Poverty, residency, and federalism: States' duty of impartiality toward newcomers

Supreme Court Review

Volumn 1999, Issue , 1999, Pages 277-334

  Hills Jr , Roderick M ^a  

^a NONE

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EID: 0346934227     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1999.3109710     Document Type: Article

References (190)

1. 119 S Ct 1518 (May 17, 1999).
2. It would be unfair to criticize the Court for not providing a more complete account of what it means to establish state "residency." The state of California after all, had conceded that the plaintiffs in Saenz were state residents. It is understandable that the Court would seize on this concession as a way to avoid the thorny question of how to define state residency.
3. 394 US 618 (1969).
4. Saenz, 119 S Ct at 1527.
5. Welfare and Institutions Code § 11450.03. The relevant language of the statute provides that eligible families who have resided in the state for less than twelve consecutive months immediately before applying cannot receive CalWORKs assistance any higher than "the maximum aid payment that would have been received by that family from the state of prior residence." Cal Welf & Inst Code § 11450.03(a).
6. Id.
7. Shapiro, 394 US at 635.
8. See, e.g., id at 631 ("[T]he purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible").
9. Id at 632.
10. 415 US 250 (1974).
11. The "severe penalties" theory is almost as self-refuting as the broadest view of Shapiro, for it provides no baseline with which to distinguish "penalties" from "nonpenalties." Were newcomers to California entitled to the treatment that they received in their former state or the treatment that was generally provided in their new state? Either view leads to absurdity if the inquiry is defined by the "severity" of the deterrent to interstate travel. If there is an entitlement to the former state's level of benefits, then migrants from California to, say, Arkansas should be permitted to demand from the Arkansas government the higher level of payment afforded by California law, even though Arkansas pays all of its citizens a uniform low payment. If the new state provides the standard, then California should be barred from cutting its benefits "too much" for all state residents, because such cuts might deter migration from stingier neighbors.
12. Saenz, 119 S Ct at 1527.
13. These three rights are "the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State."
14. Saenz at 13 ("I cannot see how the right to become a citizen of another State is a necessary 'component' of the right to travel, or why the Court tries to marry these separate and distinct rights").
15. Shapiro 395 US at 630 ("We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision"). After blandly dismissing the whole question of textual interpretation, the Shapiro Court had then proceeded to list in a footnote four different textual provisions that might serve as the textual hook on which the right to travel could be hung - the Privileges and Immunities Clause of Article IV section 2; the Dormant Commerce Clause; the Privileges or Immunities Clause of the Fourteenth Amendment; and the Fifth Amendment's Due Process clauses.
16. Douglas Laycock, Equal Citizen, of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum L Rev 249, 263 (1992) ("Whatever these privileges and immunities [protected by the Fourteenth Amendment] are thought to be . . . they depend directly on federal law applicable to all and not on the rights of some reference group").
17. Akhil Amar has persuasively indicated that the Fourteenth Amendment's Privileges or Immunities Clause was intended in part to incorporate: the U.S. Constitutions Bill of Rights. See Akhil Amar, The Bill of Rights 137-214 (1998).
18. See, e.g., John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L J 1385, 1457-58 (1992). Douglas Laycock argues that the Privileges or Immunities Clause of the Fourteenth Amendment cannot contain a comparative right, because it does not specify the groups between which equality is required. As a textual matter, Laycock is surely correct: unlike Article IV's Privileges and Immunities Clause, the Fourteenth Amendments language seems to specify an absolute right. Harrison's argument, however, indicates that the framers assumed that the rights covered by the Privileges or Immunities Clause would be defined at least in part by state law.
19. 60 US (19 How) 393 (1857).
20. See, e.g., Sugarman v Dougall, 413 US 634, 652 (1973) (Rehnquist, J, dissenting).
21. Id at 417.
22. Prior to the Civil War, southern states were notorious for their interference with interstate migration, excluding free Black citizens and abolitionists from their territory even when it was widely acknowledged that such exclusion interfered with the comity owed to northern states under Article IV, section 2, or the dormant commerce power of Congress. For instance, southern states imprisoned free Black seamen who entered southern ports with their ships, even in the teeth of Justice Johnson's decision in Elkison v Deliesseline, 8 F Cas 493 (CCDSC 1823) striking down such restrictions on free movement of both free Black northern citizens and foreign seamen as encroachments of Congress's power to regulate international commerce. For an account of the Negro Seamens Acts, see Paul Finkelman, States Rights North and South in Antebellum America, in Kermit Hall and James W. Ely, Jr., eds, An Uncertain Tradition: Constitutionalism and the History of the South 130-33 (1989) For an account of southern state courts' rejection of free Blacks' claims to freedom under northern liberty laws, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity ch 7 (1981).
23. Prior to the Civil War, southern states were notorious for their interference with interstate migration, excluding free Black citizens and abolitionists from their territory even when it was widely acknowledged that such exclusion interfered with the comity owed to northern states under Article IV, section 2, or the dormant commerce power of Congress. For instance, southern states imprisoned free Black seamen who entered southern ports with their ships, even in the teeth of Justice Johnson's decision in Elkison v Deliesseline, 8 F Cas 493 (CCDSC 1823) striking down such restrictions on free movement of both free Black northern citizens and foreign seamen as encroachments of Congress's power to regulate international commerce. For an account of the Negro Seamens Acts, see Paul Finkelman, States Rights North and South in Antebellum America, in Kermit Hall and James W. Ely, Jr., eds, An Uncertain Tradition: Constitutionalism and the History of the South 130-33 (1989) For an account of southern state courts' rejection of free Blacks' claims to freedom under northern liberty laws, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity ch 7 (1981).
24. Prior to the Civil War, southern states were notorious for their interference with interstate migration, excluding free Black citizens and abolitionists from their territory even when it was widely acknowledged that such exclusion interfered with the comity owed to northern states under Article IV, section 2, or the dormant commerce power of Congress. For instance, southern states imprisoned free Black seamen who entered southern ports with their ships, even in the teeth of Justice Johnson's decision in Elkison v Deliesseline, 8 F Cas 493 (CCDSC 1823) striking down such restrictions on free movement of both free Black northern citizens and foreign seamen as encroachments of Congress's power to regulate international commerce. For an account of the Negro Seamens Acts, see Paul Finkelman, States Rights North and South in Antebellum America, in Kermit Hall and James W. Ely, Jr., eds, An Uncertain Tradition: Constitutionalism and the History of the South 130-33 (1989) For an account of southern state courts' rejection of free Blacks' claims to freedom under northern liberty laws, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity ch 7 (1981).
25. Jacobus tenBroek, Equal Under the Law 232 (1965) ("The comity clause . . . was the particular provision of the existing Constitution, most speakers agreed, the systematic violation of which had made necessary a new constitutional confirmation").
