Anderson v. Green

PETITIONER:Anderson, Director, California Department Of Social Services, et al.
RESPONDENT:Green et al.
LOCATION:U.S. District Court for the District of New Mexico

DOCKET NO.: 94-197
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 513 US 557 (1995)
ARGUED: Jan 17, 1995
DECIDED: Feb 22, 1995

ADVOCATES:
Kathleen M. Sullivan – on behalf of the Respondents
Theodore Garelis – on behalf of the Petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – January 17, 1995 in Anderson v. Green

William H. Rehnquist:

We’ll hear argument now in Number 94-197, Eloise Anderson v. DeShawn Green, et al.–

Mr. Garelis.

Is that the correct pronunciation of your name?

Theodore Garelis:

Garelis, Your Honor.

William H. Rehnquist:

Garelis.

Mr. Garelis.

Theodore Garelis:

Thank you.

Mr. Chief Justice and may it please the Court:

California is seeking review of the summary affirmance by the Ninth Circuit of an order granting a preliminary injunction.

That order was made by the district court in this matter.

California asks this Court to reverse the judgment of the Ninth Circuit and remand this case with instructions that the preliminary injunction be dissolved.

David H. Souter:

Would that make any difference?

Theodore Garelis:

Yes, it would.

David H. Souter:

What would you do if the injunction were dissolved?

Would you enforce the statute by restricting the benefits at the Oklahoma level?

Theodore Garelis:

At the moment, Your Honor, we could not do so.

As noted in our brief, California is restricted from implementing the statute until a Federal waiver, which was invalidated by the Ninth Circuit in a related Ninth Circuit case, is restored.

William H. Rehnquist:

Why is that, Mr. Garelis?

Theodore Garelis:

Because State law, the statute here in question, absolutely requires, by its own terms, that California have that waiver.

William H. Rehnquist:

Well, I realize it says it has to have the waiver.

I’m looking on page 3 of your brief–

Theodore Garelis:

Yes.

William H. Rehnquist:

–which sets forth… it says, this section shall not become operative until the date of approval by the United States Secretary of HHS.

I take it at one time the Secretary did approve–

Theodore Garelis:

Yes, Your Honor, the Secretary–

William H. Rehnquist:

–and so the thing became operative then.

Theodore Garelis:

–Yes, it did.

William H. Rehnquist:

Well, the statute doesn’t say anything about becoming nonoperative if the approval is revoked, does it?

Theodore Garelis:

Well, the… no, it does not, that is true, but we hav always–

William H. Rehnquist:

Has it been construed by the California courts on that point?

Theodore Garelis:

–No, I do not believe it has, but we’ve always taken that position.

Ruth Bader Ginsburg:

Isn’t Federal law relevant, too?

I mean, you couldn’t put… could you put this law into effect without the Federal approval, as a matter of Federal law?

Theodore Garelis:

As a matter of Federal law, yes, we could.

Antonin Scalia:

You’d just lose a lot of Federal money.

Theodore Garelis:

If the operative actions were taken by the Secretary of Health & Human Services to restrict our funding on California’s Medi-Cal program, yes, that’s–

Ruth Bader Ginsburg:

Would California put a law, this law into effect without the matching Federal dollars?

Theodore Garelis:

–Yes, it could.

Ruth Bader Ginsburg:

It could, theoretically?

Theodore Garelis:

It could theoretically, but it would run the risk of losing a good deal of Federal matching funds.

Anthony M. Kennedy:

But your submission to us is that you would not implement it without the waiver?

Theodore Garelis:

No, we would not… we have always interpreted this section as a mandate by the California legislature that we would not implement this particular statute without the waiver.

Anthony M. Kennedy:

Have you applied for the, or reapplied for the waiver?

Theodore Garelis:

Yes, we have.

I believe it was on August 25th my client submitted an augmented waiver request to the Secretary of Health & Human Services.

Anthony M. Kennedy:

Is there some indication that the Department has denied waivers submitted from other States that contain this provision?

Theodore Garelis:

I believe the Secretary has done that recently, yes, Your Honor.

Ruth Bader Ginsburg:

If the cases had come up in a different order… suppose you had been… the Beno case had come up first, so you… the Federal permission was not there, and then these plaintiffs, the Green plaintiffs, had begun this lawsuit, wouldn’t you be taking the position that their lawsuit was premature because you in effect had no law in effect?

Theodore Garelis:

Yes, we would.

Ruth Bader Ginsburg:

So isn’t that really where we are now, that this suit has in effect not become moot, but become not ripe?

Theodore Garelis:

No, I don’t believe so, Your Honor, because the case… the questions here are persistent.

The case in… the questions of constitutional validity of our statute are certainly–

Ruth Bader Ginsburg:

But if you say that you don’t have any law in force at the moment other than the old law under which the newcomer gets the full benefits, then you’re asking us to decide a hypothetical case about a law that is not yet in being.

Theodore Garelis:

–Well, the law was… the approval of the waiver was obtained.

The statute did come into effect.

The statute was then… the district court by means of the preliminary injunction refused to allow us to implement the statute, then the next year… and that was all in 1993, in 199… in late ’92, excuse me, and then in early ’94, earlier this year, while we were still in the process of appealing the preliminary injunction to the Ninth Circuit, the Ninth Circuit in the Beno case did, indeed, take away the waiver.

It invalidated the Federal waiver, and what that did was under State law made it so that, once the constitutionality of this statute is settled in the… California’s favor, then we… until we get the waiver back, we could not enforce the statute.

Ruth Bader Ginsburg:

And in effect you have no law of the kind that the plaintiff is challenging.

The law in force in California now is the law that you pay full benefits.

Theodore Garelis:

Well, we did have the approval, and as soon as we get the waiver back we would be able to implement it, but it is true at the moment we would–

Ruth Bader Ginsburg:

And is there any reasonable basis to predict that you’ll get it back when the Federal Government has turned down such applications by other States with the identical law?

Theodore Garelis:

–Well, perhaps one of the reasons why the Secretary has turned down such waivers is because of lack of guidance from this Court that our statute should, indeed, survive a constitutional challenge.

Ruth Bader Ginsburg:

But we don’t sit to give advice to the Secretary or anyone else.

We sit to decide cases involving law that is in force–

Theodore Garelis:

Well–

Ruth Bader Ginsburg:

–and now the law that you’re trying to defend is not yet law in being.

Theodore Garelis:

–Well, the Ninth Circuit invalidation was on procedural grounds.

It was on a preliminary injunction.

