ROSADO v. WYMAN

Transcript: 

Argument of Lee A. Albert

Chief Justice Warren E. Burger: Number 540, Rosado against Wyman and others.

Mr. Albert you may proceed whenever you're ready.

Mr. Lee A. Albert: Mr. Chief Justice, may it please the Court.

New York has in continuous to participate in the federal aid families with dependent children program.

Under which Congress makes available to it, approximately $400 million federal dollars a year and imposes on the receipt and use of those dollars federal terms and conditions.

This case of argues are one of those recently and active of those conditions, Section 4028-23 or condition 23 of the Social Security Act.

Who is meaning in this case is critically an issue and in two other cases now on being appealed to this Court and other cases pending in the lower federal courts.

Cases in this -- the issues in this case to be sure are numerous in complex.

In light of the limited time available we should like to take them up in the following order.

We should like to begin with the meaning of the federal statute.

We believe that meaning is clear on its phase and from its legislative evolution and then discuss the arguments made against that meaning and third change whether a United District Court may so construed statute and apply it in New York and other states.

We begin with the obvious but important observation that it is a statute we are construing passed in our national legislative process in which the states are not into the minorities or unheard voices.

This statute like all other acts of Congress; seeks to obviate some evil has some name seeks to work some change in policy.

It has, in other words, some intelligible meaning and some intelligible purpose.

We believe that the meaning urged by us in this case and adopted by the district judge below is the only meaning consistent with the language, its history and consistent with any intelligible purpose.

The numerous other meanings proffered to the statute by New York, by other states, by the Department Health Education and Welfare reduce Congressional will to a meaningless exercise and futility.

The terms used in the statute are not unheard of or unfamiliar in public assistance administration.

The amounts used to determine the needs of individuals is a comprehensive description of a states need standard, long established and public assistance to determine how much aid an individual is entitled to.

The second phrase we force to any maximums, those are devices used by states to reduce the amount of a below that of state recognized need.

An adjustment to the first device in any state to pays need in full that doesn't impose any maximum automatically results in a cost of living increase to recipients.

An adjustment to the need standard and any maximum similarly results in a cost of living increase to states with maximums.

That the latter increase is proportionate to the extent of the state might need in a given base period.

The statute by looking to the amounts used and the time they were last established refers through the state standard that made during some base period.

That base period is the time of an act into the statute in January 1968.

The off shot of the exercise is that states are commanded to maintain their grant levels with one adjustment to keep pace with living costs by July 1, 1969.

The effect in all states is equal in so far as the conditions the states need standard in each date is accepted the maximum that it was paying during a given base period is accepted.

We think that the legislative background of this statute but confirms this meaning.

It was treated -- it was developed in the Senate.

It stemmed from the administration's proposal that was quite a bit more far reaching.

That proposal required not only annual updating of the state's standard of need but it also required that all states pay need in full and there were at that time 33 states that did not pay in full, many of which did not pay more than 50% of needs somewhat less.

Our position to that statute in the House and the Senate committee for the House and Senate committees centered primarily on the effect of the full need requirements in those states that have long not met the standard that need that affect being very large change not on modest updating but something much larger than that.

The administration's estimate for the total cost of that Bill though, it's important to realize, was $90 million for paying full need of federal sharing that is I'm sorry.

And $95 million for annual updating of standards that were being paid in full not the case after the statute was enacted.

The Senate Finance Committee modified that statute dropping the full need requirement adding in its stead that any maximums be proportionately adjusted.

It was passed by the senate committee on a party line vote, it was passed by the Senate, went to the conference committee where they amended it to drop just one part of it the annual reprising requirement.

The wording of the language of the provision remains the same however from the time that remerged from the Senate Finance Committee to the time it was signed by the president on January the 2nd, 1968.

Both committees reported the Bill out, I'm sorry, the conference committee and the Senate Finance Committee reported Bill out under a heading increasing income of recipients.

The Bill was considered along side a companion proposal to require the states to increase payments in the adult programs by $7.00 and average increase of $7.50.

And the method chosen for that increase was the adjustment of need standards and maximums. It is in short we think this history make several things clear.

One, the 402 (a) (23) is a self-evident departure from tradition in so far as it requires a modest adjustment to state need standards and levels of payments in AFDC, self-evident and quite obvious to the specialist committees dealing with Social Security legislation and certainly obvious to any Congressman who took the time to look at it.

Two, the evolution of the Bill makes clear that it was a compromise, it was not to establish the floor of income in every state that would be approached adequacy as the administration had originally urged.

Nothing of the kind, it rather was to see that each state paid at least of what it was then paying which was renowned for all states to be inadequate and to make one adjustment to keep phase with living costs.

It should be added in the administration, reported to the committees that most states had updated in 1966 or 1967.

There was no great impact expected from the required updating by July 1, 1969, particularly one state maximum were accepted.

We think this legislative history also makes clear, the companion proposal makes clear that Congress appreciate the effect of adjusting this mechanisms.

The language chosen, the comprehensive term used to describe the state needs standard plus the fact that goes on to require adjustment to maximums leaves little room for nullification or evasion.

And finally, we think the fact that Congress made this a planned condition for continued participation in AFDC and gave the states a one year and a half to make the required adjustments I think makes clear that Congress intended to compel the states to do what the statute says.

Justice William J. Brennan: He compelled or the state would not be pleading simply to ignore the federal provision and except for nothing except for the laws of the federal system.

Mr. Lee A. Albert: Oh, I think a state in applying conditions in the AFDC title Mr. Justice Brennan certainly contemplate that the state may or may not participate in the program.

Justice William J. Brennan: That's what probably about this case Mr. Albert and I don't quite understand that the only sanction is simply discontinuance in federal system.

How do plaintiffs in here have any constitutional claim?

Mr. Lee A. Albert: Mr. Justice Brennan, well this is a constitutional claim under the Supremacy Clause, I'm sorry Mr. Justice Brennan, it is a constitutional claim under the --

Justice William J. Brennan: That means the federal statute, I gather would have to be controlling in front of the states, disregarding than that.

