CALIFANO v. JOBST

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Argument of Stephen L. Urbanczyk

Chief Justice Warren E. Burger: We will hear first this morning number 76-860, Califano against Jobst.

Mr. Urbanczyk you may proceed whenever you are ready.

Mr. Stephen L. Urbanczyk: Mr. Chief Justice and may it please the Court.

This case is here on appeal by the Secretary of Health Education and Welfare.

The judgment of United States District Court and Western District of Missouri.

The case generally involves entitlement provisions of Section 202(d) of the Social Security Act under Section 202(d) as the Court may recall from its consideration of the same statute two term ago in Mathews against Lucas, insurance benefits are provided to the children of a wage earner who himself is receiving old age or disability insurance benefits or who has died fully or currently insured under the Act.

This is the second time this case has come to this Court.

As I will explain in a minute the insurance provisions that are at issue in this case, cause the termination in appellee's Child’s Insurance Benefits in 1970 when he married.

Appellee instituted this lawsuit to challenge the discontinuance of his benefits on the grounds that the provisions created classifications that violated the due process clause of the Fifth Amendment.

Originally the District Court agreed with appellee and declared the statute, the classification unconstitutional as applied.

At the time of that initial judgment in early 1974 the record did not reflect that although appellee's social insurance benefits were terminated, he and his wife nevertheless were receiving benefits under another title of Social Security Program Title XVI the new Supplemental Security Income program and that those benefits were only marginally less than the amount of benefits that he and his wife would have received had his Child’s Insurance Benefits not been discontinued.

Because of the deficiency in the record when the secretary first appealed to this Court, the Court vacated and remanded for reconsideration of the case in light of these new circumstances.

On remand record was supplemented by stipulation, but the District Court reinstated its original judgment, holding that the supplemental security income program was irrelevant to appellee’s claim.

The Secretary appealed the second time and that is the present posture of this case as the Court considers it.

Let me describe briefly the provision of Section 202(d) that are at issue in this case and their effect on appellee.

Among other entitlement provisions of Section 202(d), the applicant or Child’s Insurance Benefits, that is the son or daughter of a wage earner must be unmarried, appellee was unmarried in 1957 when he originally applied for benefits up on the death of his father.

Now the other eligible requirements of Section 202(d) include the requirement that the child be, at the time of his application, dependent upon the wage earner.

That was the requirement that the Court considered in Lucas and also that at the time of the application the child be either under 18 or a full time student under age 22 or that the child be disabled, the disability having begun before the child became age 22.

Regarding the benefits of the disabled child, so long as the disability began before age 22, the benefits were continued without regard to age.

Appellee Jobst for example is a child, is a person who has been disabled since birth and he was there for eligible to receive insurance benefits even though he was 25 when his father died.

In contrast the benefits to non disable children are terminated when the child attains the age of 18 or 22 depending on whether or not he is a student.

Justice Harry A. Blackmun: Counsel, do you know whether there are many marriages each year between insured disabled persons and uninsured disabled persons?

Mr. Stephen L. Urbanczyk: Mr. Justice Blackmun the record does not show the numbers that are involved in this case and I am not aware of the numbers.

I suspect, and this is confirmed by the Social Security Administration that the numbers are very, very low but I do not have exact figures.

The statute does provide that there are certain events terminate child insurance benefits, when the non disabled child reaches a certain age, is one, we just mentioned death is another.

Event we are concerned with here is marriage.

Statute provide with one narrow exception, that all child's insurance beneficiaries whether they are disabled or non disabled, student or non student lose there entitlement to benefits when they marry that is what happened here.

Justice Harry A. Blackmun: (Voice Overlap) stop there would it be constitutional?

Mr. Stephen L. Urbanczyk: Yes Mr. Justice Blackmun, as I will go on to argue the general termination rule is itself rational and because Congress amended the Statute in 1958 to provide a limited exception for certain disabled children does not change that analysis.

Simply introduces a new element in to the inquiry and as we have explained in our brief, the classification created by that narrow exception is rational.

There was a reason for Congress to treat that special class of beneficiaries under Title II of the Act and not appellee's situation.

Now when Child’s Insurance Benefits were first provided there was no narrow exception to the general termination rule.

In 1958 Congress amended the statute to provide that benefits would not be discontinued when a disabled child’s insurance beneficiary married an individual who also was entitled to insurance benefits under the Act.

In those cases the Amendment provided that marriage would not terminate benefits.

I will explain the Congress's reason for enacting that narrow exception later but it is relevant here to know only that the rationale or the Amendment does not cover appellee.

Appellee is a disabled child’s insurance beneficiary or was a disabled child’s insurance beneficiary but his wife was not an insurance beneficiary under the Act.

His marriage therefore like the marriage of most other child’s insurance beneficiaries, was terminated because of his marriage.

Now central to the District Court’s reason in this case --

Justice Potter Stewart: His wife was or is disabled.

Mr. Stephen L. Urbanczyk: That’s correct and that was central to the District Court's analysis in this case is that his wife is disabled.

