FW: Re: new topic: Does Graham v. Richardson survive

[Sanford Levinson]

One of the reasons I love this list is the level of expertise so easily
available when one has a question, like mine about Graham.  I was much
interested in Rebecca Zietlow's posting (forwarding a response from a
practioner) that mentioned the unavailability (thanks to Congress) of LSC
attorneys to bring cases challenging the operation of the welfare system
(at least prior to Valesquez, though that decision is extremely confusing
with regard to trying to figure out its implications).  I note Aliessa v.
Whalen, 181 Misc. 2d 334, 694 NYS 2d 308 (1999) (a reference that I also
owe to this list), where a \New York County Supreme Court did strike down a
section of New York's welfare law on Graham grounds, in a suit brought by
the Legal Aid Society of New York City, which I assume is independent from
the LSC.  For political scientists (and maybe lawyers), I think this is a
good illustration of 1) the relative autonomy of local courts with regard
to adhering to new policy directions of Congress and/or the Supreme Court;
and 2) the importance of organizations like the Legal Aid Society.

With regard ongoing debate about "authoritarianism" and its meanings, I'd
suggest that one variable would be the willingness of an administration (or
Congress)  to countenance litigation challenging its decisions.  One way to
diminish litigation, of course, is simply to make it next to impossible for
indigent litigants to get legal assistance.

sandy

At 01:16 PM 10/24/2002 -0400, you wrote:
>Here's a response to Sandy's inquiry from a practictioner in the field.
>
>Rebecca E. Zietlow
>Professor of Law
>University of Toledo College of Law
>(419) 530-2872
>rzietlo at utoledo.edu <mailto:rzietlo at utoledo.edu>
>
>
>
>-----Original Message-----
>From: David Koeninger [mailto:wdkoenin at umich.edu]
>Sent: Thursday, October 24, 2002 12:12 PM
>To: Zietlow, Rebecca E.
>Subject: Re: Re: new topic: Does Graham v. Richardson survive
>
>
>I think Sandy might well be right about the section being unconstitutional
>in light of Boerne and Morrison, but I'm not sure it's ever been argued
>directly.
>
>There are cases from Florida, NY, and Illinois addressing various aspects of
>the immigrant restrictions.  They all lost to some extent on the ground that
>Congress has plenary power to control immigration (there is a Michigan case
>from the 1970's striking down immigration status  restrictions in a
>state-funded GA program on the ground that states can't make immigration
>policy, only the feds can).  Naturally, the folks who argued the cases
>contended that Congress only has such power when deciding how to run its
>immigration system, not when it decides how to run its social safety net.
>But they lost.
>
>There has been no more litigation than that for several reasons: 1) the
>worst immigration provisions were overturned by Congress in the BBA of 1997
>or shortly therafter; and there are more fixes coming (FS beginning next
>year; maybe others in TANF reauth.) 2) fear of making bad law; and 3) the
>LSC restrictions.
>----- Original Message -----
>From: "Zietlow, Rebecca E." <RZietlo at UTNet.UToledo.Edu>
>To: <wdkoenin at umich.edu>
>Sent: Thursday, October 24, 2002 10:56 AM
>Subject: FW: Re: new topic: Does Graham v. Richardson survive
>
>
>
>D:
>
>Do you know the answer to any of these questions?  (especially #4)?
>
>R
>-----Original Message-----
>From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
>Sent: Wednesday, October 23, 2002 3:02 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: new topic: Does Graham v. Richardson survive
>
>
>I have, in my course on the Constitution and the Welfare State, recently
>been teaching the "alienage cases."  I am struck by the following, from
>Title IV of the Personal Responsiblity and Work Opportunity Reconciliation
>Act of 1996m "Restricting Welfare and Public Benefits for Aliens":
>
>(7) With respect to the State authority to make determinations concerning
>the eligibility of qualified aliens for public benefits in this title, a
>State that chooses to follow the Federal classification in determining the
>eligibility of such aliens for public assistance [i.e., that aliens cannot
>take advantage of "any Federal means-tested public benefit for a period of
>5 years beginning on the date of the alien's entry"] shall be considered to
>have chosen the least restricting means available for achieving the
>compelling governmental interest of assisting the aliens be self-reliant in
>accordance with national immigration policy."
>
>Some questions:
>
>1)  Does this in effect overrule Graham v. Richardson, which held, at least
>in one section of the opinion, that the Equal Protection Clause barred
>differentiating between citizens and aliens with regard to eligibility for
>welfare benefits?
>
>2)  If Boerne, Morrison, etc., are good law, why isn't this section of
>Title IV flatly unconstitutional?
>
>3)  We might, of course, redescribe Grham as a case of federal pre-emption,
>and say that Congress had, as of 1971, not clearly indicated that states
>were free to discriminate against aliens with regard to their welfare
>programs.  But now the question becomes whether there are limits to
>"conditioning entry" on the waiver of access to welfare-state programs.  I
>assume that it would be unconstitutional, say, for Congress to say that no
>public funds need be expended on providing an indigent alien with counsel
>if he/she is arrested and charged with a criminal act punishable by a term
>in jail.  If the analysis is that such aid is one of the few "affirmative
>rights" demanded by the Constitution, while the welfare state is simply a
>discretionary set of entitlements passed by a generous legislature, then
>could Congress authorize states not to provide public education to aliens,
>given that the Court has never held that such education is a fundamental
>right.
>
>4)  Why has the 1996 Act not been litigated on this point (or has it, and I
>am, as is often the case, simply ignorant of the relevant cases)?  One
>would think that my question is a fairly obvious one?  Are pro-alien
>lawyers (for good reason) reluctant to litigate the issue because they
>believe that the current majority of the Court would adopt the Chief's
>reasoning in a bunch of alienage cases and overrule Graham and everything
>else that suggests that aliens are subject to some degree of "special"
>protection by the judiciary?
>
>I assure that none of these questions is rhetorical.  I'm genuinely
>confused about what I should be teaching my students these days.
>
>sandy