Warren E. Burger: We’ll hear arguments next in Number 609, Graham, Commissioner of Public Welfare against Richardson. Mr. Flam, you may proceed whenever you’re ready.
Michael S. Flam: Mr. Chief Justice, may it please the Court. This case involves the validity of Arizona’s legislative policy which requires a person to be a United States’ citizen or in lieu of United States citizenship, a resident of the United States for 15 years as a condition for obtaining welfare benefits in the State of Arizona. There are seven other states that have similar provisions. Briefly, the facts, the named appellee Carmen Richardson is an alien lawfully admitted to this country under our laws. She has been a continuous resident of the State of Arizona for 13 years. Mrs. Richardson, prior to the filing of the complaint was eligible for assistance under the aid to the Permanently and Totally Disabled Program but for the United States citizenship requirement for in lieu of U.S. citizenship to 15 years to national residency requirement. Appellee filed a class action lawsuit in the United States District Court for the District of Arizona attacking the constitutionality of the citizenship requirements. It claimed in (Inaudible) was that the citizenship requirements violated her right to travel and denied her Equal Protection under the law as guaranteed by the United States Constitution. She also alleged two statutory grounds; one that the statute violated the Social Security Act; and two, that the statute violated 42 United States Code 2000d. The District Court after hearing enjoined the appellant from enforcing that United States citizenship requirement as provided by Arizona Law and there after upon motion of the appellant state judgment pending judicial review by this Court. We would first like to point out that there has been no invidious discrimination in this case as was found in the case of Shapiro v. Thompson. All the state has done in this case is to create two classes for determining who shall be eligible for welfare benefits in the State of Arizona. One class is citizens, the other are aliens. This Court, by prior decisions have allowed states to favor citizens over aliens in their war on poverty. Specifically we direct the Court’s attention to the case of People v. Crane wherein Justice Cardozo stated “To disqualify aliens as discrimination indeed but not arbitrary discrimination.”
Potter Stewart: That wasn’t a decision by this Court?
Michael S. Flam: No it was the decision of the lower court which is affirmed by the United States Court without an opinion. But his opinion in the lower courts is very instructive. To disqualify aliens is discrimination indeed but not arbitrary discrimination. For the principle of exclusion is the restriction of a resources to the state to the advancement and profit of members of the state. Ungenerous and unwise, such a discrimination maybe is not for that reason unlawful. Further, last term this Court decided the case of Dandridge v. Williams, which we feel is very instructive. In that case, this Court stated in the area of economics and social welfare, the state does not violate Equal Protection merely because the classification made by its laws were imperfect. If the classification has some reasonable basis, it does not offend the United States Constitution.
Thurgood Marshall: What is the reasonable basis for this one?
Michael S. Flam: Yes sir, yes Mr. Justice Marshall. We submit the state does have a reasonable basis for favoring U.S. citizens over aliens. Funds available for welfare purposes in the State of Arizona are quite limited. For example, a family of four in the State of Arizona draw an ADC, the maximum payment is a $167.00 a month. For the adult program such as the one the appellee applied for --
Thurgood Marshall: Do you have enough money for your hospitals?
Michael S. Flam: No, we don’t sir.
Thurgood Marshall: Well, can you exclude aliens from hospitals? Could you? Well, let’s put it this way, do you have anything other than like a money?
Michael S. Flam: As a reasonable basis, I think what I like to equate to the Court -- the sums, these sums are barely enough to sustain life for the persons presently participating in the program. Now to further dilute the funds available --
Thurgood Marshall: The only reason is lack of money.
Michael S. Flam: That is correct. That is the primary reason.
Thurgood Marshall: Well, you consider that a reasonable ground.
Michael S. Flam: Yes sir, I would say that’s a reasonable basis in light of the decision of Dandridge v. Williams.
Potter Stewart: Is there anything on -- what’s the history of this legislation in Arizona, do we know?
Michael S. Flam: Yes sir, it was enacted approximately in 1937.
Potter Stewart: 37?
Michael S. Flam: Yes. At the time the states provided for welfare assistance and received funds from the Federal Government. At one time, the residency requirement was 25 years, that I believe in 1956 it was lowered to the present 15 year limitation.
Potter Stewart: You don’t have anything in your state legislature equivalent to the Congressional records so that we could (Voice Overlap) --
Michael S. Flam: No sir, there’s no legislative history or records.
Potter Stewart: As such --
Michael S. Flam: As such, that’s correct.
Potter Stewart: Nothing to show what the state legislature had in mind in enacting this, you’ve told my Brother Marshall that the rationalization or the purpose of the state is to save money.
Michael S. Flam: To conserve funds, right.
Potter Stewart: Conserve the necessarily finite funds. But I was wondering if that was the -- if that’s what the legislative history shows and the answer is very (Voice Overlap) --
Michael S. Flam: It appears that -- you know, from reading the statute, that’s the purpose, in Arizona, funds are appropriate on an annual basis for welfare and they cannot be increased except by an act of the legislature. So, the appellant in administering the welfare programs must divide the funds available amongst the myriad of potential recipients. Now, by adding aliens to the welfare roles would dilute the funds available to the persons presently participating and as pointed out to the court, the sums are quite low and to add two to 3000 aliens who may become eligible for welfare assistance in Arizona would damage their program tremendously.
Potter Stewart: Is there any showing as to how many potential alien recipients there are, you said 2000 or 3000 --
Michael S. Flam: Yes, when the appellant moved for a stay at -- of the judgment in the lower court, the Department of Public Welfare submitted an affidavit by their Director of Assistance Payments and I could refer to court to page 53 of the appendix. In the affidavit, we estimate that there are between 2600 and 3900 resident aliens eligible for welfare assistance in the State of Arizona. I would like to point out -- of course some of those people have met the 15 year residency requirement, so that’s why we have the 2600 figure and the high figure 3900, put out variation.
Potter Stewart: Most of these in Arizona I suppose would be people who came from Mexico, are they?
Michael S. Flam: We concede that most of the resident aliens living in the State of Arizona are from Mexico. However, the statute applies to all aliens equally --
Potter Stewart: I understand, I was just asking as a matter of what the facts are in --
Michael S. Flam: That’s correct.
Potter Stewart: 15 years residence can't be necessarily in Arizona.
Michael S. Flam: That is correct, it’s a national residency requirement and this is distinguishable from the residency requirement that was stricken by this Court in Shapiro v. Thompson. Recent decisions of this Court uphold special state interest doctrine wherein states may favor citizens over aliens, 1948 case of Takahashi v. Fish & Game Commission which is much discussed in the briefs uphold that provision. However, in that case, this Court could not find that the State of California had a special state interest in conserving the fish off its coast. I think one thing that is very important that this Court must take notice of that the states are experiencing difficulty in their welfare programs. Specifically, this Court is directed to the problems the state of New York and California are having. The City of New York went bankrupt several weeks ago because of welfare costs. Surely, the problem is plagued by these states, illustrates --
Thurgood Marshall: Why not cutoff all of the welfare?
Michael S. Flam: Well, that’s prerogative of the state legislature and we do have a problem pertaining to welfare not only in the State of Arizona but in every state or union. I think --
Thurgood Marshall: Do you see more of a problem in cutting off all welfare and cutting off of those 2000? (Voice Overlap) --
Michael S. Flam: But the State of Arizona is not duty bound --
Thurgood Marshall: (Voice Overlap) don’t eat.
Michael S. Flam: Pardon?
Thurgood Marshall: Do you think that 2000 don’t eat it, is that what you think?
Michael S. Flam: They eat sir. But past decisions of this Court have upheld the right of the State of Arizona and other states. I shouldn’t say Arizona but other doctrines to favor citizens over aliens. What we’re trying to do is save a part of the sinking ship. I think everybody is in agreement that the welfare programs in the United States and that every state in the union are in serious trouble and they are not doing their job.
Potter Stewart: In how many states do you have this solution of alien provision either in a pure form in the United States or as in this case as you got it here.
Michael S. Flam: Approximately -- I believe seven or eight states sir.
Potter Stewart: Seven or eight?
Michael S. Flam: Yes.
Thurgood Marshall: Where are they located?
