Warren E. Burger: Number 131, Dandridge against Williams. You may proceed whenever you're ready Mr. Liebmann.
George W. Liebmann: Thank you, Your Honor. The Court please. This case involves the validity of a Maryland regulation. Regulation of the State Board of Social Services which has been in a fact in varying forms since 1947. Which limits the total benefits payable to single family under the program to a families with dependent children $250.00 per month subject to certain exceptions none of which are here pertinent. This regulation has either been in a fact or been under consideration. Since the inception of state wide need standards under the AFDC program in Maryland in 1944. Their appears at page 116 of the record extract, a document generated of the time. It was first considered imposing state wide “need standards” and the last paragraph of that document indicates that the State Board will be considering the question of whether the regulation should permit the setting of a maximum amount above which no grant will go, that appears at page 119 of the record aspect. Subsequently in 1947, the first of this long serious maximum grant regulations was promulgate. There are extensive materials in the record here which relate to the considerations of which entered into the promulgation of this regulation. The materials in question minutes of State Board meetings and such appear at pages 127 through 147 of the record abstract. I will not undertake a detailed summary of these materials here. Their also appears at page 165 of the record abstract. The report of an unofficial committee of the body known as the Maryland Commission on Governmentally Efficiency in Economy in 1948 which shares the good deal of light on the thinking which entered into the promulgation of these maximum grant regulations beginning in 1947. Basically the thought behind the regulation, i think it's summed up in an affidavit of one of the veteran officials of the State Department of Social Services, an affidavit which appears at page 194 of the record abstract. And that affidavit states, it is my recollection that a maximum grant regulation has been in a fact in Maryland since approximately the time of inception of state wide “need standards” in 1944. It is also my recollection that these maximum grant regulations consist simply have received federal approval. I also recall, that one factor giving rise to these regulations was the strong feeling on the part of many county boards. Particularly during the period following adoption of state wide “need standards” in 1944 that public assistants' payment shall not -- should not exceed the earnings of the head of a family when all for assistance and that the income of a public assistant recipient should not exceed that of his employed neighbors. I recall that at various times during the early years following the introduction of the maximum grant regulation. The State Department of Public Welfare secured information as to way two levels from the state employment service that the information now secured with utilized in establishing maximum grant levels. Now, the Maryland regulation is innate, it finds -- there are similar regulations in some 20 out of a States.
Potter Stewart: Through these two access, one on page of 119 and the other on page 194 indicate there are two quite disparate foundations for this maximum. One being the matter of the sufficiency of funds available, that's on 119; And the other quite a different one and that is a matter of policy. So, it's not to have people on welfare have a hiring from the people who were against the employer of work. Is that, do I understand that correctly?
George W. Liebmann: I think Your Honor, that's correct in one sense. I think Your Honor that there was -- there is problem in -- there was a problem of insufficient funds. I'd rather put it this way. There was a problem of insufficient funds and the board was confronted with the problem of making a choice between different means of carrying out of reduction. And for the policy reason that it thought that grant shouldn't exceed the income of employed families. It choose the device of the maximum grant rather than the device of a presented reduction across the board for all AFDC recipients which is a devised, it's been employed in some other states.
Potter Stewart: So, what you are saying is that these are not independent and separate the reasons but rather relative reasons?
George W. Liebmann: I think that's true Your Honor.
Potter Stewart: Given insufficient funds, what shall we do about it?
George W. Liebmann: Yes, they're always insufficient funds in almost any welfare program. The question is where your -- how you're going to design the benefits structure to --
Potter Stewart: How do that suggest aspect to the reason this do fit family where there's no breadwinner?
George W. Liebmann: Your Honor, we discussed this at some length in our brief and we suggest that in addition to the -- we suggest that there are several considerations which can support the regulation. One of them is the element of work incentive. Another, is the undesirability of establishing benefit levels at levels higher than prevailing wage rates in the community because of the effect of this may have on families that are not on welfare. Because of the possible incentive to family breakup which can be created. And that I think is a major consideration behind the present discussion of welfare reform which would provide subventions to employed persons as well as unemployed persons that's concern. Not only with the effect of the regulations on people on welfare but appealing with this can't be divorce with consideration, problem consideration, of the effect of the regulations on people who are not on welfare. There is another answer, I think to your question and that is that in speaking of families that don't have a breadwinner. You are speaking of -- there are some families from which the male head is absent. There are other families which male head is present but a disabled. There're other families and which male head is present but unemployed. With respect to the disable and unemployed categories, I think the Court is aware of the provisions of the state unemployment compensation and workman's compensation laws. Which almost invariantly fixed benefits for the unemployed and for persons on workman's compensation at levels that are fraction of actual earnings. In Maryland, I believe the fraction is too big and this is done even though there are elaborate procedures for insuring that people are not malingering on the workman's compensation rules or malingering on the unemployment roles. And the reason is I think, essentially a concession to administrative imperfection. A feeling that if you don't set the benefit levels at least somewhat below the wage level, there is going to be abuse. And I think that that feeling also enters into the maximum grant regulation even in its application to families which when you look at the main now appear to have a wage enter and that the breadwinner maybe disabled or maybe unemployed. I think if its rational really under the workman's compensation and