Saenz v. Roe – Oral Argument – January 13, 1999

Media for Saenz v. Roe

Audio Transcription for Opinion Announcement – May 17, 1999 in Saenz v. Roe

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William H. Rehnquist:

We’ll hear argument first this morning in No. 98-97, Eloise Anderson v. Brenda Roe and Anna Doe.

Mr. Garelis.

Theodore Garelis:

Mr. Chief Justice, and may it please the Court:

We are here today because California has been stymied and hampered in its efforts to exercise flexibility implementing a nationwide congressionally authorized program of welfare reform.

California is merely asking that its statutes be judged under the traditional, appropriate, rational basis analysis standard and not under strict scrutiny which is unduly restrictive.

Strict scrutiny, as we all know, is appropriate only in an equal protection context–

Sandra Day O’Connor:

Well, when… when you… when you have a… an alleged invasion of the right to travel, the right to move to another State freely and enjoy the benefits there as a new resident, we have applied something other than rational basis scrutiny to test that invasion.

And you’re telling us that we… we should abandon that–

Theodore Garelis:

–I think what–

Sandra Day O’Connor:

–stricter test.

Theodore Garelis:

–I am not asking you to abandon the stricter test.

What I’m asking you to recognize is that our statute does not either impact a fundamental right to travel or suspect class or any other right.

Our statute is–

Sandra Day O’Connor:

Well, certainly we have some authority from this Court that durational residence requirements do affect the right to travel.

Theodore Garelis:

–Except that our durational residency requirement, because it affects only a benefit level decision… it does not affect eligibility… is not therefore a penalty.

A penalty would be something, in the context of this, where someone moving–

Sandra Day O’Connor:

Well, I… I think you’d be hard pressed to tell a family that is forced to live on welfare that instead of getting California’s, let’s say, $600 a month, it has to live on $300 a month for a year, that that’s not a penalty.

I mean, this is… this has grave consequences for that family.

Theodore Garelis:

–Because our statute is carefully crafted to avoid the considerations that you’re talking about, Your Honor, our statute is carefully crafted to be a temporary level, a temporary level of 1 year, and the family is eligible for all of California’s welfare benefits.

The family is eligible for cash aid.

It’s just a benefit-setting adjustment for a period of 1 year.

Anthony M. Kennedy:

Well, just on that standard of… of review point, if we were to find… and I know you… you disagree with this, but if we… if we thought that the right of travel were implicated here, were affected here, would the standard then be strict scrutiny?

Theodore Garelis:

Yes, it would be if… if the… if our statute touched on the right to travel more than just incidentally and remotely, and at best our statute impacts upon that right remotely and incidentally.

Any change in benefits level or any change in life condition upon somebody’s move obviously affects somebody’s decision to move.

People move from one State to the other based upon a wide variety of reasons.

This is just–

Ruth Bader Ginsburg:

But, Mr. Garelis, I thought that was the whole point of this line of cases, that the newcomer, unless there’s a reason to suspect that they’re going to take the benefit and run… that the newcomer should be treated like the long-term residents, that that is the genius of the United States, that people can pick their States and States can’t pick their people.

Theodore Garelis:

–California is not picking its people, and people are fully able–

Ruth Bader Ginsburg:

It’s making a distinction between longer-term residents and the person who is a newcomer.

And that runs through all of these cases, that you can’t… well, perhaps you have some precedent in mind that’s not in the front of my head.

Ruth Bader Ginsburg:

But I don’t know in that line of cases that distinguishes new residents from older residents, that there has any… been any one other than the two where there’s reason to suspect that the claim of residence is not genuine.

Are there any such cases?

Theodore Garelis:

–But the cases that discuss this do it in terms of cases like Shapiro and Memorial Hospital where there’s an absolute denial of benefits, and we do not have an absolute denial of benefits.

Our newcomers–

Ruth Bader Ginsburg:

Well, I suppose you could think of the Maricopa County as not a denial of benefits because they were given emergency care, so it wasn’t they couldn’t get any benefits.

Theodore Garelis:

–But there was a complete denial of non-emergency care, and we don’t have that in our case.

What we have is people are entitled to benefits.

States are entitled to set benefits at the rate that they believe is consistent with their budgetary constraints.

Anthony M. Kennedy:

But I’m puzzled why you say that that… that that is not… does not impact the right of travel.

I thought the whole purpose of this was to discourage migration for higher welfare benefits.

I thought that was the objective of the statute.

Theodore Garelis:

No.

Anthony M. Kennedy:

That’s not the objective of the statute.

What is it?

Theodore Garelis:

No.

The objective of the statute is clear on the face of the statute: number one, to save money; number two, to help reform the welfare system by removing a possible incentive to move to a higher benefit level State.

Anthony M. Kennedy:

All right.

Well, then… then it does affect the right of travel.

Theodore Garelis:

There is an impact on the right of travel, but it’s not sufficient.

It is only remote and incidental at best.

Anthony M. Kennedy:

Well, it’s… it’s the second of the two purposes you offered to explain the statute.

I… is 50 percent substantial?

Theodore Garelis:

I’m sorry.

I don’t understand.

Anthony M. Kennedy:

Well, you said that there were two objectives of the statute.

One was to save money and the other was to deter migration.

And I said, well, isn’t that… migration for purposes of higher welfare benefits… I said isn’t that a… a substantial impact.

It’s… at least one-half of the purposes that you’ve offered affects travel.

Theodore Garelis:

No, it isn’t because, as I stated, we’re making a very careful distinction here.

We’re not trying to deter travel in any way, shape, or form.

Theodore Garelis:

Because our statute is carefully crafted for a temporary limit and people are given the rate that is the maximum made payable in their prior State of residence and it’s only one part of our panoply of welfare benefits, it is not a deterrent.

We are merely neutralizing one factor that somebody might care to consider when moving to California.

That is not–

Antonin Scalia:

You’re saying that the elimination of an incentive is not necessarily a deterrent.

Theodore Garelis:

–That’s correct.

Stephen G. Breyer:

I don’t understand that.

I mean, if I have… Shapiro I guess… Shapiro, for whatever theory of it, I mean, it holds, doesn’t it that a State cannot say no welfare for a year, and the reason a State wanted to do that is so people wouldn’t come to get a higher welfare benefit.

Well, you say not no welfare, but reduced welfare for a year, and the reason we’re doing that is so you don’t move here to get a higher welfare benefit.

I mean, what’s the difference?

The only difference is you’re more generous but not really that much more.

I mean, somewhat more generous.

What’s the difference in the… in the… in the theory of it?

Theodore Garelis:

Well, in… under Shapiro, the people affected by those statutes were not eligible for benefits.

Here people are eligible for benefits.

Antonin Scalia:

No, I understand that.

You’re… but… but you’re… you’re going to save money by the means of not providing an incentive to move, say, from Mississippi to California.

Now, if you were trying to save more money by not giving them anything so they wouldn’t move to California, it’s clearly unconstitutional under Shapiro.

So, why is it constitutional just because you’re trying to save a little less money?

