1. Constitutional Law II Spring 2005Con Law II1 Right to Travel

2. Spring 2005Con Law II2 Meaning of “Union” - Art. IV P&I Corfield v. Coryell (1823): commercial fishing fundamental right of a citizen of one state to pass through, or to reside in any other state" 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.” 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.”

3. Spring 2005Con Law II3 Burdens on the Right to Travel Prohibition Edwards v. California (1941)  State law denying ingress to indigent violated DCC Burdens Imposed Taxes (see previous slide) Attack on interstate travelers (US v. Guest, 1966) Differential Treatment Non-Residents – classic Art. IV problem New Residents (durational residency laws)

4. Spring 2005Con Law II4 Burdens on the Right to Travel Differential Treatment Under EP Clause Old vs. New Residents  Suspect Class Special Case – Zobel v. Williams (1982) – permanent class  Fundamental Right What burdens/restrictions constitute deprivation of right? Penalties Imposed on Right to Travel Loss of life necessities if move to another state  Medical services (Mem. Hosp. v. Maricopa Cty 1974)  Welfare (Shapiro v. Thompson, 1969) Although not fundamental rights on their own, denial is an undue burden (penalty) on travel

5. Spring 2005Con Law II5 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

6. Spring 2005Con Law II6 Saenz v. Roe (1999) Violate EP Clause ? New residents not an EP Suspect Class unless permanent (Zobel) Restriction doesn’t burden interstate migration  only incidental because get same as previous state Note: no total denial of benefits Although temporary, Cal. law creates 2 classes of state “citizen” (short/long-term) Does the Const. permit this?

7. Spring 2005Con Law II7 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”

8. Spring 2005Con Law II8 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)

9. Spring 2005Con Law II9 Saenz v. Roe (1999) Effect on Right to Travel Does Saenz render EP analysis unnecessary?  Zobel? Penalty cases? 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

10. Spring 2005Con Law II10 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.”

11. Spring 2005Con Law II11 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