Michael S. Flam: Florida, Texas, Pennsylvania -- they spread it out.
Thurgood Marshall: Yeah.
Michael S. Flam: It’s not specifically the southwest or close states which border Canada.
Byron R. White: Do you tax aliens in Arizona?
Michael S. Flam: Yes we do sir. They pay sales taxes, income taxes, just like citizens.
Byron R. White: And if an alien has lived there for 10 years and has had a job but he has paid taxes and if he loses his job and needs relief, he can’t get it?
Michael S. Flam: That is correct but it's not incumbent upon the State of Arizona, once a person comes from a foreign country to live within the state, to maintain his existence, I don’t think we could find that under the constitution or any statutory scheme of Congress or the State of Arizona.
Byron R. White: We’ll that’s probably -- maybe perhaps that’s true for your citizens too, isn’t it?
Michael S. Flam: That’s true for citizens.
Byron R. White: Well, the question is Equal Protection here isn’t it?
Michael S. Flam: That is correct. We submit based upon the special stay interest doctrine which has been announced by this Court in previous decisions that the State of Arizona has the right to favor citizens over aliens in its welfare programs. I cannot over emphasized the importance we rely upon in the case of Dandridge v. Williams wherein this Court has stated that the constitution does not empower this Court to second guess state officials charged with the difficult responsibility of allocating limited public welfare funds amongst the myriad of potential recipients. Appellees rely heavily upon the right to travel. However, they do not show or demonstrate to this Court that that right extends to aliens. In Shapiro v. Thompson that right was the reason, primary reason why citizens who had to wait one year were deprived of Equal Protection of the law. Assuming arguendo that the right to travel does extend to aliens. The statutes in question we submit, do not have a chilling effect upon the exercise of that right. For one thing, indigency alone severely limits one’s mobility. Another fact not to be overlooked is that we’re dealing with a national residency requirement. We do not require an alien to reside in the State of Arizona. The requirement is that you reside in the United States. Known is our law impede free movement or job opportunities. The flaw of the appellee's position can be shown by a logical extension of their argument. If an alien is residing in one state for example, New Mexico and wishes to move to another state, for example my state, Arizona, where Arizona’s welfare benefits are less than New Mexico’s, can he compel the State of Arizona to raise its benefits?I think not. If the court accepts the appellees’ position as tenable, that all distinctions affecting aliens and citizens would be suspect. Clearly, this has not been the wisdom of the court in the past. Furthermore, Arizona’s citizenship policy is articulated by the Social Security Act which does not forbid states from favoring citizens over aliens in the distribution of welfare benefits. This interpretation is bolstered by committee report of the Congress which states, “A state may if it wishes assist only those who are citizens but must not insist on there haven’t been born citizens or on there having been naturalized citizens for a specified period of time.” Further, this has been the view of the Secretary of Health, Education and Welfare, the person charged with the administration of the Social Security Act. The Arizona citizenship requirements, I should point out to the Court affect three federally matched programs. The Old-Age Assistance Program, the program the appellee applied for, aid to the Permanently and Totally Disabled and the aid to the Blind Program. There is one state program involved in this case and that’s the General Assistance Program which is solely funded by the State of Arizona. One more point, that I would like to discuss is the statutory issue of 42, 2000d. This statute states that no person shall be discriminated because of national origin under a program which is financed by federal funds. Arizona’s citizenship requirements apply to all aliens, regardless of national origin. We do not distinguish between Germans or Englishman or Japanese. And as is pointed out in the case of Lassiter versus North Hampton Board of Elections, a statute does not violate Equal Protection, if it’s applied equally. In that case, North Carolina’s literacy test was upheld for the reason it applied to all races on an equal basis. One other point, if a United States citizen, who has not resided in the United States for 15 years, was expatriated and at a later date was allowed into this country, he too would not be eligible for welfare assistance.
Thurgood Marshall: How many of those do you have in Arizona?[Laughter]
Michael S. Flam: None to my recollection. This is the theory which I desire to point out to the court. I have nothing further.
Warren E. Burger: Thank you Mr. Flam. Mr. Ching?
Anthony B. Ching: Mr. Chief Justice, and may it please the Court. I would like to at this time reply very briefly to the reply brief submitted by the appellant. The appellant apparently found that one of the argument raised in the appellee’s brief, the argument that the state law here conflicts with the treaties made by United States, namely the U.N. Charter and the Charter of the OAS. Since that argument was not raised in the court below, we should not raise it here. In reply to that argument, I would like to point out to this Court that it is a general appellate rule that any decision by a lower court should be affirmed if there’s any basis or ground to affirm that decision even if the affirming of the case would rely on grounds not otherwise raised in a court below. This is different than appellant’s position which is -- you can reverse a case on a basis of a ground which has not been established below. In other words, the lower court had no opportunity to review that claim and somehow the result would have been different. And to support my theory, there are two cases decided by this Court, very squarely in point. These cases are Helvering versus Gowran in 302 U.S. 238 and Securities and Exchange Commission versus Chenery Corporation 318 U.S. 80. The appellees’ brief raised four different grounds for the affirmance of a decision below. I would discuss each of them in this argument. The first basis for affirming the decision is that the United States Government has on several occasions entered into multilateral treaties with other nations and particularly, the United Nations Charter which governs this country, the same as any other treaty. This was the view that was advanced in an earlier case argued before this Court in Rice versus Sioux City, Cemetery case cited in my brief and the court on rehearing has said that that argument was not without merit. We know that the United States is a leader of the free world and that everything that we do reflect very seriously on our posture broad. Specifically, if the states are allowed to discriminate against aliens, nationals of other countries who are invited to come to this country and there are immigration powers, it will weaken our posture before the other nations. And for this reason, the state should not be allowed to conflict with the national interest and the public policy of the United States Government. And more particularly, since it is established that most of the aliens in Arizona are aliens of Mexican origin, we are bound by the treaty called the Charter of the Organization of American States and the OAS charter as cited in my brief, very specifically provided for equal treatment of all persons within the respective jurisdictions.
Thurgood Marshall: Does that mean that the aliens vote in the United States?
Anthony B. Ching: As for the alien's right to vote is concerned, it raises two different issues which is near them are before the court in this case. However, if the court wishes I will very briefly discuss that. First of all, as to --
Thurgood Marshall: My whole point is, I think if you get to cases in this Court at least so far as I’m concerned, it would do much better that you will so far as I’m concerned about the United Nation’s charter which says specifically shall not apply to the Internal Affairs of any other --
Anthony B. Ching: I’m aware of that, however in Oyama v. California again cited before this Court and decided by this Court, four of the justice of this Court felt that the United Nation charter has some relevancy to the disposition of this case.
Byron R. White: I don’t know if the charter or the treaty would prevent the United States from insisting that the alien leave the country.
Anthony B. Ching: Mr. Justice White, I didn't quite follow your question.
Byron R. White: Well, you say this charter requires aliens to be treated like U.S. citizens in all respects, is that your argument?
Anthony B. Ching: If they reside within the jurisdictional boundary --
Byron R. White: Except, in the most important part that they can deport them?
Anthony B. Ching: Yes. For --
Byron R. White: That’s not treating them very equally with the citizens.
Anthony B. Ching: I believe this is an area which is reserved to the countries as stated by Mr. Justice Marshall.
Byron R. White: You mean, so that the charter covers everything and the treaty -- charter covers anything except what is inherent in the status of an alien.
Anthony B. Ching: Exactly, plus a federal deportation is a question of Congressional powers. We’re dealing here with states who attempt to exercise powers that are in conflict with the federal powers and the federal policy as established by treaties by the Federal Government.
Byron R. White: Well, anyway, there are some ways the treaty doesn’t keep the United States from treating aliens differently.
