|Dandridge v. Williams
297 F.Supp. 450, reversed.
[ Stewart ]
[ Black ]
[ Harlan ]
[ Douglas ]
[ Marshall ]
Dandridge v. Williams
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
MR. JUSTICE MARSHALL, whom MR. JUSTICE BRENNAN joins, dissenting.
For the reasons stated by MR. JUSTICE DOUGLAS, to which I add some comments of my own, I believe that the Court has erroneously concluded that Maryland's maximum grant regulation is consistent with the federal statute. In my view, that regulation is fundamentally in conflict with the basic structure and purposes of the Social Security Act.
More important in the long run than this misreading of a federal statute, however, is the Court's emasculation of the Equal Protection Clause as a constitutional principle applicable to the area of social welfare administration. The Court holds today that, regardless of the arbitrariness of a classification, it must be sustained if any state goal can be imagined that is arguably furthered by its effects. This is so even though the classification's underinclusiveness or overinclusiveness clearly demonstrates that its actual basis is something other than that asserted by the State, and even though the relationship between the classification and the state interests which it purports to serve is so tenuous that it could not seriously be maintained that the classification tends to accomplish the ascribed goals.
The Court recognizes, as it must, that this case involves "the most basic economic needs of impoverished human beings," and that there is therefore a "dramatically real factual difference" between the instant case and those decisions upon which the Court relies. The acknowledgment that these dramatic differences exist is [p509] a candid recognition that the Court's decision today is wholly without precedent. I cannot subscribe to the Court's sweeping refusal to accord the Equal Protection Clause any role in this entire area of the law, and I therefore dissent from both parts of the Court's decision.
At the outset, it should be emphasized exactly what is involved in determining whether this maximum grant regulation is consistent with and valid under the federal law. In administering its AFDC program, Maryland has established its own standards of need, and they are not under challenge in this litigation. Indeed, the District Court specifically refused to require additional appropriations on the part of the State or to permit appellees to recover a monetary judgment against the State. At the same time, however, there is no contention, nor could there be any, that the maximum grant regulation is in any manner related to calculation of need. [n1] Rather, it arbitrarily cuts across state-defined standards of need to deny any additional assistance with respect to the fifth or any succeeding child in a family. [n2] In short, the regulation represents no less than the refusal of the State to give any aid whatsoever for the support of certain dependent children who meet the standards of need that the State itself has established. [p510]
Since its inception in the Social Security Act of 1935, the focus of the federal AFDC program has been to provide benefits for the support of dependent children of needy families with a view toward maintaining and strengthening family life within the family unit. As succinctly stated by the Senate Committee on Finance, "[t]he objective of the aid to dependent children program is to provide cash assistance for needy children in their own homes." [n3] In meeting these objectives, moreover, Congress has provided the outlines that the AFDC plan is to follow if a State should choose to participate in the federal program. The maximum grant regulation, however, does not fall within these outlines or accord with the purposes of the Act. And the Court, by approving it, allows for a complete departure from the congressional intent.
The phrase "aid to families with dependent children," from which the AFDC program derives its name, appears in 402(a)(10) of the Act, 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV), and is defined in 42 U.S.C. § 606(b) (1964 ed., Supp. IV) as, inter alia, money payments "with respect to . . . dependent children." (Emphasis added.) Moreover, the term "dependent child" is also extensively defined in the Act. See 42 U.S.C. § 606(a) (1964 ed., Supp. IV). Nowhere in the Act is there any sanction or authority for the State to alter those definitions -- that is, to select arbitrarily from among the [p511] class of needy dependent children those whom it will aid. Yet the clear effect of the maximum grant regulation is to do just that, for the regulation creates, in effect, a class of otherwise eligible dependent children with respect to whom no assistance is granted.
It was to disapprove just such an arbitrary device to limit AFDC payments that Congress amended § 402(a)(10) in 1950 to provide that aid "shall be furnished with reasonable promptness to all eligible individuals." (Emphasis added.) Surely, as my Brother DOUGLAS demonstrates, this statutory language means at least that the State must take into account the needs of, and provide aid with respect to, all needy dependent children. Indeed, that was our assessment of the congressional design embodied in the AFDC program in King v. Smith, 392 U.S. 309, 329-330, 333 (1968).