Theodore Garelis:

It’s constitutional because our statute should be judged under the rational basis standard.

Under Shapiro, they used strict… your… this Court used strict scrutiny, and under our statute, because we have a temporary benefit setting level and because people are entitled to welfare at a State mandated rate, to cash aid welfare, and they’re entitled to all other welfare benefits, our statute does not impact on the right to travel to the extent that was prescribed by Shapiro–

Antonin Scalia:

So, you… you acknowledge it’s a matter of degree.

Theodore Garelis:

–And I believe this Court has acknowledged that in the footnote in Shapiro which states that not all waiting periods are penalties because our statute–

Antonin Scalia:

They said that… well, I mean, they could have said that not all waiting periods are penalties simply because some of them may be made to assure that the… a person coming into the State genuinely wishes to become a resident.

Isn’t that the tenor of that qualification?

Theodore Garelis:

–I don’t… I don’t believe in… in terms of the footnote in Shapiro, that it makes that qualification.

This Court has stated that in terms of the Sosna case and the cases on tuition, but we believe that our case where people our… are eligible for welfare benefits, they… they receive welfare benefits.

The only thing is that they’re receiving them at a State mandated rate.

And whenever somebody moves to another State, people do get different rates of welfare and that has not been… of cash aid.

And that has not–

Ruth Bader Ginsburg:

Is it a part… does the same principle apply at the other end?

Ruth Bader Ginsburg:

Suppose I move to a State that has a lower State income tax than the State from whence I came or a lower property tax.

Could State 2, my State of new residence, say, well, for 1 year you’re going to pay the higher tax that you paid in the State from whence you came?

It seems to me that that would follow, would it not?

Theodore Garelis:

–Well, I don’t believe so.

I think the tax situation is a different situation because you have so many… it has so many different impacts.

You’d have to look at and see–

John Paul Stevens:

Well, but your tax standards are generally rational basis.

So, it seems to me you have a stronger argument there to say we’ll collect the higher tax from the non-resident because we don’t want to give him all these public services.

You know, the… the incentive to move to the State is the lower tax rate.

Theodore Garelis:

–Well, whenever people move from one State to another, there are differences… changes in all forms.

What we’re merely saying is that none of those differences, et cetera are customarily judged to be restrictions on the fundamental right to travel.

Ruth Bader Ginsburg:

So, I just want to know where… how far this principle goes.

Are you now saying, yes, you can treat a person moving into your State as though that person still belonged from the State from whence he came for 1 year, whether income tax, say, unemployment compensation, or is it… is there any limit to this?

Is there something special about welfare that distinguishes it from other kinds of benefits?

Theodore Garelis:

There’s something very different and distinct about what California is doing because California has carefully limited what it’s doing to merely the benefit level, and States have the prerogative and do have different benefit levels–

Ruth Bader Ginsburg:

Well, I can understand that in terms of, say, workers’ compensation or unemployment compensation.

The same thing.

Suppose California said, we have higher benefits, but you’re a newcomer, so you get the lower benefits till you’ve been with us 12 months.

Theodore Garelis:

–I think what you have to look at, the analysis that would have to be done is you look and see whether or not there has been a detriment to the person who has moved.

Is there a difference between what that person was receiving in the prior State compared to what they’re receiving in California.

Our statute is carefully crafted–

Ruth Bader Ginsburg:

I’m giving you the concrete example of unemployment compensation, workers’ compensation.

Theodore Garelis:

–Okay.

Ruth Bader Ginsburg:

You get less… you got less in your original State.

California is more generous.

Yes or no?

Is the same principle applicable?

Theodore Garelis:

Since it’s… since it’s a benefit, since… I would say the answer is it would be the same.

You would judge it under the rational basis scrutiny.

Ruth Bader Ginsburg:

How about a car registration?

Ruth Bader Ginsburg:

Let’s say my State of origin charges more annually… less… more annually… right… more annually to… to register my car.

Can State 2 say, we… we need money, because you said money is the driving force here, so we’re going to charge you the higher registration that you would have paid in the State from whence you came?

Theodore Garelis:

If it’s an easily quantifiable amount and you can tell that the person is receiving no detriment upon moving, if it’s–

Ruth Bader Ginsburg:

It’s a hundred dollars.

I have to pay a hundred dollars in the State from whence I came, and California charges $50.

Theodore Garelis:

–I would tend to say that it would probably be judged under the rational basis scrutiny.

Ruth Bader Ginsburg:

Could California then say, for 1 year you pay a hundred dollars?

Theodore Garelis:

If it’s temporary and if there is no detriment to the person when they cross the border–

Ruth Bader Ginsburg:

Well, tell me.

Is there?

Theodore Garelis:

–I… I don’t see that detriment, no.

Antonin Scalia:

You say it’s… it’s judged under the… under the same test.

You wouldn’t necessarily have to say that it passes the test–

Theodore Garelis:

No.

I–

Antonin Scalia:

–the way this one does.

Theodore Garelis:

–I believe–

Antonin Scalia:

People generally don’t move to get a lower license fee, and it is thought that people do move to get higher welfare benefits.

John Paul Stevens:

Yes, but they move to get lower tax rates all the time.

Antonin Scalia:

Well, and that… that one may well come out the other way.

Theodore Garelis:

–What we are merely suggesting is that rational basis would be the correct scrutiny.

It does not impact on a fundamental right–

Anthony M. Kennedy:

Mr. Garelis–

–I’m writing this opinion under… under your view.

I begin by saying there is a… less of an impact on travel in this case than in Shapiro.

Therefore, rational basis, not strict scrutiny applies.

But what could I cite for that then?

What case do we have where the degree of impact affects the… the level of scrutiny?

That seems to me a very new principle.

Theodore Garelis:

–Well, I believe the Sosna case leads you towards that direction.

Theodore Garelis:

This Court’s footnote in the Shapiro case, which was taken up in the Memorial Hospital case, where waiting periods have not been regarded as absolutely a penalty.

I believe that this precedent of this Court would fully support that.

In Sosna, in the tuition cases, there have been acknowledged that there is maybe an impact on travel but it is not strong enough.

It does not meet the… the standards that are set out–

Ruth Bader Ginsburg:

Mr. Garelis, I thought when we discussed those two cases before, you recognized… perhaps you didn’t… that there is in both a genuine suspicion the person has come into the State to get a benefit and then go.

In the welfare situation, that’s not the case.

The likelihood is the person has come there to stay, not to… there isn’t a suspicion about the genuineness of the claim of residence, and that’s what distinguishes Starns and… and–

Theodore Garelis:

–I recognize that, but on the other hand, the question was has it been determined that a… by this Court that a waiting period that does not impact… that waiting periods don’t necessarily impact the fundamental right to travel absolutely.

What this Court has determined, that not all waiting periods impact the right to travel.

And we are simply saying that our statute does not impact the right to travel sufficiently to trigger strict scrutiny.

Anthony M. Kennedy:

–If I–

–If we were to disagree with you, would the congressional statute make a difference?