unemployment insurance rules regulations for that reason it's rational here. I should point out also that the Maryland regulation has two elements which are not present in the welfare regulation or some of the other states. One of them is that it's one of the highest such regulations. You are dealing here with the regulation that really is at least somewhat related to the minimum wage rate or the average wage rate efforts. When the none taxability of the benefits, when the various forms of the aid and kind are available -- that are available are considered. You're talking about the level of income that is in fact considerable higher than your minimum wage or even your average wage in some forms of employment. That the second element and I think its worth expressing is that the Maryland regulation unlike those in some states such as Maine and Arizona is a limitation only on the amount of the grant and not on the amount of a welfare family's budget. That is to say, if a family has state computed needs of $350.00 and the maximum of $250.00 in grant is applied to if the first $100.00 in earnings by a member of that family maybe retained without reducing the welfare grant. For this reason, the Maryland regulation has some other important work incentive the facts which are not present in the regulations of those states such as Maine and Arizona that have a maximum budget limitation. Now, the complaint in this action made three claims. The first was a claim of violation of state law. That claim is contained in paragraph VII-C of the complaint. The second was a claim of violation of the Preamble of the Social Security Act of 1935, which was sent to afford the basis for finding that this regulation was inconsistent with the Social Security Act. There was no mention made in the complaint of any more specific violation of the Social Security Act. The lower court in its initial opinion found a violation of Section 602(a)(9) of the Social Security Act and it conceded on re-argument that and I think I am quoting from a transcripts on re-argument. The statutory argument is the basis of decision that was relatively speaking devised by the Court rather than the one that was impressed on the Court you and your colleagues addressing plaintiffs counsel. That I think is true and on re-argument, the conclusion that the statute violated that provision the Social Security Act was withdrawn.
Hugo L. Black: Which how does one?
George W. Liebmann: Was withdrawn. The third contention was the violation of the Equal Protection Clause. I would like to deal with each of these three claims in turn. With respect to the claim of the violation of state law. The state filed a motion to dismiss on ground of equitable extension. The court below declines to abstain and its oral opinion on this point is found at page 83 of the record abstract. And it cited the case of King versus Smith for the proposition that it was proper for a federal court to go forward with an adjudication on the merits irrespective of whether a state court by state construction of state law at some later date might achieve the same result. That language doesn't appear anywhere in King versus Smith because I think it's clear that King v. Smith was concerned with the fact that there is no federal requirement of exhaustion of state administrative remedies. King versus Smith was concerned with the exhaustion problem. The question of equitable abstention in favor of state judicial remedies was not an issue in King versus Smith. Now, it's the state's position here that the claim, that the regulation was violated of state law should've been regarded as providing a basis for equitable abstention in the favor of a declaratory judgment action in the state courts. And that is I think clear from the cases under the Maryland Declaratory Judgment Act, that where the general validity of state's statute or regulation is a sale as it is here, that an action in a state courts for declaratory judgment would lie. State Courts of course could've determine all three questions raised by the complaint. The federal court was effectively limited to the two federal questions and the reasons that you have this collision between the federal court and the state regulation was the failure to abstain in this case. With respect to the federal statutory claim --
Hugo L. Black: Is that your complete argument or first?
George W. Liebmann: On abstention Your Honor, yes.
Hugo L. Black: Alright, abstention?
George W. Liebmann: Yes, Your Honor. We think that --
Hugo L. Black: It's been decided by question been decided by the Supreme Court of Maryland yet?
George W. Liebmann: Your Honor, I think if not in the welfare context Your Honor, I think if when applies the tests announced by this Court in Harrison v. AACP and Sheckler v. Scooter to the situation in this case, abstention would be appropriate. This is one of those cases where construction by the state courts of a none construed state law would have avoid the necessity of having -- that might have avoid that the necessity of having the federal court reach these questions.
Hugo L. Black: Well, that would divide one lawsuit, wasn't it?
George W. Liebmann: No, Your Honor, because it would be open to them to raise the federal questions from the state court is also, of course.
Hugo L. Black: You have not -- your argument is they should not only abstain reference to the state question when it was asking declaratory judgment there, do you think can decide all the issues and then bring it up to the federal?
George W. Liebmann: I think could Your Honor. Its no reason why they could and I am not suggesting that there's a requirement but they litigate the federal issues in the state Court --
Hugo L. Black: No.
George W. Liebmann: And I am suggesting --
Hugo L. Black: Not the --
George W. Liebmann: The federal court should've abstain. With respect to the federal statutory claim. There are I think three points, three rule of fundamental points which I wish to make. The first point is the obvious one and the one which the lower court took no doubt in its opinion on re-argument. And that is that this statute has on at least -- that the existence of state maximum grant regulations has own at least three occasions been expressly recognized by Congress in legislation. And that more of the Maryland regulation specifically has been on at least 20 occasions accepted for incorporation in the state plan by the Department of Health Education and Welfare. This is unremitting course of construction and I think that when one looks at the fate for example of the regulation, the substitute for the regulations involved in the case of King versus Smith when they were submitted to the Department of Health Education and Welfare. And you had disapproval is not only of the Alabama regulation there at issue, but some of the regulations. Now the states, it's quite clear that contrary to the claim of the appellee is here. The process of approval of state plan amendments by the Department of Health Education and Welfare, it's not a ministerial process. It is a finding and it's required to be a finding that the regulation is in conformity with the federal law.
