Amicus Curiae Brief — Saenz v. Roe

*

1 O Supreme Court. U.S. 9

No. 98-97 /, FILED

IN THE NOY 10

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 Craic L. Brown, Director,

California Department of Finance,

. Petitioners,

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 OF THE NATIONAL GOVERNORS’

ASSOCIATION, NATIONAL ASSOCIATION OF

COUNTIES, COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY-COUNTY MANAGEMENT

ASSOCIATION, U.S. CONFERENCE OF MAYORS,

AND NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE SUPPORTING PETITIONERS

RICHARD RUDA *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N. W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WiILeon - Eras Painting Co.. Inc. - 789-0096 - WasHIncton. D.C. 20001 *

TABLE OF CONTENTS

enen

TABLE OF AUTHORITIES .....

INTEREST OF THE AMICI CURIAE WW...

tunity Reconciliation Act of 1999989

r

SUMMARY OF ARGUMENT

ARGUMENT n T

CALITORNIA“S RULE LIMITING NEW RESI-

DENTS TO THE TANF BENEFIT LEVEL OF

THEIR PRIOR STATE OF RESIDENCE FOR

ONE YEAR DOES NOT PENALIZE THE RIGHT

TO TRAVEL AND SATISFIES THE EQUAL

PROTECTION CLAUS ———

A. California's Rule Does Not Penalize Or Unduly

Burden The Right To Travel And Is Thus Sub-

ject To Rational Basis Revier

e

(iii)

="

15

15

17

iv

TABLE OF AUTHORITIES

Cases Page

Attorney General Of New York v. Soto-Lopez,

DIL 16

Bellotti v. Baird, 428 U.S. 132 (1979) 17

Dandridge v. Williams, 397 U.S. 471 (1970) — 23

Dunn v. Blumstein, 405 U.S. 330 (197227 19, 20

Edwards v. California, 314 U.S. 160 (1941)... 18

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

11 ae ene ee passim

Maher v. Roe, 482 U.S. 464 (1977 passim

Oregon v. Mitchell, 400 U.S. 112 (1970) 16

San Antonio Ind. School Dist. v. Rodriguez, 411

Statutes

100 16

Shapiro v. Thompson, 394 U.S. 618 (1969) 3 passim

Sosna v. Iowa, 419 U.S. 398 (1975) ..................... 16-17, 20

Starns v. Malkerson, 401 U.S. 985 (19717 re 17

The Passenger Cases, 48 U.S. (7 How.) 283

. IE TS SLES SS Ss A ON 15

United States v. Guest, 383 U.S. 745 (1966) 12, 15

United States v. Jackson, 390 U.S. 570 (1968) 26

Viandis v. Kline, 412 U.S. 441 (1973) , 17

Cal. Wel. & Inst. Code § 110b⸗0„53ͤ7ũ 22

Cal. Wel. & Inst. Code § 11450.08 (a)... 17

Personal Responsibility And Work Opportunity

Reconciliation Act Of 1996, P.L. 104-193, 110

Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 § 103; 110 Stat. 2116.. 6

Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 § 103 (b) (8), 110

1 Se 7

Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 § 103 (b) (6), 110

r ee se a ne 7

I ——K, 8 3 5

8898 0.„%

v

TABLE OF AUTHORITIES—Continued

Social Security Act of 1935, Section 402(b) (for-

Page

merly codified at 42 U.S.C. § 602(b)) 23

Other Authorities

Brief of Appellee, Reynolds v. Smith, O. T. 1967,

r 19

3 ——— v. 1967,

0. 19

Brief of State of Connecticut, Shapiro + v. Thomp-

r I 19

L. Jerome Gallagher, One Year After Federal

Welfare Reform: A Description of State Tem-

porary Assistance for Needy Families (TANF)

Decisions as of October 1997 (The Urban In-

r ced Ree ee, 8, 9, 22

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

(1996), reprinted in 1996 U.S. C. C. A. N. 2649 12

H.R. Rep. No. 651, 104th Cong., 2d Sess. (1996),

reprinted in 1996 U.S.C.C.A.N. 2183 ... passim

National Conference of State Legislatures Web

Site, State Welfare Reform Database (www.

nesl.org/statefed/welfare/welfaresearch.htm) 11

Paul E. Peterson & Mark C. Rom, Welfare Mag-

nets: A New Case for a National Standard

(1990) 24-25, 25

Places, Towns and Townships (Deirdre A. Gaquin

& Richard W. Dodge eds., 2d ed. 1998) 21

Jack Tweedie, Building a Foundation for Change

in Welfare, State Legislatures, Jan. 1998, at 29_passim

Jack Tweedie et al., Meeting the Challenges of

Welfare Reform: Programs with Promise (Na-

tional Conference of State Legislatures 1998) 10, 11

Take A Hike, 31 Val. U.L. Rev. 893 (19977 25

| Supreme Court of the Muited States

OCTOBER TERM, 1998

. No. 98-97

ELOISE ANDERSON, Director, California Department

of Social Services; CALIFORNIA DEPARTMENT OF

SOCIAL SERVICES; PETE WILSON, Governor of the

State of California; and Craic L. Brown, Director,

California Department of Finance,

Petitioners,

V.