Anthony B. Ching: This raises a host of other problems which I’m not prepared this time to go into it whether or not alien has standing to raise Congressional statutes which maybe unconstitutional. I will now argue the equal protection argument which I believe is our chief argument and which is the argument sustained by the court below in rendering the favorable decision. Although the argument was listed last in my brief. There was no question in my mind that based on previous decisions of this Court that the Equal Protection clause does apply to aliens. The only argument that is raised by Mr. Flam is that for some reason the states can discriminate against aliens, if they have a so-called special public interest. I do not believe that Mr. Flam had re-articulated what that interest is, other than the saving of money. We do have a classification in this case. First of all, there are two classes, A and B; A would be citizens of the United States who are residing in Arizona, and B will be the resident aliens in Arizona. And under B, there are two subclasses. First, those aliens who have lived in Arizona for 15 years or more, who have lived in United States for 15 years or more and, two, those who have not lived in the United States for 15 years.
Potter Stewart: Mr. Ching, if the 15 year requirements were six months, would you still be here?
Anthony B. Ching: Yes, because it still discriminates against the alien residents under the Equal Protection Clause.
Potter Stewart: You would feel necessarily then that the state would not have a proper interest in requiring a six-month residency.
Anthony B. Ching: Unless the state can show that the six-month period is necessary for them to evaluate the eligibility of an alien. In that case, I would say that why is it that it would take less time to evaluate the eligibility of a citizen. As I see it, to determine eligibility is something which you have to do for both alien and citizens alike. And certainly, there’s a period of time for the application to be processed and to conduct proper investigation as to eligibility. But there’s no reason to require a longer period for that purpose for aliens.
Byron R. White: What did the Federal Government say about the statute?
Anthony B. Ching: The Social Security Act as argued by Mr. Flam is not expressly in point. It permits the states under the interpretation placed by HEW in the handbook provision for the states to enact requirements of residency or to --
Byron R. White: That’s residency in the United States?
Anthony B. Ching: Yes, or to deny aliens from any benefits entirely. The statute is not a mandatory one and that the statute merely permits them to so discriminate. I would submit that first of all, the statute is merely permissive and secondly Congress can no more authorize the states to violate Equal Protection, then the states can violate Equal Protection. This is a precise language used by this Court in Shapiro v. Thompson.
Byron R. White: Well then, are you suggesting that what Congress has done is as vulnerable as what the state has done?
Anthony B. Ching: Yes, this issue was before this Court as to durational residency requirement for all persons in Shapiro v. Thompson and the Congressional Act provided the states may enact duration of residency requirement. And this --
Byron R. White: So, if the Social Security Act expressly said that no plan shall -- we shall finance, no plans, that include aliens, you would say it beyond constitutional?
Anthony B. Ching: I would say that would violate the Equal Protection Act. The argument on the other side of course, will be the power of Congress to regulate immigration and if Congress exercised that power and expressly provided that as part of the immigration scheme that aliens should not get welfare and if the Congressional history adequately established that and if it has been through an overall scheme to regulate immigration, then that maybe supportable to the extent of our argument as to the preemption aspect of federal law over state law. However, that is not supportable in our Equal Protection argument. I would go on now to the interest affected. The interest affected by the operation of the Arizona Act, is a very, very serious interest. As Mr. Justice Marshall observed earlier, these people may well starve. These are people who came to this country by permission of the Federal Government or invitation, these people came here and for some reason they became destitute. And the public systems such as Old-Age or the aid to the Disabled as sought by the appellee here is something to barely keep the person going. The interest is vital. As compared to the interest of the state, the interest of the individual must prevail. The argument that the state is trying to save part of a sinking ship is not very convincing to me. We all know that if you’re on a sinking ship and you may have to throw someone overboard, in order to keep the ship afloat. Now, the question is who we should throw overboard? The state’s argument say we can throw the alien overboard because this Court had allowed the states to do so. I don’t think that the privacy of the state of this Court has really authorized the state to do that and I think to throw aliens overboard without more is unconstitutional to say the least, that there is a greater obligation on the part of the State Government or the Federal Government based on humanitarian interest to see if we can save and protect every person. Even though if everybody may get by with little less. To arbitrarily -- to use the phrase, “selfishness to just preserve one’s immediate family and throw other people to the wolves” is not a type of doctrine that will survive today when the existence of mankind depends on the cooperation of everybody and out of self-interest to protect one's immediate surrounding members.
Byron R. White: What was their obligation -- do aliens have in the country than citizens?
Anthony B. Ching: The aliens have just by all the obligations I can think of being an alien myself at one time. I would say that the aliens pay all taxes; property tax, income tax, sales tax. The aliens are subject to the draft, the military service. They are allowed to work and from their work, they pay taxes. I cannot think of any obligation that the aliens are exempted from.
Byron R. White: So, you don’t know of any obligations that the citizen has that an alien doesn’t; a resident alien?
Anthony B. Ching: No, unless you view upon the exercise of the right to vote as an obligation rather than a right and the aliens do not vote.
Byron R. White: How does the state get away with that?
Anthony B. Ching: Well, I believe again this is not before this Court, I believe that as elections are purely local in nature which affects a direct interest of an alien, for example, a bond issue which will affect his property tax and if that alien could not become a U.S. citizen solely because of the language requirement, I will say to deny that that person’s right to vote may well be unconstitutional. As to election for national offices or the national government, where the aliens’ loyalty to another country may color his vote, I would say that can be sustained. Their denial for the right to vote but that is not before this Court today.
Warren E. Burger: Well, are you suggesting that there could be classifications among aliens that some could be permitted -- some would have a right to vote and some would not depending on their place of origin?
Anthony B. Ching: No, I’m not saying that. I’m saying that depending on the interest affected. In other words, if the election is on the question whether or not your taxes on your home will be increased to pay for new schools and an alien owner of a home cannot vote and yet he’s subject to the tax, I would say that denial for the alien to vote in that case, assuming that he had not become a citizen within the requisite time due to other considerations, I would say that denial may well be unconstitutional but this is not before this Court.
Byron R. White: Mr. Ching, how about if -- I can't remember whether Congress has its provision or not but if an alien is admitted, I take it that it’s because one of the reasons is that’s he’s not going to be public charge.
Anthony B. Ching: Yes --
Byron R. White: And what if he’s admitted and later he becomes a public charge, is he then subject to deportation?
Anthony B. Ching: No, the statute as cited in my brief provided for deportation as it causes arising before they come and not as it causes after --
Byron R. White: What if Congress did provide that, that your entrance is conditioned on remaining self-supported?
Anthony B. Ching: I would say that would be a valid exercise of the Congressional power to regulate foreign commerce, nationalization and immigration if that is made part of the scheme to legislate in this area. Whether that type of legislation as to aliens who subsequent to the granting of visa become residents in the United States, whether or not that provision violates Equal Protection. It’s something that I cannot even speculate at this time. This Court will have to take it up on another occasion. That will be the question between one power of Congress versus another power or where this is a same situation whether or not that provision will violate the treaties. Maybe the forum to raise will be something international tribunal, I don’t know but this has been speculated by people who are writing legal treatises but I cannot really give all the answers today.
Thurgood Marshall: Well, if you say that it would have – the alien would have a right possibly to vote for taxation purposes, why wouldn’t you go the next step and say he has the right to vote for national officers who determine what the income taxes, where you are going to stop?
Anthony B. Ching: I think the issue is where you draw the line as to where the direct interest disappears and the interest will be indirect and the decision of this Court has always been trying to draw the line somewhere.
Thurgood Marshall: Why to put too much baggage on this Court, we’re talking about this Arizona Statute, involving welfare right?
Anthony B. Ching: Yes.
Thurgood Marshall: Can we stay on that?
Anthony B. Ching: Well, I’m just responding to questions from the bench and perhaps I am being too loquacious in discussing constitutional law. I would --[laughter]
Byron R. White: You would love to stay right on your topic, wouldn’t you?
