U.S. Supreme Court SHAPIRO v. THOMPSON, 394 U.S. 618 (1969) 394 U.S. 618

SHAPIRO, COMMISSIONER OF WELFARE OF CONNECTICUT v. THOMPSON. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT. No. 9. Argued May 1, 1968. Reargued October 23-24, 1968. Decided April 21, 1969.*

[Footnote *] Together with No. 33, Washington et al. v. Legrant et al., on appeal from the United States District Court for the District of Columbia, argued May 1, 1968, and No. 34, Reynolds et al. v. Smith et al., on appeal from the United States District Court for the Eastern District of Pennsylvania, argued May 1-2, 1968, both reargued on October 23-24, 1968.

[Page 394 U.S. 618, 622]

unconstitutional a State or District of Columbia statutory provision which denies welfare assistance to residents of the State or District who have not resided within their jurisdictions for at least one year immediately preceding their applications for such assistance.[Footnote 1] We affirm the judgments of the District Courts in the three cases. I. In No. 9, the Connecticut Welfare Department invoked 17-2d of the Connecticut General Statutes[Footnote 2] to

[Page 394 U.S. 618, 624]

immediately preceding the filing of her application, as required by 3-203 of the District of Columbia Code.[Footnote 3]

[Page 394 U.S. 618, 625]

had lived in the District with her father but was denied to the extent it sought assistance for the two other children.

Appellee Legrant moved with her two children from South Carolina to the District of Columbia in March 1967 after the death of her mother. She planned to live with a sister and brother in Washington. She was pregnant and in ill health when she applied for and was denied AFDC assistance in July 1967.

The several cases were consolidated for trial, and a three-judge District Court was convened.[Footnote 4] The court, one judge dissenting, held 3-203 unconstitutional. 279 F. Supp. 22 (1967). The majority rested its decision on the ground that the one-year requirement was unconstitutional as a denial of the right to equal protection secured by the Due Process Clause of the Fifth Amendment. We noted probable jurisdiction. 390 U.S. 940 (1968).

[Page 394 U.S. 618, 626]

Pennsylvania Welfare Code.[Footnote 5] Appellee Smith and her five minor children moved in December 1966 from Delaware to Philadelphia, Pennsylvania, where her father lived. Her father supported her and her children for several months until he lost his job. Appellee then applied for AFDC assistance and had received two checks when the aid was terminated. Appellee Foster, after living in Pennsylvania from 1953 to 1965, had moved with her four children to South Carolina to care for her grandfather and invalid grandmother and had returned to Pennsylvania in 1967. A three-judge District Court for the Eastern District of Pennsylvania, one judge dissenting, declared 432 (6) unconstitutional. 277 F. Supp. 65 (1967). The majority held that the classification established by the waiting-period requirement is "without rational basis and without legitimate purpose or function" and therefore a violation of the Equal Protection Clause. Id., at 67. The majority noted further that if the purpose of the statute was "to erect a barrier against the movement of indigent persons into the State or to

[Page 394 U.S. 618, 627]

effect their prompt departure after they have gotten there," it would be "patently improper and its implementation plainly impermissible." Id., at 67-68. We noted probable jurisdiction. 390 U.S. 940 (1968). II. There is no dispute that the effect of the waiting-period requirement in each case is to create two classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference the first class is granted and the second class is denied welfare aid upon which may depend the ability of the families to obtain the very means to subsist - food, shelter, and other necessities of life. In each case, the District Court found that appellees met the test for residence in their jurisdictions, as well as all other eligibility requirements except the requirement of residence for a full year prior to their applications. On reargument, appellees' central contention is that the statutory prohibition of benefits to residents of less than a year creates a classification which constitutes an invidious discrimination denying them equal protection of the laws.[Footnote 6] We agree. The interests which appellants assert are promoted by the classification either may not constitutionally be promoted by government or are not compelling governmental interests. III. Primarily, appellants justify the waiting-period requirement as a protective device to preserve the fiscal integrity of state public assistance programs. It is asserted that people who require welfare assistance during their first

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year of residence in a State are likely to become continuing burdens on state welfare programs. Therefore, the argument runs, if such people can be deterred from entering the jurisdiction by denying them welfare benefits during the first year, state programs to assist long-time residents will not be impaired by a substantial influx of indigent newcomers.[Footnote 7]

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2d Sess., 324-327 (1950). The sponsor of the Connecticut requirement said in its support: "I doubt that Connecticut can and should continue to allow unlimited migration into the state on the basis of offering instant money and permanent income to all who can make their way to the state regardless of their ability to contribute to the economy." H. B. 82, Connecticut General Assembly House Proceedings, February Special Session, 1965, Vol. II, pt. 7, p. 3504. In Pennsylvania, shortly after the enactment of the one-year requirement, the Attorney General issued an opinion construing the one-year requirement strictly because "[a]ny other conclusion would tend to attract the dependents of other states to our Commonwealth." 1937-1938 Official Opinions of the Attorney General, No. 240, p. 110. In the District of Columbia case, the constitutionality of 3-203 was frankly defended in the District Court and in this Court on the ground that it is designed to protect the jurisdiction from an influx of persons seeking more generous public assistance than might be available elsewhere.

