Amicus Curiae Brief — Saenz v. Roe

Supreme Court, us |

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a, /: NOV 10 4998

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No. 98-97 ‘hed CLERK

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In the nies

Supreme Court of the United States

October Term, 1998

+

ELOISE ANDERSON, Director, California Department

of Social Services; CALIFORNIA DEPARTMENT

OF SOCIAL SERVICES; PETE WILSON, Governor of

the State of California; and CRAIG L. BROWN,

Director, California Department of Finance,

Petitioners,

Vv.

BRENDA ROE and ANNA DOE, on behalf of

themselves and all others similarly situated,

Respondents.

+

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

+

*SHARON L. BROWNE

*Counsel of Record

DEBORAH J. LA FETRA

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Facsimile: (916) 920-3444

Counsel for Amicus Curiae

Pacific Legal Foundation

ARGUMENT

CALIFORNIA SHOULD BE ALLOWED TO

CONDUCT ITS NOVEL EXPERIMENT

SECTION 11450.03 SHOULD BE UPHELD

UNDER RATIONAL BASIS REVIEW

A. Welfare Legislation Is Subject

SHAPIRO AND ITS PROGENY ARE

NOT CONTROLLING IN THIS CASE

BECAUSE NO FUNDAMENTAL RIGHT

IS BURDENED BY A LAW THAT LEAVES

MIGRANTS EQUALLY WELL OFF AS

IF THEY HAD REMAINED IN THEIR

PRIOR STATE OF RESIDENCE

A. The Law at Issue Does Not Impose

an Eligibility Bar to New Migrants

B.

TABLE OF CONTENTS—Continued

Page

C. Failure to Halt the Expansive Shapiro

Doctrine Leads to the Creation of

Ever More “Fundamental” Rights ........... 19

IV. SECTION 11450.03 DOES NOT

VIOLATE THE PRIVILEGES

AND IMMUNITIES CLAUSE ................ 21

CONCLAIIION «occ. 00 us be cesec geen behaeeneeee 22

iil

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Green, 513 U.S. 557(1995) .............. 4

Anderson v. Green, 513 U.S. 922 (1994) .............. ]

Attorney General of New York v. Soto-Lopez.

i ts ok oe tee 6 ae 3, 18-19

Baldwin v. Montana Fish and Game

Commission, 436 U.S. 371 (1978) ............. 21-22

Dandridge v. Williams, 397 U.S. 471 (1970) . 3, 9-12, 15, 22

Dunn v. Blumstein, 405 U.S. 330 (1972). .......... 14, 16

Geduldig v. Aiello, 417 U.S. 484 (1974) ............... l

Graham v. Richardson, 403 U.S. 365(1971) .......... 15

Green v. Anderson, 26 F.3d 95 (9th Cir. 1994) ........ 4-5

Harris v. McRae, 448 U.S. 297 (1980) ............... 20

Hassan v. East Hampton, 500 F. Supp. 1034

EG OES 19

Hooper v. Bernalillo County Assessor,

EEE 3

Jefferson v. Hackney, 406 U.S. 535 (1972) ........ 3, 10-11

Lascaris v. Shirley, 420 U.S. 730 (1975) .............. |

Lutz v. City of New York, 899 F.2d 255

ee id coc ce cccecece 20

Memorial Hospital v. Maricopa County,

PU MPUIIUTED « scp cbcctecscccs: 3, 14-16, 18-19

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ..... 7

Vv

TABLE OF AUTHORITIES— ontinued

Page

Roe v. Anderson. 134 F.3d 1400(¢9th Cir. 1998) 3, 5, 11-13

Roe v. Anderson, 966 F. Supp. 977

(E.D. Cal. 1997) | 7 5

San Antonio Independent School District v

Rodriguez, 411 U.S. 1 (1973) 7

Shapiro v. Thompson, 394 U.S. 618 (1969) 3, 5, 7, 11-20

Sosna v. lowa, 419 U.S. 393 (1975) _.. 3, 16-17

United States v. Lopez, 514 U.S. $49 (1995) i‘Seikaden e

Vlandis v. Kline, 412 U.S. 441 (1973) ae 16

Zobel v. Williams, 457 U.S. 55 (1982) ... .. 3, 16-19, 21

United States Constitution

Article IV | _. 3, 18-19, 21

Fourteenth Amendment........... bie wak Woe eee

§ | 3 | cee Yee on kie 8, 16

Statutes

42U S.C. § 601 | | cagiwlne eh ae bees 4

§ 60l(aX2) oS ae {UE So _

42 U.S.C. § 601, ef seg 4

42 USC. § 604(c) i edalax OE Ply 4

Cal. Welf. & Inst

Code § 11450.03 eee. 2, 36, 8, 11-12, 15, 19, 21-22

Rules of Court

Rule 37 ‘ catvpeenddaedn ist cea eee |

37.6 Se POE ere PE PAA ek wegen we gre l

v

TABLE OF AUTHORITIES—C ontinued

Miscellaneous

1996 WL 648450 (Leg. Hist.)..............

Andrew C. Porter, Toward a Constitutional

Analysis of the Right to Intrastate Travel.

