Of The

TANF Program

The courts below determined that California’s Section

11450.03 would likely be held unconstitutional on the basis of

this Court’s decisions in Shapiro v. Thompson and other

cases involving state laws challenged as impermissibly bur-

dening “the constitutional right to travel, or, more precisely,

the right of free interstate migration.” Attorney General v.

Soto-Lopez, 476 U.S. 898, 902 (1986) (plurality opinion); see

Pet. App. 9-10, 26-30. That position has considerable force.

Through Section 11450.03, the State seeks to treat some of

its citizens differently from others solely on the basis of how

recently they became residents of the State. This Court’s

cases make clear that any state classification drawn on that

basis is constitutionally problematic. See, eg., Soto-Lopez,

476 U.S. at 902-905 (plurality opinion) (describing previous

cases).

Although we think that the doubt concerning Section

11450.03’s constitutionality is sufficient to sustain the district

19

court’s entry of a preliminary injunction, we agree with the

State that the district court erred in concluding (Pet. App.

30), at the outset of the present proceedings, that Section

11450.03 “must” be held unconstitutional. Because Congress

has affirmatively authorized the imposition of some limita-

tions of this type in the context of the nationwide, federally

funded TANF program, the constitutional question in this

case cannot be properly resolved without a serious examina-

tion of whether the particular limitation adopted by Cali-

fornia is sufficiently tailored so that it may fairly be re-

garded as “substantially related” to the national governmen-

tal interests furthered by that authorization. While we ques-

tion whether the California provision, enacted four years

before PRWORA, will be able to satisfy that standard, the

State should have the opportunity to demonstrate that it

does.

1. In some cases, this Court has held that particular lines

drawn by state legislatures on the basis of length of

residency in the State simply bore no rational relationship to

any legitimate state purpose. See Zobel v. Williams, 457

U.S. 55, 61-64 (1982); Hooper v. Bernalillo County Assessor,

472 U.S. 612, 618-623 (1985); see also Soto-Lopez, 476 U.S. at

912-916 (Burger, C.J., concurring in the judgment), 916

(White, J., concurring in the judgment). The same might be

true in this case if, as the lower courts essentially assumed,

Section 11450.03 reflected nothing more than a unilateral

State purpose “to deter migration of poor people to Cali-

fornia.” Pet. App. 9; see Shapiro, 394 U.S. at 631; compare

Romer v. Evans, 517 U.S. 620, 631-636 (1996); City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-447

(1985) (“[S)ome objectives—such as ‘a bare . desire to

harm a politically unpopular group,’—are not legitimate

state interests.”) (citation omitted). It is not, however,

appropriate simply to assume such an impermissible purpose

with respect to a state statute that falls within the express

authorization in 42 U.S.C. 604(c).

20

Unlike the state laws at issue in the Court’s prior cases

(including Shapiro, see 394 U.S. at 638-640), Section 11450.03

is a provision of a type that Congress has clearly authorized

States to enact in the specific context of their participation in

a nationwide but decentralized federal benefits program.

That distinction is critical, because the national govern-

mental purposes that support 42 U.S.C. 604(c) would also

serve to support state legislation that fairly implements it.

Compare Pet. App. 9, 30 (dismissing the enactment of

PRWORA as irrelevant). Those federal purposes—avoiding

the creation, through a federal program, of distorted incen-

tives for interstate migration by benefit recipients; address-

ing the unique choice-of-law considerations that may rea-

sonably be deemed to arise when a participant in one State’s

implementation of the federal program moves to another

State with different rules; and mitigating any tendency, in

such a program, toward a “race to the bottom” in the State-

by-State establishment of benefit levels—are plainly legiti-

mate, even though it may be doubted that an individual

State, pursuing only its own interests, would ever have valid

reasons for distinguishing new citizens from old in allocating

benefits under a program designed and funded solely by the

State. And the imposition by a State of some temporary

limitation on benefits payable to new residents, as author-

ized by Section 604(c), is reasonably calculated to advance

those national ends.

The ultimate strength of the connection between ends and means

largely depends, of course, on the proposition that individuals are or may

be influenced in their decisions about interstate migration by the

perceived availability of higher welfare benefits in a destination State.

Although respondents dispute that proposition as an empirical matter

(see, ¢.g., Pet. App. 23-24), there is some evidence to support it. See id. at

25 (citing P. Peterson & M. Rom., Welfare Magnets (Brookings Inst.