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 OF THE NATIONAL GOVERNORS’

ASSOCIATION, NATIONAL ASSOCIATION OF

COUNTIES, COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY-COUNTY MANAGEMENT

ASSOCIATION, U.S. CONFERENCE OF MAYORS,

AND NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE SUPPORTING PETITIONERS

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include

state, county, and municipal governments and officials

2

throughout the United States.“ Amici have a com-

pelling interest in the issue presented in this case:

whether California’s rule limiting new residents to

the TANF benefit level of their prior state of resi-

dence for twelve months is constitutional.

In response to the universally acknowledged fail-

ure of the Washington-centered AFDC program,

Congress, in consultation with the States, undertook

a revolutionary restructuring of the welfare system

by enacting the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996 (PRWORA).

PRWORA purposely devolves power from the Fed-

eral Government to the States. Its success is predi-

cated upon the ability of the States to engage in a

large degree of innovation in their welfare programs,

which virtually all States have already done.

In addition, a key feature of PRWORA is its ex-

press authorization to States to “apply to a family

the rules (including benefit amounts) of the pro-

gram... 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). Pursuant to this authorization, California

and thirteen other States have thus far adopted

durational residency rules governing benefit levels.

Both Congress and the legislatures of those fourteen

1 Pursuant to Rule 37.3 of the Rules of this Court, the

parties have consented to the filing of this brief amicus curiae.

Their letters of consent have been filed with the Clerk of the

Court.

Pursuant to Rule 37.6 of the Rules of this Court, amici

state that this brief was not authored in whole or in part by

counsel for a party, and no person or entity, other than the

amici or their members, made a monetary contribution to

the preparation or submission of this brief.

necessary not only to

benefit levels from attracting recipients from other

States solely in order to receive higher benefi

capped federal funding under PRWORA’s block

grant formula.

Because of the importance of the issue presented

failure. See, e.g., H.R. Rep. 2 651, 104th Cong.

2d Sess. 3-5 (1996), reprinted in 1996 U.S. C. C. A. N.

2183, 2184-2186. The welfare system was viewed as

trap ping] recipients in a cycle of dependency,”

“undermin[{ing] the values of work and family that

form the foundation of America’s communities,” and

fal ng] the Nation’s children.” Jd. at 3, 1996

rate “held stubbornly at between 12 and 15

the population” and “enrollment in —

4

cent.” Id. at 4, 1996 U.S.C.C.A.N. at 2185. Research

conducted for the Urban Institute showed that “90

percent of those currently receiving welfare will

eventually spend more than 2 years on the rolls, and

76 percent will receive welfare for more than 5

years.” Id.

The “greatest tragedy of the welfare system” was

“how it harm[ed] the Nation’s children,” increasing

illegitimacy and “breed[ing] a variety of . . . path-

ologies scarring children in ways that can affect their

entire lives.” Id. According to the National Health

Interview Survey of Child Health, “children born out

of wedlock have more emotional and behavioral prob-

lems than children in intact families.” Id. Research

done for the Department of Health and Human Serv-

ices indicated “that children born out of wedlock are

three times more likely to become dependent on wel-

fare than are other children.” H.R. Rep. No. 651

at 5, 1996 U.S.C.C.A.N. at 2186. A University of

Michigan study found that “the receipt of welfare

income has negative effects on young boys with re-

spect to their long-term employment and earnings

capacity.“ Id.

A. The Personal Responsibility And Work Opportunity

Reconciliation Act Of 1996

In response to the failure of “the Washington-

centered welfare regime,” id., Congress, in consulta-

tion with the States, undertook a revolutionary re-

structuring of the welfare system by enacting the Per-

sonal Responsibility And Work Opportunity Recon-

ciliation Act Of 1996 (PRWORA), P.L. 104-193,

110 Stat. 2105. PRWORA significantly changed both

the relationship between the States and Federal Gov-

5

ernment and that between welfare recipients and all

levels of the government.

First, PRWORA marks a major devolution of

power from the Federal Government to the States.

The statute rejected the extant approach under which

the States were required to seek waivers from the

Department of Health and Human Services to imple-

ment welfare reform. See H.R. Rep. No. 651 at 3,

1996 U.S.C.C.A.N. at 2184 (characterizing it as “a

system in which States must beg Washington for

permission to innovate for the benefit of their popu-

lations”). Rather, PRWORA provides the States

with block grants subject to reduced federal require-

ments. Congress took this approach, intending to

grant the States maximum . flexibility to show

true compassion by helping those in need achieve the

freedom of self-reliance,” id., and to “give[] States

the freedom to innovate in developing income sup-

port programs for welfare families that encourage

personal responsibility and move welfare recipients

into the work force.” H.R. Rep. No. 651 at 5, 1996

U.S. C. C. A. N. at 2186.

Second, PRWORA redefined the relationship be-

tween welfare recipients and the government in sev-

eral critical ways. Under the statute, “welfare is, for

the first time, converted to a work program.” /d.

PRWORA abolished the old AFDC program and its

premise that welfare is an entitlement. See 42 U.S.C.

§ 601(b) (PRWORA “shall not be interpreted to en-

title any individual or family to assistance under any

State program funded under this part”). This deci-

sion has substantial consequences for both recipients

and the States. Congress replaced AFDC with a new

program, Temporary Assistance to Needy Families

6

(TANF). With respect to recipients, PRWORA pro-

hibits the use of federal TANF funds to provide wel-

fare recipients with more than five years of lifetime

benefits and “requires one member of every family

on welfare to be working within 2 years.” H.R. Rep.

