Leger v. Sailer

OPINION AND ORDER

ADAMS, Circuit Judge.

The issue in this case is whether Pennsylvania’s general assistance program runs afoul of the United States Constitution because it provides welfare aid to United States citizens residing within the Commonwealth, but denies such aid to persons residing in the Commonwealth who are not United States citizens.

The suit comes before us in the form of a class action. The plaintiffs, representing aliens who meet all other eligibility requirements for general assistance, allege that the Pennsylvania statute denies aliens the equal protection of the laws guaranteed by the Fourteenth Amendment, abridges aliens’ freedom of interstate travel, and violates the Supremacy Clause of the Federal Constitution since it clashes with the federal power to regulate immigration and naturalization.

Because plaintiffs sought to enjoin a state statute on constitutional grounds which are not insubstantial, a three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284.¹

There are two major public assistance programs in Pennsylvania. The larger one is referred to as categorical assistance. Slightly more than one half of the funds for this program, which had its genesis in the Social Security Act of 1935, are provided by the Federal Government. The federally supported arrangement includes programs for aid to the blind, aid to the aged, aid to the permanently and totally disabled, and aid to families with dependent children. In Pennsylvania, aliens are eligible for categorical assistance. The other welfare program in Pennsylvania is general assistance. Section 432(2), Pennsylvania Public Welfare Code, 62 P.S. § 432(2).² This program provides aid for the needy who do not qualify for grants under the categorical assistance provisions. Because of the citizenship requirement in the general assistance statute, residents of Pennsylvania who are not citizens and who have economic need but do not fit into any of the four federal categories cannot obtain state aid.

The sole reason given for excluding aliens from the general assistance legislation is that such a policy saves money or preserves the Commonwealth’s financial resources for citizens. We consider this an inappropriate basis to support such a discrimination under the Equal Protection clause.

The applicable provisions of the Fourteenth Amendment extend protection to “all persons,” and therefore include aliens. As early as 1886 the Supreme Court held that the Equal Protection and the Due Process Clauses are “universal in their application to all persons within the territorial jurisdiction without regard to any differences of race, color or of nationality.” Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). See also Takahashi v. Fish & Game Comm., 334 U.S. 410, 420, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915). Cf. Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 309, 90 S.Ct. 1731, 26 L.Ed.2d 252. Although the Fourteenth Amendment does not prohibit all classifications in state laws, it requires that such classification between groups of persons have a legitimate state objective, and that the distinction drawn have a rational basis to effectuate that purpose. Eg. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). See Developments in the Law— Equal Protection, 82 Harv.L.Rev. 1082-1087 (1969). The policy of upholding a discriminatory state law provided there is some reasonable basis to do so applies to welfare legislation as well as other state economic or social regulations. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). When, however, state legislation in any field — social, economic or political — evidences an intent to discriminate on a basis of race, color, or nationality, the state bears a very heavy burden to justify it.³ Discrimination on the basis of alienage, even though not a discrimination against a particular nationality, affects a “disadvantaged minority” and is therefore subject to strict judicial scrutiny. Takahashi v. Fish & Game Comm., 334 U.S. at 420, 68 S.Ct. 1138.

In Takahashi, the Supreme Court specifically compared discrimination based on alienage with discrimination based on color. The Court said that “the Fourteenth Amendment * * * protect [s] ‘all persons’ against state legislation bearing unequally upon them either because of alienage or color,” and that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” 334 U.S. at 420,⁴ 68 S.Ct. at 1143.

In Hobson v. Hansen, Judge Wright explained that “[T]he Supreme Court has been vigilant in erecting a firm justification principle against every legal rule which isolates for differential treatment a disadvantaged minority, whether defined by alienage, * . * * nationality * * *; or race * * 269 F. Supp. 401, 506-507 (D.D.C.1967) aff’d sub nom. Smuck v. Hobson, 132 U.S. App.D.C. 372, 408 F.2d 175, 176 (1969).⁵

The reason advanced for the citizenship requirement — saving or preserving public funds — is not compelling when we consider the severity of the deprivation imposed upon the excluded group. Those excluded are deprived of the “means to subsist — food, shelter, and other necessities of life”. Shapiro v. Thompson, 394 U.S. 618, at 627, 89 S.Ct. 1322, at 1327, 22 L.Ed.2d 600 (1969). Though a state is not obligated to grant public assistance, the Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), clearly recognized the significance of such aid when it said: “Public assistance is * * * not mere charity, but a means to ‘promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity’.” 397 U.S. at 265, 90 S.Ct. at 1019.

