Morris v. Weinberger

PETITIONER:Morris
RESPONDENT:Weinberger
LOCATION:Location of car search

DOCKET NO.: 71-6698
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 410 US 422 (1973)
ARGUED: Jan 17, 1973
DECIDED: Feb 22, 1973

ADVOCATES:
E. R. McClelland – for petitioner
Walter H. Fleischer – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – January 17, 1973 in Morris v. Weinberger

Warren E. Burger:

We will hear arguments next Number 71-6698 Morris against Weinberger.

Mr. McClelland you may proceed whenever you are ready.

E. R. McClelland:

Mr. Chief Justice and may it please the Court.

I am going to be remised if I did not first convey my appreciation to the great honorable clerk and his staff for their assistance to us in this matter, they are very nice.

The facts in this case as I understand are not in dispute by any of the parties here.

So I’ll be very brief and cite only those things that are considered pertinent to the case.

One that in the year 1957, Mr. Morris qualified for and started receiving social security benefits, but in the year 1965 Linda Gayle Kinder was born and a few months after that was sent to the home of the grandparents.

In this case Mr. Morris and resided with them continuously thereafter until the present time as a matter of fact.

That in October of 1966 Mr. Morris and his wife adopted Linda Gayle.

But in 1968 there was a reapplication for social security benefits by Mr. Morris on behalf of Linda Gayle which were — and what is an issue here.

The pertinent parts of the Social Security Act that we talk about today, one has to do with Section 202 (d) (1) and (3).

These are the ones that setup eligibility for children.

The one here states that a child shall be entitled to benefits, if this child is living in the home of the petitioner and that he is contributing more than at least 51% of the support and so forth to the child.

Section 3 has to do with eligibility and again Linda Gayle is qualified under that Section.

All provisions in that Section starts out saying that “Shall be deemed to be dependent” this has to do with the Dependency Clause.

Another one in issue here is 202 (d) (8).

1960, when the Social Security Act was relative to dependency a lot and this was first passed.

Congress saw fit to give benefits to children born of qualified social security recipients.

Subsequent to that and shortly after they put in the section pertaining to adopted children, if the child lived in the home of the petitioner of the recipient at least one year prior to the time that he shall have reached his old age or, disability or what have you.

In 1967, subsequent to the date of the adoption of Linda Gayle, Congress amended this particular Section and put in this 202 (d) (8).

And they started talking about children adopted by an eligible beneficiary recipient.

And here the key one in which we are interested today upon which this Court accepted this case has to do with child placement.

Congress said that “If a child can on the adoption, at the adoption proceeding was supervised or was handled through a public or private child placement agency then this adopted child could qualify for benefits.”

I might also add here that on October the 30th of 1972, that Congress again amended this Section 202 (d) (8) and we’re now back to where we were in 1960 which means that unless a child shall have lived in the home of the petitioner for not less than one year prior to the time that he reaches eligibility for old age assistance or the date that he would become eligible for request for disability benefits that the child cannot qualify.

Potter Stewart:

Mr. McClelland as you know because of that 1972 Amendment it’s the government’s position in this case and that amendment incidentally came along after we granted certiorari in this case.

E. R. McClelland:

As a practice sir, I’m on —

Potter Stewart:

It’s the government’s position in this case that the writ should be dismissed, I trust you’ll address yourself to that argument.

E. R. McClelland:

— excited sir.

Potter Stewart:

Right very good, in your own time I just —

E. R. McClelland:

Pertaining to this and the fact that that respondent has raised this issue of whether or not this writ was probably granted, I would like to say this that I’m happy that the question was raised because it does bring this — at least I would hope that it would bring this new amendment before this Court for consideration today.

E. R. McClelland:

One —

Warren E. Burger:

How do we get the new amendment before us?

E. R. McClelland:

I say sir that I would hope that you would the fact that we are considering that at this time.

Warren E. Burger:

Well has there been any administrative action under the law as changed?

E. R. McClelland:

So far as this case is concerned, the answer is negative.

So far as other case there has been started, the answer is yes sir there have.

