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Justices take dim view of states with 'two-tier' welfare systems; California case challenges practice of giving some newcomers lower benefits


WASHINGTON -- The Supreme Court, taking its first look at the 1996 welfare reform law, appeared poised yesterday to block states from giving less assistance to some new residents than to long-term residents.

At a hearing on the constitutionality of a "two-tier" system of welfare payments, most of the justices made negative comments and aggressively questioned a Clinton administration attorney and a lawyer for California who tried to defend that approach.

Justice Sandra Day O'Connor, noting that the court has ruled that states cannot discriminate against new state residents, told U.S. Solicitor General Seth P. Waxman, "I don't see how the federal government can do it, anymore than a state could."

Justice Anthony M. Kennedy asked a California deputy attorney general, Theodore Garelis, "How can you say that newcomers will not be impacted, when the whole purpose is to discourage migration?"

Garelis insisted that the effect is not severe for any individual or family because it affects them for only a year.

Maryland is one of 15 states with rules -- endorsed by Congress in the welfare law -- that limit new residents in their first year to the level of welfare aid they received in their former state, if the former state's level is lower than the new state's.

Under California law, for example, a single parent who moves there from the District of Columbia is limited to $330 a month -- the amount paid in the district -- compared with $456 a month in California.

If a family of four moves from Mississippi to California, its first-year assistance remains $144, compared with $673 for longer-term California residents.

Those and similar differences in other states have been challenged by newcomers in cases across the country. The challengers argue that the differing treatment violates the constitutional right to travel and the right to be treated equally under state law.

Maryland has similar rules

Maryland has three welfare rules that might be affected by the outcome of the case, according to Steven D. Keller, an assistant state attorney general.

One rule, like the California rule, limits newcomers to the maximum level of benefit in their prior state for 12 months, if that level was lower than Maryland's. Another rule allows legal aliens to receive some extra welfare benefits, but only if they had received those extra benefits in a prior state. And a third rule limits a newcomer's time on welfare to the limit set in a prior state if that period is less than Maryland's maximum five-year eligibility.

At yesterday's hearing, Waxman, the federal government lawyer, acknowledged that California's system might not withstand the test of past court rulings on states' treatment of newcomers. But Waxman urged the court to allow the two-tier system, on the theory that Congress is entitled to pass federal laws that affect "the incidents of national citizenship."

"Congress is in a position fundamentally different from a state legislature," Waxman argued, and should be allowed to take steps to ensure that "interstate migration" does not lead welfare recipients to rush to the states that pay the most. Congress has its own "national interests" at stake when such migration follows welfare reform, he said.

Waxman's argument, though, provoked deep skepticism among the justices, who questioned how Congress could authorize the states to do something that would be unconstitutional if each state did so without congressional endorsement or approval.

"You're saying Congress can authorize burdens on the right to travel," Justice John Paul Stevens told Waxman.

Justice David H. Souter said the government was claiming power for Congress "to authorize the states to treat their citizens differently."

Garelis, the California lawyer, received an equally chilly reception for his core argument that California is not cutting off newcomers entirely from welfare and uses a two-tier system only as a short-term measure.

O'Connor, for example, suggested that the different levels of payment would have "grave consequences for a family who has to live on welfare."

By contrast, the lawyer for two California newcomers who are challenging the two-tier approach, Mark D. Rosenbaum of Los Angeles, encountered hard questioning mainly from Justice Antonin Scalia and, briefly, from Chief Justice William H. Rehnquist.

Rosenbaum argued that Congress, in authorizing the two-level approach, was seeking to alter the basic structure of the American federal system, in which "citizens are free to 'vote with their feet' and to settle anywhere," and still be treated equally.

2 decisions issued

A ruling on the constitutional dispute is expected by summer.

The court heard that case yesterday after issuing two unanimous rulings. One decision declared that a patient who wants to sue a hospital under the federal law against "dumping" patients who seek emergency care need not prove that the denial of care was done for an improper motive.

The other ruling concluded that police, after seizing property while searching a home or business, do not have a constitutional duty to notify the owner of the steps that need to be taken to retrieve their property.

Pub Date: 1/14/99

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