Are you going to argue that Congress can somehow permit what otherwise would not be allowed under the… our right of travel cases?

Theodore Garelis:

The congressional authorization is important because it shows that the concerns underlying the right to travel are met and have been considered by this program because the right to travel… the point of this… of… of this Court’s concerns and all of our concerns about the right to travel is whether it breaks up our country.

Does it vulcanize various States?

The Federal authorization shows that these concerns are greatly minimized by Congress’ action.

David H. Souter:

How are they minimized?

I mean, how are they minimized by the fact that Congress may come along and say, go ahead and vulcanize?

Theodore Garelis:

Congress is not saying go ahead and vulcanize.

Congress is simply saying that nationwide we have a determination, we have a policy that… that we will reduce this particular incentive to… that may impact on a person’s decision to travel.

David H. Souter:

Right.

We will… we will induce… we will induce the incentive to travel for the sake of better welfare benefits, and that in the past has… has not been regarded as a legitimate governmental purpose.

How does it become a legitimate governmental purpose simply because Congress has said it’s okay?

Theodore Garelis:

It’s a legitimate purpose because, number one, Congress has shown that the concerns underlying the right to travel are greatly minimized in this case and it… and it also–

David H. Souter:

Well, but that… that has nothing to do with whether Congress says so or not.

They’re either minimized or they’re not minimized.

If in fact we believe the proper analysis of this case is that a… a determining objective of the statute is to eliminate the incentive to travel for better welfare benefits, then is there anything that Congress can do, in effect, to take the poison out of that… the constitutional poison out of that objective?

I would have thought not, but–

Theodore Garelis:

–Well, I… I think the point really here is that nobody is being denied welfare benefits.

David H. Souter:

–Well, they’re being denied whatever the differential is.

David H. Souter:

I mean, that’s… we’re playing with words.

They’re going… for the… for the 1-year period, they’re going to be denied whatever the… whatever the differential is.

Right?

Okay.

So, they’re being denied those benefits.

Theodore Garelis:

They’re being denied those benefits and those benefits simply are not substantial enough to trigger strict scrutiny.

David H. Souter:

You’re saying they’re de minimis?

Theodore Garelis:

Basically, yes.

David H. Souter:

All right.

Let me–

John Paul Stevens:

–How can you say that if there’s a differential in the cost of living between two States.

If $600 is adequate in California and nothing less is adequate, how can $300 be adequate?

Theodore Garelis:

Because the–

John Paul Stevens:

If it was adequate in Mississippi, it’s got to be adequate in California?

Is that your position?

Theodore Garelis:

–There’s no guarantee that the amount of cash aid is adequate in either the State that someone is coming from or the State–

John Paul Stevens:

Well, but the State legislature in California has made a judgment that $600 is the adequate minimum for ever… whatever class of beneficiary you have, which is… and anything less than that, I would assume, the… even though it may be adequate in another State is not adequate in California.

That’s what the California judgment is.

Theodore Garelis:

–I would beg to differ with Your Honor on one point.

There’s been no determination by the State of California’s legislature, when it set the cash aid benefits, that that amount met any basic standard or anything.

It was simply the amount that that legislature determined–

John Paul Stevens:

Determined to–

Theodore Garelis:

–budgetary constraints of the State of California.

Antonin Scalia:

–They may just have decided that’s all we want to spend on it.

Theodore Garelis:

I believe that’s exactly what it is.

The… the rate, the level of benefits is not keyed or tied into or reflective of any certain standard of living.

John Paul Stevens:

Well, but if your objective is to save money, which you say, why don’t they just cut them in half for everybody?

There’s obviously some reason behind setting the levels they do set.

Let… may I ask another question about–

Theodore Garelis:

Sure.

John Paul Stevens:

–You mentioned the fiscal justification for it.

Does the record tell us what percentage of the California budget for this program would be affected by a different result in this case?

Theodore Garelis:

No, I don’t believe… I’m… I’m not aware of what the record states the whole impact on the budget.

We set out in our petition the amount of the expected cost savings for this program.

But really, the point is, is that the legislature determined that this was an adequate cost savings amount to justify–

John Paul Stevens:

Without knowing what it is?

Theodore Garelis:

–Excuse me?

John Paul Stevens:

Do they… do they know what the cost saving is for the program as a whole.

That’s what I’m asking you?

Theodore Garelis:

Yes.

Yes, they do.

John Paul Stevens:

And can you tell us what it is?

Theodore Garelis:

As–

John Paul Stevens:

As a percentage of the total budget.

Theodore Garelis:

–I’m not aware of the percentage–

John Paul Stevens:

Of the total welfare budget I mean.

Theodore Garelis:

–I… I… I’m not aware of those figures.

David H. Souter:

Mr. Garelis, do you–

Antonin Scalia:

–What’s the absolute figure?

I’m interested in the absolute figure.

Never mind the right… I mean, you know.

A billion dollars is a billion dollars.

I don’t care what it’s a percentage of.

Theodore Garelis:

As stated at page appendix 37 of our petition, paragraph 6, for the ’97-’98 fiscal year, the California Department of Social Services projected, because we haven’t been able to implement the statute… projected that the implementation of the statute would reduce total AFDC, now TANF, expenditures by $22.8 million, and of that total reduction, California general fund expenditures would be reduced by $10.9 million.

Stephen G. Breyer:

Well, you can’t just use… you can’t save money just by, I mean, randomly selecting people to pay less, can you?

I mean, we’ll save $10 million next year by not paying money to anyone whose name begins with Q or reducing their… you couldn’t do that, could you?

Theodore Garelis:

Well, if… if that does not impact the fundamental right and does not impact a suspect class, then that program would be adjudicated under a rational basis–

Ruth Bader Ginsburg:

How about 5 years?

That is… well–

–Could… could you… this is 1 year.

Ruth Bader Ginsburg:

Would your answer be the same if it were for 5 years you’re treated like you were in the State from whence you came?

Theodore Garelis:

–I think my answer would be different for a variety of reasons, Your Honor.

Ruth Bader Ginsburg:

A different standard of review?

Theodore Garelis:

I think very probably so, Your Honor.

I think you have to perform the analysis and see whether or not a… a program that’s different than what California has impacts sufficiently on the fundamental right to travel strict scrutiny.

A–

Ruth Bader Ginsburg:

So, if you say 5 years, the answer would be different than 1 year.

Theodore Garelis:

–Anytime you increase the… the disability under which the person is impacted, obviously you’re getting closer and closer to something in Shapiro and Memorial Hospital, which is an absolute denial.

But because California has chosen very carefully the period of 1 year, which is a period that this Court has recognized in, as I’ve stated before, the Sosna case, this did not in that case implicate the right to travel sufficiently.

1 year would appear to be an amount that would not… a time period that would not sufficiently impact.

Ruth Bader Ginsburg:

So, even under the rational basis test, if it were, say, 2 years, that would be no good, but the 1 year is all right.