Warren E. Burger:

Mr. McClelland we have only this case before us.

E. R. McClelland:

You have only this case before you, that’s true sir.

William H. Rehnquist:

No one is trying to apply this new statute to Linda Gayle situation.

E. R. McClelland:

No sir.

Potter Stewart:

Well, there’s no need to.

Under government’s theory Linda Gayle doesn’t get the benefits either out of the law that’s before us here, or under the new law.

So there’s no occasion to apply anything from here.

The result would not be different from the government’s point of view.

E. R. McClelland:

That’s correct.

I’ll say that by virtue of the appeal of this particular Section in the Social Security Act that this client, Linda Gayle was not—would not be affected and for several reasons.

One of them was that her application for benefits was timely filed.

In other words, she applied for benefits under this new Section.

In February of 1968, the year that that particular Section went into effect I think in January or December — January ’67.

The rights of many people or individuals similarly situated as Linda Gayle would be in this particular instance have not been affected by the repeal of this new Act in social security, new 202 (d) (8).

There are other cases pending now on that Section no later than I think last week or a week before last.

The new case was started in my own county affecting the same.

And also this new Act will affect only a small class of claimants, because those that are not within this classification of having lived with the beneficiary for let’s say at least a year prior to his eligibility, would be affected the others would not.

Potter Stewart:

It is clear that if the 1972 Amendments had been in effect at the time that your case arose, your case could not have arisen because Linda Gayle would have ineligible.

Is that not true?

E. R. McClelland:

Sir, on the issues that I’m bringing forth here today and the issues of discrimination against adopted children, they would not be affected either way had this, let’s assume that you should decide at this particular moment right now.

This case has been improvidently granted.

I could and I’m sure that I would be requested to do so to go home and ask Mr. Morris to go out and reapply that the issue of the Fifth Amendment as affects after adopted children must go before this Court for determination sir.

That is one of the purposes in this case.

The case was first started on the court below, in the District Court.

E. R. McClelland:

The District Court Judge Field decided to take the same position as the hearing examiner.

He didn’t get into this, only briefly that it was brought up in the appellate court.

Those questions are still here, I would bring this case next week under the new one because the same issues are there sir.

Potter Stewart:

Same Fifth Amendment argument?

E. R. McClelland:

Yes sir, yes sir.

And I might also add that this question of the Fifth Amendment was considered in the cases below.

Byron R. White:

In what sense Mr. McClelland, do you say the same Fifth Amendment issues are here under the amendment statute?

E. R. McClelland:

As effects after adopted children sir, as against children born as issue of the recipient.

Potter Stewart:

Or/and as against pre-adopted children?

E. R. McClelland:

Yes, sir.

Potter Stewart:

But it’s a basic denial of the ingredient of equal protection of the laws, it’s included in the due process clause of the Fifth Amendment?

E. R. McClelland:

That’s exactly right sir.

Potter Stewart:

That’s your argument, isn’t it?

E. R. McClelland:

Yes sir.

There’s a couple of things I would like to say or get into this particular question right quick and try to take most of my time on that.

As Mr. Justice Whitegold, Mr. Renolds here yesterday says “And your fifth argument is the fact that the court, Circuit Court of Appeals held against and you and so forth”.

I will say that here in addition to this, the case of Haggler against Finch which was relied on by the Fourth Circuit and their holding in this case together with the strong alliance on the part of the respondent and his brief here.

There is a little statement in that court opinion that I would like to read to the Court here.

In Haggler case of course, this Court denied certiorari, but after having admitted that this child, there was no abuse involved, so far as the adoption of this child was concerned.

The Court said this, “The Hagglers lacking guidance through the statutory of 402 (d) have wondered in to a trap design to snare only the undeserving.

Their plight suggests the need for more flexible statutory requirements.”

Yet Congress not the Court should be the source of any new statutory provisions.

So, the two cases that obviously are relied on here is the Fourth Circuit holding the way they did and the Ninth Circuit holding the way that they did.