It was all very preliminary, so it certainly has not been adjudicated on the merits.

Antonin Scalia:

The invalidation of the waiver, you’re talking about.

Theodore Garelis:

Yes, that is true.

David H. Souter:

If you get your approval back, there’s no risk of there being an evasion of review on the analogy with the mootness flaw, is there?

Theodore Garelis:

No, but this is… what we’re arguing is that this is a continuing question.

David H. Souter:

Well, it may be a continuing question, but right… but it is not a continuous question right at the moment.

It seemingly is not a practical one, and if it does become a real one again, it can be reviewed then, can it not?

There’s no risk of evasion of review.

Theodore Garelis:

Well, no, but I believe it would be wise policy to have this question settled.

Many States are currently trying to enforce such statutes.

Many States are very interested in implementing such statutes.

The question of the constitutionality will be there.

It is in front of this Court at this time.

We will all have to come back and revisit this again.

The Court has granted certiorari.

If we get the waiver back, and the Court does not address it at this time, we will be back here.

I’m sure that plaintiffs will challenge the statute again on exactly the same grounds.

Anthony M. Kennedy:

Well, if I could ask one more question about the administrative process–

Theodore Garelis:

Yes.

Anthony M. Kennedy:

–Is there an indication in the administrative record that the reason the agency has denied the waiver is because of its interpretation of the constitutional minimum standards that it has required, or is it also plausible to surmise, or to interpret the agency’s action as being simply the agency’s determination that this is somehow inequitable as a matter of welfare policy?

Theodore Garelis:

I really cannot answer that question.

I don’t know why the… what grounds the Secretary used–

Anthony M. Kennedy:

Not clear from the record.

Theodore Garelis:

–The waiver we have was approved, and it was invalidated by the Ninth Circuit, so–

Antonin Scalia:

Mr. Garelis, are you still litigating the invalidation of the earlier waiver?

Is that still in litigation?

Theodore Garelis:

–The invalidation of the previous waiver was accomplished by the Ninth Circuit.

We did not petition for a writ of certiorari in that case.

The order of the Ninth Circuit was that the matter be remanded with instructions that an augmented waiver request be presented to the Secretary of Health & Human Services–

Antonin Scalia:

So that is done.

That is completed and final.

Theodore Garelis:

–Well, we have–

Antonin Scalia:

The elimination of the prior waiver.

Theodore Garelis:

–It is currently invalidated by means of the preliminary injunction.

Antonin Scalia:

Once and for all, it’s done, right?

Not currently, it is finally invalidated.

Theodore Garelis:

That was only under a preliminary injunc–

Antonin Scalia:

I don’t care what it was under.

Is it final, is all I’m asking?

Theodore Garelis:

–I would say no, it is not.

Antonin Scalia:

Why is it–

Theodore Garelis:

Because–

Antonin Scalia:

–You haven’t appealed it, but it’s not final?

Theodore Garelis:

–It was invalidated by a preliminary injunction, and–

William H. Rehnquist:

What was the–

Theodore Garelis:

–we can still address the merits.

William H. Rehnquist:

–What was the basis on which it was invalidated?

Theodore Garelis:

It was invalidated on the basis that the Secretary of Health & Human Services had not adequately considered the opposition of… of those who were opposed to the statute at that time, that the administrative record did not reflect an adequate review of the opposition.

William H. Rehnquist:

And what was the dis… that it was to be sent back to the Secretary?

Theodore Garelis:

The instructions were that… I can’t quote them exactly, but it was that the matter was to be remanded to the district court with instructions that it be remanded to the Secretary for additional consideration.

That’s as close a quote as I can–

Antonin Scalia:

I really don’t understand why the State has enough interest to bring this case here but did not have enough interest to continue to litigate that issue, to just roll over and say, the waiver’s dead, and we’ll let it die.

Theodore Garelis:

–I believe California thought that the best we would be able to do is simply to… is get a remand.

We did ask the Ninth Circuit to rehear the matter so to… as to order a remand without an invalidation.

Ruth Bader Ginsburg:

Well, wouldn’t the Secretary have had to have chosen, because the injunction… it was the Secretary’s action that was invalidated in that Beno case, wasn’t it?

Theodore Garelis:

Yes, it was.

Ruth Bader Ginsburg:

And so the Secretary didn’t have adequate notice and comment, and so… and the Secretary chose not to appeal.

Theodore Garelis:

Yes, that’s true.

Ruth Bader Ginsburg:

So–

Theodore Garelis:

But we also would have had… we also had the ability to petition for writ of certiorari, I believe, because we were a party to that action also, and it was our waiver.

Ruth Bader Ginsburg:

–But if the Secretary says, they said I didn’t have adequate notice and comment, maybe I didn’t, you would be in a pretty… you’d–

Theodore Garelis:

It was hard to argue it when the Secretary was not going to join with us.

Stephen G. Breyer:

–But is that issue still under litigation… that issue?

Are you still claiming, in that proceeding, that the Secretary did have adequate notice and comment?

Theodore Garelis:

Yes, I believe that’s still under litigation, because the decision–

Stephen G. Breyer:

It is?

Theodore Garelis:

–was only made on a–

Stephen G. Breyer:

I realize it was made on a pre… this is a preliminary injunction.

Theodore Garelis:

–Yes.

Stephen G. Breyer:

Many decisions are made on preliminary injunction.

What I want to know is whether California is saying still in that proceeding, by the way, the Secretary did have adequate notice and comment, and we insist that this matter still be litigated, and we’re going to appeal it again.

Theodore Garelis:

Well, we’re going to have to wait and see what the Secretary’s resolution is, and we have no other plans of litigating except for that.

California statute is a benefit reduction statute, and therefore California submits that the constitutionality of the statute should therefore be determined as with any other benefit reduction statute, that is, by rational basis, because our statute does not impact either a suspect class, does not penalize a fundamental right, therefore the proper analysis is the rational basis.

Here at issue the benefit reduction statute is implemented by a two-tier system of payment levels.

This Court has previously approved two-tier systems in the context of domestic relations, and it has certainly approved them in the context of out-of-State tuition differentials.

We believe that this rationale is on point here.

Furthermore, even the Shapiro case acknowledges that not all waiting periods are penalties.

Others have tried to distinguish these cases on the grounds that neither domestic relations nor public higher education involves the necessities of life, and that public assistance does.

However, we would submit that this misstates the issues.

A benefit reduction is not necessarily limiting the necessities of life.

If so, we believe Dandridge, your result in Dandridge would be inexplicable.

