Amicus Curiae Brief — Carleson v. Remillard

Supreme Court brief1972

Ask Donna

What actually matters in this document.

Text

INDEX - “hk,

PAGE

| Motion for Leave to File Brief Amici Curiae and

' Btatement of Interest of Amici “Curiae supesusionnaas ne |

Bam ‘AMICI Cunmaz:

cal Introduetion Segoe am nent We ae i)

ARGUMENT: oS eg ee

N‘

fa This Court’s Secision im. Townsend v. Swank

requires that all- children eligible for AFDC

under federal criteria be granted assistance .. of

II. Uninterrupted - ‘military absences are con-

+ tinued absences within the ‘meaning of See- .

tion 406 . ' ; : , saseboee - 17

: Cencaan: Sy sconatillcpaaiies gucisabtvaisineantinentia inc Sit Sstestenseesace 30°

| TABLE OF AUTHORITIES

‘Cases: e

Addison-v. Holly E Hill, 322 U.S. 607 (1944) encerenee 19

. Arizona State Dept. of Public. Welfare v. HEW, 449

F.2d 456 (9th Cir.), cert: denied, 40 U:S.L.W. 8399

(Feb. 22, A972) ae A TO Aa ae apecigtcnstiimenld 8,15 t

Scpnastient State dant of Public ‘Welfare v. HEW, 7

M48 F.2d DOD (De Gir. 1971) enn See senncnsccennenen gece 15.

Cooper v. eee 316: F. “Supp. 364 ‘(E.D. Pa.

V9TO) «2 .-nnessoqesencteenspatareensnspunsssnesesnesenecinoqesnossenesssnesenssepsaees 8

Damico v. California, 2°CCH Poy. L. ‘Rep. 110,478

(ND. Calif Sept 12, 1969) snr pennnnnnn 830

‘Dandrfdge v. Williams, 397 US. 471 (1970) . wedescoene 6, 13, 17 |

Digesualdo v, Shea, —— F. Supp. ——, No. C. 1827 ©

(D. Colo. March 1, 1971), vacated and remanded, 92.

S. Ct. 688 (1972) cite neiusiamnaeniondtenitenion ©

Doe v. Hursh, 328 F. Supp. 1360 (D. Minn. 1970) sesueeee .

¥ Doe v. Schmidt, 330 F.Supp. 159 (E.D. Wise. 1971) ..

Doe: v. Shapiro, 302 F. Supp. 761, (D. Conn. ana

appeal dismissed, 396 U.S. 488 (1970) widicensasstatennneinntetes 8

Doe v. Swank, 332 F. Supp...61 (N.D. Th. 1971), aff’d

4% sub nom. Weaver'v. Doe, 92 S. Ct. 537 (1971) -2...1..... 8 -

"Jefferson v. Hackney, October TermA971, No. 70-5064 6

King v. Smith, 392 U.S. 309. (1968) ....6,7, 9, 10, 11, ?2, 13,

16, 17, 22, 28, 29, 30

Lewis v. Martin, 397 U.S. 552 (1970) ne oe ea 11°.

Macias v. Finch, 304 F. Supp. 1252 iN, D. Calif. ), aff'd,

400 U.S.-913 (1970) ccc eccccccesccccseeseecevestcoueeesteneececoueessenneees 13

Meyers .v..Juras, 327 “wo 759: (D. Ore), afd,

404 U.S. 808 (19TL) Sdn engeenn bern 8:

“Rodrigues v. — 318 F. Supp. 989 wD II, 1970) 15 _

Rosado v. Fe aaa 397 U. S. 397 (1970) . E svestesnsed wemmermeroee, | ON

"Saddler v. Winstead, 332 F. ‘Supp. 130: (ND. Miss. ao

AQT Y) eeneececpeesnsochecnrectovcciecsnenrinscnesnun-aesiesZoschind is rseesanas 8

Smith v. King, 277 F. Supp. 31 (M.D. Ala. 1967) a)

Stoddard v, Fisher, 330 F. Supp. 566 @. Me. 1971) ...8,12,

- 98

.*,

PAGE .-

Taylor v. Martin, 330 F. Supp. 85 (N.D. Calif.), aff'd

* sub nom. Carleson v. Taylor, 92 S. Ct. 446. (1971) - 8.

Thorpe v: Durham Housing Authority, 393 U.S. 268 |

(1969) .. 15 ~

Townsend v. Swank, 404 U.S. 282 (1971) ....6, 7, 8; 9,10, 11,.

o ero - 15, 16, 17,18, 24, 29

United States. v. boa. 404 U. S. 836 (1971) eee, Fe

United States ex rel. Wilkinson v. Commanding Officer,

286 F. Supp. 290 (S.D.N.Y. 1968) -. 25 .

“Woods v. Miller, 318 F. Pune. (W.D. Pa. 1970) ~ 8

aber: v. Allen, 396. U.S. 168 (1969) Seat eet ek . 14

" Statutes: | . oa

10 U.S.C. §§885, 886 ul... ees . 26

28 U.S.C. §236 et Seqe eeeceeccseccennee Satta: 2

87 U.S.C. §701(d) oo:ececiis ee _ wo 26

42 U.SiC. §602( a1) (8) eescccccccecesececeiennnencelegeeeee A |

42 U.S.C. §602(a) (10) ooaecicccseelccceececendeeeee | 6,9,15 .

42 U.S.C.. §602(a) (15) (B) 2s eis a a

AQ U.S.C. §602(a) (17) cca eeceececeeeceeeecteeenneeen wees’ 19

42 U.S.C. §602(a) (19). tesco | i 27

42 U.S.C. s602(a)(19)(A), as amended by PLL. 92-223,

, OD eee ee, OR

42 U.S.C. $603(0) (SGA) ean _. 28

42 U.S.C. §606 ccecenccsceceeeleveeneeteceeee eee “uw By 6

- 42. U.S.C: §606(a) oe eae Rare ener 10, 18

ce Le. kaa |/ enna eect. a Saeie ee eonaes 12

42 U.S.C. §607(b) cece el Bate 13

: fo PAGE

42 U.S.C. §622(a)(1)(C) ........- este tn nsnenapenessavien ne ne oe

42 U.S.C. 9625 ot eceeeeeeeeeeenee ae 7 at. 28

42 U.S.C. §630 08 Sq. veccccclesccoseecscsnsssesssessesssegeessoeeeneaneseee 27

42 U.S.C. _$633(a), as amended by P.L. 92- 223, 3 28

— 42°U.S.C. §1802+ a oo 15

42 U.S.C. §1351 et seq. eee reyes 30

50 U.S.C. App. §456(D) <o..ncee.cccleceecsneeeeeeeneeeceeenees weaeee 25

50 U.S.C. App. §456(h) 0 Bees taapesineieesee ee 25

50 U:S.C.. App. $462 occceeceeccccccescocsecoesceessneescleseeeeeee: ae 26

— 50 U.S.C. App. §501 et seq. See aw, 2S

"50 U.S.C. App. §§2203, 2204. pe eee 27 .

Dependents’ Assistance Act of 1950, as - amended by

Pub. L. 92-129, §206, 85 Stat..359 ccc ccscccceesct a

Social, Security Act had | ge

Titlé I Sseeesneeenece ereeeetns Oe eens 16

Title II ............. ne estes 16

A EY et cnercsetestintin Pet eee eens 6,16 |

1 15 a _ etnies 16

1 D6 A A RC 16

ON Be See eee, AS,

|? eee ww «WBS

R11 C91 0 |) 9, 10,15, 16

GG nasncssecscaat eeeeeegennerinencone DB, 13, US, 17, 18,

. | : 19, 20, 22, 25,

§406(#) a spare cise Bens cuoeets - 10

| 1 Pe cae 12, 13,14

Pub. L. 74-271, §406 Boia gett dp Seca ann tenant 22

Pub. Le. 87-31, §1 oeseceneseccsnssccoctveccnsneteccsssesstussssessssssqpalonecnnseess 12

Pub. L. 90-248, §203(a) ee a na |

Pub. L: 92-223, 3. ee csosrvomeneeds te eect e

Regulations :

Federal | ees e.