The main thrust of my argument today, I’ll get away from the cases that have been decided and that have cited in the briefs and so forth like Levy and Webber and Stanley and so forth, and get to one that was recently decided by this Court no later than less than a month ago, as a matter of fact on December the 18th I think it was, where they affirmed the case of Davis against Richardson 342 F. Supp. 588 it was.

There, we’re talking again in terms of an illegitimate child.

I will not go into the facts to that case as to reason to this Court.

You’re fairly familiar with it and what you decided and so forth.

I’ll stay away from the holdings relative to social security and welfare.

But there are Silva’s 1 and 2, I would like to read because as a guideline for me.

One, the due process clause of the Fifth Amendment prohibits as to the federal government statutes creating arbitrary discriminations which have no rational basis and legitimate governmental purposes.

E. R. McClelland:

And two that although Congress has great latitude to make classifications in the area of economic and welfare legislation, a provision must have some rational basis or be pertinent to some proper objective of Congress in order to withstand challenge under the due process clause.

Your Honor, the fact that Congress has seen fit to deny after adopted children which they have done.

The benefits that are now accruing to those children that have been previously adopted or children that will be born to the social security recipients subsequent to his receiving benefits, I think falls decidedly within this classification.

And when Congress considered of this thing, in reading the Congressional record on what they had to say, now Senator Allen got into the question of “Will these calls abuse?”

And calls individuals to go out and adopt children to supplement their own income.

The two things I would like to mention on that Senator Curtis also had some observations on that.

One of them is, they checked the actuarial expert there and he came back and said, “Well look, there would be maybe a fraction of 1% involved, should we grant full benefits to these adopted children.”

They admitted on the floor that they each knew of personal cases where it seemed unjust to not give these individuals a privilege of being entitled to these benefits.

I think sir and as this is my —

Potter Stewart:

It was Senator Allen’s Bill was it not?

That put the limitation upon the eligibility of after adopted children that you are here attacking that is that had to be approved by a Child Placement Agency and that was his Bill.

E. R. McClelland:

That’s correct sir.

Potter Stewart:

So when he was talking about no possibility, no substantial possibility of abuse, he was talking about no substantial possibility of abuse under his Bill which became Law and which you are now attacking.

So you can—I don’t know it is remark serve, very helpful to you?

E. R. McClelland:

No, all I’m asking you this —

Potter Stewart:

You’re attacking the Bill that he sponsored and —

E. R. McClelland:

In this particular instance sir, I’m not attacking his Bill.

I’m all favor of his Bill, but I am attempting to attack and starting the attack is the question of abuse and in this particular instance, as it would affect this question of consideration between the two classes of individuals.

Potter Stewart:

But, the problem in this case is that the law which was as I understand it, had its genesis and a Bill sponsored by Senator Allen, supported by Senators Curtis and Dominic and obviously by the majority of both houses ultimately, that that Bill contains in it a limitation for adoption of the eligibility of adopted children that those adoptions have taken place under a Child Placement Agency.

That’s the knob of the question in this case isn’t it?

That’s provision of the law.

E. R. McClelland:

That’s correct sir.

Potter Stewart:

Is it not?

E. R. McClelland:

Yes sir.

Potter Stewart:

And it’s been held by the Agency that a court even a juvenile court or any other kind of court is not a Child Placement Agency within the meaning of that provision of the federal law.

That’s what the issue in here is, isn’t it?

E. R. McClelland:

Yes sir.

Warren E. Burger:

Congress had two objectives did they not?

First to prevent people who were in this position receiving benefits from exploiting potential benefits that would be paid to the adopted child, and to see also that the adopted child was not taken into homes that were not adequate?

E. R. McClelland:

Correct sir.

Warren E. Burger:

Now, hasn’t the Court said many times that in many cases that the fact that a regulation may occasionally reach some blameless person when its aimed at a larger target of preventing abuses, it will be sustained.

E. R. McClelland:

That also is correct sir.

What I am saying here this morning sir is that the possibilities and the probabilities of a grandparent adopting a child for the purpose of obtaining money, I think is just too far remote for such a consideration.

Warren E. Burger:

Well of course Congress can’t legislate on specific cases.

It legislates for the generality of the situations.