No. 651 at 5. 1996 U.S.C.C.A.N. at 2186. States,

however, are free to use their own funds to provide

welfare assistance to recipients beyond the federal

time limit.

In response to the increase in the illegitimacy rate,

PRWORA authorizes “States to cap benefits for those

on welfare, ending bonuses for families on welfare

who have additional children they cannot support.”

Id. Furthermore, PRWORA grants States the option

of contracting out welfare services to such non-

‘governmental entities as “charitable, religious, or

private organizations.” PRWORA §104(a), 110

Stat. 2161, codified at 42 U.S.C. S 604a(a). Under

PRWORA, States are not required to provide cash

assistance but can provide recipients with vouchers

that are redeemable only by a contractor. See id.

PRWORA’s abolition of welfare as entitlement also

has substantial consequences for the States. While

PRWOP<A’s block grant appreach provides the States

with significant flexibility in designing their welfare

programs, Congress did not write the States a blank

check. Rather, a State’s share of the federal block

grant is capped at a fixed funding level through

fiscal year 2002 under a complex formula. See

PRWORA 5 103, 110 Stat. 2116-24. The statute also

2 As the House Report explains, each State is to “receive

the highest of Federal payments to the State for AFDC bene-

fits, AFDC administration, Emergency Assistance, and JOBS

7

creates a $2 billion contingency fund accessible to

States which experience, within a three month period,

a ten percent increase in their unemployment rate

over the average rate for the preceding two years, or

a similarly large increase in their food stamp case-

load. See PRWORA § 103 (b) (6), 110 Stat. 2123.

Monthly payments from the contingency fund to an

individual State, however, are limited to one sixtieth

of its Family Assistance Grant (which a State must

match in additional spending) and the fund is to

cover fiscal years 1997 through 2001. See id.

§ (b) (3), 110 Stat. 2122. It is thus entirely possible

that a State can exhaust its federal block grant funds

in the event of an economic downturn. By abolishing

the entitlement to welfare and capping federal spend-

ing, PRWORA thus shifts to the States most of the

financial risks associated with increased case loads.

B. State Welfare Reforms

Having been granted greater flexibility to design

effective welfare programs, the States have adopted

various reforms. These reforms demonstrate that

PRWORA has fundamentally changed the Nation’s

welfare system from the AFDC program in existence

at the time of Shapiro v. Thompson, 394 U.S. 618

(1969).

Time Limits As of January 1998, thirty-five States

had enacted lifetime benefit limits, most of which are

set at 60 months. Jack Tweedie, Building a Founda-

for: (1) fiscal years 1992 through 1994, on average; (2)

fiscal year 1994; or (3) fiscal year 1995; plus, under certain

circumstances, 85 percent of increased fiscal year 1995 spend-

ing for emergency assistance.” H.R. Rep. No. 651 at 1322,

1996 U.S.C.C.A.N. at 2381.

tion for Change in Welfare, State Legislatures, Jan.

1998, at 29 (hereinafter “Building a Foundation“).

Six States have benefit limits shorter than five years

and three other States have authorized their welfare

agencies to set shorter limits. Id. Other States have

enacted “ ‘periodic time limits’ that end benefits after

a certain period” (with some hardship exemptions)

but allow recipients to “go back on the rolls after a

certain period of time.” Jd. Some States apply their

time limits only to the adult members of the family.

Id. Most States have also enacted “conditional time

limits,” under which a recipient must meet certain

conditions such as the performance of community

service work or increase their cooperation with agency

efforts to help them find a job in order to continue

to receive benefits. Id. Among the States, there are

substantial differences in exemption policy for the

various categories of time limits. See L. Jerome Gal-

lagher et al., One Year After Federal Welfare Re-

form: A Description of State Temporary Assistance

for Needy Families (TANF) Decisions as of October

1997 15-24 (The Urban Institute, 1998).

Work Participation Requirements Virtually every

State now requires recipients to work to obtain bene-

fits, although work participation requirements vary

considerably. See Building a Foundation at 29.

States have taken differing approaches as to whether

a recipient’s job search and educational activities sat-

isfy work requirements. See id. at 31. Wyoming

places recipients attending college in a separate state-

funded program; New Jersey allows recipients to

combine education and community service for their

work activity. Id. Fifteen States require recipients

to participate immediately in work activities, seven

States require work after a short grace period, while

9

eighteen other States set 24 months as an outer limit,

although seven of these States require participants

to work as soon as they are ready. Id. at 29. In

seven States, the date by which a recipient must par-

ticipate in work activities to continue receiving bene-

fits is set in an individualized employment plan. /d.

Sanctions States also impose a variety of sanc-

tions for recipients who do not comply with work

activity requirements. Sanctions differ from State to

State with respect to the amount of benefit reduction

and the length of the sanction. For example, with

respect to the most severe sanctions, thirty-six States

impose a full benefit reduction; fourteen States

a partial reduction. The length of a sanction can

vary from until the recipient complies, to various

terms of months, to and including a recipient’s life-

time. Each State which imposes a lifetime sanction

also imposes a full benefit reduction. See One Yea:

After Federal Welfare Reform at 29-31, 53-57.