Hugo L. Black: Could you state at least the -- I didn't understand it, which you understand that you would precisely should legally between you and the other parties, stately of the parties.
George W. Liebmann: I think the issue, the issue Your Honor is -- there are several issues and I think the basic issue is whether the lower court acted properly.
Hugo L. Black: The crucial issue.
George W. Liebmann: The crucial issue is whether the lower court acted properly in validating this state maximum grant regulation on its phase under the Equal Protection Clause. When this regulation was concededly valid as to at least some of the people to whom it would be applied and when it was supported by several rational basics. I think if I had to --
Hugo L. Black: Suppose the Court was wrong on that? What do you say should be done of the case?
George W. Liebmann: I believe Your Honor that reversal -- I believe that the decision of the lower court should be reversed and the injunction dissolves.
Hugo L. Black: If the challenge to the court -- what if the challenge to executive in the state law?
George W. Liebmann: The challenge --
Hugo L. Black: Beside to what's the aim --
George W. Liebmann: What is the --
Hugo L. Black: What's it aimed at? What is that part of statute is aimed at on its application?
George W. Liebmann: The application of the maximum.
Hugo L. Black: Maximum?
George W. Liebmann: Yes.
Hugo L. Black: Does it claim that you cannot have maximum?
George W. Liebmann: Its claim that you cannot have a family maximum. Yes, it's the claim that you --
Hugo L. Black: Cannot have a family maximum?
George W. Liebmann: But you cannot have a family maximum which gives a large family less than what its members is might be entitle to if payments were made to them on what might be describe as a per capita basis.
Hugo L. Black: What is -- how much is the maximum?
George W. Liebmann: It's $250.00 per month of the stage.
Warren E. Burger: Well, that's on a matching basis, isn't it or what might be call as matching basis?
George W. Liebmann: Your Honor, the consequence invalidation of this regulation was that in order to pay the families affected by of their full computed need, the additional money required had to come entirely out of state funds. The Federal Government matches state contributions up to $32.00 per recipient and in Maryland, the per capita expenditure or something like $37.00 per recipient. So that the entire additional cost here had to come out of state funds. I should've there that the federal matching takes place whether or not the state has a maximum preventing the payment of additional benefits as to certain members of the family.
William O. Douglas: I thought there were two questions that the first I thought was whether or not this Maryland regulation conflicts with the Federal Social Security Act?
George W. Liebmann: Well, Your Honor, the --
William O. Douglas: That's a question that we have in another case is already been argued, the Rosado case, is that right?
George W. Liebmann: Yes sir. Your Honor, now that the --
William O. Douglas: And the second question is whether the -- if it doesn't conflict to whether the regulation on its phase contravenes the Equal Protection Clause of the Fourteenth Amendment. Have I miss interrupt the opinion?
George W. Liebmann: No, Your Honor. You have not. But I should observe the State has taken the appeal from a finding that there's been a violation of the Equal Protection Clause.
William O. Douglas: I understand.
Byron R. White: But the lower court abandoned this decision that there was a problem.
George W. Liebmann: That's correct.
Byron R. White: If they do at decision.
George W. Liebmann: Would do its decision, it just --
Byron R. White: To put its decision solely on Equal Protection?
George W. Liebmann: That's correct Your Honor.
Byron R. White: So the issue here is Equal Protection that except for the respondents would supported on the statutory ground also?
George W. Liebmann: That's right Your Honor. That's right.
William J. Brennan, Jr.: On this is following up on rather brother Douglas' question, the reason for the state court's first of all paragraph --sustained contention with the recipients on the statutory language was and I believe the examination you said without a mark him. But has gone to statutory language, is that right? I mean, without more backtrack or expertise with everyone to go?
George W. Liebmann: That is what the lower court --
William J. Brennan, Jr.: That for have reached the conclusion that they have been decide one way or the other on one of the court consideration may -- would state the constitutional question, is that right?
George W. Liebmann: That's correct and I think it's a reversal of what usually happens in these case where there's never --
William J. Brennan, Jr.: That's longer on this case.
George W. Liebmann: And I think that's correct Your Honor and so, --
William O. Douglas: Well, you're looking here for the expertise that -- you didn't find that in below, is that right?
George W. Liebmann: I think that Your Honor is a -- I am not sure that I would put it in that way. I think our position is that courts by their very nature can have the expertise -- can have the expertise to apply the standard of review that the appellees here would have them applied to state Social and Economic regulations as be complicated to effect of this one.
Hugo L. Black: We do not know as I understand any question of the state's contention by the state that it's not able to do this. It cannot pay this magnitude. You only have the statutory construction and of the Constitution from the --
George W. Liebmann: Your Honor, I would not say that for this reason. This --
Hugo L. Black: Well, there's no desire if it no ever get to get us to remand the state to raise the fund to pay the mention --
George W. Liebmann: Well, the lower courts Your Honor declined in terms to commend that state to pay them and issue to negative injunction which presented for the state with a abstinent choice of either finding and additional million dollars to pay --
Hugo L. Black: You mean to make an appropriation?