Ruth Bader Ginsburg:

If your theory is right, how long could California maintain this differential?

Ruth Bader Ginsburg:

It’s now for… in the statute that was, and that perhaps will be again, it was… what, 1 year?

Theodore Garelis:

Yes, that is true, Your Honor.

Ruth Bader Ginsburg:

Could they do it for 2 years?

Theodore Garelis:

We would maintain that we could do it for a year.

We have not addressed the issue of more than that, but certainly a year is a temporary amount, and we would submit a year.

We would submit at some point, I’m sure, above a year, that would not be temporary any more, but we have not taken a position on what that higher amount would be.

Ruth Bader Ginsburg:

On your reasoning, could California also adopt a law that would say, if you move into California from a State that has a higher income tax… that might be hard to imagine, but maybe there is one–

[Laughter]

–that has higher taxes, then you pay… you pay to us the higher taxes till you’ve been here for a year?

Theodore Garelis:

We believe California could do so with a rational basis, and we believe that that statute would be adjudicated under the rational basis standard.

Sandra Day O’Connor:

Why isn’t the right to travel implicated here?

Theodore Garelis:

The right to travel is not implicated to the extent necessary to become a penalty, because the statute is very carefully drafted to maintain the recipient’s level of receipt of benefits.

Sandra Day O’Connor:

Is it possible that the cost of living is higher in California than, let’s say, Louisiana?

Theodore Garelis:

That may be, but–

Sandra Day O’Connor:

Does California’s scheme make any adjustment for the higher cost of living?

Theodore Garelis:

–No, it does not.

Sandra Day O’Connor:

Well, so in a very real sense the new residents are worse off in real terms than they would have been due to the cost of living increase, aren’t they?

Theodore Garelis:

Well–

Sandra Day O’Connor:

It’s not as though they are just as well off, in real terms, as if they stayed in Louisiana.

Theodore Garelis:

–We would submit, Your Honor, that an examination of real terms goes against the AFDC program as it is set up.

The AFDC program requires that each State set up a standard of need, and then the State sets up its benefit payments, and the two yardsticks don’t have to meet each other at all.

In fact, California’s benefit levels are under the–

Sandra Day O’Connor:

Well, but for purposes of knowing whether there’s a violation of any constitutional protection given to the right to travel and establish a new residence in a new State, perhaps it does permit that kind of an inquiry.

Theodore Garelis:

–Well, when a person comes from a State with a higher benefit level to California, that person is restricted to the California benefit level even in the absence of our statute, and that is constitutional, so there’s no reason why a person coming from a State with a lower–

Sandra Day O’Connor:

But there, of course, California’s extending the same level of benefits both to long-term residents and to new residents, and in these circumstances California has a two-level benefit scheme, a lower level for new residents and a higher level for residents of some duration.

Theodore Garelis:

–That is true, but–

Sandra Day O’Connor:

That’s the difference.

Theodore Garelis:

–Yes, but when you’re talking about analyzing whether or not there’s a penalty, you’re looking at a strict scrutiny analysis.

Since there’s no penalty, we would submit, you evaluate our two-tier system under the same rational basis standard that you would do any equal protection challenge to a statute.

Sandra Day O’Connor:

Well, I was just suggesting in real terms there may well be a penalty.

Theodore Garelis:

Okay, but you see there’s nothing to guarantee that that person had a benefit level in the prior State that met the necessities of life in that State, either.

The necessities of life really don’t have a whole lot to do with the setting of the benefit levels, and this Court acknowledged this in Dandridge.

Anthony M. Kennedy:

Could you tell me the… you answered Justice Ginsburg that perhaps 2 years would be an impermissible waiting period, if I interpret your answer correctly.

What is the legal standard that you apply to determine that the 2-years or 3-year waiting period might be inappropriate?

Does it become a penalty at that time?

Was that your reasoning, or–

Theodore Garelis:

Well, if I did suggest that a certain amount… I did so in error, and I apologize.

Any amount above a year is not at issue in our statute.

We believe a year is permissible, based upon the Sosner case, which allowed a year… I believe a year’s residency.

Anthony M. Kennedy:

–Well, perhaps I was reading too much into your answer, and you didn’t make that concession, but let me ask you, would a 3-year waiting period raise problems that this statute doesn’t?

Theodore Garelis:

I believe amounts over a year would raise more problems.

It would raise progressively more problems.

Antonin Scalia:

Why is that, if it’s not a penalty, it’s not a penalty?

Under what constitutional standard?

Yes.

Theodore Garelis:

Pardon?

Anthony M. Kennedy:

Under what constitutional standard?

What constitutional rule would be violated?

Theodore Garelis:

Well, it would be a penalty at that point.

It would impact more on a right to travel at that point.

Anthony M. Kennedy:

So the longer the disability, the more it impinges on the right to travel?

Theodore Garelis:

I think we would have to admit that, yes.

Anthony M. Kennedy:

And… but then you are conceding that an infringement or a burden on the right of travel is impermissible?

Theodore Garelis:

No.

Almost anything would have an effect on the right to travel.

The question is, is that effect of a magnitude such as to constitute a penalty?

California submits that our statute does not constitute that magnitude.

Anthony M. Kennedy:

So you posit… you take as your opening premise that there is a right to travel–

Theodore Garelis:

Yes, we do.

Anthony M. Kennedy:

–and there cannot be a penalty imposed upon that.

Theodore Garelis:

Yes, we do.

Anthony M. Kennedy:

So we’re just arguing here about whether or not that’s a penalty?

Theodore Garelis:

What we’re arguing is, is our… is the effect of our statute on the right to travel of a magnitude to constitute an impermissible penalty?

Antonin Scalia:

It’s a penalty, you’re saying, but not enough of a… you’re acknowledging it’s a little bit of a penalty, because otherwise multiplying it by three, three times zero is zero.

You must be acknowledging it’s at least a little bit of a penalty, but you’re saying it’s not enough to run afoul of the Constitution, is that right?

Theodore Garelis:

What… the way I would interpret it, Your Honor, is that we possibly have some deterrence effect on travel.

We have crafted our statute very carefully to avoid that, but to the extent we have some deterrence effect on travel, it is not of a magnitude to constitute a penalty, and we would look at the tuition cases, we would look at–

John Paul Stevens:

But is the length of the period the measure of the deterrence on travel?

Supposing that the payment differential is the difference between $400 and $395, and you say, 3 years of that differential would be unconstitutional, but 1 year of the difference between $400 and $75 would not be a penalty.

Is that your point?

Theodore Garelis:

–I would… I believe I would agree with the thrust of your question, Your Honor.