Family Caps Twenty-two States deny increased

benefits to families that have additional children

while on welfare. See Building a Foundation at 31.

Florida allows only half the increase for the first

child born on welfare. Id. South Carolina denies in-

creases in cash benefits but provides for additional

benefits in the form of vouchers for the child’s ex-

penses or the mother’s education or training expenses.

Id.

Expanded Child Care Many States have substan-

tially expanded the availability of child care pro-

grams. /d. These States have increased the avail-

ability of infant and sick child care as well as night

and weekend care. Jd. Some States have also ex-

panded access to child care programs to the working

10

poor who earn in excess of the cutoff for cash assist-

ance benefits. /d.

Increased Access To Transportation States recog-

nize that a lack of transportation can prevent a per-

son from holding a job and obtaining child care. Id.

Louisiana now guarantees transportation where

needed; Minnesota, South Carolina and Ohio exempt

welfare recipients from work requirements and sanc-

tions if transportation is unavailable. Jd. Thirty-five

States have also eased eligibility rules to allow re-

cipients to own cars. Id. at 28. Virginia, Maryland,

Florida, Texas and Tennessee make surplus govern-

ment and donated cars available to recipients for

purchase at low cost; some States provide recipients

with cash for gas and repairs. Id. at 31.

Increased Income and Asset Eligibility Limits

Thirty-five States have liberalized prior rules by

allowing recipients to earn larger incomes before

losing benefits. Id. at 28. For example, Connecticut

and Indiana allow a family of three to earn up to

the federal poverty line before losing benefits. Id. at

31. In Massachusetts and Nebraska, families subject

to work requirements are allowed to keep 50 percent

of their earnings. Id. Other States have increased

the percentage of earnings which are disregarded in

calculating benefits. Jd. Thirty-six States have lib-

eralized asset rules, allowing recipients to open indi-

vidual development accounts where they can deposit

funds for education, starting a business, or purchas-

ing a home, while retaining eligibility for benefits.

See Jack Tweedie et al., Meeting the Challenge of

Welfare Reform: Programs with Promise 5 (Na-

tional Conference of State Legislatures 1998).

11

Diversion Programs Twenty-one States now offer

lump sum payments to applicants who need help with

emergency expenses (such as car repairs, back rent,

utility bills) where it will help keep applicants off

assistance. See Building a Foundation at 28. Gen-

erally, these programs provide a lump sum payment

equal to three or four months of assistance; upon

acceptance, the recipient loses welfare eligibility for a

period. See Meeting the Challenges of Welfare Re-

form at 8. Some diversion programs also provide

needy families with access to medical and child care

and transportation assistance. /d.

Drug Law Offenders States are also in the process

of developing different policies with respect to the

eligibility of drug law offenders. Id. at 9-10. Arkan-

sas, Florida, Georgia, Illinois and Rhode Island pro-

hibit persons convicted of certain drug-related felon-

ies from receiving any TANF benefits. See NCSL

Web Site, State Welfare Reform Database.“ Ten

States currently require that drug felons partici-

pate in a treatment program to receive benefits; New

Jersey and Minnesota require that drug felons sub-

mit to testing. See id.

As the foregoing indicates, the States have enacted

a wide variety of welfare reform measures. Unlike

the federally controlled system of largely uniform

rules of the AFDC program in existence at the time

of Shapiro, under which the principal difference

between States was in benefit amounts and eligibility

levels, there are now numerous and substantial dif-

ferences between States in their approaches to dealing

with recipients. Thus, unlike at the time of Shapiro,

3 The relevant NCSL web site is www.ncsl.org/statefed /

welfare / welfaresearch. htm.

12

there are far more incentives for recipients to move

to other States, whether to escape their home State’s

strict rules or to take advantage of another State’s

more favorable policies.

As Congress recognized, granting States the au-

thority to enact durational residency rules, see 42

U.S.C. § 604(c), is an essential part of welfare re-

form to prevent shopping not only for higher benefit

levels but also for more favorable program rules.

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

273 (1996), reprinted in 1996 U.S.C.C.A.N. 2649,

2661; see also H.R. Rep. No. 651 at 1337, 1996

U.S.C.C.A.N. at 2396. Otherwise, States that have

opted for higher benefit levels or more lenient pro-

gram rules could be forced to abandon them. In-

cluding California, fourteen States have durational

residency rules which provide that new residents

receive TANF benefits at the level received in their

prior State until one year has elapsed.* See Building

a Foundation at 28, 33.

SUMMARY OF ARGUMENT

This Court has long recognized a “constitutional

right to travel from one State to another,” which

“occupies a position fundamental to the concept of

our Federal Union.” United States v. Guest, 383 U.S.

745, 757 (1966). The Court has never held, however,

that all laws affecting the right to travel are uncon-

stitutional. Rather, the Constitution prohibits only

those laws that penalize or unduly burden this right.

If a classification does not penalize or unduly burden

In addition to California, these States are: Connecticut,

Georgia, Illinois, Iowa, Minnesota, New Hampshire, New

York, North Dakota, Oklahoma, Pennsylvania, Rhode Island,

Washington, and Wisconsin. See Building a Foundation at

28.

a

13

the right to travel, it is subject to rational basis

review.

