Shapiro v. Thompson – Oral Reargument – October 23, 1968

Media for Shapiro v. Thompson

Audio Transcription for Oral Argument – May 01, 1968 in Shapiro v. Thompson
Audio Transcription for Oral Reargument – October 24, 1968 in Shapiro v. Thompson

Audio Transcription for Oral Reargument – October 23, 1968 in Shapiro v. Thompson

Earl Warren:

Bernard Shapiro Commissioner of Welfare of Connecticut, Appellant versus Vivian Thompson.

No. 33 Walter E. Thompson, Walter E. Washington et al. versus Clay Mae Legrant et al. and No. 34 Roger A. Reynolds et al.

Appellants versus Juanita Smith.

Mr. MacGregor

Francis J. MacGregor:

Mr. Chief Justice Warren and may it please the Honorable Court.

I don’t want to re-hash the arguments that we went into last spring.

But I would like to point out some of the rather unfortunate consequences if the lower court’s decision is upheld.

One consequence that was not raised last spring would be the very harsh impact on the liberal welfare benefit states by 42 U.S.C. 603(d).

Now this 1967 Social Security amendment, it’s the so called “Freeze Section”, will limit federal matching funds to — that go to the states to the percentage of children under age 18 that are on AFDC to the total under age 18 population in the state.

In other words, as of January 1, 1968, if the AFDC population under age 18 increases more rapidly than the under age 18 population as a whole, this liberal welfare benefit states will not get one nickel more of federal matching funds to offset this increased burden.

So when you start with the proposition that states like Connecticut that give decent welfare benefits get only 46% matching funds as against the poor welfare benefits states that get 5-6 or 83%, I think you’ll agree this is a rather harsh impact indeed and it follows an article in the New York Times of October 14, 1968.

On Page 28, where there was a recent study by the Citizens Budget Commission on what this influx was doing to the liberal welfare benefits states.

For example, in the last eight years from 1959 to the beginning of 1967, Connecticut’s AFDC caseload has increased 147%, New Jersey’s 287%.

The 10 most liberal welfare benefit states have found their AFDC caseloads and costs skyrocketing while the 10 least liberal welfare benefit states in many cases have actually found their welfare cases decreasing.

This study further pointed out a, I think, a very fundamental thing that said a low persons don’t necessarily migrate into liberal welfare benefit states solely to get on the AFDC roles.

It was a prime consideration in their move and to quote a humane system of local welfare and a reasonably adequate amount of welfare payments was an important consideration in the movement of persons to the liberal benefit states and I think this observation coincides with the very common sense observation that Mr. Justice Cardozo made back in the early ‘30s in the Helvering case where he said, a system of old age pensions has special dangers of its own if put enforce in one state and rejected in another.

The existence of such a system is a bait for the needy and the dependent elsewhere encouraging them to migrate and seek a haven of repose and I think any adverse decision by this Court would have the effect of penalizing every liberal welfare benefit state by putting a premium on the poor benefit state to encourage their needy and dependent to migrate to greener pastures.

Abe Fortas:

Do you think the states could doctor a rule talking about — just about state authority saying that welfare payments will not be made to anybody who is not a resident of a state on January 1, 1969.

Francis J. MacGregor:

Well, they — if they — they might be able to do that and say we’re going to put a — have a limited amount of money and this is the budget, so that you won’t get anymore.

Abe Fortas:

And that’ll be constitutional.

Francis J. MacGregor:

Well I — I think that it’s — when it involves mainly state raise funds it is.

It should be these — these are state programs with some federal matching funds.

Abe Fortas:

What difference does it make if its federal firms?

Francis J. MacGregor:

Pardon?

Abe Fortas:

What difference would it make if they were federal funds?

Francis J. MacGregor:

Well —

Abe Fortas:

Federal land state funds.

Francis J. MacGregor:

The big problem there — one of the problems weighed — I believe that the — this Section 17-2D should be found constitutional.

Mr. Justice Fortas, it’s because for the court to say that a — a state can’t do that is an invasion, I think it note in a very fundamental legislative function as the raising of their own state tax funds and a spending of them.

Abe Fortas:

Well, a Constitution invade — did invade states rights, Sir, Fourteenth Amendment —

Francis J. MacGregor:

Well, I — I — well —

Abe Fortas:

— substantial invasion of states rights as I understand it.

Francis J. MacGregor:

Well, I don’t think it was written for that, Your Honor.

I think in its historical context and this Court has recently agreed and McLaughlin versus Florida case that the historical context was — was to say that a person shouldn’t be discriminated on a basis of race.

So if a state had a very poor benefit program and they said we’re only going to appropriate a certain amount of money but it didn’t discriminate on the basis of race then the Fourteenth Amendment really shouldn’t apply.

Abe Fortas:

How about the right to travel?

Francis J. MacGregor:

Pardon?

Abe Fortas:

How about the right to travel?

Was that one of the —

Francis J. MacGregor:

Well —

Abe Fortas:

— that was expressly considered as —

Francis J. MacGregor:

Well, I think —

Abe Fortas:

— being part of the Fourteenth Amendment guarantees?

Francis J. MacGregor:

Well I think it’s a — there’s a little difference, Your Honor, between the right to travel.

Abe Fortas:

What I’m asking is a matter of fact.

Francis J. MacGregor:

What —

Abe Fortas:

As you read — as you read the history of the Fourteenth Amendment, was a right to travel expressly, specifically, explicitly considered in the Congress as one of the rights protected by the Fourteenth Amendment.

Francis J. MacGregor:

Well, it was considered off — a right before the Fourteenth Amendment, Your Honor.

Abe Fortas:

That’s not what I’m asking you.

Francis J. MacGregor:

It didn’t need the Fourteenth Amendment for that.

Abe Fortas:

What is it discussed in the congressional consideration of the Fourteenth Amendment?

Francis J. MacGregor:

Well, it has been discussed in — in several cases including the Edwards case but I don’t think it applies here.

A right to travel across a state line, there’s a little difference between subsidized settlement and if Your Honor is referring to the Edwards case, I don’t think the Edwards case applies here at all.

In the Edwards case, Mr. Slaff who was Edwards counsel said the real evil of the California statute was it intimidated on the threat of criminal prosecution and certainly, if you threatened to prosecute a person who was coming across a state line, it’s a considerable difference in the — if you say — if you come across a state line as the Connecticut statute says and you’re not willing to work or at least train for work or have assets to support yourself for three months, you may have to wait a year before you get welfare.

I — there’s — I — I think there’s a considerable difference in that type of case and — and in fact in the Edwards’ case, Mr. Tolan for the Select Committee said that the law shouldn’t apply in that case to person’s who have worked, who are willing to work, and who are able to work in every respect except they are temporarily without work and I don’t think the facts there fit Ms. Thompson.

Nobody advocated that Mr. Duncan at the end of depression should come into California, avoid the labor market and get a welfare check.

In fact I — I think Mr. Justice Byrnes was specific on that question.

He said the ability or right of the — the California to support — their obligation to support was not involved.

Abe Fortas:

(Inaudible)

Francis J. MacGregor:

I don’t assure, Your Honor.

Francis J. MacGregor:

All I know was that the — that their welfare rules about eight years have gone up 147%.

I know that they — they have an open-ended budget and I would say it was probably for the size of the state one of the most liberal in United States and last spring when I was down here, they had a $40 million deficit mainly because of AFDC and now they have $73 million deficit in welfare early this fall.

Abe Fortas:

From my recollection, because the last argument was the evidence on both sides is to the amount of interstate migration related to persons who would be eligible like the other people who (Inaudible)

There was this migration which is not very big.

Francis J. MacGregor:

Well, this — New York Times study shows that it’s considerable.

It’s more than 10% of the population have — have shifted into the liberal — the 10 most liberal welfare benefit states.

Abe Fortas:

Where — what — what study is that?

Francis J. MacGregor:

It’s a — it was a Citizens Budget Commission study that was in the New York Times of October 14, 1968 on page 28, Your Honor, and I — I gave the Clerk’s office nine copies so the Court could use it — be available to them, Your Honor.

One of the questions that bothered the Court the last time I was here was the — what reasons, good reasons, can Connecticut give that their statue 17-2D should be found constitutional.

Well, the first basis I think is there was no confident evidence produced by the appellee in this case who bore the burden of proof that the Connecticut legislature arrived at their decision wholly by caprice and without any reasonable basis.

Secondly, the Connecticut legislature, and we pointed out in our brief, were concerned with the rising welfare costs could not give decent benefits to everyone.

They had their choice that could give to maintain their same high standard with some cut off or they could lower their standard like the other states and I think they wisely chose to follow the former.

I think thirdly that the Connecticut Statute itself — self has a very laudable and salutary purpose of encouraging people to enter the labor market.

The Connecticut Statute is unique and different from the other 40 states in this.Connecticut says if you come in the — the Connecticut and you have a bona fide job offer, if you’re willing to work or if you’re willing to train for work and it takes a whole year to train, if something happens to you during that time, Connecticut will give you a high standard.

Thurgood Marshall:

Mr. MacGregor.