26. Lyman Trumbull's remarks are reported at Cong Globe, 29th Cong, 1st Sess 1757 (1866). The Republican consensus on Article IV, section 2 is discussed in Earl Maltz, Civil Rights, the Constitution, and Congress, 1863-1869 at 55, 63-65, 97 (1990).
27. Lyman Trumbull's remarks are reported at Cong Globe, 29th Cong, 1st Sess 1757 (1866). The Republican consensus on Article IV, section 2 is discussed in Earl Maltz, Civil Rights, the Constitution, and Congress, 1863-1869 at 55, 63-65, 97 (1990).
28. See, e.g., Baldwin v Fish & Game Comm'n of Montana, 436 US 371 (1978).
29. Discrimination against nonresidents attacks a person who actually belongs to another state community: intuitively, one would think that this sort of direct attack on a specific state's citizen would inspire more interstate animosity than discrimination against a new resident who, after all, has abandoned his or her tie with some other state government and whose cause is unlikely to be espoused by that government.
30. The Shapiro Court made such an analogy when it argued that, just as Congress could not "induce wider state participation in school construction " by "authorizing the use of joint funds for the building of segregated schools," so too, Congress cannot induce state expenditures by allowing states to discriminate on the basis of length of residence. Shapiro, 394 US at 641.
31. 83 US 36 (1872).
32. Saenz, 119 S Ct at 1526-27 (quoting Slaughterhouse Cases at 80) (emphasis added).
33. Id (quoting Slaughterhouse Cases at 112-13).
34. See notes 105-09 and accompanying text (discussing the regime of settlement and removal).
35. See notes 110-12 and accompanying text.
36. Shapiro v Thompson, 394 US 618 (1969).
37. Memorial Hospital v Maricopa County, 415 US 250 (1974).
38. Dunn v Blumstein, 405 US 330 (1972).
39. See Vlandis v Kline, 412 US 441 (1973); Starns v Malkerson, 401 US 985 (1971), aff'g without opinion 326 F Supp 234 (D Minn 1970).
40. See Vlandis v Kline, 412 US 441 (1973); Starns v Malkerson, 401 US 985 (1971), aff'g without opinion 326 F Supp 234 (D Minn 1970).
41. See Vlandis v Kline, 412 US 441 (1973); Starns v Malkerson, 401 US 985 (1971), aff'g without opinion 326 F Supp 234 (D Minn 1970).
42. Martinez v Bynum, 461 US 321 (1983).
43. Sosna v Iowa, 419 US 393 (1975).
44. Att'y Gen'l of NY v Soto-Lopez, 476 US 898 (1986); Hooper v Bernalillo County Assessor, 472 US 612 (1985).
45. Att'y Gen'l of NY v Soto-Lopez, 476 US 898 (1986); Hooper v Bernalillo County Assessor, 472 US 612 (1985).
46. Zobel v Williams, 457 US 55 (1982).
47. Shapiro, 394 US at 632.
48. Id at 632-33.
49. 395 US at 633 n 10.
50. 412 US 441 (1973).
51. For a sympathetic account of the doctrine, see Laurence Tribe, American Constitutional Law 1618-25 (2d ed 1988).
52. Vlandis, 412 US at 453 n 9.
53. Id at 451-52 (emphasis added).
54. Id at 453-54 (emphasis added).
55. Id at 451.
56. To be sure, Vlandis does not specifically say that a state may consider the migrant's motives for migrating to ascertain residential status. But Vlandis states that "students . . . are not in fact bona fide residents" if they "have come there solely for educational purposes." This seems to say that bona fide residence depends on the migrant's motive for coming to the state.
57. Justice Rehnquist and Justice Douglas dissented on the ground that Connecticut could reasonably exclude children whose parents had not contributed to the University of Connecticut in the form of past tax payments. Id at 464-65. Given this embrace of fiscal justifications for exclusion, one can infer that they would a fortiori endorse the proposition that "bona fide residency" could be defined to exclude benefit-motivated migrants.
58. Vlandis, at 453 n 9.
59. 419 US 393 (1975).
60. Sosna, 419 US at 407.
61. Id.
62. 461 US 321 (1983).
63. Id at 321, 325-28, 328 n 6.
64. Id.
65. Id at 328.
66. Id at 329.
67. For an account of how school districts aggressively try to exclude nonresidents' children from attending public school because their parents do not pay taxes into the school districts, see Andy Newman, Dangerous Crossing: Lying, Scheming, and Conniving to Get Into Public School, New York Times Magazine (March 14, 1999) at 28-29.
68. Martinez, 461 US at 335 (Marshall, J, dissenting).
69. Id at 332.
70. Id at 332 n 15.
71. For a similar view of Martinez, see Laurence Tribe, American Constitutional Law 1457 n 15 (2d ed 1988) (noting that "Martinez . . . calls into question the premises behind the Court's statement in Shapiro that a mother who considers the level of public assistance when moving into a state 'is no less deserving than a mother who moves into a state to take advantage of its better educational facilities' "). Professor Tribe attempts to limit Martinez "to circumstances like those in Martinez where the excluded child has conceded his intention to leave after the state has provided a service of limited duration." Id. But Professor Tribe's description of Martinez's holding might be overly narrow: there is no indication in the U.S. Supreme Court's opinion that domicile can be denied only when the person seeking it concedes that they lack domiciliary intent.
72. Under the TANF block grant program authorized by the federal Personal Responsibility and Work Opportunity Act, a 60-month limit applies to federal money funding welfare. 42 USC § 608 (Supp II 1996).
73. For instance, absent a residence requirement for in-state tuition, a citizen of, say, Alaska (which lacks any state-subsidized law school) could attend, say, the tax-subsidized (and by hypothesis superb) University of California law schools, earn a law degree at the expense of California taxpayers, and then return to Alaska with a valuable professional credential. The law degree will earn the Alaskan resident a handsome living in Alaska, and it will also benefit Alaska's taxpayers (who will tax the lawyer's income), but no Alaskan taxpayers will have to bear the cost of the professional education. Under these circumstances, it is easy to see how the taxpayers and would-be lawyers of Alaska would have zero incentive to lobby the Alaska legislature to fund an Alaskan law school. Likewise, one can see why the incentives of California's taxpayers to bear the tax burden of educating residents from other states might diminish their enthusiasm for their public universities.
74. Saenz, 119 S Ct at 1527-28.
75. For a detailed account of how this "free-rider" argument became a theme of Tommy Thompson's successful campaign against then-Governor Earle of Wisconsin, see Paul Peterson and Mark Rom, Welfare Magnets 26-47 (1988). At the time, Wisconsin s welfare benefits were considerably more generous than those paid by Illinois. See also notes 84-87.