Anthony B. Ching: Well, Mr. Justice White, I enjoy -- being from an academic community, I enjoy talking about extract principles. I understand and I must emphasize that my answers to these questions has no bearing to this particular case because we’re dealing with the state statute. We are arguing that a state statute violates the Equal Protection and that prior decision of this Court such as Truax v. Raich, Yick Wo, and the latest case of this Court in Takahashi v. California Fish and Game Commission very clearly show that the states can no longer deny aliens some of the basic necessities of life such as employment, on this case, welfare benefits. The cases cited by Mr. Flam, the case of Heim v. McCall which came out the same year, as Truax v. Raich, and also People versus Crane, these are cases decided in another day and age based on the right of privilege to the economy and I do not believe that these cases should be used as authority for this Court today and that these case should be overruled. Further, we have additional arguments including that of the preemption argument that since the Federal Government had provided for immigration nationalization under the foreign commerce power and under the power to regulate immigration and nationalization. The states can no more enter the area because it conflicts with the national power and the supremacy clause. Here we got several cases by this Court, Fong Yue Ting case and the case of Hines versus Davidowitz are in point. Further, we have congressional statutes in point governing the Equal Protection of laws with the Civil Rights Act of 1870 which is now in 42 U.S.C 1981 and that statute was cited with approval in both Truax v. Raich and the Takahashi case as providing for equal treatment of all persons including aliens. But that statute is very specific and say that, “All persons within jurisdiction of the United States must be subject to the same laws and the full and equal benefits of all laws.” And in addition to that, we have the Civil Rights of 1964 in 42 U.S.C. 2000d. So, it's our position that the decision in the lower court can be sustained on any and all grounds raised by our brief and that there are cases squarely in point -- from precedents decided by this Court and that therefore we urge that this Court affirm the decision rendered by the court below. Are there any more questions? Thank you.
Warren E. Burger: I think we’ll recess for lunch now. And I require you to divide your rebuttal. Mr. Flam, you have about 10 minutes left.
Michael S. Flam: The appellant waives rebuttal unless there’s questions from the court.
Warren E. Burger: There are apparently are none, thank you Mr. Flam. Thank you Mr. Ching. The case is submitted. We will hear arguments next in Number 727, Sailer against Leger and Jervis. Mr. Work.
Joseph P. Work: Mr. Chief Justice and may it please the Court. I moved for a leave to permit Mr. Jonathan M. Stein, a member of the Pennsylvania Bar to argue pro hac vice on behalf of the appellees in this case.
Warren E. Burger: Your motion is granted, we’ll be glad to hear from Mr. Stein.
Joseph P. Work: Thank Your Honor. Your Honors, this case comes before you on direct appeal from a decision of a three-judge statutory court convened in the Eastern District of Pennsylvania. The decision of which court was rendered on July 13, 1970 and which decision held Section 432 (2) of the Pennsylvania Welfare Code unconstitutional. And that in denying general assistance to aliens who are residents of the commonwealth, it violated the precepts of the Equal Protection Clause of the Fourteenth Amendment. The fact to the case Your Honor is relevantly simple. The appellee, Elsie Mary Jane Leger immigrated to this country from Scotland on May 18, 1965, and undertook employment for which she remained a period of four years. She applied for general assistance together with her common-law husband shortly prior to December 9, 1969 and she was denied assistance at that time solely on the ground that she was an alien. She commenced her action in the Federal District Court on December 9, 1969. The court subsequently permitted amendment of the action to add Mrs. Jervis as a party plaintiff and to permit the action to continue as a class action. Mrs. Beryl Jervis who is the other party plaintiff to this action immigrated to United States from Panama on March 1, 1968. And after working for two years, ceased her employment because of illness and applied for assistance. She too was denied assistance solely on the basis of our statute which prohibits the dispensing of assistance to aliens. I perhaps said that wrong, it doesn’t prohibit, it doesn't provide for it. Presently, there are two assistance programs in Pennsylvania. One of course is the categorical assistance which provides aid to the blind, aid to the aged, aid to the totally and permanently disabled, and aid to families with dependent children. These are all federally supported categories of assistance from which receive slightly over one half of the funds from the Federal Government. Neither of the named parties here would have qualified for any of the federal assistance categories. The other assistance program which we have in Pennsylvania is our so-called General Assistance Program which is wholly state financed and which provides aid for all other persons who are citizens of the United States for whom no aid is provided under the categorical assistance programs. I’m going to be completely frank with this Court as I was with the lower court and state that there is no question for what the statute draws the distinction between citizens and aliens, and if, the special public interest doctrine has been overruled, sub silentio as the lower court found that it was, then I am going to have a very difficult task indeed in justifying the distinction. However, if the court will bear with me for a few short moments, I should like to discuss just briefly the two cases by which the lower court found that this Court had overruled the special public interest doctrine. The first of these of course is a Truax case which involved the employment or the failure to employ a person as a cook in the State of Arizona because of the fact that the Arizona Statute provided that employment had to be 80% citizen, just as used in that case however specifically noted that the special public interest doctrine was an exception to the ordinary test of discrimination. He stated, “This discrimination defined by the Act does not pertain to the regulation or distribution of the public domain or of common property resources or the people of the state. The enjoinment of which may be limited to citizens as it begins to both, as against both aliens and citizens of other states.” We of course admit immediately Your Honors that we realize that this doctrine has been somewhat changed by your decision in the Shapiro case, with respect at least to citizens of other states. We do submit however that it retains full vitality insofar as its application to aliens is concerned. 32 years later, in the Takahashi case, this Court also said speaking through Mr. Justice Black that the special public interest doctrine was still in existence. Although this Court specifically denied the claim that the preservation of fish within its three-mile border was a special public interest to the State of California. One thing, I think however Your Honors is very imported to note in the Takahashi case and that is if I understand the case correctly, the statute there also discriminated among aliens and that those who would have been denied the right to apply for the fishing permit would have been those who weren’t ineligible for citizenship in the United States and therefore, it would have applied only to Orientals. While the court did not make a great deal of this fact, I do think it is a very important distinction between that case and the case that we are talking about here. Finally --
Byron R. White: Well, in what respect, would you think make a difference?
Joseph P. Work: I think Your Honor that we have agreed that there is no doubt that the Fourteenth Amendment applies to aliens with of course the so-called judicially created exceptions. But if it does apply in Equal Protection, it would therefore follow that you cannot discriminate among aliens because its so-called judicially created exceptions are between aliens and citizens.
Byron R. White: So you say that the discrimination isn’t on race or national origin but on citizenship?
Joseph P. Work: Correct Your Honor. In our particular case here, it applies regardless of origin.
Byron R. White: So you think it might make a difference in the test that would reapply it to a discrimination?
Joseph P. Work: I think it certainly should Your Honor because if the Fourteenth Amendment applies at all, it would certainly apply to say that you cannot discriminate among aliens.
Byron R. White: You mean that you would have to had some compelling state interest to that?
Joseph P. Work: I really think that it would go beyond that Your Honor. I don’t think a compelling state would justify particular -- I mean under the language of this Court Dandridge versus Williams, I rather doubt that there could be a compelling state interest which would justify discrimination among aliens, between one class of aliens and another class.
Byron R. White: In other words Pennsylvania could give welfare to everybody except Mexicans.
Joseph P. Work: Correct Your Honor. Finally, this Court has intimated, I submit in those cases such as Takahashi and Truax that the cases involved the right to earn a livelihood and courts have gone one step further and said that this -- the right to enter and abide as granted to aliens under the Immigration and Naturalization Act would meaningless if they didn’t have the right to employment. And I for one Your Honors I’m just old fashioned enough to believe that there is still a distinction in our law between the right to earn a livelihood and the right to receive a public largess.
Thurgood Marshall: Could I be old fashioned enough to suggest the both of them involved the right to eat?
Joseph P. Work: I would accept Your Honor’s statement completely and I think if I may at this time just by departing a little bit refer to a question which this Honor asked in the previous case, I think in that respect Your Honor we get to a question of responsibility. And whose responsibility it is. And of course, I’m getting a little ahead in my argument, but if the Federal Government has the complete right to regulate aliens then of course, I must answer Your Honor that the responsibility for these persons, if it lies anywhere, lies with the Federal Government and not with the states.
Thurgood Marshall: Well, here’s somebody who has been living in United States for 14 years paying taxes? They contributed just as much to the state as you did, but he can't make it.
Warren E. Burger: Does this record show whether these parties or either of them ever paid any taxes?
Joseph P. Work: Yes Your Honor. I think that the record does disclose that both of them paid at least sales taxes and income taxes within the Commonwealth of Pennsylvania.
Thurgood Marshall: Hence this person was employed for four years, wasn’t it (Voice Overlap) --
Joseph P. Work: Four years, yes Your Honor, the second one for two.