A. California’s durational residency rule limits a

new resident’s monthly cash assistance to the amount

paid by the State of prior residence for a period of

one year. At the same time, new residents are imme-

diately eligible for a wide range of other forms of

public assistance on the same terms as other California

residents. While this Court has not defined the pre-

cise parameters of what constitutes an impermissible

penalty on the exercise of the right to travel, its cases

demonstrate that California’s treatment of new resi-

dents seeking public assistance does not penalize the

right to travel. That treatment is not “sufficiently

analogous to a criminal fine to justify strict scru-

tiny.” Maher v. Roe, 432 U.S. 464, 474 n.8 (1977).

In Shapiro v. Thompson, 394 U.S. 618 (1969), the

Court invalidated several state laws denying new

residents AFDC benefits until they had resided in

their respective States for a period of one year. The

state laws in Shapiro flatly denied certain new resi-

dents any AFDC cash assistance beyond temporary

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

250 (1974), likewise involved a total denial of

benefits.

Unlike the laws at issue in Shapiro and Memorial

Hospital, California’s rule does not impose a total

denial of benefits on new residents. While the rule

reduces an incentive to move, paying recipients the

same level of benefits they received in their prior

State does not deny them benefits they would have re-

ceived had they not exercised their right to travel.

When coupled with the fact that California makes

numerous other benefits available to new residents

14

on the same terms as other California residents, its

payment of the same level of TANF benefits as re-

ceived in the prior State can in no sense be considered

a penalty or analogous to a criminal fine.

B. Because California’s rule does not penalize the

right to travel, it is subject to rational basis review.

The California law readily satisfies this level of con-

stitutional scrutiny. It is rational to think that mi-

gration to avoid enforcement of program rules will

jeopardize the success of welfare reform. It is also

rational to think that States with greater benefit

levels will become welfare magnets and will ulti-

mately be forced to reduce benefits and programs

because of limited state resources and capped federal

funding under PRWORA’s block grant formula. Be-

cause state residency rules like California’s are ra-

tionally related to the prevention of these outcomes,

and thus advance the national goal of welfare reform,

they satisfy the Equal Protection Clause.

In Shapiro the Court stated that “the purpose of

inhibiting migration by needy persons into the State

is constitutionally impermisible.” 394 U.S. at 629.

Shapiro is not controlling here, however. First, Con-

gress has expressly authorized state rules such as Cal-

ifornia’s, see 42 U.S.C. § 604(c), and those persons

likely to be affected by these rules were represented

in the national political process. Second, there are

numerous profound differences between the welfare

system created by PRWORA and the AFDC program

at issue in Shapiro.

Not least, Congress has broadly authorized “[a]

State operating a program funded under this part

[to] apply to a family the rules . . of the program

under this part of another State. 42 U.S.C.

A

15

604 (e). As a result, States have adopted a variety

of measures in reforming their welfare programs.

Unlike under the AFDC program with its largely

uniform rules, there are numerous incentives for re-

cipients to migrate to other States to avoid enforce-

ment of unfavorable rules. If the right to travel as

articulated in Shapiro were found by this Court to

prohibit a State from in any way treating new ar-

rivals differently from longer term residents, welfare

recipients could migrate to those States whose rules

are more favorable to them and jeopardize benefit

levels and programs there. Such an outcome would

undermine the national interest in meaningful wel-

fare reform, a goal which has been endorsed both by

Congress and the States.

CALIFORNIA’S RULE LIMITING NEW RESIDENTS

TO THE TANF BENEFIT LEVEL OF THEIR PRIOR

STATE OF RESIDENCE FOR ONE YEAR DOES NOT

PENALIZE THE RIGHT TO TRAVEL AND SATIS-

FIES THE EQUAL PROTECTION CLAUSE

This Court has long recognized a “constitutional

right to travel from one State to another,” which

“occupies a position fundamental to the concept of our

Federal Union.” United States v. Guest, 383 U.S.

745, 757 (1966). As Chief Justice Taney observed

in The Passenger Cases, 48 U.S. (7 How.) 283, 492

(1849), “We are all citizens of the United States;

e- must have

pass repass through every of it

without interruption, as freely as in our ata ly

The Court’s cases have not adopted a per se rule

that all laws affecting the right to travel are uncon-

stitutional. See Memorial Hosp. v. Maricopa County,

16

415 U.S. 250, 256 (1974) ; Shapiro v. Thompson, 394

U.S. 618, 638 n. 21 (1969). As the Court explained

in Shapiro, the scope of the right is that “all citizens

be free to travel throughout the length and breadth

of our land uninhibited by statutes, rules, or regula-

tions which unreasonably burden or restrict this

movement.” 394 U.S. at 629 (emphasis added).

Thus, where a classification “serves to penalize the

exercise of [the] right,” it is unconstitutional “un-

less shown to be necessary to promote a compelling

governmental interest.” Id. at 634. See also Memo-

rial Hospital, 415 U.S. at 259.

The Court’s cases, however, “have also established

that only where a State’s law ‘ “operates to penalize

those persons. . who have exercised their constitu-

tional right of interstate migration“ is heightened

scrutiny triggered.” Attorney General Of New York

v. Soto-Lopez, 476 U.S. 898, 905 (1986) (emphasis

added) (quoting Memorial Hosp., 415 U.S. at 258

(quoting Oregon v. Mitchell, 400 U.S. 112, 238

(1970) (opinion of Brennan, White, and Marshall,

JJ.))). Where a classification does not penalize or

impose an undue burden on the right to travel, it is

subject to rational basis review.“ See, e.g., Sosna v.