1990)); Zubler, 81 Val. U. L. Rev. at 933-939; Moffitt, Incentive Effects of

the U.S. Welfare System: A Review, 30 J. Econ. Lit. 1, 34 (1992). In the

case of a judgment made by Congress in fashioning an integrated national

21

2. In other cases, including of course Shapiro, the Court

has invalidated state classifications akin to that drawn in

Section 11450.03 on the ground that they unduly burdened

the federal constitutional right of citizens of the United

States “to enter and abide in any State in the Union.” Dunn

v. Blumstein, 405 U.S. 330, 338 (1972); see Soto-Lopez, 476

U.S. at 901-913 (plurality opinion); Memorial Hosp. v. Mari-

copa County, 415 U.S. 250 (1974); Shapiro, supra; see also

Zobel, 457 U.S. at 65-71 (Brennan, J., concurring); Hooper,

472 U.S. at 624 (same). In Shapiro and Dunn, the Court

indicated that “any classification which serves to penalize

the exercise of that right, unless shown to be necessary to

promote a compelling governmental interest, is unconstitu-

tional.” Shapiro, 394 U.S. at 634; see Dunn, 405 U.S. at 338-

343. As the Court subsequently observed, however, al-

though “any durational residence requirement impinges to

some extent on the right to travel,” some such impingements

may not rise to the level of “penalties”; and the Court’s cases

have not made entirely clear t he amount of impact re-

quired to give rise to the compelling-state-interest test.”

Memorial Hosp., 415 U.S. at 256-257, 258-259; see also Soto-

Lopez, 476 U.S. at 903-906 & n.5 (plurality opinion); id. at 921

(O'Connor, J., dissenting); Sosna v. Iowa, 419 U.S. 393 (1975)

(upholding durational residency requirement for invoking ju-

risdiction to obtain divorce, without expressly addressing

applicable standard of review); Viandis v. Kline, 412 U.S.

441, 452-453 & n.9 (1973) (acknowledging permissibility of

program of state participation like TANF, we do not believe that more is

required to support the governmental interest. Cf. Turner Broad. Sys. v.

FCC, 512 U.S. 622, 665 (1994) (“Sound policymaking often requires

legislators to forecast future events and to anticipate the likely impact of

these events based on deductions and inferences for which complete

empirical support may be unavailable.”); FCC v. Beach Communications,

Inc., 508 U.S. 307, 313-315 (1998).

22

reasonable durational residency requirements to establish

entitlement to in-state tuition at public university).

We in no way question the correctness of Shapiro’s hold-

ing that an absolute one-year bar on welfare eligibility was

unconstitutional. Nor do we believe there is any occasion in

this case to reconsider the rationale of Shapiro or subse-

quent cases addressing durational residency requirements

that are adopted by the State on the basis of state authority

alone, to identify a single source in the Constitution for the

freedom of interstate migration, or to articulate an over-

arching theory for resolving the constitutionality of all state

measures that are alleged to burden that freedom. For in

our view the constitutional calculus must change somewhat

in the unusual circumstance in which Congress has consid-

ered a question affecting the right of interstate migration, in

the unique context of structuring a decentralized national

welfare program, and has authorized the States to adopt not

an outright bar, but rather a specialized choice-of-law rule

that calls for application of the laws of the prior State of

residence for a limited transitional period.

That federal authorization is of central importance in part

because the freedom of interstate migration reflects both the

national interest in interstate commerce (see Edwards v.

7 In recent cases, some Justices have suggested that claims based

primarily on the right of interstate migration should be evaluated under

the Privileges and Immunities Clause of Article IV, Section 2 of the Con-

stitution. Zobel, 457 U.S. at 71-81 (O’Connor, J., concurring in the judg-

ment); see also Soto-Lopez, 476 U.S. at 918-925 (O’Connor, J., joined by

Rehnquist and Stevens, JJ., dissenting); id. at 916 (White, J., concurring in

the judgment). On that analysis, a State may not draw any legislative

distinction on the basis of an individual’s exercise of the “fundamental”

right “to establish residence in a new State” unless (i) there is “something

to indicate that non-citizens [including the new residents affected by the

challenged classification] constitute a peculiar source of the evil at which

the statute is aimed,” and (ii) there is “a ‘substantial relationship’ between

the evil and the discrimination practiced against the noncitizens.” Zobel,

457 U.S. at 76-77 (O’Connor, J., concurring in the judgment).

California, 314 U.S. 160, 172-173 (1941)), which Congress has

express power to regulate (U.S. Const. Art. I, § 8, cl. 3), and

the nature of a national Union, as opposed to a federation of

independent States. Congress’s authorization is also impor-

tant because insofar as interstate migration is a fundamental

personal right (in addition to a structural attribute of na-

tional union), it is in important respects a right of national

citizenship, as to which Congress stands in a different rela-

tion to individual citizens than do the legislatures of the

several States. See, e. g., Soto-Lopez, 476 U.S. at 902 (plural-

ity opinion) (noting “the important role that principle has

played in transforming many States into a single Nation”);