Mr. Lee A. Albert: Controlling only to the extent if the state participates in the federal program receives and uses --

Justice William J. Brennan: But if a state decides and says, “No, well we want no part of the federal system any longer.” and votes this constant argument and the other type charge will close it.

Mr. Lee A. Albert: On this aspect of the case most certainly so it is we aren't seeking to enforce one of the plan conditions that Congress has imposed in the received of federal moneys.

Just as the alternative ground in King against Smith was the enforcement of the another planned condition, condition number 10-A shall be furnished to all eligible individuals was enforced by the petitioners, was invoked by the petitioners in that case to support their claim that Alabama's substitute for the rule was invalid.

This Court said that Alabama had breached its federally imposed obligation and that any state law or regulation in conflict with the Social Security Act in a state that's participating of course, Is to that extent invalid.

Justice William J. Brennan: Well, is it the ultimate source in the problem here is for provision that permits this kind of conflict of either one to be resolved in the first instance?

I've forgotten this conference the hearing of something before HEW?

Mr. Lee A. Albert: No, I think it's fair to characterize that Congress has given the Department of Health Education and Welfare the power to terminate federal funds upon finding a conflict between a state plan requirement and --

Justice William J. Brennan: Was it their procedure or an administered procedure for resolving this in the first place?

Mr. Lee A. Albert: There's no administrative procedure or proceeding Mr. Justice Brennan, there is this power in HEW which it may exercise.

It has in fact not exercised it not only here but in any other case that we know of except for two since the Act was passed the power being --

Justice William J. Brennan: There was a point we heard something of a contemplated conference or hearing or something on this very question that to have been scheduled on this case?

Mr. Lee A. Albert: Well, no different than any other the act contemplates or when a state makes a change in its AMTC.

Justice William J. Brennan: Well, was there anything scheduled between HEW and the state officials in this issue?

Mr. Lee A. Albert: Well, it's not scheduled detour no Mr. Justice Brennan, I'll explain what did happened.

The state made a change, they have to submit that to HEW.

For some reasons, state has permitted to implement it prior to HEW's approval and federal funds continued to flow and in this particular case and then a series of discussions when negotiations take place between the state and HEW over the change if it raises questions.

This provision was deemed to raise question in HEW and somewhat uncharacteristically swift fashion replied to New York that Section 131 (a), the statute which reduces grants raised the question of conformity under the Social Security Act would you provide us with information.

That was in April, New York provided the regulations and a brief description of what the statute does in June and nothing further has been heard between HEW and State of New York except for an event we just learned recently that took place on November 10 in which HEW wrote New York a letter questioning some other aspect of 131 (a) on the grounds of state wide uniformity under Social Security Act.

Justice William J. Brennan: Well, is this issue right for judicial decision until that procedure is been completed?

Mr. Lee A. Albert: Your Honor, Mr. Justice Brennan it's our view that the delegation to HEW with the power to cut off federal funds does not preclude the remedy that this Court upheld in King against Smith.

That remedy being a recipient most affected by state plan changes in AFDC and the other programs.

May i ask -- it may invoke the federal laws so long as the state is participating and a court has power to adjudicate that controversy.

The only difference in this case between this case and King v. Smith, in King v. Smith HEW had the neither approved nor disapproved.

It had a long history of negotiation.

We have a somewhat shorter history of negotiation here but given the nature of the interest involved and also the fact that HEW's participation or expertise be at being relevant is available to this court or the court below.

Indeed HEW has very explicitly expressed its views in this case and those were before the District Court and its brief from another case and deregulation.

Justice Byron R. White: Except that the HEW hasn't addressed itself to one or two of the critical issues, doesn't report to be answering them?

Mr. Lee A. Albert: All right, it doesn't and the HEW was invited to participate in this case amicus at the beginning.

Justice Byron R. White: But it says in its brief in this Court that it doesn't purport to be telling us whether it's just the streamlining of the state standard or on the other hand it's forbidden as an impressible reduction in the confidence standards.

That's the critical issue, isn't it?

Mr. Lee A. Albert: That's one of the critical issues Mr. Justice White.

Justice Byron R. White: Well, it says on that and apparently it hasn't devised anyone on that yet.

Mr. Lee A. Albert: That's quite often the case Mr. Justice White, it didn't really advice the Court, for example it did not advice the Court or anyone else in King against Smith exactly what its position on substitute for the rules were.

It has --

Chief Justice Warren E. Burger: Maybe -- maybe, they didn't ready to do so yet?

Mr. Lee A. Albert: It had -- Mr. Chief Justice, it's certainly the meandering or long protracted serious in negotiations or very indefinite negotiations certainly is a characteristic of that process.

It's not really an adversary process.

Recipients are not the parties to it, the states are not really adversaries except in the rare instance where HEW invokes its power of cut off and as we said it's very rare and he invokes that power.

Chief Justice Warren E. Burger: Are you suggesting that there's a burden on the courts to package the administrative function is delayed or --

Mr. Lee A. Albert: Not at all Mr. Chief Justice, I merely --

Chief Justice Warren E. Burger: -- not as feeble as it might be?

Mr. Lee A. Albert: No, I'm sorry.

I'm saying that that power of HEW to order to cutoff the federal funds does not affect the rights of recipients to come in to federal court in a due to case validity under the federal act of the state law of regulation or statute adversity affects them in this one most adversity affect the petitioners in this case.

We're just saying similarly to Allen v. Board of Elections -- this Court's decision in Allen v. Board of Elections.

The existence of administrative remedy, the power to cut off does not preclude adjudication.

The United States itself has said so in regard to the Social Security Act.

It has come in to Court and argued that HEW's power to terminate is not exclusive.

The courts have power to adjudicate validity.

We think that power is critical and very important.

We mention the nature of these negotiations only to show how critical and important that power is if the client conditions that Congress imposes are to be enforced.

If in fact the protections, the few protections that Congress provides to disadvantage individuals alleged or under these programs are to be effectuated.

