United States Department of Agriculture v. Moreno

PETITIONER:U.S. Department of Agriculture et al.
RESPONDENT:Jacinta Moreno et al.
LOCATION:United States Department of Agriculture

DOCKET NO.: 72-534
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 413 US 528 (1973)
ARGUED: Apr 23, 1973
DECIDED: Jun 25, 1973

ADVOCATES:
A. Raymond Randolph, Jr. – argued the cause for the appellants
Ronald F. Pollack – argued the cause for appellees

Facts of the case

Jacinta Moreno lived with Ermina Sanchez, who was not related, and Sanchez’s three children. Sanchez provided care to Moreno, who contributed to household living expenses. Moreno satisfied the income requirements for the federal food stamp program, but was denied under Section 3 of the Food Stamp Act of 1964, amended in 1971, which prohibited households with unrelated members from receiving food stamp benefits. Sanchez’s food stamp benefits were also to be terminated. Moreno and other households who were denied benefits under Section 3 challenged the statute in the United States District Court for the District of Columbia. The District Court held that Section 3 violated the Due Process Clause of the Fifth Amendment. The United States appealed.

Question

Does Section 3 of the Food Stamp Act of 1964 violate the equal protection component of the Due Process Clause of the Fifth Amendment?

Warren E. Burger:

We’ll hear arguments next in 72-534.

Mr. Randolph.

A. Raymond Randolph, Jr.:

Mr. Chief Justice and may it please the Court.

This is an appeal from the judgment of the three judge Federal District Court in District of Columbia, holding Section 3 of the Food Stamp Act unconstitutional under the Fifth Amendment insofar as it limits eligibility for food stamps to related households.

The court enjoined the Secretary of Agriculture from denying eligibility to households containing one or more unrelated individuals.

The issue in this case is whether Section 3 of the Food Stamp Act is so unconstitutional under the Fifth Amendment.

I will first give a brief description of the Food Stamp Act, then deal with the particular facts of this case and then discuss our position.

The Food Stamp Program was enacted in 1964 to raise the nutritional level of low income households and to strengthen the agricultural economy.

Eligibility to participate in the program is on a household basis, rather than on an individual, although an individual can comprise a household if living alone.

An eligible household exchanges an amount of money for what is termed an allotment of food stamps or coupons of a higher monetary value.

The difference between what the household actually pays for the coupons and their actual value is the federal contributions to the household’s increased purchasing power.

The household uses these coupons to purchase food at the prevailing price in participating retails stores.

The retailer redeems the coupons through the commercial banking system.

The amount of allotment to a household is determined by the household size.

For example, at present, a household of four persons is alloted a $112 a month; a household of five, a $132 and so forth and new allotment levels coming to effect each year and I am told that 38 federal register, 8287; the new allotment levels effective July 1, 1973 are printed.

The amount of money a household must exchange for it is coupon allotment depends on the household’s monthly net income.

For example, a household of four, with $250 monthly net income must pay $71 for this, $112 allotment of coupons.

If the net income to the household is $330, the household pays $86 for a $112 coupons and so forth.

The Food Stamp Program is not a mandatory program, it is a joint federal, state and local government undertaking.

Counties and independent cities as well as states have the option whether or not to participate in the program.

At present, all but about one-third of the counties and cities in the country have Food Stamp Programs, that is 2,204 out of 3,129 have Food Stamp Programs.

Three states, Nevada, Delaware and New Hampshire have no Food Stamp Program whatsoever.

While the Federal government pays for the increased food purchasing power of the household and sets uniform national standards of eligibility, the day-to-day administration of the program is handled largely by state agencies to certify households as eligible, investigate applications, issue the stamps and so forth.

A substantial percentage of the administrative costs are paid for by the state out of it is own pocket.

Section 3 of the Act, the statue at issue in this case, defines the term household for eligibility purposes as “A group of related individuals or non-related individuals over age 60, who are living as one economic unit, sharing common cooking facilities and for whom home food is customarily purchased in common.

Appellees who live with unrelated persons claim that because Section 3(e) limits eligibility to groups of related individuals, a provision that resorted from 1971 amendments to the Act, Congress has deprived them of food stamps in violation of the Fifth Amendment.

It brought this class action seeking a declaration that Section 3(e) is unconstitutional and an injunction — and seeking also an injunction against its operation.

A three-judge court was convened.

Each of the five individual appellees or groups of appellees representing a class alleges that they were denied food stamps because they did not live in related households.

Appellee, Mrs. Moreno resides in Florida.

A. Raymond Randolph, Jr.:

She lives with another woman, who has three children.

Both Mrs. Moreno and her co-tenant, Mrs. Sanchez are on public assistance.

However, it appears from Mrs. Moreno’s affidavit on the appendix, which is the brown volume, on Page 24, that Mrs. Sanchez is receiving food stamps.

Appellee, Mrs. Keppler lives in Oakland, California.

She and her two children, joined with another woman to rent a house for $275 a month.

Both Mrs. Kepler and her co-tenant are on public assistance.

The record does not reveal their combined income.

Appellee Mrs. Hejny lives in North Carolina with her husband, their are three children and a young woman who is unrelated to them.

Mrs. Hejny husband is a pipe layer.

Weather sometimes prevents him from working during one month, February, which his income is reported for, he made $90, he brought home $90 a week.