Zobel, 457 U.S. at 73 (O’Connor, J., concurring); Passenger

Cases, 48 U.S. (7 How.) 282, 492 (Taney, C.J., dissenting)

(“For all the great purposes for which the Federal govern-

ment was formed, we are one people, with one common

country.”); ef. Edwards, 314 U.S. at 173 (Of the limits on

State legislation, “none is more certain than the prohibition

against attempts on the part of any single State to isolate

itself from difficulties common to all of them by restraining

the transportation of persons and property across its

borders.”).

The form in which Congress has acted—by authorizing a

specialized choice-of-law rule, rather than an outright ban—

is also significant. In the first place, under that approach

(unlike in Shapiro), there is a built-in assurance that a per-

son who relocates to a new State ordinarily will not receive

lower cash benefits by reason of relocating to a new State.

More fundamentally, under a national program such as

TANF, Congress may reasonably determine, for example,

that when a family was receiving TANF benefits in another

State, that State retains a sufficient connection to the

family’s continued receipt of benefits under the federal pro-

gram that its law may properly be taken into account by the

destination State during a transition period. In such circum-

stances, Congress determined, a destination State might

24

provide that the family would not become fully eligible under

its laws until after completion of the one-year period of

transition. Compare Sosna, 419 U.S. at 404-410. Ordinarily,

of course, there would be little or no justification for one

State, in the administration of its own public benefits laws,

unilaterally to apply the standards of another State’s laws.

See Restatement (Second) of Conflict of Laws § 9, cmt. g

(1971); compare Phillips Petroleum Co. v. Shutts, 472 U.S.

797, 814823 (1985). But where a decentralized benefit pro-

gram is established and funded by the federal government,

Congress may reasonably determine that the laws of more

than one State may be relevant when a person who is eligible

for benefits in one State moves to another State. As we have

explained (see p. 14 & n.5, supra), the effectiveness of the

TANF program depends in part on mutual commitments

made by participants and the States. The special choice-of-

law rules authorized by Section 604(c) can serve to reenforce

the effect of such commitments made in the State of origin

by giving some temporary continuing effect to that State’s

laws in the destination State. Section 604(c) therefore

furthers purposes recognized by the Full Faith and Credit

Clause of the Constitution (Art. IV, § 1), which grants Con-

gress power to prescribe certain rules for giving effect in one

State to the “public Acts” of another.

We do not suggest that Congress may “authorize the

States to violate the Equal Protection Clause” (Shapiro, 394

U.S. at 641), or that the right to travel may be “eliminated

by Congress” (Bray v. Alexandria Women’s Health Clinic,

506 U.S. 263, 277 n.7 (1993)). Plainly neither proposition is

supportable. There is, however, a salient difference, in this

regard, between state legislation that is purely local in char-

acter and imposes a flat bar to eligibility, as in Shapiro, and

state choice-of-law legislation that seeks to implement a

national policy, related to interstate commerce and the inci-

dents of national citizenship, that Congress has explicitly ar-

ticulated in the federal law that creates a nationwide benefit

program. When a State acts unilaterally, there is a risk that

it seeks to limit the allocation of its resources in ways that

may properly be condemned as parochial and based on a

desire to exclude persons from out-of-State. That risk is

substantially lessened when Congress acts, because Con-

gress represents, by definition, all citizens of the United

States. Moreover, as we have suggested, the creation of a

decentralized welfare program may also create both new

incentives for movement and new problems of how to

determine what rules should apply when an individual moves

from program to program within the system—issues that

Congress must be able to address if they are to be addressed

at all under our Constitution. Thus, when Congress acts to

structure and protect a nationwide program, in which it

wishes to enlist the willing cooperation of the several States,

a court should not lightly hold that state action implementing

the multistate aspects of that program, under an express

congressional authorization, impermissibly burdens a right

of interstate migration that has at its core a concept of

national citizenship, and that presupposes the existence of a

Union and a Government of the United States in which Con-

gress has the legislative power.

