Constitutional Law II

Right to Travel

Fall 2006 Con Law II 2

Various Meaning of Right to Travel

Right to enter and leave a StateRight to equal treatment when visitingRight to change residencyRight of foreign travel

Fall 2006 Con Law II 3

Right to enter and leave a State

General Principles of “Union” Corfield v. Coryell (1823): commercial fishing

fundamental right of a citizen of one state to pass through, or to reside in any other state"

Under Art. IV Privileges & Immunities Clause Passenger Cases (1849): no tax on ingress Crandall v. Nevada (1867): no tax on egress

“[N]o power can exist in a State to obstruct this right that would not enable it to defeat the purposes for which the government was established.”

Under the Dormant Com. Clause Edwards v. California (1941)

State law denying ingress to indigents

Fall 2006 Con Law II 4

Equal treatment when visiting

Under Art. IV Privileges & Immunities Clause Paul v. Virginia (1868): right to conduct business

“It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this.”

Concept of non-discrimination with respect to P&I “fundamental rights”

Fall 2006 Con Law II 5

Right to change residencyWays in which a state might deter or burden in-migration Denial of residency

E.g., setting onerous residency requirements Unequal allocation of rights of citizenship

Some state residents get benefits that others do not

Imposing a penalty on the right to migrate Taxes Loss of benefits Physical assaults (applies to all interstate travel)

Fall 2006 Con Law II 6

Burdening the Right to Travel

Note: the (non-textual) right of interstate travel is so fundamental that it applies against private actors as well. US v. Guest, 1966

Fall 2006 Con Law II 7

Shapiro v. Thompson (1969)

Right of interstate migration is fundamental under the EP clause Derivative of textual & foundational rightsHow does temporary denial of welfare to new residents burden their EP fund’l right? Loss of life necessity if move to another state Penalty imposed on anyone exercising the right

Although welfare is not a fundamental right on its own, the denial of this important interest constitutes a burden (penalty) on EP fundamental right to travel

See also Memorial Hosp. v. Maricopa Cty (1974) Medical services

both discour-ages

travel & exacts a price for the exercis

e of this right

Fall 2006 Con Law II 8

Saenz v. Roe (1999)Cal. Welf. & Inst. Code § 11450.03 Aid to “families that have resided in this state

for less than 12 months shall not exceed the maximum that would have been received by that family from the state of prior residence.”

Congress approves in 1996 Welfare Reform Act

Violate Art. IV P&I Clause? State residents have no standing under Art.

IV Doesn’t apply against US

Fall 2006 Con Law II 9

Saenz v. Roe (1999)Violate EP Clause ? New residents not an EP Suspect Class

Exception – permanent classes (Zobel v. Williams) Restriction doesn’t burden interstate

migration only incidental because get same as previous state

Note: not total denial of benefits

Although temporary, Cal. law creates 2 classes of state “citizen” (short/long-term) Does the Const. permit this?

Fall 2006 Con Law II 10

Saenz v. Roe (1999)14th Amd P/I Clause:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”Clause does not

recognize different degrees of state

citizenship. Second-class status “is itself a

penalty”

Fall 2006 Con Law II 11

Saenz v. Roe (1999)14th Amd P/I Clause:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

Similar non-discrimination principle

as Art. IV P&I, but applies to state’s own

residents (not just others)

Fall 2006 Con Law II 12

Saenz v. Roe (1999)Effect on Right to Travel Does Saenz render EP analysis unnecessary?Bona-fide residency requirements State may discriminate against non-residents

WRT non-Art. IV “fundamental rights” Must be able to assure bona fides of residency

Elements of statestate residency Physical presence in state Subjective intent to remain indefinitely

Problem of “portable” benefits e.g., subsidized college tuition

Fall 2006 Con Law II 13

Saenz v. Roe (1999)Bona Fide residency requirements Subjective intent to remain indefinitely

Rehnquist: state can enact “objective” standards for this (durational residency requirements), as in

tuition (Starns, Vlandis), divorce (Sosna v. Iowa) Primary voting (Rosario) – but see Dunn v. Blumstein

Is there anything unusual about the “subjective” intent element in Rehnquist’s cases vs. here?

State did not defend law as BF residency test Stevens: “We thus have no occasion to consider what

weight might be given to a citizen's length of residence if the bona fides of her claim to state citizenship were questioned.”

Fall 2006 Con Law II 14

Foreign TravelIs there a constitutional right to do so? Under what provision?

Art. IV P&I 14th Amd. P&I Equal Protection First Amendment Due Process “Liberty”

Don’t forget the “Plenary Powers Doctrine” and extreme deference to political branches in

international affairs