George W. Liebmann: Yes, to the State either have to find their additional million dollars or would have been confronted with alternative of a 4% slash in all the welfare payments to the aged, the blind, the disabled, and other families under the AFDC program.
William O. Douglas: This because of a forfeiture of the federal contribution?
George W. Liebmann: No, there was no question of forfeiture of the federal contribution here. This was because the Federal Government will match only up to a certain level per recipient and it already matched up to that level. So, any additional money is have to come from state funds and this matter I think that appears quietly like --
Hugo L. Black: Do you think, do we have to pass it on in this case whatever the decision on effort commend the state to make a appropriations to pay make these payments?
George W. Liebmann: Your Honor, my answer to that question would be this. In many of the states would have the regulations, the physical effects of their invalidation are so great that even where the relief granted by the District Court is negative in form even where it takes the form of a negative injunction. In substance, it constitutes affirmative relief against the state Government of the type proscribe the Eleventh Amendment. And I think --
Hugo L. Black: You mean, with reference in making appropriations having an excess for the legislate to make appropriate?
George W. Liebmann: I think Your Honor, the nature of the choice presented the State Governments by these decisions particularly when you look for example the decision in California where physical effects were in the order of $40 or $50 Million. The nature of the choice presented to the state government involves such a fundamental ratio in a state expenditure program that this Court should take the view that the grant of an injunction even in negative in form of all circumstances is in the fact such an interference with the sovereign power of the state as to be proscribe by the Eleventh Amendment.
William O. Douglas: I can see that stand is for was dilute, is it that the invalidation results that in the over all appropriation down there for welfare. You now have to apply that 4% of what would be apply to other program in order to take care of this program, is that it?
George W. Liebmann: Yes Your Honor. The state has presented with the choice either of creating of the programs or making additional appropriation.
William O. Douglas: Your doing appropriately or appropriating -- increasing what's now appropriated for welfare general --
George W. Liebmann: That's right.
William O. Douglas: By sufficient sound to take care --
George W. Liebmann: That's right.
William O. Douglas: Who need requirements, is that it?
George W. Liebmann: Yes, Your Honor and I think that the degree of rating of other programs as to take place is such not too much in Maryland but in some other states.
Byron R. White: This way you say it's a ultimate choice that you can't rate the other programs since you --
George W. Liebmann: I think that's true Your Honor.
Byron R. White: You have to appropriate additional sign to take care of --
George W. Liebmann: And I think that's true. It's less two in Maryland then it would be for example in West Virginia. Where the additional amounts payable and what I understand would be such that the cuts would have to be much deeper in the other programs.
Byron R. White: They have used the million dollar to save the additional amount pay?
George W. Liebmann: It's a million dollars in the Maryland and that's because we have a high maximum when the states their lower maximums and high welfare roles to some perfectly amends.
Byron R. White: But under the court of each state fixes its own need.
George W. Liebmann: That's correct Your Honor.
Warren E. Burger: Mr. Matera, you may proceed.
Joseph A. Matera: Mr. Chief Justice Burger, associate justices of this Court, as I mentioned to the various arguments this morning. I couldn't help but notice how two often labels get put on the things including public of the lawyers. And I think it's important to point out that in this particular case as well, the State so often as we resorted to labels in some how covered over the real issues in this case. I think that it's important to point out from the very beginning. Now, the essential matter we're dealing with here are not such things as less eligibility principles, economic regulations. We are dealing with the program of assistance to needy and dependent children which is very much given its guidelines in fact completely by the Social Security Act as implemented in each state. I think it's important to point out here that this maximum grant regulation in effect creates a class of none person of children who -- if they are unfortunate enough to be born the fourth child, the fifth child and a two parent family with a six child and a one parent are simply ignored by the state and computing their needs. That as a matter of fact the state computes their needs and then simply ignores it. We have here and I think it's important to point this out, two classes of individuals created by this regulation. The one class are a children and families of six individuals or less. The state computes what their minimal subsistence needs are in accordance with their own standards and then pays their full computed subsistence needs.
Potter Stewart: Now, may I ask that computation is rather complicated as it is not depending upon the sex and the age of the child and upon whether or not he is a third or fourth or fifth or sixth child? Am I or is it simpler or it is just that --
Joseph A. Matera: It is simply Your Honor. It said out in the appendix, you will find the State schedules in the appendix.
Byron R. White: And these computations by state law or Social Security Act standard?
Joseph A. Matera: These are computations by the State. The State creates its own --
Byron R. White: By its own standards?
Joseph A. Matera: Its own standards and there is a diminishing rate as the family goes larger that's two.
Potter Stewart: But there is a point in the appendix to where those computations --
Joseph A. Matera: Yes.
Potter Stewart: Published? Because I think in understanding of that may have perhaps no little relevance to the issue here?
Joseph A. Matera: Your Honor, these computations --
Potter Stewart: That's in quite wrong but if we are talking about Equal Protection here, I think it's important to know what the basic computations are up until you reach the maximum. Well, I don't want to undo of the record then your argument if you could --
Joseph A. Matera: I will refer those around, yes. But in effect these computations are do provide for the needs of each child and the family until the child becomes either the fifth child and two parent family or the sixth child in a one parent family. And then the computations is no longer provide for that child. Their needs are computed but the state does not any longer provide for their needs.