Lawrence H. Tribe, American Constitutional

og Bs er pee

Todd Zubler, The Right to Migrate and Welfare

Reform: Time for Shapiro v. Thompson to Take

a Hike, 3\ Val. U.L. Rev. 905(1997) _......

Ce en

IDENTITY AND INTERESTS OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus curiae

in Support of Petitioners Eloise Anderson, ef a/' Written

consent to the filing of this brief has been granted by counsel for

all parties. Copies of the letters of consent have been lodged

with the Clerk of this Court.

Pacific Legal Foundation is submitting this brief because

| it believes its public policy perspective and litigation experience

| in the welfare reform arena will provide an additional viewpoint

with respect to the issues presented. PLF has participated in

numerous cases before this Court, including the previous

incarnation of this case, Anderson v. Green, 513 U.S. 922

(1994), as well as other welfare reform cases such as Lascaris v.

Shirley, 420 U.S. 730 (1975), and Geduldig v. Aiello, 417 U.S.

484 (1974).

PLF believes that the welfare reform act of 1996, officially

titled the “Personal Responsibility and Work Opportunity

Reconciliation Act of 1996,” has essentially wiped the welfare

) slate clean. After more than 60 years of tinkering with a welfare

system that has proven to be counterproductive and beyond

repair, the federal welfare act states that its purpose is to increase

flexibility of states in operating a program designed to, among

other things, end the dependence of needy parents on

government benefits by promoting job preparation, work, and

marriage. 42 U.S.C. § 601(aX2). The federal welfare reform

act allows the states to conduct novel social and economic

experiments. California's statutory provision restricting welfare

' Pursuant to Supreme Court Rule 37.6, amicus curiae Pacific Legal

Foundation affirms that no counsel for any party in this case authored

this bnef in whole or in part, and furthermore, that no person or entity

has made a monetary contribution specifically for the preparation or

submission of this bnef

2

benefit levels distributed to new residents during their first year

of arrival in a state to the amount received in their state of origin

is such an experiment. It is part of California's experimental

project to end welfare dependency. In deference to the

principles of federalism, California's experiment should be

allowed to continue.

SUMMARY OF ARGUMENT

The welfare reform act of 1996, expressly provides block

grants to states in order to encourage state innovation. Instead

of an open-ended system encouraging welfare as a way of life.

the Act states that its purpose is to increase the flexibility of

States in Operating a program designed to, among other things.

end the dependence of needy parents on government benefits by

promoting job preparation, work, and marriage. California

responded to this congressional change of direction by

implementing various provisions including California Welfare

and Institutions Code § 11450.03. Section 11450.03 generally

provides new residents the same amount of welfare benefits that

they were eligible to receive before moving to California. Out

of deference to principles of federalism and in recognition that

States should be allowed a certain amount of freedom to conduct

novel social experiments, California's efforts to transform its

broken welfare system by maintaining newcomers at the same

amount of welfare benefits they were eligible to receive in their

former state of residence for 12 months should be allowed to

continue.

The proper standard of review of Section 11450.03 should

be the traditional, rational basis equal protection test. Under this

analysis, legislatures must be free to do their work, which at

times requires drawing distinctions between individuals. The

role of the courts is generally a deferential one where courts do

not second-guess the wisdom or efficacy of legislative action,

but merely seek to ensure its rationality. This Court should rule

that in the interest of discouraging welfare dependency, states

3

should be allowed to experiment with different benefit levels.

while at the same time providing a safety net for residents,

without regard to the duration of their residency.

The Ninth Circuit and the trial court relied upon Shapiro v.

Thompson, 394 U.S. 618 (1969), and Memorial Hospital v.

Maricopa County, 415 U.S. 250 (1974), in holding that Section

11450.03 is subject to strict scrutiny analysis based on their

finding that the statute imposes a penalty on the right to travel

and the state failed to show a compelling state purpose. Roe v.

Anderson, 134 F.3d 1400, 1404 (9th Cir. 1998). Yet, the equal

protection analysis of Shapiro and Memorial Hospital need not,

and should not, control the outcome of this litigation. The

analysis of Shapiro has \lost its vitality over time and should not

be applied. This Court has applied a variety of different analyses

to right to travel issues, thus undermining the controlling

precedential effect of any one line of analysis. Shapiro was

based on a strict scrutiny, equal protection analysis. Memorial

Hospital emphasized the concept of a “penalty” in the strict

scrutiny analysis. Sosna v. lowa, 419 U.S. 393, 419 (1975),

applied an “ad hoc balancing test.” Hooper v. Bernalillo County

Assessor, 472 U.S. 612 (1985), and Zobel v. Williams, 457 U.S.

55 (1982), were decided under a rational basis review. Justice

O’Connor has twice advocated a two-pronged test based on the

Privileges and Immunities Clause of Article IV of the

Constitution. Zobel, 457 U.S. at 71-81 (O’Connor, J.,

concurring in the judgment); Attorney General of New York v.

Soto-Lopez, 476 U.S. 898 (1986) (O'Connor, J., dissenting).

Other cases have held that welfare legislation is ordinarily

subjected to rational basis review. Dandridge v. Williams.