We stressed the delay in HEW seems only to show that a fact of this Court has recognize that is that the Congress usually intends its laws to be applicable to be enforced.

It usually intends its policies to be carried out if those policies are to be effectuated in this case and other cases surely the answer given in King against Smith was correct.

They can come into court and seek to adjudicate.

Justice Byron R. White: But we Mr. Albert, we'll have to--that issue that I have referred to a moment ago certainly has to be decided in this case if we get to the merits.

All we have to be deciding it without any views of those who might know more about the updating some standard in need or --

Mr. Lee A. Albert: Mr. Justice White, I fought them in this case.

The ultimate issue in this case we believe in our view is the construction of a federal statute which is a questionable obviously ultimately for this Court.

We think in the line of the policy of this statute it's a question that --

Justice Byron R. White: Well that may be so, but then you have to make it to state statute against, and the argument is that the state statute is consistent.

Mr. Lee A. Albert: Mr. Justice White, I'm going to address myself to that certainly I just wanted to make--

Justice Byron R. White: We'll have to decide that issue wouldn't we, without any --?

Mr. Lee A. Albert: I believed that's correct Mr. Justice White.

Justice Byron R. White: Without -- without the HEW or the government having stated what if thought at all?

Mr. Lee A. Albert: For one reason or another, the government did volunteer brief in this Court very recently and mentions a few hints of something right or wrong, it doesn't want to take the position on the merits for one reason or another.

HEW also was issued to state letter, by the way, which is not a regulation of October 10th which rather studiedly begs this question.

It says at a minimum you must maintain your standards and accordance with basic needs without providing us with the definition of basic needs at all.

Nor thus, I don't think fairly construed as the Government's brief in this case.

I should like first to return to the arguments against this statute which are said to make our meaning inappropriate.

The basic argument is that the statute is we construe it, renders it to be a measure working enormous change in the federal state relationship on president grant made programs at considerable compelled expenditures and without stormy opposition in Congress that such a measure should have resulted in.

We think the argument falls with each of those premises.

The cost of this provision were before the Congress, it knew that the administration's original provision requiring a great deal of more change would cost overall $90 million in federal funds for full payment updated standards for updating it full and then paying those standards in full.

Once that provision was draw up to full need, the cost had to drop considerably because it was accepting maximums in 33 states; many of which states don't claim one in 50% of need.

The administration had also informed Congress that most states are updated recently.

The cost, in other words, were modest to stay the least in a program of $4 billion federal expenditures a year.

Those cost range if one takes the national average of HEW of $44 a recipient a year and a 10% cost of living factor, the total cost would be about $30 million gross state and federal expenditures.

This case appears to be a very big case in terms of cost and the source supports the argument not because New York has made a cost of living adjustment, it estimated the cost of living adjustment and sound budget for this year it would $5 million the state share all together.

It's because what New York has done is cut grants and cut grants very severely.

That is not to thrust of what Congress was thinking about when it passed this statute.

Any given violation of a federal condition can be costly if one takes the condition in King against Smith and against a state, for example New York decides to withdraw aid to all children whose parents have abandoned them and those petitioners invoke 402 (a) (10).

The cost involve in that case will be about $200 million.

But that was not the cost that Congress estimated for 402 (a) (10) or had in mind.

Although, it did passed that provision to deal with physical crisis in the states nor is this provision.

But my point is the cost are indeed modest, two this is not on president and federal granted programs.

Our contention it should be clear as not the 402 (a) (23) compels the state to appropriate certain amount of money of AFDC.

It rather, it poses a limit on one mechanism to be use to reduce expenditures that mechanism being the reduction of grants.

The medicate program passed for two years before also a federal grant made program with similar matching 50% the New York and of fair percentage for other states, imposes very similar requirements but rather more and those were passed without controversy.

That Act requires not only that states may not divert funds from the public assistance titles to operate medicate, it requires that the states must at a minimum provide a to persons who would be eligible for public assistance under the most liberal money-payment standard in the states during the last three years and it also provides that the state must at a minimum that the state must provide to all eligible individuals at least five categories of services in-patient, out-patient hospital physicians and the like.

The sum total of those requirements is most and it also requires the states expand demonstrate their expanding reference under medicate.

My point is the sum total of those requirements is indeed to impose a limit on the ability of the state to participate and choose to spend what it wishes, not a rigid limit but this is not a rigid limit either.

This provision leaves safe with a great deal of flexibility not to reduce grants which should be said, but in other areas to affect their AFDC budget of public welfare expenditures.

States are free within very broad limits to determine eligibility, financial responsibility of relatives, implementation of the win program, the work consented program, certainly the amount of local financial participation and the like.

We think that this Court did refer in King against Smith to the state power to determine its resources through setting of standards of need.

But that's an example of flexibility.

There were many other examples that can be adduced.

Burrow with the departure in this provision is done so by reflecting most to the very established pattern in AFDC, it accepts as it has the government has since 1935, the enormous variations among the several states in resources and the like and a lot of this states and accepts the states own standard of need.

It also continues greater federal responsibility for states with lesser wealth and lower grant that's a pattern or a tradition in AFDC.

Even assuming for a moment that the provision should have been controversial, this is really torrential out of its legislative setting in 1967.

After all, it was part of Omnibus Legislative Amendment, also part of a compromise between the Senate and the House which disputed over many provisions.

This was one their compromises and this setting, the absence of and it was also passed in under passed on the floor.

Under rules are very restricted debate and no amendments in the House certainly and at the end of the Senate, no amendments also.

In this setting silence even by those who should have opposed that assuming there should've been such persons, it would seem to me as part of the legislative art of reaching a compromise and accord on no less than 300 different provisions that were embodied in its 1967 amendments.

We'll refer to now to the New York Statute and whether what it does is somehow consistent with the 402 (a) (23).

In our view the heart of 402 (a) (23) is to guarantee an increase in income of recipients as the committee said based on cost of living changes.

New York has done is decrease the income of recipients by approximately 8 to 12% depending on which recipient, I'll talk about the changes in a moment and its clearly done did this to reduce overall AFDC expenditures in New York by $100 million out of a total of approximately $900 million.