Thurgood Marshall: Four years, so she paid all the taxes.
Joseph P. Work: Correct Your Honor.
Thurgood Marshall: Well, since you remind me that other question I asked, what's the interest of the State of Pennsylvania other than money?
Joseph P. Work: The interest of the State of Pennsylvania in complete frank answer is the conversation of assets for its citizen.
Thurgood Marshall: It's money.
Joseph P. Work: It is money, Yes Your Honor. But it's not necessarily a saving may I say, due the fact perhaps that we can serve assets for our citizens, we were recently able to go to a 100% of the federal level. Had we granted to aliens, I’m not saying we couldn’t have, there’s a possibility perhaps we couldn’t have gone to that 100%.
Thurgood Marshall: But anyhow, it’s money.
Joseph P. Work: It is money, yes Your Honor.
Thurgood Marshall: And that’s all.
Joseph P. Work: That is correct.
Potter Stewart: Well, are we dealing ever just general assistance?
Joseph P. Work: Yes Your Honor. Just to the -- completely state financed general assistance program.
Byron R. White: So, it's not that the Federal Government contributes nothing to this program?
Joseph P. Work: Absolutely nothing Your Honor. We do by the way for the court’s information, we do in our federal category, we do grant assistance to aliens under all the federal categories.
Byron R. White: Why do you do that?
Joseph P. Work: Quite honestly Your Honor, it was a mistake. The Department of Welfare felt (Voice Overlap) --
Byron R. White: What was the mistake? To put them out or put them in --
Joseph P. Work: No, the mistake was occasioned by the fact that when the federal statute first come out, our department felt that they were required by that statute to grant assist under the federal categories. That appears in the transcript to the hearing in the lower courts Your Honor. Preview the second phase of the appellee’s argument which of course was a contention which was not important in the lower court’s decision but it was alluded to there and of course is raised again before this Court on appeal and that is the alien’s right to travel for which position the appellees placed great reliance on this Court’s decision in Shapiro versus Thompson. My understanding of that decision Your Honors is the fact that this Court found that the right of citizens to travel derives from several provisions of the constitution and from the very nature of the union itself. The court did not, however, according to my understanding of that case, say that the right was derived solely from the Fourteenth Amendment which of course has been conceded applies equally to aliens except for the judicially created exception which we are advancing to this Court at this time which is a special public interest doctrine. We would further point out Your Honors that the right to enter and abide, we feel by virtue of decisions of this Court are not on the same footing as the citizen’s right to travel. The Truax case for example, this Court noted that the alien’s right to enter and abide stemmed from Federal Law and not from the Fourteenth Amendment. And such right might therefore be retracted by federal statute. It would seem to follow therefore that an infringement on his right which we would deny as brought about by the statue here in question might be invalid under the Federal Statute. It might be invalid by the virtue of the Supremacy Clause. But it certainly would not be invalid by virtue of the Fourteenth Amendment’s Equal Protection Clause. We come therefore to the final issue raised by the brief and that is whether this statute in Pennsylvania is an obstruction of Federal Law dealing with immigration and naturalization or an attempt on the part of the state to regulate aliens. We concede that under the decision of this Court in Hines versus Davidowitz, the state can only do this within very narrow limits.
Hugo L. Black: Only do what?
Joseph P. Work: Only regulate -- any regulation Your Honor under the decision of this Court in the Hines case must be construed very, very strictly and within very narrow limits. However, as Judge Wood appropriately noted in his dissent in the lower court, if Pennsylvania had no General Assistance Program at all, Federal Laws dealing with aliens would not be obstructed. It is therefore difficult to see how Federal Laws are anymore obstructed because the state decides to give welfare payments to its citizens. Furthermore, insofar as attempting to regulate aliens is concerned, how can a statute which grants assistance to citizens be said to regulate aliens anymore than a statute which would grant assistance to person over 65 can be said to be regulating persons under 65 and to take it one step further, let us assume that the statute grants assistance to all persons over 65, alien or citizen. Can an alien then come in and challenge the statute as being discriminatory in violation of the Fourteenth Amendment and in violation of the Supremacy Clause because it attempts to regulate him. We respectfully submit to state that proposition indicates its absurdity. Appellee, in their brief assert that the state's denial of general assistance to aliens may have some effect on the decision of an alien to settle in Pennsylvania or it may cause him to remove elsewhere. Of course the same thing might be said of Pennsylvania’s 6% sales tax or its liquor tax which is the second highest in the nation, or its cigarettes tax which is also somewhere near the highest. No one we submit, however, Your Honors would seriously contend that these statutes are invalid as an attempt to regulate aliens because they might cause him to remove elsewhere. Furthermore, we would submit --
Potter Stewart: Well you might have a little different problem --
Joseph P. Work: Yes sir.
Potter Stewart: -- if the cigarette tax was imposed only if the purchaser of the cigarettes were an alien, but were not imposed on a citizen in Pennsylvania. That’s the analogy to this case, isn’t it?
Joseph P. Work: It is Your Honor except that as I understand the appellee’s argument. The test that they are trying to assert to ask this Court to determine whether or not we are violating the Supremacy Clause in regulating aliens is whether or not this statute does have some effect on their decision to locate elsewhere or not to locate within the State of Pennsylvania. And any of these thing could certainly have an effect on that decision. We would also submit Your Honors that because of the federal statute and the federal scheme of intent which is indicated by that statute and their requirement that aliens entering this country be able to demonstrate their ability to earn a livelihood. We sincerely doubt that this factor has given much if any consideration at the time of entry. That is the factor of whether or not Pennsylvania grants assistance to aliens or not. And finally Your Honors I would point out and I think it came up in the Arizona argument, the federal statute do not impose any duty on the states to provide assistance to aliens. In fact, even in the federal assistance categories, the statute leaves it open to the states and would not cause the Department of Health, Education and Welfare to hold a state plan invalid where it does discriminate against the aliens. We would further submit in this regard that the statutory intent and scheme as set forth in the federal statute on immigration and naturalization particularly in 8 U.S.C. 1182 (a) -- 1182-87, 1182-8, 1182-15, 1183 and 1251 would lead one to presume that the congressional intent was to relieve both the states and the Federal Government of the burden of aliens who were or who might become public charges. We submit therefore that it’s difficult to see how the state’s decision to grant an affirmant of benefit to citizens of the United States residing in Pennsylvania conflicts with this scheme of federal regulation of aliens. We had an allegation which I think Your Honors that I have to systematically respond to in the brief and that was that this statute according to the appellee’s position was enacted as result of war hysteria. I wanted to point out to the court that in the lower court transcript which the court has before it. There is only one minute quantity of proof and which was submitted as a one man’s opinion in writing on the scheme of assistance in Pennsylvania which said that this was enacted as a result of war hysteria. There is absolutely no legislative history to support that assertion. There is absolutely no other credible evidence to support the charge, except the opinion of the one author. We submit Your Honors that it is just as logical and more in keeping with the presumption that the legislature has a proper motive in enacting legislation to assume that after the enactment of the Federal Social Security Law in 1935 and after four years of trial and error basis, the states could see a vast area of persons who were not encompassed within the federal statutory scheme. And they enacted a general assistance statute to take care of these particular persons. We would not say that they did not at that time have the special public interest doctrine much in mind when they did not provide for aliens under that same scheme. In summary therefore Your Honors, we would submit and we will admit that these laws which create distinction between aliens and citizens which have evolved in the formulation of the special public interest rule are based upon the assumption that aliens hold allegiance to foreign nations. We respectfully submit, however, that if the court is ready to say that this distinction violates the precepts of the Fourteenth Amendment, we would also submit that this Court may in the very near future be ready to say that denial for the right to vote and the denial of the right to hold public office are also rights which may not be denied to aliens for the same reasons.
Byron R. White: Do you think -- did Takahashi say the thing --
Joseph P. Work: Did they say what Your Honor?
Byron R. White: Yeah.
Joseph P. Work: In the Takahashi case, the court specifically noted that there was such a doctrine, as a special public interest doctrine. They denied --
Byron R. White: Do you think the provision that only citizens and not aliens maybe employed on public projects? Do you think that kind of a rule could survive Takahashi?