5 The Court has taken a similar approach in reviewing

equal protection challenges to classifications affecting other

fundamental rights. For example, in Maher v. Roe, 482 U.S.

464 (1977), the Court characterized “the central question in

[the] case [as] whether the regulation ‘impinges upon a

fundamental right explicitly or implicitly protected by the

Constitution.“ Jd. at 471 (quoting San Antonio Ind. School

Dist. v. Rodriguez, 411 U.S. 1, 17 (1978)). The Court fur-

ther explained that the right at issue was not “unqualified,”

but rather, “protects the woman from unduly burdensome

interference with her freedom to decide whether to terminate

17

Towa, 419 U.S. 393, 406 (1975) (rejecting right to

travel challenge to durational residency requirement

for divorce; “[a]ppellant was not irretrievably fore-

closed from obtaining some part of what she sought,

as was the case with the welfare recipients in Shapiro

. . . or the indigent patient in Maricopa County“);

Vlandis v. Kline, 412 U.S. 441, 452-53 n.9 (1973)

(citing with approval Starns v. Malkerson, 401 U.S.

985 (1971) (affirming one year residency rule for in-

state tuition at state university)). And if such a

classification is rationally related to a legitimate state

interest, it is constitutional.

A. California’s Rule Does Not Penalize Or Unduly Bur-

den The Right To Travel And Is Thus Subject To

Rational Basis Review

California’s durational residency rule limits a new

resident’s monthly cash assistance under TANF to

the amount paid by the State of prior residence for

a period of one year. See Cal. Wel. & Inst. Code

§ 11450.03(a). Under California law, however, new

residents are eligible for all other forms of public

assistance, including CALWORKS programs, on the

same terms as other residents. These programs in-

clude Medicaid coverage; child care; education, job

training, and job placement services; cash assistance

under diversion programs; transportation assistance;

and food stamps. Moreover, a new resident’s food

stamps are increased by approximately one dollar for

every three dollars that the TANF cash grant is re-

duced by operation of Section 11450.03 (a). Califor-

nia’s rule, which is expressly authorized by federal

her pregnancy.” Id. at 473-74 (emphasis added). See also

Bellotti v. Baird, 428 U.S. 182, 147 (1976) (state regulation

“is not unconstitutional unless it unduly burdens the right to

seek an abortion”).

18

law, see 42 U.S.C. § 604 (e), does not “penalize the

exercise of [the] right” to travel. Shapiro, 394 U.S.

at 634. Nor does it unduly burden the exercise of

that right.

The Court has not defined “the ultimate param-

eters” of what constitutes a penalty on the exercise

of the right to travel. Memorial Hospital, 415 U.S.

at 259. The Court’s cases demonstrate, however, that

California’s classification is not of the same kind as

those classifications deemed to be penalties. See id.

at 259-60; Shapiro, 394 U.S. at 627. Cf. Edwards v.

California, 314 U.S. 160 (1941) (invalidating state

law criminalizing act of bringing a non-resident indi-

gent into a State). The State’s rule is not “suffi-

ciently analogous to a criminal fine to justify strict

scrutiny.” Maher v. Roe, 432 U.S. at 474 n.8.

In Shapiro, the Court invalidated several state laws

denying new residents AFDC benefits until they had

resided in their respective States for a period of one

year. See 394 U.S. at 622-27. These provisions, how-

ever, flatly denied certain new residents any AFDC

cash assistance beyond temporary aid. As the Court

explained, under the state rules at issue “the first

class is granted and the second class is denied welfare

aid upon which may depend the ability of the families

to obtain the very means to subsist—food, shelter,

and other necessities of life.” Jd. at 627. As the

Court subsequently explained, “[i]n Shapiro, the

Court found denial of the basic ‘necessities of life’ to

be a penalty.” Memorial Hospital, 415 U.S. at 259.“

6 Respondents contend that “the denial in Shapiro was not

in all instances total” and “that two of the three states there,

Connecticut and Pennsylvania, gave ‘partial assistance.“

Opp. 17-18 (quoting 394 U.S. at 685). The “partial assist-

19

Memorial Hospital is to the same effect. There, the

Court invalidated a state law imposing a one year

residency requirement for the receipt of nonemer-

gency medical care at government expense. See 415

U.S. at 259-70. Reading Shapiro ‘or the proposition

that “denial of the basic ‘necessities of life’ [is] a

penalty,” the Court reasoned that “[w]hatever the

ultimate parameters of the Shapiro penalty analysis,

it is at least clear that medical care is as much ‘a

basic necessity of life’ to an indigent as welfare as-

sistance.” 415 U.S. at 259.7

ance” given by Connecticut was the same amount “which

all Aid to Dependent Children applicants get up to sixty days.“

Brief State of Connecticut at 5, Shapiro v. Thompson, O.T.

1967, No. 9. The assistance was available only to those “mak-

[ing] a bona fide effort to get a job.” Id. at 4-5. The plaintiff

“was unable to accept gainful employment,” and denied [alli

public assistance” for six months. Brief of Appellee at 2-3,

Shapiro v. Thompson.

