Constitutional Law II Right to Travel

Fall 2006Con Law II2 Various Meaning of Right to Travel Right to enter and leave a State Right to equal treatment when visiting Right to change residency Right of foreign travel

Fall 2006Con Law II3 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 2006Con Law II4 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 2006Con Law II5 Right to change residency Ways 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 2006Con Law II6 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 2006Con Law II7 Shapiro v. Thompson (1969) Right of interstate migration is fundamental under the EP clause Derivative of textual & foundational rights How 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 exercise of this right

Fall 2006Con Law II8 Saenz v. Roe (1999) Cal. Welf. & Inst. Code § 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 2006Con Law II9 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 2006Con Law II10 Saenz v. Roe (1999) 14 th 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 2006Con Law II11 Saenz v. Roe (1999) 14 th 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 2006Con Law II12 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 state Elements of state residency  Physical presence in state  Subjective intent to remain indefinitely Problem of “portable” benefits  e.g., subsidized college tuition

Fall 2006Con Law II13 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 2006Con Law II14 Foreign Travel Is there a constitutional right to do so? Under what provision?  Art. IV P&I  14 th 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