397 U.S. 471 (1970), Jefferson v. Hackney, 406 U.S. 535

(1972). Unlike Shapiro and its progeny, Section 11450.03 does

not impose an absolute bar to the receipt of benefits by recent

migrants. Instead, only minimal delay in receiving an increase

in benefits is imposed. Shapiro and its progeny need not, and

should not, control the outcome of this litigation.

—— ae 8 mg

4

STATEMENT OF THE FACTS

In 1996, Congress fundamentally changed the nature of the

American welfare system by repealing, among other things. the

Aid to Families with Dependent Children program and replacing

it with the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, 42 U.S.C. § 601, ef seg. ThisAct

gives states broad authority to design and implement their own

welfare systems. In doing so, Congress aimed to increase the

flexibility of the states to experiment with their welfare systems,

with the ultimate goal of encouraging recipients to find work and

end dependence on welfare. See 42 U.S.C. § 601.

Among its provisions, the federal welfare reform act

changed the basic funding format. Funding for a state's welfare

program is provided through block grants to states with certified

Temporary Assistance to Needy Families (TANF) plans. In

addition, the federal welfare reform act expressly authorizes

States to limit welfare benefits to new residents to the amount

that such persons received in their prior state of residence for up

to 12 months after relocation. 42 U.S.C. § 604(c).

Following this congressional change in direction,

California resurrected Welfare and _ Institutions Code

§ 11450.03.° This statute provides that newcomers to California

would receive the same level of welfare benefits for 12 months

that they were eligible to receive in their former state. Section

11450.03 provides:

> Welfare and Institutions Code § 11450.03 was the subject of

previous litigation pnor to enactment of the federal welfare reform

act. The federal district court and Ninth Circuit Court of Appeals

struck down the statute as violating the nmght to travel (Green v.

Anderson, 26 F.3d 95 (9th Cir. 1994)), and this Court granted review

of the case. However, the case was dismissed and the judgment of

the Ninth Circuit vacated when the federal waiver was withdrawn.

Anderson v. Green, 513 U.S. 557, 560 (1995).

5

(a) Notwithstanding the maximum aid payments

specified in paragraph (1) of subdivision (a) of

Section 11450, families that have resided in this state

for less than 12 months shall be paid an amount

calculated in accordance with paragraph (1) of

subdivision (a) of Section 11450, not to exceed the

maximum aid payment that would have been received

by that family from the state of prior residence.

Two applicants for California welfare benefits, representing

a certified class of all new residents to California, challenged this

Statute as violating the right to travel under the United States

Constitution. Roe v. Anderson, 134 F.3d at 1403. The

applicants remained eligible to receive welfare benefits, but

California, in adopting Section 1 1450.03, made the decision not

to increase newcomers’ benefit levels. Instead, new California

residents receive, for one year, the same amount of welfare

benefits they received in their state of prior residence. /d. The

district court, relying on its previous ruling in Green v.

Anderson, granted the preliminary injunction based on a finding

that Section 11450.03 penalizes the right to travel. Roe v.

Anderson, 966 F. Supp. 977 (E.D. Cal. 1997).

The Ninth Circuit affirmed the lower court ruling. Relying

on Shapiro, the Ninth Circuit ruled that Section 1 1450.03 places

a penalty on the right to travel and that the state failed to show

a compelling state purpose. Roe, 134 F.3d at 1404.

ARGUMENT

I

CALIFORNIA SHOULD BE ALLOWED TO

CONDUCT ITS NOVEL EXPERIMENT

The welfare reform act of 1996 makes major changes in the

administration of welfare. Instead of a federally micro-managed

system required to be nationally uniform, the federal welfare

reform act now provides block grants to the states in order to

encourage state innovation. Instead of an open-ended system

6

encouraging welfare as a way of life, the Act states that its

purpose is to increase the flexibility of states_in operating a

program designed to, among other things, end the dependence

of needy parents on government benefits by promoting job

preparation, work, and marriage. 42 U.S.C. § 601(aX2). This

change of direction allows the states to conduct novel social and

economic experiments.

In response to this new grant of state flexibility in the

field of welfare reform, California began its experimental

project to reform welfare dependency and, among other

things, implement the provisions of Section 11450.03. Section

11450.03 generally provides new residents the same amount of

welfare benefits that they were eligible to receive before moving

to California.

In ruling on the validity of this state statute, this Court

should be mindful of the concept of federalism. The United

States is composed of sovereign units of government entitled to

a certain amount of latitude in order to experiment with novel

solutions to social and political problems. The idea that

federalism allows the states to conduct novel social and

economic experiments, was first expressed by Justice Brandeis.

His eloquent statement on this subject bears repeating:

To stay experimentation in things social and

economic is a grave responsibility. Denial of the

right to experiment may be fraught with serious

consequences to the nation. It is one of the happy

incidents of the federal system that a single

courageous state may, if its citizens choose, serve as

a laboratory; and try novel social and economic

experiments without risk to the rest of the country.

This Court has the power to prevent an experiment.

... But in the exercise of this high power, we must

be ever on our guard lest we erect our prejudices into

legal principles. If we would guide by the light of

reason, we must let our minds be bold.