Nor did Pennsylvania grant partial assistance in the man-

ner that California does here. With the exception of persons

who came from a State which had a reciprocal agreement

with Pennsylvania, new arrivals were deemed residents of

their former State and were entitled only to short term grants,

the number of which depended upon whether the person had

a plan of self-support. See Pa. Pub. Assistance Manual

§§ 3151-3154.32 (reprinted in Appendix to Br. of Appellee at

la-5ba, Reynolds v. Smith, O. T. 1967, No. 34). The short

term grants were “for seven days or less, as needed,” id.

§ 3154.31, and in no case was a person eligible for more than

four grants. See id. §§ 3154.11; 3154.12 (reprinted in Appen-

dix Br. Appellee, Reynolds, at 8a-4a). Application of these

regulations quickly resulted in the termination of all benefits

to new arrivals. See Shapiro, 394 U.S. at 626. It is thus more

accurate to describe the assistance provided by Connecticut

and Pennsylvania as temporary rather than “partial.”

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

invalidated a state law imposing a one year residency require-

20

In Memorial Hospital the Court further explained

that “[{a]lthough any durational residence require-

ment imposes a potential cost on migration, . . . Sha-

piro cautioned that some waiting period[s] ... may

not be penalties.’” Id. at 258-59 (quoting 394 U.S.

at 638 n.21). Indeed, in Memorial Hospital, the Court

quoted with approval two lower court cases upholding

durational residency rules for public universities,

noting, inter alia, that such rules do not preclude a

person “ ‘from the benefit of obtaining higher educa-

tion.““ 415 U.S. at 260 n.15 (citations omitted).

The following year, in Sosna, the Court upheld

Iowa’s durational residency rule for divorce, reason-

ing that “[a]ppellant was not irretrievably foreclosed

from obtaining some part of what she sought, as was

the case with the welfare recipients in Shapiro, the

voters in Dunn, or the indigent patient in [Memorial

Hospital].“ Sosna, 419 U.S. at 406. The Court sub-

sequently explained that its holdings in Shapiro and

Maricopa County “recognized that denial of welfare

to one who had recently exercised the right to travel

across state lines was sufficiently analogous to a crim-

inal fine to justify strict scrutiny.” Maher, 432 U.S.

at 474 n.8.

California’s rule limiting, for one year, a workfare

recipient’s TANF cash benefit to the level received in

a prior State is not “sufficiently analogous to a crim-

inal fine“ so as to constitute a penalty. Id. The rule

does not impose a total denial of cash assistance as

ment for voting. The Court subjected the provision to strict

scrutiny, deeming it to be a classification which penalized

persons exercising their right to travel. See 405 U.S. at 338-

41. Of course, the statute imposed a total denial of the funda-

mental right to vote.

21

did the laws at issue in Shapiro. While the rule re-

duces an incentive to move, paying individuals the

same level of benefits they received in their prior State

does not deny recipients benefits they would have re-

ceived had they not exercised their right to travel.

In short, they are no worse off for having exercised

their right to travel. And being paid the same level

of benefits as received in a prior State can in no

sense be considered “analogous to a criminal fine.”

Id.

That California has a higher cost of living than

most States and pays substantially higher TANF

benefits than some other States does not render the

rule a penalty. See Opp. 4, 8-9 & n.5. California,

after all, has no control over the legislative decisions

which set the benefit levels of other States or the con-

ditions which affect their costs of living. Indeed, if

differences between various States’ costs of living are

constitutionally significant in penalty analysis, then

the same might be said about a State’s failure to ad-

just benefit levels to reflect the cost of living differ-

ences that frequently exist between urban and rural

counties.“

8 Respondents assert that the amount that newcomers re-

ceive would fall substantially short of what is required to

subsist—or even to pay rent—in California.” Opp. 9. This

argument, however, ignores that newcomers still receive food

stamps and that the food stamp benefit is increased by ap-

proximately $1 for every $3 in reduced TANF benefits. See

Pet. App. 38a. Moreover, while the median monthly rent

in Long Beach, California, may equal or exceed the amount of

TANF cash assistance provided to respondent Roe, see Opp.

at 8-9, there are numerous localities throughout the State

where her monthly grant would cover the median cost of

housing. See Places, Towns and Townships 327-40 (Deirdre

A. Gaquin & Richard W. Dodge eds., 2d ed. 1998).

22

In any event, migrants to California may in some

respects be better off than they were in their prior

State notwithstanding the durational residency rule.

As explained above, California provides to all resi-

dents a range of programs, including Medicaid cov-

erage; child care; education, job training, and job

placement services; cash assistance under diversion

programs; transportation assistance; and food stamps.

In addition, the rules of particular programs may be

such that new residents are able to achieve a higher

standard of living than they were in their prior State.

For example, California has a generous earnings dis-

regard which allows persons to disregard a substan-

tial portion of their earned income while still retain-

ing TANF benefits. See Cal. Wel. & Inst. Code

§ 11008.° While respondents have focused exclusively

on the TANF program and its durational residency

rule, see Opp. at 4, the existence of these other pro-

grams are surely relevant in answering the question

of whether the State has imposed a penalty by deny-

ing new residents “the basic ‘necessities of life.’ ”

See Memorial Hospital, 415 U.S. at 259 (quoting

Shapiro, 394 U.S. at 627).

