If the Republican welfare reform plan becomes law, states will have far more flexibility in setting benefit levels. That means states that don’t hasten to reduce their benefits—very likely including New York—will risk a costly influx of welfare recipients seeking the best deal.

To protect itself against such migrants, a state might consider establishing a residency requirement that denies full welfare eligibility to an applicant who hasn’t lived in the state for a set period of months or years. Along that sensible path, however, lurks the Supreme Court's ill-considered 1968 decision in Shapiro v. Thompson. Led by Justice William Brennan, the Court struck down several states’ one-year waiting periods for welfare eligibility on the grounds that such limits violated the equal protection of the law as guaranteed by the Fourteenth Amendment.

To explain why this was so, Brennan advanced a tortured argument. He had a problem: under well-settled equal protection doctrine, a legal distinction between different groups of people (such as recent and long-term residents) violated equal protection only if it was altogether without “rational basis.” Clearly a state’s interest in protecting its treasury passed that test. Only in the case of racial classifications did a state have to satisfy the far more demanding test of showing that it had a “compelling interest” that it couldn’t secure in any other way.

Brennan, however, invoked several recently decided cases that had suggested that the compelling-interest standard might also apply when a nonracial classification interfered with the exercise of a “fundamental right.” But while those cases dealt with the right to vote, not even Brennan could have convinced a majority of the justices that welfare was a fundamental right. Instead, he found that the residency requirement, by discouraging would-be welfare recipients from moving from one state to another, burdened the fundamental “right to travel.” Thus, Brennan argued, it triggered the fatal compelling-interest test.

Shapiro v. Thompson today stands as an embarrassing relic of late-1960s judicial excess. Indeed, soon after deciding Shapiro, the Court found it necessary to limit the rights of newcomers to only those benefits involving “necessities of life” (sorry, no instant in-state law school tuition). But Shapiro remains the law of the land, and asking the Supreme Court to overturn a precedent is always a tough sell.

The good news for welfare reformers is that overruling Shapiro isn't necessary. Today’s reformers don’t contemplate total exclusion of newcomers, but a more modest disincentive to welfare shopping—a period of only partial eligibility after arrival. California, for instance, plans a one-year limit during which new arrivals’ benefits would be no more than they would have received in their state of origin. It would be simple for the Rehnquist Court to uphold such a restriction on the grounds that Shapiro forbids only denying welfare altogether.

But California, which has already received permission from Washington to enact this limit, has also already been hauled into court by welfare advocates. A federal district judge held that only full eligibility, from Day One, satisfied the requirements of Shapiro; a panel of the Ninth Circuit Court of Appeals affirmed the ruling. The Supreme Court declined to review the decision for technical reasons, but the issue seems destined ultimately to reach the High Court.

Advocacy groups have made no secret of their intention to frustrate in the courts what they can’t stop in the legislatures. Reformers must keep in mind that legislating changes in welfare is only part of their job.


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