# Shapiro v. Thompson/Dissent Warren

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Mr. Chief Justice WARREN, with whom Mr. Justice BLACK joins, dissenting.
In my opinion the issue before us can be simply stated: May Congress, acting under one of its enumerated powers, impose minimal nationwide residence requirements or authorize the States to do so? Since I believe that Congress does have this power and has constitutionally exercised it in these cases, I must dissent.
The Court insists that § 402(b) of the Social Security Act 'does not approve, much less prescribe, a one-year requirement.' Ante, at 639. From its reading of the legislative history it concludes that Congress did not intend to authorize the States to impose residence requirements. An examination of the relevant legislative materials compels, in my view, the opposite conclusion, i.e., Congress intended to authorize state residence requirements of up to one year.
The Great Depression of the 1930's exposed the inadequacies of state and local welfare programs and dramatized the need for federal participation in welfare assistance. See J. Brown, Public Relief 1929-1939 (1940). Congress determined that the Social Security Act, containing a system of unemployment and old-age insurance as well as the categorical assistance programs now at issue, was to be a major step designed to ameliorate the problems of economic insecurity. The primary purpose of the categorical assistance programs was to encourage the States to provide new and greatly enhanced welfare programs. See, e.g., S.Rep.No.628, 74th Cong., 1st Sess., 5-6, 18-19 (1935); H.R.Rep.No.615, 74th Cong., 1st Sess., 4 (1935). Federal aid would mean an immediate increase in the amount of benefits paid under state programs. But federal aid was to be conditioned upon certain requirements so that the States would remain the basic administrative units of the welfare system and would be unable to shift the welfare burden to local governmental units with inadequate financial resources. See Advisory Commission on Intergovernmental Relations, Statutory and Administr tive Controls Associated with Federal Grants for Public Assistance 9-26 (1964). Significantly, the categories of assistance programs created by the Social Security Act corresponded to those already in existence in a number of States. See J. Brown, Public Relief 1929-1939, at 26-32. Federal entry into the welfare area can therefore be best described as a major experiment in 'cooperative federalism,' King v. Smith, 392 U.S. 309, 317, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968), combining state and federal participation to solve the problems of the depression.
Each of the categorical assistance programs contained in the Social Security Act allowed participating States to impose residence requirements as a condition of eligibility for benefits. Congress also imposed a one-year requirement for the categorical assistance programs operative in the District of Columbia. See H.R.Rep.No.891, 74th Cong., 1st Sess. (1935) (old-age pensions); H.R.Rep.No.201, 74th Cong., 1st Sess. (1935) (aid to the blind). The congressional decision to allow the States to impose residence requirements and to enact such a requirement for the District was the subject of considerable discussion. Both those favoring lengthy residence requirements and those opposing all requirements pleaded their case during the congressional hearings on the Social Security Act. Faced with the competing claims of States which feared that abolition of residence requirements would result in an influx of persons seeking higher welfare payments and of organizations which stressed the unfairness of such requirements to transient workers forced by the economic dislocation of the depression to seek work far from their homes. Congress chose a middle course. It required those States seeking federal grants for categorical assistance to reduce their existing residence requirements to what Congress viewed as an acceptable maximum. However, Congress accommodated state fears by allowing the States to retain minimal residence requirements.
Congress quickly saw evidence that the system of welfare assistance contained in the Social Security Act including residence requirements was operating to encourage States to expand and improve their categorical assistance programs. For example, the Senate was told in 1939:
'The rapid expansion of the program for aid to dependent children in the country as a whole since 1935 stands in marked contrast to the relatively stable picture of mothers' aid in the preceding 4-year period from 1932 through 1935. The extension of the program during the last 3 years is due to Federal contributions which encouraged the matching of State and local funds.' S.Rep.No.734, 76th Cong., 1st Sess., 29 (1939).
The trend observed in 1939 continued as the States responded to the federal stimulus for improvement in the scope and amount of categorical assistance programs. See Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev. 326, 347-356 (1966). Residence requirements have remained a part of this combined state-federal welfare program for 34 years. Congress has adhered to its original decision that residence requirements were necessary in the face of repeated attacks against these requirements. The decision to retain residence requirements, combined with Congress' continuing desire to encourage wider state participation in categorical assistance programs, indicates to me that Congress has authorized the imposition by the States of residence requirements.
Congress has impos d a residence requirement in the District of Columbia and authorized the States to impose similar requirements. The issue before us must therefore be framed in terms of whether Congress may create minimal residence requirements, not whether the States, acting alone, may do so. See Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342 (1946); In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 32 S.Ct. 572 (1891). Appellees insist that a congressionally mandated residence requirement would violate their right to travel. The import of their contention is that Congress, even under its 'plenary' power to control interstate commerce, is constitutionally prohibited from imposing residence requirements. I reach a contrary conclusion for I am convinced that the extent of the burden on interstate travel when compared with the justification for its imposition requires the Court to uphold this exertion of federal power.