You have to look at our entire statute.

What we are offering is the same amount of benefit levels as the recipients had in their prior State of residence.

We are offering, through related programs, increases in the ability of a recipient to earn more money and keep… a working recipient to earn more money and keep more of that income.

We are also allowing a person to work more hours than is customarily allowed and still keep their benefit levels.

John Paul Stevens:

Well, you’re suggesting that the magnitude of the differential and real impact on the person’s livelihood is what we should look at, rather than just the length of time.

Theodore Garelis:

Yes, I am.

John Paul Stevens:

But then, if it were true that… in one State there was a very dramatic difference of… I can’t remember the figures, but there was, from one of these States there was a rather dramatic difference in the amount of money.

Would that perhaps justify a different result as to people coming from some States as opposed to people coming from other States?

Theodore Garelis:

No, I don’t believe it would, because–

John Paul Stevens:

No matter how dramatic the difference?

Theodore Garelis:

–Because the amount, Your Honor, that was received by that recipient in the prior State is a constitutionally permissible amount.

John Paul Stevens:

In that State.

Theodore Garelis:

In that State, and that should carry over to California–

John Paul Stevens:

But–

Theodore Garelis:

–because, as I stated before, any concepts of standard of need are not necessarily related to the setting of benefit levels.

The setting of benefit levels–

John Paul Stevens:

–No, but your test before, you were suggesting that at a certain point the burden becomes a penalty and interferes with the right to travel, and I’m a little puzzled as to why the magnitude of the differential is irrelevant to that analysis, but the period of time is critical.

Theodore Garelis:

–Well, let me try to restate it for a second, because I don’t believe I stated it clearly enough.

I believe one has to look at the entire statute as a whole, and the statute in effect has many provisions, because there are related provisions… the program has many provisions.

Theodore Garelis:

It has increases in some benefits, and it has decreases–

John Paul Stevens:

Would you statute be constitutional if it did not have those offsetting benefits in it?

Supposing all you had was this one naked differential in the amount of the benefits for 1 year, and it’s a couple of hundred dollars difference a month, and that’s the only difference between the two States.

Theodore Garelis:

–We would submit that because California is offering a constitutionally permissible amount to all recipients, because eligibility is not in question, as it is in a lot of other cases that have come before this Court, for those reasons, our statute is constitutionally permissible and does not constitute a penalty on the right to travel.

John Paul Stevens:

I’m not quite sure whether you’re saying yes or no to my question.

If there were no difference between your statute… between your treatment of people, recent arrivals and old-time residents, other than a rather substantial difference in the dollar payments that they got each month for 1 year, no matter how dramatic the difference, would that be permissible, without any offsetting–

Theodore Garelis:

I would answer yes with one proviso, that I understand that your question includes something that is in our statute, which is that the recipients are receiving a constitutionally permissible amount in their State of prior residence–

Antonin Scalia:

–What does that mean?

Theodore Garelis:

–yes.

Antonin Scalia:

Does the Constitution require welfare benefits?

Have we said that?

What case did we say–

Theodore Garelis:

No, it does not, but certainly–

Antonin Scalia:

–Well, what is this phrase you’re coming up with, they are receiving a constitutionally permissible amount?

Where does that come from?

Where do I look to to find out what a constitutionally permissible amount of welfare benefits is?

Theodore Garelis:

–Because those are the amounts that are being paid in the prior State of residence that have not been challenged.

Antonin Scalia:

Zero is a constitutionally permissible amount, isn’t it?

Theodore Garelis:

In effect, Your Honor, you are correct, because–

Antonin Scalia:

So then why drag in this constitutionally permissible amount?

I mean, because–

Theodore Garelis:

–Because what is being challenged here–

Antonin Scalia:

–it doesn’t exist.

Theodore Garelis:

–is whether or not California’s amount is constitutionally permissible–

Antonin Scalia:

Right.

Theodore Garelis:

–And I want to encourage this Court to look at the fact that the amount that we are offering people is constitutionally permissible.

William H. Rehnquist:

But again, where do you get the term, consti… the reason that… the constitutional challenge here isn’t to the amount in the abstract but to the fact that you pay California residents a different amount than you pay arrivals who have been there less than a year, and that constitutional challenge is based on the right to travel, but certainly you’re not suggesting that someone back in Nevada, or wherever they may have come from, could challenge their welfare payment on the grounds that it wasn’t enough to live on?

Theodore Garelis:

No, but what we are offering people is an amount that is… is offered by another State but is not challengeable and, therefore, California ought to be able to offer a like amount to that person temporarily.

Ruth Bader Ginsburg:

Is there any scheme like this where… I know some differences between residents and nonresidents, but here the variation is… depends on the State you come from, so if you come from New York to California, you’re better off than if you come from Louisiana to California.

Is there any other scheme that takes the newcomer and treats that newcomer differently, instead of just making a distinction between old-timers and newcomers, makes a distinction between newcomers from New York, treated rather well, newcomers from Mississippi treated not so well?

Theodore Garelis:

I don’t believe so, unless you look at the circumstance of someone coming from a State with a higher benefit level coming to California and getting a decrease in their benefit level, which is not challengeable.

David H. Souter:

Isn’t the reason for your concession to Justice Kennedy on the 3 years that when you take the 3-year hypothesis there would be no basis upon which you could reasonably argue that the individual was not a resident and I presume, indeed, a citizen of the State of California, so that it would follow that the correct comparison was between that particular citizen or resident and all other California residents, and once that comparison is made, there is a penalty?

Isn’t that the reason for your concession?

Theodore Garelis:

No.

I still don’t believe that I’ve made a concession that 3 years would be a penalty.

I’m saying that there would be some amount at some point which, when added to all other factors, would imply a penalty.

David H. Souter:

Well, it might not be a penalty, but I… didn’t you concede that under the 3-year hypothesis you would have some constitutional problem?

Theodore Garelis:

I believe what I said, we would have… under a factual record it would be more of a problem, yes, but California has–

David H. Souter:

Why would it be more of a problem?

Theodore Garelis:

–Because–

David H. Souter:

If the distinction does not turn on obviousness of residence, or some such thing as that, why is it more of a problem?

Theodore Garelis:

–It would be more of a problem because that person would be getting a rate that was not the California full-level rate–

David H. Souter:

So what?

Theodore Garelis:

–for a longer period of time.

David H. Souter:

So what, on your theory?

If, in fact, the… it is not required to compare California residents with California residents, why should the differential be any more problematic after 3 years than after 1?