7

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandies, J., dissenting). Accord, San Antonio Independent

School District v. Rodriguez, 411 U.S. 1, 49-50 (1973), United

States v. Lopez, 514 U.S. 549 (1995) (Kennedy, J., concurring)

(“In this circumstance, the theory and utility of our federalism

are revealed, for the States may perform their role as laboratories

for experimentation to devise various solutions where the best

solution is far from clear.”).

Indeed, Justice Harlan recognized the need to allow states

to conduct novel social and economic experiments in the area of

welfare reform.

[T]he field of welfare assistance is one in which there

is a widely recognized need for fresh solutions and

consequently for experimentation. Invalidation of

welfare residence requirements might have the

unfortunate consequence of discouraging the Federal

and State Governments from establishing unusually

generous welfare programs in particular areas on an

experimental basis, because of fears that the program

would cause an influx of persons seeking higher

welfare payments.

Shapiro, 394 U.S. at 674-75 (Harlan, J., dissenting).

After more than 60 years of tinkering with a welfare system

that has proven to be counterproductive and beyond repair,

Congress has given the states the opportunity for a fresh start by

adopting the welfare reform act. In so doing, President Clinton

announced that

this legislation provides an historic opportunity to end

welfare as we know it and transform our broken

welfare system by promoting the fundamental values

of work, responsibility, and family.

1996 WL 648450 (Leg. Hist.).

8

California embraced the congressional mandate for state

innovation in the field of welfare reform. In an effort to

transform a broken system that traps too many people in a cycle

of dependence to one that emphasizes work and independence.

California developed an experimental project including Section

11450.03.'

Unfortunately, California's experiment in the field of

welfare reform has been placed on hold. This Court should rule

that in the interest of discouraging welfare dependency, states

should be allowed to experiment with different benefit levels

while at the same time providing a safety net for residents,

without regard to the duration of their residency.

SECTION 11450.03 SHOULD BE UPHELD

UNDER RATIONAL BASIS REVIEW

A. Welfare Legislation Is Subject

to Rational Basis Review

California’s residency-based benefit level statute easily

passes rational basis review under the Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment,

Section |, commands that no state shall “deny to any person

within its jurisdiction the equal protection of the laws.”

‘Maintaining newcomers at the same amount of welfare benefits

they were eligible to receive in their former state for 12 months

would also reduce overall welfare expenditures. Declaration of

Dennis Hordyk attached to the Declaration of Theodore Garelis,

Petition for Writ of Certiorari, Appendix (App.) 44. In fiscal

year 1995-96, California provided $6 billion in public welfare

assistance. Although it has only 12% of the nation’s population,

California accounts for 29% of all money spent nationwide on

public welfare assistance, and its monthly average caseload of

2,645,814 persons is 20% of the national public welfare

assistance caseload. Wagstaff Declaration at App. 26.

9

Controlling precedent from this Court holds that statutes

involving public welfare assistance are subject to rational basis

review.

Dandridge v. Williams, 397 U.S. 471, addressed an equal

protection challenge to a Maryland state statute that limited

public welfare assistance to families. The Court established the

following test:

In the area of economics and social welfare, a

State does not violate the Equal Protection Clause

merely because the classifications made by its laws

are imperfect. If the classification has some

“reasonable basis,” it does not offend the Constitution

simply because the classification “is not made

with mathematical nicety or because in practice

it results in some inequality.” . . . “The problems of

government are practical ones and may justify, if they

do not require, rough accommodations--illogical, it

may be, and _ unscientific.” “A statutory

discrimination will not be set aside if any state of

facts reasonably may be conceived to justify it.”

/d. at 485 (citations omitted). The Court recognized that public

assistance programs may give rise to inequalities in their design

and administration. Nonetheless, the Court ruled:

But the Equal Protection Clause does not require that

a State must choose between attacking every aspect

of a problem or not attacking the problem at all. It is

enough that the State's action be rationally based and

free from invidious discrimination.

Id. at 486-87 (citations omitted). In upholding the state welfare

scheme, the Court explicitly stated it was not ruling that the

Maryland policy before it was wise or best fulfilled the relevant

social and economic objectives the state might ideally espouse,

nor that it was the most humane and just system that could be

devised.

10

But the intractable economic, social, and even

philosophical problems presented by public welfare

assistance programs are not the business of this

Court. The Constitution may impose certain proce-

dural safeguards upon systems of welfare administra-

tion. 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.

/d. at 487 (citations omitted).

In Jefferson v. Hackney, 406 U.S. 535, the Texas policy of

providing a lower percentage of the state's total pool of welfare

benefits to families with dependent children than was provided

to aged. blind, or disabled adult recipients was attacked as

violating the Equal Protection Clause. Applying traditional

rational basis analysis, the Court held the disparities were neither

irrational nor invidious. See id. at 547. This Court ruled that

State legislatures are permitted to address an issue one step at a

time without necessarily running afoul of the Constitution:

[T]he legislature's efforts to tackle the problems of

the poor and the needy are not subject to a

constitutional straitjacket. The very complexity of the

problems suggests that there will be more than one

constitutionally permissible method of solving them.

Id. at 546-47 (citation omitted). This Court in Jefferson

specifically addressed the question of providing a lower

percentage of payment to certain classes of recipients.