Joseph P. Work: No Your Honor for the reason that I expressed before --
Byron R. White: Well, the Crane, did it?
Joseph P. Work: Pardon?
Byron R. White: Then Crane, neither Crane nor Hines survived Takahashi?
Joseph P. Work: Right Your Honor. The right to earn a livelihood, I think the court has specifically said and has spelled out quite completely --
Byron R. White: Do you think Crane has already been overruled?
Joseph P. Work: To the extent that a state may attempt to deny a person’s right to earn a livelihood, yes. I still submit there's a distinction between the right to earn a livelihood and the right to receive a public largess.
Byron R. White: Well of course Crane didn’t deal with welfare benefits either so it’s no authority even if it were still alive. I mean, either of them -- haven’t been overruled.
Joseph P. Work: Only to the extent Your Honor that the Crane doctrine as I understand it was the first real annunciation of the so-called special public interest doctrine.
Byron R. White: Well, it was preceded by Heim --
Joseph P. Work: Heim versus McCall, yes Your Honor.
Byron R. White: -- against McCall on the same day and they both relied on the McCrady, didn’t they?
Joseph P. Work: Yes Your Honor, they did. I agree completely Your Honor that this Court has certainly by its later decisions said that the right to earn a livelihood may not be denied.
Thurgood Marshall: Mr. Work do you agree of course that you couldn’t prevent an alien from working in Pennsylvania?
Joseph P. Work: I agree Your Honors, absolutely.
Thurgood Marshall: Do you agree that you couldn’t tax him certain amount of money with respect to the aliens who worked, or work tax on them?
Joseph P. Work: You mean different from others, from citizens Your Honor? No, I don’t think you could because that again would be an attempting to regulate his right to earn a living.
Thurgood Marshall: You couldn’t put any additional tax on him for anything, could you?
Joseph P. Work: I believe you’re right Your Honor, yes.
Thurgood Marshall: Why not?
Joseph P. Work: Again, I think that the special public interest doctrine, if it has vitality today which I submit that it still does, it has been at least watered down to use the term by this Court to the extent that if it involves the right to earn a livelihood, this Court has said that as inconsistent with the federal rights granted to enter and abide.
Thurgood Marshall: So that you can’t discriminate him against this -- in putting money in the treasury of the state.
Joseph P. Work: That is correct Your Honor.
Thurgood Marshall: But you can discriminate against him or taking the money out?
Joseph P. Work: That would presumably be so Your Honor for the same reasons, I may submit that he is denied the right to vote and that he is denied the right to hold public office. Those taxes which the alien pays goes to all public elections. They go to print the ballots upon which the elections are held. They go to pay the office holders who are elected to those offices.
Thurgood Marshall: Except (Inaudible)-- .
Joseph P. Work: I beg -- I am sorry Your Honor.
Thurgood Marshall: I don’t have the right to vote for me. I have the right to demand the share in to tax load that he contributed to equally with everyone else. That’s all I see in this case, is there something else?
Joseph P. Work: Not in this case Your Honor. I think that is, however, the logical extension of this case.
Thurgood Marshall: Well, I think we could decide this case without (Inaudible)
Joseph P. Work: I presume you could Your Honor. I have nothing further Mr. Chief Justice. Thank you.
Warren E. Burger: Thank you Mr. Work. Mr. Stein.
Jonathan M. Stein: Mr. Chief Justice may it please the Court. We have before us today, a case of alien discrimination which is rooted in the prejudice and ill-will of an early year in Pennsylvania. The fact of this was past at a time of war hysteria and anti-alien feelings in Pennsylvania was made clear in a memorandum commission, a study commissioned by the state, by the Welfare Department which is part of the record. In addition, this law which was passed in 1939 was passed within five days of the State's Alien Registration Act which this Court struck down in Hines v. Davidowitz and in a sense, the motivations behind a citizenship requirement not unlike the motivations behind the residency requirement as in Shapiro v. Thompson, both basically rest in a basic distrust or dislike perhaps a fear of the foreigner, of the out of state person.
Warren E. Burger: Do you you think the limitations which state places on voters and holding public office is rooted in some of the same kind of hostility?
Jonathan M. Stein: It maybe Your Honor, but I think the voting area and this political public office area is very much distinguishable from this area before the court today. The government has much wider latitude in acting to protect its political processes, the governmental processes and they just -- and they don’t have that latitude in the area which is before us today of social or economic benefits which are based upon a classification on alienage. That’s the teaching of Takahashi which says that a state is very much limited in making a classification based on alienage. I might point out in response to the Commonwealth’s argument that Takahashi wasn’t an alienage case, that the provision of the state law based upon a federal citizenship requirement did not mention any racial exclusion. And footnotes both in Takahashi and Oyama point to Japanese and other groups which were affected by that provision. More over this Court had an opportunity in Takahashi to view this as a racial case, as an anti-Japanese case. And in fact, this option is made clear by the concurring opinion of Mr. Justice Rutledge in Murphy who perhaps would have preferred to view it as an anti-Japanese case, but that’s not the way the majority of the court view the case. The majority of the court viewed the case and equated alienage with color as both being impermissible basis for classification both under the Fourteenth Amendment and both under the Civil Rights Act. I might add that --
Byron R. White: Is it fundamental position here on an Equal Protection Clause?
Jonathan M. Stein: Yes, it is.
Byron R. White: If it is, why isn’t that as much on a fortiori, why isn't the Pennsylvania law incompetent with the Section 1981?
Jonathan M. Stein: Well, we add Your Honor that it is in conflict both of the Equal Protection argument and those statutes that put that clause in effect like Section 1981, like the Section 2000 (d) in 42 U.S.C. which promulgate that principle of equality between citizens and aliens. We have named plaintiffs in this case, or aliens, permanent resident aliens of Pennsylvania who have had a history of productive and sustained work before becoming ill and requiring public assistance. The classification established is one between two indistinguishable classes, needy residents of Pennsylvania on the one hand who are citizens, needy residents of the state who are not U.S. Citizens, and we maintain that on either of the two Equal Protection tests, this classification must fall either on the basis that there is simply no rational relationship to a constitutionally permissible legislative purpose or on -- perhaps an equally applicable test that the state must meet a heavy burden of justification in validating and justifying this discrimination. The latter test we suggest is applicable because we are dealing with the suspect criteria. Suspect because history has shown that when this criterion is used to basic classification, it’s often been amassed where simply a rational prejudice against that particular group. I might add in addition, we’re dealing with a group which is a (Inaudible) minority, disenfranchised and which is politically defenseless and can’t rely upon the political processes for redress of grievances. This is an additional reason why we suggest that a special scrutiny test is applicable.
Warren E. Burger: Isn’t that a good argument for giving all those people to vote, the right to run for office so they can protect their interests?
Jonathan M. Stein: Well, we suggest Your Honor that that realm of political activity and that realm of holding public office and voting does involve the Government’s attempt to protect the integrity of its processes. Perhaps there is --
Warren E. Burger: To protect it from what?
Jonathan M. Stein: Well, perhaps a concern about loyalty to another country. It may well be that that may not be that rational a basis. This Court in Oyama, in the concurring opinion in Oyama where Mr. Justice Murphy and Rutledge suggested that assuming a priority, the disloyalty of aliens cannot be done. But we’re just suggesting now that because the scenario of political concern involving the integrity of the political processes, the Government has much wider latitude to legislate, to regulate in this particular area.
Warren E. Burger: But as soon as you use the term like protecting the integrity of the process, haven’t you established an invidious category for the people against whom that wall is erected?
Jonathan M. Stein: Not necessarily, there are certain exigencies as certain wartime concerns where national security which may be not unrelated to voting and holding public office.
Warren E. Burger: These aren’t the wartime, these measures are --
Jonathan M. Stein: That’s right.
Warren E. Burger: With reference to voting and holding office are not war measures. Most of the states have had these since time immemorial, haven’t they?