The young women living with them, who is now 21 years old, earned about $20 a month babysitting.

The Hejnys have very high and very substantial medical expenses.

Appellee David Durant resides in Salt Lake City, Utah.

He is a student at the University of Utah.

He lives with another young man.

He and his co-tenant earned $170 doing odd jobs in January, 1972.

The remaining appellees are a group of five unrelated individuals, three men and two women, who lived together in Columbia, South Carolina.

One is a full-time student and the others are unemployed.

They joined together, their affidavit states, for economic reasons and out of personal affinity for one another.

They pool all resources.

On cross motions for summary judgment, to District Court held at Section 3(e), by extending food stamp eligibility only to related households, discriminates against persons and groups containing unrelated individuals such as the appellees in violation of the Due Process Clause of the Fifth Amendment.

Court said that it was unable to perceive any rational basis for Congress’ making only related households eligible and thus, not including unrelated households as well in eligibility for food stamps.

In discussing this question, first of all, I would like to deal with what class exactly is it that is affected by this.

As we said the Bar Section 3 is definition of household as a related group for individuals.

On Page 12, the appellees define the class as, Page 12 of their briefs, the white copy, as composed of persons in need of food stamps as are related household members, but who live in households that include one or more persons who are unrelated to everyone else in that household.

This is not an accurate description of the class that is ineligible for food stamps under Section 3(e).

First of all, for purposes of Section 3(e), the statute specifically provides that if unrelated persons, 60 years old or older are living in the household, in otherwise, eligible household does not disqualify.

Second, if there are children, by regulation second, if there are children under the age of 18, but not related to any of the adult members of the household or not even legally adopted or assigned through a Foster Home, the household does not render ineligible so long as one of the parents performs the duty or one of the adults performs the duties of a parent with respect to such children.

Third, even if a man and woman, this is again by regulations, are living together and not married or related, they can still comprise an eligible household so long as they are treated by the community as husband and wife.

This regulation is sort of a federal common law of marriage.

A. Raymond Randolph, Jr.:

Fourth and perhaps most significant, even if none of these examples apply, unrelated persons living together are not automatically ineligible for food stamps.

As we noted in Pages 9 through 11 of our reply brief, the recent decision in the District Court in California Knowles versus Butz, which the department of agriculture, it’s at Page 9 through 11, we discussed this case and is reprinted in the appendix to our reply brief, holds, the Knowles decision holds that even if people live in the same house or apartment and share housing expenses, they are not necessarily one household for purposes of eligibility because in under the Act in order to be considered a household, the group of persons must operate as an economic unit.

That is common living expenses must be shared in the income of all, the needs of all members have to be provided without regard to a willingness — willingness or ability to pay.

For example if two unrelated founders move in together and share only housing expenses, they could be considered two related households instead of one unrelated household.

Perhaps Mrs Keppler might serve as an example.

Her situation is reported on pages 26 to 27 of the Appendix and she alleges that she moved in with another woman in order to save housing expenses.

There is no indication that there’s a general pooling or sharing of all resources without regard to willingness to contribute or pay.

In our brief we through the analogy that just simply because two Lawyers for example share an office, it doesn’t mean that they are necessarily partners even if they both share the expenses for that.

I think there are numerous other examples of this.

Thurgood Marshall:

Does Keppler I apply if they had pooled all of their resources?

A. Raymond Randolph, Jr.:

Sorry

Thurgood Marshall:

The Keppler case you just mentioned if those two ladies pool all of their economic sources?

A. Raymond Randolph, Jr.:

They would be ineligible because then.

Thurgood Marshall:

They would still be ineligible?

A. Raymond Randolph, Jr.:

They would then be one economic unit and thereafter not to separate households living together but one household and therefore unrelated.

Thurgood Marshall:

Would they be eligible?

A. Raymond Randolph, Jr.:

No.

Thurgood Marshall:

So what’s the difference?

A. Raymond Randolph, Jr.:

The difference is that —

Thurgood Marshall:

I mean, it was the difference of the fact that they are — they didn’t pool their resources, and if they had pooled then they would still be ineligible?

A. Raymond Randolph, Jr.:

But if they didn’t pooled their resource they would be eligible.

Thurgood Marshall:

They would be eligible?

A. Raymond Randolph, Jr.:

Yes because the statute requires Mr. Justice is that the group of persons live as an economic unit.

Thurgood Marshall:

Am I right, there is two people?

A. Raymond Randolph, Jr.:

No they children, Mrs Keppler has two children.

Thurgood Marshall:

Well would the other one be the one that doesn’t have the children.

The one individual, he wouldn’t be eligible because he is not a group?

A. Raymond Randolph, Jr.:

Well an individual can comprise a household under the Act.

If the individual is not a part of any other economic unit, it can comprise a household.

I am sorry, I ought to expand on this.

A. Raymond Randolph, Jr.:

Under section 3(e) the term household means either a single individual or a group of individuals living related individuals, living as one economic unit.

Thurgood Marshall:

But the individual is not in this case, isn’t it?

We’re talking about groups in this case aren’t we?

A. Raymond Randolph, Jr.:

We are talking about both groups and individuals.

Some of the appellee are individuals.

The only appellee —

Thurgood Marshall:

Well, would Mrs. Keppler be qualified as an individual?