Since budgetary constraints do not allow the payment

of the full standard of need for all welfare recipients,

the State may have concluded that the aged and

infirm are the least able of the categorical grant

recipients to bear the hardships of an inadequate

standard of living. While different policy judgments

are of course possible, it is not irrational for the State

to believe that the young are more adaptable than the

sick and elderly .... Whether or not one agrees with

this state determination, there is nothing in the

Constitution that forbids it.

Id. at 549.

By analogy, it is not irrational to believe that welfare

dependence will be reduced if California stops serving as a

“welfare magnet,” attracting indigent migrants from states with

lower benefit levels. Nor is it irrational to believe that new

residents are not disadvantaged by receiving the same amount of

public welfare assistance as they received in their original state

of residence (as well as additional California benefits that may

or may not have had counterparts in the original state). See

Wagstaff Declaration at App. 38 (new residents may be eligible

for a Special Needs Allowance for homeless assistance, full

Medicaid benefits, and food stamps).

B. Section 11450.03 Passes

Rational Basis Review

Departing from the precedent this Court established in

Dandridge and Jefferson, the Ninth Circuit and the trial court

relied upon Shapiro and its progeny in holding that Section

11450.03 should be subject to strict scrutiny analysis. Roe,

134 F.3d at 1404. In Shapiro, this Court held that legislation

which denied welfare benefits outright to new state residents of

less than one-year duration was constitutionally impermissible

because, such legislation “touches on the fundamental right of

interstate movement, its constitutionality must be judged by the

stricter standard of whether it promotes a compelling state

interest.” Shapiro, 304 U.S. at 638. The Court determined that

the complete denial of welfare assistance for a full year

penalized the plaintiffs’ right of interstate movement. /d. at 364.

By contrast, however, Section 1 1450.03 imposes no absolute bar

to the receipt of benefits by recent migrants. Instead, only

12

minimal delay in receiving an increase in benefits is imposed.

Additionally, Section 1 1450.03 is rationally related to furthering

the state’s legitimate interest in ensuring that the state's limited

public assistance resources are distributed as equitably as

possible.

Whether Section 11450.03 constitutes a wise welfare

policy is a decision the United States Congress has given to the

states. The role of the courts is generally a deferential one where

courts do not second-guess the wisdom or efficacy of the

legislative action, but merely seeks to ensure its rationality. This

Court should rule that in the interest of discouraging welfare

dependency, states should be allowed to experiment with

different benefit levels while at the same time providing a safety

net for residents, without regard to the duration of their

residency. Section | 1450.03 should be upheld.

SHAPIRO AND ITS PRUIGENY ARE NOT

CONTROLLING IN THIS CASE BECAUSE NO

FUNDAMENTAL RIGHT |S BURDENED BY A

LAW THAT LEAVES MIC:/RANTS EQUALLY

WELL OFF AS IF THEY Ek AD REMAINED IN

THEIR PRIOR STATE OF RESIDENCE

A. The Law at Issue Does Not Impose

an Eligibility Bar to New Migrants

Shapiro v. Thompson is the hook on which the court below

hung its hat. Roe, 134 F.3d at 1404. Shapiro invalidated a one-

could be collected. Applying strict scrutiny, the Court found no

compelling state interest capable of justifying the requirement.

Shapiro, 394 U.S. at 641. The Court held that requiring new

residents to wait one year before receiving ary welfare benefits

residents, and that if a law had no other purpose than chilling the

13

exercise of a constitutional right such as that of migration of

needy persons into the state, the law was impermissible. /d.

at 627, 631. Further,

any classification which serves to penalize the

exercise of [the right of migration], unless shown to

be necessary to promote a compelling government

interest, is unconstitutional.

Id. at 634 (emphasis added). The Court held that constitutional

concepts require that all citizens

de free to travel throughout the length and breadth

of our land uninhibited by statutes, rules, or

regulations which unreasonably burden or restrict this

movement.

Id. at 629.

Yet, the Court did not analyze the statutes at issue in the

light of an “unreasonable burden or restriction.” Rather, it

invoked the usually fatal strict scrutiny and found the state's

reasons noncompelling. Justice Harlan, in his Shapiro dissent,

identified the problems with this analysis. Because “| virtually

every state statute affects important rights,” the fundamental

rights strand of equal protection doctrine “creates an exception

which threatens to swallow the standard equal protection rule.”

394 U.S. at 661 (Harlan, J., dissenting). Justice Harlan

continues:

When the right affected is one assured by the Federal

Constitution, any infringement can be dealt with

under the Due Process Clause. But when a statute

affects only matters not mentioned in the Federal

Constitution and is not arbitrary or irrational, | must

reiterate that | know of nothing which entitled this

Court to pick out particular human activities,

characterize them as “fundamental,” and give them

14

added protection under an unusually stringent equal

protection test.

Id. at 662

Despite Shapiro's logical and textual failings, the Court

directly applied its rationale in two subsequent cases. In

Dunn v. Blumsiein, 405 U.S. 330, 342 (1972), a waiting period

requirement for voting was struck down because “such laws

force a person who wishes to travel and change residences to

choose between travel and the basic right to vote.” The question

arose as an equal protection issue. The Court found that a law

requiring one year of state residence and three months of county

residence before an individual could register to vote penalized

the exercise of the right to travel by temporarily depriving

persons who moved across state lines of their right to vote.