The rationale for taking account of congressional authori-

zation in this context also suggests, however, limits to the

principle. First, severe deprivations of the sort that this

Court has already held impermissibly burden the freedom of

interstate migration, such as a State’s complete (even if

temporary) denial of all welfare benefits to new residents

because of their recent arrival, as in Shapiro, or of any abil-

8 There is accordingly no occasion here to reconsider the Court's

statement in Shapiro, 394 U.S. at 641, that the state laws at issue in that

case, which imposed a flat one-year bar to eligibility on all new residents,

would be unconstitutional even if, contrary to the Court's actual reading of

federal law (394 U.S. at 638-640), the version of 42 U.S.C. 602(b) then in

effect had affirmatively authorized that bar.

ity to exercise the right to vote, as in Dunn, would presuma-

bly remain subject to strict scrutiny even if they had been

specifically authorized by Congress. Second, the right to

change state citizenship is an important personal liberty, and

a state law that substantially burdens that right will always

warrant more than minimal constitutional scrutiny, even if it

has been authorized by Congress. Finally, the effect of any

legislative action, including a congressional authorization, is

appropriately limited, to some extent, by the purposes that

underlie it. When, as in PRWORA, Congress delegates to

the States substantial authority to implement an overall fed-

eral program in State-specific ways, it necessarily does so in

relatively general terms. Accordingly, although it is appro-

priate to recognize that a State that legislates pursuant to a

specific federal authorization is acting in part on behalf of

national interests, when an individual alleges that the State

has unduly burdened the right to migrate, it is also appropri-

ate for a court to assure itself that the State’s action is de-

signed—and sufficiently tailored—to serve the purposes of

the federal authorization.

In light of these considerations, we believe a state statute

that does not clearly impose a burden of the sort that was

held impermissible under Shapiro and subsequent cases, and

that implements a specific congressional authorization within

the context of a decentralized federal program, should be

subject to an intermediate form of constitutional review.

That degree of heightened scrutiny is normally described as

requiring that a statutory classification be “substantially

related to an important governmental! objective.” Clark v.

Jeter, 486 U.S. 456, 461 (1988). Because the premise for

applying less-than-strict scrutiny in this class of cases is that

Congress has specifically authorized a general type of state

classification, it should normally be clear, as we think it is

here, that the goals of achieving interstate integration and

coordination, preventing the distortion of ineentives, and

promoting the effectiveness of the federal program are im-

27

portant ones. Accordingly, the dispositive question will nor-

mally be whether a State’s particular implementation is

“substantially related” to the purposes of the federal

authorization. That inquiry will generally focus on whether

the State’s chosen means are sufficiently tailored so as to

promote the supporting important federal governmental

ends, without unreasonably burdening the affected class’s

individual right of interstate migration.’

3. In this case, the burden that Section 11450.03 imposes

on respondents is not one that the Court’s prior cases have

clearly identified as sufficient to constitute a “penalty” on

the right to migrate. Unlike the eligibility waiting-period

struck down in Shapiro, California’s limitation on benefits

for new arrivals does not completely bar eligible new resi-

dents from receiving welfare benefits. Rather, it adopts a

specialized choice-of-law rule that calls for the application of

the law of the recipient’s prior State of residence with

respect to ome aspect of the benefit determination—the

amount of cash benefits to be paid. It follows as well that all

families that are otherwise eligible under the California

TANF program will receive some level of benefits. Even

Under the Privileges and Immunities Clause analysis discussed in

note 7, supra, the federal purposes of the general congressional aut hori-

zation in Section 604(c) could presumably be attriLuted to the State for

purposes of determining that non-residents, or new residents, are a

“peculiar source” of the problem that a State’s legislation seeks to address.

Zobel, 457 U.S. at 76 (O’Connor, J., concurring in the judgment). The addi-

tional inquiry suggested in the text, concerning how well the State’s

particular benefit limitation serves the purposes of the federal aut hori-

zation, would be essentially the same as the second inquiry under the

Privileges and Immunities test—whether there is a “substantial relation-

ship” between that problem and the discrimination at issue. /bid.; see

also, ey., Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 284

(1986) (“The (Privileges and Immunities) Clause does not preclude discri-

mination again. nonresidents where (i) there is a substantia) reason for

the difference im treatment: and (ii) the discrimination practiced against

nonresidents bears a substantia) relationship to the State’s objective.”).

28

that limitation may, of course, cause hardship in individual

cases; but the California provision on its face does not

completely “den[y] welfare aid upon which may depend the

ability of the [recipient] families to obtain the very means to

subsist.” Shapiro, 394 U.S. at 627; see also Memorial Hosp.,

415 U.S. at 269. Nor does this case, like Dunn, involve even

the temporary deprivation, on the basis of interstate migra-

tion, of the ability to exercise another fundamental right.