Justice Potter Stewart: And the reason she is not a beneficiary is simply that her parent was not covered.

Mr. Stephen L. Urbanczyk: That’s right, her parent was not an insured wage earner and therefore she was not entitled to benefits under Title II of the Act by the virtue of her mother or father.

That was central to the District Court's analysis in this case that is that his wife was disabled and unable to provide support for him.

Court suggested that termination is rational where the beneficiary marries someone who is able to support him.

But where the beneficiary marries someone who can not support him, the Court reasoned the need for support continues and so as a constitutional matter once benefits continue.

The record does reflect that Sandra Jobst, appellee's wife, is disabled and unable to provide support.

I hasten to point out that it is because of that disability and because of their need for assistance, that Sandra and John Jobst now receive a monthly benefit under the Supplemental Security Income Program and as I mentioned--

Justice Potter Stewart: Which is part of the same act, is it?

Mr. Stephen L. Urbanczyk: Yes, it is part of Title XVI of the Social Security Act and the benefit provisions that are at issue in this case are Title II, it is the same Act, it’s a form of Federal relief.

Justice Byron R. White: What is the difference in amount?

Mr. Stephen L. Urbanczyk: The difference in amount to that the record reflex in the stipulation in that are set forth in our Appendix, Mr. Justice Byron, that at the time that stipulation was entered into, there was approximately $20 difference, that is Sandra and John Jobst were receiving $20 less than they would have received.

Unknown Speaker: Per month.

Mr. Stephen L. Urbanczyk: Per month.

If --

Justice Byron R. White: Is that condition obtained today?

Mr. Stephen L. Urbanczyk: Well there has been some change in circumstances which is not reflected on the record.

I understand from appellee's brief that Sandra and John Jobst are separated and now divorced and I understand from the Social Security Administration that, that has caused increase in both of there individual rates for Supplemental Security Income.

That is when they were married they were receiving a couple rate which per person was less, now that they are separated, the per-person Supplemental Security Income is increased.

Justice Potter Stewart: Generally under the general rule of the Statute, that terminates benefits upon the marriage of the beneficiary, if there subsequent divorce within the period that the beneficiary would be eligible i.e. under 22 or under 18 depending upon the whether or not he is a student or a disabled person.

This statute provide that former benefits resume?

Mr. Stephen L. Urbanczyk: No it is not Mr. Justice Stewart, there is a limited re-entitlement provision which is Section 202(d) (6) and I think the only circumstance in which a person loses entitlement and then can be re-entitled, is if he passes the age 18 and then become a full time student, he can then receive benefits from the time he become full time student till age 22.

Justice Potter Stewart: But there is no re-entitlement after marriage or divorce.

Mr. Stephen L. Urbanczyk: There is no re-entitlement after marriage.

Justice Potter Stewart: Or the death of the spouse.

Mr. Stephen L. Urbanczyk: Or the death of the spouse, that is correct.

Only a very narrow re-entitlement provision.

I will discuss the significance of the SSI in a moment but for now I would like argue that even if SSI were not in existence, the statutory insurance provisions at issue in this case are constitutional.

In holding to the contrary, the District Court reasoned or drew significance from the fact that appellee remained needy after his marriage.

But in so reasoning the Court fell victim to misunderstandings concerning open nature of Title II of the act and of the requirements of the due process cause.

Under Title II of the act, an individual’s actual need in a welfare sense has no part in the allocation of benefits.

Benefits are not paid on the basis of an individual’s need.

Rather Title II is a program of social insurance designed to protect the wage earner and his family from a loss of income occasioned by the wage earner's disability, retirement or death.

Benefits are paid to members of the wage earner’s family because they are presumed to be dependent on the wage earner and they are the ones who are most likely to suffer from a loss of the wage earner's income.

Plus it is this relationship of dependency with the wage earner that is the critical factor in determining an individual's entitlement to what we call secondary insurance benefits, that is benefits payable to the individual member of the wage earner's family on the basis the wage earner's account.

Now these propositions are hardly new to this Court, indeed in stating them I have been paraphrasing from many of the Court's recent decisions.

Decisions in cases such as Weinberger against Salfi, Mathews against Lucas, Califano against Goldfarb, Mathews against De Castro.

These cases all stress that Title II benefits are not paid on the basis of individual need, but instead are paid on the basis of the family's presumed need.

An individual's membership in that family and his presumed dependency on the wage earner's income.

That is why in De Castro where the Court considered claims of the divorced wife for benefits under the act.

The Court said that arguments concerning the divorced wife's economic situation were “hardly in point”.

Divorce works a substantial change in the relationship of dependency between the wage earner and spouse, and that was sufficient in the Court's view to sustain the different treatment of divorced wives.

The same analysis is appropriate here.

Wholly aside from a concept of economic need, upon marrying a child normally departs the family, the wage earner's family which Title II is designed to protect and here she starts a new family.

Like divorce for a wife, a child's marriage generally changes or reduces the relationship of dependency between a wage earner and his parent.