76. Martinez, 461 US at 328.
77. Following Paul Peterson, I define "redistributive programs" negatively as programs that are not designed to give government services to the taxpayer that are roughly equivalent in value to the taxes that the taxpayer pays. Paul Peterson, The Price of Federalism 64-67 (1995).
78. The same argument would suggest that states should be able to finance government services with user fees, special assessments, or benefits charges rather than general taxes.
79. See notes 84-87 and accompanying text.
80. 301 US 619 (1937).
81. Id at 644.
82. Id.
83. Id.
84. As Douglas Laycock argues, "States can generally restrict such services to their own residents, or account for the subsidy in a higher user fee for non-residents. Otherwise, individuals could benefit from subsidies without being subject to the taxes that pay the subsidies." Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum L Rev 249, 271 (1992). For similar arguments, see Dan T. Coenen, Untangling the Market Participant Exception to the Dormant Commerce Clause, 88 Mich L Rev 395, 421-26 (1989).
85. As Douglas Laycock argues, "States can generally restrict such services to their own residents, or account for the subsidy in a higher user fee for non-residents. Otherwise, individuals could benefit from subsidies without being subject to the taxes that pay the subsidies." Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum L Rev 249, 271 (1992). For similar arguments, see Dan T. Coenen, Untangling the Market Participant Exception to the Dormant Commerce Clause, 88 Mich L Rev 395, 421-26 (1989).
86. Id. For an endorsement of this "efficiency" argument, see Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 88 Mich L Rev 1091, 1194 (1986).
87. Reeves, Inc. v Stake, 447 US 429, 446 (1980).
88. See Jonathan Varat, State "Citizenship" and Interstate Equality, 48 U Chi L Rev 487, 522-23 (1980).
89. For a more detailed discussion of why this "Wicksellian" link between revenues and expenditures constitutes the best definition of "efficiency" in the context of public finance, see Albert Breton, Competitive Governments: An Economic Theory of Politics and Public Finance 23-24 (1996).
90. There are at least a couple problems with the revenue-expenditure link. The first problem is that migrants who purchase property or have incomes below the median property value or income of the median taxpayer will pay lower ad valorem property taxes or income taxes for the same level of state services. As Bruce Hamilton has famously argued, this will lead such "undertaxed" nonresidents to migrate to the jurisdiction in inefficiently high numbers. Bruce W. Hamilton, Zoning and Property Taxation in a System of Local Governments, 12 Urban Stud 205 (1975). Second, it might be the case that the new resident will add congestion costs to the community that will exceed the new resident's marginal cost of migrating to the community - again, causing an inefficiently large number of migrants to join the community. The first problem could be solved by financing state services with a lump-sum tax, while the second problem could be solved by some sort of growth management movement. I will discuss the former issue in more detail later in Part IIIA.
91. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
92. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
93. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
94. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
95. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post-1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
96. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
97. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
98. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
99. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
100. The scholarly literature that analyzed indigent behavior prior to 1970 generally found little evidence that benefit levels influenced indigent migration. For two general surveys of the studies of pre-1970 data, see Larry H. Long, Poverty Status and Receipt of Welfare Among Migrants and Non-Migrants in Large Cities, 39 Am Soc Rev 46, 48 (1974), and Richard J. Cebula, A Survey of the Literature on the Migration-Impact of State and Local Government Policies, 1 Pub Finance 69 (1979). For an exceptional contrary report, see Lawrence Southwick, Jr., Public Welfare Programs and Recipient Migration, 12 Growth & Change 22-32 (1981) (based on a 1967 survey of 66,577 AFDC families). For a more recent study finding that welfare-induced migration is trivial in extent, see Russell L. Hanson and John T. Hartman, Do Welfare Magnets Attract? (U Wis, 1994). However, as Paul Peterson and Mark Rom pointed out in their 1988 landmark study, most state required newcomers to wait 12 months before they could received welfare prior to Shapiro v Thompson, and one would expect such a waiting period to dampen indigent incentives to migrate in order to get higher benefits. Paul Peterson and Mark Rom, Welfare Magnets: A New Case for a National Standard 57-58 (Brookings, 1988). Later studies of post- 1970 data suggest that the effects of welfare on indigent migration are positive and statistically significant. Edward Gramlich and Deborah Laren, Migration and Income Redistribution Responsibilities, 19 J Hum Resources 489 (1983); Rebecca M. Blank, The Impact of State Economic Differentials on Household Welfare and Labor Force Behavior, 28 J Pub Econ 25 (1985); Paul Peterson and Mark Rom, Welfare Magnets at 83; Robert Moffit, Incentive Effects of the U.S. Welfare System: A Review, 30 J Econ Literature 1, 34 (1992) (reviewing literature and finding significant albeit inconclusive evidence that welfare levels significantly influence indigents' migration decisions). As Peterson and Rom noted in 1988, there is no evidence that "large numbers of poor people rush from one state to another with every modest adjustment in state benefit levels." But Peterson and Rom reflect the views of a substantial number of scholars in stating that "over time, as people make major decisions about whether a they should move or remain where they are, they take into account the levels of welfare a state provides and the extent to which the levels is increasing. The poor do this roughly to the same extent that they respond to differences in wages." Peterson and Rom, Welfare Magnets at 83.
101. For anecdotal evidence, see National Public Radio, Transcript of All Things Considered, 1997 WL 12832095 (Tuesday, August 19, 1997). In the course of exploring why Minneapolis's indigent population grew during the 1980s, the interviewer noted that "Greg Owen [a sociologist with a St. Paul nonprofit organization that surveys shelter residents] stated that newcomers give many reasons for coming to Minnesota - jobs, better schools, safer neighborhood - but he says the safety net is a factor for some." According to Owen, "Frankly it's known outside of Minnesota that Minnesota provides a good shelter system -good housing opportunities for lower income families. And a number of the responses that we get relate to that specifically - 'I thought I could get on my feet more easily here in Minnesota.'" See also Dirk Johnson, Rethinking Welfare: Interstate Migration - a Special Report: Larger Benefits Lure Chicagoans to Wisconsin, NY Times A11 (May 8, 1995). Wisconsin sought to discriminate against newcomers because it feared that it was attracting newcomers from Illinois, where welfare benefits were 40% lower than in Wisconsin. According to one consultant's survey 29% of the migrants cited higher welfare benefits as a reason for their migration to Wisconsin. Rogers Worthington, Study Finds Evidence Some View Wisconsin as a Welfare Magnet, Chicago Trib (May 23, 1995) at 4.