Theodore Garelis:

At every point where you increase the time period, the temporary time period, I think you’re getting closer and closer to a permanent.

I don’t know where 2 years would be.

5 years sounds like an awful lot, especially in consideration of the fact that people are entitled to welfare eligibility in California for 5 years, which is the maximum amount allowable under Federal law.

So, 5 years would definitely seem to me to be a real problematic situation if I was trying to argue rational basis.

But we’re not.

David H. Souter:

Why did the State pick 1 year?

Theodore Garelis:

Why did the State pick 1 year?

David H. Souter:

Yes.

Theodore Garelis:

1 year–

David H. Souter:

What’s the justification for 1 as opposed to another number?

Theodore Garelis:

–1 year would appear to be an amount that… that does not sufficiently implicate the right to travel.

It’s not that long a time–

David H. Souter:

In other words, it was as much as they thought they could get away with.

[Laughter]

Theodore Garelis:

–I think they thought it was the amount that was… would be constitutionally appropriate.

Stephen G. Breyer:

Look, what I’m trying to get at… let me just… suppose you cut 30 percent from everybody whose name began with Q. All right?

I say, why are you doing that?

You say, to save money.

Is that rational?

Theodore Garelis:

That would not appear to be rational, and I’m not going to argue that it is rational.

However, our statute would appear to be rational.

Stephen G. Breyer:

Thank you, Mr. Garelis.

Theodore Garelis:

Thank you.

William H. Rehnquist:

General Waxman, we’ll hear from you.

Seth P. Waxman:

Mr. Chief Justice, and may it please the Court:

What distinguishes this case from the other interstate migration cases that this Court has decided is the presence of an explicit Federal authorizing statute part as a… part of a comprehensive national–

Sandra Day O’Connor:

I just don’t understand how if it impacts on the right to travel… I don’t see how the Federal Government can do it any more than… than a State.

Seth P. Waxman:

–Well, Justice–

Sandra Day O’Connor:

And I’d like you to explain that to us.

Seth P. Waxman:

–I… I would like to explain it and I hope to explain it.

It’s our submission that with respect to interstate migration, which is both a right of national citizenship and a structural feature of the national union, Congress stands in a position that is fundamentally different than any State legislature.

In Shapiro v. Thompson and Maricopa County, this Court said–

John Paul Stevens:

Are you saying Congress can authorize burdens on the right to move from State to State?

Seth P. Waxman:

–Congress cannot eliminate the… the right of–

John Paul Stevens:

If you could tell me the answer to that question.

Seth P. Waxman:

–Congress can regulate interstate movement and to some extent it can define the–

John Paul Stevens:

But can it just… can it pass something specifically intended to discourage movement from one State to another?

Seth P. Waxman:

–I don’t know whether it could do it purely for that purpose, but just as Congress but not the States can regulate and burden interstate commerce, Congress can also define to some extent the incidence of… the incident of national citizenship that constitutes the interest in migration.

David H. Souter:

Why?

Seth P. Waxman:

And I suggest–

David H. Souter:

Why?

I mean, your… I think your argument is because Congress has great power under the Commerce Clause, it in effect can… has some definitional role with respect to the right to travel, and I don’t see why that is so.

Seth P. Waxman:

–Well, I think, Justice Souter, it’s important when one talks about the right to travel, which is an enormously inarticulate phrasing of essentially an interest that encompasses both a prohibition or a restraint against direct impediments to move from one State to another and a prohibition against the States treating some of their residents less well than others because of recent migration, in effect, putting a penalty on people for recent migration.

The national legislature unlike any… a State legislature acts properly to pursue its own interests and the interests of its citizens counter to, and perhaps at the expense of, other States and the citizens of other States.

And this Court, starting from Chief Justice Taney in the Passenger Cases, through Edwards and many other cases, has recognized that in that respect, a State legislature stands in a different position–

John Paul Stevens:

No, but you’re supposed to be answering a question about where Congress gets the power to do all this.

Seth P. Waxman:

–Well, Congress… for example, in Shapiro, the Court said a State may not act to fence out poor people or may not act to fence out–

John Paul Stevens:

Does that imply that Congress can fence people out?

Seth P. Waxman:

–The Congress is not fencing anybody out.

Seth P. Waxman:

Congress is the legislative body that represents all of the people of the United States.

All of the indigent people of the United States are here.

And in Edwards, for example, this Court found it significant that California could not impose a burden because it was imposing a burden on people who were not represented by that State legislature.

David H. Souter:

No, but the argument here is that California is treating its own citizens based upon… in a… in a differential fashion.

And where in the Commerce Clause or anywhere else does Congress have the authority to affect a State’s right to discriminate among its own citizens?

Seth P. Waxman:

I don’t think it does per se.

What’s a little bit confusing about this case is we neither have a pure State program such as was at issue in this Court’s prior cases, nor do we have a pure Federal program in which Congress says, okay, we’re going to treat welfare like Social Security.

General Waxman–

David H. Souter:

–But the State is the determinant of the terms of the program.

Seth P. Waxman:

I’m sorry.

I didn’t–

David H. Souter:

The State, as I understand it, has sole authority to determine the term of its program.

Seth P. Waxman:

–Well, the… within broad limits–

David H. Souter:

Congress did not mandate the differential is all I’m getting at.

Seth P. Waxman:

–There is… this is a national program.

This is not the State’s–

David H. Souter:

Well, there’s a national welfare program, which leaves the terms of the program with any… within any given State up to the States.

Seth P. Waxman:

–Within limits… within limits defined by Congress and with respect to the authorization that’s in question in this case.

David H. Souter:

And the authorization, if accepted here, I take it, is an authorization by Congress to States to treat its citizens in two different classifications depending on their residence.

Seth P. Waxman:

The authorization in this case is that States may pursuant to a… a comprehensive national program for an important purpose that Congress articulated, allow States to apply a transitional choice of law rule that Congress thought would be important.

Ruth Bader Ginsburg:

Choice of law rule.

That… that really astonished me that you used the term, choice of law.

We’re not choosing the law of any other State.

It’s this California law.

California has two sets of law: one for newcomers, one for oldcomers.

Choice of law refers to there are two States that might supply the governing rule.

Either one, one could argue, is appropriate.

The form uses choice of law principles to pick between potentially regulating rules, but the old State has no interest, no claim to regulate anymore.

That’s over and done.

These are two… California law is the only law that’s being chosen.

Seth P. Waxman:

Well, the question is… as a strict matter, Justice Ginsburg, you’re correct.

I’ve used it in an analogic sense or descriptive sense because a… Congress has allowed a State to say, assuming that it isn’t… that it tailors its implementation to the purposes that Congress had, which I… I would… I hope I’ll be able to describe, to apply the benefit levels of a prior State.

And both California and the prior State, because of the way TANF works, do have an interest in that happening.

The prior State has an interest because it will be penalized.

The 1996 act envisions a mutual commitment between States and welfare recipients.

The States have a commitment to provide indigents with individualized support, training, and opportunities they need to get a job within a fixed period of time, and it obligates recipients to commit to participate in and to stick with a particular State’s program so that it has a chance to work.

