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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.

  In Shapiro v. Thompson, 394 U.S. at 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600, the Supreme Court held that the interest of economy was an insufficient foundation to justify the denial of welfare benefits to persons who resided within the state for less than one year. In holding the state residency requirements for welfare eligibility unconstitutional, the Court said that it agreed with the contention that "the statutory prohibition of benefits to residents of less than a year creates a classification which constitutes an invidious discrimination denying them the equal protection of the laws". 394 U.S. at 627, 89 S. Ct. at 1327. Mr. Justice Brennan, speaking for the Court, made it abundantly clear that a discrimination which denied welfare benefits to a particular group could not be sustained on the ground that such denial saves government funds: *fn6"


"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 hearing to welfare recipients before aid is terminated. 397 U.S. at 266, 90 S. Ct. at 1019.

 Dandridge v. Williams, one of the most recent Supreme Court cases in the welfare area, does not support the Pennsylvania legislation. Dandridge upheld a state regulation which set a maximum ceiling on the amount of aid for each family regardless of the number of children above a given figure. Although the plaintiffs claimed this created two classes -- those with large families and those with small families -- the Supreme Court found that the state had valid reasons, namely, to encourage employment and to avoid discrimination between welfare families and the families of the working poor, which provided a "solid foundation for the regulation". 397 U.S. 471 at 486, 90 S. Ct. 1153, 25 L. Ed. 2d 491. Dandridge is distinguishable from the present case on two additional grounds: first, the classification between large and small families is not inherently suspect as is one based on alienage; second the state did not completely exclude a particular group from all benefits -- it merely limited the amount of payment per family.

 The justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces. Unlike the short-term residents in Shapiro, aliens may live within a state for many years, work in the state and contribute to the economic growth of the state. This is illustrated by the stipulated facts in the present case. One of the named plaintiffs here worked in Pennsylvania for four years, until illness forced her to terminate employment.

 Pennsylvania's efforts to justify the exclusion here are further weakened when the treatment of aliens in its entire public welfare program is carefully analyzed.

 Although the federal statute does not require states to grant assistance to aliens, *fn7" Pennsylvania permits aliens to participate in its various categorical assistance programs. 62 P.S. § 432(1). The categorical programs are substantially larger than the general assistance program. Indeed, figures from the Commonwealth show that approximately 585,000 persons are on categorical assistance and 85,000 on general assistance. *fn8" Furthermore, in this case, there was evidence that non-citizen applicants for general assistance are less than 100 per year. *fn9" Accordingly, it is difficult to lend credence to the rationale that aliens are denied access to the general assistance program in order to conserve funds.

 Pennsylvania attempts to rationalize its discrimination against aliens and contends it is not violating the Fourteenth Amendment because the state has an unqualified right to preserve public money or property for its own citizens. It draws this rule principally from People v. Crane, 214 N.Y. 154, 108 N.E. 427 (1915), aff'd sub nom. Crane v. New York, 239 U.S. 195, 36 S. Ct. 85, 60 L. Ed. 218 (1915). *fn10" Crane, decided fifty-five years ago, upheld a New York statute which prohibited aliens from working on construction projects paid for with government funds. The validity of this discriminatory legislation today is exceedingly doubtful when the principles enunciated in Takahashi are considered.

 In Takahashi, the Supreme Court refused to uphold a California law which denied commercial fishing licenses to aliens although the Court assumed that the provision was passed "to conserve fish in the California coastal waters or to protect California citizens engaged in commercial fishing from competition by Japanese aliens or for both reasons". 334 U.S. at 418, 68 S. Ct. at 1142. In that decision, the Court held that the state power to apply its laws exclusively to aliens as a class is confined within narrow limits, and thus reduced the range of legislative purposes which can justify "[state] laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States". 334 U.S. at 419, 68 S. Ct. at 1142.