E. R. McClelland:

Mr. Chief Justice, of the 200 and some odd cases that we have relative to adoptions that we’ve had since I’ve been with this particular program in the last six years, more than 50% of them have been grandparents adopting children.

I would dare say that no one of those grandparents whether the child be legitimate or born out of wedlock.

The question of money, does not enter into it.

It’s a question of love and affection on the part of grandparents that goes back to the beginning of — I’m sure that’s the Court is well aware of that.

Byron R. White:

Well, what is the purpose then of their adopting the grandchild?

E. R. McClelland:

For the purpose of providing a home for them generally sir, that’s the case here.

Byron R. White:

Or simply they do that without adoption?

E. R. McClelland:

They could do that.

In many instances they do, do it, but when —

Potter Stewart:

It also might be the purpose of might giving a child a name and making the child legitimate?

E. R. McClelland:

That’s correct, that’s as to those who are born of wedlock that’s true sir.

Byron R. White:

But that’s not applied to those born in wedlock.

E. R. McClelland:

But it does do however sir if in the absence of a natural parent.

It does provide for them and give to them short of going out and getting and oppressing a guardianship the legal rights to the child to order certain things done on their behalf.

Byron R. White:

Well, are you suggesting that all of your grandparent/grandchild adoptions are situations where the “a natural parent” is absent to the death or something?

E. R. McClelland:

As a general thing sir, I will say this that the children come to a grandparent during times of adversity regardless of what the adversity happens to be.

Warren E. Burger:

Under the law of West Virginia, does an adoption change or alter in any way the status of the illegitimate child and may render it legitimate.

E. R. McClelland:

Yes sir, under our laws —

Warren E. Burger:

The adoption by a grandparent or a stranger, or is it just limited to the adoption by the parent, natural parent?

E. R. McClelland:

Any adoption sir, under our adoption laws make the adopting parent in the same position exactly as if that child had been born in lawful wedlock, and any and every respect, our courts and our laws have been following that classification had gone just as far as they possibly can in doing that.

William H. Rehnquist:

Mr. McClelland.

E. R. McClelland:

Yes sir?

William H. Rehnquist:

Would you follow up a little bit on Mr. Justice Blackmun’s question to you?

Just what is it besides financial benefits that one — that a grandparent gets from legally adopting a grandchild but he couldn’t do without simply having a grandchild live in his home?

E. R. McClelland:

Well, for one thing sir, authorization for medical attention –surgical attention and that sort of thing, for the responsibility of the child as a parent rather than let’s say as a foster parents, or just as a friend as babysitter.

William H. Rehnquist:

What tangible elements flow from that responsibility?

E. R. McClelland:

That this child then becomes a;, for all intents and purposes, a natural child.

That the name is changed.

That any records no reference could ever be made by anybody in the future that this child was not a child born of this actual marriage.

They received the rights of inheritance.

The natural parents lose that same right.

All the rights, duties and responsibilities under an adoption in West Virginia flow to an adopting parent and to the child just the same as if the child had been born in lawful wedlock.

As pertains, when we’re talking about benefits and so forth had in this particular instance Mr. Morris rather than, at the time he adopted this child, of course he could not have taken advantage of going to the Child Placement Agency because he adopted the child a year previous to the time this law went into effect, a year or two maybe.

If he had chosen to say as the Fourth Circuit put it, if well he could’ve given this child to the welfare department and then the welfare department could’ve given it back to him and that would’ve been alright, then there would’ve been compliance with this requirement.

But sir, if he is going to give him the welfare department or a Child Placement Agency, under our laws the best interest of the child according to law, he may or may not have gotten the child back if they could’ve found a good home for it, they would have placed this child elsewhere.

William H. Rehnquist:

What are you suggesting that Mr. Morris’ home wasn’t a good home?

E. R. McClelland:

No sir, no sir, I’m saying what a placement agency could have done or our welfare department which is about the only thing that we have in the State of West Virginia and all it comes close to being a Child Placement Agency or Public Placement Agency.

But had he done this, had he set up his home as a foster home and says now, “You send the child over to me and as a foster child since the parents were then gone.”