That's a one out of every $9.00 was taken out of the AFDC.

How that can be said to comply with the statute, how the adjustment of needs standards, New York does not have maximums, how the adjustment of need standards can be said which saved which reduces everybody's grant by $1.00 out of $9.00 can be said to comply with the statute that requires an adjustment for cost for a reprising for cost of living changes obviously going up is itself startling proposition.

Our view on Mr. Justice Brennan, your question of streamlining is 402 (a) (23) has nothing to do with streamlining, that is not the concern of the statute, its proponents or anyone else who discussed that never talk about streamlining.

One should have is no federal statute or federal regulation that defines what streamlining is either.

States have like New York; they have used several methods of providing grants.

One of those methods is to provide the grant as a supplement as it does for example for rent today as it did for articles of home furnishing and clothing.

We don't think that 402 (a) (23) allows the state to eliminate whatever items it now deems unnecessary and unnecessary for reasons have nothing to do with basic -- I should like to reserve the rest of my time.

Chief Justice Warren E. Burger: Very well Mr. Albert.

Mr. Weinberg.

Argument of Philip Weinberg

Mr. Philip Weinberg: Mr. Chief Justice may it please the Court.

Not only is this case plainly unripe for determination by the judiciary at this stage, because we're still awaiting the views of HEW, which the agency which if it doesn't have primary jurisdiction here certainly is the one with the expertise and the experience which should passed upon it.

But it's an extraordinarily ironic case in any event because in a fact the petitioners are asking courts to solve the problem of the adequacy of the welfare allowances in the various states where Congress has so conspicuously fail to act.

And they rely not on the Constitution but on a very narrow subsection test by the 1967 Congress which was simply never built to support the weight of the construction that this petitioners seek to place upon it, which is in affect what the Court of Appeals held aside from ruling that there was no jurisdiction in the first place and over and above that, that the case was clearly unripe for the termination because HEW hasn't given us its views yet.

And I'd like to advert to that briefly and first if I may.

This is a very different situation from the King against Smith where the Alabama substitute for the regulation was set aside and there was a long history of acquiescence by HEW in the regulations of that type which the various states had.

On the contrary, here New York only passed the statute in its 1969 legislative session. It only went into effect on July 1st.

HEW's only had it before them for a couple of months and as my colleague has said it hasn't yet commented on whether or not that these statute complies or doesn't comply with 602 (a) (23) which is what the case is all about.

And consequently, there's nothing in King against Smith or any other case that the petitioners cite here which would provide the slightest foothold for jurisdiction here prior to a decision on this thing by HEW.

Justice Byron R. White: Well, there wasn't a decision of King against Smith, wasn't it?

Mr. Philip Weinberg: No, but there was a long history of acquiescence which this Court said was tantamount a decision and that it got HEW out of the way in effect.

In other words, if Alabama had that substitute for the rule for 20 years --

Justice Byron R. White: Well, the Court in King against Smith specifically said that there was a correspondence going on and then said it on page 326, “Additional correspondent ensued with HEW never approved deregulation.”

Mr. Philip Weinberg: That's right Justice White but by letting it sit on the desk so to speak for 20 years and many other states might just Alabama had that provision, I believe more than half of the states had it.

The Court felt that enough time had passed certainly so that it was unreasonable to expect HEW to suddenly wake up and do something about the alleged conflict which this Court held existed between the statute and the Alabama regulation.

Of course here, you've got an entirely different situation where New York situation appears to be unique and in addition to that HEW simply hasn't passed and its not matter of the decades as it was in the Alabama situation but just a matter of a couple of months.

Justice Byron R. White: I take it there has been correspondence going on between New York departments.

Mr. Philip Weinberg: Yes, indeed.

Justice Byron R. White: And this was -- did Mr. Albert practically describe what's happened so far?

Mr. Philip Weinberg: Yes, sir.

It's been correspondence --

Justice Byron R. White: Now, let's assume HEW decided that what the New York has done is quite consistent with that Section 43 or whatever it is. Would they say so or would they just not or they just be quiet.

Mr. Philip Weinberg: Well. I think --

Justice Byron R. White: They'll write you a letter to say we approve it or we --

Mr. Philip Weinberg: I'm -- I'm sure they would because they've already questioned other aspect which are unrelated to this case of the New York Statutes and in the past they've given specific approval to the actions of New York and I have to assume the other states as well so that I'm confident if they no objections at 131 (a), the New York Statute, they would say so.

On the other hand, should they not say so after a reasonable period of time, we'd have a situation analogous to the one which existed in King against Smith, but we don't have either of those situations now, what we have is that we know HEW has the question before it and they haven't yet spoken.

So, we certainly have to, it appears to me give them a chance to either say yes, say no or not act after a reasonable period within which I supposed the case would then be right, aside from the other jurisdictional defects which we did cite.

Justice Byron R. White: But if they have and if they did say, do they usually just say yes if they say, yes, and yes because and say why they think its good?

Mr. Philip Weinberg: Oh -- oh, the letter Justice White?

Definitely the correspondence has been linked.

The sum of it is in the appendix, the November 10th letter which was too late for also our adversaries to put in the appendix is nevertheless the next I believed to the HEW brief, the amicus brief which HEW supplied here, so that's before the Court and I'm sure that it won't be just to simple yes.

It will be a "Yes" because and they'll go into reasons because they have the expertise to do that and then that's what they've done in every aspect of the New York legislation through the years.

Now, below a great deal of reliance is placed on King against Smith not only on the question of the unrightness of this case, but in general not withstanding the superficial similarity and subject matter.

This is a very, very different case from King against Smith.

The complete absence of the justifiable constitutional claim such as existed in King against Smith not only under the cuts the Courts basis for jurisdiction here but it also demonstrates the petition -- on the merits the petitioners claim is simply untenable.

Moreover, King against Smith and Thompson against Shapiro as well not only involve constitutional issues but also involve the eligibility of persons for welfare and this claim here is merely a claim regarding the amount which its old position is a very, very substantial difference.