The opinion of the Court attempts to avoid this reading of the statutory mandate by the conclusion that parents will see that all the children in a large family share in whatever resources are available so that all children "do receive some aid." And "[s]o long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated." The Court also views sympathetically the State's contention that the "all eligible individuals" clause was designed solely to prevent discrimination against new applicants for AFDC benefits. I am unpersuaded, however, by the view that Congress simultaneously prohibited discrimination against one class of dependent children -- those in families not presently receiving benefits -- and at the same time sanctioned discrimination against another class -- those children in large families. Furthermore, the Court's interpretation would permit a State to impose a drastically reduced maximum grant limitation -- or, indeed, a uniform payment of, say, $25 per family per month -- as long as all families were subject to the rule. [p512] Thus, merely by purporting to compute standards of need and granting some benefits to all eligible families, the State would comply with the federal law -- in spite of the fact that the needs of no or very few dependent children would thereby be taken into account in the actual assistance granted. I cannot agree that Congress intended that a State should be entitled to participate in the federally funded AFDC program under such circumstances.
Moreover, the practical consequences of the maximum grant regulation in question here confirm my view that it is invalid. Under the complicated formula for determining the extent of federal support for the AFDC program in the various States, the federal subsidy is based upon "the total number of recipients of aid to families with dependent children." 42 U.S.C. § 603(a) (1964 ed., Supp. IV). "Recipients" is defined in the same provision to include both dependent children and the eligible relative or relatives with whom they live. There is, however, no limitation upon the number of recipients per family unit for whom the federal subsidy is paid to the States. Thus, when a maximum family grant regulation is in effect, the State continues to receive a federal subsidy for each and every dependent child even though the State passes none of this subsidy on to the large families for the use of the additional dependent children.
Specifically, in Maryland, the record in this case indicates that the State spends an average of almost $40 per recipient per month. Under the federal matching formula, federal funds provide $22 of the first $32 per recipient, with anything above $32 being supplied by the State. [n4] However, the Federal Government provides a [p513] maximum of $22 for every dependent child, although none of that amount is received by the needy family in the case of the fifth or sixth and succeeding children. The effect is to shift a greater proportion of the support of large families from the State to the Federal Government as the family size increases. Indeed, if the size of the family should exceed 11, the State would succeed in transferring the entire support burden for the family to the Federal Government, and even make a "profit" in the sense that it would receive more from the Federal Government with respect to the family than the $250 maximum that is actually paid to that family. It is impossible to conclude that Congress intended so incongruous a result. On the contrary, when Congress undertook to subsidize payments on behalf of each recipient -- including each dependent child -- it seems clear that Congress intended each needy dependent child to receive the use and benefit of at least the incremental amount of the federal subsidy paid on his account.
A second effect of the maximum family grant regulation further demonstrates its inconsistency with the federal program. As administered in Maryland, the regulation serves to provide a strong economic incentive to the disintegration of large families. This is so because a family subject to the maximum regulation can, merely by placing the ineligible children in the homes of other relatives, receive additional monthly payments for the support of these additional dependent children. [n5] When families are receiving support that is concededly far below their bare minimum subsistence needs, the economic incentive that the maximum grant regulation provides to divide up large families can hardly be viewed as speculative or negligible. The opinion of this Court [p514] does not even dispute this effect. [n6] The Court answers by saying that the family relationship "may be attenuated, but it cannot be destroyed." Yet it was just this kind of attenuation that, as the legislative history conclusively demonstrates, [n7] Congress was concerned with eliminating in establishing the AFDC program. The Court's rationale takes a long step backward toward the time when persons were dependent upon the charity of their relative -- the very situation meant to be remedied by AFDC. [p515]
Despite its denial of the principle that payments should be made with regard to all eligible individuals and its conflict with the basic purposes of the Act, the Maryland regulation is nevertheless found by the Court to be consistent with the federal law because the existence of such regulations has been recognized by Congress. To bolster this view, the Court argues that the same conclusion has been reached by the department charged with administering the Act. On neither score is the Court convincing.