He had gotten more money by the foster home by a replacement angle then he would have more social security benefits.

The difference was I think about $8.00 a month.

As a question of the real issue why we are here,i would like to catch it, real quick before my time is up.

Warren E. Burger:

Yes, your time is almost expired now, counsel.

E. R. McClelland:

Thank you sir.

And that has to do with the questions of our court here and whether or not this is properly the — but before our juvenile court and whether or not that is a placement agency and since my time is almost up Your Honor, I would respectively request of this Court that that question, I think is really fully covered within our brief and I would ask that this thing of Child Placement Agencies as it relates to the West Virginia Laws would be considered by this Court on brief.

Thank you so much for your consideration.

Warren E. Burger:

Thank you Mr. McClelland.

Mr. Fleischer.

Walter H. Fleischer:

Mr. Chief Justice, and may it please the Court, I think that a short review of the development of the provision dealing with benefits for adopted children may be helpful in assessing both whether there are issues which ought to be decided now despite the repeal of the disputed provision after certiorari was granted and also in the merits of those issues.

Before 1960, child’s benefits were not payable unless the child was born or adopted prior to the wage earners disability.

In 1960, the Act was amended to permit payment to natural children born after the disability and also to adopted children who were adopted within two years of the disability.

If the adoption proceedings had been started prior to the disability or the child was already living with the wage earner.

Petitioner was not entitled to the benefits under that 1960 provision.

And the idea of the 1960 provision stated in the committee reports was to assure that benefits will be paid to such children only when there is a basis for assuming that the child lost the source of support when the worker became disabled or died.

And further, the Congress said that it’s purpose was to guard against abuse to adoption of children solely to qualify them for benefits.

Both in our view are perfectly proper concerns of Congress and the question is whether the later 68 provision bears a rational relationship to those concerns.

Walter H. Fleischer:

Now as we’ll also see, the relative emphasis Congress has given these considerations has changed over the years and particularly between the 68 and 72 provisions, this is one reason that we disagree that the constitutional issue would be the same under the 72 Amendments as it is under the 1968 Amendments.

And therefore, this is one reason we don’t think that this broad issue is appropriate for decision now.

Now, in 1968 Congress liberalized the provision of Section 202 dealing with adopted children disability beneficiaries by providing benefits for not only those whose adoption was contemplated at the time of disability, but after adopted children who met certain tests particularly that the adoption be court decreed and that it be supervised by a Child Placement Agency.

It was felt that those two requirements would provide adequate protection against adoptions for the purpose of obtaining benefits.

Well, they would cover certain hard cases which had arisen under the old provision.

I will be noted that this 1968 provision somewhat departed from the earlier idea that the statute should aim only at taking care of children who lost their source of support when the wage earner was disabled.

But the 72 Amendments moved back in that direction.

They still allow benefits based on a later court decreed adoption irrespective of the time the court decrees the adoption.

But they do so only when the child lost the source of support because his parent retired or became disabled.

That is, they provide that the child must have been living with the wage earner for a year prior to the disability in receiving at least half the support from the wage earner.

Potter Stewart:

What’s involved here is the law as it was in the period of 1968 to 1972.

Walter H. Fleischer:

Correct.

Potter Stewart:

And the issue here as I understand it you tell me please, if I misunderstand it, is the validity boils down and that balanced to the validity of the regulation that says that the court is not and cannot be a Child Placement Agency.

That’s the specific issue isn’t it?

Walter H. Fleischer:

Yes and [voice overlap]

Potter Stewart:

And its impact in this West Virginia case where the criminal court in this county acted as a juvenile court and the court got the local policeman to make an investigation of the home and the claim is that not to allow this kind of a situation as a deprivation of due process of law.

Walter H. Fleischer:

Yes, I think that that’s correct.

That’s what is left in this case.

This particular case is not moot.

We were aware no other case pending —

Byron R. White:

Mr. Fleischer, could you tell me why the new, in the 72 Amendment does not apply to this case?