102. For anecdotal evidence, see National Public Radio, Transcript of All Things Considered, 1997 WL 12832095 (Tuesday, August 19, 1997). In the course of exploring why Minneapolis's indigent population grew during the 1980s, the interviewer noted that "Greg Owen [a sociologist with a St. Paul nonprofit organization that surveys shelter residents] stated that newcomers give many reasons for coming to Minnesota - jobs, better schools, safer neighborhood - but he says the safety net is a factor for some." According to Owen, "Frankly it's known outside of Minnesota that Minnesota provides a good shelter system - good housing opportunities for lower income families. And a number of the responses that we get relate to that specifically - 'I thought I could get on my feet more easily here in Minnesota.'" See also Dirk Johnson, Rethinking Welfare: Interstate Migration - a Special Report: Larger Benefits Lure Chicagoans to Wisconsin, NY Times A11 (May 8, 1995). Wisconsin sought to discriminate against newcomers because it feared that it was attracting newcomers from Illinois, where welfare benefits were 40% lower than in Wisconsin. According to one consultant's survey 29% of the migrants cited higher welfare benefits as a reason for their migration to Wisconsin. Rogers Worthington, Study Finds Evidence Some View Wisconsin as a Welfare Magnet, Chicago Trib (May 23, 1995) at 4.
103. For anecdotal evidence, see National Public Radio, Transcript of All Things Considered, 1997 WL 12832095 (Tuesday, August 19, 1997). In the course of exploring why Minneapolis's indigent population grew during the 1980s, the interviewer noted that "Greg Owen [a sociologist with a St. Paul nonprofit organization that surveys shelter residents] stated that newcomers give many reasons for coming to Minnesota - jobs, better schools, safer neighborhood - but he says the safety net is a factor for some." According to Owen, "Frankly it's known outside of Minnesota that Minnesota provides a good shelter system - good housing opportunities for lower income families. And a number of the responses that we get relate to that specifically - 'I thought I could get on my feet more easily here in Minnesota.'" See also Dirk Johnson, Rethinking Welfare: Interstate Migration - a Special Report: Larger Benefits Lure Chicagoans to Wisconsin, NY Times A11 (May 8, 1995). Wisconsin sought to discriminate against newcomers because it feared that it was attracting newcomers from Illinois, where welfare benefits were 40% lower than in Wisconsin. According to one consultant's survey 29% of the migrants cited higher welfare benefits as a reason for their migration to Wisconsin. Rogers Worthington, Study Finds Evidence Some View Wisconsin as a Welfare Magnet, Chicago Trib (May 23, 1995) at 4.
104. See Peterson and Rom, Welfare Magnets 24-49 (1988) (describing Tommy Thompson's successful gubernatorial campaign against Anthony Earle, in which Thompson cited evidence that Wisconsin's generous benefits were attracting indigent from Illinois).
105. F. H. Buckley and Margeret F. Brinig, Welfare Magnets: The Race for the Top, 5 S Ct Econ Rev 141, 159-64 (1997); Craig Olden, Entrusting the States with Welfare Reform, in John Ferejohn and Barry Weingast, eds, The New Federalism: Can the States Be Trusted? 74-76 (1997).
106. F. H. Buckley and Margeret F. Brinig, Welfare Magnets: The Race for the Top, 5 S Ct Econ Rev 141, 159-64 (1997); Craig Olden, Entrusting the States with Welfare Reform, in John Ferejohn and Barry Weingast, eds, The New Federalism: Can the States Be Trusted? 74-76 (1997).
107. Mark C. Rom, Paul E. Peterson, and Kenneth F. Schreve, Jr., Interstate Competition and Welfare Policy, 28 Publius 17, 37 (Summer 1998). Both Buckley/Brinig and Volden respond to Peterson by noting that there are persistent disparities between the welfare payments offered by rich and poor states. They conclude from this fact that there cannot be any race to the bottom (or even toward the middle). But this inference implicitly assumes that there is perfect interjurisdictional competition between the states. In reality, because it is costly for both taxpayers and the indigent to move between states, one would expect that large and rich states would be able to redistribute some level of wealth with impunity.
108. Reeves, 447 US at 446.
109. On the relative immobility of the indigent, see Scott Allard, Revisiting Shapiro: Welfare Magnets and State Residence Requirements in the 1990s, 28 Publius 46-52 (Summer 1998).
110. Vlandis, 412 US at 459-60 ("It is not narrow provincialism for the State to think that each State should carry its own educational burdens").
111. Shapiro, 394 US at 393-94.
112. Id at 633. ("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").
113. 472 US 612, 623 (1985).
114. 457 US 55, 69 (1982).
115. Id at 68.
116. Saul Levmore, Interstate Exploitation and Judicial Intervention, 69 Va L Rev 563 (1983).
117. 505 US 1, 13 (1992).
118. By allowing property owners over 55 to avoid reassessment entirely when they moved to a new house and by allowing all property owners to transfer their homes to their children without enduring a reassessment, California's assessment system became very close to a facial discrimination against newcomers to the state. However, the Court avoided the entire issue simply by noting that Stephanie Nordlinger lacked standing to assert the rights of nonresidents of California. Nordlinger, 505 US at 11.
119. Id.
120. Clayton Gillette suggested to me that the distinction could be justified on the grounds that the state legislature can be trusted to eliminate interlocal, but not interstate, discrimination because state residents (and voters) are burdened by the former but not the latter Perhaps However, one might respond by noting that the Court has consistently rejected this argument. For instance, the Hooper Court rejected Justice Stevens's argument, See Hooper v Bernalillo County, 472 US 612, 627-28 (1985) (Stevens, J, dissenting), that the benefited class of old-timers in New Mexico - veterans resident in the state prior to May 8 1976 - was so small that newcomers could virtually be represented by other old-timers who were not benefited by the state's tax exemption. Stevens's reasoning, of course, assumes that the political power of a group increases with the group's size - an assumption that might seem unreasonable. See Bruce Ackerman, Beyond Carolene Products, 98 Harv L Rev 713 (1985). For other instances in which the Court has refused to allow interlocal discrimination even where state residents were burdened and therefore could represent the interests of nonresidents, see Dean Milk Co. v City of Madison, 340 US 349 (1951); United Bldg Trades Council v Mayor of Camden, 465 US 208 (1984); Brimmer v Redman, 138 US 78, 82 (1891). I tend to be skeptical that the Court could ever really figure out whether the burdened state residents will suffice to represent out-of-state interests. After all, is there ever a case in which burdened out-of-state interests like nonresident prospective home buyers have no proxy - real estate brokers, home builders, lenders, and so on - for their interests? Such "political process" arguments seem entirely too amorphous to bake any legal bread. For similar misgivings about the "virtual-representation-of-outsiders" argument, see Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich L Rev 1091, 1160-67 (1986) (expressing skepticism about "political process" theories that base Dormant Commerce Clause decisions on the need to represent nonvoting outsiders); West-Lynn Creamery, Inc. v Healy, 512 US 186 (1994) (Rehnquist, J, dissenting) ("Analysis of interest group participation in the political process may serve many useful purposes, but serving as a basis for interpreting the Dormant Commerce Clause is not one of them".).