32 CFR. 9162-3 | eee eee 25

32 C.F.R. §1622. 30 (@) “Levees. 7 : 25

45 C.F.R. §206.10(a) (3). -..... ee 15°

AB CARR. §220.35 (a) (2) (V) eceeeeceeecessnendaneteeeesecceeeeeeee I-28

. 45 C.F.R. §233.20(a) (3) (iv) (a) _aerannaae es . ‘15

45 C.F.R. §233.20(a) (7) (i). -..........- | a 1S

45 C.F.R. §283.90(e) (1) (iii) noeenesseseeseseeeceseeeeeee 14,17,24. -

Department of Army Regulation, AR 614-30 ......... 24.

HEW Handbook of Public Assistance Administra- .

tion, Pt. IV, — saxsihapeecestacees Si cians tentestesecsae 18 »

California | ae .

EAS 42-3501 222... eee Sesatiseguctuont axiceneias ; 19

FAS” 42-3501 nnn eccescaessccccnsssecconpescecennssescansseceeveseeee 30

RD ee ee

Other Authorities:

- Brief Amici: Curiae of the Center on Social Welfare

. . Policy and Law, et a., , Lewis v. Martin, O.T. 1969, - ~

No. 289 ......... ‘i . ll

Brief for the United- States as Amicus Curiae, Alex- 7

ander v. Swank, Nos. 70-5032,. 70- 5021, and Carter | .

vy. Stanton, No. 70-5082 7

Comment, “ABC Eligibility Requirement’ Unrelated to an

Need: The Impact of King v. Smith, 118 Penn. L. -

Rev. 1219 (1970) ...2..0.00001...2.. 8

- Comm. on Finanee, S$. Rep. .No. 74, 90th Cone, Ast ;

‘Sess. (1967) ieee . 14°

Comm. on Ways and Means; Report on H.R. 1, H. Rep.

No. "92-231, 92nd Cong. 1st Sess. me

- Executive Order No. 1187, 36 ai Reg. 349 (Jan. 8,

1971) mr} “26

H. Rep. 615, 74th Cong., Ist Sess. (1935). See ese 21

_ HR. 4120, 74th Cong., 1st Sess. (1935), §203 of the >

proposed Economie Security Act - | 20, 23.

H.R. ‘7620, §406 of the dF ie sae Keonomic Security

eee 21

| Message of the President, HH. Doe. No. 91- 334, 116 Cong.

Ree. 12824: (1970) 27

Report of the Committee on Economic Security (1935) "20

Sen: Armed Services Comm., - Report, on H.R. 6531, /

S. Rep. No. 92-93, Ag7l U. S. Code Cong. & Admin.

° News . | aT.

s. Rep. ‘No. 628,-74th h Cong, ., Ist Sess. (1935) .................22, 23

’ S. Rep. No. 65, 1961.0. 8. Cade Cong. and Admin. News 13. .

Webster’s Seventh New Collegiate Dictionary (1969) .. 19

IN THE

a Court of the Vuited States,

OcrToBER Term, 1971 |

No. 70-250 ©

‘ Rosert B: Carweson, et al.,

care , Appellants,

os —against— oS

a Nancy Remmuarp, et dl.,

. dupdio®

on APPEAL FROM THE UNITED STATES DISTRICT COURT ~

FOR THE NORTHERN DISTRICT OF CALIFORNIA

‘MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND STATEMENT OF INTEREST OF AMICI CURIAE

The ‘National Welfare - Rights Dremientibn: the. NLSP

Center on’Social Welfare Policy: and Law, Inc., and the

American Veterans Committee, Inc. respectfully “move the

Court for permission to file the attached brief amici curiae,

- for the following reasons. The reasons also disclose the

o. interest of the amict.

The amici wish to’ assure that the- Gouit is presented ;

with a complete discussion of the very important Social

‘Security - Aet issues raised by this case in view of the

impact on the financial security of thousands of welfare

recipients and sopliedsts around the country who are the.

families of the men who are serving in-our Armed Forces.

- The manner in which this case is resolved may. well affect oe

many other welfare recipients and applicants ‘who are not

_ in the families of servicemen but who are ae for bene-

_ i. ) .

fits under the principles announced hy this Court in Town-

"- send v. Swank, 404 U.S. 282.(1971)5 This -possible effect,

and the necessity for this amicus brief, became apparent

only dfter.the Solicitor General filed an amicus briéf in

this ease dn March 20, supporting appellants but filed after ~

appellants. had submitted their brief.* Because the United

‘States’_brief calls ‘into serious quéstion and, we believe,

portrays a serious misunderstanding of, this Court’s re-—

cent decision in Townsend v. Swank, amici believe that a

further amplification of the statutory issues under the

Social Security Act, and in particular a response to. the

United ‘States’ position, is essential to a,full understand-

ing of ‘the case and its effect. “4

The National Welfare Rights. Gerniintos. (NWRO)

‘was formed in 1967 by recipients of public assistance to

enable them to-learn of their rights and entitlements and

to organize and teach individuals in need of’ financial —

assistance how ‘to secure public assistance benefitS. The

membership of NWRO. includes more’ than 125, 000 mem- *.

bers in 50 states. Since many of its members have’ been,

| and continue to. be, adversely affected by regulations: which -

deny welfare benefits, to families in violation of the re- -

quirements of the Social Securit? Act, the Organization -

has devoted much of its energies and- resources to thé

abolition of such. arbitrary rules. Members ‘of NWRO

have Siero as: indi¥idual plaintiffs before this - Court: .

. ™ Moreover, we note ‘that appellees’ brief was due only a few

‘days later, and thus appellees did not have an opportunity to

respond to the Solicitor General. Recognizing that the motion and

brief are being filed shortly before oral: argument, amici mailed -

air mail special delivery a typewritten copy to both the appel-

lants’ and the appellees’ counsel, as well as to the Solicitor Gen- -

eral, at the same time that, the final copy was delivered to the . .

printer, April 4. a y)

han

t ‘

on many occasions; the Organization also submitted briefs —

dmici’ curiae in Lewis, v. Martin, 397 U.S. 552 (1970),

and Dandridge v. Williams, 397 U:S. 471-(1970). And, in

| the case most relevant t6 the issues in this case, Townsend

vy. Swank, attorneys for NWRO represented the successful

appellants. a

The NLSP Center on Social Welfare Policy and, Liaw,

Inc. is: the specialized welfare law resource of the Legal

Service Program of the Office of Economic Opportunity.

- The Center undertakes research pertaining to the legal

rights of welfare beneficiaries and supports OKO-funded

legal service programs and -other legal organizations

through education and -assistance in the. preparation of

important litigation.. Since its inception in 1965. Center

attorneys have represented patties, and the Center has par-.

ticipated as amicus curiae, in this Court and the lower

-courts im cases inv olving all facets of welfare’ law. Specifi-

eally, the Center participated as amicus in this Court in

King v. Smith, 392 U.S. 309 (1968); Shapiro v. Thompson,

394 U.S. 618 (1969) ; Wheeler v. Montgomery, 397 U.S. 280

. (1970) ; Dandridge v. Williams, supra, and Lewis v. Martin,

supra; and Center attorneys represented welfare clients

before thé Court in Goldberg v. Kelly, 397 U.S. 254 (1970) ;

_ Rosado v. Wyman, 397 U. S. 397 (1970); and Jefferson v.

- Hackney, October Term, 1971, No. 70-5064, sub 7 pe

The American Veterans Committee, Ine. (@VC) is

nation-wide ‘organisation. of servicemen and veterans who

"served honorably in the. Armed Forces of the United States

- during World War I, World War II, the’ Korean Conflict co

and the Vietnam Conflict, and who have associated them-

selves regardless of race, color, religion, sex or national

; 4 ve + |

‘origin, to promote the democratic principles which they __

fought to preserye: AVC was ‘founded in. 1943, and has —

dedicated itself to the attainment of equal rights and op-

portunities for all citizens, whether rich or poor, service-

men or civilians. Among the many cases in which _the

AVC has filed briefs in this Court are Shelley v. Kraemer, :

— U.S. 1 (1948) ; Brown v. Board of Education, 347 U.S. -

(1953) and 349 U.S. 2941955) ; Reed v. Reed, M4 US.