Walter H. Fleischer:

There is a yes, yes, Mr. Justice White, Section 1 (11) (b) of the 72 Amendments provides a specific time clause and while it’s a bit ambiguous that Social Security Administration has interpreted that clause to mean that as to applications filed before the ’72 Amendments became law that the applicant gets the best of the two.

Byron R. White:

So that even the applicant — if by some possibility the applicant is disqualified under the 68 and 72 provisions, he could still take advantage if the 72 Act if he qualifies to that.

Walter H. Fleischer:

Yes, but in cander, I must say that its quite clear that this plaintiff does not under either — this case is not moot.

The issue stemming from the placement agency requirement are of no general or perspective importance there maybe a few applications still pending which raised it that —

Byron R. White:

Well is it still then that the ‘72 provisions would not be applied to disqualify who would qualify them to a previous?

Walter H. Fleischer:

That’s correct.

Now, turning to the merits, I believe that both of the petitioners, well, I should say one other thing about the liability of the case at this point before turning the merits, and that is that the entire controversy in the courts below both statutory and constitutional, was based on the particular feature of the adopted child benefit provision that is the supervision feature.

The broader challenge to Section 202 is discriminating between adoptive and natural born children was not made or considered below.

So this is really the first court which had it in both because of that and the change in philosophy between the 68 and 72 Amendments.

Walter H. Fleischer:

We don’t believe it should be decided here first.

Potter Stewart:

As I understand it that your — before you move on to the merits theory, your initial argument here is that we ought to dismiss this writ as has been probably granted.

Walter H. Fleischer:

That’s the —

Potter Stewart:

— because the law has never changed and because of this beyond the confines of this particular case it has very little impact if any, but you’re not making the argument if this particular case is moot.

Walter H. Fleischer:

That is the correct statement of our position.

Potter Stewart:

The rights of the party still depend on the decision of this case?

Walter H. Fleischer:

Yes, now —

Thurgood Marshall:

When we get to the merits how many counties are there similar to this?

Walter H. Fleischer:

I simply can’t say the record doesn’t disclose Mr. Justice Marshall and it —

Thurgood Marshall:

Wouldn’t it be important to find out how many children are denied these benefits solely because they happen to be in the county that’s like this one?

Walter H. Fleischer:

Well I don’t believe Mr. Justice Marshall that this plaintiff is denied solely because of that reason.

Really, the reason that issue arises is because of the perspective nature of the 1968 Amendments.

Had the adoptive parents –had 68 Amendments been the law when this adoption took place, there could’ve been qualification.

Now in passing the amendments in 1968, perhaps unfortunately the Congress did not go back and try to pick up the prior adoptions, but we would submit that when it was passed in 1968 it was a reasonable provision for the future, and the fact that it didn’t go back and pick up all earlier cases does not make it unconstitutional.

So I don’t believe we do have to know how many counties there are in this circumstance.

But if it were relevant unfortunately, the record does not disclose that and I don’t know the answer.

Byron R. White:

But you don’t know of any other actual cases that depend on this?

Walter H. Fleischer:

No Mr. Justice White, counsel has represented this morning that there is one other now and I don’t doubt to that maybe so.

Thurgood Marshall:

But can I take judicial notice that there are many counties in this country that don’t have Child Placement Bureau?

Walter H. Fleischer:

Well, even assuming that so, that doesn’t mean that in out county agency cannot supervise the adoption.

Thurgood Marshall:

Well, suppose they don’t.

Walter H. Fleischer:

Well in the first place, I don’t believe…

Thurgood Marshall:

I guess the child should move to another county.

Walter H. Fleischer:

Well, I don’t know that there is any basis for the supposition in the first place.

In the second place, assuming that the number is small, the fact that legislation does not cover every case to which its rationale should apply.

I don’t believe there’s a basis for a constitutional invalidation under such decisions of this Court as Jefferson versus Hackney and McGallan.

Now, I believe both of the petitioner’s constitution arguments depend heavily on the criticism of the Congressional determination that it ought to guard against adoptions for the purpose of obtaining benefits.

I’d like to give a practical common place illustration and why this danger is inherent in this situation of post disability adoptions.