Furthermore, in King against Smith and in the Thompson against Shapiro, the residency case, there was no requirement that if the Court were to overrule New York Statute would automatically in effect appropriate money from the legislature.

Those issues didn't exist in King against Smith or in Thompson against Shapiro and consequently if the Eleventh Amendment doesn't act as a bar to such a situation which we submitted thus and which the three-judge court in Williams against Dandridge, which is on appeal to this Court held that the federal court had to stop short of simply categorically ordering a state legislature to appropriate money for welfare, that's what's clearly involved in the relief that these petitioners seek, which as I've said is entirely different from the two cases they rely on the most heavily.

Now, let's examine the statute on which the petitioners solely relied and what it says is that state shall adjust the amounts that are used to determine the needs of individuals or in the opulence of the welfare official standard of need and any maximum imposed on the aid of the aid paid to families which my colleague concede New York doesn't have.

A maximum is at flat dollar amount such as $200.00 per family in which you just don't have anymore no matter how large the family is which the Court in Williams against Dandridge and in the main case Westbury against Fisher, the three-judge court declared to be unconstitutional.

That's definitely not involved in this case New York never had a maximum of that sort and doesn't now.

In any events, 602 (a) (23) says that the standard of need and any maximums which New York doesn't have, has to be adjusted to reflect increases in the cost of living and New York as the Court of Appeals held fully complied with the mandates of that statute.

The level of actual allowances to welfare recipients in New York State is highest in the country as appears from the appendix to our brief.

It's the highest of the 50 states and New York has always out phased whatever federal requirements existed.

Justice Byron R. White: But as it has in New York in one of those states that all in said that one point to sets of standards in need and that's the actual payment?

Mr. Philip Weinberg: Yes, indeed.

Justice Byron R. White: And it's still is, isn't?

Mr. Philip Weinberg: Yes, there's no family maximum, there's no percentage of payment that needs such as many states have.

Justice Byron R. White: So, when you set a standard of need, you purport to fulfill it in full?

Mr. Philip Weinberg: Yes, indeed.

No question about that.

Justice Byron R. White: So the 131 was then a change in the standard of need as well as the actual payment?

Mr. Philip Weinberg: In 131 (a) Your Honor?

No, it wasn't a change in the standard of need.

No, it was -- I'll get to that in the moment if I may that it was a streamlining of the standard of need and the elimination of certain things such as special grants which I'll come to in a moment if I may, but it was definitely not a reduction in the standard of need --

Justice Byron R. White: If they change any?

Mr. Philip Weinberg: New York pays 100% of the standard of need.

It always has in contrast to many states which don't and shockingly I think some states have a higher standard of need that New York.

For example, although New York pays an average of $278.00 per month to a family of four on welfare and we pay the same whether it's AFDC or aid to the aged or blind or disabled or whatever.

In Missouri, the standard of need is set to be a substantially higher figure 305 but the actual amount paid is only 124.

Now, New York simply doesn't do that, we've never indulged in that we pay 100% of the standard of need.

Indeed Section 131 of our Social Services Law which is the statute which dated 131 (a), the one this case deals with and which is still on the books says, “In so far as funds are available for that purpose, New York is to provide adequately for those unable to maintain themselves.”

And that's precisely what New York has always lived up to.

We've reprised every year.

That the social service is proponent, the respondents here takes its own cost of living surveys throughout the state.

It also employs the Bureau of Labor Statistics federal figures and it reprised in May of 1968 and then adjusted the standard of need and the levels of payment because in New York their tied together.

In August of 1968, prior to 131 (a) when the levels was said administratively and that's illustrated by the fact that for a family four exclusive of rent, because rent is paid additionally its tacked on for the monthly allowance in New York.

The average went up from 173 a month to 191 a month for a family of four.

And thereafter, 131 (a) was passed which used as its matrix, the reprising which took place in 1968 and the way that it worked was this.

The legislature took an average of the age of the oldest child in order to eliminate the vast administrative paperwork in the time of Social Services officials which went to figuring out what the age of the oldest child was in any given family when you're dealing with hundreds or thousands of families.

The court can appreciate the time consuming nature of that job in addition to the readjustments, everytime the oldest child in the family reached another year, that placed the family in another bracket and if the family didn't get around to notifying the local official or if the officials were lax, then there was a deferment to that family, they didn't get the increase that they were entitled to.

So what the legislature did was it averaged these disparities based on the age of the oldest child and it took a figure which was based on that average and now a family of whatever size depending only on whether it's adults or children gets a certain specific amounts.

There was no cutback into characterize it as a cutback as the petitioners repeatedly do simply sheds heat and not light.

Now, another change which was made with the elimination of special grants and this was done on the basis of the enlightened judgment of everybody in the field, every enlightened commentator including HEW itself which as early as 1964 call on the states to eliminate special grants.

What special grants mean as we described them in our brief and I don't think there's any dispute about this is at the recipient of welfare has to go half in hands to the local official asking for special grant to cover a specific purpose, it's degrading, it's time consuming and again requires a great deal of administrative paperwork.

Justice William J. Brennan: Well, what was special with all the special grants?

Mr. Philip Weinberg: Special grants go through as specific items such as --

Justice William J. Brennan: For example.

Mr. Philip Weinberg: -- moving expenses Justice Brennan, a diet through somebody who's diabetic let's say or something needs special diet, MIETS for infants, things of that nature.

Justice William J. Brennan: And now, these things were eliminated is that in the computation of the gross payment?

Mr. Philip Weinberg: They were eliminated but they're still available to the welfare recipient personally because the figure of $25.00 per month was tacked on to the average in 1969 in order to compensate for the elimination of special grants and also because many of these items such as moving in a security deposit for an apartment rental and that's necessary are now available through a purchase of services which is over and above the allowance.

In other words, where the local or state Social Services Department simply furnishes the service itself by purchasing it from a contractor or from the landlord where that's applicable, so that while these special grants were always over and above the standard of need and their elimination even though it's been compensated for anyway doesn't in anyway detract or reduce the standard of need.