Dunn, 405 U.S. at 342. Dunn, too, emphasized strict scrutiny as

the measure of the constitutionality of the law, id. at 343, and

said that it applies to any classification that “penalizes” the right

to travel regardless of legislative intent or actual deterrence. /d.

at 340-41.

The Court's focus on whether the law directly burdened, by

penalizing, the right to interstate travel continued in Memoria/

Hospital v. Maricopa County. That case struck down a one-year

waiting period requirement before new residents were eligible

for state-paid indigent, nonemergency medical care. Memorial

Hospital, 415 U.S. at 254. The Court held that the statute

penalized the right to interstate travel because medical care is as

much “‘a basic necessity of life’ to an indigent as the welfare

assistance that was at issue in Shapiro. /d. at 259. The Court

found that the right of interstate travel must be seen as ensuring

new residents the same right to vital government benefits and

privileges in the states to which they migrate as are enjoyed by

other residents. /d. at 261.

15

Memorial Hospital, 415 U.S. at 262 n.21, distinguishes

Dandridge on the basis that the classification in Dandridge did

not impinge upon a fundamental right. See Graham v.

Richardson, 403 U.S. 365, 376 (1971). Yet, in Memorial

Hospital, Justice Rehnquist pointed out the potential race to the

bottom that could result as an unintended consequence of the

Court’s opinion. Memorial Hospital, 415 U.S. at 279

(Rehnquist, J., dissenting). See also Todd Zubler, The Right to

Migrate and Welfare Reform: Time for Shapiro v. Thompson to

Take a Hike, 3\ Val. U. L. Rev. 905, 933-38 (1997) (logical

result of Shapiro and its progeny is that each state will avoid

having more generous benefits that any other state to avoid

(1) being a welfare magnet and (2) running into constitutional

problems created by Shapiro’s application of strict scrutiny to all

disparities in benefits). Thus, on the one hand, the Court says

it will resist the temptation to become a superlegislature and

allow the states to make the public assistance decisions, while on

the other hand, the Shapiro line of cases severely curtails the

options available to the states. /d at 287 (Rehnquist, J..

dissenting).

In the above cases, the plaintiffs’ right to travel was

penalized because they were put in a worse position by

application of the statutes at issue after they moved to their new

states. Unlike Shapiro and its progeny, Section 11450.03 does

not impose an absolute bar to the receipt of benefits by recent

migrants. California has no waiting period to establish

eligibility. New California residents are immediately eligible for

benefits under the state's TANF program.

B. No Majority of This Court Has Invoked Shapiro’s

Strict Scrutiny Since Memorial Hospital

Shapiro and its progeny threatened catastrophic effects on

the states’ abilities to determine their own welfare policies.

However, this Court has been distinguishing the Shapiro line of

cases on a number of bases since 1975.

16

The first case to signal a relaxation of Shapiro's strict

scrutiny is Sosna v. Jowa, where an lowa statute requiring one

year of continuous residence before filing a petition for diyorce

was upheld. Sosna, 419 U.S. at 395. Citing two factors, the

Court distinguished Shapiro, Dunn, and Memorial Hospital

First, a delay in getting a divorce did not “irretrievably

foreclose[]” anyone from ultimately obtaining it, unlike the prior

cases where some benefits never would have been recovered.

419 U.S. at 406. Second, the state’s residency requirement was

not justified by mere budgetary considerations but by the state's

need to control domestic relations, an area long regarded as

being the exclusive province of the states. 419 U.S. at 404.

lowa’s state interest was to ensure recognition of its divorce

decrees by other states under the Full Faith and Credit Clause of

the Constitution. This was considered a more potent state

interest than fiscal matters. The Court upheld the statute without

specifying a standard of review. The opinion balanced the state

interest in favor of the statute against the burden on the right to

travel, concluding that the former outweighed the latter. /d.

at 406, 409-10. The Court emphasized that the gravamen of

Sosna’s claim was not a fotal deprivation, but only delay. /d.

at 410.

Sosna threw considerable doubt on the viability of the

Shapiro \ine of cases.‘ Justice Marshall, in dissent, said the

majority opinion “departs sharply” from Shapiro, substituting an

“ad hoc balancing test” for strict scrutiny. Sosna, 419 U.S.

at 418-19 (Marshall, J., dissenting). Since Sosna, the Court has

not used an “ad hoc balancing test” in right to travel cases. See

Zubler, The Right to Migrate, 3\ Val. U. L. Rev. at 905.

Zobel v. Williams, 457 U.S. 55, continued the shift away

from Shapiro's analysis under the Equal Protection Clause of the

Fourteenth Amendment. Some analysts suggest that it contorted

* See also Viandis v. Kline, 412 U.S. 441, 452-54 (1973) (upholding

waiting period to qualify for resident tuition at state universities).

