Poverty, Residency, and Federalism: States' Duty of Impartiality Toward Newcomers
67 Pages Posted: 28 Oct 1999
Date Written: September 13, 1999
Can state governments reward those "senior" residents who immigrate to the state first and remain there the longest? This article explores these questions by examining critically the U.S. Supreme Court's recent decision in Saenz v. Roe. Saenz and earlier precedents asserted that states act illegitimately when they discriminate against newcomers with the purpose of discouraging migration into the state. This article maintains that Saenz inadequately justified this result: neither text, precedent, or sensible policy unambiguously indicate that states should never try to deter migrants from entering the state. Indeed, sensible policy suggests that states legitimately and properly need to deter migrants from migrating to the state just to become eligible for the state's redistributive programs. Otherwise, states would face a strong disincentive to maintain such programs, for fear that neighboring states would "free ride" off of their tax efforts. In the context of the "market participant" exception, the Court has recognized that states need to discriminate against newcomers to prevent such a free rider problem. Saenz oddly ignores these considerations in pronouncing discrimination against newcomers to be unequivocally illegitimate.
This is not to say that the result in Saenz is incorrect. To the contrary, I argue that Saenz reaches the right result, albeit without adequate reasons. The problem with the discrimination against newcomers struck down in Saenz is that it involves discrimination in a means-tested redistributive program -- welfare benefits. This sort of discrimination against the indigent newcomer is especially suspect because, unlike restrictions on divorce decrees or college education, restrictions on welfare and other redistributive programs are likely to be rooted in cultural animosity rather than fiscal self-defense: such restrictions are well-suited to exclude persons on the basis of social class and race in the manner of the old regime of "settlement and removal" that governed this nation's poor prior to the New Deal. These sorts of exclusionary measures are more threatening to our sense of national citizenship than other sorts of temporary disabilities on newcomers -- so threatening that even Congress ought not to have the power to impose them without the most careful explanation of the need for such a burden.
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