With regard to the position of the Secretary of HEW, about all that can be said with confidence is that we do not know his views on the validity of family maximum regulations within the federal structure. [n8] The reason is simple -- he has not been asked. Thus, contrary to our admonition given today to the district courts, in considering cases in this area, that, whenever possible, they "should obtain the views of HEW in those cases where it has not set forth its views," Rosado v. Wyman, ante at 407, the Government was not invited to file a brief in this case. Perhaps the reason is that this Court is fully versed in the complexities of the federal AFDC program. I am dubious, however, when [p516] the Court explicitly relies on the failure of the Secretary to disapprove the Maryland welfare scheme. For if anything at all is completely clear in this area of the law, it is that the failure of HEW to cut off funds from a state program has no meaning at all. See Rosado v. Wyman, supra, at 426 (DOUGLAS, J., concurring).
Finally, the Court tells us that Congress has said that the Act permits maximum grant regulations. If it had, this part of the case would he obvious; but, of course, it has not. There is no indication Congress has focused on the family maximum, as opposed to individual or other maximums or combinations of such limiting devices. [n9] And, to the extent that it could be said to have done so, as my Brother DOUGLAS fully demonstrates, it was in the context of disapproving all maximums, and ameliorating the harshness of their effects. See also Rosado v. Wyman, supra, at 413-414. These slender threads of legislative comment simply cannot be woven into a conclusion of legislative sanction. Cf. Shapiro v. Thompson, 394 U.S. 618, 638-640 (1969). Furthermore, [p517] it is fundamental that, in construing legislation,
we must not he guided by a single sentence or member of a sentence, but [should] look to the provisions of the whole law, and to its object and policy.
Richards v. United States, 369 U.S. 1, 11 (1962). We concluded in King v. Smith, supra, after an extensive review of the AFDC program, that Congress "intended to provide programs for the economic security and protection of all children," and did not intend "arbitrarily to leave one class of destitute children entirely without meaningful protection." 392 U.S. at 330. (Emphasis in original.) That reasoning is likewise applicable to the instant case, in which the maximum grant regulation excludes consideration of the needs of a certain class of dependent children in large families. It is apparent, therefore, that Maryland's maximum grant regulation is not consistent with the Social Security Act, and hence appellees were entitled to the injunction they obtained against its operation.
Having decided that the injunction issued by the District Court was proper as a matter of statutory construction, I would affirm on that ground alone. However, the majority has, of necessity, passed on the constitutional issues. I believe that, in overruling the decision of this and every other district court that has passed on the validity of the maximum grant device, [n10] the Court both [p518] reaches the wrong result and lays down an insupportable test for determining whether a State has denied its citizens the equal protection of the laws.
The Maryland AFDC program, in its basic structure, operates uniformly with regard to all needy children by taking into account the basic subsistence needs of all eligible individuals in the formulation of the standards of need for families of various sizes. However, superimposed upon this uniform system is the maximum grant regulation, the operative effect of which is to create two classes of needy children and two classes of eligible families: those small families and their members who receive payments to cover their subsistence needs and those large families who do not. [n11]
This classification process effected by the maximum grant regulation produces a basic denial of equal treatment. Persons who are concededly similarly situated (dependent children and their families), are not afforded equal, or even approximately equal, treatment under the maximum grant regulation. Subsistence benefits are paid with respect to some needy dependent children; nothing is paid with respect to others. Some needy families receive full subsistence assistance as calculated by the State; the assistance paid to other families is grossly below their similarly calculated needs. [p519]
Yet, as a general principle, individuals should not be afforded different treatment by the State unless there is a relevant distinction between them, and "a statutory discrimination must be based on differences that are reasonably related to the purposes of the Act in which it is found." Morey v. Doud, 354 U.S. 457, 465 (1957). See Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U.S. 150, 155 (1897). Consequently, the State may not, in the provision of important services or the distribution of governmental payments, supply benefits to some individuals while denying them to others who are similarly situated. See, e.g., Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964).
In the instant case, the only distinction between those children with respect to whom assistance is granted and those children who are denied such assistance is the size of the family into which the child permits himself to be born. The class of individuals with respect to whom payments are actually made (the first four or five eligible dependent children in a family), is grossly underinclusive in terms of the class that the AFDC program was designed to assist, namely, all needy dependent children. Such underinclusiveness manifests "a prima facie violation of the equal protection requirement of reasonable classification," [n12] compelling the State to come forward with a persuasive justification for the classification.
The Court never undertakes to inquire for such a justification; rather, it avoids the task by focusing upon the abstract dichotomy between two different approaches to equal protection problems that have been utilized by this Court.