Francis J. MacGregor:

Yes, Your Honor.

Thurgood Marshall:

In order to save money, within one year you say — how much does this increase in one year with the one year requirement?

Francis J. MacGregor:

Our deficit?

Thurgood Marshall:

No.

How much is the number of people increased and the deficit too?

Francis J. MacGregor:

Well, I — I can’t say in a one year, Your Honor, but I —

Thurgood Marshall:

No, I said since the one year requirement isn’t in effect?

Francis J. MacGregor:

Well I — I’ll — I’ll tell you Your Honor in our Appendix to our brief, it’s on 60.

Number 60 of — of the — Stipulation of Facts is on page 45a.

We show the yearly average per person caseload on AFDC from 1960 to 1966 showing how it went up.

It went up fantastically every year until it passed the 1965 Statute then it became effective.

That was a first year they had a drop.

Now — when the Thompson case was decided, I — I don’t have any statistics except general knowledge that welfare caseload and it goes to town using people coming to Connecticut, they go to the town first for welfare, that the towns have found a — a large increase again of people come out on welfare rolls.

Which you can all look at the whole picture and it’s no question that the Connecticut welfare roll is next to New Jersey, I think, that New York have increased more rapidly than any state in the United States.

Thurgood Marshall:

Why not raise the rule for one to five years?

Thurgood Marshall:

Wouldn’t that help you find that?

Francis J. MacGregor:

I’m sorry Your Honor.

Thurgood Marshall:

Why not raise the rule, raise this requirement from one to five, wouldn’t that help you more?

Francis J. MacGregor:

Well, it — I think Your Honor will find that the Congress and not ADF — AFDC but in the aid to disable then aid to the — an old age, I think allow a five out of nine years.

Thurgood Marshall:

I’m not talking about — I’m talking about why shouldn’t Connecticut since all your interest is in this money, why don’t you raise it from one to five?

Francis J. MacGregor:

Well, I can’t speak for what the legislature did, I think —

Thurgood Marshall:

You’ve been talking about it.

You said that was one of the reasons.

Francis J. MacGregor:

Well, one reason they didn’t raise it from one to five is because they wouldn’t get any federal grants under the Social Security Laws which could’ve — would set it to the maximum of one year, Your Honor.

That would be a practical reason.

Thurgood Marshall:

And my other question is that do you think that they can just not eat for a year?

Francis J. MacGregor:

Well, Your Honor, it’s a practical matter and in Ms. Thompson’s case, she was able to get by and there was no proof solicited during — either run the stipulation of facts or any evidence that she suffered and then she’s still on the — she’s now on the welfare roll to get —

Thurgood Marshall:

And she — I assume she’s been eating if she was still alive.

Francis J. MacGregor:

So I — so that — and — and no evidence presented any person that ever came in Connecticut and starved because of the one year residency statute, so it would be your sheer speculation on the court that person would starve.

Thurgood Marshall:

But the only reason is that one, you don’t have enough money and two, you want to save what you have so that’s the reason for the one year requirement.

Francis J. MacGregor:

Well, money and I think that — and as I said, I think that it has a salutary purpose.It encourages people to enter the labor market.

In fact, Congress in 42 U.S.C. 607 in the work incentive program is also attempting to encourage people again by offering them a better deal.

Thurgood Marshall:

Well, in the one year requirement, if a man spends 22 hours a day looking for a job, he still wouldn’t get anything for a year —

Francis J. MacGregor:

Well, I — I think if he came to Connecticut —

Thurgood Marshall:

— unless he got a job.

Francis J. MacGregor:

Well, I would say this Your Honor, if he came to Connecticut, he wouldn’t have to look 22 hours a day for a job.

There’s plenty of them there.

First, and secondly, it couldn’t —

Thurgood Marshall:

Is this one — maybe is this one State in the Union with no unemployment?

Francis J. MacGregor:

Well, I would’ve imagined that any state with a — with — where there’s plenty of jobs available, a person wouldn’t have to work.

But in Connecticut, if you couldn’t find a job they’d train them and give them welfare.

Thurgood Marshall:

How soon?

Francis J. MacGregor:

He has 60 days in which he can look for a job.

If you can’t find a job within the 60 days and he goes down to this — down to the welfare office and said, “I can’t find a job because I’m not qualified.”

They’ll — they have — there’s Title 5, that’s the government finance and their state programs, where they’ll say, “Good, we’ll train you.”

Francis J. MacGregor:

And if the training program took nearly a year, they’d still support him all during that time.

Thurgood Marshall:

What about the one-armed man?

Francis J. MacGregor:

I — I’m sorry.

Thurgood Marshall:

What about the one-armed man?

Francis J. MacGregor:

I — I didn’t get it.

Thurgood Marshall:

A man with one arm.

Francis J. MacGregor:

We got people in — working for the State of Connecticut themselves that come in a wheelchair everyday.

In fact, there’s enough jobs around in the state training schools for the retarded that —

Thurgood Marshall:

You wanted to indicate that Connecticut is one of the few States in the Union that has no unemployment?

Francis J. MacGregor:

Very, very, very small amount, Your Honor.

I — I would like to call the Court’s attention again to the Edwards case which I noticed that was raised by all the judges and of lower courts and in all the briefs.

One of the strongest arguments I think that Edwards should not apply here.

First, it’s our contention if Duncan came into Connecticut under the same circumstances he came to California.

At the end of depression, he’d be immediately eligible for welfare.

But the second case, I think is Sweeney versus The Board of Public Assistance that was decided by the same court in the same term as Edwards.

And in that case, the plaintiff claimed that the defendant board denied her the right to live where she pleased and it was a clear restrain on her liberty of movement in violation of Fourteenth Amendment.

The question I think that Mr. Justice Fortas raised, same claim is in the Thompson case.

The District Court in that case which was upheld on appeal stated, “There is no arbitrary restraint on the plaintiff’s right to live where they please.”

And this Court when out to say something, I think is fundamental in this case.

It said, “Courts will proceed with great caution before overthrowing the work of such boards.

Since their investigation and study have best enabled them to determine what regulations will produce the greatest good for the greatest number,” and that is the fundamental aim of this democracy.

Now, who should know more about Connecticut’s welfare problems than the duly elected legislative subcommittee that recommended 17-2D to the legislature are a two-man majority of the three judge federal court.

Now, I would like to yield seven minutes of my time to argue on — amicus argument and the remainder of the time to Mr. Sennett from Pennsylvania for rebuttal.

Thank you, Your Honor.

Earl Warren:

Ms. Williams.

Lorna Lawhead Williams:

May it please the Court.

Since we were here in May, there have been some further developments along the lines about which we are concern again today.

First, we have had three further amicus curiae briefs filed all in the nature of the same as filed by Legal Aid Societies and OEO attorneys that were here before and again they point out that there is a need, and we all are aware there is a need, for people who are suffering and are in law in our country.

But this is still not sufficient reason to overlook the fact that this particular ADC program is tied to the residency of people within a state.

The states have the local authority, the local legislation, the local administrative power to administer the program within their jurisdiction.

Lorna Lawhead Williams:

They can call upon the Federal Government for additional matching funds of certain proportions, if they can qualify by their laws to carry out the — the provisions of a federal law setting up what they call, state plans.

So, I again mentioned as I did before that in spite of the three briefs now filed by the people or your legal aid, the problem is still before us, it is a legislative problem and not a judicial problem.

The forum is still wrong.

There does have been some other developments.

The Congress and its provisions 603 of the Social Security Act provides in there that — and this is before the amendment which we spoke of briefly last time, but now it’s enforcing Iowa and in some of the other states called the Wind Program, working set of program.

It’s now being operated in the states.

It has to be operated by July 1 of ’69 as to all three phases or no state can qualify any longer for matching funds.

But the — the original act itself in 603 bids and reads this — reads this way, “Whom children or applicants or recipients of aided family with dependent children are living to attain or retain capabilities for self support or self care which are prescribed by the secretary.”

In other words, the goal isn’t to dangle welfare in front of people as the ultimate goal.

The goal is to help people to earn their living by their own hard labors, teach them, give them training, on the job training, vocational training, help them through their local employment services to take a job immediately.

So —

Abe Fortas:

Well, that’s not the problem Ms. Williams, our problem is a constitutional problem.

Lorna Lawhead Williams:

Yes.

Abe Fortas:

May I ask you to a — suppose a state said that we will not provide the relief payments to anybody who is not a resident of the state in the 1st of January, 1969.

Lorna Lawhead Williams:

I think that’s our —

Abe Fortas:

And thereby excluded anybody coming into the state from other states —

Lorna Lawhead Williams:

I think that is —

Abe Fortas:

–or may access to welfare.

Now, would that be —

Lorna Lawhead Williams:

I think that’s arbitrary and I think that wouldn’t tie —

Abe Fortas:

I think that’s arbitrary —

Lorna Lawhead Williams:

I’m afraid so, Your Honor.

Abe Fortas:

— within the constitution.

Would it be a violation of the Fourteenth Amendment?