Now, what section 604(c) does is to permit States to neutralize artificial incentives that the act itself produces for both States and individuals to act in ways that may diminish the efficacy of the Federal program itself.

Ruth Bader Ginsburg:

So, the first State, the State from whence the person came, has much better day care and much better job training, but lower cash benefits.

Then the person moves to State number 2.

State number 2 can lower the benefits, but must give that person the higher training, the more expensive day care than in State 1?

Seth P. Waxman:

Well, California has not interpreted the Federal authorization that way, and we don’t think that it has to.

That is, we think that the statute permits a… a State in… the new State to apply either all the benefit levels of the prior State for a year, that is, to choose to apply that State’s rule.

Ruth Bader Ginsburg:

Well, I’m just suggesting that your rationale about, well, they have a commitment to State number 1, so they have to stay with that benefit package, it’s not much of a commitment if you say that they can’t… as far as the good is concerned, they leave that behind, but the bad they carry over.

Seth P. Waxman:

Justice Ginsburg, let… let me be perfectly clear.

We are not suggesting here that the presence of a comprehensive Federal system and the presence of a Federal authorization makes this or any other law okay.

Our submission is that if a State acts to implement the authorization under 604(c), that implementation ought to be tested under a level of scrutiny in which it should be upheld if the State can show that it has reasonably tailored its implementation to the important Federal purposes of the… purposes of the Federal statute.

Sandra Day O’Connor:

Well, you know, how… how has the… how has California tailored it at all if people have moved to California for reasons that have nothing to do with welfare–

Seth P. Waxman:

That’s exactly… and we–

Sandra Day O’Connor:

–relatives living there or health reasons or whatever, and having moved there, want welfare benefits?

Seth P. Waxman:

–In our–

Sandra Day O’Connor:

How have they tailored it?

Seth P. Waxman:

–In our brief, Justice O’Connor, we have suggested that it appears to us that California has not, in fact, tailored it, and therefore the Court ought to affirm the preliminary injunction.

If you look at what other States have done, Illinois, for example, has one of these residency requirements or two-tier systems, but it won’t apply unless the new resident was obtaining welfare benefits from the prior State.

You could also tailor it by saying that it won’t apply to people who come to the State, as at least one of these plaintiffs did, for a job and then lose it because those kinds of people Congress wanted to… it’s clear Congress wanted to encourage people to move in order to obtain work.

Ruth Bader Ginsburg:

It’s not in the congressional… the congressional authorization just says… gives permission to States for the 1 year.

Isn’t that right?

Seth P. Waxman:

May… may I answer?

William H. Rehnquist:

Yes.

Seth P. Waxman:

The congressional authorization simply sets the outer bounds of what Congress will permit a State to do, but it does not give them a free pass through the constitutional test.

William H. Rehnquist:

Thank you, General Waxman.

William H. Rehnquist:

Mr. Rosenbaum, we’ll hear from you.

Mark D. Rosenbaum:

Mr. Chief Justice, and may it please the Court:

The California durational residency requirement is antithetical to core structural and liberty-producing values of our Federal system of joint sovereigns.

As Justice Ginsburg’s comment indicated, the genius of our Federal system is that citizens are free to vote with their feet.

They are free to migrate to and settle in whatever State they choose based on whatever needs or tastes they have.

Antonin Scalia:

They’re free to travel, and I assume travel includes I have just as much a right to go to another State temporarily and enjoy the protections of that State temporarily as I do to go and migrate there.

Mark D. Rosenbaum:

That’s correct, Your Honor.

Antonin Scalia:

And yet, when I go to another State, am I entitled… and I’m there just temporarily, am I entitled to send my children to the State schools?

Mark D. Rosenbaum:

Well, that would be an Article IV question, Your Honor, but that… that’s not the–

Antonin Scalia:

Why isn’t the right to travel affected?

Or when I go there, am I treated like other citizens of the States for purposes of hunting and fishing, for example?

Don’t I have to pay an out-of-State fishing and hunting license fee?

Mark D. Rosenbaum:

–Your Honor is referring to a nonresident.

Is that right?

Antonin Scalia:

A nonresident, but exercising… exercising his constitutional right to travel.

Mark D. Rosenbaum:

The answer, Justice Scalia, was most recently stated in this Court’s opinion in Bray at page 277, and that is, we are at a point in the jurisprudence that the right of free interstate migration includes not only protection against the erection of actual barriers, but it means that interstate travelers are treated no differently than intrastate travelers.

The same point that–

Antonin Scalia:

I… I don’t understand.

Try it again.

Mark D. Rosenbaum:

–The… the problem with–

Antonin Scalia:

It seems to me my right to travel is certainly being affected, but it seems to me not significantly.

And it seems to me that what’s involved is a State benefit, and therefore we say it’s okay.

Mark D. Rosenbaum:

–I don’t… don’t agree with that, Your Honor.

Antonin Scalia:

All right.

Tell me why it’s different then.

Mark D. Rosenbaum:

Because the second part of the equation with respect to the liberty producing values that we’re talking about is that once an individual chooses to move to a State for whatever reason she chooses, establishes bona fide residence, the Constitution creates a relationship between the citizen and the State.

But there is a difference between a bona fide resident, someone who’s there to stay, and a temporary visitor.

Ruth Bader Ginsburg:

It certainly is.

As Justice Scalia pointed out–

Antonin Scalia:

Not… not so far as the right to travel is concerned.

Antonin Scalia:

I… I thought it’s the right to travel not the Equal Protection Clause that we’re dealing with.

I agree that once you’re a citizen of the State, you have to be treated like other citizens unless there’s a rational basis for treating you differently.

But that’s not… you’re not arguing before us the equal protection rational basis test.

You’re arguing that… that somehow the right to travel entitles you to something more than a… than a rational basis in… in how you’re treated.

Mark D. Rosenbaum:

–Your Honor–

Antonin Scalia:

And I don’t see why that doesn’t apply to the situation when I’m traveling without desiring to establish permanent residence just as it applies when I’m traveling to establish permanent residence.

Mark D. Rosenbaum:

–It may well be, Your Honor, that… that an individual who… who is not a bona fide–

Antonin Scalia:

I’m glad to learn that because I would like to be able to get Louisiana hunting licenses at… at Louisiana resident rates.

Mark D. Rosenbaum:

–Your Honor, we’re… in the circumstances that you’re describing where we’re not dealing with a bona fide resident, sure the State can make all sorts of distinctions.

This Court said so in Martinez v. Binen.

Antonin Scalia:

Yes, but why?

Mark D. Rosenbaum:

The problem in… in this–

Antonin Scalia:

The question is why.

If the… if the right to travel is what you’re urging here–

Mark D. Rosenbaum:

–Because–

Antonin Scalia:

–and not the Equal Protection Clause, why should that be?

Mark D. Rosenbaum:

–Because the right of interstate migration, the right of free interstate migration, has two components not just against actual barriers themselves, but when an individual establishes bona fide residence, that individual becomes the State’s own.

