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The Supreme Court has declared the "right to travel" to be so important that, until recently, it hasn't needed to locate the right in the constitution. But we should. There are at least 5 possible sources: the P&I clause of Article IV, the P&I clause of the 14th Amendment, the dormant commerce clause, the fundamental rights strand of Equal Protection, and structural principles of Union.
Because we are a union and states lack sovereignty in this respect, states have no power to restrict movement across their borders. They cannot restrict, regulate or tax ingress or egress. But once a non-resident is inside the state (as a visitor), the state can recognize that fact, and need not provide her the same benefits as the state provides its own citizens, unless those benefits rise to the level of "privileges and immunities." For Article IV purposes these consist of so-called "fundamental rights" (which have virtually nothing in common with due proecess fund. rts.), such as trade and commerce, and access to the civil institutions of the state.
A More Perfect Union
Because we are a single (and more perfect) Union, citizens of the US are also and automatically citizens of the state wherein they reside. A US citizen can change his state residency at will. The common law rule of "domicile" governs the more modern concept of "residence." The common law rule requires the coincidence of two elements: physical presence and intention to remain indefinitely (i.e., no present intention to take up residence elsewhere).
States can no more restrict persons taking up residency than they can restrict entry. But they try nonetheless, usually by imposing waiting periods (durational residency requirements) before new residents are eligible for certain rights and services. When this denial affects something that is fundamental on its own (e.g., voting), then the fundamental rights strand of equal protection can easily deal with the denial or burden.
But when the state denies new residents certain "positive rights" such as welfare assistance, access to medical care, and other "life necessities," a direct challenge based on fundamental rights is unlikely to work. But, interstate migration is itself a fundamental right. Thus, when a state denies a benefit to new residents, it may be seen as a burden on the right to travel. Not all burdens trigger strict scrutiny under the equal protection clause. But those that "penalize" the right, by denying certain benefits (whether or not they actually deter the exercise of the right to travel) will be subject to strict scrutiny. These benefits are "indirect" fundamental rights. Denial alone won't violate EP, but a denial that burdens a fundamental right (travel) does.
This formulation worked fine for 30 years, until California came up with a scheme that didn't burden, penalize, or deter the fundamental right of interstate migration. Yet, it still treated new residents differently than long-time residents, by providing them a lower level of benefits/services. Previously, in Zobel v. Williams, the Supreme Court invalidated an Alaska scheme that distributed the state's oil revenues to residents based on how long they lived in the state. The S.Ct. invalidated the Alaska scheme under the equal protection clause. Not because oil revenues were a fundamental right, but because the state had created quasi-suspect classes of state residents. They were quasi-suspect because they were immutable. No matter how long you lived in Alaska, you would always get fewer benefits than someone who lived there longer.
The temporary disability imposed by California in Saenz v. Roe did not suffer from the Alaska infirmity, since the (relative) disability was not permanent. A year after taking up residence in California, a beneficiary received the full amount of state assistance. Nonetheless, it was clear the state had created two classes of state citizens (short vs. long-term). The S.Ct. held this violated the 14th amendment's citizenship and P/I clauses. The constitution, it said, does not know 2 classes of citizens.
To some extent, the Court's 14th Amd. P/I jurisprudence may eventually replace the EP construct of right to travel. In the meantime a prudent judge (or law student) would apply both.
None of this denies states the right to define residency to make sure foreigners aren't partaking of benefits that can lawfully be restricted to state residents, such as subsidized higher education. Since these benefits are not Art. IV fundamental rights, they can be denied to non-residents (but can't be denied to residents - even those just moving into the state). Bona fide residency requirements are designed to distinguish between benefit applicants. Where benefits are transitory, and are consumed entirely within a state (e.g., welfare), there is little risk that a person would feign state residency just to receive those benefits. That's because they will lose them the minute they leave the state. But the story is different when it comes to "portable" benefits such as higher education, divorce decrees, and other benefits that accompany the recipient even when she leaves the state. Here, a state can impose tough evidentiary standards as a means to prove the bona fides of state residency.
So that's why "non-residents" pay higher tuition at state colleges for the full 4 years. Of course, if they overcome the evidentiary presumptions, such as by showing financial independence, property ownership, or other objective evidence of their intent to remain in state indefinitely, then they must be treated the same as any other resident. Query: can a state deny college students previously resident in another state other benefits of state residency, such as the right to vote?
Posted by The Professor at November 2, 2005 08:20 AM