A. Raymond Randolph, Jr.:

But she has two children, she would be qualified as a household if she shared only living, only housing expenses.

The fact that she lives under the same roof with another woman would not mean that, that was an economic unit composed of Mrs, Keppler and the other woman.

Thurgood Marshall:

Is the other woman eligible?

A. Raymond Randolph, Jr.:

That would depend on what her income was and I think she is on welfare, if she is then she would be eligible too, but they would be eligible as separate households not as one household.

Thurgood Marshall:

And the difference being what, dollars and cents wise?

Byron R. White:

What’s the – what —

A. Raymond Randolph, Jr.:

The difference would be simply zero federal contribution to food purchasing power as opposed to whatever the food purchasing power would be?

William J. Brennan, Jr.:

Are you going to get to telling us why it’s rationale now to make them all ineligible if they pool, the living expenses?

A. Raymond Randolph, Jr.:

Yes.

William J. Brennan, Jr.:

Alright.

That’s really we are trying to decide here?

A. Raymond Randolph, Jr.:

That’s right, I have wanted to give an accurate definition of what class people of were affected by this and it’s not accurate to say that simply because two unrelated people are living together they are disqualified from receiving food stamps.

That is not an accurate description of class, that is not necessarily so unless they are living as an economic unit pooling all resources.

Prior to 1971 both related and unrelated households were eligible for food stamp relief.

During 1969, 1970, however, before the program’s organization for preparation inspired and the food stamp gets an authorization every year on a present practice since reevaluated, Congress too undertook a comprehensive reevaluation of the program’s operation.

As representative Foley stated on the house floor, there was congressional concern about participation in the program by what he termed “Collections of essentially unrelated individuals who voluntarily choose to cohabit and live of food stamps.”

The Congress had evidence during the hearings that at lease in one food stamp jurisdiction 38.6% of the non assistance households were either groups of college students living as fraternities and 42.4% of the non assistance households were groups of unrelated individuals who joined together to adopt the communal life style.

The revision of Section 3(e) by the Conference Committee dealt with this problem by extending food stamp relief only to related households.

And we believe this is an example of what the quote spoke about in Williamson and Lee Optical and Dandridge and Williams and Jefferson and Hackney of Congress permissively selecting one face of the problem, in this case related households, and applying a remedy there.

We submit Congress had rational basis for doing this and therefore did not violate the Due Process Clause.

And allocating assistance among potential recipients, Congress could irrationally, and indeed probably must, follow some scale of priorities in determining need.

In following the scale of priorities we think it was quite irrational for Congress to say that communal groups such as the kind described by Congressman Foley would rank very low in the scale of priorities as opposed to people that were in need out of circumstances that were not of their control.

And Congress could therefore, we believe, decide not extend relief beyond related households because to do so would encompass the kinds of groups the Congressman Foley spoke about on house floor, that is communal groups and also college fraternities that were living of food stamps.

A. Raymond Randolph, Jr.:

This kind of allocation I think is illustrated by Dandridge and Williams where the Court said that the constitution does empower this Court to second guest officials charged with a difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.

We think there was an additional reason why Congress could conclude that it was proper only aid related households.

Congress knew the relative instability of groups of unrelated individuals as compared with related household as this could cause administrative difficulties because household eligibilities since the allotment for month, it must be determined on a continuing basis.

The certification of the household depends on how stable the household is, if it’s a very unstable household with different income coming in with different people living in it, there must be a constant certification of determine it’s allotment.

This increased administrative expenses, something that we think additionally served as rational basis for Congress’ classification as it did.

And I refer now to page 45 of the Appendix which is a letter that Appellees had included in the record.

As I said before the Food Stamp Program is an optional program, it’s not mandatory, about one third of the counties in the country don’t have a Food Stamp Program, at the top of page 45 the director of the program for Californian says —

Warren E. Burger:

45 of what now —

A. Raymond Randolph, Jr.:

45 of the brown Appendix.

Warren E. Burger:

Appendix.

A. Raymond Randolph, Jr.:

He says counties are carefully considering the increased cost of administration very carefully.

Several counties have indicated that they are weighing the possibilities of changing from food stamp programs to commodities or of having no supplemental food program at all.

New counties just accepted and not operating they reevaluate their decision to come into this program.

Potter Stewart:

California.

A. Raymond Randolph, Jr.:

That’s California.

I think Congress knew this as well as the director of the California services and New York — and they also knew that by having related households in the program they can increase the administrative cost.

Now for rational basis means, a basis derived from reasoning, we think this statute meets that test.

As I said before there are groups within the unrelated households group that Congress reasonably I think and certainly rationally could conclude were not deserving a food stamp on any kind of scale of priorities that Congress could follow.

And second of all by including unrelated households Congress could also conclude that it would create increased administrative expense was may in fact deter states or counties from adopting the program at all.

It’s no answer to say of this as appellees do, well, there are other ways of taking care of these problems.

For example, we have criminal sanctions and in 1971, Congress added a requirement that people must register and for accept employment as a condition to food stamp relief.

The very harshness of the criminal penalties for abuses suggest this use and there was testimony on the house floor that it was not an effective remedy and the work requirement which requires adult numbers of the household, the register for and accept employment had just been added to the Act simultaneously with the revision of Section 3(e).

This was thus new and untried and Congress was well aware of the administrative difficulties it had in controlling this nationwide program under the existing practices.