And the State cannot–

Antonin Scalia:

You’re just restating it.

You’re not giving me a reason for it.

Mark D. Rosenbaum:

–The reason–

Antonin Scalia:

The one, just like the other, involves the constitutional right to travel.

Mark D. Rosenbaum:

–No, Your Honor.

The right… the right to travel that we’re talking about is a right not to be discriminated against based upon the length of residence.

Why is that?

Because if a… if a State could discriminate based upon the length of residence for a bona fide residence, then it would radically revise the Federal system.

It would mean–

Sandra Day O’Connor:

Where do you locate that right?

Mark D. Rosenbaum:

–Your Honor?

Sandra Day O’Connor:

In the Privileges and Immunities Clause or where?

Mark D. Rosenbaum:

I’m sorry.

Sandra Day O’Connor:

Where do you locate the so-called right to travel?

Is it found in the Privileges and Immunities Clause or someplace else?

Mark D. Rosenbaum:

Your Honor, there are four sources, in addition to the logic and structure of the constitutional scheme itself.

First, as Your Honor stated and as Your Honor specifically described in the Zobel concurrence and in Your Honor’s dissent in Soto-Lopez, Article IV, Section 2.

In addition, the Fourteenth Amendment, through the Citizenship Clause, the Privileges or Immunities Clause, and the Equal Protection Clause.

Those four provisions of the Constitution create a principle.

The principle is that a State may not negate a national citizen’s right of choice of State of residence by classifying newcomers so as to deny them the same rights–

William H. Rehnquist:

What… what do you do with the tuition cases?

Mark D. Rosenbaum:

–The tuition cases are just as Justice Scalia indicated, Your Honor.

The issue in the… the tuition cases, like the Starns case, as this Court explained in… in the Zobel case and in Vlandis, the issue there was, was an individual in fact a bona fide resident?

Of course, a State may preserve its State resources for State citizens.

William H. Rehnquist:

But in… in Dunn v. Blumstein, where we’re talking about a waiting period for voting, the Court said you can’t require a 1-year waiting period.

So, why in the tuition cases were they allowed to employ a 1-year waiting period?

Mark D. Rosenbaum:

Let me answer that in two ways, Your Honor.

First, in… in the school tuition cases themselves, as the Court indicated at Vlandis at pages 253 and 254, the concern was with a population that was characteristically transient and, as Justice Ginsburg said, coming in to take the benefit and run, a concern that, in fact, we have a permanent attachment, a genuine attachment.

In Dunn, while the Court said, sure–

Antonin Scalia:

Wait, wait.

Let’s pursue that.

The concern was that someone was coming into the State to go to the college there for only 1 year–

Mark D. Rosenbaum:

–No, Your Honor.

Antonin Scalia:

–and then transfer out to another college?

Mark D. Rosenbaum:

No.

The concern was–

Antonin Scalia:

Then what good does the 1-year residency assure?

What good does that do–

Mark D. Rosenbaum:

–Because–

Antonin Scalia:

–if it… if it simply requires the college freshman to stay there until he’s a sophomore?

Mark D. Rosenbaum:

–I… I’m… perhaps I’m not communicating clearly, Your Honor.

The problem in Starns and the school tuition cases is that a State has a… has a compelling interest, has an absolutely appropriate right to say before we give some of our basic resources that we would otherwise reserve to our State citizens, we want to make sure that this individual is in fact a bona fide resident, has some sort of permanent attachment.

Mark D. Rosenbaum:

That’s why the case… and… and with students, peculiarly a… a characteristically transient population, there was reason to be suspicious of the motives of the individuals coming in.

Compare that to this case.

As the State has conceded, as recently as pages 17 and 18 of its reply brief, there’s no question that we’re dealing with bona fide residents in this case.

Indeed, the State concedes that it could not… an individual could not get any sort of benefit whatsoever–

Antonin Scalia:

Students are characteristically transient after 1 year?

Mark D. Rosenbaum:

–No.

Antonin Scalia:

I mean, I can understand a… a 6-year residency requirement to make sure that somebody doesn’t come here simply to get the… get the lower college tuitions by being resident in the college town while he’s there and then leave.

But a 1-year residency requirement to… to guarantee?

Was that the limit–

Mark D. Rosenbaum:

Your Honor, that’s–

Ruth Bader Ginsburg:

–I… I don’t remember Starns well enough, but is it just that you have to stay for 1 year, or was there a requirement that you had to be… establish residency before you started college?

Mark D. Rosenbaum:

–It was that you had to be either an established resident or that you demonstrate that you will… in fact, are a bona fide resident for the 1–

Ruth Bader Ginsburg:

Right.

Being married to somebody from in-State or–

Mark D. Rosenbaum:

–Yes, and it may well be that… that 1 year or 5 years would be too long.

That was the problem in Dunn, Chief Justice Rehnquist.

The problem in Dunn was that the 1-year requirement, if in fact intended to establish bona fide residence, was too long.

In fact, this Court also said in Dunn that the 3-month county requirement was too long.

But that’s a different issue.

That’s the issue of how long can a State say it’s appropriate before bona fide residence is established.

Stephen G. Breyer:

–What… what… what would you say?

Imagine that the Federal Government, not the State, were to set up some special, say, inner-city development program and it were to say, now, we want this program available to present residents, not future residents of the inner-city, for we fear that our program will make that inner-city so attractive to a large number of people who are in worse conditions that they will move there, destroying the program.

And this is experimental, et cetera.

Now, can… can the Federal Government do that?

I.e., I’m trying to focus… you to focus on the… what I take is the SG’s argument that Congress says, what we’re trying to do is to negate an incentive to move to the extent that our own program creates it.

We want to leave that incentive where we find it.

Mark D. Rosenbaum:

And… and in your hypothetical, Justice Breyer, newcomers are being locked out of the program.

Is that right?

Stephen G. Breyer:

Yes.

They say, this is experimental.

Stephen G. Breyer:

Our program won’t work if everyone moves to the inner-city to take advantage of it.

It’s an experimental program.

We want to work with the residents who are now there, not new residents.

And all we’re trying to do is to negate the incentive to move that our very own Federal program itself creates–

Mark D. Rosenbaum:

I–

Stephen G. Breyer:

–which I take is a very… I’m trying to do a variation on… you can… I’m trying to make it more poignant, you see.

[Laughter]

Mark D. Rosenbaum:

–I’m very moved, Your Honor.

[Laughter]

Let me answer that in… in two ways, Your Honor.

For the reasons that Justice O’Connor and Justice Kennedy and Justice Souter indicated, the answer is no.

Congress could not do that.

Why can’t Congress do it?

Well, first, this Court has said so.

This Court said so at page 642 of Shapiro and this Court said so recently in the Bray case, that the right of interstate migration in footnote 7, doesn’t come from a negative Commerce Clause.

It’s a right that derives from rights that cannot be eliminated by Congress.

But even without that as part of the record, what would it mean to our Federal system if Congress could do that?