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proposition was early stated by Chief Justice Taney in the Passenger Cases, 7 How. 283, 492 (1849):

"For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States."

We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision.[Footnote 8] It suffices that, as MR. JUSTICE STEWART said for the Court in United States v. Guest, 383 U.S. 745, 757-758 (1966):

"The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.

". . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is

[Page 394 U.S. 618, 631]

that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution."

Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible. If a law has "no other purpose . . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional." United States v. Jackson, 390 U.S. 570, 581 (1968).

[Page 394 U.S. 618, 632]

take this consideration into account. But we do not perceive why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among others factors, the level of a State's public assistance. Surely such a mother is no less deserving than a mother who moves into a particular State in order to take advantage of its better educational facilities.

Appellants argue further that the challenged classification may be sustained as an attempt to distinguish between new and old residents on the basis of the contribution they have made to the community through the payment of taxes. We have difficulty seeing how longterm residents who qualify for welfare are making a greater present contribution to the State in taxes than indigent residents who have recently arrived. If the argument is based on contributions made in the past by the long-term residents, there is some question, as a factual matter, whether this argument is applicable in Pennsylvania where the record suggests that some 40% of those denied public assistance because of the waiting period had lengthy prior residence in the State.[Footnote 9] But we need not rest on the particular facts of these cases. Appellants' reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its

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citizens. The Equal Protection Clause prohibits such an apportionment of state services.[Footnote 10]

We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification.[Footnote 11]

In sum, neither deterrence of indigents from migrating to the State nor limitation of welfare benefits to those regarded as contributing to the State is a constitutionally permissible state objective. IV. Appellants next advance as justification certain administrative and related governmental objectives allegedly served by the waiting-period requirement.[Footnote 12] They argue

[Page 394 U.S. 618, 635]

Nor are new residents required to give advance notice of their need for welfare assistance.[Footnote 13] Thus, the welfare authorities cannot know how many new residents come into the jurisdiction in any year, much less how many of them will require public assistance. In these circumstances, there is simply no basis for the claim that the one-year waiting requirement serves the purpose of making the welfare budget more predictable. In Connecticut and Pennsylvania the irrelevance of the one-year requirement to budgetary planning is further underscored by the fact that temporary, partial assistance is given to some new residents[Footnote 14] and full assistance is given to other new residents under reciprocal agreements.[Footnote 15] Finally, the claim that a one-year waiting requirement is used for planning purposes is plainly belied by the fact that the requirement is not also imposed on applicants who are long-term residents, the group that receives the bulk of welfare payments. In short, the States rely on methods other than the one-year requirement to make budget estimates. In No. 34, the Director of the Pennsylvania Bureau of Assistance Policies and Standards testified that, based on experience in Pennsylvania and elsewhere, her office had already estimated how much the elimination of the one-year requirement would cost and that the estimates of costs of other changes in regulations "have proven exceptionally accurate."

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The argument that the waiting period serves as an administratively efficient rule of thumb for determining residency similarly will not withstand scrutiny. The residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites for assistance under these three statutes, and the facts relevant to the determination of each are directly examined by the welfare authorities.[Footnote 16] Before granting an application, the welfare authorities investigate the applicant's employment, housing, and family situation and in the course of the inquiry necessarily learn the facts upon which to determine whether the applicant is a resident.[Footnote 17]

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Similarly, there is no need for a State to use the one-year waiting period as a safeguard against fraudulent receipt of benefits;[Footnote 18] for less drastic means are available, and are employed, to minimize that hazard. Of course, a State has a valid interest in preventing fraud by any applicant, whether a newcomer or a long-time resident. It is not denied, however, that the investigations now conducted entail inquiries into facts relevant to that subject. In addition, cooperation among state welfare departments is common. The District of Columbia, for example, provides interim assistance to its former residents who have moved to a State which has a waiting period. As a matter of course, District officials send a letter to the welfare authorities in the recipient's new community "to request the information needed to continue assistance."[Footnote 19] A like procedure would be an effective safeguard against the hazard of double payments. Since double payments can be prevented by a letter or a telephone call, it is unreasonable to accomplish this objective by the blunderbuss method of denying assistance to all indigent newcomers for an entire year.