Under the so-called "traditional test," a classification is said to be permissible under the Equal Protection Clause unless it is "without any reasonable basis." [p520] Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911). [n13] On the other hand, if the classification affects a "fundamental right," then the state interest in perpetuating the classification must be "compelling" in order to be sustained. See, e.g., Shapiro v. Thompson, supra; Harper v. Board of Elections, 383 U.S. 663 (1966); McLaughlin v. Florida, 379 U.S. 184 (1964).
This case simply defies easy characterization in terms of one or the other of these "tests." The cases relied on by the Court, in which a "mere rationality" test was actually used, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955), are most accurately described as involving the application of equal protection reasoning to the regulation of business interests. The extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may, in many instances, be ascribed to a healthy revulsion from the Court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls. This case, involving the literally vital interests of a powerless minority -- poor families without breadwinners -- is far removed from the area of business regulation, as the Court concedes. Why then is the standard used in those cases imposed here? We are told no more than that this case falls in "the area of economics and social welfare," with the implication that, from there, the answer is obvious.
In my view, equal protection analysis of this case is not appreciably advanced by the a priori definition of a "right," fundamental or otherwise. [n14] Rather, concentration [p521] must be placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefit that they do not receive, and the asserted state interests in support of the classification. As we said only recently,
In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.
It is the individual interests here at stake that, as the Court concedes, most clearly distinguish this case from the "business regulation" equal protection cases. AFDC support to needy dependent children provides the stuff that sustains those children's lives: food, clothing, shelter. [n16] And this Court has already recognized several times that, when a benefit, even a "gratuitous" benefit, is necessary to sustain life, stricter constitutional standards, both procedural [n17] and substantive, [n18] are applied to the deprivation of that benefit. [p523]
Nor is the distinction upon which the deprivation is here based -- the distinction between large and small families -- one that readily commends itself as a basis for determining which children are to have support approximating subsistence and which are not. Indeed, governmental discrimination between children on the basis of a factor over which they have no control -- the number of their brothers and sisters -- bears some resemblance to the classification between legitimate and illegitimate children which we condemned as a violation of the Equal Protection Clause in Levy v. Louisiana, 391 U.S. 68 (1968).
The asserted state interests in the maintenance of the maximum grant regulation, on the other hand, are hardly clear. In the early stages of this litigation, the State attempted to rationalize the maximum grant regulation on the theory that it was merely a device to conserve state funds, in the language of the motion to dismiss, "a legitimate way of allocating the State's limited resources available for AFDC assistance." Indeed, the initial opinion of the District Court concluded that the sole reason for the regulation, as revealed by the record, was
to fit the total needs of the State's dependent children, as measured by the State's standards of their subsistence requirements, into an inadequate State appropriation.
297 F.Supp. at 458. The District Court quite properly rejected this asserted justification, for [p524] "[t]he saving of welfare costs cannot justify an otherwise invidious classification." Shapiro v. Thompson, supra, at 633. See Goldberg v. Kelly, ante, at 266.
In post-trial proceedings in the District Court, and in briefs to this court, the State apparently abandoned reliance on the fiscal justification. In its place, there have now appeared several different rationales for the maximum grant regulation, prominent among them being those relied upon by the majority -- the notions that imposition of the maximum serves as an incentive to welfare recipients to find and maintain employment, and provides a semblance of equality with persons earning a minimum wage.
With regard to the latter, Maryland has urged that the maximum grant regulation serves to maintain a rough equality between wage earning families and AFDC families, thereby increasing the political support for -- or perhaps reducing the opposition to -- the AFDC program. It is questionable whether the Court really relies on this ground, especially when, in many States, the prescribed family maximum bears no such relation to the minimum wage. [n19] But the Court does not indicate that a different result might obtain in other cases. Indeed, whether elimination of the maximum would produce welfare incomes out of line with other incomes in Maryland is itself open to question on this record. [n20] [p525] It is true that government in the United States, unlike certain other countries, has not chosen to make public aid available to assist families generally in raising their children. Rather, in this case, Maryland, with the encouragement and assistance of the Federal Government, has elected to provide assistance at a subsistence level for those in particular need -- the aged, the blind, the infirm, and the unemployed and unemployable, and their children. The only question presented here is whether, having once undertaken such a program, the State may arbitrarily select from among the concededly eligible those to whom it will provide benefits. And it is too late to argue that political expediency will sustain discrimination not otherwise supportable. Cf. Cooper v. Aaron, 358 U.S. 1 (1958).