(1971); ‘Takahashi v. Fish and Game Commn., 334 -

U.S. 410 (1948); Stainback v..Poe, 336 U.S! 368 (1949);

Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Okla-

homa State Regents, 339 U.S. 637 (1950) ; and Barrows.v.

Jackson, 346 U.S. 249 (1953).

- Wherefore, movants pray that thé stiaclod brief amici ‘

‘curiae be petmitted to be filed_ with the Court.

.. Respectfully submitted,

-@™

. Steven J. Coie

‘Nancy Durr Levy ©

; _ +, Henry A. -FReepMan-

fo So 401 West 117th Street

oe New York, New York 10027

. ee Jon C. Krvney Me

c " * , 1424 16th Street, NW.

" Washington, D.C, 20036,

- \

Ciena: C. Sore . *%)

: ~ ° 1833 Connecticut Ave., N. Ww.

( = Washington, D.C. 20086 .

rn ran us : |

| Supreme Court nt the Muted States:

- Octoser TrRM, 1971™.,

No. 70-250 © e,

- , A

Roserr B. Canuusox, et al.,.

Appellants, e

—against— pe

_ Nayoyr ReMILLARD, et al.,

Appellees.

ON APPEAL FROM THE UNITED ‘STATES DISTRICT _COURT

- FOR THE NORTHERN DISTRICT OF CALIFORNIA

> z

_ BRIEF AMICI CURIAE ~

. a Introduction

In our view, the narrow question presented in this case

is whether California. may automatically’ ‘disqualify for

AFDC benefits otherwise eligib families solely ‘because

‘the father is continuously absenfrom the home 4s a result:

_ Of service in the Armed Forces. None of the parties to the

case has raised any question as to whether or not.a:state |

may determine that such service does not render the father

continuously absent under the circumstances of a “particu!

lar case, nor do we. —

The appellants’ answer to the. question présented is set.

qut in the alternative. First, ey argue that t efinition -

of “continued absence” as used in 42 U.S.C. $606 has been

left by Congress to the States, and thus within that broad: |

delegation California had the discretion under the Social

Security Act. to exclude military absences. Second, appel-

- lants urge that if the definition of “continued absence” WAS

not left:to state discretion, then that phrase should: be con-

strued by the Court to exclude. military absences from its

scope. The Solicitor General, in his any curiae brief

for the United States, assumes that Con Ss inténded’ to

_~permit.military. absences to be considered as “continued

absences” ‘under Title IV, but that the precise scope of —

the’ term was to » be left. to. each state: to determine. This.

amicus briefrfully supports the position of appellees, and

will demonstrate ‘that under this Court’s decision i in Town- .

send v. Swank, supra,’ the federal standard of “continued. __

absence” is controlling, and that Congress intended by the

words “continued absence” to- include within its terms any

uninterrupted absence’ from the home. We believe that the

clear wording of. the statute, the legislative history, and

the problem to which the Act was addressed, all point to

_ the inclusion of military absences under the statute. — |

i The Solicitor Semaeal has taken what had become his usual

posture before. this Court when representing the views of the

‘Department of Health,. Education and Welfare, namely, that prior:

‘decisions of the Court with which it does not agree, cannot possibly

have been intended by the. Court. Thys, in Townsend v. Swank,

404-U.S. 282:(1971), the Court war miosed that the interpretation

‘of 42 U.S.C... §§602(a) (10). and’ 606, in King v. Smith, 392 U.S.

309 (1968), s iould not be read as: its plain language ‘seemed to

indicate;- saa in Jefferson. v. Hagkney, No. 70-5064, sub judice,

the Court -was told that its clear language .in both Rosado v. .

Wyman, 397 U.S. 397 (1970) and Dandridgé v. Williams; 397 U.S.

_ 471 (1970), was dicta and not intended by the Court. And now,

. in the instant case, the Townsend decisien, and its explicit repudia-

tion’ of HEW’s position, is wished away by the Government. —

2 The question in Townsénd involved the consisteney of Illinois’

restriction of AFDC for children 18-20 years of age to those chil:

dren attending high school or vocational school, with .the Social

_ Security Act, which includes college students in that age grouyf

as dependent children. The Court held that the federal definition

binding, .and thus the Illinois restriction was void under the ©

.. Supremacy Clause. ; .

S, .

~ - ARGUMENT”

“This Court's Pare a in Townsend \ v. Swink requires:

that all children eligible for AFDC: wie ‘federal

criteria be granted ioe cee ee a

‘In Towkdiend, the Solieitor General pane that the So-

‘cial Security Act permits the states to define eligibility i in

terms. nro than the statute’s ‘definition of dependent

children, and Ahat, King v. “Smith st6od at ‘most for the.

roposition that ata: eligibility restrictions are imper-

ible only: if ‘incompatible with articulated Congres- Re

sional purposes or result in unreasonable classifications.

Brief for the United States a’ Amicus Curiae, Alexander |

v. Swank, Nos. 70-5032, 70-5021, and Carter v. Stanton, Now me

70-5082, dated August, 1971, pp. 10-12, 15. Thus the Gov-

- ernment urged) ‘in effect, the adoption of a presumption

_in favor of state options. regarding AFDC coverage, with

“federal criteria governing only where explicit authority |

for such a limitation is found, or where the vague “condi- __

tion ‘(x)” or “equitable treatment” ‘doctrine would so dic- og

tate. Id. at pp. 21-28. ‘

_ In Townsend, however, the Government’s position: was’

expressly rejected by the Court:. .

C - “King v. Smith establishes that, .at bene 3 in the uel.

of congressional authorization for the exclusion clearly

- evidenced from the Social Security Act or its legisla-

" tive history, a state eligibility standard that excludes

. persons’ eligible for -assistance under federal AFDC

“«

- a 8

% widens clans the Soeial Security Ket ond i is there-*”

_ 7°. + fore invalid under the Supremacy Clause.” » 404 U.S.

at 286. aan @ :

‘

In so-ruling, the Court reversed ‘the proposed presumption. a

Eligibility for AFDC must be determined using federal

standards unless evidence of a contrary Congressional

intent is clearly shown-for the particular exclusion:* The

' HEW “eondition (x)” doctrine qvas. disapproved insofar |

as it permitted the denial of ABDC to meee eligible

individuals. Ibid-:

- In the instant case, the Government seeks to distinguish

” Townsend by arguing that in that-case there was specific

, indication i in-the Act that college students were to -be eligi-

ble, as well as: legislative history indicating an .intent to

require their inclusion, and it was only that specificity and

any which — the conclusion that States may not

3 This interpretation of King had eee anticipated by many

lower federal courts which had occasion: to consider the question,

- see, eg. Stoddard v. Fisher, 330 F. Supp. 566. (D. Me. 1971) 5 |

~ Doe-v. Shapiro, 302 F Supp. 761 (D. Conn. 1969), appeal dis-

missed, .396 U.S. 488 (1970) ; Cooper v-Laupheimer,316-F “Supp:

364 (ED. Pa. 1970).; Damiéo v. California, 2 CCH Pov.:L. Rep.

710,478 (N.D. Calif. Sept. 12, 1969) ; Doe v. Hursh, 328 F. Supp.

1360 (D. Minn. 1970); Doe v. Schmidt,- 330 F. Supp. 159 (E.D..

Wise: 1971) ; Saddler v. Winstead, 332 "F. Supp. 130 (N.D. .Miss.

1971); Taylor v. Martin, 330 F.- . Supp. 85 (N.D. Calif.), aff’d.sub

nom. Carleson v. Taylor, -92 S. Ct. 446 (1971); Woods v. -Miller,

318 F. Supp. 510 (W.D. Pa. 1970) ; Arizona State Dept. of Public.

Welfare v. HEW, 449 F.2 ing: (9th Cir\), cert. denied, - 40

U.S.L.W. 3399 (Feb. 22, 197%); Doe v. Swank, 332 F. Supp. 61. -

- (N.D. Ill. 1971), aff'd sub nom. Weaver v. Doe, 92 S. Ct. 537

(1971) > Meyers_v._Juras, 327 -F. Supp. 759 (D, Ore.), aff'd, 404

US. 803 (1971) ; but.see Digesualdo v. ‘Shea, F. Supp.

. No. ©-1827 (D. Colo. March 1, 1971), vacated and remanded for

further consideration in light ‘of Townsend v. Swank, 92 S. Ct.