121. Clayton Gillette suggested to me that the distinction could be justified on the grounds that the state legislature can be trusted to eliminate interlocal, but not interstate, discrimination because state residents (and voters) are burdened by the former but not the latter Perhaps However, one might respond by noting that the Court has consistently rejected this argument. For instance, the Hooper Court rejected Justice Stevens's argument, See Hooper v Bernalillo County, 472 US 612, 627-28 (1985) (Stevens, J, dissenting), that the benefited class of old-timers in New Mexico - veterans resident in the state prior to May 8 1976 - was so small that newcomers could virtually be represented by other old-timers who were not benefited by the state's tax exemption. Stevens's reasoning, of course, assumes that the political power of a group increases with the group's size - an assumption that might seem unreasonable. See Bruce Ackerman, Beyond Carolene Products, 98 Harv L Rev 713 (1985). For other instances in which the Court has refused to allow interlocal discrimination even where state residents were burdened and therefore could represent the interests of nonresidents, see Dean Milk Co. v City of Madison, 340 US 349 (1951); United Bldg Trades Council v Mayor of Camden, 465 US 208 (1984); Brimmer v Redman, 138 US 78, 82 (1891). I tend to be skeptical that the Court could ever really figure out whether the burdened state residents will suffice to represent out-of-state interests. After all, is there ever a case in which burdened out-of-state interests like nonresident prospective home buyers have no proxy - real estate brokers, home builders, lenders, and so on - for their interests? Such "political process" arguments seem entirely too amorphous to bake any legal bread. For similar misgivings about the "virtual-representation-of-outsiders" argument, see Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich L Rev 1091, 1160-67 (1986) (expressing skepticism about "political process" theories that base Dormant Commerce Clause decisions on the need to represent nonvoting outsiders); West-Lynn Creamery, Inc. v Healy, 512 US 186 (1994) (Rehnquist, J, dissenting) ("Analysis of interest group participation in the political process may serve many useful purposes, but serving as a basis for interpreting the Dormant Commerce Clause is not one of them".).
122. Clayton Gillette suggested to me that the distinction could be justified on the grounds that the state legislature can be trusted to eliminate interlocal, but not interstate, discrimination because state residents (and voters) are burdened by the former but not the latter Perhaps However, one might respond by noting that the Court has consistently rejected this argument. For instance, the Hooper Court rejected Justice Stevens's argument, See Hooper v Bernalillo County, 472 US 612, 627-28 (1985) (Stevens, J, dissenting), that the benefited class of old-timers in New Mexico - veterans resident in the state prior to May 8 1976 - was so small that newcomers could virtually be represented by other old-timers who were not benefited by the state's tax exemption. Stevens's reasoning, of course, assumes that the political power of a group increases with the group's size - an assumption that might seem unreasonable. See Bruce Ackerman, Beyond Carolene Products, 98 Harv L Rev 713 (1985). For other instances in which the Court has refused to allow interlocal discrimination even where state residents were burdened and therefore could represent the interests of nonresidents, see Dean Milk Co. v City of Madison, 340 US 349 (1951); United Bldg Trades Council v Mayor of Camden, 465 US 208 (1984); Brimmer v Redman, 138 US 78, 82 (1891). I tend to be skeptical that the Court could ever really figure out whether the burdened state residents will suffice to represent out-of-state interests. After all, is there ever a case in which burdened out-of-state interests like nonresident prospective home buyers have no proxy - real estate brokers, home builders, lenders, and so on - for their interests? Such "political process" arguments seem entirely too amorphous to bake any legal bread. For similar misgivings about the "virtual-representation-of-outsiders" argument, see Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich L Rev 1091, 1160-67 (1986) (expressing skepticism about "political process" theories that base Dormant Commerce Clause decisions on the need to represent nonvoting outsiders); West-Lynn Creamery, Inc. v Healy, 512 US 186 (1994) (Rehnquist, J, dissenting) ("Analysis of interest group participation in the political process may serve many useful purposes, but serving as a basis for interpreting the Dormant Commerce Clause is not one of them".).
123. Clayton Gillette suggested to me that the distinction could be justified on the grounds that the state legislature can be trusted to eliminate interlocal, but not interstate, discrimination because state residents (and voters) are burdened by the former but not the latter Perhaps However, one might respond by noting that the Court has consistently rejected this argument. For instance, the Hooper Court rejected Justice Stevens's argument, See Hooper v Bernalillo County, 472 US 612, 627-28 (1985) (Stevens, J, dissenting), that the benefited class of old-timers in New Mexico - veterans resident in the state prior to May 8 1976 - was so small that newcomers could virtually be represented
124. Clayton Gillette suggested to me that the distinction could be justified on the grounds that the state legislature can be trusted to eliminate interlocal, but not interstate, discrimination because state residents (and voters) are burdened by the former but not the latter Perhaps However, one might respond by noting that the Court has consistently rejected this argument. For instance, the Hooper Court rejected Justice Stevens's argument, See Hooper v Bernalillo County, 472 US 612, 627-28 (1985) (Stevens, J, dissenting), that the benefited class of old-timers in New Mexico - veterans resident in the state prior to May 8 1976 - was so small that newcomers could virtually be represented by other old-timers who were not benefited by the state's tax exemption. Stevens's reasoning, of course, assumes that the political power of a group increases with the group's size - an assumption that might seem unreasonable. See Bruce Ackerman, Beyond Carolene Products, 98 Harv L Rev 713 (1985). For other instances in which the Court has refused to allow interlocal discrimination even where state residents were burdened and therefore could represent the interests of nonresidents, see Dean Milk Co. v City of Madison, 340 US 349 (1951); United Bldg Trades Council v Mayor of Camden, 465 US 208 (1984); Brimmer v Redman, 138 US 78, 82 (1891). I tend to be skeptical that the Court could ever really figure out whether the burdened state residents will suffice to represent out-of-state interests. After all, is there ever a case in which burdened out-of-state interests like nonresident prospective home buyers have no proxy - real estate brokers, home builders, lenders, and so on - for their interests? Such "political process" arguments seem entirely too amorphous to bake any legal bread. For similar misgivings about the "virtual-representation-of-outsiders" argument, see Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich L Rev 1091, 1160-67 (1986) (expressing skepticism about "political process" theories that base Dormant Commerce Clause decisions on the need to represent nonvoting outsiders); West-Lynn Creamery, Inc. v Healy, 512 US 186 (1994) (Rehnquist, J, dissenting) ("Analysis of interest group participation in the political process may serve many useful purposes, but serving as a basis for interpreting the Dormant Commerce Clause is not one of them".).