It surely was not required to assume that the constitution forbid it from extending relief only to related households because it just added a work provision to the Act which was yet untried.

This is not to say that there might have been other ways for Congress to respond to these problems, but that Section 3(e) is the best approach or even a wise one.

But as the Court is continually reminded the wisdom or I might add, the unwisdom of a particular statutory is not a proper subject subject for judicial inquiry.

We believe Congress had rational base for extending relief only to related households and the Fifth Amendment requires no more.

We therefore believe that judgment below should be reversed.

Potter Stewart:

You — I want to try and understand you.

You say the basic rationally is three — has at least three ingredients as I understood.

Potter Stewart:

First of all the – their concern was to see to it that the food stamps did go to the so called voluntary poor.

A. Raymond Randolph, Jr.:

That’s right.

Potter Stewart:

And secondly it also has the ingredient of saving administrative expense because of the transitory nature of so many of these not related household and thirdly to prevent fraud which is really part of one and two, isn’t it?

A. Raymond Randolph, Jr.:

Yes, it is because, of course if unrelated groups are eligible and the fact that they are getting food stamps is not an abuse of the program.

It’s only an abuse if you define your priorities to such as to say that these are people that are very low in the scale and that we ought to concentrate our efforts else where.

Potter Stewart:

But that’s it, (Inaudible).

A. Raymond Randolph, Jr.:

Yes, that’s it, that’s it.

Warren E. Burger:

Mr Pollack?

Ronald F. Pollack:

Mr. Chief Justice and members of the Court.

Determining whether the unrelated household provision, here at issue violates equal protection.

I think there are two useful tools for analysis.

The first tool is the traditional tool, the traditional standard, is the provision rationally related to the purposes of the Food Stamp Program.

Is it reasonably related to some legitimate Governmental purpose?

The second tool that I think is applicable in this case is a compelling Governmental interest has because of provision here at issue impinges directly upon appellee’s associational and privacy interest.

I would like to concentrate on the first test, however, the traditional standard.

For it’s my opinion that under either standard, this provision does not meet the standards of Equal Protection.

Warren E. Burger:

Now in Dandridge it’s argued Mr. Pollack that, I think it was Dandridge there was an interference with very important right of privacy, that is size of the family in the sense that the regulation discouraged large families because of the limitation?

Ronald F. Pollack:

At the very most Your Honor I think in that case it only had incidental effect with relation to that.

Here there’s a very direct relationship with the associational and the privacy right.

Here only if you associate in the confines of your home are you denied food stamps, only for that reason and it’s a very direct intention.

There at most it was indirect.

I think though under any standard whether we use a compelling governmental interest standard or whether we use a traditional standard, you cannot find a legitimate governmental interest that is reasonably related to by this provision.

Now what is the real purpose between — for the unrelated household provision was very clear, is to eliminate hippies, to eliminate hippie communes from the Food Stamp Program.

How do we glean this purpose?

Well we glean this purpose from the congressional history, the legislative history of this provision and although that legislative history is very sparse because it was not the debated it was formulated for the first time by conference community and it was hurriedly passed by the house and the senate thereafter.

There are three different places in the legislative history that refer to this provision and in each of those places you find reference to the anti hippie commune purpose of the provision.

Secondly in post legislative history, you will note that six Republican senators from the Senate Nutrition Committee indicated that this provision purely had an anti hippie purpose to it and in fact they decried the fact that this provision was not going to harm the hippies, but in fact it was going to harm the poorest of the poor.

In the district court, the appellant said that the only intention that we see regard to what was the congressional intention in this provision is to harm hippie communes.

The appellants in fact admitted to this Court in their reply brief and in their jurisdictional statement that the purpose of this provision is to deny food stamps to hippie communes.

Administrators of the program as reflected by the California Welfare Director, they all call it the anti-hippie commune provision.

Ronald F. Pollack:

Well it seems to me that there are two reason under the traditional equal protection test that this provision is — then violates equal protection.

The first is it seems to me that the purpose itself is impermissible, but even more important —

Byron R. White:

How far has that repealed the whole problem for that purpose?

Ronald F. Pollack:

I doubt it very much Your Honor because it did not seem to be a very pressing concern —

Byron R. White:

You might say that I suppose?

Ronald F. Pollack:

Your Honor it seems to me that this was not a very substantial concern.

This was not even passed by the House or the Senate for the first time it was introduced in conference committee.

So this wasn’t really a pressing concern in Congress.

Warren E. Burger:

Now that, unless I misunderstand you that cuts against the argument you have been making for about the last three minutes, that this was the only purpose of the provision?

Ronald F. Pollack:

That is correct that is the only purpose that we can glean from the sparse legislative history.

Now it seems to me when one looks at purpose and you try to find how is this provision rationally relates to that purpose, you will find that there is no rational relationship to that purpose and in order to find that I think it is important to examine Knowles v. Butz, the case that was cited to by the appellants in this case.

Warren E. Burger:

Well before you get on to that, let’s accept your composition that this was aimed at hippie communes, but let’s assume that it had then described in terms that unstable establishments, that is like Waldorf Historia Hotel (ph) in the sense that there are people coming and going everyday are extraordinarily difficult to keep track of and would lend themselves to a great deal of false registration and fraud, would you then be making the same argument?