Let’s suppose for example both a grandparent, and an aunt and uncle of the child are considering adopting the child.

And let’s suppose that in the particular case the aunt and uncle might be able to better educate the child and provide him a home with children his age and for other reasons might be a more suitable home.

Walter H. Fleischer:

Now, if the grandparents are responsible and upstanding citizens, they may well pass the state adoption test and their petition might be granted.

But Congress recently might not want this decision influenced by the desire to get additional social security benefits.

So it is not only the case of the crass attempt to use a child which is protective against behind the adoption by placement agency case.

But in addition, situation such as I have described and allowing benefits in the case of post disability adoptions only where a court decreed the adoption and the adoption is supervised by a placement agency, is a very rational way of being sure that the motivation isn’t social security benefits.

But instead the one specified by the state’s adoption laws.

Now, if this is so, is brought home by a decision of the New Mexico’s Supreme Court which we cite at page 18 of our brief (inaudible).

This was a grandparent case, and in that case, it was only because the State Welfare Agency pursued the case all the way up to the highest court of the land that in adoption for the purpose of obtaining social security benefits was stopped.

Now, of course the petitioner is going to urge the Congressional evidence in avoiding this kind of situation is excessive.

There’s really no way of knowing statistically how often it occurs, or the Congress was too cautious and bent over too far backward in having social security considerations intrude into the state adoption process.

But we would submit that those arguments ought to be directed to another branch of government.

And they don’t show the irrationality of the test Congress set up or its lack of relationship to the goals of Congress.

Now, to be sure that this classification may not be perfect and that this particular case may show that it isn’t, there would seem to be some difficulties and also however, in what appeared to be the principal available alternatives, either reducing the protection of both children and the public, or having the Social Security Hearing Examiner try to decide the subjective motivation of the adoptive parents on the case by case basis.

Furthermore, an after born natural child is not situated identically to a post disability adoptee and has the distinction as proper.

First, the possibility of the subordination of the child’s interest aren’t present in the case of the natural born child.

And second, in terms of the wage earner — the loss of the wage earner’s support there may be a difference.

In the case of a natural child later conceived, it can’t be assumed that the conception was based on a decision which considered the ability to support the child.

However, if there is a later adoption, we can assume that the adopting court would not issue the decree if there were not an ability to support the child.

Finally, I would close by saying that we would consider the attack in the child placement supervision requirement as it applies to the particular situation in West Virginia due to the lack of the agency in some counties a little wide off the mark.

Again, it seems directed to showing that the Act created an inequity in this individual situation, which isn’t sufficient to invalidate the statute.

But, moreover the distinction flows from the fact that Congress addressed the problem in the 1968 in the perspective fashion and didn’t say that they draw prior adoptions.

Thurgood Marshall:

In this particular case, suppose they moved to a county that did have a placement settlement and qualified and then move back to this county what would happen?

Walter H. Fleischer:

You mean, if the adoption in the first place had been in a county where —

Thurgood Marshall:

Or they are living in a county where they can’t get it and they moved into a county where they can get it and they do get it.

And they moved back to the county where originally they couldn’t get it.

What happens?

Walter H. Fleischer:

Well, I would think that if the adoption is valid under the state law that its move was not solely for purposes of qualifying —

Thurgood Marshall:

I’m just trying to find some way this family could get it so they could get it by moving to another county and then moving right back.

Walter H. Fleischer:

Well, I’m not certain Mr. Justice Marshall that the adoption could now be undone and reinstitute it.

I didn’t look to this point up under West Virginia law.

I simply can’t ascertain whether that’s possible.

Walter H. Fleischer:

However, one thing is clear and that is that West Virginia does not like to revoke in adoption already granted and I think it would be difficult.

But the law doesn’t directly address the point.

Well, unless there are questions of the Court.

Warren E. Burger:

Thank you Mr. Fleischer.

Do you have any further?

You have two minutes Mr. McClelland.

E. R. McClelland:

Your Honor on the question of adoptions and placements here there is no way that I could give justice to that in two minutes and all I can say is, well, thank you for your consideration.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.