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provides no rational basis for imposing a one-year waiting-period restriction on new residents only.

We conclude therefore that appellants in these cases do not use and have no need to use the one-year requirement for the governmental purposes suggested. Thus, even under traditional equal protection tests a classification of welfare applicants according to whether they have lived in the State for one year would seem irrational and unconstitutional.[Footnote 20] But, of course, the traditional criteria do not apply in these cases. Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the waiting-period requirement clearly violates the Equal Protection Clause.[Footnote 21] V. Connecticut and Pennsylvania argue, however, that the constitutional challenge to the waiting-period requirements must fail because Congress expressly approved the imposition of the requirement by the States as part of the jointly funded AFDC program.

Section 402 (b) of the Social Security Act of 1935, as amended, 42 U.S.C. 602 (b), provides that:

"The Secretary shall approve any [state assistance] plan which fulfills the conditions specified in subsection

[Page 394 U.S. 618, 639]

(a) of this section, except that he shall not approve any plan which imposes as a condition of eligibility for aid to families with dependent children, a residence requirement which denies aid with respect to any child residing in the State (1) who has resided in the State for one year immediately preceding the application for such aid, or (2) who was born within one year immediately preceding the application, if the parent or other relative with whom the child is living has resided in the State for one year immediately preceding the birth."

On its face, the statute does not approve, much less prescribe, a one-year requirement. It merely directs the Secretary of Health, Education, and Welfare not to disapprove plans submitted by the States because they include such a requirement.[Footnote 22] The suggestion that Congress enacted that directive to encourage state participation in the AFDC program is completely refuted by the legislative history of the section. That history discloses that Congress enacted the directive to curb hardships resulting from lengthy residence requirements. Rather than constituting an approval or a prescription of the requirement in state plans, the directive was the means chosen by Congress to deny federal funding to any State which persisted in stipulating excessive residence requirements as a condition of the payment of benefits.

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residence in a particular town or county. And 33 jurisdictions required at least one year of residence in a particular town or county.[Footnote 23] Congress determined to combat this restrictionist policy. Both the House and Senate Committee Reports expressly stated that the objective of 402 (b) was to compel "[l]iberality of residence requirement."[Footnote 24] Not a single instance can be found in the debates or committee reports supporting the contention that 402 (b) was enacted to encourage participation by the States in the AFDC program. To the contrary, those few who addressed themselves to waiting-period requirements emphasized that participation would depend on a State's repeal or drastic revision of existing requirements. A congressional demand on 41 States to repeal or drastically revise offending statutes is hardly a way to enlist their cooperation.[Footnote 25]

[Page 394 U.S. 618, 642]

Process Clause of the Fifth Amendment. "[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is `so unjustifiable as to be violative of due process.'" Schneider v. Rusk, 377 U.S. 163, 168 (1964); Bolling v. Sharpe, (1954). For the reasons we have stated in invalidating the Pennsylvania and Connecticut provisions, the District of Columbia provision is also invalid - the Due Process Clause of the Fifth Amendment prohibits Congress from denying public assistance to poor persons otherwise eligible solely on the ground that they have not been residents of the District of Columbia for one year at the time their applications are filed.

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Court found as a fact that the Pennsylvania requirement served none of the claimed functions. 277 F. Supp. 65, 68 (1967).

Footnote 13 Of course, such advance notice would inevitably be unreliable since some who registered would not need welfare a year later while others who did not register would need welfare.

Footnote 14 See Conn. Gen. Stat. Rev. 17-2d, now 17-2c, and Pa. Pub. Assistance Manual 3154 (1968).

Footnote 15 Both Connecticut and Pennsylvania have entered into openended interstate compacts in which they have agreed to eliminate the durational requirement for anyone who comes from another State which has also entered into the compact. Conn. Gen. Stat. Rev. 17-21a (1968); Pa. Pub. Assistance Manual 3150, App. I (1966).

Footnote 16 In Pennsylvania, the one-year waiting-period requirement, but not the residency requirement, is waived under reciprocal agreements. Pa. Stat., Tit. 62, 432 (6) (1968); Pa. Pub. Assistance Manual 3151.21 (1962).