Vital to the employment incentive basis found by the Court to sustain the regulation is, of course, the supposition that an appreciable number of AFDC recipients are, in fact, employable. For it is perfectly obvious that limitations upon assistance cannot reasonably operate a a work incentive with regard to those who cannot work or who cannot be expected to work. In this connection, Maryland candidly notes that "only a very small percentage of the total universe of welfare recipients are employable." The State, however, urges us to ignore the "total universe," and to concentrate attention instead upon the heads of AFDC families. Yet the very purpose of the AFDC program since its inception has been to provide assistance for dependent children. The State's position is thus that the State may deprive certain needy children of assistance to which they would otherwise be entitled in order to provide an arguable work incentive for their parents. But the State may not wield its economic whip in this fashion when the effect is to cause a deprivation to needy dependent children in order to correct an arguable fault of their parents. [p526] Cf. Levy v. Louisiana, supra; King v. Smith, supra, at 334-336 (DOUGLAS, J., concurring); Doe v. Shapiro, 302 F.Supp. 761 (D.C. Conn.1969), appeal dismissed, 396 U.S. 488 (1970).
Even if the invitation of the State to focus upon the heads of AFDC families is accepted, the minimum rationality of the maximum grant regulation is hard to discern. The District Court found that, of Maryland's more than 32,000 AFDC families, only about 116 could be classified as having employable members, and, of these, the number to which the maximum grant regulation was applicable is not disclosed by the record. The State objects that this figure includes only families in which the father is unemployed, and fails to take account of families in which an employable mother is the head of the household. At the same time, however, the State itself has recognized that the vast proportion of these mothers are, in fact, unemployable because they are mentally or physically incapacitated, because they have no marketable skills, or, most prominently, because the best interests of the children dictate that the mother remain in the home. [n21] Thus, it is clear, although the record does not disclose precise figures, that the total number of "employable" mothers is but a fraction of the total number of AFDC mothers. Furthermore, the record is silent as to what proportion of large families subject to the maximum have "employable" mothers. Indeed, one [p527] must assume that the presence of the mother in the home can be less easily dispensed with in the case of large families, particularly where small children are involved, and alternative provisions for their care are accordingly more difficult to arrange. In short, not only has the State failed to establish that there is a substantial or even a significant proportion of AFDC heads of households as to whom the maximum grant regulation arguably serves as a viable and logical work incentive, but it is also indisputable that the regulation, at best, is drastically overinclusive, since it applies with equal vigor to a very substantial number of persons who, like appellees, are completely disabled from working.
Finally, it should be noted that, to the extent there is a legitimate state interest in encouraging heads of AFDC households to find employment, application of the maximum grant regulation is also grossly underinclusive, because it singles out and affects only large families. No reason is suggested why this particular group should be carved out for the purpose of having unusually harsh "work incentives" imposed upon them. Not only has the State selected for special treatment a small group from among similarly situated families, but it has done so on a basis -- family size -- that bears no relation to the evil that the State claims the regulation was designed to correct. There is simply no indication whatever that heads of large families, as opposed to heads of small families, are particularly prone to refuse to seek or to maintain employment.
The State has presented other arguments to support the regulation. However, they are not dealt with specifically by the Court, and the reason is not difficult to discern. The Court has picked the strongest available; the others suffer from similar and greater [p528] defects. [n22] Moreover, it is relevant to note that both Congress and the State have adopted other measures that deal specifically with exactly those interests the State contends are advanced by the maximum grant regulation. Thus, for example, employable AFDC recipient are required to seek employment through the congressionally established Work Incentive Program, which provide an elaborate system of counseling, training, and incentive payments for heads of AFDC families. See generally 42 U.S.C. §§ 63644 (1964 ed., Supp. IV). [n23] The existence of these alternatives does not, of course, conclusively establish the invalidity of the maximum grant regulation. It is certainly relevant, however, in appraising the overall interest of the State in the maintenance of the regulation.
In he final analysis, Maryland has set up an AFDC program structured to calculate and pay the minimum standard of need to dependent children. Having set up that program, however, the State denies some of those [p529] needy children the minimum subsistence standard of living, and it does so on the wholly arbitrary basis that they happen to be members of large families. One need not speculate too far on the actual reason for the regulation, for, in the early stages of this litigation, the State virtually conceded that it set out to limit the total cost of the program along the path of least resistance. Now, however, we are told that other rationales can be manufactured to support the regulation and to sustain it against a fundamental constitutional challenge.