 Justice Cardozo's rationale for the decision in Crane was in large measure grounded on the theory that public employment is a privilege rather than a right. He said: "The state, in determining what use shall be made of its own moneys, may legitimately consult the welfare of its own citizens, rather than that of aliens. Whatever is a privilege, rather than a right, may be made dependent upon citizenship." 108 N.E. at 430. The "privilege-right doctrine" no longer has vitality as a justification for the deprivation of a constitutional right. The Supreme Court has only recently stated, "the constitutional challenge cannot be answered by the argument that public assistance benefits are a 'privilege' and not a 'right'." Shapiro v. Thompson, 394 U.S. at 627 n. 6, 89 S. Ct. at 1327; Goldberg v. Kelly, 397 U.S. at 262, 90 S. Ct. at 1017 and cases cited therein. See also Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 82 Harv. L. Rev. 1439 (1968).

 The Crane decision, which has not been relied on to uphold anti-alien legislation since it was decided, was rejected as controlling by the California Supreme Court sitting en banc last year. In Purdy & Fitzpatrick v. California, 71 A.C. 587, 71 Cal. 2d 566, 79 Cal. Rptr. 77, 456 P. 2d 645 (1969), the California Court held that a section of the Labor Code which prohibited employment of aliens on public works was unconstitutional. That Court could find no "'special public interest' to justify this discriminatory legislation which encroaches upon, the congressional scheme for immigation and naturalization, and violates the equal protection clause of the Fourteenth Amendment. 456 P. 2d at 650, 653. It rejected the theory of an absolute proprietary interest in the disbursement of public funds on the basis of the standard and holding of Takahashi.11

 Pennsylvania also relies on Patsone v. Pennsylvania, 232 U.S. 138, 34 S. Ct. 281, 58 L. Ed. 539 (1914), which allowed State to preserve game for its own citizens, and on a number of cases upholding restrictions on an alien's right to own property. Terrace v. Thompson, 263 U.S. 197, 44 S. Ct. 15, 68 L. Ed. 255 (1923); Porterfield v. Webb, 263 U.S. 225, 44 S. Ct. 21, 68 L. Ed. 278 (1923); Webb v. O'Brien, 263 U.S. 313, 44 S. Ct. 112, 68 L. Ed. 318 (1923); Frick v. Webb, 263 U.S. 326, 44 S. Ct. 115, 68 L. Ed. 323 (1923). The land cases, questioned by the Supreme Court in Takahashi and Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249 (1948), *fn12" are insufficient authority to uphold discriminatory welfare legislation, just as they were insufficient authority to uphold discriminatory employment legislation in Takahashi and Purdy & Fitzpatrick.

 Although there may be an area in which the state may permissibly preserve natural resources for its own citizens by discriminating against aliens, just as it may in such respects discriminate against residents of other states, a discrimination against resident aliens which, as the parties in this case stipulated, "causes undue hardship by depriving them of the means to secure the necessities of life, including food, clothing and shelter", and "discourages continued residence in Pennsylvania of indigent resident aliens and causes such needy persons to remove to other states which will meet their needs", is substantially different and invalid.

 Pennsylvania has cited numerous state statutes which discriminate against aliens. *fn13" These statutes have not been subjected to judicial scrutiny, and we do not decide the validity or invalidity of any of them at this time. We note, however, that the validity of restrictions on an alien's right to work have been seriously questioned on the basis of Takahashi. See Constitutionality of Restrictions on Aliens' Right to Work, 57 Col. L. Rev. 1012 (1957); *fn14" Note, 1947-48 Term of the Supreme Court: The Alien's Right to Work, 49 Col. L. Rev. 257 (1949).

 We hold that the provision in the general assistance law prohibiting its applicability to residents of Pennsylvania who are not citizens is invalid as violating the Equal Protection clause of the United States Constitution. In view of this decision we consider it unnecessary to pass upon plaintiffs' other contentions that the Pennsylvania statute violates the Supremacy Clause of the Constitution and interferes with the aliens' right to interstate travel.

 The above constitutes the findings of fact and conclusions of law required by Rule 52(a). Accordingly, the motion for preliminary and permanent injunction will be granted.

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