688 (1972) ;.and by af least one law review commentator, see Com-

ment, “AFDC Eligibility. Requirements Unrelated to Need: The

Impact aati v. Smith,” 118 Penn. L. Rev. 1219 (1970).

<8 :

————.-

9 *

Ps : a : % : : ~

ee} : Zz

5 . . 2

ars ae:

t : . . : e+

"more narrowly ‘define eligibility. in terms of school attend- -

ance. Memorandum for the United ‘States ‘as Amicus

Curiae, dated March, 1972, pp. 6-7. On the-other hand, in -

the Government’s view, ‘the Social Security Act does not

“elaborate” on the ‘scope of “continued absence,” and there ,

‘is allegedly no legislative history on the question of either

its intended scope, or its mandatory nature. It is concluded

. by the Government, therefore, ¢ that states were thus “in-

: tended to ‘have considerable discretion in determining what

sort of parental abéence Juatifies AFDC assistance.” Id."

a |

It should be immediately citierent that the Government’s

analysis of fhe question presented is identical to that which ‘

_it proposed in Townsend and’ which was rejected, namely,

a presumption in favor of st&te options and_state flexibility

absent specific mandates to the contrary. A fair reading

-_ of the Townsend opinion, ‘and of King.v. Smith, conclusively

demonstrates that the. general eligibility rule enunciated

in those cases in no way depended upor the clarity - -Or

“specificity of the Congressional will in regard to the par~ |

ticular eligibility issue involved, and nd that the Congressional

purpose was looked. to in those cases ‘only to determine

whether | or’ not explicit authorization for state options

justified departure from the general rule as to the appli-

cability of federal eligibility standards - [Townsend], and

to determine the precise. scope of the governing federal

criteria [K ing].

First, the structure of the Court’s opinion in Townsend --* -#

itself ‘negates the Gov ernment’s interpretation ‘of that:

decision: Section I of the’ decision, 404 U. S: at 285-86,

deals exclusively with thé Court’s interpretation of 4402 :

(a) (10), 42 U.S.C. | §602(a) (10), requiring AFDC to be

he Fe 10

* “furnished w ye reasonable promptness’ to. all eligible

individuals.’

eohabited: with a mother of needy dependent children: as a

nonabsent: “parent” so as to disqualify such children for

AFDC, since under such peireumstances no “parent” would |

be “continually absent from the homé” as required by:

§406(a), 42 U.S.C. 9606(a). In Tow nsend the Court noted

that in King it had invalidated this. Alabama | definition of

“parent” since its inconsistency with the Court’s interpreta-

tion of §406(a) meant Ahat eligible children were denied

did in violation of $462 (9) (10). Townsend, 404 U S. -at 286.*

The Court concluded that Kiig established the primacy of

. federal eligibility’ standards absent specific congressjonal

authority. Aor state departures therefrom. Ibid. ‘

This initial section of the Townsend decision ‘dns isos

no ‘reference whatsoever to the particulars of the eligibility

issue involved in that case. Indeed, Section II of the °

____ Townsend decisiow hegins as follows:

“It is next argued that i in the case ‘of the 18- 20- -year-old _

: needy dependent children, Congress authorized the

States to vary eligibility requirements from. federal

standards. dd Fave U.S. at/287. (Emphasis added. )

—

. It inchee, fox the first time, that the Court-eonsidered it t

____zeleXit to-ook to the Tegislative history, 404 U.S. at 287- 91,

* The . ‘The Court’ Ss ciiktacterization: of the King sholding quoted from.

a passage in that opinion (392 U. S. at 333) which -was relied on

’ by appellants ‘in Townsend in support of their argument that the

Act: iniposes federal eligibility staridards on the states. The So-

licitor General’s brief in that case (at p. 25) argued that that

passage “was taken out of context and misinterpreted” by : -the

Townsend..appellants. Surely the Government’s interpretation of

King, not ‘ven eee) in its brief i in baat case, has been repudiated.

In that section the decision in Ki ing v. Smith

was “analy zed. The Cou characterized King as involving —

the question of whether Alabama could; treat a man who

and it did 50 ily to detiiviains if, specific’ Congressional _

authorization for the departure from the general federal _

eligibility rule could be found so as to sanction state options. |

“This latter discussion was not undertaken in order—to

+ formulate the general. rule, howev er. King had —

done that for the Court.

The nature of the precise issue: ee ee in King iad ‘

confirms our position that the eligibility rule*set out ma

Tounsend did not‘depend on thé peculiar specificity of the”

| ‘provisions at issue in that case. Required for resolution in

King was the meaning of the word “parent. ” The Court i in

- King looked to the legislative history of the. Social. Security

Act in order to decide what Congress intended by use" ofe. ..

the word/“parent,” and concluded it ‘ineant only a merry x a

- with a. legal duty gt to support a needy child. Surely, the

word “parent” is ‘et so clear in its” Meaning to justify

the conclusion that>the federal standard is binding merely :

__-" -betause of the specificity of language used. “Parent,” after

all, may. or may not include “adoptive” parent, ee .

earie: ” or “man. assuming the role of a spouse,” even. -

assuming it does not. reasonably include within its terms. | .

“substitute” parents. “See, for example,. Lewis ‘v. Martin, —

- 897 U.S. 552 (1970).' | _

Thus, if the Govecument! S: position in : ihe instant .case

were correct, considering the lack of specificity.to the word 7

“parent,” all that the legislative history in King would

have ue was a rule of. law which prohibited federal

. For a listing of those states which at. the time of the Lewis

decision, and after King, were still assuming the availability of

_ inéome from a stepparent or a man assuming the role of spouse as

if they were in the same position as natural parents, see Brief |

- Amici Curiae of the Center on Social Welfare Policy and Law, ‘

et al., Lewis v. eek 4 0. T. 1969, No. 829, ee. :

- }

a > Ve

matching for paymnsiits to families with two adults residing

7 at home who have child support obligations (ice., the limits |

_ of federal matching), while. maintaining state: flexibility 19. :

restrict eligibility by defining’ “parent” more broadly than

_ permitted by the federal. criteria. Nothing ia kt e-tefislative

. history. reviewed by :the Court, after_al}, “indicated a Con-

- gressional command to aid adLebildren with absent ‘parents, ©

as so defined. See Stodqard v. Fisher, supra, 330 F. cs

; cat 570. a — 2 . , : as s

~ However, the, ieert ‘did not rule that $406: cierety de- |

limited the’ extent of the. availability of federal matching ©

_ funds, but instead mandated that all children eligible under

_ the fodersi criteria must be aided. Ibid. King thus compels:

-affirmance of the judgment in this case, since it applies the

‘federal.standard.in a ‘case. in which thgt 7 mi was not

= - “elaborated” upon in the ‘statute. It is eyfious, that in .

An articulating its position thet states hayé. broad options

“> to define’ eligibility unless Congress“ has spoken to the

contrary, the Government fails, as ‘we have noted, to even :

cite King v. Smith! .

Further - evidence wee degree of Congressional .

elaboration: on terms: used in: the definition of dependent

child is irrelevant to the function which must be ascribed

to that definition, may be. gleaned ‘from the expansion of

_ that definition. i in 1961. In that year, §407, 42 U. S: C. $607,

was added to the Act in order to include as a “dependent

child” any needy child who meets the requirements of §406

and “who has been deprived of parental support or care oy

reason of the unemployment (as defined by. the State)” of-

one of: his parents. Pub. L. 87- 31, $1, 75 Stat. 5S

. Th 1968 thie term was ae to include only children de-

prived of support or care by-.reason of the uneiaployment of their ~

father. a L. 90-248, —

2 ~ ae 2

2 3: = e

7 :

a“ 7 . Fy é . o =

vo While. it i is true that partigipation in‘ this aspect ‘of the

> _ AFDC. program is clearly optional, 42 U.S.C. §607(b), it

: ; ‘is noteworthy that the Congress felt it necéssary : specifi-.

. “cally indicate that the~@efinition ‘of the term .“unemploy-

é .° ment,” an obviously ambiguous term susceptible of many

no Possible interpretations,’ was to be left to the states. It did |

not rely on the Government’s theory of the Act ‘proposed _

| | - tts here, namely, that. all terms not marrowly defined. by Con- ~

- | ~ . gress are left to state discretion. Indeed, the legislative

, History of that addition to the Act confirms that this es .