Potter Stewart: Can you tell me just so I can call your argument. It is a little bit more complicated than just $28.50 per month per child is something like that, is that correct?
Joseph A. Matera: Not anymore complicated than that Your Honor, that there is a schedule which sets out how much money a family for example of six would get? How a family of seven would get? How much a family of eight? This schedule is contained on page 19 of the appendix and it talks about one person with a another individual or two or three and simply computes the need and then stops at $250.00.
Hugo L. Black: Now, with your equal protection like base on the facts that where is skip up this continuation and go above that amount. Are you giving some children more than others?
Joseph A. Matera: Your Honor, the Equal Protection argument is based on the fact that the Act itself as Social Security Act provides that each individual, each needy individual should be given subsistence needs and that these subsistence needs are provided for needy dependent children and small families. But that once the family gets beyond that, the state completely ignore those needs and that --
Hugo L. Black: And then less. They given the less?
Joseph A. Matera: They are given nothing, Your Honor.
Hugo L. Black: When you have your families or the child?
Joseph A. Matera: They give them -- that's right. They give him nothing.
Hugo L. Black: And that is the Equal Protection argument.
Joseph A. Matera: And that in denying this assistance to families of five or six children or more that in denying assistance of these children, they are simply treating these children as none persons. Which is a concept which this Court denounce then both Levy v. Louisiana and in Shapiro v. Thompson. I think perhaps if I turn first to the statutory argument that the matter will --
Potter Stewart: Would say that the State could give $30.00 per month for the first child that $25.00 in month for the second child?
Joseph A. Matera: That Your Honor is yes and they do that.
Potter Stewart: Why?
Joseph A. Matera: Well, they do because it's clearly seem that for a second, third or fourth child that because they all live in the same family, it requires less to take care of that period of fourth child because that child shares the needs --
Byron R. White: But further, do you think they at least must given something for the seventh child?
Joseph A. Matera: Yes, they can completely ignore his needs as this particular regulation affects.
Byron R. White: This is all in the premise that whether it's $30.00 or $25.00, $15.00 whatever it might be depending the number of children, this is a bare subsistence?
Joseph A. Matera: Yes, that's correct.
Byron R. White: This is what is the minimum that s for the child action to exist at all?
Joseph A. Matera: That's correct. It's minimum subsistence needs --
Byron R. White: Well, kind of $250.00 and you have a --
Joseph A. Matera: No subsistence needs.
Byron R. White: The whole nothing provided than nothing whatever is provided for the essentials of the family?
Joseph A. Matera: That's correct.
Warren E. Burger: But if your argument would preclude any maximum, any limit, would it not?
Joseph A. Matera: Our argument would only state that, you cannot treat a class of children in a large family any different, when you treat a class of children in a small family, Mr. Chief Justice. And --
Warren E. Burger: Well, suppose they fix the limited $400.00 which is just hypothetically?
Joseph A. Matera: Yes.
Warren E. Burger: I don't know just where the arithmetic is but then when you get up beyond the 12 of 15 children in one family, you have the same argument you have here today, wouldn't you?
Joseph A. Matera: If there was a maximum based on family size which neglected the later -- children in the family yes, they are the same argument would prevail. The same argument would be made by us, yes.
Warren E. Burger: Well, in short, the State cannot could say maximum figure?
Joseph A. Matera: The State cannot set a maximum figure which is based simply on arbitrary family size which denies assistance to one classification of needy dependent children or at the same time providing assistance for the second class in this particular case, children of small families. I think, if we look at the Social Security Act itself and Mr. Justice Douglas certainly did I think said out the real issues in this case. We have contended from the beginning and we contend here today that the two basic issues in this case are; one, that the maximum grant regulation does violate the Social Security Act; And number two, that it does violate the Equal Protection Clause of the Fourteenth Amendment. Now, in what way does it violate the Social Security Act? The very underlying purpose of the act itself is to strengthen family life and to keep families together. Congress itself saw the wisdom of same toward that children are allowed to be brought up in their homes. Now, when we turn to the stipulations in this case which are contained on page 71. And I would ask this Court to give special considerations to the stipulations. We find this to be true that the Gary family -- Mr. and Mrs. Gary according to the computations of the welfare department itself would be entitled to $331.00 a month. And the Williams family according to the computations of the Welfare Department would be entitled to $296.00 a month, but because of the maximum grant regulation they are of course restricted to $250.00. However, there is a way that the Gary family and the children of that family who are ignored and treated as non-persons could receive benefits. And there is a way that the children in the Williams family could receive benefits. They could receive benefits simply by leaving the home because the same regulations of this Welfare Department provide that if the Gary family would've place 200 children of 12 years old of between the ages of six and 12 rather the children are younger either with eligible relatives for an institutions. Each one of these children would be entitled to $65.00 a month and at the same time the Gary family would continue to receive the maximum grant of $250.00.
Potter Stewart: Now, that $65 a month come under the same AFDC?
Joseph A. Matera: Yes it would.
Potter Stewart: It would, not a separate program.