125. Clayton Gillette suggested to me that the distinction could be justified on the grounds that the state legislature can be trusted to eliminate interlocal, but not interstate, discrimination because state residents (and voters) are burdened by the former but not the latter Perhaps However, one might respond by noting that the Court has consistently rejected this argument. For instance, the Hooper Court rejected Justice Stevens's argument, See Hooper v Bernalillo County, 472 US 612, 627-28 (1985) (Stevens, J, dissenting), that the benefited class of old-timers in New Mexico - veterans resident in the state prior to May 8 1976 - was so small that newcomers could virtually be represented by other old-timers who were not benefited by the state's tax exemption. Stevens's reasoning, of course, assumes that the political power of a group increases with the group's size - an assumption that might seem unreasonable. See Bruce Ackerman, Beyond Carolene Products, 98 Harv L Rev 713 (1985). For other instances in which the Court has refused to allow interlocal discrimination even where state residents were burdened and therefore could represent the interests of nonresidents, see Dean Milk Co. v City of Madison, 340 US 349 (1951); United Bldg Trades Council v Mayor of Camden, 465 US 208 (1984); Brimmer v Redman, 138 US 78, 82 (1891). I tend to be skeptical that the Court could ever really figure out whether the burdened state residents will suffice to represent out-of-state interests. After all, is there ever a case in which burdened out-of-state interests like nonresident prospective home buyers have no proxy - real estate brokers, home builders, lenders, and so on - for their interests? Such "political process" arguments seem entirely too amorphous to bake any legal bread. For similar misgivings about the "virtual-representation-of-outsiders" argument, see Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich L Rev 1091, 1160-67 (1986) (expressing skepticism about "political process" theories that base Dormant Commerce Clause decisions on the need to represent nonvoting outsiders); West-Lynn Creamery, Inc. v Healy, 512 US 186 (1994) (Rehnquist, J, dissenting) ("Analysis of interest group participation in the political process may serve many useful purposes, but serving as a basis for interpreting the Dormant Commerce Clause is not one of them".).
126. Clayton Gillette suggested to me that the distinction could be justified on the grounds that the state legislature can be trusted to eliminate interlocal, but not interstate, discrimination because state residents (and voters) are burdened by the former but not the latter Perhaps However, one might respond by noting that the Court has consistently rejected this argument. For instance, the Hooper Court rejected Justice Stevens's argument, See Hooper v Bernalillo County, 472 US 612, 627-28 (1985) (Stevens, J, dissenting), that the benefited class of old-timers in New Mexico - veterans resident in the state prior to May 8 1976 - was so small that newcomers could virtually be represented by other old-timers who were not benefited by the state's tax exemption. Stevens's reasoning, of course, assumes that the political power of a group increases with the group's size - an assumption that might seem unreasonable. See Bruce Ackerman, Beyond Carolene Products, 98 Harv L Rev 713 (1985). For other instances in which the Court has refused to allow interlocal discrimination even where state residents were burdened and therefore could represent the interests of nonresidents, see Dean Milk Co. v City of Madison, 340 US 349 (1951); United Bldg Trades Council v Mayor of Camden, 465 US 208 (1984); Brimmer v Redman, 138 US 78, 82 (1891). I tend to be skeptical that the Court could ever really figure out whether the burdened state residents will suffice to represent out-of-state interests. After all, is there ever a case in which burdened out-of-state interests like nonresident prospective home buyers have no proxy - real estate brokers, home builders, lenders, and so on - for their interests? Such "political process" arguments seem entirely too amorphous to bake any legal bread. For similar misgivings about the "virtual-representation-of-outsiders" argument, see Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich L Rev 1091, 1160-67 (1986) (expressing skepticism about "political process" theories that base Dormant Commerce Clause decisions on the need to represent nonvoting outsiders); West-Lynn Creamery, Inc. v Healy, 512 US 186 (1994) (Rehnquist, J, dissenting) ("Analysis of interest group participation in the political process may serve many useful purposes, but serving as a basis for interpreting the Dormant Commerce Clause is not one of them".).
127. Certainly, courts routinely uphold single-family residential zones on the assumption that cohesive household units will stick around longer than more fortuitous combinations of people. See, e.g., City of Des Plaines v Trottner, 216 NE2d 116, 119-20 (Ill 1966) ("In terms of permissible zoning objectives, a group of persons bound together only by their common desire to operate a single housekeeping unit, might be thought to have a transient quality that would affect adversely the stability of the neighborhood, and so depreciate the value of other property").
128. Levmore, 69 Va L Rev at 570-75 (cited in note 97).
129. For some studies suggesting the difficulty of determining whether local governments exploit monopolistic control over unique types of land with their zoning ordinances, see James A. Thorson, An Examination of the Monopoly Zoning Hypothesis, 72 Land Econ 43 (1996); William Fischel, Zoning and the Exercise of Monopoly Power: A Reevaluation, 8 J Urban Econ 283 (1980). Indeed, Professor Levmore's attack on Zobel, note 97 supra at 586-89, seems to have overlooked the possibility that Alaska's Permanent Fund, financed entirely by taxes and royalties paid by oil companies extracting oil from Alaskan territory, might constitute exploitation of nonresidents through state monopolistic control over oil reserves in the Prudhoe Bay area. In effect, the state was providing benefits to old-timers by taxing oil consumers and/or shareholders of oil companies throughout the nation.
130. For some studies suggesting the difficulty of determining whether local governments exploit monopolistic control over unique types of land with their zoning ordinances, see James A. Thorson, An Examination of the Monopoly Zoning Hypothesis, 72 Land Econ 43 (1996); William Fischel, Zoning and the Exercise of Monopoly Power: A Reevaluation, 8 J Urban Econ 283 (1980). Indeed, Professor Levmore's attack on Zobel, note 97 supra at 586-89, seems to have overlooked the possibility that Alaska's Permanent Fund, financed entirely by taxes and royalties paid by oil companies extracting oil from Alaskan territory, might constitute exploitation of nonresidents through state monopolistic control over oil reserves in the Prudhoe Bay area. In effect, the state was providing benefits to old-timers by taxing oil consumers and/or shareholders of oil companies throughout the nation.
131. Mark Pauly, Income Redistribution as a Local Public Good, 2 J Pub Econ 35 (1973).
132. 314 US 160 (1941).
133. 14 Car 2, ch 12 (1662) (Eng.).
134. Michael B. Katz, In The Shadow of the Poor House: A Social History of Welfare in America 21 (1986).
135. William P Quigley, Reluctant Charity: Poor Laws in the Original 13 States, 31 U Richmond L Rev 111, 142-43 (1997).
136. For a quick summary of various removal statutes, see William P. Quigley, id at 115; William P. Quigley, Work or Starve: Regulation of the Poor in Colonial America, 31 USF L Rev 35, 42-81 (1996) (describing provisions for expelling poor in colonial laws). For a more detailed account of the practice of "warning out" the "unsettled" poor, see Hendrik Hartog, The Public Law of a County Court: Judicial Government in 18th Century Massachusetts, 20 Am J Legal Hist 282 (1976).