1 Conn. Welfare Manual, c. II, 220 (1966), provides that "[r]esidence within the state shall mean that the applicant is living in an established place of abode and the plan is to remain." A person who meets this requirement does not have to wait a year for assistance if he entered the State with a bona fide job offer or with sufficient funds to support himself without welfare for three months. Id., at 219.2.

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due process or equal protection standards.[Footnote 1] "[T]he right to travel freely from State to State finds constitutional protection that is quite independent of the Fourteenth Amendment." United States v. Guest, supra, at 760, n. 17.[Footnote 2] As we made clear in Guest, it is a right broadly assertable against private interference as well as governmental action.[Footnote 3] Like the right of association, NAACP v. Alabama, , it is a virtually unconditional personal right,[Footnote 4] guaranteed by the Constitution to us all.

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law that so clearly impinges upon the constitutional right of interstate travel must be shown to reflect a compelling governmental interest. This is necessarily true whether the impinging law be a classification statute to be tested against the Equal Protection Clause, or a state or federal regulatory law, to be tested against the Due Process Clause of the Fourteenth or Fifth Amendment. As MR. JUSTICE HARLAN wrote for the Court more than a decade ago, "[T]o justify the deterrent effect . . . on the free exercise . . . of their constitutionally protected right . . . a `. . . subordinating interest of the State must be compelling.'" NAACP v. Alabama, supra, at 463.

The Court today, therefore, is not "contriving new constitutional principles." It is deciding these cases under the aegis of established constitutional law.[Footnote 5]

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enhanced state participation would result in an increase in the scope of welfare programs and level of benefits. Given the apprehensions of many States that an increase in benefits without minimal residence requirements would result in an inability to provide an adequate welfare system, Congress deliberately adopted the intermediate course of a cooperative program. Such a program, Congress believed, would encourage the States to assume greater welfare responsibilities and would give the States the necessary financial support for such an undertaking. Our cases require only that Congress have a rational basis for finding that a chosen regulatory scheme is necessary to the furtherance of interstate commerce. See, e. g., Katzenbach v. McClung, (1964); Wickard v. Filburn, 317 U.S. 111 (1942). Certainly, a congressional finding that residence requirements allowed each State to concentrate its resources upon new and increased programs of rehabilitation ultimately resulting in an enhanced flow of commerce as the economic condition of welfare recipients progressively improved is rational and would justify imposition of residence requirements under the Commerce Clause. And Congress could have also determined that residence requirements fostered personal mobility. An individual no longer dependent upon welfare would be presented with an unfettered range of choices so that a decision to migrate could be made without regard to considerations of possible economic dislocation.

Appellees suggest, however, that Congress was not motivated by rational considerations. Residence requirements are imposed, they insist, for the illegitimate purpose of keeping poor people from migrating. Not only does the legislative history point to an opposite conclusion, but it also must be noted that "[i]nto the motives which induced members of Congress to [act] . . . this Court may not enquire." Arizona v. California, 283 U.S. 423 , 455 (1931). We do not attribute

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Adkins v. Children's Hospital, 261 U.S. 525 (1923), with United States v. Darby, 312 U.S. 100 (1941). Speaking for the Court in Helvering v. Davis, 301 U.S. 619, 644 (1937), Mr. Justice Cardozo said of another section of the Social Security Act:

"Whether wisdom or unwisdom resides in the scheme of benefits set forth . . . is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom."

I am convinced that Congress does have power to enact residence requirements of reasonable duration or to authorize the States to do so and that it has exercised this power.

The Court's decision reveals only the top of the iceberg. Lurking beneath are the multitude of situations in which States have imposed residence requirements including eligibility to vote, to engage in certain professions or occupations or to attend a state-supported university. Although the Court takes pains to avoid acknowledging the ramifications of its decision, its implications cannot be ignored. I dissent.

[Footnote 1] See, e. g., Hearings on H. R. 4120 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 831-832, 861-871 (1935).

[Footnote 2] See, e. g., Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 522-540, 643, 656 (1935).

[Footnote 3] See e. g., Hearings on H. R. 10032 before the House Committee on Ways and Means, 87th Cong., 2d Sess., 355, 385-405, 437 (1962); Hearings on H. R. 6000 before the Senate Committee on Finance, 81st Cong., 2d Sess., 142-143 (1950).

[Footnote 4] See e. g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256-260 (1964).

[Footnote 5] The burden is uncertain because indigents who are disqualified from categorical assistance by residence requirements are not left wholly without assistance. All of the appellees in these cases found alternative sources of assistance after their disqualification.

[Footnote 6] Some of the cases go so far as to intimate that at least in the area of taxation Congress is not inhibited by any problems of classification. See Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941); Steward Machine Co. v. Davis, 301 U.S. 548, 584 (1937); LaBelle Iron Works v. United States, 256 U.S. 377, 392 (1921).