Lorna Lawhead Williams:

I believe it would but I do not believe this is a man with one arm.

Abe Fortas:

Now right — right now, I firmly respectfully suggest that I think your problem is to distinguish that and the present situation.

In the present situation, you do not have as the test residency, you have as the test residency for one year, is that right?

And those are not the same, are they Ms. Williams?

Lorna Lawhead Williams:

The two things you pose are not the same, Your Honor.

One is a point of when it ties in some other element but once the classification is made by a state or a Congress.

Lorna Lawhead Williams:

Once the classification is made and there’s great latitude in this type of thing since it’s not a commander or directive on Congress in order the states to make under Amendment one rights then —

Abe Fortas:

Now, would five years be arbitrary?

Lorna Lawhead Williams:

Well, I don’t think it would be necessary for the reason that we would know within one year who wants to contribute, who do — who are our people, who wants to live here, contribute and we want to help.

It’s for the good of our state, for Iowa when we can help the ones around us under our police powers —

Abe Fortas:

But in your — in your position I think it boils down to the point that you think that a one year residence requirement is reasonable and therefore supportable under the Fourteenth Amendment.

Five years might not be a permanent when certainly would — would not be, is that right?

Lorna Lawhead Williams:

This is correct.

This is correct, Your Honor.

In other words, this is a program for residents.

It isn’t for transients that we have to depend on other welfare agencies, other welfare laws to take care of that problem.

This is the one that we are ours.

We want them to feel like they belong to us.We want them to join our labor market.This Wind Program is a very, very important program.

Iowa just — just — as of October 1st the monies are awaiting, the employment agency is ready, the people on this program on ADC now are ready to go into these jobs and learn on the job training.

And we are going to offer them so much more through this whole program.

But this isn’t a program that you can offer to someone coming in and then living within a few weeks or so.

It is a program designed for permanency, for the people who are going to live there, work there, be in our schools, give there references for their — when they go from job to job, make a change in jobs, right within their own local communities where we can keep track of them and they can help us, we can help them.

William O. Douglas:

Could they — could the state close these public schools to children of itinerants until the itinerants were there for a year?

Lorna Lawhead Williams:

No, Your Honor.

But we’re not in that problem.

The problem of personal liberties —

William O. Douglas:

Well I know this is not the education case but what’s the difference?

Lorna Lawhead Williams:

Exactly, (Inaudible) one is a man with one arm, or a man with one right, the other one is not.

William O. Douglas:

But takes the fire protection of the house.

Lorna Lawhead Williams:

Fire protection of the house.

William O. Douglas:

Police protection.

What — what do — what — what civic —

Lorna Lawhead Williams:

I think that —

William O. Douglas:

— services can be used —

Lorna Lawhead Williams:

I would think that everything —

William O. Douglas:

— (Voice Overlap)

Lorna Lawhead Williams:

— that we as people have as our personal liberties are in one category and have to be maintained and retained by state law, federal law, by all the people.

But when we talk about our right, if it is a right or privilege or benefit where there it’s just as gratuity because we in our hearts want to do it, we make the classification which must be reasonable.

We make the classification for the purpose of helping them in our particular plan, it isn’t intended to encompass everyone.

The no government — no state as wealthy as Iowa as with its farmlands and is not too wealthy or high on all of this.

First on disabled, second on old age assistance and by the way, when I was here before, I know I have argued that case to the three judge court in the Northern District that is submitted waiting term here.

Also, I have argued in three and four other cases, already submitted to State Courts and one on the federal court in Southern District where the type of right involved here that Your Honors decide — everything is hinging upon this and it is non-residency.

Residency is my northern — this problem in the northern state of Iowa — federal court.

But the other cases also depend what is a nature of this right.

Is it a First Amendment right, if so it makes a difference?

What type of cases am I talking about, what did Judge Van Oosterhout asked in the three-panel court the other day?

He said, “Isn’t this of a nature of the right important in this kind of a case?”

Here’s at the lady on the stand, who had been getting welfare and she said that she didn’t — she didn’t appeal to the Administrative Board.

She had been getting three or four hundred dollars and I don’t require enough to remember the amount but she had been getting welfare.

It was cut off.

She didn’t even come into the local board and say, “You folks are wrong, I don’t have a job where I make that much money.”

Well, she must have a job that she made that much money or she would have come in and protest it.

But now she wants the pounding, she wants to stay, she wants a federal matching funds to go ahead and keep paying her that when she doesn’t even take care of her own rights and say to the state and the county that, “I have to have a fair hearing here, my constitutional rights are infringed upon this,” what’s she’s saying?

She didn’t do anything to protect herself.

I see that my time is up too, but thank you.

Earl Warren:

Mr. Barton.

Richard W. Barton:

Mr. Chief Justice and may it please the Court.

I am here on the case of Washington versus Legrant which defers in some respect from the other two cases.

In that, first, it involves the constitutionality of an act of the Congress of the United States.

As distinguished from a state legislative act and at least insofar as Connecticut is concerned.

The District of Columbia statute differs considerably and that it imposes a one year residence requirement across the board to all categories without respect to how much money you may have had when you came into the jurisdiction or any other contingent provision.

The question presented is of course whether or not the provision of the District of Columbia Act violates the equal Protection Clause of the Fourteenth Amendment made apical in the District of Columbia through the due process clause of the Fifth Amendment.

Now, that the statute makes a classification is clear.

It distinguishes between those who have been in the District of Columbia for one year and those who have not insofar as eligibility for public assistance is concerned.

The question is of course whether or not this classification is an invidious classification to use the word that this Court has many times used.

Now, I think in answering that question, it is necessary to determine by what standard this classification is to be judged and this Court over the years has hammered out a standard and what I would call an exception to that standard or if you like possibly two standards.

Richard W. Barton:

The first standard which is the traditional standard, the standard which is applied to legislative classifications in the great majority of the cases provides that the legislative enactment is presumed to be constitutional, that legislatures have a broad scope of discretion in making classifications that the burden is upon the party challenging or attacking the constitutionality of the classification to show that the classification is wholly irrelevant to any conceivable legislative purpose, and that every fact or reason which could support the classification will be presumed, and further that whether or not any of these conceivable or possible legislative purposes that may underlie the statute where the ones, in fact, which prompted their legislature to enact the statute or to use the words of this Court, of course, constitutionally irrelevant.

Now, the second standard or what I would call the exception to the general standard is that which has been applied in cases where the classification directly infringes upon a preferred freedom protected by the First Amendment or where the classification is based upon race, color or national origin.

Now under that standard, the classification is immediately suspect.

I think something very close to a presumption upon constitutionality arises and the burden is upon the government to show that there is a compelling reason for that classification.

And even when the government can show a compelling reason, the statute can go no further than is necessary to achieve the legislative purpose.

Now, I think the answer to the question here is — depends upon by which standard the District of Columbia Public Assistance Act of 1962 is to be judged.If by the first standard, I think it is clearly constitutional.

If by the second standard, then it is probably unconstitutional.

Now, that the court below applied the exceptional standard, the standard which this Court has applied to First Amendment freedom cases and classifications based upon race is clear, I think, both from the opinion itself, from the statutes or from the cases upon which the court relies, and is of course recognized by appellees.

Indeed, they urge strongly upon the Court that that is the correct standard and that under that standard, the statute is still constitutional.

Although, they do later retreat to the position that even if the general standard is the proper one, it is unconstitutional.

Now, what conceivable legislative purposes underlie this particular classification?

The court below discussed various possibilities.

We would submit that there are at least three which would sustain the constitutionality of the classification.

Not that these are the only ones or that this is exhausted.

The first of this is to permit the local government to plan its fiscal affairs on a year-to-year basis.

Now, that has been argued already before you at some length.

But I think that is a proper legislative purpose which would support the constitutionality of this classification.

I might say that I asked the Budget Director of the District of Columbia Department of Public Welfare to prepare some figures and projections as to how the injunction under which the welfare authorities have been since the latter part of last year was affecting the District of Columbia’s welfare program.

And the Budget Director took the figures both by an average caseload basis and by the monetary sums for the first 10 months of — first eight months rather of 1968 and compared those to the first 10 months of 1967.

And the figures reflect an increase in the budget of the District of Columbia of about a 110%, substantially, more than double.

Now, some of that of course may due to a backlog but that’s the abolition of this classification in the District of Columbia at least will result in a very substantial increase in the budget is clear.

The District would then have to do either one of two things.

It would have to increase its budget, find more money or cut down the amount of the grants to the individual recipients.

Now, the second proper legislative purpose, which we would say underlies the statute, is the protection of — and — of fraud, the prevention and detection of fraud.

Now, the appellees, as I understand them, concede that the prevention and detection of fraud is a proper legislative purpose.

They concede further that the one-year residency requirement is an aid in the accomplishment of that purpose.

They argue, however, that it is not a particularly effective aid.

It is not in their view, at least, the most effective or best means of protecting fraud.

And they invoke again the argument, which has been applied by this court, only to cases within the exception.

And that is, they say that even if this is true, a proper legislative purpose and that this serves that purpose, it goes beyond what is absolutely necessary to accomplish that purpose.