Theodore Garelis:

Because, as with any factual distinction, it might be more problematic.

We are not conceding–

David H. Souter:

But I don’t understand why.

Problematic assumes that there is some reason for its being problematic, and I don’t know what your reason is.

Theodore Garelis:

–Because I believe in order to establish whether there’s a penalty, one ought to compare what one received in one State compared to what one is getting in the other State, what one is getting in the old State–

David H. Souter:

Well, let me ask you the question directly which keeps coming up.

Why is it inappropriate, on your theory, to compare one California resident, i.e., the one who has moved in from Oklahoma with intention to stay, with all other California residents for the purpose of determining, on whatever level of scrutiny, whether there’s an equal protection problem?

Why is that an inappropriate comparison?

Theodore Garelis:

–I don’t believe that’s an inappropriate comparison.

I believe that at that point you use a rational basis standard, and examine whether California has a rational basis for the two different tiers.

David H. Souter:

And your rational basis is saving money?

Theodore Garelis:

Yes, the rational basis is saving money.

Stephen G. Breyer:

If the rational basis is saving money, they say you’d save twenty two and a half million dollars, about $1 per recipient, if you cut it across the board.

What’s the rational basis that instead of cutting it $1 across the board, you decide to take a separate group of people and cut it by $400?

Theodore Garelis:

Because California did many things at that time.

It did cut benefit levels, it did raise fees at universities, et cetera, the legislature made the determination of resource allocation, and that is the legislature’s prerogative to do so, and I believe this Court in Dandridge acknowledged that fact.

William H. Rehnquist:

Thank you, Mr. Garelis.

Theodore Garelis:

Thank you.

William H. Rehnquist:

Ms. Sullivan, we’ll hear from you.

Kathleen M. Sullivan:

Mr. Chief Justice and may it please the Court:

The California statute is antithetical to fundamental structural principles of our Federal Union.

There are no degrees of State citizenship.

Sandra Day O’Connor:

Well, do you think the issue is ripe?

Kathleen M. Sullivan:

No, we do not, Your Honor.

We do not think there is a live case or controversy before this Court.

The case is moot, or, alternatively, as Justice Ginsburg suggested, whatever case might come to be has not come to be and the case is not yet ripe.

Stephen G. Breyer:

And I take it you’re willing to follow the consequence of that, which they suggested that you wouldn’t, that then you’d go back to square one.

The decree would be vacated, the injunction and so forth, and you’d be back at square one, having to bring your case later if that turned out to be necessary.

Kathleen M. Sullivan:

That’s correct, Justice Breyer.

The State concedes that the waiver required to put the statute into effect was invalidated in Beno.

It did not appeal to this Court, the Secretary did not appeal to this Court, and the State then resubmitted an augmented waiver, a different waiver.

We do not have that statute before us.

But if you should reach the merits nonetheless, we urge you to affirm the district court, because the California statute does very much violate the Constitution.

William H. Rehnquist:

Well, we do have a statute before us, and it seems to me it’s not at all clear, simply reading the statute, that the State is… State’s argument is correct.

It seems to me one could read the statute to say that once the waiver has been given, the statute comes into effect, and it says nothing about later revocation of a waiver, but the fact that the State says the State doesn’t plan to do anything, it seems to me, is what makes the case moot or not ripe, rather than the statute.

Kathleen M. Sullivan:

That is correct, Mr. Chief Justice.

It is the State’s concession that it cannot effectuate the statute without the waiver that has been invalidated that puts the case before you.

Ruth Bader Ginsburg:

Because it wants Federal money, isn’t that right?

Kathleen M. Sullivan:

That’s correct, Your Honor.

Ruth Bader Ginsburg:

And it could put in its own welfare program without Federal dollars, but the likelihood of that is not great?

Kathleen M. Sullivan:

Very unlikely, Your Honor.

If it ever did with this provision, that would be a different case, which, as you pointed out, is not yet ripe, is not before us.

Should you reach the merits, however, the California statute that has been invalidated plainly violates most fundamental structural principles.

When a person crosses over the State border from Louisiana or Oklahoma or Mississippi to California and becomes a bona fide resident there, that person is entitled to be treated equally with other citizens of the State of California–

Antonin Scalia:

I don’t read any–

Kathleen M. Sullivan:

–as Justice O’Connor suggested before.

Antonin Scalia:

–Why do you have to put that limitation in, and becomes a bona fide resident?

I mean, if there’s a freedom to travel, I assume it’s freedom to travel whether you choose to become a bona fide resident or not, isn’t that right?

Kathleen M. Sullivan:

That is correct, Justice Scalia–

William H. Rehnquist:

But that–

Kathleen M. Sullivan:

–you’re free to travel, but you’re not… nonresidents are not required to be treated equally in all respects by a State which they are merely visiting, but in a State where one is a citizen, and the Fourteenth Amendment’s citizen clause makes us all citizens of the State in which we reside, one is entitled to be equally treated with all other citizens of the State in which we reside.

Now, Justice Souter raised the point earlier that perhaps sometimes durational residency requirements might be acceptable in order to test the real bona fides of residency in cases where there’s reason to suspect that perhaps someone is coming to a State and not really intending to reside there.

William H. Rehnquist:

–Well, we’ve upheld durational residency requirements for State… in-State tuition, not just for testing, but simply categorically.

Kathleen M. Sullivan:

Your Honor, you’ve summarily affirmed decisions upholding durational residency requirements for in-State decision–

William H. Rehnquist:

Which are decisions on the merits.

Kathleen M. Sullivan:

–Correct, Your Honor, but they are entirely different from this case, because as this Court noted in Zobel, as in Vlandis, the reason for making a student wait a year to get the benefits of in-State tuition is that a student is likely to be characteristically transient in a way that no welfare recipient is.

A student, unlike a welfare recipient, is likely to come to a State, take the benefit of the low-cost public education, without an intention to remain indefinitely.

Bona fide residence turns on an intention to stay in the State to which one has migrated.

William H. Rehnquist:

Well, could a State set up any sort of a time limit and say that you don’t become a bona fide… you cannot become a bona fide resident until you’ve at least been here 30 days.

Kathleen M. Sullivan:

Yes, it could, Your Honor.

The States have latitude to set up the terms for bona fide residency, but as the Court–

William H. Rehnquist:

A year is too long, in your view?

Kathleen M. Sullivan:

–A year is generally too long, unless there is special reason to fear that a certain population is going to come into the State on a transient basis to procure a benefit from that State and then leave.