"of state discretion was an: unusual one. ;

— ‘The Senate Report notes that: —s -

“The definition ‘of the term ‘unemployment? for. the

| purposes of qualification for assistance under the bill

‘ is left to the states, just as the definition of ‘need’ has —

always been.” S Rep. No. 65, 1961 U.S. e Gode Cong. 2.

‘and Admin. News, p 171. .

. «

“’ , Thus, sale diseretion to define the class of eligibles under

| §407, was gompared to’state latitude in defining need,

latitude specifically ograntéd the states in §401;* not to the

4 a discretion asserted in this gase to define “eontinued

| absence,” the parallel term to “unemployment” used to

quadify the lack of support er care in §406.

. Obviously, had Congr eRe" not included the term “as-defined.

| | \ . by the State” in §407, the natural consequence would have

| _ been a mandatory federal definition. When Congress ~

“wanted to depart from the general rule of federal a a

"7 See, e.g., Macias v. Finch, B24 F;> Supp. 1252 ay Calif.),

aff'd, 400 U.S. 913 (1970).

® King v. Smith, supra, 392 US. at 334 ; Dandriags v. - Williams, .

397 U. g 471, 478 (1970). .

SR ee ee ee * .

. . ww. «@ . °

. .

e. . ‘

| ats \

criteria i gutely | knew. how to-do so unambiguously, In*

fact, doin¥’so in 1961 with respect to “unempployaient,” was

described by a later Congress,.as a “major-characteristie’™ oa

of $407, responsible for “wide variations” in eligibility.

Comni. on Finance, S. Rép. No. 744,90th Cong., 1st Sess. ©

_ (1967), p. 160.° Surely, then, the extent of state options. to

define “dependent “child” suggested. by the Government

represents the unusual situation, applicable only where -. -

Congress has spoken specifically to the question.

While we do ‘not cancede that the term “eontinued

- absence” is in any way ambiguous, or subject to.contrary ae

‘ interpretations, see. poift II, infra; if-in the judgment of

the administering federal agency that is the case, its

| responsibility’js to clarify the Congressional will, see, e.g,

~ Zuber vy, Allen, 396 U.S. 168, 197 (1969), and not abdicate:

that responsibility by passing it along to the states. In-

deed, -HEW did. not find the Congressional command so

unclear as to prevent it from defining standards for detér- —

. Mining whether or not federal matching funds are ‘to be

_ Inade available on the basis of a “continued absence.”.See

45 C.F.R. §233,90(¢) (1) (iii). eee eee a |

Moreover,, the/Department often finds it essential to the

efficient administration of the AFDC program to. clarify-

—_ -

_® These. remarks were: made in connection with an amendment

to: §407 which now provides that the definition of “unemploy-

ment” is to be made by the Secretary of HEW. The Cangress felt.

-that the variatiotis “w8rked-to the detriment of the -program.”.

a :

Tbrd. P "F - .,° @ J - -

. 0 Indeed, the plain meaning of “continued absence” is so appar-

ent, that one can speak.of a Congressional failure to “elaborate” |

only by first nccepyng the possibility that states may restrict the

scope of the.term.“The particularization of acceptable reasons for

‘ ‘a continued absence might well have called forth, under the. doc- —

' trine of ejusdem generis, a judicial interpretation of the term that

- foreclosed its plain ‘meaning, to wit, any and all continued absences.

_.e

» ‘eaael

fe 8 A

. Congressional terms iit ican those used in §406. ‘Thus, |

to cite pnly two examples, HEW has defined “earned in-

. come”. as ‘used | in 42 U.S.C. §602(a) (8) as gross rather re

_. than net, see 45 CFR. §2aB. 20(a) (7) (i), -(a) (3) (iv) (a), -

a! and “reasoriable promptness” as used in 42 U.S.C. §602(a)°

+ (10) as thirty days,-sée 45 C/F.R. 206.10(a) (3). . None of ;.

these terms had self-ev ident meanings, but HEW exercised

its responsibility, specifically. delegated to it under 42 U.S. 6, 3.

§1302} to. determine the meanings attributed to. those / §

_phrases by ‘the Congress. . It has no less a. responsibility, | °

where it. believes guidelines are necessary, to clarify. the

" standards which | must bé followed in ene eligibility :

“under $406. . Pe Bias . F

Finally, we mit respond to the spectre of “sweeping . |

changes”--to the! agency’s. administration of the. prografn’

“ poor Se Solicitor General. The Government correctly

‘ points out that the equivalent: to §402(a) (10). appears in

each: title of the Socal Security Act, and each title follows

See Conntanion: State Dept. of- Public Welfare ¥. HEW, 448

F.2d 209 (2d Cir. 1971) and. Arizona’ State Dept. of Public 'Wel-:

fare v. HEW, supa, in which HEW’s s interpretation was upheld. ?

—* 12 Se Rodrighez v. Swank; ais FR: Supp. 289 (N.D. Tl. 1970),°

aff'd, 403 U.S. 901 (1971), i in which this.i interpretation was upheld.

13 Section 1302 provides that the Secretary of “Health, Edtica- .

tion and Welfare “shall make and publish such rules and: regula-.

tions; not inconsistent with this [Aet], as may be necessary to

the efficient administration @f_ the functions with which he], is.

charged under [the ee. .

This delegation is a broad dite. See a v. Durham Honsing ;

Authority, 393 US. 268. (1969). es

_ Tt is no axéwer that these statutory terms defined by HEW |

~in mandatory terms appear in §402 rather than §406. The Govern-

nent’s argument in Townsend that the only man@atory require-.

ents of the Act appear in §402, was obviously. rejected by the

_ ! Court, except insofar as §402(a){10) - is read, to make the pequire- Aa

> ments of — Sanmeey: ’

‘ r P .

the same oN as in: Title IV;* and thus the .

Townsend ‘decision may ‘have .a “significant impact on the .

degree of flexibility HE W allows to the states in implement-

ing [the] definitional provisions of the Act.” Memorandum

-of the United States, dated March 1972, p. 9. The: extent -of

any § such impact, however, must be determined on a case-by-

~ ease basis, and this Court should not conclude that an

affirmance of the decision below will decide. such questions.

Thus,. if the legislative history “should” indivate, for.

example, that Congress expected that definitions’ of “blind”

‘would be made by state’ governments, many of which \;

. probably already had such legal definitions in 1935, then

_ Townsend would not compel a federal definition. On the

other hand, if it should develop that Congress was silent

‘ with respect to’ the flexibility. to be given the states under

any particular provision, or Congressional intent cannot be

discerned from the circumstances of the adoption of the

particular provision, then- the federal standard must govern,

as,it did in King and Townsend:*, Any substantial

departure from «present adniinistrative practice would

merely be a consequence of the rejection by this Court in

Townsend of the federal agency’s failure to implement

Congressional will. The battle to transform the Social

Security Act a a ‘grant-in-aid program into a revenue

18 Title I (OAA), Title IV (AFDC) and Title X (AB). were.

' part of the original enactment in 1935. Title XIV (APTD) was

added in 1950 at the same time as §402 (a) ™ and its’ parallel

provisions. -

‘16 Ror example, the ‘APTD’ program was added to the 3 at

_the same time as the addition of the disability segrgent te the. Title

*II Social Security program was first considered. The phrase .

“permanently and totally disabled” was extensively discussed in:

connection therewith, and it. would require an analysis of that

History to determine. the extent of state options in that situation. .

mt)

9 ie ee - eS

sharing measure has already been ‘lost by HEW. State —

control over the ultimate costé of the public assistance |

program must. be exercised in relation to. the level of - °~

| ~ benefits provided to eligible individuals, a ‘matter totally.

within state domain, e.g., Rosado v. Wyman, supra; Dan- ...

dridge v. Williams, supra,. not by excluding a- class of A

eligible individuals from the : program, e. OB» King g; 392 US » Ae

at 334; Townsend, 404 U. S. at 291- 92. . . + %

. ant : — .

Uninterrupted military, absences are continued. ab-

sences ‘within the —- of Section 406.

heat frosa the questign of whether states may auto.