Nonetheless, many of these items are still in fact available to the welfare recipient.

Justice William J. Brennan: But, I gather basically on the question of a conflict through the federal regulation you'd say that it's been no change in the standard of need period because these special grants were an addition to the chance?

Mr. Philip Weinberg: Yes, sir.

Yes, sir.

Justice William J. Brennan: Standard need.

Mr. Philip Weinberg: Yes, sir.

Despite the special grants in addition required investigation and it requires the councilors to--

Justice William J. Brennan: Why -- why is it you suppose HEW tells us their not going to advise us whether they think you're right or wrong about that proposition?

Mr. Philip Weinberg: Well, I guess they haven't looked into the question fully enough and exhaustedly enough to make up their minds yet.

I presume that they're going to do so promptly.

Justice William J. Brennan: I just wonder how much looking into it takes to discover that in fact the special services are still available in the different form, how much times does that take?

Mr. Philip Weinberg: Pardon me Justice Brennan, I don't know how long it takes but I would say this, the statute was only enacted in April, it was then amended in May.

They've only had it before them in final for really a couple of months in effect that only went into effect --

Justice William J. Brennan: Now, some of these correspondents between you and HEW touch the subject a notice --

Mr. Philip Weinberg: Yes, indeed.

This is the very note --

Justice William J. Brennan: This noted November 10 is nothing whatever to do with those things?

Mr. Philip Weinberg: No, that particular letter doesn't but the very note of the correspondents back and forth which appears in the appendix is just exactly that question.

Justice William J. Brennan: In which appendix is your or?

Mr. Philip Weinberg: Well, that's a joint appendix it's the petitioner's --

Justice William J. Brennan: Oh, yes.

Mr. Philip Weinberg: It's a letter by a Mr. Collison who's the regional director I believe, his title as an HEW, anyway he's the man whose got jurisdiction over this and has been constant correspondents back and forth dealing with these very questions.

Now, the payment says, “We've seen our exclusive of rent and also fuel for heating” which is the small item of course, but rents have increased 13% in the less three years in New York City alone and it's the practice to pay whatever rent the recipient actually has subject to maximum rentals and even they can be waived in the various counties when necessary so that there's been a over and above the course of living adjust which New York did in 1968 and did again in 1969.

Now, withstanding the passage of 131 (a), there's been the increases in rent which alone it seems to me constitute compliance with the statute or partial compliance but the main point here is that there was full compliance by the May 1968 reprising.

Now, the 131 (a) specifically requires reprising even there weren't 602 (a) (23), we'd be doing it anyway.

And in fact we have done it and the respondents have submitted to the legislature the results of that reprising, it's too recent to be in the appendix but they've ask the legislature to provide sizable increases for 1970 which will increase the average for a family of four monthly payment not including rent from the present 185 to 208 depending on the locality to a state wide $225.00 a month and then as of May 1970, a state wide $230.00 a month.

So that there's no question but that New York fully comply in full with any interpretation of the statute.

Justice Byron R. White: Well, what was the major purpose on 131 (a)?

Was it to switch the basis for determining welfare payments from the individual case to general categories?

Was that one of them?

Mr. Philip Weinberg: Well it was, Justice White it was streamlining in the elimination of the average --

Justice Byron R. White: I know it's streamlining, but what does streamlining mean?

Mr. Philip Weinberg: Getting to that, it was the basically two things.

It was the elimination of special grants for the reasons I've said, the administrative simplicity in taking the burden off the back of the welfare recipient to go and apply for a special grant which benefits the more aggressive recipient at the expense of the meek and also freeze the counselors, who don't have to fool around now with the investigation that each individual request for a special grant and make another vote that time to counseling and finding jobs and everything else that counselors trained to do, and the other thing was the averaging which eliminates the paperwork and the delay and the time consuming aspects of paying a different amount for each child.

Justice Byron R. White: In short, you don't determine individual need?

Mr. Philip Weinberg: Well, we still determine individual needs but we do it under a formula which was simplified in no way reduced but simplified so that how much family afford gets now doesn't depend on whether the oldest child in that family is 9 or 11 or 13, it now depends on --it is now a set amount for a family of four with a difference between New York City and the rest of the state which isn't involved in this case, that's the proportion of this case that mooted out and which --

Justice Byron R. White: That simplifies the administration?

Mr. Philip Weinberg: Yes, yes, sir.

Now, when we look at 602 (a) (23) as we have to in order to try to gleam what Congress meant when it passed it, we see that first of all it's a very minor thought of Section 602 of the Social Security Act and the supremacy clause although my colleague here adverts to it clearly isn't relevant to this case because Congress has simply never exercised any real authority over the levels of welfare allowance is paid by the states.

Indeed, 601 of the Social Security Act which is the basic statute which provides the federal grants and aid in the field that AFDC says the states ought to furnish assistance as far as practicable under the conditions in each state.

And what that means in effect is we've seen is that New York pays $278.00 a month, Missouri pays $124.00, Mississippi pays $55.00 a month and even the District of Columbia where Congress is 4537 pays $184.00 a month on the average which is about 2/3's of what New York pays.

Now, while imposing various other requirements as a condition of receiving federal grants, Congress has deliberately refrain from mandating levels and indeed it even perpetuates to some extent the inequity between the states by scaling the ratio of the federal contribution so as to give more money for the state's that pay less paradoxically enough.

And indeed in King against Smith which was decided after 602 (a) (23) was enacted by the 67th Congress, this Court said “Each state is free to determine the level of benefits by the amount of funds that devotes for the program.”

The statute requires an increase in the standard of need, there's no question about that and New York complied with that by its reprising in 1968 and it's again reprised in 1969.

The Bill when it was originally introduced by the administration made significant changes which never took effect because Congress didn't see it the way HEW saw it.

The Bill has introduced required each state to pay the full standard of need which as we've seen would be a gigantic step forward in the whole administration of welfare and many states, 26 according the count we took, don't even pay their own acknowledged standard of need.