That, after all, was the justification in Sosner for upholding the durational residency requirement for someone seeking a divorce.

Anthony M. Kennedy:

Am I supposed to take judicial notice that students are more apt to move than welfare recipients?

I mean, how do I know that?

Kathleen M. Sullivan:

Your Honor, welfare recipients are unlike students or divorce-seekers for several reasons.

First, the State here concedes that all the AFDC recipients in this case are bona fide residents of California, and with good reason, because California investigates the bona fides of residents in order to determine whether these persons are eligible for welfare in the first instance.

As Justice Scalia suggested for the Court in Smith v. Employment Services, this is a case in which there is already in place a procedure in-State for individualized determinations of eligibility.

David H. Souter:

So I take it at no point in the litigation has the State raised this… a challenge to the bona fides of the residents?

Kathleen M. Sullivan:

That is correct, Justice Souter.

Bona fide residence is not at issue in this case.

There’s no benefit which these AFDC recipients can come into the State and procure and then leave with, such as the degree in the tuition cases or the decree in the divorce cases–

William H. Rehnquist:

Is there–

Kathleen M. Sullivan:

–because the money is spent as soon as it’s received.

William H. Rehnquist:

–In your view, Ms. Sullivan, is there some Federal rule that determines how we find out whether someone is a bona fide resident?

Kathleen M. Sullivan:

No, Your Honor.

What we suggest… that is a matter of State law.

What we are suggesting here is that bona fide residency cannot be a justification in this case.

The State cannot use the test of bona fide residency as a justification for treating new State citizens differently, which is a presumptive violation of the Constitution.

Antonin Scalia:

What about the State using… I understand that we have a general rule about freedom of travel, and a State cannot penalize people for moving into the State, but it seems to me entirely reasonable for a State to object, if it wants… especially a State that wants to have a generous welfare program, to want to preserve the funds that it’s expending in that program by not becoming an attraction to people who move to that State for no reason except to get the increased welfare.

It seems to me so reasonable to say, we’re being very generous, more generous than most States, but our system will self-destruct if it attracts people from other States.

Why shouldn’t we make that kind of an exception?

And that’s what they’re trying to do here.

I don’t… you know, saving money is not the justification.

The justification is, we don’t want to attract welfare recipients from other States by our generous benefits.

That’s what’s going on here, but why isn’t that reasonable?

Kathleen M. Sullivan:

Justice Scalia, if that is the State’s justification, the statute is still unconstitutional and unreasonable.

That is a–

Antonin Scalia:

I knew you were going to say that.

[Laughter]

Kathleen M. Sullivan:

–Let me explain why.

First, that is an impermissible end.

The mechanism here is de jure facial discrimination against new State citizens.

Of course a State may hoard some of its State-created resources as against nonresidents of the State, those who… the very definition of State sovereignty entails that a State may reserve its resources for its own people, but when someone crosses the border into the State and becomes a citizen of that State, the State may not say to that person, we will now treat you as a second-class citizen.

Imagine that a State were to say, well, you’ve moved from Massachusetts to New Hampshire, New Hampshire doesn’t have an income tax, but New Hampshire’s going to take your money at the Massachusetts rate.

Imagine if a State were to say, well, you’ve just moved to town, your kids can go to school, you’re bona fide residents, but they’ll have to go to a special classroom until you’ve lived here for a year with peeling paint and fewer textbooks.

If you called 911 in the new State within the first year, would they say, well, you have to wait an hour for an ambulance because that’s how long you had to wait in Mississippi?

John Paul Stevens:

But they can say you pay a different tax rate.

They can say you pay a different tax on your home.

Kathleen M. Sullivan:

In Nordlinger v. Hahn, Your Honor?

But, Your Honor, that was a case, Justice Stevens in which you did not reach the question whether there was any violation of the right to travel, because the plaintiff in that case had simply moved intrastate from Los Angeles to another place in California.

We’re arguing here that where there is facial de jure discrimination against new State residents… that is, those who are defined as a class by virtue of having recently migrated across State lines… then your concern for the structural principles of the Constitution is triggered as it need not have been in Nordlinger.

And, indeed, in other cases, such as Williams v. Vermont, you’ve said that residents and non… recent residents may not be treated differently from longer-time residents, even with respect to the assessment of a tax, in that case an excise tax.

William H. Rehnquist:

Well, what if California in this case, Ms. Sullivan, said nobody shall get the California benefits but they’ll get lower for 60 days, and it’s not to allow us to investigate, but we simply don’t recognize anybody as a resident or citizen of California who has not been physically present here for 60 days?

Kathleen M. Sullivan:

We would have no objection to that, Your Honor.

If the State were asserting, as it does not, that it was testing bona fide residence here by a durational residency requirement, then the principle–

William H. Rehnquist:

Well, it’s… no, it’s not testing bona fide residence at all under my hypothesis.

The person who has not yet been there 60 days could take the stand after 30 days and say, I left my former domicile, I have no intent to ever leave California, I plan to leave here indefinitely.

So as far as conflicts of law, that type of thing, one would meet the traditional residency test, but California says no, that’s not enough.

Here, it’s got to be 60 days.

Kathleen M. Sullivan:

–Your Honor, we would concede that that is constitutional.

A State may not define who is a citizen.

A citizen becomes a citizen of the State upon residence, but it may define residency so long as its definition is reasonable.

A year is far too long to be reasonable in a case–

Ruth Bader Ginsburg:

What is the voting… the time that one must live in California to register to vote?

Kathleen M. Sullivan:

–I’m not certain of that, Your Honor.

It’s certainly less than a year, but it is not inconsistent–

John Paul Stevens:

Is it your point that in the Chief Justice’s example it would be all right provided they gave the person nothing, not just a lesser benefit?

Kathleen M. Sullivan:

–Yes, Your Honor.

If the test is for bona fide residency, or if the test… if the State is trying to say, we are worried that you’re not really here to stay, and so before we share our benefits with you we want to make sure, that would be acceptable, if there was reason to think that this population was in danger of moving out of the State.

That is not the case with welfare recipients.

It is not the case, as with divorce-seekers in Sosner who might have misrepresented their attachment to the State and then dragged it into collateral attacks on its judgments in other States thereafter.

There’s nothing the welfare recipient takes with them.

William H. Rehnquist:

Well, why isn’t it reasonable to think, if California pays a good deal more in welfare benefits that other States do, that people who are receiving those benefits in other States will be attracted to California?

