Discrimination against new state citizens: an update.

• Author: Cohen, William S.

Ten years ago, the first article in Volume 1, Number 1, of Constitutional Commentary was my brief analysis of a decade of confusing cases dealing with discrimination against new state citizens.(1) In responding to the editors' request that I participate in the anniversary issue, it seemed only natural to try to bring my earlier effort up to date.

Most cases held that it was unconstitutional for states to discriminate against new citizens. The problem lay in the bewildering and inconsistent explanations for those outcomes. Shapiro v. Thompson(2) began the process by concluding that denying welfare benefits to new citizens interfered with their constitutional right to free migration. Dunn v. Blumstein,(3) dealing with durational residency requirements for voting, and Memorial Hospital v. Maricopa County,(4) invalidating a durational residency requirement for free medical services to the indigent, explained that the issue was not whether new citizens were in fact deterred from migration, but whether denial of a state benefit was a "penalty" for recent migration. Maricopa County stated that a durational residency requirement was an unconstitutional penalty if the benefit denied was a "basic necessity of life." Vlandis v. Kline(5) invalidated a state law that made new citizens enrolling in state universities permanently ineligible for the lower tuition charged state citizens. The rationale ignored claims of discrimination against new citizens, and rested on the denial of a hearing to determine actual citizenship. Zobel v. Williams(6) invalidated an Alaska scheme that distributed state oil income depending on length of residence.(7) Chief Justice Burger's opinion for the Court applied what purported to be a "minimum rationality" standard of equal protection. While the opinion concluded that a state objective to award longer residents for their past contributions was not legitimate, it left open the question whether other possible state interests were legitimate, and whether "more rigorous scrutiny" was in order when the state discriminated against new residents.

The cases that permitted denial of benefits to new citizens were also confusing. Vlandis v. Kline stated, in dictum, that new state citizens could be charged higher tuition in state universities for the first year. The explanation was the relatively uncontroversial proposition that a reasonable durational residence requirement was an appropriate method to insure that only bonafide state citizens claimed the lower tuition.(8) Sosna v. Iowa,(9) which upheld an Iowa law barring new citizens from the divorce courts, could have been sustained on the same rationale. Justice Rehnquist's opinion for the Court, however, suggested that a wide range of state policies--here Iowa's concern to avoid becoming a "divorce mill"--could sustain durational residency requirements for state benefits extended to state citizens.

I argued ten years ago that the doctrinal confusion of the cases demanded a better explanation, one grounded in the Citizenship Clause of section one of the Fourteenth Amendment.

One aspect of full sovereignty denied to the states is the power

to determine membership in the community. Under the fourteenth

amendment, any United States citizen becomes a fullfledged

member of the state community immediately upon establishing

residence there.... A state's decision that old-timers

deserve a greater share of state-owned resources cannot be

squared with a constitutional structure that demands that newcomers

be treated as full members of the state community.(10) I argued, from this premise, that no competing substantive state policies could justify a decision to deny newcomers an equal share of state benefits. A...