137. For a quick summary of various removal statutes, see William P. Quigley, id at 115; William P. Quigley, Work or Starve: Regulation of the Poor in Colonial America, 31 USF L Rev 35, 42-81 (1996) (describing provisions for expelling poor in colonial laws). For a more detailed account of the practice of "warning out" the "unsettled" poor, see Hendrik Hartog, The Public Law of a County Court: Judicial Government in 18th Century Massachusetts, 20 Am J Legal Hist 282 (1976).
138. For a quick summary of various removal statutes, see William P. Quigley, id at 115; William P. Quigley, Work or Starve: Regulation of the Poor in Colonial America, 31 USF L Rev 35, 42-81 (1996) (describing provisions for expelling poor in colonial laws). For a more detailed account of the practice of "warning out" the "unsettled" poor, see Hendrik Hartog, The Public Law of a County Court: Judicial Government in 18th Century Massachusetts, 20 Am J Legal Hist 282 (1976).
139. Mayor of New York v Miln, 11 Peters 102, 142-43 (1837).
140. 48 US (7 How) 283 (1849).
141. Passenger Cases, 48 US at 426 (Wayne, J, concurring). According to Justice Wayne, "[t]he states have the right to turn off paupers, vagabonds, and fugitives from justice" and Congress lacked any power to interfere with these state powers. Justice Wayne stated categorically that paupers and vagabonds "have no rights of national intercourse; no one has the right to transport them . . . from where they are to any other place; and their only rights . . . are such as the law gives to all men who have not altogether forfeited its protection." Id. Justice Grier repeated Miln's language about paupers being a "moral pestilence," id at 457, and Justice Catron concurred in Justice Grier's opinion. Justice Taney, whose dissent was cited by Shapiro, agreed wholeheartedly that states have the power to exclude paupers from their borders: he went even further, asserting that states must have discretion to decide "from what persons or description of persons the danger of pauperism is to be apprehended." Id at 469. In short, the notion that The Passenger Cases supports the right of indigent persons to cross state lines is wholly fanciful.
142. See William R. Brock, Welfare, Democracy, and the New Deal 167 (1988).
143. Paul T. Ringenbach, Tramps and Reformers, 1813-1916: The Discovery of Unemployment in New York 3-4 (1973).
144. In The Passenger Cases, both Justices Wayne and Catron compare paupers to convicted criminals.
145. See William P. Quigley, Rumblings of Reform: Northern Poor Relief Legislation in Antebellum America 26 Cap U L Rev 739, 756-63 (1997); Katz (cited in note 108) at 3-35; June Axinn and Herman Levin, Social Welfare: A History of the American Response to Need 45-53 (3d ed 1992).
146. See William P. Quigley, Rumblings of Reform: Northern Poor Relief Legislation in Antebellum America 26 Cap U L Rev 739, 756-63 (1997); Katz (cited in note 108) at 3-35; June Axinn and Herman Levin, Social Welfare: A History of the American Response to Need 45-53 (3d ed 1992).
147. Katz (cited in note 108) at 19-20.
148. Id at 95, 153.
149. For descriptions of how "tramps" were regarded as the epitome of the undeserving poor, see Eric Monkkonen, Walking to Work: Tramps in America, 1790-1935 (U Nebraska Press, 1984); Paul T. Ringenbach, Tramps and Reformers, 1873-1916: The Discovery of Unemployment in New York (Greenwood Press, 1973). For an account of how sixteenth- and seventeenth-century English opinion branded the vagabond poor as a special threat to the social order, see A. L. Beier, Masterless Men: The Vagrancy Problem in England, 1560-1640 (1985). As one writer graphically put it, the mobile poor were like "rotten legs and arms that drop from the body" Don Herzog, Happy Slaves: A Critique of Consent Theory 49 (1989).
150. For descriptions of how "tramps" were regarded as the epitome of the undeserving poor, see Eric Monkkonen, Walking to Work: Tramps in America, 1790-1935 (U Nebraska Press, 1984); Paul T. Ringenbach, Tramps and Reformers, 1873-1916: The Discovery of Unemployment in New York (Greenwood Press, 1973). For an account of how sixteenth- and seventeenth-century English opinion branded the vagabond poor as a special threat to the social order, see A. L. Beier, Masterless Men: The Vagrancy Problem in England, 1560-1640 (1985). As one writer graphically put it, the mobile poor were like "rotten legs and arms that drop from the body" Don Herzog, Happy Slaves: A Critique of Consent Theory 49 (1989).
151. For descriptions of how "tramps" were regarded as the epitome of the undeserving poor, see Eric Monkkonen, Walking to Work: Tramps in America, 1790-1935 (U Nebraska Press, 1984); Paul T. Ringenbach, Tramps and Reformers, 1873-1916: The Discovery of Unemployment in New York (Greenwood Press, 1973). For an account of how sixteenth- and seventeenth-century English opinion branded the vagabond poor as a special threat to the social order, see A. L. Beier, Masterless Men: The Vagrancy Problem in England, 1560-1640 (1985). As one writer graphically put it, the mobile poor were like "rotten legs and arms that drop from the body" Don Herzog, Happy Slaves: A Critique of Consent Theory 49 (1989).
152. For descriptions of how "tramps" were regarded as the epitome of the undeserving poor, see Eric Monkkonen, Walking to Work: Tramps in America, 1790-1935 (U Nebraska Press, 1984); Paul T. Ringenbach, Tramps and Reformers, 1873-1916: The Discovery of Unemployment in New York (Greenwood Press, 1973). For an account of how sixteenth- and seventeenth-century English opinion branded the vagabond poor as a special threat to the social order, see A. L. Beier, Masterless Men: The Vagrancy Problem in England, 1560-1640 (1985). As one writer graphically put it, the mobile poor were like "rotten legs and arms that drop from the body" Don Herzog, Happy Slaves: A Critique of Consent Theory 49 (1989).
153. The view that propertyless persons were likely to be manipulated by wealthy persons was a standard trope of republican ideology. For an account of property owners' dread of riots by the propertyless in colonial America, see Gary Nash, Social Change and the Growth of Prerevolutionary Urban Radicalism, in Race, Class, and Politics: Essays on American Colonial and Revolutionary Society 211-42 (1986). The property owners' dread of rioting mobs composed of propertyless and masterless men had not abated by the late nineteenth century, as the U.S. government's treatment of Coxey's Army attests.
154. Under the Ordinance and Statute of Laborers and the Statute of Artificers, those who lacked land sufficient to support themselves were forced to enter into long-term contracts of labor - typically for terms of at least a year - that could specifically be enforced against them if they ran away before the end of the term. Moreover, such landless laborers were barred from traveling to new employers without a "testimonial" stating that they had completed their past labor contract. See Robert J. Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350-1870 at 16-37 (1991).