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has reappeared today in the Court's cryptic suggestion, ante, at 627, that the "compelling interest" test is applicable merely because the result of the classification may be to deny the appellees "food, shelter, and other necessities of life," as well as in the Court's statement, ante, at 638, that "[s]ince the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest."10

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the Federal Constitution, any infringement can be dealt with under the Due Process Clause. But when a statute affects only matters not mentioned in the Federal Constitution and is not arbitrary or irrational, I must reiterate that I know of nothing which entitles this Court to pick out particular human activities, characterize them as "fundamental," and give them added protection under an unusually stringent equal protection test.

I shall consider in the next section whether welfare residence requirements deny due process by unduly burdening the right of interstate travel. If the issue is regarded purely as one of equal protection, then, for the reasons just set forth, this nonracial classification should be judged by ordinary equal protection standards. The applicable criteria are familiar and well established. A legislative measure will be found to deny equal protection only if "it is without any reasonable basis and therefore is purely arbitrary." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911). It is not enough that the measure results incidentally "in some inequality," or that it is not drawn "with mathematical nicety," ibid.; the statutory classification must instead cause "different treatments . . . so disparate, relative to the difference in classification, as to be wholly arbitrary." Walters v. City of St. Louis, 347 U.S. 231, 237 (1954). Similarly, this Court has stated that where, as here, the issue concerns the authority of Congress to withhold "a noncontractual benefit under a social welfare program . . ., the Due Process Clause [of the Fifth Amendment] can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification." Flemming v. Nestor, 363 U.S. 603, 611 (1960).

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requirements. In 42 U.S.C. 602 (b), quoted more fully, ante, at 638-639, Congress directed that:

"[t]he Secretary shall approve any [state assistance] plan which fulfills the conditions specified in subsection (a) of this section, except that he shall not approve any plan which imposes as a condition of eligibility for [AFDC aid] a residence requirement [equal to or greater than one year]."

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it doubted neither the constitutionality of such a provision nor its consistency with the Act's purposes.19

Opinions of this Court and of individual Justices have suggested four provisions of the Constitution as possible sources of a right to travel enforceable against the federal or state governments: the Commerce Clause;20 the Privileges and Immunities Clause of Art. IV, 2;[Footnote 21] the Privileges and Immunities Clause of the Fourteenth Amendment;[Footnote 22] and the Due Process Clause of the Fifth Amendment.[Footnote 23] The Commerce Clause can be of no assistance to these appellees, since that clause grants plenary power to Congress,[Footnote 24] and Congress either enacted or approved all of the residence requirements here challenged. The Privileges and Immunities Clause of Art. IV, 2,[Footnote 25] is irrelevant, for it appears settled that this clause neither limits federal power nor prevents a State from distinguishing among its own citizens, but simply "prevents a State from discriminating against citizens of other States in favor of its own." Hague v. CIO, 307 U.S. 496, 511 (1939) (opinion of Roberts, J.); see Slaughter-House Cases, 16 Wall. 36, 77 (1873). Since Congress enacted the District of Columbia residence statute, and since the Pennsylvania and Connecticut appellees were residents

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and therefore citizens of those States when they sought welfare, the clause can have no application in any of these cases.

The Privileges and Immunities Clause of the Fourteenth Amendment provides that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It is evident that this clause cannot be applicable in the District of Columbia appeal, since it is limited in terms to instances of state action. In the Pennsylvania and Connecticut cases, the respective States did impose and enforce the residence requirements. However, Congress approved these requirements in 42 U.S.C. 602 (b). The fact of congressional approval, together with this Court's past statements about the nature of the Fourteenth Amendment Privileges and Immunities Clause, leads me to believe that the clause affords no additional help to these appellees, and that the decisive issue is whether Congress itself may impose such requirements. The view of the Privileges and Immunities Clause which has most often been adopted by the Court and by individual Justices is that it extends only to those "privileges and immunities" which "arise or grow out of the relationship of United States citizens to the national government." Hague v. CIO, 307 U.S. 496, 520 (1939) (opinion of Stone, J.).[Footnote 26] On the authority of Crandall v. Nevada, 6 Wall. 35 (1968), those privileges and immunities have repeatedly been said to include the right to travel from State to State,[Footnote 27] presumably for the reason assigned in Crandall: that state restrictions on travel

[Page 394 U.S. 618, 668]

might interfere with intercourse between the Federal Government and its citizens.[Footnote 28] This kind of objection to state welfare residence requirements would seem necessarily to vanish in the face of congressional authorization, for except in those instances when its authority is limited by a constitutional provision binding upon it (as the Fourteenth Amendment is not), Congress has full power to define the relationship between citizens and the Federal Government.