This Court has never held that a State could defend the unconstitutionality of one of its statutes denying individual rights by resort to authorization from Congress, the same reason Congress can’t violate those… those sorts of individual rights.

And if I understand, Justice Kennedy, your concurring opinion in Thornton, the principle here is that this structural relationship is created by the Constitution.

It is part of the unique genius of the system, that each of the joint sovereigns has a relationship with the citizens.

What would it mean if Congress could come in and sever the relationship, cause a State, in the words of the Hooper case, to renege on its obligation to treat citizens as their own?

William H. Rehnquist:

Mr…. Mr. Rosenbaum, what if Congress were simply to take over the entire welfare system in the country… the States are no longer paying anything… and just leave it as it is?

The… in Mississippi, you get 140; California, you get 600.

And the California… there’s a prohibition against receipt of different welfare requirements for a year.

So, it isn’t the State at all.

It’s Congress doing it on a national basis.

Do you think that would be bad?

Mark D. Rosenbaum:

Do I think it would be unconstitutional, Chief Justice Rehnquist?

William H. Rehnquist:

Yes.

Mark D. Rosenbaum:

I think it would be.

Mark D. Rosenbaum:

I think that the concerns that we have been talking about this morning, the liberty producing concerns and the State citizenship concerns… it may well be in your hypothetical, if I understand it correctly, that some… that the… the relationship between the State and the citizen… that would not be necessarily affected if it is the Federal Government that is running an exclusive program.

But in terms of the other element of the right itself, the liberty producing element, that citizens–

William H. Rehnquist:

Where do you… where do you get the term liberty producing element?

Has that been in any of our cases?

Mark D. Rosenbaum:

–I… I’m trying to take it, Your Honor, from the decisions in New York v. United States, the term limits case, the United States v. Lopez.

The notion which I believe absolutely saturates this… this Court’s doctrine with respect to the right of interstate migration, as Justice O’Connor stated at pages 76 and 77 of the Zobel concurrence, that the liberty-producing element is that citizens are free to vote with their feet, to act on whatever their needs or tastes are in terms of the selection of the State in which they live.

Antonin Scalia:

Mr. Rosenbaum, I understand that, and I would make it broader and our opinions have made it broader than a right to immigrate.

It’s… it’s… it’s a right of travel.

And… and as I’ve explained, I don’t understand why we treat immigrants differently from people traveling just intermittently.

What I don’t understand is this: why… how and why you can convert the right of travel to a right to equal protection.

Once the immigrant arrives in California and is a resident of California, he is entitled to equal protection of the laws with the other residents, and all you would apply against him is a rational basis test.

Now, before he becomes a resident, he has the right to travel there.

Why does that right to travel there entitle him to equal protection of the laws as opposed to simply not the imposition upon him of a significant deterrent to his right to travel?

Mark D. Rosenbaum:

Your Honor, I–

Antonin Scalia:

You… you say it’s not just a significant deterrent, he… he is entitled to be treated equally.

Mark D. Rosenbaum:

–I… I agree with that.

In fact–

Antonin Scalia:

Now, why?

Why is he entitled to be treated equally?

I don’t see that that follows from the right to travel.

It follows from the Equal Protection Clause once he has become a resident.

Mark D. Rosenbaum:

–I understand Your Honor’s question.

Let me see if I can–

Antonin Scalia:

Okay.

Mark D. Rosenbaum:

–do my best to explain it.

Justice Scalia, as this Court stated in… in Zobel, the equal protection analysis, one of the four sources that… that I identified earlier, is really a particular application of the right of interstate migration.

Why is it significant here?

I don’t agree that rational basis is the test, but the… the notion of comparing citizens, Your Honor, is what emerges from the right itself because once the individual initiates the move, for whatever reason that she chooses to move, then it is the State’s responsibility, its constitutional obligation, to treat all States the same.

And that’s why the Equal Protection Clause is an appropriate measuring tool.

It doesn’t matter if we’re talking about Article IV or the Privileges or Immunities Clause or the Citizenship Clause.

Mark D. Rosenbaum:

The principle that is generated is that citizens must be treated equally by their State when it comes to length of residence or State of prior residence.

Antonin Scalia:

Why just citizens?

I mean, I agree with you that the State cannot… cannot deter the right to travel, but in the case of not… not migration but simply traveling in California, we do not think that denying the traveler every incident of citizenship amounts to a deterrent to the right of travel.

We… we apply some… you know, some significance standard.

Why is it not appropriate to do the same when you’re dealing not just with temporary travelers, but with people who want to immigrate?

It seems to me it’s not a violation of their right to travel unless you place a significant impediment upon their ability to move to that State.

Mark D. Rosenbaum:

The answer, Your Honor, is really what this case is about, and that is what is the nature of citizenship.

How must citizens be treated by their States?

And the reason why it would be appropriate for the State in some… on some instances to treat citizens differently than just residents… vacationers, travelers for hunting licenses, is that the State owes a responsibility, an obligation to its citizens with respect to certain of its resources or programs.

This Court has stated in Martinez v. Binen–

Antonin Scalia:

Once you’re in the citizen situation, the right of travel thing is behind you and… and you’re entitled to equal protection of the laws.

And I’m… I’m fully willing to… to judge this case on that basis, but if you judge it on that basis, all you can demand of the State is a rational basis.

Mark D. Rosenbaum:

–I disagree with that, Your Honor.

This… this right, as Court stated in Guest at page 728, is a right that is a necessary concomitant to a stronger union.

Justice O’Connor described it in Zobel as a right that is essential to the union.

That–

Sandra Day O’Connor:

Well, if you… if you… you have to at some point decide what test or standard you’re going to apply to test a law to see if it penalizes the right to travel.

And I haven’t heard anybody here today suggest what that test might be, and depending on what the test is, we’ll learn whether a particular law is valid or invalid.

Mark D. Rosenbaum:

–Your Honor–

Sandra Day O’Connor:

Do you have a suggestion in that regard?

Mark D. Rosenbaum:

–I do, Your Honor.

If the analysis is under the Equal Protection Clause or the Citizenship Clause or the Privileges or Immunities Clause, then strict scrutiny is required because this is a fundamental right and because a durational residency requirement–

Sandra Day O’Connor:

Well, I… I thought we had said if there’s a Privileges and Immunities Clause violation, that we ask whether the people alleging they’re discriminated against or a peculiar source of the evil–

Mark D. Rosenbaum:

–I… I’m sorry.

Sandra Day O’Connor:

–and whether there’s a substantial relationship of the remedy to the evil.

Now, that’s… that’s not what I would call ordinarily strict scrutiny.

It’s some different sort of a… an inquiry.

Mark D. Rosenbaum:

Your Honor, I may have been imprecise in my words.

When I said privileges or immunity, I was referring to the Fourteenth Amendment.

If it is under any of the Fourteenth Amendment clauses, then I believe strict scrutiny applies because it is a fundamental right because it negates the liberty-producing values.

