Discrimination against New State Citizens: An Update

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Ten years ago, the first article in Volume 1, Number 1, of Constitutional Commentary was my brief analysis of a decade of confusing cases dealing with discrimination against new state citizens.(1) In responding to the editors' request that I participate in the anniversary issue, it seemed only natural to try to bring my earlier effort up to date.

Most cases held that it was unconstitutional for states to discriminate against new citizens. The problem lay in the bewildering and inconsistent explanations for those outcomes. Shapiro v. Thompson(2) began the process by concluding that denying welfare benefits to new citizens interfered with their constitutional right to free migration. Dunn v. Blumstein,(3) dealing with durational residency requirements for voting, and Memorial Hospital v. Maricopa County,(4) invalidating a durational residency requirement for free medical services to the indigent, explained that the issue was not whether new citizens were in fact deterred from migration, but whether denial of a state benefit was a "penalty" for recent migration. Maricopa County stated that a durational residency requirement was an unconstitutional penalty if the benefit denied was a "basic necessity of life." Vlandis v. Kline(5) invalidated a state law that made new citizens enrolling in state universities permanently ineligible for the lower tuition charged state citizens. The rationale ignored claims of discrimination against new citizens, and rested on the denial of a hearing to determine actual citizenship. Zobel v. Williams(6) invalidated an Alaska scheme that distributed state oil income depending on length of residence.(7) Chief Justice Burger's opinion for the Court applied what purported to be a "minimum rationality" standard of equal protection. While the opinion concluded that a state objective to award longer residents for their past contributions was not legitimate, it left open the question whether other possible state interests were legitimate, and whether "more rigorous scrutiny" was in order when the state discriminated against new residents.

The cases that permitted denial of benefits to new citizens were also confusing. Vlandis v. Kline stated, in dictum, that new state citizens could be charged higher tuition in state universities for the first year. The explanation was the relatively uncontroversial proposition that a reasonable durational residence requirement was an appropriate method to insure that only bonafide state citizens claimed the lower tuition.(8) Sosna v. …