However, these asserted state interests, which are not insignificant in themselves, are advanced either not at all or by complete accident by the maximum grant regulation. Clearly they could be served by measures far less destructive of the individual interests at stake. Moreover, the device assertedly chosen to further them is, at one and the same time, both grossly underinclusive -- because it does not apply at all to a much larger class in an equal position -- and grossly overinclusive -- because it applies so strongly against a substantial class as to which it can rationally serve no end. Were this a case of pure business regulation, these defects would place it beyond what has heretofore seemed a borderline case, see, e.g., Railway Express Agency v. New York, 336 U.S. 106 (1949), and I do not believe that the regulation can be sustained even under the Court's "reasonableness" test.
In any event, it cannot suffice merely to invoke the spectre of the past and to recite from Lindsley v. Natural Carbonic Gas Co. and Williamson v. Lee Optical Co. to decide the case. Appellees are not a gas company or an optical dispenser; they are needy dependent children and families who are discriminated against by the State. The basis of that discrimination -- the classification of individuals into large and small families -- is too [p530] arbitrary and too unconnected to the asserted rationale, the impact on those discriminated against -- the denial of even a subsistence existence -- too great, and the supposed interests served too contrived and attenuated to meet the requirements of the Constitution. In my view, Maryland's maximum grant regulation is invalid under the Equal Protection Clause of the Fourteenth Amendment. I would affirm the judgment of the District Court.
1. The Court is thus wrong in speaking of
the greater ability of large families -- because of the inherent economics of scale -- to accommodate their needs to diminished per capita payments.
Those economics have already been taken into account once in calculating the standard of need. Indeed, it borders on the ludicrous to suggest that a large family is more capable of living on perhaps 50% of its standard of need than a small family is on 95%.
2. Because of minor variations in the calculation of the subsistence needs of particular families, and because the maximum grant varies between $240 and $250 per month, depending upon the county in which a particular family resides, the cut-off point between families that receive the full subsistence allowance and those that do not is not precisely families of more than six members. In practice, it appears that the subsistence needs of a family of six members are fully met. The needs of the seventh member (i.e., the fifth or sixth child, depending upon whether one or both parents are within the assistance unit), as defined by the State, are met, if at all, only to a very small extent. In the usual situation, no payments whatever would be made with respect to any additional eligible dependent children.
3. S.Rep. No. 165, 87th Cong., 1st Sess., 6 (1961). (Emphasis added.)
4. More technically, the Federal Government supplies five-sixths of the overall amount spent per recipient up to $18, plus one-half of the amount from $18 to $32, to a total of $22. See 42 U.S.C. § 603 (1964 ed., Supp. IV).
5. For example, in the case of the appellee Mrs. Williams, if she were to place two of her children over 12 years of age with relatives, payments of $7 per month would be paid with respect to each child. Thus, a total of $408 per month, or $158 above the maximum, would be available for the support of Mrs. Williams and her eight children. Similarly, if appellees Mr. and Mrs. Cary were to place with relatives two of their children who are between the ages of 6 and 12 years, each child would be eligible to receive $65. Hence, Mr. and Mrs. Gary and their eight children would receive support in the amount of $380 per month, or some $130 above the family maximum.
6. The State has contended that the economic incentive to the disintegration of large families that the maximum grant regulation provides is merely speculative. However, serious doubt is cast upon this view by the stipulation of facts entered in the District Court which states in part that, despite the strong desire to keep their families together, appellees in this case were having great difficulty in doing so because of the limitations on their grants.
7. In S.Rep. No. 628, 74th Cong., 1st Sess., 17 (1935), the original goals of the AFDC program are stated as follows:
With no income coming in, and with young children for whom provision must be made for a number of years, families without a father's support require public assistance unless they have been left with adequate means or are aided by friends and relatives. . . . Through cash grants adjusted to the needs of the family, it is possible to keep the young children with their mother in their own home, thus preventing the necessity of placing the children in institutions. This is recognized by everyone to be the least expensive, and altogether the most desirable, method for meeting the needs of these families that has yet been devised.