Joseph A. Matera: At the same time that the Williams family, Your Honor, should put if Mrs. William should put two of her children and there somewhat older over the age of 12 with eligible relatives or an institutions. They would be entitled to $79.00 a month each. And at the same time, Mrs. Williams would continue to receive her grant of $250.00. This completely undermines the very purpose of the Social Security Act which is to keep families together and to allow children to be brought up in their homes. Now, this was completely a recognized by the court below in their first opinion and they did not withdrawn their findings concerning their appealing of the statutory violations under the second opinion. They felt that there was not enough evidence here to determine whether congress had ever approved or not and I will address myself to that. This --
Speaker: There is no - I like to speak of the United States.
Joseph A. Matera: I'm sorry sir, I didn't hear.
Speaker: I said there is more amicus brief in the United States?
Joseph A. Matera: No sir.
Speaker: Do you ever knew -- do you ever question to found?
Joseph A. Matera: I do not know sir. The second basic fundamental purpose of the Social Security Act that we find violated in this case is requirement that of 602 (a)(10) which says that, all eligible individuals will receive assistance. It does not in any way employer, any new eligibility requirement to that. It says, all eligible individuals and certainly all of the children in those family are eligible individuals and this is a section of the Social Security Act which this Court in Smith v. King did pass on in King v. Smith, I'm sorry. And perhaps Justice Douglas was talking about expertise of this Court and regard to the Social Security Act, I think that opinion could be a points.
William O. Douglas: That's suppose to be a joke.
Joseph A. Matera: I think certainly I would accept that opinion and showing a great deal of expertise, Justice Douglas because that opinion did point to the fact that Congress did intend that all eligible individuals receive assistance. Now obviously, certain eligible children in these families are not receiving assistance and so for those two fundamental reasons, we feel that this act clearly, this regulation does clearly violate the purposes of the Social Security Act. And it also violates the state act which use of the very same language as the Social Security Act. It also violates what HEW itself has said about the purpose of strengthening family life and we refer to that in our brief as well. HEW has a very -- I think detailed definition of what the terms strengthening family life means and we would ask the Court to look to that in our appendix.
Hugo L. Black: May I ask you just one question?
Joseph A. Matera: Yes sir.
Hugo L. Black: On to that. This goes here's a family with one and a family with three and a family with eight, is it your argument that under the law where this family of eight and each child was getting exactly this much as the child would by the family of only one or three?
Joseph A. Matera: No, Your Honor, as a matter of fact as I pointed out earlier. There is a sort of diminishing amount that's computed by the State as family gets larger. So, that it is recognized --
Hugo L. Black: Well, I thought that was your Equal Protection claim?
Joseph A. Matera: Well, the Equal Protection claim is where the state cuts off completely on assistance.
Hugo L. Black: Cuts off completely?
Joseph A. Matera: Yes.
Hugo L. Black: I understood because of the difference pay per child where there's one or three or eight, isn't that right? Is that your claim?
Joseph A. Matera: It isn't the difference paid per child is to complete ignoring of the needs of children once they become --
William J. Brennan, Jr.: I wonder if we --
Joseph A. Matera: Yes sir.
William J. Brennan, Jr.: I though you answer this question of Mr. Justice Black is asking?
Joseph A. Matera: Yes.
William J. Brennan, Jr.: When I asked you before, the idea is that there's only one child the computation of what the bare minimum subsistence requirement for that child is maybe $30.00 let's say.
Joseph A. Matera: Yes.
William J. Brennan, Jr.: Let's say two children that bares subsistence requirement for the first maybe $30.00, but because there are two children but the bare subsistence requirement for the second child maybe only $25.00, is that it?
Joseph A. Matera: That's correct.
William J. Brennan, Jr.: And you go on down $30.00, $25.00, $20.00 for the third child perhaps $15.00 for the fourth child, that's right?
Joseph A. Matera: That's correct.
William J. Brennan, Jr.: But once you get up to the total of $250.00. If there are fifth, sixth, seven children, even though they compute what the bare subsistence requirement for the fifth, sixth and the seventh children maybe. They make no provision for payment to the family for those --, is that it?
Joseph A. Matera: Yes, that's correct.
William J. Brennan, Jr.: And your argument is that in cutting out which is the effect of the $250 maximum, the fifth, sixth and seventh children is the denial of Equal Protection as between them and the first, second and third, fourth children.
Joseph A. Matera: Yes Your Honor. I'd like to get into that Equal Protection argument as well.
Byron R. White: Even if the --
Joseph A. Matera: Yes Justice White.
Byron R. White: If there's a $30.00 given for the first child and $10.00 for the second child. Isn't really the determination that the minimum subsistence is $20.00 for each child?
Joseph A. Matera: No that's not true Justice White.
Byron R. White: So that in there's -- so the second child only needs $10.00?
Joseph A. Matera: That's not true, it's based on a standard of need and which these thing --
Byron R. White: Is it the payment just to the family?
Joseph A. Matera: The payment is to the family but it's based on the needs of the number of individuals in that family.
Byron R. White: The number of individuals?
Joseph A. Matera: Yes.
Byron R. White: But $30.00 is allocated to A and $10.00 to B or anything like that?