In Shapiro v. Thompson, 394 U.S. at 627, 89 S.Ct. 1322, the Supreme Court held that the interest of economy was an insufficient foundation to justify the denial of welfare benefits to persons who resided within the state for less than one year. In holding the state residency requirements for welfare eligibility unconstitutional, the Court said that it agreed with the contention that “the statutory prohibition of benefits to residents of less than a year creates a classification which constitutes an invidious discrimination denying them the equal protection of the laws”. 394 U.S. at 627, 89 5. Ct. at 1327. Mr. Justice Brennan, speaking for the Court, made it abundantly clear that a discrimination which denied welfare benefits to a particular group could not be sustained on the ground that such denial saves government funds:⁶

“We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification.” 394 U.S. at 633, 89 S.Ct. at 1330.

In Goldberg v. Kelly, the Supreme Court repeated the proposition that “these governmental interests [of reducing administrative expenses and preventing the disbursement of funds it could not recover] are not overriding in the welfare context”. In Goldberg, the Court held that such reasons did not justify the failure to provide a hearing to welfare recipients before aid is terminated. 397 U.S. at 266, 90 S.Ct. at 1019.

Dandridge v. Williams, one of the most recent Supreme Court cases in the welfare area, does not support the Pennsylvania legislation. Dandridge upheld a state regulation which set a maximum ceiling on the amount of aid for each family regardless of the number of children above a given figure. Although the plaintiffs claimed this created two classes — those with large families and those with small families — the Supreme Court found that the state had valid reasons, namely, to encourage employment and to avoid discrimination between welfare families and the families of the working poor, which provided a “solid foundation for the regulation”. 397 U.S. at 486, 90 S.Ct. 1153. Dandridge is distinguishable from the present case on two additional grounds: first, the classification between large and small families is not inherently suspect as is one based on alienage; second the state did not completely exclude a particular group from all benefits — it merely limited the amount of payment per family.

The justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces. Unlike the short-term residents in Shapiro, aliens may live within a state for many years, work in the state and contribute to the economic growth of the state. This is illustrated by the stipulated facts in the present case. One of the named plaintiffs here worked in Pennsylvania for four years, until illness forced her to terminate employment.

Pennsylvania’s efforts to justify the exclusion here are further weakened when the treatment of aliens in its entire public welfare program is carefully analyzed.

Although the federal statute does not require states to grant assistance to aliens,⁷ Pennsylvania permits aliens to participate in its various categorical assistance programs. 62 P.S. § 432(1). The categorical programs are substantially larger than the general assistance program. Indeed, figures from the Commonwealth show that approximately 585,-000 persons are on categorical assistance and 85,000 on general assistance.⁸ Furthermore, in this case, there was evidence that non-citizen applicants for general assistance are less than 100 per year.⁹ Accordingly, it is difficult to lend credence to the rationale that aliens are denied access to the general assistance program in order to conserve funds.

Pennsylvania attempts to rationalize its discrimination against aliens and contends it is not violating the Fourteenth Amendment because the state has an unqualified right to preserve public money or property for its own citizens. It draws this rule principally from People v. Crane, 214 N.Y. 154, 108 N.E. 427 (1915), aff’d sub nom. Crane v. New York, 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915).¹⁰ Crane, decided fifty-five years ago, upheld a New York statute which prohibited aliens from working on construction projects paid for with government funds. The validity of this discriminatory legislation today is exceedingly doubtful when the principles enunciated in Takahashi are considered.

In Takahashi, the Supreme Court refused to uphold a California law which denied commercial fishing licenses to aliens although the Court assumed that the provision was passed “to conserve fish in the California coastal waters or to protect California citizens engaged in commercial fishing from competition by Japanese aliens or for both reasons”. 334 U.S. at 418, 68 S.Ct. at 1142. In that decision, the Court held that the state power to apply its laws exclusively to aliens as a class is confined within narrow limits, and thus reduced the range of legislative purposes which can justify “[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States”. 334 U.S. at 419, 68 S.Ct. at 1142.