155. Id at 50-52. Servants who had entered into labor contracts in return for payment of their passage across the Atlantic, however, could be held to labor for the duration of their agreement well into the nineteenth century. Id.
156. For an account of how industrialists and reformers both blamed a "tramp army" for labor disturbances in the post-Civil War United States, see Ringenbach, Tramps and Refomers (cited in note 115) at 14.
157. Gary Nash, Social Change and Prerevolutionary Urban Radicalism, in Gary Nash, Race, Class, and Politics: Essays on American Colonial and Revolutionary Society 217 (1986).
158. For an artfully ironic anthropological description of this fear of strangers and travelers, see chs I and II of Elsie Clew Persons, Fear and Conventionality 1-18 (Putnam's, 1914) (reprinted by U of Chicago Press, 1997).
159. Mark Pauly, Income Redistribution as a Local Public Good, 2 J Pub Econ 35 (1973).
160. Under the New Jersey Fair Housing Act of 1985, suburban communities tend to be eager to satisfy their obligations to provide a fair share of the regional need for affordable housing by providing housmg to "indigenous" poor - namely, poor who already live within the suburban community. For a decision rejecting a suburb's attempt to satisfy its Mt. Laurel obligation by housing "indigenous" poor, see In re Township of Warren, 622 A2d 1257 (NJ 1993). This suburban eagerness may have an element of familial regard: the "indigenous" poor may often be the elderly parents or impecunious children of the local taxpayers. See David L. Kirp, John P. Dwyer, and Larry Rosenthal, Our Town: Race, Housing, and the Soul of Suburbia 187-88 (1995) (noting suburbs' desire to satisfy their obligation to provide affordable housing by building housing for "safe seniors" and their own grown-up children).
161. Under the New Jersey Fair Housing Act of 1985, suburban communities tend to be eager to satisfy their obligations to provide a fair share of the regional need for affordable housing by providing housmg to "indigenous" poor - namely, poor who already live within the suburban community. For a decision rejecting a suburb's attempt to satisfy its Mt. Laurel obligation by housing "indigenous" poor, see In re Township of Warren, 622 A2d 1257 (NJ 1993). This suburban eagerness may have an element of familial regard: the "indigenous" poor may often be the elderly parents or impecunious children of the local taxpayers. See David L. Kirp, John P. Dwyer, and Larry Rosenthal, Our Town: Race, Housing, and the Soul of Suburbia 187-88 (1995) (noting suburbs' desire to satisfy their obligation to provide affordable housing by building housing for "safe seniors" and their own grown-up children).
162. 314 US 160 (1941).
163. Id at 168.
164. See Prigg v Pennsylvania, 41 US (16 Pet) 539, 625 (1842) (per Story, J) (state may use police power to expel runaway slaves to prevent their "depredations and evil example, as they certainly may do in cases of idlers, vagabonds and paupers").
165. Shapiro, 394 US at 628 n 7.
166. Edwards, 314 US at 168.
167. 347 US 483 (1954).
168. 377 US 533 (1964).
169. 301 US 1 (1937).
170. Edwards, 314 US at 168.
171. For an analysis of such arguments, Frank Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv L Rev 7, 22-33 (1969).
172. Edwards, 314 US at 184.
173. See e.g., Carrington v Rash, 380 US 89, 94 (1965); Dunn v Blumstein, 405 US 330, 356 (1972) . I am indebted to Professor Laurence Tribe for this argument from Carrington and Dunn, which he insightfully elaborates in a forthcoming article, Saenz Sans Prophecy: Does the Privileges and Immunities Revival Portend the Future - or Reveal the Structure of the Present? 113 Harv L Rev 110 (1999). Although I read the article in page proofs shortly before entering the final revisions on my own article, I obtained the article too soon before publication of my own effort to discuss Professor Tribe's argument with the thoroughness that it deserves.
174. See e.g., Carrington v Rash, 380 US 89, 94 (1965); Dunn v Blumstein, 405 US 330, 356 (1972) . I am indebted to Professor Laurence Tribe for this argument from Carrington and Dunn, which he insightfully elaborates in a forthcoming article, Saenz Sans Prophecy: Does the Privileges and Immunities Revival Portend the Future - or Reveal the Structure of the Present? 113 Harv L Rev 110 (1999). Although I read the article in page proofs shortly before entering the final revisions on my own article, I obtained the article too soon before publication of my own effort to discuss Professor Tribe's argument with the thoroughness that it deserves.
175. See e.g., Carrington v Rash, 380 US 89, 94 (1965); Dunn v Blumstein, 405 US 330, 356 (1972) . I am indebted to Professor Laurence Tribe for this argument from Carrington and Dunn, which he insightfully elaborates in a forthcoming article, Saenz Sans Prophecy: Does the Privileges and Immunities Revival Portend the Future - or Reveal the Structure of the Present? 113 Harv L Rev 110 (1999). Although I read the article in page proofs shortly before entering the final revisions on my own article, I obtained the article too soon before publication of my own effort to discuss Professor Tribe's argument with the thoroughness that it deserves.
176. Dunn, 405 US at 356.
177. See Washington v Davis, 426 US 229 (1976).
178. For an acute analysis of four different reasons that a community might have for excluding the indigent, see William T. Bogart, "What Big Teeth You Have!" Identifying the Motivations for Exclusionary Zoning, 30 Urban Stud 1669 (1993).
179. Hamilton, 12 Urban Stud 205 (cited in note 83).
180. See Shapiro, 394 US at 632-33 ("Appellants' reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens").
181. For instance, the maximum benefit provided by fifteen states would not pay for half of the fair market rent of even a one-bedroom apartment in California. Roe, 966 F Supp at 981 n 10.
182. William Cohen, Congressional Power to Validate Unconstitutional State Laws: A Forgotten Solution to an Old Enigma, 35 Stan L Rev 387, 417 (1983).
183. See Akhil Amar, Lost Clause, The New Republic (June 14, 1999).
184. See, e.g., Lyng v Castillo, 477 US 635 (1986).
185. Compare Frank Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv L Rev 7 (1969).
186. For an intelligent exposition of this duty to deliberate on constitutional issues, see Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 Stan L Rev 586 (1975).
187. HR No 104-651, reprinted in 1996 US Code, Cong, & Admin News 2183, 2396.
188. See Proceedings and Debates of the 102d Cong, 2d Sess (April 10, 1992), 138 Cong Rec S5413, S5474 (remarks by Senator D'Amato) (observing that "there is a distinction that can be made and should be made" between facts of Shapiro and lesser reduction of welfare benefits).
189. See remarks of Senator Domenici, id at S5474-75.
190. A classic defense of this position is Hans Linde, Due Process of Lawmaking, 55 Neb L Rev 197 (1970).