Joseph A. Matera: No sir, it depends upon the number of individual --
Byron R. White: So, when the state has a maximum of $250.00 and that money is eligible among all members of the family. It doesn't mean that the state doesn't think that the seventh child is going to not share at all with in $250.00?
Joseph A. Matera: I would disagree in this respect Mr. Justice White because the State does think about it. Because when they look at the Gary family and the number of people in that family, they said, "You need in order to live $331.00 because the number of individuals in your family."
Byron R. White: I understand that but the question I asked?
Joseph A. Matera: Yes, but of course -- yes, of course the Welfare Department, I assume, would believe that the mother would take of those funds which already are minimal and certainly divide in among the children because she would allow certain children to starve merely because their needs are not recognized as you see.
Byron R. White: Which would mean that no one in the family gets what the State has determined to be that basic minimum essential for each person in the family.
Joseph A. Matera: That's correct.
Byron R. White: Is that right? No one gets of that.
Joseph A. Matera: That's correct if the mother certainly had to dilute the entire grant. Every child in the family would suffer.
Warren E. Burger: Suppose hypothetically no if I could ask you this question. That the State of Maryland decided to accommodate you on this mathematics on your Equal Protection argument and taking this case with eight children as --
Joseph A. Matera: We have eight children in each family, yes.
Warren E. Burger: Divided that down so that they reduce the payment to families of two and three and four children. So that $250.00 would not violate any conceivable Equal Protection Claim that you are not making. Does the State of Maryland impend that power as a matter naked power?
Joseph A. Matera: Your Honor, I think certain states have as a matter of fact instituted ratable reductions they call it, percentage reduction programs. I think these programs are now under attack. I think their certain would be a different question as to their constitutionality than we have in this case. In regard to the constitutional question in this case, I think the case -- the State was quite candid when we began this case before the first opinion. They produced one witness in this case who came in and Mr. Smith and again, his testimony is on page 77 of the appendix. But Mr. Smith's testimony was quite candid into the point that the purpose of this maximum ground regulation was to conserve state funds. Now, I think my brother here referred to several other people from the Welfare Department who testify in this regard.
Thurgood Marshall: A moment ago my real problem is, you seems they have the Equal Protection argument is in the guard to the extra children rather than the family?
Joseph A. Matera: That the Equal Protection argument refers Your Honor to the fact that children of large families are not having their needs recognized once they become unfortunately they fail for the sixth child on the family.
Thurgood Marshall: That eight that long to us, they just means everybody who need less.
Joseph A. Matera: That's in a fact what would happen, yes. Because the mother would not sit there and allow other that or she would send the child out as she can do as I pointed out under the Act.
Thurgood Marshall: Well, I have great problem with the Equal Protection argument with out the first talking to with me, you got to get them both. I think you have to establish that this is basic subsistence and nothing unless will do. Otherwise, they have created trouble with the Equal Protection Law.
Joseph A. Matera: Well, Your Honor the needs are basic subsistence needs as established by the State and there are basic subsistence needs where families of each to compute it size. And I think, when the State talks about their rational purposes to say their regulation from falling under the Equal Protection case. I think they used the same approach that the state did used in the Shapiro v. Thompson case. The same blond the bus approached that they talk for example that, the regulations in somehow incurred is employment. But when we look at the facts in those case and we look at the less eligibility principle that was enunciated in England. I think in 1825, we know that we moved along way from then and this Court in Smith v. King -- King v. Smith did recognized that we have a much more sophisticated and in line of Welfare program now which looks toward rehabilitation and reeducation and retraining. And as a matter of fact, this 1967 Amendments to the Social Security Act, clearly provide for this kind of an approach to employment. It sets up a very complicated scheme of a when program that requires welfare recipients to not only seek retaining but to seek employment. And in this particular light, the -- in light of the employment purpose pointed out by the State. The regulation under the traditional test of Equal Protection and we have first argued in our brief in traditional test of Equal Protection. This purpose is closely over inclusive for it would clearly involve people who has out name plaintiffs are not able to work both of our name plaintiffs in this case are disabled. In addition to that, it's applied only against large families as if to assume that the heads of all large families are employable but that small families and the heads of small families somehow do not need this type of encouragement to work. So, it is grossly over inclusive, it is under inclusive in the sense that it does not include this more family. So, it suffers from this uniqueness of being not only over inclusive and but under inclusive. The exhibits of the State and the State has referred to some of their exhibits point out for example that only a 167 -- 166 families on the whole welfare program were assisted with employment. Now, we have at least 2500 families who were affected by the maximum grant regulation. In addition to that, the exhibits that have been put into this appendix by the state also indicate that even if all of the jobs in Maryland were somehow to be employed for welfare recipients still wouldn't be enough jobs. So that this particular purpose really has no viability in light of the amendments to the Social Security Act. In addition to that, the State talks about this regulation somehow acting as a family stabilizer. I think this purpose of ironic in a view of the stipulations which show how a family is encourage to disintegrate and instead of to stay together. Again, it is over inclusive and exhibit which the state itself put into evidence in the court below and this is contained on page 154 of the appendix. Points out that only 15% of families on welfare are on welfare because the head of the family dissert it. For the purpose of encouraging heads of large families only no to dissert, we are going to punish 85% of the welfare case modes. This is grossly over inclusive. In addition, again, it has that uniqueness of being under inclusive for it is only applied against the heads of large families. Firmly, the state would talk about it being deceptive to child bearing. Well, this Court has spoken about the right to appropriation and marital privacy in Skinner and Griswold and Justice Douglas as I know was quite for me would this. And so, they would seek to invade this highly protected right of marital privacy and of right to procreation for the purpose of this particular regulation which again would affect only the heads of large families. So that we are talking about a purpose which would begin to invade a fundamental right, the right of appropriation and the right to marital privacy. And this gets into the ladder part of our Equal -- I'm sorry sir.