_ matically exclude anery absences from the scope of

“continued absenge”’ as a basis for AFDC eligibility, it is .

"dear that H has construed the Congressional’ use of

that term as encompassing such absences within its: terms. —

. Thus its regulation defining the seope of av ailable federal

matching defines “continued absence” as being an absence .

of either parent from the child’s home as long as that

- absence interrupts ar terminates the “parent’s functioning

‘as a provider .of maintenance, physical care, or guidance

_for the child” and its “known or indefinite duration

‘precludes counting on the parent’s performance of his

function in planning for the present support or care of.the

child.” 45 C.F.R. §233.90(¢) (1) (iii). Thé federal definition

clearly states that for purposes of AFDC eligibility the .

parent may be absent “for any reason and he may have- =f /

left. only recently or some time previously.” Ibid. (Em- . ;

phasis added.) = . . |

gj @-

18 ee

hig federal dinaticed has ‘been used by the Department —

since the first years of, the federal program, see Handbook

of Public Assistance Admimstration, Pt.-IV, §3422.2," and

has specifically included military service as.an example éf

:) “continued absence” within the terms of that definition.

. | Ibid. The record -in this case shows that 22 states aid.

* families of all servicemen if otherwise eligible, while two

states aid only draftees, and two others aid draftees and

enlistees who did so to avoid the draft. Appendix, pp.

78-79."8 We believe that an examination of the words of the

‘statute, its legislative history, and the nature of the

problem posed for needy families by military service, all

demonstrate that HEW has correctly defined the proper

scope. to be afforded the term “continued absence.”

As this Court noted on the same day as it decided Town, |

Yend, the judicial construction of a statute properly begins

“by looking to the text itself.” United States v. Bass, 404

‘US. 336, 339 (1971). Section 406 defines “dependent child” -

as a needy, age-qfalified child “who has been deprived of -

parental support or care by reason of the death, continued -

absence from the home, or phy sical or mental incapacity.

. pf a parent....” (emphasis added). 42 U.S.C. §606(a). A

fair reading of that pr6vision wotld lead to the assumption

that Congress intended that whenever a needy child loses

the in-home care of one of his parents for a period of time

17 This ‘provision: of the HEW Handbook has been quoted in full

.in appellants’ brief at»pp. A2-A3.. This definition of “continued

absence” has’ been uséd by the federal governmént for matching

. purposes since at least 1946 (the date appearing on our looseleaf

_ Version of the regulation), and perhaps earlier.

18 Five states did not respond to the survey upon _— this jab 7

lation was based. |

not expected to be interrupted by the parent's. return to

~ ‘the home, he js qualified. for AFDC.” 20) =

Appellants believe: that. Congress used the thian “con-

tinued absence” to mean a “substantial intra- familial dis-

association” (Br. 17). Their regulation reflects this by

‘requiring that apart from a parent’s physical absence from

the home, “a substantial séverance of maritaand family

* ties” must be found before a chilg qualifies for AFDC. -

- KAS: 42-350:1., The situations appellants descrihe may be

generally characterized as divorce, separation, abandon- |

ment or desertion. In dur view, if this is what—Congress

meant by “continued absence,” these commonly used words

were readily available to express its purpose. What ap-

_ pellants seek to read into* $406 “is not so complicated nor is.

English speech so poor that words Were not easily available

to express the idea or at least to suggest it.” Addison v.

_ Holly Hill, 322 U.S. 607, 618 (1944). Indeed, Congress has

_ frequently. legislated in AFDC with the problem of.- the

severance of family ties jn mind, and in so doing it uses -

- the common expressions for such situations. See, e:g., 42

U.S.C. §602(a) (17) (referring to AFDC thildren-who have

“been. deserted. or abandoned by, [a] parent”).

_The circumstances under which ‘Congre s adopted the

AFDC program in 1935 confirm the.broad Scope of “con-

. tinued absence from the. home” which is indicated by the

* plain meaning of its terms. Although the Solicitor General

disclaims knowledge of anv. legislative history which bears.

‘ upon the scope to be given to that term (Br: 7), we believe

” “Continued” means “lasting or extending without interrup-

tion.” Webster’s. Seventh New Collegiate Dictionary (1969), p

181. “Absence” is the state of being “atsent” or “not present. a

“attending.” Id. at 3. Thus, “continued absence from the home”

means not polis present in the home withext interruption.

that ita meaning can be readily. discerned from an examina:

tion of the eet §406 in the original Social pial . | V7

_ Act. -_ ie ok | :

“* The see Administration proposal f sor AFDC defined |

“dependent child” to mean

“childien -under the age of sixteen in their own homes,

in which there is no adult person, other than-one needed:

- to care for the child or children, who is able to work

and provide the family. with a reasonable subsistence |

compatible with decency. and health.”

H.R. 4120, 74th Cong, Ist Sess. (1935), $203 6 ot the pro-

posed “Economic Security ‘Act.” The target of the Presi- -

dent’s: program was thus simply stated to be neefly | families

in homes with only one parent physically present. No.

eligibility requirement was proposed as to particular rea-

sons which would have to be established for-the presence -

of only.a single parent in the home. This made sense in °

light of the philosophy behind the proposal, namelythat——————_

~~ the*remaining parent must be freed from the wage-earning a

role (which would otherwise have been. necessary in light-” s 84

of the family’s | below subsistence income) in order to

provide the “physical and affectionate guardianship nec-:

essary, not alone to keep [the children] from falling

into social misfortune, but more affirmatively to rear them

into citizens capable of contribution to society.” Report of

the Committee on Econemic Security (1935), p. 36. That

"Philasophy is inconsistent with a limitation’ of the program |

to cases .in- which the parent is absent’ because of marital

-3trife. | . | gp Se

The House Committee on Ways and Means reported to

the House’ a substantially modified version of the Presi- :

2»

‘ “ ,

. dent’s program. In the House bill (H.R. 7620),.“depéndent

. child” was defined to mean any * 753 3° _

“child under the age of sixtéen. whovis living with his

father, nfother, grandfather, grandmother, brother,

‘sister; stepfather, stepmother, stepbrother, stepsister,

uncle or aunt ina residence maintained by one or more

of such relatives as his or their own home.” (Emphasis

a added.) Section 406 of proposed “Social Security Act.”

Under .the House bill, then, in order to qualify for aid the

needy child had fo be living with.a near relative, but.strik- °

ingly more. liberal than the Administration’s original pro-

-» posal, was the inclusion of néedy children in homes in which

~. both parents were present. Such a bill, which, passed the .

-House, would have. in effect been.a: general relief program * .

for all needy families with children under 16 years of age —

_ ‘had it been enacted.” =. ao . —

_ -._The-proposedAct was again modified when it reached

the Senate floor.’ The Finance Committee amended: §406 to

limit. the definition of “dependent child” to include. needy

children-under 16 living with a near-relative only when: the

'. child “has been deprived of parental support or care by.

reason of the death, continued absence from the honie or

physical or mental-incapacity of a parent.” Under the Com- |

_*° Despite the inclusion of intact families in’ H.R. ‘7620, the

Committee Report indicates that a major concern of the House

was the “families lacking a father’s support. ... Nearly ten per-

, ‘cent of all.families on relief are without a potential breadwinner

- other than a mother whose time might best be devoted to thé care

_ Of her young children.” H. Rep. 615, 74th Cong., Ist Sess. (1935),

' p.10. The Committee specifically noted that there were over 350,000

families on relief the head of which was a “widowed, separated,

or divorced mother and whose other members were children under

16.” Ibid. Nonetheless, the Committee, and the House, did not

limit the proposed program to such families. ,

- mittee’ proposal, which was accepted by the Senate and -

enacted into law, Pub. L. 74-271, 74th Cong.; 1st Séss. :

(1935), §406,; families in which both ‘parents were healthy,

_ and resided at home with the child?en, were rendered in- .

Roe eligible. The: choice of the expression “continued absence ;

’ from the home” was not accidental.

The Finance Comniittee described the ee an of

‘its proposal as’ “the children in families which have-been

deprived of a father’s support and'in which there is ne~

other adult than one who is needed forthe care of the

children.” S. Rep. No.:628;\74th Cong., Ist Sess. (1935),

~~ p. 17." These were the childrén who could “not be benefited

through ‘work programs or the revival of industry.” bid.