In effect they say to a family, “We know you need $300.00 a month or whatever it is but we're not going to give you $300.00 a month.”

The Bill also required an annual adjustment of the standard of need and since it required each state to pay the standard of need, it required an annual adjustment of the amount actually paid to every AFDC recipient.

This would've been a Bill of enormous impact but the House turned it down and the Senate, while passing a portion of it only passed the annual updating part so where in effect when it finally got through, it was emasculated and then the House-Senate Conference Committee further emasculated it by eliminating the annual updating and leaving it as it is with a simple one-shot updating of the standard of need requirement and no requirements at all that a state increased the amount actually paid.

Chief Justice Warren E. Burger: In effect, Congress was indicating that it would review from time to time a need for updating, is that a fair analysis of that provision?

Mr. Philip Weinberg: Presumably they would, but whatever they might be planning to do in the future and of course since then as the Court knows, there's been many proposals which will change the whole field of welfare around.

Whatever Congress might have been thinking about doing in the future, they didn't do very much in 1967.

It's significant that in the field of old ages systems not involved in this case.

They raised the actual amounts paid $4.00 a month.

They appropriated money specifically for that purpose, they eluded to it in their committee reports and so on and the fact that that is no reference in the committee reports to any similar provision here and no propose appropriation made it all.

It's evident that they had no such intent in passing 602 (a) (23) to do anything analogous to that in the field of AFDC.

Justice Byron R. White: Do you say Mr. Weinberg, New York's position is that it did the one-shot updating or did not have to was already updated, which?

Mr. Philip Weinberg: No, we did it.

We did it in 1968.

Justice Byron R. White: In -- in response to the 67 legislation?

Mr. Philip Weinberg: Well, we would have done it anyway because all statute requires that in any of that we certainly --

Justice Byron R. White: Well, what I'm trying to get at it, under 131 (a), did you have to do the updating anyway under your own state law?

Mr. Philip Weinberg: Yes, sir.

Justice Byron R. White: You did?

Mr. Philip Weinberg: Yes, indeed.

Justice Byron R. White: And so what you did, in compliance with your own state law and not necessarily in compliance with the new federal statute, is that it?

Mr. Philip Weinberg: No, sir.

Although, unquestionably it did comply with what Congress said.

And as we've seen the conference committee then eliminated annual updating and the language of their report which is cited in our brief is significant.

It said it requires one adjustment of the standard of need before July 1, 1969 and the HEW in characterizing this provision in the amicus brief they put it in Lampton against Bonin that Louisiana case, which is referred to continuously through this whole case, used the phrase that Congress could've hardly paid less attention to it when they passed 602 (a) (23).

And yet the petitioners would have us believed that this Bill was some sort of a Trojan horse ironically brought in by the opponents of welfare reform as it reflected by the way the Senate vote worked out, and opposed by the people who seek higher levels of welfare.

It's -- it's evidence from the legislative history here aside from the plain meaning of this little statute that Congress rejected a provision for actually requiring every state to meet its standard of need and it simply require that the standard be updated which as we've seen and New York would've done anyway.

In the recent proposals of the President in the field of welfare, is significant that the President remarked it for the first time under the proposals now being annunciated.

All dependent families with children would be assured of minimum standard payments.

Now, we've seen that New York has no maximums such as it was involved in Williams against Dandridge.

That's conceded and so I don't think it merits any further discussion.

Now, this brings us to a further and extremely difficult point.

The fact is that this statute requires no more than a one-shot adjustment of the standard of need and that inescapably raises a question of fundamental jurisdiction over and above the question of ripeness.

Supposed the petitioners construction of the statute were correct, then it would place the judiciary in a position of having to categorically order the New York legislature, assuming that this court found we didn't comply, to disperse money from each treasury in the absence of any claim of any constitutional infirmity such as it was involved in King against Smith.

The Court of Appeals properly that the Eleventh Amendment would forbids such an interpretation and in Williams against Dandridge, the three-judge of court reach the same conclusion.

What this is, is in reality a thinly veiled suit to compel the New York legislature to appropriate --

Justice Byron R. White: Is that necessary Mr. Weinberg?

Why would to be more than the declaratory judgement and then it will be up for HEW to catch up?

Mr. Philip Weinberg: Well, that's all -- They asked me --

Justice Byron R. White: -- declaratory -- if we were to say there was a conflict, would we declare more than that?

We wouldn't order the New York legislature to make good money.

I would suppose this would mean HEW then ether would have to catch up or because instead of cutting you off that would bring your legislature around increasing, providing the money, wouldn't it?

Mr. Philip Weinberg: Well, sir the petitioner --

Justice Byron R. White: Why would we ask to order it?

Mr. Philip Weinberg: The petitioners are asking for a great deal more than they're asking for injunction.

Justice Byron R. White: They maybe asking for it but does it follow?

Mr. Philip Weinberg: I don't believe it does. I think the injunction which is what this Court of Appeals said would be --

Justice Byron R. White: But you can't say “I should think you can argue that if they're right that they're entitled on a relief whatever?”

Mr. Philip Weinberg: Well --

Justice Byron R. White: We could still give them declaratory judgement I suppose within the framework of what they're asking for.

Mr. Philip Weinberg: But declaratory judgement would still be in effect in order or it wouldn't be an injunction but it would be virtually in order compelling the state legislature appropriate for money.

Justice Byron R. White: I suggest control the ball in the HEW alley, that's where it belongs anyway I guess?

Mr. Philip Weinberg: That's what we've been insisted throughout the whole litigation, no question about it.

It would -- there's just no way to avoid that problem.

Assuming the state were ineligible -- were violated of 602 (a) (23) at the most that would mean that we were ineligible to receive federal funds.

Justice Byron R. White: Well, what if the HEW had approved, actually approved your present plan?

Mr. Philip Weinberg: Then that would eliminate the unripeness aspect of this case.

Justice Byron R. White: All right, then you were standing here, let's assume right now HEW had approved this.

We would have to decide this case, wouldn't we?