Richard W. Barton:

Now, that standard applies only to the exceptional First Amendment cases and we submit it not to this type of case.

Thurgood Marshall:

What do you have to show that one year is just the right figure to prevent fraud?

Richard W. Barton:

I’m not sure we have anything, Mr. Justice Marshall.

Perhaps, nine months would be sufficient.

Thurgood Marshall:

Perhaps one-month.

Richard W. Barton:

Perhaps one month but that is a determination which the legislature has to make, we submit.

Thurgood Marshall:

And is the other point to have about saving money a proper argument to be made concerning the government of the most affluent nation in the world today?

Richard W. Barton:

Yes, Your Honor.

I would submit it is — the well is not bottomless.

The Congress of the United States, of course, in legislating for the District of Columbia acts as a local legislature.

It, of course, acts as a federal legislature otherwise.

Thurgood Marshall:

Do you want us to note that this government is unable to pay people enough money so they can eat?

Richard W. Barton:

Well, that would be up to Congress.

The Congress could —

Thurgood Marshall:

No, I mean, do you think we should say that?

Richard W. Barton:

No, Your Honor.

I do not ask the Court to say — say that.

Thurgood Marshall:

Well, you — did I understand you correctly that the only choice you have was to cut down on the amount of money that the others were getting?

Richard W. Barton:

No.

Or appropriate, find a source of additional funds.

Thurgood Marshall:

Find the source of Congress right here?

Richard W. Barton:

Well —

Thurgood Marshall:

Isn’t the treasurer of the United States right here?

Richard W. Barton:

Yes, it is.

But —

Thurgood Marshall:

Well, where do you go find the source?

Richard W. Barton:

The money would be, of course, appropriated by the Congress and by taxing the residents of the District of Columbia and their property.

There are two sources of income as far as the government is concerned, some from taxes, some from grants or money appropriated by the Congress.

The third proper legislative purpose, which we would say could underly this statute, relates to the residency.Determination of what is residency or a bona fide resident.

I think it is conceded that a state legislature or the Congress of the United States acting as such for the District of Columbia can condition public assistance grants on residency that is provide grants only to bona fide residents of the District of Columbia as distinguished from those who may be temporarily sojourning in the District of Columbia passing through visiting friends, relatives and so forth here or just wondering about the country.

Richard W. Barton:

Now, how do you determine whether or not an individual is a bona fide resident of a community?

With a normal individual, there are a number of ways or things that you could look to.

He buys a house.

He opens a bank account.

He opens charge accounts.

Those, of course, could not generally be applied to the indigent.

All he would generally have was their word on here and I intend to remain here indefinitely.

But by the very nature of their indigency, they come here.

They look for a job.

If they don’t find it, they move on to another city.

Abe Fortas:

And then the HEW here — HEW manual set forth the — the procedure and techniques for determining residents as distinguished from duration of residence.

Richard W. Barton:

Yes, it does some —

Abe Fortas:

I know there’s —

Richard W. Barton:

–requirements.

Abe Fortas:

Those are little more specific than your last statements indicated.

Do you remember them?

Richard W. Barton:

Yes, I do, Your Honor.

There are other standards that can be worked out but we would submit that the Congress here has used this one-year residency provision as an objective legislative test for determining residency.

Abe Fortas:

Would you require under the HEW manual to determine (a) residents and (b) duration of residence as separate things?

Do you read it that way?

That’s where it would seem to read to me but — that I know of.

Richard W. Barton:

Well, I think — I think they were — they are overlapping.

You would have to determine, of course, residence and then the duration if you are involved in the one-year requirement here.

But under this requirement, the intention of the person coming here is immaterial.

You may have come here to get higher grants for anyone of a thousand things.

If he has been here for one year, regardless of why he came here, he is entitled public assistance.

If he has not been here one year, then he is not.

It saves the District of Columbia Welfare officials the many difficult problems of determining who is a bona fide resident.

Now, intent is one of the elements why a person came to a jurisdiction.

His purpose in coming there is another factor.

Richard W. Barton:

Does he intend to remain there indefinitely or permanently?

Many indigent people just can’t say that.

I’m here and I don’t know how long I’m going to be.

If I get — find a good job, I may stay indefinitely.

If I don’t, I may move on.

Now, to avoid the difficulties which would arise from trying to determine each of these cases on an ad hoc basis, the Congress just says, “Here’s one standard regardless of all else, your purpose, your intention, anything else, if you’ve been here one year, that’s it.

You are a bona fide resident.

If you haven’t, you are not.”

Abe Fortas:

Is that really what they said?

Or then they say, “You have to be a resident and you have to have been a resident for a year.”

In other words, that — that’s possible for somebody to live here for a year and not have the intent necessary to constitute residence.

Now, perhaps that’s theoretical.

But as I understand the way the manuals are setup, they do make that distinction.

Am I wrong?

Are you asserting that I’m wrong about that?

Richard W. Barton:

Well, at least, insofar as the District of Columbia is concerned, as I understand it as the law is here administered.

If you have been physically present in the District of Columbia for one year, then you are eligible for public assistance.

Regardless of whether when you initially came here or came to visit my relatives, I intended to go back in a month of two or three months.

I came here for any other temporary purpose and later decided to stay on.

That’s not used at all.

If you’re physically present here for one year, that’s it.

Potter Stewart:

Are you going to say anything about the right to travel argument?

Richard W. Barton:

Yes, Your Honor.

I think that is an argument which has been advanced by necessity by the appellees.

Because, only if the court accepts their argument that this statute does infringe upon a constitutionally protected right to travel.

And their further argument that — that the right to travel is equivalent or in the same class as the First Amendment preferred right.

And if the Court accepts both those arguments, then the exceptional standard in judging those classifications, constitutionality would apply here.

And I think we would have to concede it would probably be unconstitutional under that standard.

Now, that this statute incidentally and indirectly may discourage travel I think is apparent.

But it is our position that it does not arise to constitutional proportions.

Potter Stewart:

What in your right to travel or the extent of the infringement?

Richard W. Barton:

No, the extent of the infringement upon it.

There is no direct infringement.

This Court has dealt with a right to travel, of course, in Edwards versus California and the various passport cases and the Guest case arising in Georgia and so forth.

But in each of those cases, there was a direct infringement upon the right to travel not as here a mere discouragement.

But let’s explore for a minute what would be the affect of holding that this was an unconstitutional infringement of the right to travel where you have State A that has a very low grant, where you have State B that has a very generous grant.

We have an individual in State B that wants to go to State A.

I am discouraged from traveling to State A says the individual.

Because if I go there, the grant is only one-quarter, one-fifth of what I am receiving in this state.

Now, would that then mean that the state with a low grant would be constitutionally required to up its grant to that of the most generous state because the amount of difference between the grants and state displayed is tremendous.

And you could make this argument just as effectively between the amounts of assistance granted as a discouragement to travel, perhaps moreso than you could the residence a requirement because the residency requirement is all over in one year.

The grant of public assistance extends indefinitely as long as you are in need all the time.

Potter Stewart:

Do — do you think the right to travel doctrine is a limitation on the commerce power?

Richard W. Barton:

No, Your Honor.

I don’t think it necessarily is.

Of course, the holding of the Court —

Potter Stewart:

(Inaudible) how about the District of Columbia?

Richard W. Barton:

No.

Well, this is, of course, federal legislation and the Congress can put burdens upon interstate travel.

So insofar as this Act is concerned as distinguished in the state acts, it would not be unconstitutional for the reason that the Court found that California statute in Edwards unconstitutional as improper infringement upon interstate commerce.

This is an act of the federal legislature.

But the same argument, I think, could be applied and extended insofar as interference with the right to travel by differences and licensure in one state.

Here I’m a plumber, a brick player, whatnot.

I’m working in this state.

I want to travel to another state.

It’s requirements of licensure as such that I cannot meet it.

Now, that would discourage me from traveling.

But would that make the license statute of the other state unconstitutional?

I might say just a word, if I may, about the applicability of Section 402(b) of the Social Security Act to this situation.

Appellees in their supplemental brief on page 42 suggests that the Congress in enacting this provision, which of course, provides for federal grants to state programs but with a condition limiting the residency requirement to one year.

Richard W. Barton:

They say that the Congress did not face the question whether any period of residence should be required.

Now, that’s just plain not true.

When the Congress enacted this, it knew.

And in fact, this was urged on it by per — those who thought residency requirements were unwise.

You can handle this whole problem by just saying you don’t get any federal grant if you have any residency requirement.

And had the Congress seem fit to do that that would have effectively abolished residency requirements.

Because while in theory, a state could still operate its own welfare program without federal grants, it would almost certainly not do so since overall the federal grants make up about 57% of the welfare monies.

If I may say just one word as to the Vera Barley case which is the case involving the lady who is in St. Elizabeth’s Hospital and who applied for public assistance and even though she had been there for years and years under a regulation of the department, she was found to be ineligible because they would not permit residency in a public institution such as St.Elizabeth’s to be counted.