See King v. Smith, supra, 392 U.S. at 328. The Committee :

specifically noted. that these families were “principally,”

but not exclusively; “families with female heads who are

widowed, divorced, -or deserted.” S. Rep. ‘No. 628, p: 17. *

* That the Senate was concerned with a far greater prob-

lem than marital dissolution is evident from the explanation

for the confining amendment to the House bill offered by

. the Finance Committee ;,

« ‘Dependent child’ . > by committge amendment, is

further confined to oul those . . . children who have. .

been deprived ‘of either parental support or parental

care because ‘a parent of the children has died, or is

continuously away from the home, or is. unable, due to

physical or mental incapacity, to provide such support

21 This language is wemaeeably: similar to the: statutory language

proposed by the Administration in H.R. 4120, which,-as we have

shown, did not restrict the circumstances under which AFPC

would 'be available except to require that there he “no adult person

in the. home other than one needed, 40 care for the child.”

* 98

or care. Thus, if a baby’s father were an imbecile, un-

able even to care for the baby at home, the baby would"

be a ‘dependent child’ even though it had a mother who |

had a job, for the baby would be’ without. normal pa- -

_ rental care.” (Emphasis added.) ‘S. Rep. No. 628, p. 36. _ ¢

This history indicates the following: first, that while rec-

-ognizing that a large group of beneficiaries were lacking a,

father’s support. because of divorce or ‘desertion, the com-

mittee targeted for assistance those children with a parent

- who was “continuously away from home,” without limita-

", tion; second, and perhaps ‘explaining this broad scope of »

coverage, the addition of the words “deprived arental

.. , care” was obviously important to the legislative pur-

- pose, and indicated Congress Was concerned not only with —

the financial needs of the nation’s children, but also their

physical and emotional care.”*’ This latter: concern echoes

the original proposal by the Administration and the recom? ~

mendation of the Comn\ttee on Economic Security set out

above, and focuses upon the fact that some needy children

were deprived of parental care, not the underlying reasén ~

for such deprivation. . |

The bill as enacted, then, in. rejecting the general ,relief

approach of*the House, nonetheless focused on a broad class

of needy children, those deprived of “normal parental care” —

because one parent was either dead,-incapacitated or not:

physically present in the home. There is no support in any

22 Thus, the Committee believed a child eligite ‘hecause he was

“without normal ‘parental care” when the father was in the home :

but incapacitated, even though the mother was employed. Surely

the scope of “continued absence” must be read consistently with _

‘this view of the ‘statutory purpose+i.e. all children ‘deprived of —

“normal parental care” (because only one healthy parent lives at

home) are eligibles .

of this legislative history, as conceded by the. Solicitor Gen-

eral (Br. 7), for HEW’s view that states were intended to

be given broad. latitude ip/ defining the scope. of parental

absences which would qualify: needy families for. AFDC.

- Under Townsend, then, the federal standard must govern.

This history does support, however, the HEW regulation

which éonsiders parental absence for any.reason to be ac-

ceptable, as long as such absence interrupts the “parent’s

functioning as a provider of maintenance, physical care, or

guidance for the child,” 45 C.F.R. 233.90(c) (1) (iii), and it

confirms that children deprived of that support and care -

because of a father’s military service are so included.

The typical problems , faced by families in which the

- father is serving his country in the Armed Forces demon-

strate why it would not make sense to judicially limit the .

broad scope which the ‘plain. meaning of “continued ab-

sence” would seem to require.- These problems coincide -

with the very problem the 1935 Congress sought to remedy.

Thus, whether or not a particular father is drafted or

enlists ( perhaps in recegnition that, fe draft will inevitably

all), = the fact is that such servit

absence obviously deprives the “military, orphan” of his

23 In fact, two states (Iowa and Vermont) limit AFDC in cases °

of military ‘absences to families of draftees and enlistees who have

enlisted to avoid the draft. Appendix, p. 79.

23 Department. of Army Regulation, AR 614-30.

3 Such. dislocation would inv ve, for example, taking children

Ot of their usual school and separating them from their friends.

o ‘ ere ~ a

Nastia?

“\

precludes him from.

remaining ‘at \heme. Indeed, under applicable federal reg-.

ulations, there are many duty stations at which a service-

man’s family may not be with him* even if it'chooses. to

dislocate and move nearby to his: base.”® This enforced.

core

Boe,

father’s care, affection and "guidance no less than if his’

father had deserted or separated from:his mother, and thus .

he is deprived of “normal parental care” in- the werds of

_the Senate Finance Committee in 1935.°* - . aa

/ The situation of the serviceman’s family should be com- |

. pared to the family of A gGonvicted felon in. California. ;

_ *° The’ Exeeutive Branch. recognizes the dislocation which can .

result to a family because of the removal of the father from the

home and thus the President; as authorized by Congress in 50

U.S.C. App. §456(b), has providéd for a defgrment from military.

_ Service for young men whose ‘induction would result in “extremé

hardship” to certain .of ‘their relatives who are dependent upon .

them for sujtport. 32 C.F.R. §1622.30 (the so-called III-A defer-.

ment). In the consideration of such. a dependency claim, any al- .

. lowances which are payable by the United States to the dependents

of such persons are to be taken into consideration, but the fact

that they are payable is not: by itself sufficient to remove the

grounds for deferment even when the dependency is based upon —

financial considerations. Moreover, and more important to this case,

where the claim. of hardship is based.upon other than financial con-

financial assistance to the: dependents, 32 C.F.R. §1622.30; 50

S. - Indeed, until quite recently, one could be

eligible for a hardship deferment merely by establishing that he

ship in his home with his child or children. -32 C.F.R. §1622.30(c).

‘Hence the Government clearly acknowledgés that the deprivation .

of care in and.of itself can present a hardship to the family of a

serviceman. It must be emphasized, however; that under selective:

_ Service regulations a father must establish. “extreme hardship” in.

: order to become eligible for a III-A deferment, a burden which ‘is

fi. . difficult to establish. See, e.g., United States ex rel, Wilkinson v.

Commanding Officer, 286 F. Supp. 290 (S.D:N.LY., 1968).

Thus, in’ cases such as appellees’, where deprivation of support:

and care is clearly substantial, but not “extreme,”\the child or

children nywst suffer that deprivation. However, it is } nlikely that.

Congress in providing for. deferment. from conipulsory military a

Service in cases of aeBreme” hardship, would approve of—an—in-

terpretation of ery dagen is so restrictive as to. deny subsistence

benefits in cases of Jéss severe, but substantial, deprivations.- ;

: Under the California definition, a parent is considered ¢on-.

t®udlly absent.when “not legally able to refurn to the home

because of confinement in penal or correctional in institution.”

EAS 42-350.22. Obv iously appellants themselves: recognize

that marital discerd is irrelevant in determining whether or |

not there.is a deprivation of parental care.by virtue of the

2 parent’s 3 absence from.the home. The latk of .e behind

the exclusion of military alsences is not explaine refer-

ence to the prisoner’s legal inability to return, for the

serviceman suffers from. the- identical . disability. 1, The .

, absurdity of the exelusion i is demonstrated by the fact that

ifa father receives a draft notice but refuses to submit to

induction, thereby subjecting himself to a possible prison —

' sentence, 50 U. S. C. App. §462, le family would ee

for AFDC.

.In addition ‘to the deprivation of normal parental care

imposed on children by their father’s military service such -.

service usually results in a deprivation of support as well,

_ sinee , woeftilly ‘inadequate pay levels for enlisted ‘meff ;

_ generally. result in a lowering of the’ family’ s available ”

.* income. - Indeed, Congressional: committees, and the ‘Pres-

‘oe:

"27 The- penalties for being -absent. without ° —. or for deser-

tion are serious. 10 U.SXC. §§885, 886.

