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3 Clearinghouse Rev. 1 (1969-1970)

handle is hein.journals/clear3 and id is 1 raw text is: NATIONAL INSTITUTE for EDUCATION in LAW and POVERTY
May 1969

Vol. 3, No. 1

Supreme Court Holds Residency Test
by Christopher N. May, Director of Research, National
Institute for Education in Law and Poverty
238. Shapiro v. Thompson, CCH Pov. L. Rep., para. 9663
(U.S. Sup. Ct., April 21, 1969). Plaintiffs-appellees repre-
sented by Archibald Cox, Harvard Law School, 1 Langdell
Hall, Cambridge, Mass., Brian L. Hollander, 1 Constitution
Plaza, Hartford, Conn., Peter S. Smith, Neighborhood Legal
Services Proect, 416 Fifth Street, N.W., Washington, D.C.,
Thomas K. Gilhool, Community Legal Services, Inc., 313
South Juniper St., Philadelphia, Pa., Howard Lesnick,
University of Pennsylvania Law School, 3400 Chestnut St.,
Philadelphia, Pa., Norman Dorsen, William D. Graham, R.
Regner Arvidson, Alan R. Spier, Laurens H. Silver, Joel J.
Rabin, Jonathan Weiss, Rhoda Lakritz Berkowitz, Richard
E. Carter, Joseph F. Dugan, Mark K. Joseph, Harvey N.
Schmidt, David H. Wice, Paul Bender. [Here reported:
238H Opinion of the Court (59 pp.). Previously reported:
238A Appellees' Supplemental Brief (59 pp.), 2 Clearing-
house Rev. (No. 8, Oct. 1968 at 22).]
In a 6-to-3 decision, the Supreme Court has affirmed the
residency cases holding the Connecticut, Pennsylvania and
District of Columbia residence requirements in public
assistance programs unconstitutional, as violations of the
Fourteenth and Fifth Amendments. As a direct result of
the decision, probably between 100,000 and 200,000
persons will be immediately eligible fcr welfare, most of
them in the AFDC category. However, under the AFDC-
Freeze provisions of the 1967 Amendments to the Social
Security Act, children now eligible due to the Court's
decision must be added to the rolls immediately if the
States are to benefit from a maximum federal financial
I. The Decision
Justice Brennan, writing for the majority, rested tlr
Court's  decision  upon the Equal Protection Clause,
finding that the classification of needy persons on the basis
of length of residence constituted an invidious discrimi-
nation, and that tle State interests put forward in defense
of the residency tests were either constitutionally imper-
missible, or not compelling. The primary justification
offered by the State was that of inhibiting migration into
the jurisdiction as a means of preserving the fiscal inte-
grity of the State's assistance programs. The Court found
this objective an impermissible interference with the

constitutionally-protected right to travel. In considering the
alternative justifications advanced by the State, the Court
rejected the traditional equal-protection test of rational and
reasonable classification, holding that, Since the classi-
fication here touches on the fundamental right of interstate
movement, its consti~tionality must be judged by the
stricter standard of whether it promotes a compelling State
interest. Under this standard, none of the State's justifi-
cations was sufficient, and the residency requirement was
found unconstitutional. The residency test in the District of
Columbia was found to be unconstitutional under the Fifth
Amendment's Due Process Clause.
The Court was able to avoid ruling on the consti-
tutionality of § 402(b) of the Social Security Act which
bars the States from imposing a residency requirement of
greater than one year. The Court found that neither on its
face, nor from the legislative history, did this section
constitute a Congressional approval of the residency re-
quirement. But, added the Court, even if it were to
constitute such Congressional approval, it is not § 402(b),
but rather the restrictive State legislation which infringes
constitutional rights and raises the constitutional question.
The Court then added that if § 402(b) were somehow to be
found at issue, it would be unconstitutional insofar as it
permitted the one-year residency requirement, on the
ground that Congress may not authorize the States to violate
the Equal Protection Clause.
The Chief Justice, joined by Justice Black, dissented on
the basis that the legislative history of § 402(b) clearly
reveals it to be a Congressional authorization of the State
residency requirement, and that the issue before the Court
was therefre not one of State equal protection, but rather
of whether Congress may, under its commerce power, enact
certain restrictions upon interstate travel. The test, accord-
ing to the Chief Justice, is one of balancing the extent of
the governmental restriction imposed against the extent
of the necessity for the restriction, and where, as here, the
governmental purpose is rational, and the restriction on
travel insubstantial,' the restriction must be upheld. The
Chief Justice was also concerned that the majority opinion
left no room for distinguishing a State residence require-
ment for voting, despite its caveat suggesting that residency
requirements for other purposes may, on the one hand,
promote compelling State interests, or on the other, may
not be penalties upon the exercise of the right of interstate
Justice Harlan dissented in a separate opinion, on the
ground that residency requirements       are valid under a
standard equal protection test, there being no justification
for the compelling interest test used by the majority.

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