Now, the court below in Footnote 19 struck down that regulation.

We do not challenge their ruling on that.

So we don’t need to reach the case here, I think, as far as Vera Barley is concerned, as whether or not the one-year residency requirement would apply to her.

I will say one word about the various amici briefs that had been filed on behalf of the appellees position here and remind the Court what it has so often said before that our concern here is with power and not with wisdom.

I think that bear stressing because I think almost the entire argument in the amici briefs on behalf of appellees position and a great deal of the argument of appellees themselves go to the question of wisdom and not power.

Thank you.

Earl Warren:

Attorney General Sennett.

William C. Sennett:

Mr. Chief Justice, may it please the Court.

The facts of all three cases are basically similar.And I see no need to review them at this time.

And likewise, counsel have, I believe, have set forth the legitimate legislative purposes which the states have in — in which the Federal Congress has in establishing residency requirements.

What I do think is extremely important in this case is that the legislatures of some 40 states together with the Congress of the United States has determined that residency requirements are lawful in welfare situations.

And I would review what this Court just briefly the types of requirements in the various welfare statutes that Congress has passed.

Our own, of course, the one at issue here, 42 U.S.C. 402, is grants to states for aid and services to needy families with children which was first enacted with the residency requirement in 1935 and thereafter amended many times without deleting the residency requirement until 1962 through 1962.

In addition to that in 42 U.S.C 1202, the Congress has provided for aid to the blind, originally passed in 1935 with amendments through 1964 and a residency requirement again of one year and five of nine years.

In 1935, the Congress passed aid to permanently and totally disabled.

It was amended through 1965, the same residency requirements appear, five of nine and one year immediately preceding.

In 42 U.S.C. 1382, the Congress enacted aid to aged, blind, disabled, and a medical assistance program for the aged.

Again, a residency requirement was provided five of nine years, one year preceding.

In 42 U.S.C. 302, the Congress provided for old age assistance and medical assistance to the aged.

It originally provided for five of nine years and one year preceding.

And then in 1960, with reference to medical assistance for the aged, the Congress eliminated the one-year residency require — requirement.

And later in 1965 when the Congress passed the medical assistance program, again, the Congress eliminated the residency requirement by providing that the states could not have any residency requirement either for the medical assistance program or for the old age assistance program to the aged.

William C. Sennett:

I believe that that is extremely important in a context of this present case because not only the states, not only the legislatures of the 40 states who have such a program but also the Congress has determined that a residency requirement is a valid requirement in establishing this program and I think there can be no question.

But that, if — if this Court is going to strike down the residency requirements under the Fourteenth Amendment of the states statutes, it also has to face very clearly, very specifically the problem raised since the Congress in enacting Section 402 has also provided, required the legislative — the — the administrator to accept the program with a residency requirement therein.

Now, if the residency requirement is unlawful, as far as the states are concerned, this Court then also has to say that the Federal Act is unconstitutional under the Fifth Amendment.

Now, with reference to the Fourteenth Amendment problem and whether or not the discrimination in this particular type of requirement is invidious, I believe the case has clearly set forth the area in which the legislatures of the various states can go.

Starting with McGowan versus Maryland, this Court determined that certain Sunday closing laws in the State of Maryland although they were discriminatory, again, certain types of stores were nevertheless lawful.

Because this Court said that when it comes to a consideration of the equal protection rights under the Fourteenth Amendment, the states are allowed a wide scope of discretion in enacting laws which affect some group of citizens differently than others and that the constitutional safeguards are offended only if the classification rest on grounds wholly irrelevant to the achievement of the state’s objective.

The state legislatures are presumed to have acted within their constitutional power despite the fact that their laws result in some inequality and a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify.

Now, McGowan was followed and preceded by a number of cases both in this Court and in some of the Circuit Courts which have also upheld discriminatory estate statutes in various areas where the discrimination was not invidious.

For example, in Drueding versus Devlin, the Circuit Court held that the Maryland residency requirement with reference to voters of one year in the state and six months in the county was not violative of the Fourteenth Amendment.

In Allied Stores versus Bowers in 1959, this Court held that an Ohio tax on property and a warehouse, which exempted a non-resident, was not invidious discrimination since the state was presumed to have acted on a rational basis in setting up its tax statutes.

In Carrington versus Rash, which was again a voting case, this Court in 1965 when considering a Texas statute with reference to residency requirement of military said, “You cannot discriminate — you cannot discriminate between residents, one who are in the military and one who are not in the military, but you certainly can establish a residency requirement for voting.”

And likewise back in 1948, this Court in 336 U.S. Railway Express versus New York in considering a New York City traffic regulation which actually forbid advertising on trucks other than that of the owner said that such a regulation was such discrimination was not invidious.

And finally, of course, in Flemming versus Nestor in 363 U.S. 603, this Court actually considered a question involving old age survivorship and disability insurance benefits.And there, the Congress had not just established a residency requirement.

There the Congress had actually taken away the benefits from an alien who became eligible in 1955 and was deported in 1956 and as a result of his deportation, benefits were taken away from him.

Thurgood Marshall:

Mr. Attorney General, since you’ve mentioned the requirements for voting, is it still true in Pennsylvania that the residence requirement for voting is less than for welfare?

William C. Sennett:

Yes, I believe that is correct.

The residency requirement for voting in Pennsylvania — no, that’s not correct Mr. Justice Marshall.

It is a year as far as moving from out of the state into the state, from county-to-county in the state every 60 days.

Thurgood Marshall:

I thought you said it was the opposite the last time you were here.

William C. Sennett:

I don’t believe so.

It is a year —

Thurgood Marshall:

It is a year.

William C. Sennett:

— of moving outside of the state into the state.

Thurgood Marshall:

It is a year.

William C. Sennett:

Yes.

In Flemming versus Nestor, this Court determined that there was no discrimination in that particular situation where the Congress had actually taken away this type of assistance from an alien who was deported.

And this Court established that there are many different requirements in the Social Security Act that there are no accrued property rights in the system, and that Congress may modify the statutory scheme so long as Congress does not act arbitrarily and so long as a due process is not offended.

I think it is not worthy that to indicate that even in the dissent in Flemming versus Nestor, the dissent of Mr. Justice Douglas and Mr. Justice Brennan, there is a clear indication in specific language that Congress could limit benefits to residents.

Now, if I may — if I may also consider with the Court briefly, the effect of the congressional of Congress legislating in this particular type of case and establishing a residency requirement the — and I submit that following this Court’s decision in Bolling versus Sharpe which affected the segregation in schools in the District of Columbia and followed Brown versus the Board of Education, that in that case this Court declared unconstitutional, of course, the segregated school case in the District of Columbia.

But at the same time, this Court says that the Fifth Amendment does not contain an Equal Protection Clause and that this — and that the concepts are not necessarily the same, that equal protection is a more explicit safeguard of prohibited unfairness than due process of law, and that therefore, we do not imply that the two are always interchangeable, but as this Court has recognized, discrimination may become so unjustifiable as to be violative of due process.

William C. Sennett:

Now, as — as counsel from the District of Columbia has indicated, this Court has clearly seen that there is a double standard when it comes to the type of discrimination which the Congress or the state legislatures may make depending upon the type of right that is involved because Bolling versus Sharpe was clearly a discrimination based on race and this Court will not tolerate discriminations based upon that particular ground.

The Court’s opinion in Bolling versus Sharpe refers back to such cases as Detroit Bank versus the United States where a federal tax statute was discriminatory and that it applied to one type of property and not to the other but nevertheless was upheld, and likewise, to Currin versus Wallace, 1939 Supreme Court case, where the exercise of the commerce power while it was subject to Fifth Amendment principles, nevertheless, could be discriminatory.

So that I think when we consider the basis on which this Court must consider the Act of Congress which is here in question.

And I do respectfully submit that there is an Act of Congress in addition to an act of the state legislature here at issue.

And in considering the Act of Congress, the Court will consider in terms of the Fifth Amendment.

And the Fifth Amendment does not contain an Equal Protection Clause.

And the Due Process and Equal Protection are not always interchangeable.

And even though discriminatory federal action may be so unjustifiable to be violative of Fifth Amendment due process, the test so far as the federal action is concerned, is whether the alleged discriminatory feature is reasonably related to any proper governmental objective.

Now here, the proper governmental objective which the Congress determined was to have a program in which the states would participate.

The Congress in all of the residency requirements so fit to encourage the states to establish programs within the limit set forth by the Congress.

That is a —

Abe Fortas:

You are asserting — you are asserting that — and weren’t necessary for Congress to hold on an inducement to the states to participate on a program.

That necessity provides a sufficient reason to justify what might otherwise be an unconstitutional discrimination under the Fifth Amendment.

William C. Sennett:

No.

No, Mr. Justice Fortas.

What I am saying is that what the Congress did here was a — a — was to establish a program which is — which is in itself a valid legislative purpose and encouraged the states to participate in that program after first having established the standards.

Abe Fortas:

Well, I know but the word “And” was not in your first statement of it.

Why is it?

What is a legitimate legislative purpose so far as Congress is concerned?