17

the rational basis review in the process.” Applying neither the

Shapiro strict scrutiny analysis nor the Sosna balancing test,

Zobei ‘nvalidated Alaska’s scheme that distributed oil revenues

to residems based on how long they had lived in Alaska. The oil

reserve dividend varied in amount based on the length of each

citizens’ residence. /d. at 57,65. The Court did not find it

necessary to apply strict equal protection scrutiny to determine

whether the program penalized the exercise of the right to travel,

instead holding that the benefit scheme did not pass the rational

basis test. /d. at 60-61, 65.° The Court found that two of

Alaska’s legislative justifications were not rationally related to

the distinctions made in the statute and that the third

justification--rewarding citizens for past contributions--was not

a legitimate state purpose. /d. at 62-65. The Court distinguished

the Shapiro line of cases because the Alaska statute did not

impose any threshold waiting period before receiving benefits:

rather, it created “fixed, permanent distinctions” between all

residents of Alaska, depending on how long they have been in

the state. /d. at 59 (emphasis added).

Zobel is notable for Justice O’Connor’s concurrence, which

recognized that “[nJothing in the Equal Protection Clause itself

.. . declares this objective [rewarding past citizen contributions]

illegitimate.” /d. at 73 (O'Connor, J., concurring). Instead, she

* Zubler, The Right to Migrate, 31 Val. U. L. Rev. at 906.

* Professor Tribe observes that the Court used an enhanced review

that appears

more the result of dissatisfaction with the existing tools

of equal protection analysis for dealing with

[discnmination against newcomers] than of any overall

shift in the Court’s scrutiny of how well various

purposes fit legislatively chosen means.

Lawrence H. Tribe, American Constitutional Law § 16-2, at 1441-42

(2d ed. 1988).

Suggested using a very different analysis based on the Privileges

and Immunities Clause of Article IV of the Constitution. /d.

at 74-78. She argued that a statute must satisfy a two-part test

if it burdens a nonresident or new resident who seeks to engage

in an essential activity or exercise a basic right. /d. at 76. First,

there must be “‘something to indicate that non-citizens constitute

a peculiar source of the evil at which the statute is aimed.”” /d.

(citation omitted). Second, the Court must find a substantial

relationship between the evil and the discrimination practiced

against the noncitizen. /d. Applying this test, Justice O°Connor

found that the asserted “evil” of “partaking in current largesse

without having made prior contributions” was not substantially

related to the “cure” because some people who migrated to

Alaska may have contributed significantly more to the state, both

before and after their arrival, than have some of the natives. /d.

at 77-78.

This Court's most recent right to migrate decision adds yet

another dose of confusion to the case law. Alforney General of

New York v. Soto-Lopez, 476 U.S. 898, elevates public employ-

ment to the same level as the “necessities of life” analyzed in

Shapiro and Memorial Hospital. Soto-Lopez struck down a

civil service employment preference for veterans who lived in

New York when they entered the service. The case generated

several opinions. Only four justices (Brennan, Marshall.

Blackmun, and Powell) held that the right to travel was violated.

The penalty analysis in Soto-Lopez concentrated on the fact that

the immigrant veterans were permanenily barred from receiving

civil service bonus points. /d. at 909. The plurality opinion

found a “guiding principle” to tie together the various analyses

described above: the right to migrate protects residents of a state

from being disadvantaged, or from being treated differently,

simply because of the timing of their migration, from other

similarly situated residents. /d. at 904. That said, however, the

plurality promptly “inferred” a penalty on interstate migration

and returned to strict scrutiny review. /d. at 908. Chief Justice

eo

19

Burger and Justice White concurred, but only on the ground that

New York’s program failed Zobe/'s minimum rationality test.

Justices O'Connor, Rehnquist, and Stevens dissented,

arguing (1) that New York’s program passed equal protection

rational basis scrutiny finding any impact on the right to travel

to be “ephemeral,” id. at 923-24 (O’Connor, J., dissenting), and

(2) that the program’s minimal effect on interstate migration was

insufficient to invoke the higher scrutiny of the Privileges and

Immunities Clause of Article [V. /d. at 920.

Unlike the plaintiffs in the above cases who were

handicapped by the creation of permanent distinctions among

residents and newcomers, in California, newcomers will

continue to be e/igible for TANF benefits. Section 11450.03

merely set the level of cash aid for those eligible to receive

public welfare assistance.

C. Failure to Halt the Expansive

Shapiro Doctrine Leads to the Creation

of Ever More “Fundamental” Rights

As demonstrated by the case summaries above, the right to

travel is a free floating doctrine. It encompasses more and more

State activity until it so firmly ties the hands of the states that

they are incapable of performing even the most fundamental

budgetary functions.

The formulation of the right to travel doctrine that forbids

any restriction on a “necessity of life” has already been stretched

well beyond the basics. Memorial Hospital began this trend

with its announcement that nonemergency medical care was a

“necessity of life”; Soto-Lopez relaxed the “necessity of life”

requirement for strict scrutiny to any “very important” benefit.

Soto-Lopez, 476 U.S. at 907 (civil service examination bonus

points). See also Hassan v. East Hampton, 500 F. Supp. 1034,

1041 (E.D.N.Y. 1980) (applying strict scrutiny to a one-year

20

waiting period to obtain commercial shellfish license applicable

to only a portion of the available shellfishing lands).