Congress, pursuant to its commerce power, has enacted a variety of restrictions upon interstate travel. It has taxed air and rail fares and the gasoline needed to power cars and trucks which move interstate. 26 U.S.C. § 4261 (air fares); 26 U.S.C. § 3469 (1952 ed.), repealed in part by Pub.L. 87-508, § 5(b), 76 Stat. 115 (rail fares); 26 U.S.C. § 4081 (gasoline). Many of the federal safety regulations of common carriers which cross state lines burden the right to travel. 45 U.S.C. §§ 1-43 (railroad safety appliances); 49 U.S.C. § 1421 (air safety regulations). And Congress has prohibited by criminal statute interstate travel for certain purposes. E.g., 18 U.S.C. § 1952. Although these restrictions operate as a limitation upon free interstate movement of persons, their constitutionality appears well settled. See Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 41, 36 S.Ct. 482, 485, 60 L.Ed. 874 (1916); Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911); United States v. Zizzo, 338 F.2d 577 (C.A.7th Cir., 1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1530, 14 L.Ed.2d 435 (1965). As the Court observed in Zemel v. Rusk, 381 U.S. 1, 14, 85 S.Ct. 1271, 1279, 14 L.Ed.2d 179 (1965), 'the fact that a liberty cannot be inhibited without due process of law does not mean that it can under no circumstances be inhibited.'
The Court's right-to-travel cases lend little support to the view that congressional action is invalid merely because it burdens the right to travel. Most of our cases fall into two categories: those in which state-imposed restrictions were involved, see, e.g., Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941); Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868), and those concerning congressional decisions to remove impediments to interstate movement, see, e.g., United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). Since the focus of our inquiry must be whether Congress would exceed permissible bounds by imposing residence requirements, neither group of cases offers controlling principles.
In only three cases have we been confronted with an assertion that Congress has impermissibly burdened the right to travel. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), did invalidate a burden on the right to travel; however, the restriction was voided on the nonconstitutional basis that Congress did not intend to give the Secretary of State power to create the restriction at issue. Zemel v. Rusk, supra, on the other hand, sustained a flat prohibition of travel to certain designated areas and rejected an attack that Congress could not constitutionally impose this restriction. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), is the only case in which this Court invalidated on a constitutional basis a congressionally imposed restriction. Aptheker also involved a flat prohibi ion but in combination with a claim that the congressional restriction compelled a potential traveler to choose between his right to travel and his First Amendment right of freedom of association. It was this Hobson's choice, we later explained, which forms the rationale of Aptheker. See Zemel v. Rusk, supra, at 16, 85 S.Ct. at 1280. Aptherker thus contains two characteristics distinguishing it from the appeals now before the Court: a combined infringement of two constitutionally protected rights and a flat prohibition upon travel. Residence requirements do not create a flat prohibition, for potential welfare recipients may move from State to State and establish residence wherever they please. Nor is any claim made by appellees that residence requirements compel them to choose between the right to travel and another constitutional right.
Zemel v. Rusk, the most recent of the three cases, provides a framework for analysis. The core inquiry is 'the extent of the governmental restriction imposed' and the 'extent of the necessity for the restriction.' Id., at 14, 85 S.Ct. at 1279. As already noted, travel itself is not prohibited. Any burden inheres solely in the fact that a potential welfare recipient might take into consideration the loss of welfare benefits for a limited period of time if he changes his residence. Not only is this burden of uncertain degree, but appellees themselves assert there is evidence that few welfare recipients have in fact been deterred by residence requirements. See Harvith, The Constitutionality of Residence Tests for General and Categorical Assistance Programs, 54 Calif.L.Rev. 567, 615-618 (1966); Note, Residence Requirements in State Public Welfare Statutes, 51 Iowa L.Rev. 1080, 1083-1085 (1966).
The insubstantiality of the restriction imposed by residence requirements must then be evaluated in light of the possible congressional reasons for such requirements. See, e.g., McGowan v. Maryland, 366 U.S. 420, 425-427, 81 S.Ct. 1101, 1104-1105, 6 L.Ed.2d 393 (1961). One fact which does emerge with clarity from the legislative history is Congress' belief that a program of cooperative federalism combining federal aid with 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, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (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 Clasue. 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.
Appelle § 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 inquire.' Arizona v. California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed. 1154 (1931). We do not attribute an impermissible purpose to Congress if the result would be to strike down an otherwise valid statute. United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968); McCray v. United States, 195 U.S. 27, 56, 24 S.Ct. 769, 776, 49 L.Ed. 78 (1904). Since the congressional decision is rational and the restriction on travel insubstantial, I conclude that residence requirements can be imposed by Congress as an exercise of its power to control interstate commerce consistent with the constitutionally guaranteed right to travel.