William C. Sennett:

Here, the legitimate legislative purpose was to have the states provide this type of programs.

Abe Fortas:

And the states participate.

William C. Sennett:

Have the states participate.

Abe Fortas:

But the Congress could — suppose Congress found that it was necessary in order to get the states to participate in a public school building program to allow the states to have a — have a segregation in the schools —

William C. Sennett:

Well that violates —

Abe Fortas:

— would that make it legitimate?

William C. Sennett:

No, that violates the — the Article 1 privilege and — and there is no question but that it would be arbitrary and discriminatory.

But here —

Abe Fortas:

And do have any case in which it’s ever been held that the purpose of Congress that the need to induce states to participate provided a lawful legislative purpose for the Congress?

William C. Sennett:

I don’t believe that the — that I’ve been able to find that type of case, but I think that certainly it is realistic to consider in this case that here the Congress was looking at all of the different state statutes and all of the different residency requirements.

Some of which went up as high as 15 and 20 years in different types of programs.And here they said, “Now in order to get this uniform, we will establish a residency requirement of one year, and thereby encourage all the states to come in and all the states have 40, at least forty of the states have responded to the Congress and adapted this type of — of program.”

Abe Fortas:

When quite did Congress authorize one year or directed one year, Congress said too that state program, which included the one-year residency requirement, would be accepted and now it’s in the District of Columbia legislation.The situation is different of course.

William C. Sennett:

Well, I don’t believe that is so.

As my position that Congress has mandated in Section 402 of the Act the one-year residency requirement and in order to strike down the residency requirement, this Court not only has to strike down the — the statutes of the various states but also in Section 402 of the Social Security.

Abe Fortas:

Well, New York now has no residence requirement at all for AFDC.

William C. Sennett:

Some states do not have residency requirement.

Abe Fortas:

So that Congress didn’t mandate it in the sense of requiring the states to adapt it.

That’s my only point.

William C. Sennett:

Well, it — it mandated that at the very least there could be a one-year residency requirement and if this court says —

Abe Fortas:

But it — it said that if the state chooses to include a residence requirement up to one year that that residency requirement would not —

William C. Sennett:

That’s right.

Abe Fortas:

— preclude acceptance of the plan.

William C. Sennett:

That’s — that’s exactly right.

But if this Court strikes down the residency requirement, it will be telling the Congress that it does not have the authority to establish a residency requirement.

And of course, as we argued at some length in the last argument almost all of the arguments which have been made in the lengthy briefs of appellees in this case about the terrible situation of this particular plaintiffs and that they are not able to obtain care and so on, those arguments should be addressed to the Congress, that Congress in providing medical assistance has seemed to not to adapt the residency requirement, that Congress in providing other types of welfare has seemed to not to adapt the residency requirement.

And it may very well be that the Congress or other states such as New York already has, might in the future determine that they will not have a residency requirement.

But I submit that it is the Congress which makes that determination and the state legislation.

And so long as there is a valid purpose and the purpose here clearly, as far as the states are concerned has been explained, as far as the Congress is concerned, is to establish a program in which the states will work that this Court will not strike down either the state statutes or the congressional determination.

If I may, I will reserve, Mr. Chief Justice, the rest of my time.

Earl Warren:

General Cox.

Archibald Cox:

Mr. Chief Justice and may it please the Court.

Although there are other arguments presented in our briefs, I suggest that in the final analysis, the decisions below can most simply and should be affirmed upon the very familiar principle that a legislative classification which discriminates without justification against those who exercise a fundamental constitutional liberty violates the Equal Protection Clause and the Due Process Clause of the Fifth Amendment.

The guarantee of equal protection certainly applies to the granted benefits and privileges as well as to regulation or taxation.

The one-year residence requirement here and Connecticut’s requirement also divides mothers and children who are identically situated in relation to their need, their desires, and in every other conceivably relevant way into two classes, all residents who are granted the benefit and newer residents who are denied.

And the discrimination operates in relation to the most fundamental necessities, the very rudiments of life.

The classification rest not only on an invidious distinction against newcomers or strangers but it singles out as the sole ground for that hospital treatment the exercise of a long-recognized constitutional liberty to leave one residence and to move to another in the search of better opportunities, better associations, and better environment, a privilege which has been fundamental relics of this country’s whole existence.

Finally, I shall show that if one examines the alleged justifications for this discrimination which is prima facie invidious for the reason that I have stated.

He finds that none of them will stand careful examination because none of them are reasonably related to any of the permissible or legitimate object of state policy.

Before elaborating those propositions which are the heart of the cases I proposed to argue with, I think it may be helpful to go back and put the issue in its proper statutory and factual background.

Historically, as the brief for the center of study of welfare policy and law finds out.

Historically, public assistance laws go back to the Elizabethan Poor Laws if not earlier.

Archibald Cox:

And as the amicus brief traces it down in this deed as this Court did in Edwards and California and then the Chief Justices raised an opinion in King and Smith.

There was, at that time in an age when many of the idea still derived from feudalism and then in an age when most people certainly ordinary poor people were not very mobile, a notion that each vicinage should take care of what Mrs. Williams calls “our people” of those who are settled in, and that it had no obligation to those strangers, those outsiders who come from someone else, somewhere else, and whom we don’t quite know, and we don’t quite trust, and we don’t quite like, and we don’t have any obligation to.

Now, in the present century when matters as pension laws and other forms and social assistance began to be adapted in this country, the combination of this anachronistic idea plus a continuing hostility to distrust for poor strangers.Plus, I suspect an opposition to making any larger expenditure as then you could possibly withheld, combined to produce in the early statutes extraordinarily strict length of residence or prior residence requirements.

For mothers aid many states had laws requiring four or five-year residence.

For old age, the requirements in various states run up to 15, 20, in the one state even 35 years prior residence.

And that was the situation when Congress considered the Social Security Act in 1935.

As it has been pointed out that statute provided for federal contributions to approve state plans in a number of categories of assistance the most important being aid to dependent children and that’s clearly the most important for the purposes of this case, aid to the blind, aid to the aged and later aid to the totally and permanently disabled.

Congress was faced by this duration of residence requirements and concluded that they were objectionably long.

And with respect to each category of assistance, it imposed a limit and the duration of residence that the state might impose or might require.

Taking as an example, the ADC program, we quote in page 39 of our brief Section 402(b) of the Social Security Act.

And when I say “our brief” I mean our supplemental brief.

The administrator shall approve any plan which fulfills the conditions specified in subsection a, accept that he shall not approve any plan which imposes as a condition of eligibility for aid to dependent children.

A residence requirement which denies aid with respect to any child residing in the state, who has resided there for one year who are — who was born within the preceding year if the parent had resided there for one year.

Now, our view is that the role of Section 402 (b) was to outlaw residence requirements of more than one year leaving the situation with respect to residence requirement of a year or less exactly where Congress found it.

It said that more than a year is bad and it said nothing about the rest, one way or other.

This, I submit, is entirely consistent with the form of the statute and it’s entirely consistent with the basic purpose of the statute that was to set minimum requirements and then leave the rest to the states.

Now, I stress the point because it means, of course, that the courts below were right in very largely ignoring Section 402(b).

It drops out of the case for two reasons, first, if Congress didn’t express any judgment on residence requirements for less than a year, then certainly there is no question of the judiciary differing to the legislative judgment the congressional judgment that a residence requirement of one year is a good thing.

Congress didn’t have to address itself to them and therefore it wouldn’t have expressed any such judgment.

Second, there is no need for the Court to worry about invalidating any provision of the federal law.

There is nothing that directs the secretary of HEW to approve a plan which includes a discrimination which this Court has held to be unconstitutional.

Abe Fortas:

So, would you agree though Mr. Cox if — if you start with the Commerce Clause and the right to travel as incident to that, I mean, so that one like, I said, that particular line of reasoning then the act of — then the action of Congress, even on your construction in 402 (b), is relevant to the constitutional conclusion.

Archibald Cox:

Well, no I think — I think not because I think Congress wasn’t really addressing it to the south, to the question whether it is our judgment that these are not inconsistent.

But when the Privileges and Immunities Clause or the Commerce Clause, it was simply saying we don’t say anything about it.

But of course on the approach that I stated at the outset, and I think each one of the advantages of the approach that I have stated at the outset, one doesn’t have to concern himself with that question because one comes back and pitches this case on the Equal Protection Clause and the provisions of the constitution dealing with — I don’t like to call it the right to travel because it’s the right to migrate and settle in a new place and to seek new advantages not just to move around are important because they show that this is an affirmative constitutional value.

But we are not concern.

Was there more technical scope or with that — just what body they apply to or just what technically is the source the right.

I should remind the court as we might have in our brief that the administrator of Social Security and the Secretary of the Department of Health Education Welfare has often refused to approve state plans violating the Equal Protection Clause in the substantive sense not because he concluded they violated the Equal Protection Clause necessarily or establishing other inequitable classifications.

But two examples have come quickly to mind are his disapproval of a plan, which would have excluded Indians and children of Indians, and his disapproval of a plan that would have excluded illegitimate children.