And nothing in Section 11450.03 creates a class of state

residents whose rights are permanently inferior to those of

longer-term inhabitants, as could be said of the employment-

preference, tax-benefit, and revenue-sharing schemes the

Court struck down, on a rational-basis analysis, in Soto-

Lopez, Hooper, and Zobel. In light of Congress’s authoriza-

tion, this case is therefore an appropriate one in which to

apply intermediate rather than strict scrutiny.

The district court accordingly erred in concluding that

Section 11450.03 “must” be unconstitutional (Pet. App. 30),

because it reached that conclusion without acknowledging

the importance of the federal authorization contained in 42

U.S.C, 604(c), and without evaluating whether the California

provision is sufficiently tailored to be “substantially related”

to the advancement of Section 604(c)’s purposes. The proper

answer to that inquiry is not, in our view, clear on the pre-

sent record. California’s benefit limitation was first enacted

four years before Congress enacted Section 604(c), and it ap-

pears to be overbroad as a means of addressing the federal

purposes of eliminating distorted incentives, accommodating

choice-of-law issues created by the federal program, and pre-

venting a “race to the bottom.” So far as appears, the State

has made no effort to limit the application of its rule to cate-

gories of recipients who are most likely to have moved in

search of higher or additional federal benefits. The State’s

provision is not, for example, limited to applicants who were

receiving TANF benefits in their prior State of residence at

the time they moved, the situation in which the choice-of-law

rationale for the limitation most readily applies. See pp. 23-

24, supra; Pet. App. 17-18 (describing State’s implementa-

tion of Section 11450.03). Nor does the State appear to grant

any categorial exemptions from its rule for applicants who,

for example, moved to California to accept job offers, but be-

came unemployed after a period of work; or, alternatively, to

allow any applicant an opportunity to receive an exemption

from the across-the-board limitation by making an indivi-

dualized showing that he or she did not come to California

for the puspose of secking higher (or any) welfare benefits.

Ibid.

The apparent overbreadth of Section 11450.03 in relation

to the national purposes behind Section 604(c) raises a sub-

stantial question about its constitutionality under interme-

diate scrutiny. Because the balance of harms in this case

also appears to favor respondents (see Pet. App. 10-11, 30-

31), the court of appeals correctly concluded that the district

court did not abuse its discretion in entering a preliminary

injunction. That was the only issue resolved by the judg-

ment below, see id. at 11-12, and that judgment should

accordingly be affirmed. In further proceedings in the dis-

trict court, however, the State should be afforded the oppor-

tunity to demonstrate that its benefit restrictions are sub-

stantially related to the purposes of the federal authoriza-

tion—perhaps, for instance, because they are in fact better

tailored than they appear, or perhaps because the costs of

administering any more discriminating rule would be prohi-

bitive. In any event, before entering its final judgment the

district court should evaluate, on the basis of the record

10 At least one state has made an effort to tailor its durational resi-

dency limitation more narrowly to support the relevant federal statutory

goals. Illinois limits the TANF benefits payable to an applicant who has

resided in Illinois for fewer than 12 months to those payable by the State

of prior residence, but only if the applicant received aid in the prior State

at any time within 12 months of becoming a resident of Illinois. 305 IIL

Comp. Stat. Ann. 5/11-80 (West 1993).

30

presented by the parties, whether Section 11450.03 is sub-

stantially related to the important national purposes that

underlie Congress’s enactment of 42 U.S.C. 604(c)."

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

Counsel of Record

FRANK W. HUNGER

Assistant Attorney General

EDWIN 8. KNEEDLER

Deputy Solicitor General

EDWARD C. DUMONT

Assistant to the Solicitor

General

MARK B. STERN

KATHLEEN MORIARTY MUELLER

PETER J. SMITH

Attorneys

NOVEMBER 1998

Intermediate scrutiny requires not only an inquiry into the “sub-

stantial relationship” between the legislative purpose and its restrictions,

but also a demonstration that the legislation is designed to achieve an im-

portant goal. For state statutes that are expressly intended to implement

the TANF program, we believe the congressional findings and purpose

that underlie Section 604(c) should ordinarily satisfy the “purpose” inquiry

with respect to the implementing state statute—at least in the absence of

convineing proof that the state legislature in fact acted with another,

impermissible purpose. In the unique circumstance of this case, where the

California statute was enacted four years before PRWORA, that state

statute plainly could not have been enacted specifically to implement the

federal statute. Accordingly, respondents should not be foreclosed from

attempting to demonstrate that California in fact enacted Section 11450.03

solely for the invidious purpose of discouraging poor people generally from

settling in the State, rather than for the permissible purpose of

implementing the goals now reflected in the national program.