Moreover, certain courts are no longer content to limit the

“fundamental right” to travel to the context of interstate travel:

now some courts (and commentators) argue that Shapiro

requires application of strict scrutiny to amy statute which may

impede movement of any kind within a state. See, e.g., Lulz v.

City of New York, 899 F.2d 255 (3d Cir. 1990) (cruising

ordinance struck down), Andrew C. Porter, 7oward a

Constitutional Analysis of the Right to Intrastate Travel, 86 Nw.

U. L. Rev. 820, 821 (1992) (arguing that fundamental right to

interstate travel has as a necessary corollary the right to intrastate

travel).

In the case at bar, respondents would have this Court

expand the right to travel to include an obligation on the state to

subsidize welfare recipients with the means to enjoy that right.

They are arguing that California is constitutionally obligated to

fund their move. As a general matter, a state is under no duty

to subsidize the costs of the exercise of constitutional rights. In

Harris v. McRae, 448 U.S. 297, 317-18 (1980), the Supreme

Court held that a woman's freedom of choice does not carry with

it a constitutional entitlement to the financial resources necessary

to exercise that freedom. Here, California has not prohibited

travel or placed a substantial obstacle in the way of a

newcomer’s move to California; it has simply decided not to

increase the government aid above what a newcomer received,

or would have received, in their state of prior residence, thereby

declining to subsidize the newcomer’s travel. The temporary, -

nondrastic restriction at issue in this case should nor be

subsumed into the amorphous (and expanding) “fundamental”

right to travel.

21

IV

SECTION 11450.03 DOES NOT

VIOLATE THE PRIVILEGES

AND IMMUNITIES CLAUSE

Section 11450.03 does not violate the Privileges and

Immunities Clause of either Article IV or the Fourteenth

Amendment. This Court in Zobe/ v. Williams, 457 U.S. 55,

ruled that the Privileges and Immunities Clause was not even

implicated unless the regulation in question established a

durational residency requirement as a condition of eligibility for

some state program. Zobe/, 457 U.S. at 58-59. That is not the

case under Section 11450.03. There is no eligibility bar to

recent migrants. Instead, recent arrivals are treated exactly the

same as they were treated in their state of origin. For all

practical purposes, the decision to migrate simply effects no

change in the amount of welfare benefits to which interstate

migrants may be entitled. Thus, under the analysis of the

majority opinion in Zobe/, this law does not violate the

Privileges and Immunities Clause of the Constitution. Even

under the alternate analysis employed by Justice O°Connor in

her concurriig opinion in Zobel, this law survives scrutiny.

Justice O'Connor's analysis did not rely on whether the

measure imposed a durational residency requirement as a

condition of eligibility. Instead, she would test all laws that

distinguish between residents by the duration of their residency

according to the test laid out in Baldwin v. Montana Fish and

Game Commission, 436 U.S. 371 (1978). Zobel, 457 U.S. at 76

(O'Connor, J., concurring). The issue under that decision is

whether the state is making an unnecessary distinction between

residents and nonresidents who seek to “‘engage in an essential

activ'ty or exercise a basic right.” /d. (quoting Baldwin,

436 U.S. at 387). Baldwin does not list or describe the range of

activities that may be “essential” or that involve a “basic right™

22

beyond noting that they are activities “sufficiently basic to the

livelihood of the Nation.” Baldwin, 436 U.S. at 388.

Such a right is not at stake in this controversy. This case

does not concern the right to receive temporary assistance, rather

only the amount of assistance that can be received. Receipt of

the maximum grant possible is neither an essential activity nor

a basic right. Nor does pursuit of the largest possible welfare

payment affect the “livelihood of the Nation.” California has

crafted a regulation, consistent with congressional policy, to

ensure that migrants to the state are treated no differently with

regard to welfare grant levels than they were treated in their state

of origin. This policy does not deprive migrants” basic rights.

Instead it preserves the status quo. The Privileges and

In:munities Clause is not violated by such a carefully crafted

policy.

In California, newcomers will continue to be e/igib/e for

TANF benefits, restricted to the amount the newcomers would

receive from their state of prior residence for 12 months.

Section 11450.03 does not operate as a bar to the receipt of

public welfare assistance. The proper analysis is under the

rational basis analysis and the controlling precedent of

Dandridge.

CONCLUSION

The Personal Responsibility and Work Opportunity Act of

1996 has essentially wiped the welfare slate clean. After more

than 60 years of tinkering with a welfare system that has proven

to be counterproductive and beyond repair, the states have been

given the opportunity to experiment with fresh solutions.

California’s efforts to transform its broken welfare system

included maintaining newcomers at the same amount of welfare

benefits they were eligible to receive in their former state of

residence for 12 months. In the interest of discouraging welfare

23

dependency states should be allowed to experiment with

different benefit levels, while at the same time providing a safety

net for residents without regard to the duration of their

residence. For the reasons described above, the Ninth Circuit's

decision should be reversed.

DATED: November, 1998.

Respectfully submitted.

*SHARON L. BROWNE

*( ounsel of Record

DEBORAH J. LA FETRA

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Facsimile: (916) 920-3444

Counsel for Amicus Curiae

Pacific Legal Foundation