Mr. Philip Weinberg: Well, that's still be the basic question that whether the Court had jurisdiction which I'd like to get to admit it.

Justice Byron R. White: That's what I would like to said that, but assumed jurisdiction?

Mr. Philip Weinberg: Assumed -- not just on the unripeness, Justice White, but also on other questions.

Justice Byron R. White: I understand that.

Mr. Philip Weinberg: But assuming that the Court had jurisdiction, assuming it were right by HEW passing on it, that would bring and assuming that you would prepare to rule that New York didn't comply, that would bring us up to the question, I was just starting to address myself to, could the Court order in effect whether by declaratory judgement or injunction, could the Court order the New York legislature disperse additional money for welfare without violating the Eleventh Amendment and a whole volume of case law which we've cited in our brief.

This wasn't involved in King against Smith.

Because in King against Smith and then the residency cases as well, there was a way for the state to comply by simply shuffling amounts -- shuffling around the amount of money that it was going to spend for welfare.

Justice Byron R. White: Well, you got some other type of questions on some other points on that one.

Chief Justice Warren E. Burger: Yes, and you have just four minutes away.

Mr. Philip Weinberg: Yes, sir.

I'll be finishing up in a moment.

When we turn to the question of jurisdiction, the reason the Court of Appeals found in the District Court lacked jurisdiction here is that once the equal protection claim of the geographical differential between the City of New York and the rest of the state was mooted as it was, there remained only the statutory claim.

And there was simply no authority for the judiciary entertaining that claim.

The petitioners have tried to avoid that problem by saying that dependent jurisdiction doctrine gets them over that hurdle, but it simple doesn't because this Court held in United Mine Workers against Gibbs and as the lower federal courts have held on many occasions when the only constitutional issue in the case, the only issue where there's federal jurisdiction is knocked out early in the case then for the District Court to retain jurisdiction would amount to the non-justiciable tail wagging the justiciable dog, as the Court very colorfully put it in one of the cases and that that's simply what we have here so pending jurisdictions have no assistance to the petitioners.

They rely on 1331 but it's clear that they don't have $10,000.00 here to talk about and as this Court held in Schneider against Harris individual plaintiffs and a class suit can't aggregate their claims in order to try to reach the $10,000.00 requirement.

They also rely on 1343 and 42 U.S.C. 1983 the classic civil right statutes, but the fallacy there, as the Court of Appeals held, was that 402 (a) (23) simply can't be construed as a statute designed to bring about civil rights.

What it does, is a statute which really perpetuates in inequity to the extent that there's any effect at all.

It -- it locks the states into the extraordinarily inequitable amounts of welfare assistance that they pay.

This statute as enacted requires the states to adjust their standard of need and New York did so.

It's a narrow statute and this is a narrow case.

There are many defects in the welfare system as we look at it throughout the whole country and there've been many proposals for solution but the Congress has itself maintained as we've seen vast and equalities by its refusal to act and equalize the payments in the various states.

To adopt the petitioner's view of the statute would not end these severe inequities.

And to argue that New York contravened it, when it so plainly didn't and that any non-conformity between this New York State Statute and 602 (a) (23) would void the entire state program in the absence of any claim of unconstitutionality or discrimination.

It's simply at odds with the plain meaning of their statute and its an invitation to just that sort of judicial consideration of questions of legislative policy of the states, which this Court since the cases in the 1930's has correctly resisted.

The order of appeal from should be affirmed.

Chief Justice Warren E. Burger: Mr. Albert, you have three minutes left.

Rebuttal of Lee A. Albert

Mr. Lee A. Albert: Thank you, Mr. Chief Justice.

May it please the Court.

We know of no case requiring exhaustion of administrative remedies or primary jurisdiction in which the litigant being harmed by a statute has no access to that agency and may not initiate any proceeding and may not participate in any proceeding before it.

We think that that was obvious to this Court in King against Smith, in Damico against California and in Salmon against Shapiro.

We don't think that that requires a reexamination; we don't think it should be -- we don't think the rule should be any different in this case.

The result of a decree in this case is not necessarily greater or lesser than any other violation of the Social Security Act.

After all, in King against Smith, Alabama reduced its roles by 25% through its substitute for the rule, that's lot of people.

True, it could turned to its benefit levels that's a lot of money involved in King v. Smith, the Louisiana sued the Home Ruins, similarly involved a great deal of many people.

There's no intrinsic or (Inaudible) in age distinction between benefit levels and scope with eligibility very much depends on the case.

This Court is not called upon to decide whether New York has eliminated basic items or non-basic items.

Section 402 (a) (23) does talk after all of the items used to determine need.

In the context of this case however find questions about an item a need no longer existing, it does not arise or find questions that the state substituting oil for coal as a way of fulfilling your need for fuel.

Those kinds of questions are not before this Court.

As the findings below amply support it may clear, this is an overall streamlining so to speak to reduce welfare AFDC expenditures for one year in New York by $100 million as the HEW makes clear for July 1969.

Its average went from $71.00 per person to $62.00 per person.

I -- there's something more going on there than so called streamlining.

Moreover, if one looks to the two primary ways New York accomplished this, it took to age differentiated schedules giving a great deal more for older children and did a way with the differentials for older children not because they don't have greater requirements for food or social or educational necessities, but because it wanted to save money.

It justifies that at some sort of convenience in administration by saying “We'd have to change it every two years otherwise.”

New recertifies individuals every three months and makes countless adjustments to the grant every month for every dollar of resource or income received on any individual.

How New York is saying “Let's look at two figures in a chart and to have to make an adjustment and ADC families granting to every two years.”

Somehow, its administrative inefficiency boggles the imagination.

The large other item eliminated are supplementary grants for clothing and home furnishings.

Those were administered in New York as a flat grant not a special grant.

No one applied for it.

They got a check in the mail every quarter of $25.00 per person.

There's no administrative efficiency in eliminating that whatsoever, there's cost saving and nothing more.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Albert.

Thank you for your submission.

Thank you, Mr. Weinberg.

The case is submitted.