Jonathan M. Stein: Yes, but voting can involve questions of national security of political questions which the Government, in our view has much wider latitude in regulating than than they do in the fishing license, welfare benefit scheme. What is really, I think at issue here in terms of what the basis of the Pennsylvania statute is really an assumption that the aliens are less deserving than citizens and it has been judicially recognized both by the court below, both by the Purdy & Fitzpatrick California Supreme Court opinion and in the concurring opinion in Oyama that aliens have contributed their energies and the tax dollars to this country. They have often been long domiciled in this country with the history, work history, a productive history of contributing to the states of the nation. They have established families and reared children. They have entered into this social and religious fabric of this nation. And of course they have obligations to serve in the Armed Forces.
Byron R. White: Can’t you make exactly the same argument with respect to voting, exactly the same argument?
Jonathan M. Stein: I think one could and that’s why I would only suggest that the two areas are distinguishable but it may well be that for certain voting rights as my colleague from Arizona, Mr. Ching suggested that voting privileges maybe those privileges which are and should be extended to aliens. I’m not closing my mind to that, you know, to that point.
Byron R. White: Well, that’s what I suspect and I assume that if this case is affirmed you’ll be back here next year with a voting case. And I’d like to get your definitive answer to that --
Jonathan M. Stein: My definitive --
Byron R. White: -- particularly if the office for which the voting case comes up is for local sheriff or city councilor.
Jonathan M. Stein: My answer today is that there -- since there is wide latitude for state government to regulate in the area of political concerns that right now aliens do not have that right to vote under the Equal Protection clause. The fact --
Warren E. Burger: Well, right now they don’t have the right that you’re arguing for as yet, do they?
Jonathan M. Stein: Well, Your Honor, in fact they do in terms of how the Equal Protection Clause has been interpreted in its application to aliens. This case in one sense presents a stronger factual pattern and does the Shapiro v. Thompson residency case. In terms of whether there is a rational basis for this classification. In the residency case, you had newcomers to the state, people living in the state less than one year. In our case, we have people who have been in the state for many years who have clearly made a contribution to the state and to the nation.
Byron R. White: Yes, but at the same time haven’t they chosen not to become naturalized?
Jonathan M. Stein: No Your Honor. In many cases as the record shows, many resident aliens cannot become naturalized simply because they can’t pass the literacy test.
Byron R. White: Well, then they have chosen not to become naturalized by becoming literate?
Jonathan M. Stein: Well, if that is a choice of volition, a question of volition, I would say that for people, at least literacy is not always for everyone a voluntary act. I mean there are people who haven’t been literate and can speak English so they maybe quite literate in Russian or Spanish due to no fault of their own. And so that that aspect of --
Byron R. White: Well, I take it – let's assume anyone here could’ve become a citizen, quite literate, but he chose not to --
Jonathan M. Stein: Well, I think that’s really an irrelevant concern because the Equal Protection Clause does apply to aliens irrespective of their desire to become naturalized, irrespective of their literacy qualifications. The Pennsylvania in a census is saying that they're trying to save money for their own people. But through this citizenship bar, they are in fact denying assistance to their own people, to residents of Pennsylvania. And for that reason, we suggest that there is no rational basis to these classifications. This conservation of funds argument, we maintain also comes down to really to a post hoc rationalization for what has amounted to a casual and quite pointless discrimination. The court below questioned the physical concern when I pointed out that but 65 or 70 people each year are denied general assistance in Pennsylvania, in a state where there are over 700,000 people on assistance. In addition, Pennsylvania although they’re saving money for U.S. citizens and denying it to aliens or giving money to aliens in the federal categories.
Warren E. Burger: Well, on your arguments, don’t we have to resolve the constitutional issues precisely as those 600,000 of the 700,000 for aliens? Does it make any difference how many or how few aliens are involved?
Jonathan M. Stein: No, it doesn’t Your Honor. It only makes a difference as to the state’s argument in suggesting a rational basis in a physical concern. The court below said where is the physical concern really when merely 65 or 70 people are at issue. But --
Warren E. Burger: Well, how is that relevant?
Jonathan M. Stein: Well, I mean to say its --
Warren E. Burger: To the constitutional issue?
Jonathan M. Stein: Right. It is not relevant in the abstracts of the constitutional issue but in this case where the sole basis for justification resides in conserving of state funds. One has to scrutinize that state interest and see it for what it is which is we suggest a fiction in this case, because there’s really no physical concern here. This was an argument which is a post hoc rationalization for a discrimination made 30 odd years ago when prejudice ill-will against aliens was really the motivation for this statute.
Warren E. Burger: But if you had the State of Pennsylvania setting aside, well, lets say arbitrarily $600 million for this program and 600 of the 700,000 total eligible people were aliens would that not work a hardship to the reduction of the amount paid to the citizens, if we accept your argument?
Jonathan M. Stein: Your Honor, the clear holding of this Court in Shapiro v. Thompson established that the saving of welfare cost if that’s what the state is concerned in --
Warren E. Burger: Well, I’m not talking about the saving. I was talking about the sharing, the division of it.
Jonathan M. Stein: Well, I can’t -- well, I don’t think that the numbers is relevant to the constitutional question of whether a state can base a classification upon alienage, whether there are 60, whether there are 600 or longer.
Warren E. Burger: Shapiro didn’t have anything to do with alienage, did it?
Jonathan M. Stein: Pardon?
Warren E. Burger: Shapiro didn’t have anything to do with aliens, did it?
Jonathan M. Stein: No, Your Honor. There was a fundamental freedom there of interstate travel which established the basis for the compelling state interest test. We are suggesting in this case that the inherently suspect criterion of alienage would justify applications of that test. But even if one doesn’t apply that test, using the traditional test of a rational relationship to a constitutionally acceptable legislative purpose, this law fails. In fact, Shapiro itself suggested that the residency requirement would seem to fail even on the test of the rational relationship test.
Warren E. Burger: If the alien receiving this benefit, spends six months of the year in some other country, his native country or any other country, do you -- what would you think would happen to his right, the right that you argue for, to receive that benefit?
Jonathan M. Stein: I would not think he would have a right to receive welfare in Panama or Great Britain as the two named plaintiffs here. Residents in the state without being a durational residency requirement would be a valid requirement because that cuts equally for U.S. citizens or aliens and so that, you know, the fact that that a state can -- we maintain a state could and could validly set residence in the state as a bona fide constitutional requirement for receiving assistance.
Warren E. Burger: You mean they could only receive the assistance for the days and months that they spent within the state’s center of limitation.
Jonathan M. Stein: Well if they are in the state, they would be illegible like other U.S. citizens in Pennsylvania to receive assistance. They couldn’t go some place else and ask for benefits when they’re not residing in Pennsylvania. The Commonwealth does give much leeway or support on Williams v. Dandridge, Dandridge v. Williams, a recent decision of this Court. And that case is clearly distinguishable from this case since that case did not deal with inherently suspect criterion such as alienage. In fact, there the argument used of saving a welfare cost really cuts quite far because it can justify a variety of discrimination, invidious discriminations which are clearly not permissible by the Fourteenth Amendment. I wish to further suggest that the -- well, I wish to point out that the distinguishing fact drawn on Takahashi that earning a livelihood really is not a distinguishing factor in this case. Both Takahashi and both this case deal with access to necessities of life. In fact there’s a stronger argument in our case for that point because at least in Takahashi, there was a bar to one aspect of employment and conceivably those fishermen could have had access to some other applications.
Byron R. White: Takahashi (Inaudible)?
Jonathan M. Stein: Well --
Byron R. White: (Inaudible)
Jonathan M. Stein: Right, I think Crane -- I think it is quite weak on its own grounds. I think the underlying doctrine, the special public interest doctrine is something which Takahashi, at least very seriously questioned if not overruled. And if the special public interest doctrine itself which the state does rely upon really is not applicable to this case because there’s no special public interest in tax dollars where you have aliens themselves contributing to the tax dollars to that resource. And that whole rationale of early cases of somehow a property interest among members of the state just doesn’t hold when those members of the state or aliens have contributed to that source of resources.
Byron R. White: What do you think about the law of the United States which said that no alien may become a citizen, who at that time may apply for citizenship or public charge?
Jonathan M. Stein: Well, that is a different case precisely because the federal government has plenary powers in that instance of regulating expressed powers in the constitution of regulating immigration naturalization.