8 The basic pay level for enlisted men who have: peed less '

‘ ' than four months (t.e., new recruits) is $134.40 per month ‘(little

more than $1600 per year). Exécutive Order‘ No. 11577, 36 Fed:

_ Reg. 349 (January: 8, 1971). For'men (at the lowest rank) serving

greater than four months but less than two- years, the basic pay

Ibid. Under authority ‘granged by Congress, 37 U.S.C. §701(d), the

oa,

* a

Secretary of the Army has authorized servicemen to “allot” from

their pay for the support of their “dependents” a certain monthiy:.,

sum which’ is then mailed directly to them’ ‘That amount: is com;

_ puted as follows: (1) a basic “quarters” allowance of $105 per

month, regardless of the number of deptndents, available only if °

JF .

ident, have cited the necessity of servicemen’s families

' Seeking welfare ia order to gain support for increases in -

military pay.” Congress could hardly be assumed to’have '

excluded military absences per se from the term “continued ~

absence,” given the fact- that military service is so. often’ *

responsible for creating financial need.

_ The family faced with such a substantial decreas@%\n its

standard of living jis in precisely the same situation as the

needy’ family in which the. parents are divorced or. sep-|

ted.® ‘The mother must choose.to deny her children the

. parental care they require ‘in order to supplement their

available, but substandard, income by. ‘wmployment, or

* jhe serviceman makes’ an allotment’ of this allowance plus. $40 per’

month, Plus (2) the $40 per month (or any greater amount elected

by the serviceman). See 50 U.S.C. App. §§2203, ‘2204 (The ‘De-

,pendents’ Assistance: Act ‘of 1950, as ‘anrended by Pub. L.”.92-129,

§206, 85 Stat. 359). Thus, assuming an election to deduct $40 per

month from his.pay, the family of the serviceman will receive $145

per 0 endnote of its size. (This may be compared to the -

ft)

need in California for a family of four of

. $321 per. month.) It: is important to recognize that if ‘the service-

** See, for example, Sen. Armed Services Comm., Report on H.R. —

6531, S. Rep. No. 92-93, 1971, U.S. Code Cong. & Admin. News,

2129, 2180 [Supplemental V iews. of Messrs. Symington, Schweiker,

and Hughes]; Message of the President, ‘H. Doc. No. 91-324, 116

Cong. Ree. 12824, 12825 (1970). °, uF

. 81 Whil~the current, AFDC program permits states. to require

(when certain preconditions are met) mothers to accept suitable

. employment, it does so only when child care arrangements ¢an be

foundgwhich are adequate for the needs of the particylar child.

See a3 U.S.C... §§602 a) (15) (B), (19); 630 et $eq.; 45 C.F.R.

. ~~ B ' \

—— = _

. | 28

remain at home and provide the needed care at severe

financial loss.* ‘Ag in the case of the ‘substitute father’;

owing the child no legal duty to suppo}t, the work relief

program designed as the alternative to cash assistance

could have been of no benefit to a family where the father ° @o

is not present in the. homie, and unable to benefit therefrom. ~

See King v. Smith, supra, 392 U.S. at 328; Stoddard v.

Fisher, supra, 330 F. Supp, at 571 and n. ge ‘

In sum, the net result of California’s interpretation of _

“continued absence,” which purports to focus on marital

7 ‘

§220.35 (a) (2) (v). Substantial. federal funds have been: made ~

available since 1962 to facilitate the provision of such day care’ &

services, see, ¢.g., 42 U.S.C. §§603(a) (3) (A) ; 622(a) (1) (C) ; 625,

but it is well recognized that sufficient facilities are woefully lack- Gann

ing. See, e.g., Comm. on Ways and Means, Report on H.R. 1, H.

Rep. No. 92-231. 92nd Cong., 1st Sess. (1971), p. 166. Moreover,.

effective July -1972, mothers wjth children under six are. erempt

from this requirement, and states will be required to give first

priogity in placement of mothers in jobs to mothers who volunteer. .

3 U.S.C. §§602(a) (19) (A), 633 (a), as amended by P.L. 92-228,

- 82 Congress has attempted to,relieve at least some of the financial

dislocations caused by military service by its enactment of the

‘Soldiers and Sailors Relief Act, 50 U.S.C. App: §501 et seq., which

- provides for the suspension-of the enforcement of civil liabilities in

certain cases of persons who are in military service, in order to

enable them. to devote their entire energies to-the defense of the

nation. For example, one provision of this Act prohibits any evic-

tion from premises which have an agreed rent of no more than $150

and which are occupied chiefly for dwelling purposes by the family

of a serviceman while he is serving in the military. 50 U.S.C. App.

§530. While this Act provides help to servicemen and their families

in at least some instances, most of its provisions serve only to delay —

enforcement of civil liabilities until the serviceman’s return home

and soggt best provide only temporary relief from'the financial dis-

- locations caused by thilitary service. -

_ _ ** Indeed, while iti service the fathers have no ability to bargain

for adequate pay, obtain a second job; or look for a better one. Ap-

pellants’ reliance on Macias v. Finch, supra, is thus misplaced. fe

_. addition, apart from the edonomic possibilities open to the “father

in the house,” his children .are not deprived of his “parental care”

as in the.case of serVvicemen’s families.

. 7 . %

99> ee

‘a

discord, rather than the financial ‘and emotional heeds of.

the children, is to separate needy children into two classes,

distinguishable only with respect to the underlying reason

for the parent’s absence from the home. Congress, in es-

tablishizig a program designed: to ‘provide “economic se- —

curity and protection of all children ‘deprived of parental

support or care,”** King, 309.U.S. at 330,.could hardly have

intended “arbitrarily to leg¥e one class of destitute children

-entirely without meaningful protection. ” Ibid.®* Indeed,

basing a classification on the parents, rather than the depri-

- ‘vation of the child, might well violate the ‘equal protection

clause, e.g., Smith v. King, 277 F: Supp. 31 (MD. Ala: |

1967), ‘and such a construction of the federal statute ought >

- to be avoided. Townsend v. Swank, 404.U.S. at 291. ;

We do not mean to suggest that military service per sev

~ should qualify families for AFDC. In some cases the serv- .

ice may be of very short duration (e .g., summer National

Guard duty), or the family may be able to easily, without

severe dislocation, live-at .the place of service with the.

father (e.g., assignment to a base reasonably close to. home

= and schools). The question of “continued absence” vel non,

however, like all other eligibility questions under the fed-

eral statute, must be decided on a, .case-by-case basis, taking

into consideration all facts which bear upon satisfaction of ~~

ae -

** As this Court noted in King g, Alabama’s focus on the morality

of the parents. rather than the needs of the child wa inconsistent

‘with the Act since “protectian of eet) chaldren is the

paramount goal of AFDC.” 3809 U.S. at 325.. .

=f California is particularly. aggrieved by the problem of .

servicemen’s families moving to the nearest point of embarcation,

the remedy is not to distort the‘entire pgblic assistance program

by carving out an exception to the broad mandate of “continued

absence,” but rather a. legislative: one. Congress has legislated in

‘the past to relieve communities suffering’ financial stress because

of the presence of federal “enclaves,” 20 U.8. C. §236 et seg., and .-

alifornia may seek relief from that body, -where its influence is

‘substantial. — a

_°

-_ SY” | a

the federal criteria. Irrebuttable presumptions, such as the

one California uses in defining active duty in the armed -

forces as a “temporary.” absence, HAS 42-350.11,°°

- merely “transparent fictions,” King, 392 U.S. at 334, Which

facilitate the state’ s avoidance of its responsibility to con-

sider each case on its merits under the federal standards.”

CONCLUSION

- The Court should affirm the judgment below and hold

that the federal standard of “continued absence’”’ is

mandatory upon states participating in the AFDC pro- i

‘ gram, and that such standard inchides ‘ “military ab-

sences” within its “~ _——" ff fe

. . - "Respectfully submitted, | 6G

Sreven J, Cots

Nancy Durr Levy

Henry A. FREEDMAN .

401 West 117th Street

| New York, New York 10027

ry SO Jon C. Kinney

a 7 1424 16th Street, N.W.° .

Washington, D.C. 20036

Cuester C. SHORE Ss ——

1333 Connecticut Avg., N.W.

oo | Washington, D. C. 0036 °

Dated: April: 5 5, 1972 “~.

' New York, New York

+ @

8¢ Curiously, imprisonmefit, usually for a‘ fixed ‘period, is not

considered “temporary.”’ In any case, the statute says “continued”

absence, not “permanent.” Cf: 42 U. S.C. §1351 et seg. (APTD).

37 Cf. Damico v. California, supra; Doe v. Schmidt, supra.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.