Kathleen M. Sullivan:

Your Honor, there is absolutely no evidence in the record that California’s relatively higher grant levels attract poor people at higher rates than they would be attracted otherwise by the prosperity or other features of the State, but even if that were so, you have in the past consistently said that a State may not make itself attractive to insiders but discriminate against newcomers in order to keep an influx of newcomers from coming into the State.

You said it in Shapiro, you said it in Maricopa County, it’s implicit in Zobel.

Had Alaska been permitted to make itself less attractive to newcomers, it could have discriminated in handing out its oil bounties based on the length of residency in the State.

But there’s good reason for that, as… there is good reason for saying, we will not inquire into the motives why people move across State lines, and that is because the very principle of the Federal Union, one of political unification, the very principle of enjoying the benefits of Federalism, involved the freedom for people to cross State lines in order to go where their tastes are best satisfied.

If they are attracted by better public services, or lower tax rates, or better schools, to moving to another State, this Court has always said in the past that we cannot say they are less deserving because they go to use that public resource.

But even if… even if you were to depart from that line of precedent and say now, for the first time, that if someone crosses State lines in order to use a public service that’s better in the new State than they deemed it in the old, this statute would not be narrowly tailored, or even remotely tailored to that goal.

This statute, if it’s trying to fence out those who come for higher welfare benefits, as the Chief Justice hypothesizes, if it were aimed at that goal, it doesn’t fit it.

William H. Rehnquist:

Well, if it’s a rational basis test, it doesn’t really need tailoring, does it?

Kathleen M. Sullivan:

Your Honor, if it’s a rational basis test, it must still not serve a forbidden purpose, or it still must be logically related to its distinctions.

Kathleen M. Sullivan:

That is, you have said in Heller v. Doe that a statute need not be empirically proven by the State to rest on a rational basis, but surely it remains the case that it must logically relate to the distinction it draws, and there is no logical relationship between the first 12 months of residency and welfare-seeking.

This statute applies even if one comes to California to start a job, comes, starts working, works for 8 months, and loses one’s job, and suddenly and unexpectedly needs to seek AFDC benefits.

David H. Souter:

Well, that’s true if you look at it on a purely individualized basis, but there is a rational argument, I suppose, to the effect that California or any State simply cannot afford to provide a generous welfare scheme if the magnet is going to be so great that there are going to be a lot of short-term “transients” taking advantage of it… I use transient in quotes… so that in fact the only hope for raising the level for everybody is to do it under circumstances in which the short-term attraction is going to be mitigated, otherwise, nobody can afford it.

So that an argument is being made that a good system cannot exist without some kind of limitation like this.

That’s a rational argument, isn’t it?

If we’re on a rational basis test or if we were starting at square one and construing what is an undue burden on the right to travel, wouldn’t that be a relevant argument?

Kathleen M. Sullivan:

Justice Souter, you have long said that the purpose you have just described is a forbidden purpose, or an impermissible one.

David H. Souter:

Well, I’m not questioning you about precedent.

Kathleen M. Sullivan:

Yes.

David H. Souter:

I’m simply questioning you about, if we were starting at square one, that would qualify as a rational argument, wouldn’t it?

Kathleen M. Sullivan:

Justice Souter, if you were starting at square one and ignoring the admonition in Shapiro that the goal to fence out needy people is an impermissible one, the statute would still not be logically tailored to that goal.

And the reason is that California is able, through its existing individualized investigations of welfare eligibility, to determine, if it wished to, what are the reasons that people come to California.

And if it wished to fence out those who have come not to escape being battered, as did the named plaintiffs here, not to rejoin family, as did the named plaintiffs here, not to come for a job, which one unfortunately lost because of structural economic problems, as is often the case these days in California, if someone in the California welfare system determined that one had not come for any of those reasons to become a Californian, but had simply come to get higher benefits because they’d read that they were higher there, then California could screen those people out with no additional expense beyond what it is already incurring through individualized investigations, but the very fact that–

Anthony M. Kennedy:

You don’t concede that that would be constitutional, do you?

Kathleen M. Sullivan:

–Not at all, Your Honor.

We do not concede that would be constitutional, because we think if States can begin to investigate the motives people move in-State, whether it’s for better schools or lower taxes or a better way of life–

Anthony M. Kennedy:

But then we’re slipping away from the argument about whether or not this isn’t, leaving precedent aside, a rational policy for the State of California, who wants to have an intact, sound welfare program.

That’s where we began.

Kathleen M. Sullivan:

–I’m sorry, Your Honor.

Anthony M. Kennedy:

Then you ended up by saying you could screen, and I just don’t… I don’t see the relation between the two arguments.

Kathleen M. Sullivan:

Justice Kennedy, we argue that it is impermissible to treat new State citizens unequally merely because they have come to get higher welfare benefits.

The Court said that’s a perfectly permissible reason for crossing State lines in–

David H. Souter:

With respect, I probably wasn’t clear on that, but that wasn’t the hypothesis that I was making.

The State simply says, as a necessity for maintaining this laudably generous system, no one, whatever their motives may be, will get this higher benefit until, let’s say, a year has passed, or something of that sort.

There’s no screening, there’s no inquiry into motive, just saying, look, the system won’t work if we have to pay this to everybody who comes in during the first year.

Kathleen M. Sullivan:

–Your Honor, as Justice Breyer pointed out before, that argument is scarcely credible in a case where the State could save the same amount of money by reducing benefits 76 cents across the board.

This is not a case in which the State is on the brink of financial disaster if it does not seek some alternative means of achieving the same savings.

If it were the case that the States were unable to offer generous benefits without encouraging an influx of indigents, Congress could remedy the problem by setting uniform benefit levels or some such thing, but that financial question is not an excuse for abrogating the fundamental structural postulate that new State citizens must be treated equally with citizens who’ve resided in the State for a longer time.

Antonin Scalia:

Surely there’s a difference in treating somebody differently by… I mean, let’s say we’re not going to give you library privileges in the State, or you can’t use the State tennis courts, or you can’t use the State schools for a certain period.

All of those have nothing to do with whether the individual, like most residents, is supporting the system whose benefits he is using.

Antonin Scalia:

Whereas in the case of a welfare recipient who moves there in order to obtain welfare, you know from the start that this is a person who’s going to be deriving these benefits of the State never having contributed to the tax base of the State from which those benefits are derived.

Surely that’s a different situation, and it seems to me you should be able to have a different rule.

Kathleen M. Sullivan:

Justice Scalia–

Antonin Scalia:

And it’s only the case with welfare.

Nobody else you… in none of the other areas can you say for sure that this person will not be contributing to the tax base from the time that the person arrives, and yet will be deriving this particular benefit.