Byron R. White: What if the Congress also went on and said that no welfare benefit shall be taken by anyone until they become (Inaudible)
Jonathan M. Stein: The constitution would grant that power to Congress if Congress was employing their immigration and naturalization powers. If they did this as part of an immigration naturalization scheme so they could justify that exercise of power.
Byron R. White: (Voice Overlap) an Equal Protection Clause?
Jonathan M. Stein: Through the Fifth Amendment the equal protection -- through the due process causes of --
Byron R. White: Due process clause, the counterpart of federal --
Jonathan M. Stein: It is. And there would obviously be a balancing between the Equal Protection principles through the Due Process clause on these plenary powers. I would suggest that Congress could probably have that power in terms of that balance between those powers.
Byron R. White: Why can't then they say that (Inaudible)
Jonathan M. Stein: Well, this Court in Shapiro v. Thompson did state that that Congress could not authorize states to deny Equal Protection to a class discriminated against and because you do have in this instance expressed immigration powers given to Congress, what might be reasonable and constitutional for Congress to do may not be or constitutional or reasonable for states to do. I might go into this by continuing my argument that the same scrutiny which the Equal Protection Clause does require of this legislation is also required because this is an area that has been preempted by the federal government and as Heim states must be an area confined to the narrowest limits to a state regulation. There is clear conflict with federal policy and law. There’s a whole scheme, a very complex scheme of federal regulation in this area which does exclude paupers from the country and does provide for deportation. In a very limited case where the person becomes a public charge within five years from reasons which predated entry but there is also like a humane aspect to that provision of the law that once you are legally admitted in this country you can’t -- and you have the right to enter and abide in any state. You have a right to live under all equal privileges of citizens under non-discriminatory laws. The Pennsylvania is acting in this case irrespective of whether the person’s been here for five years, irrespective of what the cause of indigency was. In addition, the effect of their act, as was stipulated below, the effect of Pennsylvania’s act is to discourage continued residence in Pennsylvania and force needy resident aliens out of Pennsylvania into other states that would be hospitable to them to meet their needs.
Warren E. Burger: I suppose by the same token, residents of Scotland or Panama or elsewhere would be discouraged from coming to Pennsylvania in the first instance as compared with other states that did not draw this line.
Jonathan M. Stein: It well might be although, the record doesn’t suggest that fact. The record --
Warren E. Burger: Well, isn’t it just as much true?
Jonathan M. Stein: Well --
Warren E. Burger: It's an economic impulse.
Jonathan M. Stein: Yeah! There may well be some aliens who might think that, although they would probably be people who’d be excluded because the federal law really almost insures and this is where the state’s interest is really insured by federal law that those admitted into the country will be productive citizens. The named plaintiffs in this case had Secretary of Labor approval for the jobs they had so there is a very real screening process to prevent those people who states might consider a burden from coming into the United States but this aspect of segregating poor aliens into other states really flies in the face of our concept of a federal union. The Edwards v. California case established that interstate migration of poor people is an aspect of national concern which doesn’t admit of diverse treatment of the states. And this is precisely what Pennsylvania is doing by denying resident aliens their rights, their federal privileges of entrance and abode in Pennsylvania.
Warren E. Burger: Well does your argument mean that every state must have the same -- must meet a certain standard of welfare payments?
Jonathan M. Stein: No. I think the --
Warren E. Burger: If Florida gives twice as much as Indiana, doesn’t that --
Jonathan M. Stein: Well --
Warren E. Burger: -- all right within the pattern of your argument?
Jonathan M. Stein: Well, if the basis of giving different payments is based upon alienage.
Warren E. Burger: No, I’m just talking about the urge to go to Florida would be twice as good for people who are on relief as it is to go to Indiana. You're not talking about -- you were addressing yourself to this right to travel, the movement argument as I understood you.
Jonathan M. Stein: Well yes. But as an aspect of a federally conferred privilege under Truax and Takahashi which state clearly that the alien has a right to enter and abide, to live among the community, perhaps among these ethnic or religious fellows, and can’t be forced out of the state as what is happening here in Pennsylvania where it’s clear, it's not speculation. It’s stipulated fact below that poor aliens are being forced out of the state as a result of this requirement. I might further add in terms conflict with federal law, I think a number of the civil right statutes have been cited. I don’t think they require further elaboration at this point but there are other conflicts of federal law. Six months state residence is a requirement of naturalization to become a U.S. Citizen, and for that alien who is forced out of a particular state and who wishes to become naturalized, that six months period of naturalization is terminated and is interrupted. I might also in terms of embroiling ourselves with other nations, both Panama and Great Britain grant public benefits to aliens, to U.S. citizens in Panama and Great Britain. And if either of these states were to retaliate against Americans, they wouldn’t be retaliating against Pennsylvanians but they're retaliating against Americans --
Thurgood Marshall: (Voice Overlap) Panama, how much is it?
Jonathan M. Stein: Well I believe Panama gives various social security benefits and hospital benefits to aliens in the country.
Thurgood Marshall: Well did they give welfare benefit?
Jonathan M. Stein: I don’t think they do. Great Britain does though and U.S. citizens in Great Britain are eligible for supplementary benefits. I’d like to say in conclusion that we are really as President Kennedy's book set forth a nation of immigrants with a proud -- with a tradition and I guess our strengths of our history reside in the fact that when immigrants have come to our shores and to live among us, they have been afforded equal treatment. This tradition has often required the protection and vigilance of this Court when such immigrants have been met with ill will and prejudice when they have come to this shore and appellees stand before this Court today seeking this protection and I respectfully request that this Court affirm the decision below. Thank you.
Warren E. Burger: Thank you Mr. Stein. You have four minutes left Mr. Work if you wish it.
Joseph P. Work: Mr. Chief Justice I have nothing further but if the court have some specific questions.
Warren E. Burger: Thank you Mr. Work, thank you Mr. Stein.
Hugo L. Black: May I ask you one question?
Joseph P. Work: Yes sir.
Hugo L. Black: What do you do with the language of the Fourteenth Amendment itself which draws a distinction in certain places between citizens and aliens?
Joseph P. Work: I find nothing in the amendment itself Your Honor which drives that distinction.
Hugo L. Black: It says it is. Most persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States under the state where in they reside, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state deprive any person of life, liberty or property without due process of law nor deny any person within its jurisdiction, the Equal Protection of the law. Doesn’t that signify some difference?
Joseph P. Work: I think that there is some difference, however Your Honor if I understand the decisions of this Court correctly with respect to the Equal Protection Clause of the Fourteenth Amendment, with my understanding that this Court had already said that the Equal Protection clause did apply to aliens as well as citizens.
Hugo L. Black: Yeah. But it does run through the language of it.
Joseph P. Work: Right. The only distinction that I see Your Honor and as I stated in the beginning, my whole position in being here is based upon the fact that there are judicially created exceptions to the overall applicability of the Equal Protection Clause, one of them being the special public interest doctrine.
Hugo L. Black: A what?
Joseph P. Work: The special public interest doctrine.
Hugo L. Black: What do you mean by that?
Joseph P. Work: That the state has the right in the conservation of its assets for its own citizens to draw a distinction between aliens and citizens.
Hugo L. Black: But the amendment says, the reference to any person they shall not be denied Equal Protection of the law?
Joseph P. Work: I fully appreciate that Your Honor.
Hugo L. Black: (Voice Overlap) And grant no authority to treat them differently, treating the other citizens of the state.
Joseph P. Work: I would in all humility say to His Honor that if I were deciding the case at this time perhaps, I would decide it differently. But it is my understanding of the decisions of this Court that they have said there are judicially created exceptions to that specific thing.
Hugo L. Black: As to aliens but not as to other people who are permitted to live under the laws of the United States.
Joseph P. Work: Right. But only as to aliens Your Honor.
Hugo L. Black: You agree, do you not, that the supreme law of the United States say they have the right to live in Arizona like anybody else in Pennsylvania.
Joseph P. Work: Correct.
Hugo L. Black: And be treated like the other people.
Joseph P. Work: To the extent that this Court has not drawn a distinction, yes.
Warren E. Burger: Thank you Mr. Work. Thank you. The case is submitted.