Both of those under the Equitable Classification Law were disapproved by the secretary even though they’re not expressly mentioned in Section 402.

Archibald Cox:

And surely, that same power applies to giving effect to the decisions of this Court with respect to a constitutional eligibility.

I add, although I hope it’s not necessary, that if the Court should disagree with our reading of Section 402(b), then of course we say that Section 402(b) is unconstitutional for the same reason that we say that the state laws and the special statute applicable to the District of Columbia are unconstitutional.

(Inaudible) on your first argument that you left a few moments ago, certainly Congress brought its judgment there, on the one-year requirement with respect to the District of Columbia legislation.

Archibald Cox:

I would have thought it brought up to bare, Justice Harlan, only to the point of saying it’s not so bad that we are going to strike it down.

And I suggest that that is quite different from what a legislative body does when it brings its judgment to bare on the question and say, “We are going to impose this.”

But the District of Columbia —

Archibald Cox:

Oh, excuse me —

— the District of Columbia legislation is congressional legislation.

Archibald Cox:

I’m sorry.

I jumped to the conclusion you were saying something different then you were — of course Congress brought it’s quite — I wouldn’t deny that for a minute.

I don’t think so.

Archibald Cox:

Of course it is.

I’m very sorry.

Under Section 402(b) which I certainly can’t argue outlaws the one-year residence requirement.

About 40 states have enacted one-year residence requirements.

Other states including New York, Rhode Island, and today Massachusetts, Maine, Hawaii, and a few others, do not have a residence requirement.

A typical residence requirement is found in the — is the one in the Pennsylvania case which you will find on page 1a of the Pennsylvania brief.

It provides in the middle of the page, “Assistance may be granted only to or on behalf of a person residing in Pennsylvania which resided therein for at least one year preceding the date of application or who has resided in a state with which Pennsylvania has a reciprocal agreement making residence unnecessary.

I mentioned they are because I come back to the significance of that alternative later.

I think it has a good deal of bearing on what are the purposes of this legislature.

The operation of the statute in Pennsylvania, but also it will serve for other cases, is illustrated by its application to the plaintiff Juanita Smith.

Juanita Smith lived in Pennsylvania with a family, with a mother and father who had lived there all their lives forbearance who had lived there earlier.

From the time she was one month old until she must been around 16 or 17, until she was old enough to bare children, she then went to Delaware with a man named Peter where they lived for a few years.

She came back with five children.

At the invitation of her father who had promised to help — help Peter to get a job and to help the family out until Peter did get a job.

So this was a very, in a real sense, a matter of going back home if I may use home colloquially in the family sense or rather than in any technical sense of domicile.

It was rejoining the family and going to the family to get help.

Unfortunately, Peter didn’t get a job and went back to Delaware then when Juanita Smith’s father lost his job, he couldn’t take care of her and the five children anymore.

She was pregnant, sick with a very bad varicose problem, and she went to the welfare people.

The welfare people, because of the residence requirement had no solution.

Archibald Cox:

The only thing they could say was, “We’ll either go back to Delaware,” because she didn’t want to leave her family.

She didn’t want to go back to Delaware for other reasons.

Or, we’ll take your children away from you and provide institutional care which might run anywhere from six months to two years.

And this at least will provide them with shelter.

But there’s nothing else under the residence requirement we — they could do.

Ms. Smith was taken care of by the Travelers Aid Society which agreed to provide a modicum of means until this test litigation could be brought.

The three judge District Court granted first a temporary injunction against the enforcement of the residence requirement which then did provide the necessary aid.

That injunction as the Court knows was later made permanent and the cases here.

The decision below, I may recall, rested primarily on the Equal Protection Clause.

And I would also emphasize that the decision in the Pennsylvania District Court was one of far there are many decisions by three judge District Courts all over the country.

There are at least five major opinions and decisions where the court seems genuinely to have considered the case itself in the last and since the argument in this case in the opinion in the District of Massachusetts, in the Court which circuit Judge Aldridge presided over.

There are also a raft of temporary orders which I don’t think I can really claim as authority because they just followed what had happened before.

But nevertheless, with the exception of one case there’s been an extraordinary uniformity of opinions to which I think this Court would wish to give weigh.

The District of Columbia statute is a little bit different from that of Pennsylvania and I want to explain some of the idiosyncrasies in its operation.

The District of Columbia statute appears on page 2 of the fattest of the briefs, the first brief for the appellees in these cases.

Public assistance shall be awarded to or on behalf of any needy individual who either (a) has resided in the district for one year immediately preceding the date of filing his application for such assistance, or (b) who was born with one — one year immediately preceding the application for such aid, if the parent or other relative with whom the child is living has lived in the district for a year.

Three of the four plaintiffs in the District of Columbia case fall into the familiar — if one is familiar with these cases’ pattern illustrated by Juanita Smith of whom I spoke earlier.

That is to say they are mothers of dependent children without present husbands who moved into the new jurisdiction either to go back home for the most part or rejoin their families or to get help from some person or perhaps to get a job and then who are left absolutely destitute of when misfortune occurs.

Two of the district cases show the — what I call the idiosyncrasies of this statute.

One is the case of Gloria Jean Brown for the most part her saga is like that of Juanita Smith that is to say she grew up in Washington DC.

She went out of state with children and then she came back to a large family.

I mean her father and brothers insisted which was here.

When she was coming back, she left the two children she had taken with her to Arkansas there for a month or two while she came back and reestablish empennage in which to bring them up.

Then when she found she had to apply for assistance and when her oldest child who was here and she both receive assistance under the one-year residence law, these other two in the same family who certainly were in the same situation and who certainly have the same ties to the District of Columbia when she did, were denied the assistance that was given to the oldest child.

And the — worse than that, the little baby in the family not being a year-old hadn’t resided in the district for a year so it will — too was held not to have the same connection as its mother and older brother.

Really still my idiosyncratic was the case which I understood counsel just to withdraw the case of Vera Barley who came to the District of Columbia and even if they have conceded in this, it shows the operation of these laws who came to the District of Columbia in 1943 and she was coming back to a place where she lived before so not for very long even then.

She had the misfortune to become incompetent.

She was confined to St. Elizabeth’s.

She was in St. Elizabeth’s for 29 years.

If public assistance could be provided to her, she was determined by the doctors to be competent to be released and arrangements were made to — for her living in a nursing home here.

Archibald Cox:

But the district said no, she hadn’t one year’s residence, so she had to stay in St. Elizabeth’s.

A good deal has been said about saving money in these cases.

It costs roughly three times as much to keep her in St. Elizabeth as it would’ve kept to provide the aid to the totally and permanently disabled, and let her go to a home.

I may say that that is also true of many of these children for whom the only future under the one-year residence rule was going to institutional care, which is more expensive per child on the average than the aid under the ADC programs.

Abe Fortas:

Mr. Cox, have you come across any figures on how much it costs to conduct these one-year investigations?

I remember seeing somewhere a suggestion that the cost was extremely high.

Archibald Cox:

I recall that being stated and argued as a general matter.

But we do not, as I understand it.

I have checked this afternoon.

But I believe we have no reliable figures indeed no figures at all on that.

Earl Warren:

General, suppose in these cases instead of the appellees asking for relief they ask for the right to vote and were denied the right to vote.

Archibald Cox:

Well —

Earl Warren:

How would that appeal to you on the travel argument that you made?

Archibald Cox:

Well, the argument — the argument that I make, I would remind Your Honor, is composed of three parts.

One is the discrimination and the other is discrimination aimed at the exercise of a fundamental right — liberty, the liberty of travel, and three, the absence of any justification in state policy.

I think a much stronger case can be made for requiring a period of residence in a state, but before you’re permitted to take part in its affairs, that you learn what the issues are, learn something about the nature of the community or learn something about the parties, candidates and their past record.

Therefore, I would think it was a much stronger basis for arguing.

In that case, that the differentiation between old and new residence serves a useful purpose.

I shall argue here taking them up one at a time that none of the justifications advanced for this statute.

Stand up that this differentiation not only is arbitrary and capricious and is discourages, penalizes the exercise of a constitutional liberty, freedom of movement, but that it lacks that justification.

That would be my — I think — in other words, each residence requirement must be looked at in terms of what — is there some reasonable basis?

Abe Fortas:

General are you not —

Archibald Cox:

And I think your voting case for that reason is quite different.

Abe Fortas:

You’re not arguing are you that a residence requirement as distinguished from a durational residence requirement would meet the same constitutional objectives?

Archibald Cox:

No, no, we’re — you’re quite right and I stated it, I think, the way I meant to in the beginning that this divides residence —

Abe Fortas:

Yes.

Archibald Cox:

— within the HEW definition that Your Honor referred to earlier —

Abe Fortas:

Yes.

Archibald Cox:

— into two categories and that we say is the invidious classification.

Abe Fortas:

Yes, nor I am.

Abe Fortas:

And I suppose that a brief period of time to inquire whether a person is a bona fide resident would also be constitutional.