[Page 394 U.S. 618, 669]

allow a State to curtail "the rights of national citizenship would be to contravene every conception of national unity," 314 U.S., at 181 (DOUGLAS, J.), and that "[i]f national citizenship means less than [the right to move interstate] it means nothing." Id., at 183 (Jackson, J.). However, even under this rationale the clause would appear to oppose no obstacle to congressional delineation of the rights of national citizenship, insofar as Congress may do so without infringing other provisions of the Constitution. Mr. Justice Jackson explicitly recognized in Edwards that: "The right of the citizen to migrate from state to state . . . [is] subject to all constitutional limitations imposed by the federal government," id., at 184. And nothing in the nature of federalism would seem to prevent Congress from authorizing the States to do what Congress might validly do itself. Indeed, this Court has held, for example, that Congress may empower the States to undertake regulations of commerce which would otherwise be prohibited by the negative implications of the Commerce Clause. See Prudential Ins. Co. v. Benjamin, (1946). Hence, as has already been suggested, the decisive question is whether Congress may legitimately enact welfare residence requirements, and the Fourteenth Amendment Privileges and Immunities Clause adds no extra force to the appellees' attack on the requirements.

The last possible source of a right to travel is one which does operate against the Federal Government: the Due Process Clause of the Fifth Amendment.[Footnote 29] It is now settled

[Page 394 U.S. 618, 670]

that freedom to travel is an element of the "liberty" secured by that clause. In Kent v. Dulles, 357 U.S. 116, 125-126 (1958), the Court said:

"The right to travel is a part of the `liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers . . ., and inside frontiers as well, was a part of our heritage. . . ."

The Court echoed these remarks in Aptheker v. Secretary of State, 378 U.S. 500, 505-506 (1964), and added:

"Since this case involves a personal liberty protected by the Bill of Rights, we believe that the proper approach to legislation curtailing that liberty must be that adopted by this Court in NAACP v. Button, , and Thornhill v. Alabama, 310 U.S. 88. . . . [S]ince freedom of travel is a constitutional liberty closely related to rights of free speech and association, we believe that appellants . . . should not be required to assume the burden of demonstrating that Congress could not have written a statute constitutionally prohibiting their travel." Id., at 516-517.

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interstate travel. Without specifying the source of that right, the Court said:

"The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. . . . [The] right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution." Id., at 757-758. (Footnotes omitted.)

I therefore conclude that the right to travel interstate is a "fundamental" right which, for present purposes, should be regarded as having its source in the Due Process Clause of the Fifth Amendment.

The next questions are: (1) To what extent does a one-year residence condition upon welfare eligibility interfere with this right to travel?; and (2) What are the governmental interests supporting such a condition? The consequence of the residence requirements is that persons who contemplate interstate changes of residence, and who believe that they otherwise would qualify for welfare payments, must take into account the fact that such assistance will not be available for a year after arrival. The number or proportion of persons who are actually deterred from changing residence by the existence of these provisions is unknown. If one accepts evidence put forward by the appellees,[Footnote 30] to the effect

[Page 394 U.S. 618, 672]

that there would be only a minuscule increase in the number of welfare applicants were existing residence requirements to be done away with, it follows that the requirements do not deter an appreciable number of persons from moving interstate.

Against this indirect impact on the right to travel must be set the interests of the States, and of Congress with respect to the District of Columbia, in imposing residence conditions. There appear to be four such interests. First, it is evident that a primary concern of Congress and the Pennsylvania and Connecticut Legislatures was to deny welfare benefits to persons who moved into the jurisdiction primarily in order to collect those benefits.[Footnote 31] This seems to me an entirely legitimate objective. A legislature is certainly not obliged to furnish welfare assistance to every inhabitant of the jurisdiction, and it is entirely rational to deny benefits to those who enter primarily in order to receive them, since this will make more funds available for those whom the legislature deems more worthy of subsidy.[Footnote 32]

[Page 394 U.S. 618, 673]