Justice Cardozo’s rationale for the decision in Crane was in large measure grounded on the theory that public employment is a privilege rather than a right. He said: “The state, in determining what use shall be made of its own moneys, may legitimately consult the welfare of its own citizens, rather than that of aliens. Whatever is a privilege, rather than a right, may be made dependent upon citizenship.” 108 N.E. at 430. The “privilege-right doctrine” no longer has vitality as a justification for the deprivation of a constitutional right. The Supreme Court has only recently stated, “the constitutional challenge cannot be answered by the argument that public assistance benefits are a ‘privilege’ and not a ‘right’.” Shapiro v. Thompson, 394 U.S. at 627 n. 6, 89 S.Ct. at 1327; Goldberg v. Kelly, 397 U.S. at 262, 90 S.Ct. at 1017 and eases cited therein. See also Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 82 Harv.L.Rev. 1439 (1968).

The Creme decision, which has not been relied on to uphold anti-alien legislation since it was decided, was rejected as controlling by the California Supreme Court sitting en banc last year. In Purdy & Fitzpatrick v. California, 71 A.C. 587, 79 Cal.Rptr. 77, 456 P.2d 645 (1969), the California Court held that a section of the Labor Code which prohibited employment of aliens on public works was unconstitutional. That Court could find no “ ‘special public interest’ to justify this discriminatory legislation which encroaches upon, the congressional scheme for immigation and naturalization, and violates the equal protection clause of the Fourteenth Amendment. 456 P.2d at 650, 653. It rejected the theory of an absolute proprietary interest in the disbursement of public funds on the basis of the standard and holding of Takahashi.¹¹

Pennsylvania also relies on Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539 (1914), which allowed a state to preserve game for its own citizens, and on a number of cases upholding restrictions on an alien’s right to own property. Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923); Porterfield v. Webb, 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278 (1923); Webb v. O’Brien, 263 U.S. 313, 44 S.Ct. 112, 68 L.Ed. 318 (1923); Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323 (1923). The land cases, questioned by the Supreme Court in Takahashi and Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948),¹² are insufficient authority to uphold discriminatory welfare legislation, just as they were insufficient authority to uphold discriminatory employment legislation in Takahashi and Purdy & Fitzpatrick.

Although there may be an area in which the state may permissibly preserve natural resources for its own citizens by discriminating against aliens, just as it may in such respects discriminate against residents of other states, a discrimination against resident aliens which, as the parties in this case stipulated, “causes undue hardship by depriving them of the means to secure the necessities of life, including food, clothing and shelter”, and “discourages continued residence in Pennsylvania of indigent resident aliens and causes such needy persons to remove to other states which will meet their needs”, is substantially different and invalid.

Pennsylvania has cited numerous state statutes which discriminate against aliens.¹³ These statutes have not been subjected to judicial scrutiny, and we do not decide the validity or invalidity of any of them at this time. We note, however, that the validity of restrictions on an alien’s right to work have been seriously questioned on the basis of Takahashi. See Constitutionality of Restrictions on Aliens’ Right to Work, 57 Col. L.Rev. 1012 (1957);¹⁴ Note, 1947-48 Term of the Supreme Court: The Alien’s Right to Work, 49 Col.L.Rev. 257 (1949).

We hold that the provision in the general assistance law prohibiting its applicability to residents of Pennsylvania who are not citizens is invalid as violating the Equal Protection clause of the United States Constitution. In view of. this decision we consider it unnecessary to pass upon plaintiffs’ other contentions that the Pennsylvania statute violates the Supremacy Clause of the Constitution and interferes with the aliens’ right to interstate travel.

The above constitutes the findings of fact and conclusions of law required by Rule 52(a). Accordingly, the motion for preliminary and permanent injunction will be granted.

1 . The jurisdiction of the Federal Court is invoked under 28 U.S.C. § 1343(3) and (4), 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202, this being an action for declaratory judgment and preliminary and permanent injunctions to redress the deprivation under color of state law of rights, privileges and immunities secured to plaintiffs by the Constitution and laws of the United States.

2 . “Section 432. Eligibility.