Ronald F. Pollack:

Your Honor this provision is substantially different and let me explain why and I think in order to understand why it’s important to examine the decision Knowles v. Butz.

The reason is if you look at decision in Knowles v. Butz, for determining what is going to be the group of people, to find out whether they are household three factors must be present.

First factor is that they must live as one economic unit.

Secondly they must purchase food in common and third they must share common cooking facilities.

The appellants argue in essence in this case that this provision does not have harsh effect because all people have to do in order to eliminate themselves from the harshness of this provision is to separate themselves and live as separate economic units.

As an example, if a household was denied at food stamps because there unrelated people in there.

All they have to do is divide themselves or fractionate themselves and therefore they can then be eligible as separate households.

What I would suggest Your Honor is that this provision does more to make it difficult to administrator the program because what it encourages is, is it encourages the voluntary poor people to fractionate their households, ,making it much more difficult to keep track of the money, making it much more difficult to administrator the program.

The people who cannot fractionate their households are the poorest of the poor.

As a California —

Thurgood Marshall:

Once again how is that a hippie, you put at commune can meet those three standard?

Ronald F. Pollack:

Well Your Honor a hippie commune if it wants to — assume you have a commune of 20 —

Thurgood Marshall:

Well my question is can they meet those three standards?

Ronald F. Pollack:

Yes they can.

Thurgood Marshall:

Then what is wrong with them?

You say it all the hippie communes that you are after and now you say the hippie communes can meet the standard?

Ronald F. Pollack:

What I am saying Your Honor is even though the provision was directed at Hippie communes, the provision in fact does not harm them.

What the provision actually does harm are the poorest of the poor.

Ronald F. Pollack:

Those people who cannot fractionate their households, those people who cannot separate themselves as independent economic units.

Take as an example Mrs. Moreno.

Mrs. Moreno is a living in a household with Mrs. Sanchez.

She is living there because she is extremely poor.

She has merely $75 of income and she is diabetic and she needs healthcare.

The reason that she has joined together is out of brutal necessity.

Thurgood Marshall:

How far is she joined together?

Ronald F. Pollack:

She has joined together for all purposes, for economic purposes, for living arrangements.

In other words they treat themselves together as one economic unit.

Byron R. White:

Well, isn’t your argument right now though an argument where no more the factor the regulation or the statute might be unconstitutional as applied in some cases?

Ronald F. Pollack:

No, Your Honor the provision, the provision in it’s —

Byron R. White:

Well as applied to the communes, I thought you suggested to my Brother Marshall that there was nothing unconstitutional about it’s application to them.

Ronald F. Pollack:

If they can fractionate their households that is correct.

Byron R. White:

Well, then if the regulation is not invalid on its face?

Ronald F. Pollack:

Your Honor on its —

Byron R. White:

And might you say it is with respect to the poorest of the poor?

Ronald F. Pollack:

Yes that is correct.

The provision only harms in fact the poorest of the poor.

William H. Rehnquist:

To say something is unconstitutional on it is face, if you are dealing with the rational bases standard of equal protection analysis, does that have any support in our cases?

Ronald F. Pollack:

I am not sure I —

William H. Rehnquist:

Well to say something is unconstitutional as applied versus unconstitutional on its face suggests some notion of over breadth I take it and I would think that would have no application unless you get into the compelling state interest or base it on some sort of the First Amendment principle?

Ronald F. Pollack:

Your Honor what I am saying is the provision can only really operate against poorest of the poor.

The reason it can only operate against the poorest of the poor is that they are the only ones who cannot fractionate their households if you fractionate your household then you will be eligible for food stamp assistance, in other words if you live as a separate economic unit. However, if you cannot do that and almost by definitions of poorest of the poor cannot do it, they need to share living arrangements.

They are the ones who are going to be harmed by this provision.

By it’s very nature this provision harms the poorest of the poor.

It does not harm the voluntary poor because the voluntary poor, voluntarily can separate themselves from those people who live under the roof with them and therefore all of them can become individual separate units.

William H. Rehnquist:

But isn’t one of your arguments that the legislative motive here invalidates the thing because they were out to get the hippies communes?

Ronald F. Pollack:

I have two arguments Mr. Justice Rehnquist.

First argument is at the purpose itself was impermissible, but even more — excuse me.

William H. Rehnquist:

Even though the purpose failed?

Ronald F. Pollack:

That is correct the purpose nonetheless is impermissible, but even if you said the purposes was permissible, the purposes is not reasonably related to by this provision because what occurs in this situation as the California welfare director said and if I might, I would you refer you to page 43 of the appendix.

If you look at the bottom two paragraphs, it says as follows.

“The related household limitations will eliminate many households from eligibility in the Food Stamp Program.

It is my understanding that the congressional intent of the new regulations are specifically aimed at the hippies and the hippie communes.

Most people in this category can and will all through their living arrangements in order to remain eligible for food stamps.

However the AFDC mothers who tried to raise their standard of living by sharing housing will be affected.

They will not be able to utilize the altered living patterns in order to continue to be eligible without giving out their advantage of shared housing costs.

In California it is common practice for the very poor to move in with friends during unemployment or any type of crisis.

Many of the migrant labor camps cannot be eligible on the basis of related household.

This Section will eliminate a segment of migrant workers who by definition are to be eligible for food stamps.