Nor does California’s rule impose an undue burden

on the right to travel. As the Court explained in

Maher, “there is only a semantic difference between”

a claim that a state law “unduly interferes with” a

fundamental right and a claim that the law “penal-

izes the exercise of that right.” 432 U.S. at 474 n.8.

® According to the Urban Institute, a California family of

three with no unearned income or child care expenses can

earn 81360 per month before losing eligibility for TANF

benefits; the same family in Oklahoma can earn $730 per

month before losing TANF benefits. See One Year After

Federal Welfare Reform at 8-9.

23

Whether the analysis is formulated in terms of pen-

alizing the right to travel or as “unreasonably bur-

den[ing] or restrict[ing]” the exercise of the right,

Shapiro, 394 U.S. at 629, it is clear that California’s

durational residency rule does not implicate strict

scrutiny.

B. California’s Durational Residency Rule Satisfies Ra-

tional Basis Review

Because California’s rule does not penalize the

right to travel, it is subject to rational basis review.

The rule is entitled to the presumption of constitution-

ality and must be upheld if it is rationally related to

legitimate governmental interests. See Dandridge v.

Williams, 397 U.S. 471, 485-86 (1970).

In Shapiro, the Court stated that “the purpose of

inhibiting migration by needy persons into the State

is constitutionally impermissible.” 394 U.S. at 629;

see also id. at 631. This case is not controlled by

Shapiro for two fundamental reasons.

First, recognizing the critical importance of dura-

tional residency rules for the purpose of welfare re-

form, Congress has expressly authorized California’s

rule. See 42 U.S.C. §604(c). Most significantly,

those persons likely to be affected by durational resi-

dency rules were represented in the national political

process which enacted this legislation and which re-

tains the power to repeal it. This case thus stands in

stark contrast to Shapiro, where the Court held that

Section 402(b) of the Social Security Act of 1935

(formerly codified at 42 U.S.C. § 602 (b)), did not

authorize the States’ durational residency rules, see

394 U.S. at 639, and where new arrivals had no voice

in the political process of the States which enacted

the rules.

24

Second, the fundamental differences between the

system created by the PRWORA and the AFDC pro-

gram in existence at the time of Shapiro demonstrate

why Shapiro is not controlling. While this case has

been presented as a dispute about benefit levels, Con-

gress more broadly authorized “[a] State operating

a program funded under this part [to] apply to a

family the rules . . of the program funded under

this part of another State... . 42 U.S.C. § 604(c).

This is of no small consequence given Congress’ de-

cision to radically restructure the welfare system and

devolve to the States the authority and flexibility to

experiment by creating their own rules aimed at mov-

ing welfare recipients into the work force and solv-

ing the other social problems associated with the

AFDC system.

As explained above, States have adopted a variety

of measures in reforming their welfare programs.

There are now numerous and substantial differences

between States in the manner in which they deal with

recipients. Thus, unlike under the AFDC program

with its largely uniform rules, there are now far

more incentives for persons to migrate to other

States. If the right to travel, as articulated in

Shapiro, prohibits a State from ever treating new

arrivals differently from longer term residents, wel-

fare recipients will migrate to those States with the

most favorable rules.

It is rational to think that migration to avoid the

enforcement of program rules will jeopardize the suc-

cess of welfare reform. It is also rational to think

that States with greater benefits will become welfare

magnets. See Paul E. Peterson & Mark C. Rom, Wel-

fare Magnets: A New Case for a National Standard

79 (1990) (“A state offering high welfare benefits

25

will have a poverty rate 0.9 percent higher than a

state providing low benefits. ... These differences in

poverty rates are most probably due to migration.

.. „); see also Todd Zubler, The Right To Migrate

And Welfare Reform: Time For Shapiro v. Thomp-

son To Take A Hike, 31 Val. U.L. Rev. 893, 933-38

(1997) (discussing empirical and anecdotal evidence

supporting theory that high benefit States become

welfare magnets). And it is likewise rational to

think that States which become welfare magnets will

ultimately be forced to reduce benefits and programs

because of limited state resources and capped fed-

eral funding under PRWORA’s block grant formula.

See, e.g., Peterson & Rom, at 55 („If benefits be-

come too much higher than those in other states,

policymakers will act to reduce them in order not to

attract excessive numbers of poor people from other

states.“); Zubler, 31 Val. U. L. Rev. at 931-38.

That state durational residency rules such as Cali-

fornia’s reduce incentives to migrate does not render

them constitutionally impermissible. While Shapiro

states that “the purpose of inhibiting migration by

needy persons into the State is constitutionally im-

permissible,” 394 U.S. at 629, it further makes clear

that a state law which implicates the right to travel

is constitutionally impermissible only if it rises to the

level of a penalty.” See id. at 629-31 (“If a law has

‘no other purpose . . than to chill the assertion of

constitutional rights by penalizing those who choose

to exercise them, then it [is] patently unconstitu-

10 Because the state durational residency rules authorized

by 42 U.S.C. § 604 (e) do not rise to the level of a penalty,

Congress has not authorized the States to violate the Equal

Protection Clause.

plained above, California’s law

penalty on the right to travel.

0