Right to Travel (Update)

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The Supreme Court has invalidated, often by the narrowest of margins, laws that deny to new state citizens benefits extended to long-term citizens. Until recently, the Court has applied puzzling and conflicting rationales for doing so.

Two cases dealt with veterans' preferences. Hooper v. Bernalillo County Assessor (1985) struck down a New Mexico law that granted a tax exemption to veterans of the vietnam war only if they resided in the state before May 8, 1976. Chief Justice warren e. burger's opinion followed the same path as his opinion in Zobel v. Williams (1982), concluding that the distinction between eligible and noneligible veterans violated equal protection of the laws because "the statutory scheme cannot pass even the minimum rationality test." The dissent by Justice john paul stevens argued that the state's need to budget for the future provided sufficient justification to pass the rational basis test. The same 6–3 division split the Justices in the other veterans' benefit case one year later, but attorney general of new york v. sotolÓpez (1986) produced different doctrinal arguments. The Court struck down a New York law that limited a veterans' civil service preference to veterans who resided in New York when they entered military service. Burger and Justice byron r. white followed Hooper, arguing that the denial of the veterans' preference to new residents failed the equal protection rational basis standard. The plurality opinion of Justice william j. brennan, jr. , however, relied on a "penalty" rationale, concluding that "even temporary deprivations of very important benefits and rights can operate to penalize migration."

Another case dealing with discrimination against new citizens involved a complicated Vermont statute providing an exemption from payment of use taxes for automobiles purchased in other states. The exemption was available only for persons who were Vermont residents when they purchased the automobiles. White's opinion for the court in williams v. vermont (1985) held that the different treatment of new and old Vermont residents failed the rational basis standard.

The doctrinal confusion was tested, and resolved, in a case involving state limits on welfare benefits awarded to new state citizens. shapiro v. thompson (1969) had established that states cannot deny all welfare benefits to recent arrivals. Instead, a number of states limited new citizens to the welfare benefits they would have received in their states of origin. The Court in saenz v. roe (1999) rejected the argument that these limitations, unlike the total denial of welfare benefits, were reasonable and neither deterred nor penalized the right of interstate migration. Section 1 of the fourteenth amendment provides that United States citizens become citizens of a state the moment they establish residence there. Whether travel was actually deterred was "beside the point" because the right to "travel" involved in this case was "the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State." Giving new citizens lesser benefits treated them as less than full state citizens.

In some cases, state laws imposing a waiting period might be justified as a reasonable test of bona fide residence. In sosna v. iowa (1975), the Court sustained a requirement of one year's residence before filing for divorce. In vlandis v. kline (1973), the Court upheld a requirement that new residents pay out-of-state tuition in public universities during their first year. In Saenz, however, new arrivals were not awarded smaller benefits because there was doubt that they were bona fide residents.

The equal citizenship rationale of the Saenz case is new, but it is consistent with the outcome in all of the previous cases. It invalidates all laws giving new arrivals smaller state benefits, except those laws reasonably designed to assure bona fide state residence.

William Cohen


Cohen, William 1994 Discrimination Against New State Citizens: An Update. Constitutional Commentary 11:73–79.