We have found no way to interpret, so these migrants and this type of camp can be eligible.

What I am saying I think is clear Mr. Justice Rehnquist.

Number one, the purpose that Congress intended with this provision was to harm hippies.

I say that that impermissible.

But even if you did not agree with me, I say that that purposes is not reasonably related to by this provision.

This provision in actual affect obviously must harm the poorest to the poor.

They have no option whatsoever.

They must join with other people when they are unemployed when they are evicted from their household, whey they are AFDC recipients or particularly if they are migrants.

William H. Rehnquist:

But is it not the test under the rational basis requirement whether any reasonable person could have enacted the kind of the statute that Congress did, not whether a Congress’ purposes is actually carried by the statute?

Ronald F. Pollack:

Well, Your Honor I cannot find a permissible purpose that is rationally related to by this provision.

There is just no such purpose.

In fact in the district court the appellants were asked several times, what did they consider was rationally related purpose in this provision and they never produced a thing, they never produced a purposes whatsoever.

The best they could offering the district court and you find this on pages 4A to 5A of appendix to our brief, they said it as a rational to the extent that the act so far and no farther.

They said that Congress can get food stamps to whom they want.

Well, I submit that that is not a rational purpose.

Now if we want fictionalize and try to figure out some other purpose that Congress really intended even though we know in fact, Congress only intended to harm the hippies, that was their only purpose with this provision, let’s try to fictionalize such of the purpose.

Thurgood Marshall:

I still am with my Brother Rehnquist, now you are going one step further.

The only purpose was the harm to hippie?

Ronald F. Pollack:

Correct.

Thurgood Marshall:

And they didn’t harm the hippie, where does that leave you?

Ronald F. Pollack:

It leaves you only —

Thurgood Marshall:

On your purpose argument, if there is an argument?

Ronald F. Pollack:

Well Your Honor what I am —

Thurgood Marshall:

Well do you agree that they did not accomplish their purpose?

Ronald F. Pollack:

That is correct.

Thurgood Marshall:

Well now why do you keep the arguing the purpose?

Ronald F. Pollack:

Well Your Honor I am trying to find some purpose to which provision is rationally related to and quite frankly I cannot find one.

I can hypothesize some.

Let us take a look at what —

Thurgood Marshall:

Why not hypothesize without to hippies?

Wouldn’t you be making more progress?

Ronald F. Pollack:

Yes Your Honor it seems to me it is very clear that is persons who are not voluntary poor, it is the persons who are not hippies, they are the ones who are harmed by this provision and they are harmed irrationally, merely because they live with someone else to whom they are unrelated.

Now Your Honor we have been told that there maybe some other purposes involved which can be hypothesized as to why this provision is rational.

Is it the prevention or the detection of fraud, but it seems clear that the denial of assistance solely as a result that people are unrelated to one another is not related at all to the question of preventing fraud.

People who are intent on fraud are likely to alter their living arrangements.

In other words, if you have someone like the voluntary poor, if their intent is to defraud people in the Food Stamp Program, they will alter their living arrangement.

Warren E. Burger:

But now you are suggesting on active Congress falls because all of the evils that Congress wanted to guard against cannot be reached?

Ronald F. Pollack:

They are not reached by this provision in any rational —

Warren E. Burger:

Well, does that make it a fall?

Ronald F. Pollack:

Yes Your Honor because it is not rationally related —

Warren E. Burger:

Then what happens at criminal code, the criminal codes don’t have 100% or anywhere near 100% effectiveness if we can believe the studies and do you mean there is no rational basis for Congress to enact criminal statutes?

Ronald F. Pollack:

No I am not saying that it all, Your Honor.

I see no correlation at all with any other purposes that were hypothesized by the government in this case with this provision.

There is just no correlation at all.

There is no reasonable, no rational relationship, between this provision and any legitimate governmental purpose.

If we could figure out any legitimate governmental purpose to which this is reasonably related to under the traditional Equal Protection test then it would not be a violation of equal protection.

Unfortunately Your Honor there is no such legitimate governmental purpose to which this is rationally related to.

The prevention of fraud —

Warren E. Burger:

Well, you are not arguing a Fourteenth Amendment case, are you?

Ronald F. Pollack:

No I am not.

Ronald F. Pollack:

We are arguing a Fifth Amendment case.

Your Honor it seems clear to me that as you held in Dunn v. Blumstein where you said false swearing with regard to the residence requirement is not at a deterrent to someone who is intending fraud.

Here someone who is intent on defrauding people in the Food Stamp Program will clearly alter their living arrangements.

It’s very simple for them to alter their living arrangements.

All they have to do is live as different economic units.

Take as an example, take as an example of group of 20 people living in a commune.

If those people are intent on defrauding in the Food Stamp Program, all they need to do is fractionate their households, live as 20 separate economic units and they can get food stamps.

The poorest of the poor they cannot do this because out of brutal necessity, they must live together.

Mrs. Moreno as an example because merely $75 of income of which after she pays for her rent, after she pays for all other housing cost, she has merely $10 left.

If she spent all of that money on food, she would merely have $0.33 a day in order to live.

She must live with the Sanchez family because that is the only way she is going to survive.

There is no way that she can fractionate her household.

As a result since she is unrelated to the Sanchez family everyone in that household is denied Food Stamps under this provision.

This same is true with the Hejnys.