Except as hereinafter otherwise provided, and subject to the rules, regulations, and standards established by the department, both as to eligibility for assistance and as to its nature and extent, needy persons of the classes defined in clauses (1) and (2) of this section shall be eligible for assistance :

(1) Persons for whose assistance Federal financial participation is available to the Commonwealth * * *.

(2) Other persons who are citizens of the United States, or who, during the period January 1, 1938 to December 31, 1939, filed their declaration of intention to become citizens.”

3 . See e. g. Dandridge v. Williams, 397 U.S. at 485 n. 17, 90 S.Ct. 1153; Loving v. Va., 388 U.S. 1, 9, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); McLaughlin v. Fla., 379 U.S. 184, 191-192, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

4 . In Takahashi the Supreme Court also stated (334 U.S. at 419-420, 68 S.Ct. at 1143) that aliens are protected by 42 U.S.C. § 1981 (formerly Section 41 of the Nationality Act, 8 U.S.C. § 41) which provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts,1 to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other”.

5 . Takahashi has been cited a number of times to illustrate a classification which is “inherently suspect”. See Kramer v. Union Free School District, 395 U.S. 621, 628 n. 9, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663, 682 n. 3, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 295 n. 7, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964).

6 . Financial expense has been held an inadequate reason to justify discrimination in the criminal law. See Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

7 . In Richardson v. Graham, 313 F.Supp. 34, a three-judge-court held that a 15 year residency requirement in Arizona for aliens requesting public welfare under Arizona’s federally supported programs violated the Equal Protection Clause of the Fourteenth Amendment. (D.Ariz., filed May 27, 1970).

8 . Department of Public Welfare Report of Public Assistance, Dec. 31, 1969.

9 . Although the Pennsylvania statute does not involve the federal social security program, the defendants say that Congress authorized discimination against aliens in the federal statute when it stated:

“The Secretary * * * shall not approve any plan which imposes, as a condition of eligibility for aid * * *

* * * * *

“(2) Any citizenship requirement which excludes any citizen of the United States.” 42 U.S.C. § 1202(b) (2) (1964).

See also 42 U.S.C. § 1352(b) (2) (disabled) ; 1382(b) (3) (aged, blind or disabled); § 302(b) (3) (aged).

A similar provision in the federal statute regarding residency was not considered congressional authority to allow one year residency requirements. Shapiro v. Thompson, 394 U.S. at 638-641, 89 S.Ct. 1322, 22 D.Ed.2d 600. The Court in Richardson v. Graham, supra note 7, also rejected an argument which was similar to that made by the Commonwealth.

In the Civil Rights Act of 1964 Congress prohibited discrimination because of national origin in any program receiving federal assistance. 42 U.S.C. § 2000d.

10 . Crane was affirmed on the basis of Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915) which in turn relied on Atkin v. Kansas, 191 U.S. 207, 24 S.Ct. 124, 48 L.Ed. 148 (1903). But see Powell, The Right to Work for the State, 16 Col.L.Rev. 99, 111 (1916).

11 . Ratti v. Hinsdale Raceway, Inc., 109 N.H. 270, 249 A.2d 859, (1969); Garden State Dairies of Vineland Inc. v. Silla, 46 N.J. 349, 217 A.2d 126 (1965); Department of Labor & Industry v. Cruz, 45 N.J. 372, 212 A.2d 545 (1965), in dicta all indicate doubt as to the validity of Crane.

12 . In Oyama four justices said the restrictions were unconstitutional. Tahahashi and Oyama were relied on by the highest Court of two states to invalidate portions of their state alien land laws. Fujii v. State, 38 Cal.2d 718, 242 P.2d 617 (1952). Namba v. McCourt, 185 Or. 579, 204 P.2d 569 (1949). See Comment, The Alien and the Constitution, 20 U. Chi.L.Rev. 547, 564-70 (1953). See also State v. Oakland, 287 P.2d 39, 42 (Montana, 1955).

13 . But see Limestone Company, Ltd. v. Fagley, 187 Pa. 193, 40 A. 977 (1898), where the Pennsylvania Supreme Court invalidated a discriminatory tax on alien employees as violative of the Equal Protection Clause of the Fourteenth Amendment.

14 . For a list of law review material discussing the unconstitutionality of the aliens right to work see 57 Col.L.Rev. 1013 n. 4.