Mark D. Rosenbaum:

I completely agree with Your Honor for the reasons stated in the Zobel concurrence.

If it is an Article IV analysis, then the first question is, are newcomers the peculiar sense… peculiar source… the first question is, do we have a fundamental right?

And of course, we have a fundamental right.

It’s the right to… to migrate to and settle in a State.

Then the next question is, do we have with newcomers a peculiar source of evil?

And in… in this case, Your Honor–

Sandra Day O’Connor:

Or travelers.

Now, I suppose in the case of out-of-State fisher… people who fish or hunt, you might say, yes, they’re a peculiar source of the evil because they’re taking all the fish and game.

Mark D. Rosenbaum:

–No offense to Justice Scalia, but… but with respect to the… the right you’re talking about–

Antonin Scalia:

I don’t take that much.

I’m sorry.

If… if that’s the test, I ought to get in-State rates.

[Laughter]

Mark D. Rosenbaum:

–Then we’ve just established the Scalia exception to Article IV.

[Laughter]

Your Honor, with respect to… to… to that sort of… of right, I think Your Honor is quite correct.

First, I don’t think we have a fundamental right if it’s not for commercial reasons, but in any case it would not be implicated in the same way that the right to migrate and settle is.

Then the next question under Article IV is, are the newcomers the peculiar source of evil?

Newcomers aren’t the peculiar source of evil.

Frankly, they are not empirically in any sense.

In this case, to answer the question that was asked earlier by Justice Stevens, the percent of the budget that is implicated in this case… of the welfare budget… is.38 percent of that budget.

William H. Rehnquist:

But you can say… you can say the same thing about fishermen or hunters.

It may be that out-of-State hunters or fishermen are not a peculiar source of… maybe just 5 or 10 percent of the hunters, say, in a particular State are out-of-State.

Mark D. Rosenbaum:

But in… but the… the issue is different in this case, Your Honor, because we are dealing with a fundamental right, the right to migrate, to settle.

The only way that newcomers could be considered the peculiar source of the evil is if an impermissible purpose is added, and that is, we don’t want them here.

We don’t want needy people coming into the State, which is precisely, Justice Kennedy, what the district court and the circuit court found in this case with respect to the purpose in the situation.

And then the last question, Justice–

Antonin Scalia:

I don’t know why you… why you… you say that the right to migrate is a fundamental right and somehow less fundamental than the right to travel.

Frankly, I’m… I’m… I’m much more interested in my right to travel to California than my right to live there.

[Laughter]

Mark D. Rosenbaum:

–That… that pretty much trumps my argument, Your Honor.

[Laughter]

David H. Souter:

Yes, but your… your… when you say the right to migrate, you mean the right to obtain citizenship, don’t you?

Mark D. Rosenbaum:

That is correct, Your Honor.

And… and the Court has used different phrases, right of interstate… free interstate migration, right of travel, right to settle and migrate.

But we’re talking about the same thing.

We’re talking about coming to a State for whatever need or taste, picking that State that’s best suited, and then settling in that State.

Now, let me conclude with the last point of the test, Your Honor, with respect to Article IV.

I think California flunks the test when it comes to are newcomers a source of evil.

It also flunks the test, Your Honor, with respect to whether or not the relationship can be explained, whether or not there’s a substantial relationship between the discrimination itself and the evil that is intended.

Well, as I said, there is no evil here with respect to newcomers unless we radically change the nature of our Federal… Federal system so that newcomers can be boxed out of States so that even newcomers coming for particular purposes can be boxed out for particular reasons, which this Court has specifically said–

Anthony M. Kennedy:

May I ask you–

–In Justice Breyer’s hypothetical, or if we can imagine in this case a finding that if the congressional policy and California’s policy were implemented, welfare rates across the Nation would rise, would that be… would those hypotheticals meet a rational basis standard?

Mark D. Rosenbaum:

–Your Honor, first, I don’t believe rational basis is… is to be applied here.

But the answer is… is… is still no, Your Honor, for some of the reasons that Justice Breyer indicated with his Q example, whether or not you could exclude people who are… are… have the name starting with Q. And that is because, first, Your Honor, newcomers have no less burdens, they are no… no more likely to be able to deal with the cuts in… in welfare, here up to 78 percent, than longer-term residents.

Moreover, this statute, unlike any statute that has ever been before this Court, also discriminates based on the State of residence.

It treats citizens as if they crossed the border wrapped in State flags.

And there is no reason to… to assume that a individual from Mississippi has 80 percent less needs than an individual from Alaska.

So, it would… it would flunk the rational basis test as well, Your Honor.

Moreover, Congress itself would have other means to deal with it, as it has dealt with it in other situations.

If Congress was really concerned about it, Congress could subsidize those States that were subject to large numbers of individuals coming in.

But the basic principle, what this case is involved with, is that States… citizens select States.

States cannot select citizens, and States may not make priority judgments based upon the length of residence or the State of prior residence.

Ruth Bader Ginsburg:

Was there a figure–

John Paul Stevens:

–Let me ask you whether you think the… a State’s purpose of discouraging people on welfare from coming to the State would be a legitimate State interest?

Mark D. Rosenbaum:

It would not, Your Honor.

This Court in… in Shapiro at page 639–

John Paul Stevens:

So that if this statute is motivated by that interest and no other interest, it would flunk the rational basis test.

Mark D. Rosenbaum:

–It would, Your Honor.

It would be an impermissible purpose–

Antonin Scalia:

Why is that?

Is there some clause of the Constitution that says you cannot have that as a State purpose?

Mark D. Rosenbaum:

–Yes, Your Honor.

The logic and structure, plus the four clauses that I discussed.

Antonin Scalia:

What provision is it?

Mark D. Rosenbaum:

The Article IV and the… the Citizenship Clause and the Privileges or Immunities Clause of the Fourteenth Amendment, Equal Protection generate a right that States cannot negate choices of citizens or can’t pick and choose choices.

That’s not… that may be a question for the Federal Government to ask–

Antonin Scalia:

But that wasn’t the question.

I mean, you… you say there is some special prohibition, that whatever other motives States may have for legislation, they may not have the motive of… of deterring people from entering the State in order to get on the State’s welfare rolls.

Mark D. Rosenbaum:

–And I think–

Antonin Scalia:

And you say that independently is an invalid purpose.

Mark D. Rosenbaum:

–That is correct.

That is the second reason why this statute is unconstitutional.

And, Your Honor, that–

Stephen G. Breyer:

But why is it a variation of that, that if Congress says, look, we want to discourage the incentive that we have created… well, I don’t know.

You may be repeating yourself.

Mark D. Rosenbaum:

–May I answer your question?

Stephen G. Breyer:

Yes.

Mark D. Rosenbaum:

It is… it is because of the means that would be chosen and that is making the discrimination based upon the length of residence or the State of prior residence.

That’s what makes it impermissible.

William H. Rehnquist:

Thank you, Mr. Rosenbaum.

Mark D. Rosenbaum:

Thank you, Your Honor.

William H. Rehnquist:

The case is submitted.