The Hejnys have taken in a young girl Sharon Sharpe (ph) who had been unwanted by her parents.

She lived in a children’s home for a substantial period of time.

The Sharpes are very poor.

The Sharpes only have income when Mr. Sharpe who only has occasional employment, when he has an employment which is purely seasonal.

The Sharpe family cannot kick Sharon out of the household with any due conscious and as a result since Sharon Sharpe is unrelated to the Hejnys family no one in that household is going to receive Food Stamps.

They cannot fractionate their household.

It’s them who are going to be denied Food Stamps, not the hippie communes, not the voluntary poor.

Potter Stewart:

What kind of proof does applicant household have to make to show it’s eligibility for a receipt of Food Stamps, just a verified —

Ronald F. Pollack:

There is an application.

Potter Stewart:

With affidavits?

Ronald F. Pollack:

There is an application.

There is affidavits and there is a rigorous verification process.

Potter Stewart:

What is that verification process?

Ronald F. Pollack:

Well, in essence if someone says I have got X income, one has to prove that income.

One has to either bring in income slip or one has to — in some way one has to prove it.

It is not, it is not the word of recipient that is taken.

Ronald F. Pollack:

The recipient has to show documentation.

If he fulfills that documentation then he is eligible for Food Stamps.

Potter Stewart:

How is income defined do you know?

I mean, would it — specifically would it include an allowance from the parents?

Ronald F. Pollack:

Yes it does.

Potter Stewart:

Because that is not income under the Federal income —

Ronald F. Pollack:

Yes, that is included as income or welfare is included as income, social security benefits are income.

For person who has a job, any earnings from that is included as income.

All of that is —

Potter Stewart:

So income for this purpose is a broad area, more broadly defined than income as defined in the Internal Revenue Code?

Ronald F. Pollack:

That is correct.

Potter Stewart:

And there is a – you have to swear to the, in making the application, to the fact —

Ronald F. Pollack:

That’s correct and if you swore falsely then you are certainly can be penal – yes.

Your Honor, I’d suggest you that this program is not going to be easier to administer.

This program is not easier.

It would be easier to detect fraud through this provision.

Quite the contrary, what is going to happen is the voluntary poor who are going to fractionate their households are going to multiply the applications that are necessary to get them into the program.

In other words, take the hypothetical I gave before.

If there is a group of voluntary poor people, 20 people and if they want to stay in the Food Stamp program all they have to do is separate their households into 20 different groups.

Instead of making a program easier to administer, quite the contrary, it will make it harder to administer.

Thurgood Marshall:

Don’t we have to have 20 kitchens?

Ronald F. Pollack:

No.

Thurgood Marshall:

Under the regulations?

Ronald F. Pollack:

No, Your Honor.

In order to, in order to include yourself as a — as a — in order to get yourself excluded from the group that’s considered for a household purposes, all you have to do is show one of three elements are missing.

Element one is that you don’t live as an economic unit or you can show that you purchase food separately or you can show that you have separate cooking facilities.

So if anyone of those different — if anyone of those different factors are not present then you are not considered a grouping for household purposes.

So in other words if you do not live as an —

Thurgood Marshall:

I am talking about — I thought you said that 20 groups want to be considered as 20 separate groups?

Ronald F. Pollack:

Yes.

Thurgood Marshall:

In order to do that meet the regulation, now they have to have 20 separate kitchens?

Ronald F. Pollack:

The answer to that is No, they do not.

Thurgood Marshall:

What they have one kitchen?

Ronald F. Pollack:

They could have one kitchen.

If they all live as a separate economic units then they will be treated as 20 different households.

Thurgood Marshall:

And they wouldn’t have a kitchen?

Ronald F. Pollack:

If they had even one kitchen, as long as they live as 20 separate economic units.

Thurgood Marshall:

What is your separate economic units?

Ronald F. Pollack:

Well, in other words in other words they don’t purchase —

Thurgood Marshall:

Is it only room?

Ronald F. Pollack:

They don’t purchase food in common.

They don’t purchase their — they don’t paid any utilities in common.

Thurgood Marshall:

Well I don’t see why the poor people can’t do that?

Ronald F. Pollack:

Well, it seems to me Your Honor that if someone has no income whatsoever, but one has a meager income that someone like, like Mrs. Moreno has, she is not going to be able to live on her separate income.

Her income alone is 33 cents a day for food, that is if she purchases no clothing, that if she purchases no household supplies, that if she purchases no hygienic items.

She must combine with another household in order to live.

Thurgood Marshall:

It seem to me for local relief to local home relief is not good enough.

Ronald F. Pollack:

Your Honor, the problem is that in many states you cannot get relief.

In order to get relief you must show of four factors.

Thurgood Marshall:

I know enough about that, but I don’t think that the stamp program wasn’t take up the lack of some stupid senator that hasn’t got sense enough to give enough home relief, was it?

Ronald F. Pollack:

The Food Stamp program was intended to provide —

Thurgood Marshall:

Supplementary.

Ronald F. Pollack:

No it was intended to provide people with all the their very nutritional needs.

Thurgood Marshall:

All?

Ronald F. Pollack:

That’s correct.

If you look at Sections 201 —

Thurgood Marshall:

You won’t make them pay 71 bucks if they were to give them all?

