SAENZ v. ROE 526 U.S. 489 (1999)

In Saenz v. Roe, the Supreme Court reinvigorated the constitutional right to travel. California, concerned about becoming a "welfare magnet" because its generous welfare benefits might entice indigent persons to immigrate from less-generous states, limited the maximum payment to a recipient during his or her first twelve months of residency to the amount he or she would have received in the prior state of residency. Congress expressly authorized states to discriminate between older and newer residents in this manner. The Court held 7–2, however, that the state statute violated the right to travel and that Congress could not authorize such a violation.

The Court had previously invalidated several state statutes discriminating between older and newer residents, but had failed to articulate a consistent constitutional theory or level of judicial scrutiny. In shapiro v. thompson (1969), the Court invalidated a state statute withholding all welfare from immigrants during their first year of state residency. The Court held that this welfare denial constituted a "penalty" on immigrants' right to travel to the state, and the statute could not survive strict scrutiny. The Court employed the same analysis to invalidate statutes withholding for one year the franchise in dunn v. blumstein (1972) and free medical care in Memorial Hospital v. Maricopa County (1974). More recent cases, however, such as Zobel v. Williams (1982) and attorney general of new york v. sotolÓpez (1986), produced no majority agreement on the level of scrutiny, with controlling factions subjecting residency distinctions merely to rational basis review under the equal protection clause.

While many observers predicted that the Court in Saenz would retreat even further from Shapiro, the Court did precisely the opposite. The Court proclaimed that the "right to travel" embraces three different components: (1) the right of a citizen of one state to enter and to leave a second state, (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily visiting a second state, and (3) for those travelers who elect to become permanent residents of the second state, the right to be treated the same as other citizens of that state. This third component is grounded in both the citizenship clause and the privileges or immunities clause of the fourteenth amendment, which together mean that "a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State" (quoting the slaughterhouse cases (1873)). The Court's partial reliance on the privileges or immunities clause is intriguing, both because it has essentially lain dormant since its parsimonious interpretation in Slaughterhouse, and because it seems superfluous in this case, given the Court's reading of the citizenship clause. Perhaps the Court means to signal some willingness to revisit the clause's historically cramped interpretation.

The Court declared that statutes violating this third component are subject to a standard of review that "may be more categorical than that articulated in Shapiro, but it is surely no less strict." The Court quickly dismissed the state's magnet-avoidance and fiscal justifications as insufficient to satisfy strict scrutiny's requirement of a compelling state interest. And the Court just as quickly, if somewhat mechanically, dismissed the relevance of Congress's authorization: the citizenship clause limits Congress as well as the states, and Congress cannot invoke its enforcement power under the fourteenth amendment, section 5 to restrict (as opposed to protect) individual rights.

Future battles over durational residency requirements will be fought over a new issue: whether the requirements are properly characterized as a test for bona fide citizenship, which requires an intention to settle in-state. The Court reaffirmed prior precedents upholding one-year residency requirements for obtaining a divorce or college tuition subsidies. These cases were distinguishable, both because California did not dispute the bona fides of the welfare recipients' claim to state citizenship, and because welfare is not an easily portable benefit that can be taken back to the prior state. The portability distinction raises an interesting question: If a state may treat an immigrant college student as a noncitizen for a year with regard to tuition subsidies, may the state treat that same student as a noncitizen for all other purposes, including welfare? It is unclear why the intention to establish residency should be determined on a benefit-specific basis.

More than any of its doctrinal predecessors, Saenz issues an expressive proclamation about the nature of political identity in this country. Previous right to travel cases applied conventional substantive due process and equal protection doctrinal constructs. In contrast, Saenz makes a statement about what belonging to America means. People enjoy both a state political affiliation, which does not admit of "degrees of citizenship"; and a national affiliation, which empowers people to choose a state affiliation for themselves. Durational residency requirements that discriminate among state citizens, even those that place no actual burdens on interstate migration, are incompatible with these axioms. Perhaps this determination best explains the Court's hint that this right to travel component might be "categorical" rather than "merely" requiring strict scrutiny; the right is not really centered in individual liberty (a concern generally subject to balancing against strong governmental interests), but rather expresses a commitment to a peculiarly American form of political identity, one that simply cannot be compromised.

Evan H. Caminker
(2000)