Without an attempt to determine whether any of Congress' enumerated powers would sustain residence requirements, the Court holds that congressionally imposed requirements violate the Due Process Clause of the Fifth Amendment. It thus suggests that, even if residence requirements would be a permissible exercise of the commerce power, they are 'so injustifiable as to be violative of due process.' Ante, at 642. While the reasons for this conclusion are not fully explained, the Court apparently believes that, in the words of Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954), residence requirements constitute 'an arbitrary deprivation' of liberty.
If this is the import of the Court's opinion, then it seems to have departed from our precedents. We have long held that there is no requirement of uniformity when Congress acts pursuant to its commerce power. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401, 60 S.Ct. 907, 916, 84 L.Ed. 1263 (1940); Currin v. Wallace, 306 U.S. 1, 13-14, 59 S.Ct. 379, 385-386, 83 L.Ed. 441 (1939). I do not suggest that Congress is completely free when legislating under one of its enumerated powers to enact wholly arbitrary classifications, for Bolling v. Sharpe, supra, and Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) counsel otherwise. Neither of these cases, however, is authority for invalidation of congressionally imposed residence requirements. The classification in Bolling required racial segregation in the public schools of the District of Columbia and was thus based upon criteria which we subject to the most rigid scrutiny. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967). Schneider involved an attempt to distinguish between native-born and naturalized citizens solely for administrative convenience. By authorizing residence requirements Congress acted not to facilitate an administrative function but to further its conviction that an impediment to the commercial life of this Nation would be removed by a program of cooperative federalism combining federal contributions with enhanced state benefits. Congress, not the courts, is charged with determining the proper prescription for a national illness. I cannot say that Congress is powerless to decide that residence requirements would promote this permissible goal and therefore must conclude that such requirements cannot be termed arbitrary.
The Court, after interpreting the legislative history in such a manner that the constitutionality of § 402(b) is not at issue, gratuitously adds that § 402(b) is unconstitutional. This method of approaching constitutional questions is sharply in contrast with the Court's approach in Street v. New York, 394 U.S. 576, at 585-590, 89 S.Ct. 1354, at 1362-1365, 22 L.Ed.2d 572. While in Street the Court strains to avoid the crucial constitutional question, here it summarily treats the constitutionality of a major provision of the Social Security Act when, given the Court's interpretation of the legislative materials, that provision is not at issue. Assuming that the constitutionality of § 402(b) is properly treated by the Court, the cryptic footnote in Katzenbach v. Morgan, 384 U.S. 641, 651-652, 86 S.Ct. 1717, 1723-1724, 16 L.Ed.2d 828, n. 10 (1966), does not support its conclusion. Footnote 10 indicates that Congress is without power to undercut the equal-protection guarantee of racial equality in the guise of implementing the Fourteenth Amendment. I do not mean to suggest otherwise. However, I do not understand this footnote to operate as a limitation upon Congress' power to further the flow of interstate commerce by reasonable residence requirements. Although the Court dismisses § 402(b) with the remark that Congress cannot authorize the States to violate equal protection, I believe that the dispositive issue is whether under its commerce power Congress can impose residence requirements.
Nor can I understand the Court's implication, ante, at 638, n. 21, that other state residence requirements such as those employed in determining eligibility to vote do not present constitutional questions. Despite the fact that in Drueding v. Devlin, 380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792 (1965), we affirmed an appeal from a three-judge District Court after the District Court had rejected a constitutional challenge to Maryland's one-year residence requirement for presidential elections, 292 F.Supp. 610, the rationale employed by the Court in these appeals would seem to require the opposite conclusion. If a State would violate equal protection by denying welfare benefits to those who have recently moved interstate, then it would appear to follow that equal protection would also be denied by depriving those who have recently moved interstate of the fundamental right to vote. There is nothing in the opinion of the Court to explain this dichotomy. In any event, since the constitutionality of a state residence requirement as applied to a presidential election is raised in a case now pending, Hall v. Beals, No. 950, 1968 Term, I would await that case for a resolution of the validity of state voting residence requirements.
The era is long past when this Court under the rubric of due process has reviewed the wisdom of a congressional decision that interstate commerce will be fostered by the enactment of certain regulations. Compare Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923), with United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). Speaking for the Court in Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 910, 81 L.Ed. 1307 (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 imp ications cannot be ignored. I dissent.

## Notes

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).
2 See, e.g., Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 522-540, 643, 656 (1935).
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).
4 See e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256-260, 85 S.Ct. 348, 356-359, 13 L.Ed.2d 258 (1964).
5 The burden is uncertain because indigents who are disqualified from categorical assistance by residence requirements are not left wholly without assistance. All the appellees in these cases found alternative sources of assistance after their disqualification.
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, 62 S.Ct. 341, 343, 86 L.Ed. 343 (1941); Steward Machine Co. v. Davis, 301 U.S. 548, 584, 57 S.Ct. 883, 889, 81 L.Ed. 1279 (1937); LaBelle Iron Works v. United States, 256 U.S. 377, 392, 41 S.Ct. 528, 532, 65 L.Ed. 998 (1921).
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