(Emphasis added.) See also H.R.Rep. No. 615, 74th Cong., 1st Sess., 10 (1935).
These goals remain the same today. See 42 U.S.C. § 601 (1964 ed., Supp. IV). See generally Note, Welfare's "Condition X," 6 Yale L.J. 1222, 1232-1233 (1967).
8. In various briefs submitted both to this Court and to other courts in analogous litigation, the Secretary of HEW and the Solicitor General have taken the occasion to label family maximum grant regulations as "arbitrary," oppressive of large families, as resulting in "patently different treatment of individuals," and having received, at least inferentially, the disfavor of Congress. See, e.g., Memorandum for the United States as Amicus Curiae, Rosado v. Wyman, ante, p 397; Brief of Robert H. Finch, Secretary of Health, Education, and Welfare as Amicus Curiae, Lampton v. Bonin, 299 F.Supp. 336, 304 F.Supp. 1384 (D.C.E.D.La.1969); Brief of Robert H. Finch, Jefferson v. Hackney, 304 F.Supp. 1332 (D.C.N.D.Tex.1969). Hence, the views of HEW on the precise issue presented in he instant case are, at the very best, ambiguous, and quite possibly the opposite of what the Court ascribes to it.
9. The maximum may be expressed in terms of a flat dollar amount, as a percentage of the individual's budgetary deficit (i.e., the difference between need and other income), or in both ways. A system of individual maximums may, or may not, be combined with a family maximum, or, alternatively, a family maximum may be imposed in the absence of individual maximums. See generally HEW, State Maximums and Other Methods of Limiting Money Payments to Recipients of the Special Types of Public Assistance, Oct.1968 (NCSS Report D-3); Sparer, Social Welfare Law Testing, 12 Prac.Law. (No. 4) 13, 21 (1966). In addition, there are differing methods by which family maximums may be related to other resources available to the family. Some States, including Maryland, subtract available resources from the state-calculated need; in other jurisdictions, available resources are subtracted from the family maximum. See, e.g., Dews v. Henry, 297 F.Supp. 587 (D.C. Ariz.1969), involving litigation with respect to the Arizona family maximum.
10. The lower courts have been unanimous in the view that maximum grant regulations such as Maryland's are invalid. See Dews v. Henry, supra; Westberry v. Fisher, 297 F.Supp. 1109 (D.C. Me.1969); Lindsey v. Smith, 303 F.Supp. 1203 (D.C.W.D. Wash.1969); Kaiser v. Montgomery, ___ F.Supp. ___ (D.C.N.D. Cal.1969). See also Collins v. State Board of Social Welfare, 248 Iowa 369, 81 N.W.2d 4 (1957) (family maximum invalid under equal protection clause of state constitution); Metcalf v. Swank, 293 F.Supp. 268 (D.C.N.D.Ill.1968) (dictum).
11. In theory, no payments are made with respect to needy dependent children in excess of four or five, as the case may be. In practice, of course, the excess children share in the benefits that are paid with respect to the other member of the family. The result is that support for the entire family is reduced below minimum subsistence levels. However, for purposes of equal protection analysis, it makes no difference whether the class against which the maximum grant regulation discriminates is defined as eligible dependent children in excess of the fourth or fifth, or, alternatively, as individuals in large families generally, that is, those with more than six members.
12. Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 348 (1949).
13. See generally Developments in the Law -- Equal Protection, 82 Harv.L.Rev. 1065, 1076-1087 (1969).
14. See generally Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968). Appellees do argue that their "fundamental rights" are infringed by the maximum grant regulation. They cite, for example, Skinner v. Oklahoma, 316 U.S. 535 (1942), for the proposition that the "right of procreation" is fundamental. This statement is no doubt accurate as far as it goes, but the effect of the maximum grant regulation upon the right of procreation is marginal and indirect, at best, totally unlike the compulsory sterilization law that was at issue in Skinner.
At the same time, the Court's insistence that equal protection analysis turns on the basis of a closed category of "fundamental rights" involves a curious value judgment. It is certainly difficult to believe that a person whose very survival is at stake would be comforted by the knowledge that his "fundamental" rights are preserved intact.