Archibald Cox:

As in the case of the other requirements for eligibility, yes precisely.

I — I would like to call the Court’s attention to the Connecticut statute very briefly.

Connecticut statute on page 36 of the Connecticut brief is a little bit different from the Pennsylvanian District statutes.

And the difference is worth noticing along with one matter of fact.

The Connecticut statute is the very last page in the brief in the Connecticut case.

When any person comes into this state without visible means of support for the immediate future and applies without visible means of support for the immediate future, and applies for aid to dependent children, you’ll notice this applies only to AFDC and not to other categories of the system.

Within one year from his arrival, such person shall be eligible only for temporary aid or care until arrangements are made for his return.

Under the regulations of the Connecticut Welfare Department, the requirement of visible means of support are means that you must either have a specific job offer or resources, money or property that will last you for three months.

Or, if you’re able to get and keep a job for three months, that too will satisfy the requirements of the statute.

Now, I do not intend to go into the case of the Connecticut plaintiff in any detail.

I do want to say just one thing and that is that it was clearly stipulated.

It’s on page 41a of the Appendix to the brief for the appellant.

Because of her pregnancy and her responsibilities to her son, the plaintiff was unable to seek — either to seek gainful employment or enroll in a work training program.

So it seems to me that it’s most misplaced in this case to talk about people who are unwilling to enter the labor force.

This is a plaintiff, who at the time when this claim was made, was unable because of her pregnancy and her responsibilities to her son to enter the workforce or seek training.

Abe Fortas:

General, in all of these states, are there comparable — is there a comparable linkage that is to say comparable to the Connecticut linkage between the denial of the one-year residence, and on one hand, then the expulsion of the person so to speak, sending a person back to the state of origin?

I do remember as you just — and you just refreshed my memory on that that the Connecticut seems to contemplate the — as a matter of routine that the —

Archibald Cox:

A number of the states will —

Abe Fortas:

— that the person will be expelled from the jurisdiction.

Archibald Cox:

A number of the states will supply aid if you go back home and indeed in — or if the Court should direct itself to the question, “How far does this deter taking up a new residence as distinguished from how far does it penalize one who insist on doing it which I don’t think is important?”

But should one go into that, it’s significant that this puts pressure on people to go back to the other state and there is testimony in the Connecticut record, I’m afraid I have forgotten the figure, that a certain number of people, when confronted with this at the initial interview, having nothing else to do or being destitute are in effect pressed —

Abe Fortas:

To go back.

Archibald Cox:

— to go back where they came.

And this, I wouldn’t want to say it was true of all states, Justice Fortas, but it’s a characteristic of many of these programs.

In coming back now to my legal propositions, I shall direct myself first to the unqualified one year prior residence requirement and then deal with any peculiarities of the Connecticut case further on.

We picture our case ultimately, as I said in the beginning, upon the preposition that the one year’s prior residence requirement violates the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment.

Because without any justification, say a prejudice against strangers, against new residence who are poor, it discriminates in relation to the fundamental necessities of life between two groups of persons who are otherwise identically situated, let’s say that one of them has chosen recently to exercise the fundamental liberty to leave an old environment and move to a new residence in search of preferred associations, opportunities or environment.

I — I would emphasize that that proposition embraces three elements.

First, that the one year residence requirement discriminates in relation to the fundamental necessities of life between two classes of persons who are identically situated in terms of need or the appropriateness of the remedy that is offered or any other thing of that kind, say how long they’ve been there or where they came from.

Archibald Cox:

Second, the sole basis of classification is a differentiation between the new and the old residence would be all granted assistance and the new denied.

That discrimination against strangers, against new comers, against those who, Mrs. Williams said during her oral argument “are not our people” which I think, with no offense at all to her intent, reveals that this sort of rest on a prejudice against the outsiders.

It’s invidious in that sense like racial or religious discrimination.

But it also penalizes the exercise of a, what I take to be, a liberty of freedom and aspect of freedom which has long constitutional recognition.

And then, the third element is that the classification serves as no substantial relation to the accomplishment of any permissible state policy.

Under the grab bag of justifications that the appellants put forward here in their briefs, most of them, testimony to the ingenuity of counsel, I think it’d be shown really not to stand up on any careful analysis.

Now, I do want to emphasize this or I think one could argue that we do argue in some of our briefs that perhaps someone or two of those three elements in the case would be enough to make account a case for unconstitutionality.

But I suggest to the Court that we don’t need to go that far, that all we need to say is that adding all three together, the one year’s prior residence requirement is unconstitutional as a violation of the Equal Protection Clause then we developed each of the three parts.

But preliminarily, I ought to say that of course the constitutional guarantees against hostile or arbitrary and capricious classifications apply to legislation conferring advantages or opportunities or privileges just as much as they do to legislation that regulates our taxes.

The obvious example would be a state granted aid program that discriminated down grounds of race or that discriminated down grounds of religion as in Sherbert and Verner.

There are plenty of cases which if you read them carefully sustained this — this proposition of the Gerard College case of Evans and Milton, Simkins and Moses Cone, a Fourth Circuit case when which this court denied certiorari, and again the Sherbert and Verner.

I think all show that there is nothing new in this suggestion.

Now on the first of the three elements, we suggest, as I say, that the one year prior residence rule discriminates in relation to the minimum essentials of life between persons who are identically situated except for their residence.

The proposition is perfectly simple and I don’t think anyone is going to dispute it.

But quite frankly, I’m a — a little worried that because of its simplicity, its importance make it overlooked.

That’s one reason I stressed the facts that this is a discrimination in regard between people who are identically situated in relation to the fundamental necessities of life.

Abe Fortas:

Well, you do have to quickly — to cut over to your point three and say, “A discrimination which has no basis.”

Archibald Cox:

I’m just taking them one at a time.

I — I emphasize —

Abe Fortas:

Yes, but I said it right there, you have to do it.

Don’t you?

Archibald Cox:

Well, I would like to dispose of a couple of little points.

First —

Abe Fortas:

You can do it anyway you want to, but I mean to say that, obviously, that’s an essential part of your argument on that point because the response to it otherwise would be too easy which is, unnecessarily, there has to be some sort of a discrimination between the two once you agree that the state may legitimately and constitutionally take a reasonable amount of time to investigate the new comer to see whether he is in fact a resident.

Archibald Cox:

Oh, I’m not suggesting that all classifications are invalid.

I am suggesting that this is not — I’m suggesting really two things and perhaps I didn’t state them very well.

I’ll try to do it more simply.

I’m suggesting that this isn’t a discrimination or like one or between the business that may claim it’s entitled to a subsidy for $5 million and then that’s unfair as compared to another business of getting a subsidy of $20 million.

That this is something that operates in relation to, not only the rudiments of existence in a monetary sense, but in relation to such things as keeping families together.But the answer to, when they dismiss, was the only thing we can do is put your children in institutional care.

In relation to Vera Barley, the discrimination operated literally in relation to human liberty.

Archibald Cox:

And I think that those aspects of it are important.

Then the other thing that I was seeking to emphasize along the way is that these people are identically situated in relation to need and all other things that are relevant from the standpoint of the purposes of this legislation.

Earl Warren:

General, may I — may I just point to the category of old age pensions?

Do you think that the state has no valid interest in — in saying to a person who has spent his whole life up to 65 years of age in a state where they have a $16 old age pension and then at the age of 65 moves to a state where they have over a $100 pension and without any intention of contributing anything to the economic life of the — of the state, he’s immediately entitled to go on old —

Archibald Cox:

As soon as he becomes a resident.

Earl Warren:

I beg your pardon?

Archibald Cox:

As soon as he becomes a resident, we so contend.

Yes.

Earl Warren:

Which can be the first day he arrives there?

Archibald Cox:

Under the HEW definitions, as soon as he arrives and begins to abide there with no intention to leave, no intention immediately to leave.

I would say that the distinction is an invalid one subject to the matter of a — of a period of time to determine whether he is a resident and I would say that the state has no sufficient justification for discriminating against new comer.

I will also argue, but I would like to postpone this till tomorrow and I get a little farther on my argument.

But I will also argue, Mr. Chief Justice, that even if we assumed for the purposes of this case that I am wrong in saying that it has no power to take any steps, I will argue that this statute is overly broad for reasons I will explain later in my argument and that the state could deal with any problem which might, contrary to my argument, be supposed to exist by an hour over a piece of legislation.

I’ve — I’ve just, if I may to take the one minute left, I was emphasizing that these plaintiffs are identically situated with respect to need and anything that might be thought relevant to determining need or deserts or the suitability of a particular kind of remedy.

The other reason I stressed that is because it seems to me that the Court might be legitimately concerned if we were pressing it to pass upon the reasonability of categories of aid as between the deaf and the dumb and the blind or as between the widows of veterans and the widows of civil service employee.

But this distinction clearly has nothing to do with deciding how to solve one problem or how to solve another problem or with determining what is the nature of the problem.

But the nature of the problem is identical in the case of the new residents and the older residents.

And then I do go on, Justice Fortas, in the morning from there.

Earl Warren:

Very well, we will recess now.