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July 13, 1970

Elsie Mary Jane LEGER, Beryl Jervis, on behalf of themselves and all others similarly situated
William P. SAILER, individually and as the Executive Director of the Philadelphia County Board of Assistance. Stanley A. MILLER, individually and as Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania

The opinion of the court was delivered by: ADAMS

ADAMS, Circuit Judge.

The issue in this case is whether Pennsylvania's general assistance program runs afoul of the United States Constitution because it provides welfare aid to United States citizens residing within the Commonwealth, but denies such aid to persons residing in the Commonwealth who are not United States citizens.

 The suit comes before us in the form of a class action. The plaintiffs, representing aliens who meet all other eligibility requirements for general assistance, allege that the Pennsylvania statute denies aliens the equal protection of the laws guaranteed by the Fourteenth Amendment, abridges aliens' freedom of interstate travel, and violates the Supremacy Clause of the Federal Constitution since it clashes with the federal power to regulate immigration and naturalization.

 Because plaintiffs sought to enjoin a state statute on constitutional grounds which are not insubstantial, a three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284. *fn1"

 There are two major public assistance programs in Pennsylvania. The larger one is referred to as categorical assistance. Slightly more than one half of the funds for this program, which had its genesis in the Social Security Act of 1935, are provided by the Federal Government. The federally supported arrangement includes programs for aid to the blind, aid to the aged, aid to the permanently and totally disabled, and aid to families with dependent children. In Pennsylvania, aliens are eligible for categorical assistance. The other welfare program in Pennsylvania is general assistance. Section 432(2), Pennsylvania Public Welfare Code, 62 P.S. § 432(2). *fn2" This program provides aid for the needy who do not qualify for grants under the categorical assistance provisions. Because of the citizenship requirement in the general assistance statute, residents of Pennsylvania who are not citizens and who have economic need but do not fit into any of the four federal categories cannot obtain state aid.

 The sole reason given for excluding aliens from the general assistance legislation is that such a policy saves money or preserves the Commonwealth's financial resources for citizens. We consider this an inappropriate basis to support such a discrimination under the Equal Protection clause.

 The applicable provisions of the Fourteenth Amendment extend protection to "all persons," and therefore include aliens. As early as 1886 the Supreme Court held that the Equal Protection and the Due Process Clauses are "universal in their application to all persons within the territorial jurisdiction without regard to any differences of race, color or of nationality." Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S. Ct. 1064, 1070, 30 L. Ed. 220 (1886). See also Takahashi v. Fish & Game Comm., 334 U.S. 410, 420, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948); Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131 (1915). Cf. Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 309, 90 S. Ct. 1731, 26 L. Ed. 2d 252. Although the Fourteenth Amendment does not prohibit all classifications in state laws, it requires that such classification between groups of persons have a legitimate state objective, and that the distinction drawn have a rational basis to effectuate that purpose. Eg. McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961). See Developments in the Law -- Equal Protection, 82 Harv. L. Rev. 1082-1087 (1969). The policy of upholding a discriminatory state law provided there is some reasonable basis to do so applies to welfare legislation as well as other state economic or social regulations. Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). When, however, state legislation in any field -- social, economic or political -- evidences an intent to discriminate on a basis of race, color, or nationality, the state bears a very heavy burden to justify it. *fn3" Discrimination on the basis of alienage, even though not a discrimination against a particular nationality, affects a "disadvantaged minority" and is therefore subject to strict judicial scrutiny. Takahashi v. Fish & Game Comm., 334 U.S. at 410, 68 S. Ct. 1138, 92 L. Ed. 1478.

 In Takahashi, the Supreme Court specifically compared discrimination based on alienage with discrimination based on color. The Court said that "the Fourteenth Amendment * * * [protects] 'all persons' against state legislation bearing unequally upon them either because of alienage or color," and that "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits." 334 U.S. at 420, *fn4" 68 S. Ct. at 1143.

 In Hobson v. Hansen, Judge Wright explained that "[The] Supreme Court has been vigilant in erecting a firm justification principle against every legal rule which isolates for differential treatment a disadvantaged minority, whether defined by alienage, * * * nationality * * *; or race * * *." 269 F. Supp. 401, 506-507 (D.D.C. 1967) aff'd sub nom. Smuck v. Hobson, 132 U.S. App. D.C. 372, 408 F.2d 175, 176 (1969). *fn5"

 The reason advanced for the citizenship requirement -- saving or preserving public funds -- is not compelling when we consider the severity of the deprivation imposed upon the excluded group. Those excluded are deprived of the "means to subsist -- food, shelter, and other necessities of life". Shapiro v. Thompson, 394 U.S. 618, at 627, 89 S. Ct. 1322, at 1327, 22 L. Ed. 2d 600 (1969). Though a state is not obligated to grant public assistance, the Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), clearly recognized the significance of such aid when it said: "Public assistance is * * * not mere charity, but a means to 'promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity'." 397 U.S. at 265, 90 S. Ct. at 1019.

"We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification." 394 U.S. at 633, 89 S. Ct. at 1330.

 In Goldberg v. Kelly, the Supreme Court repeated the proposition that "these governmental interests [of reducing administrative expenses and preventing the disbursement of funds it could not recover] are not overriding in the welfare context". In Goldberg, the Court held that such reasons did not justify the failure to provide a ...

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