Hugo L. Black: How did the question get in this case?
Joseph A. Matera: Which is that sir?
Hugo L. Black: I don't quite understand how that question gets in this issue.
Joseph A. Matera: Well, Your Honor in the case of Mr. and Mrs. Gary for example, all of their children were born prior to the time they were on welfare.
Hugo L. Black: All of what?
Joseph A. Matera: All of them were born prior to the time Mr. and Mrs. Gary were required to seek welfare assistance. The same thing is to with Mrs. Williams. So in effect, they are being punished for exercising a constitutional right.
Warren E. Burger: Or would it make any difference to your argument if these children were born and after they went on relief?
Joseph A. Matera: Your Honor, we would still maintain that it is an evasion here of marital privacy and the right to procreation. We still have to maintain that.
Warren E. Burger: And so the time when they were born and relation for relief has nothing to do with the case?
Joseph A. Matera: It has something to do with the case in this sense that we are punishing the parents of children for an act which they had a perfect legitimate right to exercise even prior to the time that they will require to seek welfare assistance.
Warren E. Burger: Well, do I get out of that suggestion that the right is different after they go on relief?
Joseph A. Matera: The right has no different Your Honor.
Warren E. Burger: Well, then what's --
Joseph A. Matera: It is only relevant in this case to point out how would affects families who perhaps have already had their children prior to the time they go on welfare. They are being punished for exercising that right even before they needed welfare assistance.
Hugo L. Black: How they are being punished and who is punishing them or is it to being punish for what? Under this if have?
Joseph A. Matera: Yes. They're being punished Your Honor because of the fact that because their family have to be of a certain size, certain children in that family are simply considered none persons. They are not given any assistance whatsoever.
Speaker: But though that they came here having reference from assistance.
Joseph A. Matera: Your Honor --
Hugo L. Black: Whether it is your premise that it cause exactly the same to maintain the family of eight is it does the family of one per job?
Joseph A. Matera: No, Your Honor that wouldn't be part of our premise at all.
Hugo L. Black: That's not part of your argument.
Joseph A. Matera: No, it wouldn't be part of our argument at all.
Hugo L. Black: You wouldn't claim the Maryland couldn't make the difference? Would you?
Joseph A. Matera: No, I would not.
Hugo L. Black: Between the amount of charge it would give to the family of eight and family of two?
Joseph A. Matera: Not at all. Your Honor, we have maintained that this regulation is unconstitutional under the traditional test. But we would maintain that this Court should apply the special scrutiny or compelling state interest test because of the fact that there are fundamental rights involved here. Now, I have already talked about the right to narrow privacy and to appropriate. However, the regulation also creates a suspect classification. A classification that was struck down by this Court in Levy v. Louisiana. As soon as a child is unfortunate enough under this regulation to be born to fifth child of a two parent family or the sixth child of a one parent family. He is at that time, put into a suspect classification in that welfare assistance is that that point denied to him. This Court has struck down such classifications in Levy v. Louisiana as well as in Shapiro v. Thompson and we would maintain that because the regulation creates a suspect classification. The traditional test should not be applied here but that the compelling interest or a special scrutiny test should be applied.
Potter Stewart: To whom does the welfare check go?
Joseph A. Matera: The welfare check Your Honor goes to the head of the family.
Potter Stewart: If it's a single woman either because her spouses is about inherit or by there something goes to her, is that right?
Joseph A. Matera: That's right.
Potter Stewart: And if it's a matter of woman and both in capacity, it goes right to the man?
Joseph A. Matera: Yes Your Honor, the head of the family.
Potter Stewart: So that the people and presumably who is not to fifth or sixth or seventh or eighth child and necessarily suffers it's the whole family. Since income is reduced on a per capita basis --
Joseph A. Matera: Practical effect would be that.
Potter Stewart: If that a smaller family at such the net effect, isn't that?
Joseph A. Matera: That would be the practical effect because a parent would simply not let its child starve. Because we feel the compelling interest test is appropriate here. The State must look to less on these alternatives and we are fortunate here and not to have to talk about how these less owners alternatives could be devised because they have already been devised. The 1967 Amendment to the Social Security Act do provide for a win program. They do provide for means to find husbands and fathers who should be supporting children and they provide for a family program of control of family size. So that all of the owners alternative already exist. In closing, I would just say that as this Court found in King v. Smith --
Warren E. Burger: Your time is up counsel.
Joseph A. Matera: Thank you, Your Honor.
Warren E. Burger: Mr. Liebmann, Mr. Matera thank your for your submissions. The case is submitted.