John Marshall Harlan II

“ Hence, as has already been suggested, the decisive question is whether Congress may legitimately enact welfare residence requirements, and the Fourteenth Amendment Privileges and Immunities Clause adds no extra force to the appellees' attack on the requirements.
The last possible source of a right to travel is one which does operate against the Federal Government: the Due Process Clause of the Fifth Amendment. [29] It is now settled that freedom to travel is an element of the 'liberty' secured by that clause. ”

“ If one accepts evidence put forward by the appellees, [30] to the effect that there would be only a minuscule increase in the number of welfare applicants were existing residence requirements to be done away with, it follows that the requirements do not deter an appreciable number of persons from moving interstate.
Against this indirect impact on the right to travel must be set the interests of the States, and of Congress with respect to the District of Columbia, in imposing residence conditions. There appear to be four such interests. ”

“ A legislature is certainly not obliged to furnish welfare assistance to every inhabitant of the jurisdiction, and it is entirely rational to deny benefits to those who enter primarily in order to receive them, since this will make more funds available for those whom the legislature deems more worthy of subsidy. [32]
A second possible purpose of residence requirements is the prevention of fraud. A residence requirement provides an objective and workable means of determining that an applicant intends to remain indefinitely within the jurisdiction. ”

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

“ Fifth, and of longer-range importance, the field of welfare assistance is one in which there is a widely recognized need for fresh solutions and consequently for experimentation. Invalidation of welfare residence requirements might have the unfortunate consequence of discouraging the Federal and State Governments from establishing unusually generous welfare programs in particular areas on an experimental basis, because of fears that the program would cause an influx of persons seeking higher welfare payments. ”

“ To what extent does a one-year residence condition upon welfare eligibility interfere with this right to travel?; and (2) What are the governmental interests supporting such a condition? The consequence of the residence requirements is that persons who contemplate interstate changes of residence, and who believe that they otherwise would qualify for welfare payments, must take into account the fact that such assistance will not be available for a year after arrival. ”

“ The 'compelling interest' doctrine, which today is articulated more explicitly than ever before, constitutes an increasingly significant exception to the longestablished rule that a statute does not deny equal protection if it is rationally related to a legitimate governmental objective. [4] The 'compelling interest' doctrine has two branches. The branch which requires that classifications based upon 'suspect' criteria be supported by a compelling interest apparently had its genesis in cases involving racial classifications, which have, at least since Korematsu v. ”

“ California, 314 U.S. 160, 177, 181, 62 S.Ct. 164, 168, 170 (1941) (Douglas and Jackson, JJ., concurring) , have gone further and intimated that the Fourteenth Amendment right to travel interstate is a concomitant of federal citizenship which stems from sources even more basic than the need to protect citizens in their relations with the Federal Government. ”

“ Having decided that the 'compelling interest' principle is applicable, the Court then finds that the governmental interests here asserted are either wholly impermissible or are not 'compelling.' For reasons which follow, I disagree both with the Court's result and with its reasoning. ”

“ As I understand it, this statute initially divides Pennsylvania welfare applicants into two classes: (1) persons for whom federal financial assistance is available and not precluded by other provisions of federal law (if state law, including the residence requirement, were intended, the 'Except as hereinafter otherwise provided' proviso at the beginning of the entire section would be surplusage) ; (2) other persons who are citizens. The residence requirement applies to both classes. ”

“ The concurring Justices in Edwards laid emphasis not upon natural rights but upon a generalized concern for the functioning of the federal system, stressing that to allow a State to curtail 'the rights of national citizenship would be to contravene every conception of national unity,' 314 U.S., at 181, 62 S.Ct., at 170 (Douglas, J.) , and that ' (i) f national citizenship means less than (the right to move interstate) it means nothing.' Id., at 183, 62 S.Ct., at 171 (Jackson, J.) . ”

“ The second branch of the 'compelling interest' principle is even more troublesome. For it has been held that a statutory classification is subject to the 'compelling interest' test if the result of the classification may be to affect a 'fundamental right,' regardless of the basis of the classification. ”

“ First, it is evident that a primary concern of Congress and the Pennsylvania and Connecticut Legislatures was to deny welfare benefits to persons who moved into the jurisdiction primarily in order to collect those benefits. ”

“ The second, presented in the Pennsylvania and Connecticut appeals, is whether a State may, with the approval of Congress, impose the same conditions with respect to eligibility for AFDC assistance. [2] In each instance, the welfare residence requirements are alleged to be unconstitutional on two grounds: first, because they impose an undue burden upon the constitutional right of welfare applicants to travel interstate ”

“ It is a right that has been firmly established and repeatedly recognized. * * * (The) right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.' Id. ”

“ Similarly, this Court has stated that where, as here, the issue concerns the authority of Congress to withhold 'a noncontractual benefit under a social welfare program * * *, the Due Process Clause (of the Fifth Amendment) can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking i rational justification.' Flemming v. ”

“ It therefore may aid in eliminating fraudulent collection of benefits by nonresidents and persons already receiving assistance in other States. There can be no doubt that prevention of fraud is a valid legislative goal. ”