Kathleen M. Sullivan:

–Justice Scalia, with respect, the statute is not limited to those who will be on welfare from the time they arrive.

This statute forbids grants of AFDC at California levels to anyone who has moved to the State within the past 12 months, even if she comes in with a job, but even if it were the case that it were limited to that population, it remains invidious.

You have said in many other contexts that even a small difference, when it has an impact on some fundamental distinction between persons, is enough to trigger heightened review.

It would not be enough to give $1 less to blacks than whites, it would not be enough to give $1 less to Democrats than Republicans, and new State citizens and old State citizens are in that same position.

So with respect to library privileges or fishing licenses, you haven’t reached those questions, but it might be the case that even as to those benefits, distinctions between new State and old State citizens are either invidious or they’re irrational, but this is not a fishing license case.

William H. Rehnquist:

Well, but I think you’re putting too much of an absolute construction on some of our other… the in-State tuition cases, I mean, it isn’t just a total refusal to allow the States to make any distinction between old and new residents.

They’re allowed to do it in the case of in-State tuition.

Kathleen M. Sullivan:

Your Honor, as you’ve suggested, both the opinion for the Court and the concurring opinion in Zobel suggested the reason for that in the tuition cases, as in the divorce cases, is a fear that there will be a characteristically transient population that will misrepresent its intent to stay in the State a long time.

William H. Rehnquist:

Yes, but all I’m saying is that there have… the cases have gone the other way.

Your tendency… I believe you’re stating that this is just never permissible.

Kathleen M. Sullivan:

Not at all, Your Honor.

It is–

William H. Rehnquist:

I thought–

Kathleen M. Sullivan:

–hardly ever permissible.

William H. Rehnquist:

–Well–

Kathleen M. Sullivan:

We’re not saying it’s never permissible.

We’re saying that it is hardly ever permissible.

There’s hardly ever going to be a good reason for distinguishing new State residents from old State residents.

When you’re worried that the new State residents are really nonresidents in disguise, then there is a good reason, but this is not such a case.

Ruth Bader Ginsburg:

–Anything other than the genuineness of the residency that would be a legitimate basis for distinction?

Kathleen M. Sullivan:

Perhaps–

Ruth Bader Ginsburg:

In both Sosner and Vlandis, those situations, it’s that you distrust the claim that I really am a Californian.

Kathleen M. Sullivan:

–That’s one situation, Justice Ginsburg, and there may be others.

For example, it might be permissible for the State to require that someone live in the State for a set period of time before he or she runs for Governor, or State office.

We have a residency requirement in the Constitution for the President and Members of Congress, and perhaps a State could impose a requirement that one reside in the State for a certain period in order to develop the attachment and loyalty that high office requires, and there may be other instances which we don’t need to reach today.

Kathleen M. Sullivan:

But the point in this case is that there is no good reason for the distinction California has drawn here.

Either, as Justice Scalia suggests, the real reason is to fence needy people out of the State, or to keep the State from being swamped by an influx of indigents seeking welfare.

Well, if that’s the reason, then you would have to reverse a quarter of a century of precedent to say that it was permitted.

That is a forbidden purpose under our law.

But if, as the State now claims, the purpose is, rather, to save money, then it draws an impermiss… it uses an impermissible means.

The end of saving money is of course permitted, but it bears no logical relation, no rational relation, no conceivably rational relation, to the distinction between new and old State residents.

New State residents are not in any way a peculiar source of evil in California.

There are no differences between the population of new State residents and old State residents with respect to their needs, with respect to their probability of working, with respect to the likelihood that they’ll stay on the rolls or get off them.

They are identical in every other respect except the timing of their migration to the State.

Anthony M. Kennedy:

Ms. Sullivan, was there any showing in this record, or is there any discussion in the literature with a statistical survey to show that people do or do not move for higher welfare benefits?

Kathleen M. Sullivan:

There is no such showing in this record, Justice Kennedy.

The State has adduced no evidence in this case that people do or do not move for higher welfare benefits, and that thesis very much in doubt in all the leading literature.

The statute either seeks a forbidden end, or employs a forbidden means.

It either seeks to fence new residents out of the State, and it’s been a half-century since Edwards that the Court has said a State can’t do that even if the new folks are poor, or it uses a forbidden means.

It distinguishes between new and old State residents when that distinction is not rationally related to any purpose, fiscal purpose or any other.

I would point out also the State has argued here that somehow its ability to experiment with welfare reform, its hands will be tied, and that under rationality review you don’t tie the hands of the State in solving its economic problems.

Well, with respect, an affirmance in this case will in no way tie the hands of the State to engage in every sort of experiment in welfare reform, be it time limits, or work incentives, or any other distinction among recipients of public assistance, except for a distinction that distinguishes new State residents from old State residents.

The State has left a lot of latitude here.

The reason why new State residents and old State residents can’t be treated unequally has a lot to do with the fact that they can’t protect themselves in State politics.

This is quite different from a case under ordinary rationality review, where a State might be permitted to distinguish between optometrists and ophthalmologists, or truckers and trains.

This is a case in which the new State residents are precisely those who could not protect themselves in the political process because they weren’t there at the time.

Here the State has chosen–

William H. Rehnquist:

Well, presumably they can get into the political process, at least under your hypothesis, in very short order.

Kathleen M. Sullivan:

–That is correct, Mr. Chief Justice, but… they can get into the process to vote, but they’re still likely to be a small minority, and that’s not the true point.

The true point is that they cannot be treated differently because of their new State residency because of the structural postulates at stake in this case.

Whether you look to the Privileges and Immunities Clause of the Fourth Amendment, as Justice O’Connor suggested in Zobel, to the Privileges and Immunities Clause of the Fourteenth Amendment, to the Citizenship Clause of the Fourteenth Amendment, or to the Commerce Clause itself, it is clear that both to make us one political union and to permit citizens to take advantage of the laboratories of experiment that the States represent, mobility across State lines must be allowed.

And this Court has consistently said that that means not only that States can’t erect barriers at the border, it also means that new State citizens cannot be treated differently once they cross that border.

They must be treated equally unless there’s a good reason, and there’s no good reason here.

In conclusion, the judgment below should either be dismissed… the case should either be dismissed because the… it is moot for the reasons explored earlier, or in the alternative, if you reach the merits, you should affirm, because the State has advanced no permissible justification that is rationally related, much less compelling… much less necessarily related to its goals.

Thank you.

William H. Rehnquist:

Thank you, Ms. Sullivan.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.