On the issue of whether there is a "right" to welfare assistance, see generally Graham, Public Assistance: The Right To Receive; the Obligation To Repay, 43 N.Y.U.L.Rev. 451 (1968); Harvith, Federal Equal Protection and Welfare Assistance, 31 Albany L.Rev. 210 (1967); Note, Welfare Due Process: The Maximum Grant Limitation on the Right To Survive, 3 Ga.L.Rev. 459 (1969). See also Universal Declaration of Human Rights, Art. 25.
15. This is essentially what this Court has done in applying equal protection concepts in numerous cases, though the various aspects of the approach appear with a greater or lesser degree of clarity in particular cases. See, e.g., McLaughlin v. Florida, supra; Rinaldi v. Yeager, 384 U.S. 305 (1966); Carrington v. Rash, 380 U.S. 89 (1965); Douglas v. California, 372 U.S. 353 (1963); Skinner v. Oklahoma, supra.
For an application of this approach to several welfare questions, see Comment, Equal Protection as a Measure of Competing Interests in Welfare Litigation, 21 Me.L.Rev. 175 (1969).
16. See also Rothstein v. Wyman, 303 F.Supp. 339, 346-347 (D.C.S.D.N.Y.1969); Harvith, supra, n. 14, 31 Albany L.Rev. at 222-226.
17. See Sniadach v. Family Finance Corp., 395 U.S. 337, 340-342 (1969) (relying on devastating impact of wage garnishment to require prior hearing as a matter of due process); Goldberg v. Kelly, ante at 264:
Thus, the crucial factor in this context -- a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended -- is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.
18. Compare Shapiro v. Thompson, supra, at 627, striking down one-year residency requirement for welfare eligibility as violation of equal protection, and noting that the benefits in question are "the very means to subsist -- food, shelter, and other necessities of life," with Kirk v. Board of Regents, 273 Cal.App.2d 430, 439-440, 78 Cal.Rptr. 260, 266-267 (1969), appeal dismissed, 396 U.S. 554 (1970), upholding one-year residency requirement for tuition-free graduate education at state university, and distinguishing Shapiro on the ground that it
involved the immediate and pressing need for preservation of life and health of persons unable to live without public assistance, and their dependent children.
These cases and those cited in n. 17, supra, suggest that, whether or not there is a constitutional "right" to subsistence (as to which see n. 14, supra), deprivations of benefits necessary for subsistence will receive closer constitutional scrutiny, under both the Due Process and Equal Protection Clauses, than will deprivations of less essential forms of governmental entitlements.
19. See HEW Report on Money Payments to Recipients of Special Types of Public Assistance, Oct.1967, Table 4 (NCSS Report D-4).
20. The State of Maryland has long spoken with at least two voices on the issue of the maximum grant regulation. The Department of Public Welfare has taken the position, over a number of years, that the regulation should be abolished, and has made several proposals to that effect. In so doing, the Department has taken the position that its proposals would not set welfare benefits out of line with household incomes throughout the State. See, e.g., Minutes of State Board of Public Welfare Meeting, September 26, 1958, App. 130-132.
21. Indeed, Rule 200, § IX A(2)(b)(5) of the Manual of the Md. Dept. of Social Services prohibits the referral for employment of AFDC mothers who are needed in the home. And the unsuitability of many AFDC mothers has been well chronicled in Md. Dept. of Social Services, Profile of Caseloads, Research Report No. 5, p. 6 (1969). See also Carter, The Employment Potential of AFDC Mothers, 6 Welfare in Review, No. 4, pp. 1, 4 (1968).
22. Thus, the State cannot single out a minuscule proportion of the total number of families in the State as in need of birth control incentives. Not only is the classification effected by the regulation totally underinclusive if this is its rationale, but it also arbitrarily punishes children for factors beyond their control, and overinclusively applies to families, like appellees', that were already large before it became necessary to seek assistance. For similar reasons, the argument that the regulation serves as a disincentive to desertion does not stand scrutiny.
23. Likewise, the State, with the encouragement of Congress. see 42 U.S.C. §§ 602(a) (21), 610 (1964 ed., Supp. IV), has developed extensive statutory provisions to deal specifically with the problem of parental desertion. See generally Md.Ann.Code, Art. 27, §§ 88-96 (1967 Repl. Vol.). And Congress has mandated, with respect to family planning, that the States provide services to AFDC recipients with the objective of "preventing or reducing the incidence of births out of wedlock and otherwise strengthening family life." 42 U.S.C. § 602(a)(15) (1964 ed., Supp. IV).