The Right of New State Residents to Equal Benefits
The issue: Does the Constitution allow states to give benefits to most state residents, but not to those newly arrived in the state?
Although the word "travel" does not appear in the Constitution, the right to travel from state to state is embedded in Supreme Court caselaw.  As the Court recently clarified in its 1999 decision, Saenz v Roe, the "right to travel" embraces three different components: (1) the right of a citizen of one state to enter and leave another state, (2) the right to be treated as a welcome visitor and not an unfriendly alien while temporarily present in a second state, and (3) for those travelers who elect to become residents of another state, the right to be treated like other citizens of that state.  The first of these rights, depending upon which Supreme Court justices you ask, has its source either in the commerce clause or the privileges and immunities clause of the Fourteenth Amendment.  The second has its source in the privileges and immunities clause of Article IV, Section 2.  The third right, the one considered in the cases on this page, is based, the Court says in Saenz in the Fourteenth Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and 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."

Shapiro v. Thompson (1968) considered the constitutionality of a state law that established a one-year residency requirement for welfare recipients.  The Court struck down the law, finding it a violation of the "right to travel" (really, more the right to migrate).  The Court siad it had "no reason to ascribe the source to any particular constitutional provision," relying instead on the "fundamental rights" prong of equal protection analysis.  In a subsequent case, the Court upheld residency requirement for in-state tuition benefits.  In so doing, the Court distinguished Shapiro, which it said involved access to "basic necessities of life."  In Zobel v Williams, the Court, 8 to 1, struck down a Alaska scheme that distributed royalties from the state's mineral revenues to state residents based on the length of state residency.  Residents received $50 in benefits for each year they lived in Alaska.  Various justices offered three different reasons for invalidating the plan.

Finally, in Saenz, the Court breathed new life into the Citizenship Clause of the Fourteenth Amendment in finding that clause to be violated by a California law that set lower welfare benefits for newer residents than for long-term residents.  The Court says the clause "does not allow for degrees of citizenship based on length of residence."

Amendment XIV, Section 1.
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....

Shapiro v. Thompson (1969)
Zobel v. Williams (1982)
Saenz v. Roe (1999)

The Trans-Alaska pipeline, carrying oil from Prudhoe Bay.  The Prudhoe Bay oil led to establishment of Alaska's Permanent Fund, which provided dividends to all Alaskans based on their length of state residence.  Alaska's dividend payment system was declared unconstiutional in Zobel v Williams.


1. What is the best constititutional source for finding a right to travel?
2.  Is the right to travel implicated, and a higher level of judicial scrutiny applied, when the government imposes a gasoline tax? When the government bans travel to a foreign country such as Cuba?  When it denies a passport for character reasons? 
3.  How would the Court distinguish the denial of welfare benefits to new residents (unconstitutional) from the denial of instate-tuition breaks to new residents (constitutional)?  How would the Court likely decide cases involving a denial of emergency medical benefits to new residents?  What about a law requiring new residents to live in a state for 6 months before they can file for divorce?
4.  What are examples of state benefits that could be called "basic necessities of life"?
5.  What about voting?  How long of a durational residency requirement could a state establish for voting in state elections?
6.  Did the Alaska law challenged in Zobel have the effect of encouraging or discouraging migration to Alaska?  Did it have the effect of discouraging emmigration from Alaska?  Should we be concerned about the possibility of other states adopting similar laws and effectively locking long-term residents into continued residency?
7.  What was the strongest justification Alaska offered for its law?
8.  After Saenz, what--if anything--can a high-benefit state do to avoid becoming a magnet to welfare recipients in low-benefit states?
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