A second possible purpose of residence requirements is the prevention of fraud. A residence requirement provides an objective and workable means of determining that an applicant intends to remain indefinitely within the jurisdiction. It therefore may aid in eliminating fraudulent collection of benefits by nonresidents and persons already receiving assistance in other States. There can be no doubt that prevention of fraud is a valid legislative goal. Third, the requirement of a fixed period of residence may help in predicting the budgetary amount which will be needed for public assistance in the future. While none of the appellant jurisdictions appears to keep data sufficient to permit the making of detailed budgetary predictions in consequence of the requirement,[Footnote 33] it is probable that in the event of a very large increase or decrease in the number of indigent newcomers the waiting period would give the legislature time to make needed adjustments in the welfare laws. Obviously, this is a proper objective. Fourth, the residence requirements conceivably may have been predicated upon a legislative desire to restrict welfare payments financed in part by state tax funds to persons who have

[Page 394 U.S. 618, 674]

recently made some contribution to the State's economy, through having been employed, having paid taxes, or having spent money in the State. This too would appear to be a legitimate purpose.[Footnote 34]

[Page 394 U.S. 618, 676]

Welfare Abuses Law;[Footnote 35] that fraud could be prevented by investigation of individual applicants or by a much shorter residence period; that budgetary predictability is a remote and speculative goal; and that assurance of investment in the community could be obtained by a shorter residence period or by taking into account prior intervals of residence in the jurisdiction.

Taking all of these competing considerations into account, I believe that the balance definitely favors constitutionality. In reaching that conclusion, I do not minimize the importance of the right to travel interstate. However, the impact of residence conditions upon that right is indirect and apparently quite insubstantial. On the other hand, the governmental purposes served by the requirements are legitimate and real, and the residence requirements are clearly suited to their accomplishment. To abolish residence requirements might well discourage highly worthwhile experimentation in the welfare field. The statutes come to us clothed with the authority of Congress and attended by a correspondingly heavy presumption of constitutionality. Moreover, although the appellees assert that the same objectives could have been achieved by less restrictive means, this is an area in which the judiciary should be especially slow to fetter the judgment of Congress and of some 46 state legislatures[Footnote 36] in the choice of methods. Residence requirements have

[Page 394 U.S. 618, 677]

advantages, such as administrative simplicity and relative certainty, which are not shared by the alternative solutions proposed by the appellees. In these circumstances, I cannot find that the burden imposed by residence requirements upon ability to travel outweighs the governmental interests in their continued employment. Nor do I believe that the period of residence required in these cases - one year - is so excessively long as to justify a finding of unconstitutionality on that score.

I conclude with the following observations. Today's decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises. For anyone who, like myself, believes that it is an essential function of this Court to maintain the constitutional divisions between state and federal authority and among the three branches of the Federal Government, today's decision is a step in the wrong direction. This resurgence of the expansive view of "equal protection" carries the seeds of more judicial interference with the state and federal legislative process, much more indeed than does the judicial application of "due process" according to traditional concepts (see my dissenting opinion in Duncan v. Louisiana, 391 U.S. 145, 171 (1968)), about which some members of this Court have expressed fears as to its potentialities for setting us judges "at large."[Footnote 37] I consider it particularly unfortunate that this judicial roadblock to the powers of Congress in this field should occur at the very threshold of the current discussions regarding the "federalizing" of these aspects of welfare relief.

[Footnote 1] Of the District of Columbia appellees, all sought AFDC assistance except appellee Barley, who asked for Aid to the Permanently and Totally Disabled. In 42 U.S.C. 602 (b), Congress has authorized "States" (including the District of Columbia, see 42 U.S.C. 1301 (a) (1)) to require up to one year's immediately prior residence as a condition of eligibility for AFDC assistance. See n. 15, infra. In 42 U.S.C. 1352 (b) (1) and 1382 (b) (2), Congress has permitted "States" to condition disability payments upon the applicant's having resided in the State for up to five of the preceding nine years. However, D.C. Code 3-203 prescribes a one-year residence requirement for both types of assistance, so the question of the constitutionality of a longer required residence period is not before us.

Appellee Barley also challenged in the District Court the constitutionality of a District of Columbia regulation which provided that time spent in a District of Columbia institution as a public charge did not count as residence for purposes of welfare eligibility. The District Court held that the regulation must fall for the same reasons as the residence statute itself. Since I believe that the District Court erred in striking down the statute, and since the issue of the regulation's constitutionality has been argued in this Court only in passing, I would remand appellee Barley's cause for further consideration of that question.

[Footnote 2] I do not believe that the Pennsylvania appeal presents the additional question of the validity of a residence condition for a purely state-financed and state-authorized public assistance program. The Pennsylvania welfare eligibility provision, Pa. Stat. Ann., Tit. 62, 432 (1968), states:

"Except as hereinafter otherwise provided . . ., needy persons of the classes defined in clauses (1) and (2) of this section shall be eligible for assistance:

"(1) Persons for whose assistance Federal financial participation is available to the Commonwealth as . . . aid to families with dependent children, . . . and which assistance is not precluded by other provisions of law.

