# Amicus Curiae Brief — Saenz v. Roe

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0210%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 489

## Text

*

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0210%3A20. Public record. Not legal advice.