Ronald F. Pollack:

Because what you are actually paying, you are paying your normal expenditures for food under the program and your coupon allotment that you receive is supposed to provide you with nutritional adequacy.

You will find that in the declaration of policy, you will find that in Section 203, 2013(a), 2016(a).

All of those provisions say that the coupon allotment in the Food Stamp program is supposed to provide you with nutritional adequacy.

Lewis F. Powell, Jr.:

Mr. Pollack, you described three separate things that should be done to qualify as a separate economic unit.

Do we derive from the decision in Knowles or is there a regulation in the record here that I haven’t seen it?

Ronald F. Pollack:

No Your Honor, it stems first from the statute to itself 2012(e) and Knowles actually interprets that statute.

Lewis F. Powell, Jr.:

You say that it id half-a-dozen of us lived in the same house that all we have to do is buy our food separately?

Ronald F. Pollack:

That’s correct.

Lewis F. Powell, Jr.:

Okay and anybody do that?

Ronald F. Pollack:

Can anyone do that?

Lewis F. Powell, Jr.:

If that’s the only precondition to being a separate economic unit, why wouldn’t each member of the group just go to the supermarket separately and independently?

Ronald F. Pollack:

Well, Your honor — because if you take a look as an example at Mrs. Moreno, she just cannot get nutritional adequacy if she used just her money. She only has, even if she doesn’t spend a single penny on clothing, not a single penny on household supplies, not a single penny on so many different necessaries, even if she doesn’t make expenditures for those purposes she only has 33 cents per day for food.

Now it defies my imagination Your Honor as that how one can get the nutritionally adequate diet with only 33 cents a day.

So what she does is she combines with another household and that household when they combine, it gives them a greater opportunity to obtain an adequate nutritional diet and it’s only through that means will they be able to get some thing like better nutrition.

If she does it alone she is just not going to survive.

As a result out of that necessity, since she did combine, she has denied Food Stamps.

Potter Stewart:

But my brother Powell’s question to you was that if she bought separately, even though she is now living with the other woman, under the Knowles decision she would be eligible for Food Stamps.

So she be no worse off or no better off then if she were a member of the household that was getting Food Stamps, wouldn’t that be true?

Ronald F. Pollack:

Your Honor —

Potter Stewart:

Grant you that the 33 cents a day is a poverty level or below it, but Food Stamps aren’t going to remedy that.

The question is whether she gets or doesn’t get Food Stamps and if she can Food Stamps certainly by the device of going to the market herself then she can get them, can’t she?

Ronald F. Pollack:

If she purchased her food, if she had — if she didn’t pool her resources with the Sanchez family that’s correct, then she could get Food Stamps.

Potter Stewart:

Right.

Ronald F. Pollack:

However, in order to survive she has pooled her resources.

She has lived as one economic unit.

Potter Stewart:

She could still have a single kitchen as you told us?

Ronald F. Pollack:

Yes.

Potter Stewart:

And they could have a one roof over their heads, be in one dwelling place and but she could become eligible for Food Stamps simply by doing her food shopping separately, isn’t that what the Knowles decision says?

Ronald F. Pollack:

The Knowles decision says it is correct.

If you live as separate economic units —

Potter Stewart:

Then you back enough indicia of another separate economic unit, isn’t that correct?

Ronald F. Pollack:

That is one of the indicia, yes.

Potter Stewart:

And that alone is enough is it not under the Knowles case, any one of these three you told us?

Ronald F. Pollack:

That’s correct.

Potter Stewart:

So did she could do that, she can get the Food Stamps, can’t she?

I am just — that’s why I understood Mr. Powell questioned —

Ronald F. Pollack:

Yes, that’s correct.

That’s correct.

If she could do it.

Potter Stewart:

Well now — now of course she can’t do very much with 33 cents a day, pooling or not pooling but if – why is she worse off if she gets Food Stamps by doing her shopping separately and the other member of the household do her shopping separately and together they all have what you claim they should have as a household?

Ronald F. Pollack:

Well Your Honor, there are other needs that people have other than food as well and as a result she has got health needs, she has got —

Potter Stewart:

She will have all the needs with or without Food Stamps, will she not?

Ronald F. Pollack:

Yes she has.

She certainly does have those needs.

However in order to satisfy those other needs it’s important for her to combine her resources with —

Potter Stewart:

I still not understand why if she is eligible for Food Stamps by the simple expedient of going to the market by herself and her fellow member of the household, the other woman can also go to the market by herself and they could aggregate those two Food Stamps?

Ronald F. Pollack:

Well they can’t aggregate those food stamps because —

Potter Stewart:

They can have a common kitchen, you told us that?

Ronald F. Pollack:

Yes they can have a common kitchen, but they can’t purchase food in common.

Thurgood Marshall:

But if they get, if on the oasis and they could pool it all together and get the food stamps how much will she get in Food Stamp?

Ronald F. Pollack:

She would get $36 in Food Stamps per month.

Thurgood Marshall:

Well do you live any better on 33 cents than you do on a $1 a day.

Ronald F. Pollack:

Yes you do Your Honor, clearly you do.

Thurgood Marshall:

You have tried some time —

Ronald F. Pollack:

My time is up.

Warren E. Burger:

Mr. Randolph do you have anything further?

A. Raymond Randolph, Jr.:

I have nothing further.

Warren E. Burger:

Thank you Gentleman.

The case is submitted.