"(2) Other persons who are citizens of the United States . . . .

. . . . .

"(6) Assistance may be granted only to or in behalf of a person residing in Pennsylvania who (i) has resided therein for at least one year immediately preceding the date of application . . . ."

As I understand it, this statute initially divides Pennsylvania welfare applicants into two classes: (1) persons for whom federal financial assistance is available and not precluded by other provisions of federal law (if state law, including the residence requirement, were intended, the "Except as hereinafter otherwise provided" proviso at the beginning of the entire section would be surplusage); (2) other persons who are citizens. The residence requirement applies to both classes. However, since all of the Pennsylvania appellees clearly fall into the first or federally assisted class, there is no need to consider whether residence conditions may constitutionally be imposed with respect to the second or purely state-assisted class.

[Footnote 3] In characterizing this argument as one based on an alleged denial of equal protection of the laws, I do not mean to disregard the fact that this contention is applicable in the District of Columbia only through the terms of the Due Process Clause of the Fifth Amendment. Nor do I mean to suggest that these two constitutional phrases are "always interchangeable," see Bolling v. Sharpe, 347 U.S. 497, 499 (1954). In the circumstances of this case, I do not believe myself obliged to explore whether there may be any differences in the scope of the protection afforded by the two provisions.

[Footnote 4] See, e. g., Rapid Transit Corp. v. City of New York, 303 U.S. 573 , 578 (1938). See also infra, at 662.

[Footnote 5] See Loving v. Virginia, 388 U.S. 1, 11 (1967); cf. Bolling v. Sharpe, 347 U.S. 497, 499 (1954). See also Hirabayashi v. United States, 320 U.S. 81, 100 (1943); Yick Wo v. Hopkins, (1886).

[Footnote 6] See n. 9, infra.

[Footnote 7] See n. 9, infra.

[Footnote 8] I recognize that in my dissenting opinion in Harper v. Virginia Bd. of Elections, supra, at 683, I characterized the test applied in Carrington as "the traditional equal protection standard." I am now satisfied that this was too generous a reading of the Court's opinion.

[Footnote 9] Analysis is complicated when the statutory classification is grounded upon the exercise of a "fundamental" right. For then the statute may come within the first branch of the "compelling interest" doctrine because exercise of the right is deemed a "suspect" criterion and also within the second because the statute is considered to affect the right by deterring its exercise. Williams v. Rhodes, supra, is such a case insofar as the statutes involved both inhibited exercise of the

[Page 394 U.S. 618, 661]

right of political association and drew distinctions based upon the way the right was exercised. The present case is another instance, insofar as welfare residence statutes both deter interstate movement and distinguish among welfare applicants on the basis of such movement. Consequently, I have not attempted to specify the branch of the doctrine upon which these decisions rest.

[Footnote 10] See n. 9, supra.

[Footnote 11] See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955); Kotch v. Board of River Pilot Comm'rs, 330 U.S. 552 (1947).

[Footnote 12] See, e. g., Bunting v. Oregon, 243 U.S. 426 (1917).

[Footnote 13] See, e. g., Miller v. Wilson, 236 U.S. 373 (1915).

[Footnote 14] See, e. g., Ferry v. Spokane, P. & S. R. Co., 258 U.S. 314 (1922).

[Footnote 15] See 44 Stat. 758, 1.

[Footnote 16] The arguments for and against welfare residence requirements, including their impact on indigent migrants, were fully aired in congressional committee hearings. See, e. g., Hearings on H. R. 4120 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 831-832, 861-871 (1935); Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 522-540, 643, 656 (1935).

[Footnote 17] I am not at all persuaded by the Court's argument that Congress' sole purpose was to compel "`[l]iberality of residence requirement.'" See ante, at 640. If that was the only objective, it could have been more effectively accomplished by specifying that to qualify for approval under the Act a state assistance plan must contain no residence requirement.

[Footnote 18] See Act to provide aid to dependent children in the District of Columbia 3, 58 Stat. 277 (1944). In 1962, this Act was repealed

[Page 394 U.S. 618, 666]

and replaced by D.C. Code 3-203, the provision now being challenged. See 76 Stat. 914.

[Footnote 19] Cf. ante, at 639-641 and nn. 24-25.

[Footnote 20] See, e. g., Edwards v. California, 314 U.S. 160 (1941); the Passenger Cases, 7 How. 283 (1849).

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