Justice Thurgood Marshall: Well, it is normal that the wife takes care of the husband, is it?

Mr. Stephen L. Urbanczyk: Pardon me Mr. Justice Marshall

Justice Thurgood Marshall: It is normal that the wife takes care of the husband, is it?

Which would be required in this case, would it not?

Mr. Stephen L. Urbanczyk: Well, it is normal, I think in a matter whether it is the--

Justice Thurgood Marshall: When they become normal, right now?

Mr. Stephen L. Urbanczyk: Pardon me.

Justice Thurgood Marshall: It is normal that the wife takes care of her husband?

Mr. Stephen L. Urbanczyk: It is normal that when a person marries, the relationship of dependency between the child and his parents is reduced or ended all together and I think that is true without regard to whether or not, the wage earner's child is a woman or a man.

Unknown Speaker: The Court has past emphasized the importance of not thinking in stereotypes in this area, has it not?

Mr. Stephen L. Urbanczyk: Well that is correct, especially in--

Unknown Speaker: I mean the stereotypical picture is a husband supporting his wife.

Mr. Stephen L. Urbanczyk: That is right.

Justice Thurgood Marshall: What is (Inaudible) stereotype, it is stereotype that when you get married, to leave home?

I guess it is (Voice Overlap) you want.

Mr. Stephen L. Urbanczyk: I think in allocating benefits under Title II, Congress has designed an insurance program, not a welfare program or a general assistance program, and has allocated benefits on the basis of these broad presumption which this Court time and time again has sustained as constitutional and as a reasonable way of allocating insurance benefits.

Chief Justice Warren E. Burger: Well the balance what the Court has said about stereotypes, Court has also said many times that Congress is entitled to legislate on the basis of the generality of human experience, has it not?

Mr. Stephen L. Urbanczyk: That is correct.

I think the turn on Lucas was reasonable empirical judgments about the likelihood of dependency and the likelihood of an event’s effect on the dependency.

And that is what Title II is really all about, wherein so far as secondary insurance benefits are concerned that is the likelihood of dependency upon the wage earner, person's membership in the wage earner's family.

And this Court time and time again has said that the due process clause does not require case by case adjudication of that.

Broad legislative classification such as our issue here are necessarily only imperfect substitutes for case by case adjudication.

This Court in cases such as Lucas and De Castro however has held that these broad legislative classification are valid, so long as they reasonably reflect the likelihood of dependency and that is what the general termination rule here does, it reflects the common experience view that marriage normally ends or we substantially reduces a child's special need for parental support and that is sufficient to sustain the constitutionality of the general termination rule.

Now the District Court and the appellee argue that even if the general termination rule is rational, the narrow amendment for certain disabled children creates an unconstitutional distinction.

Remember in 1958 Congress enacted a narrow exception to provide that benefits not be discontinued when a disabled child's insurance beneficiary marries someone who also is entitled to insurance benefits under the act and the argument in essence is that having decided to extend benefits to that class of beneficiary, Congress is also constitutionally required to extend benefits to appellee.

Unknown Speaker: The argument is that it’s constitutionally under-inclusive, is that it?

Mr. Stephen L. Urbanczyk: I guess, yes.

Unknown Speaker: It’s unconstitutional because it is under (Voice Overlap).

Mr. Stephen L. Urbanczyk: Yes that is correct because there is no real distinction between appellee and the class of beneficiaries, benefited by the amendment and therefore it was irrational to extend benefits to one and not the other.

Unknown Speaker: Not to include the --

Mr. Stephen L. Urbanczyk: That is correct.

Now as we explained in our brief the narrow exception to the general termination rule is part of a broad set of amendments in 1958.

Several other provisions of the Social Security Act providing benefits to members of the wage earner's family require that that beneficiary be unmarried or unremarried, the widow or widower for example of the wage earner.

The 1958 amendments added a savings clause to each of these provisions requiring or providing generally that insurance beneficiary’s benefits are not discontinued when they marry another insurance beneficiary under the act.

The principle reason for these amendments is explained in the legislative history.

Congress understood that a marriage between two insurance beneficiaries caused a simultaneous termination of benefits.

If for example an aged widow married a disabled child's insurance beneficiary who remember is paid benefits without regard to age, both of their benefits would be terminated under the act as it stood prior to 1958.

Congress recognize that this was a special form of hardship and I say special because it was uniquely caused by the internal workings of the Social Security Act and so Congress determined to the remediate the problem or the perceived hardship by amending the Act rather than establishing a new program.

And it was easy to remediate this problem within the existing benefit structure without added administrative cost or without alteration of the method of allocating benefits under Title II.

Marriages between insurance beneficiaries was a readily identifiable situation.

Both of these person's status and situation was known to the Social Security Administration because they were already receiving benefits under the Act.

Moreover, the problem presented by these marriages could be readily resolved by simply amending the statute to provide that benefits not to be discontinued.

Sure these amendments were viewed as an easy cure to what was perceived as a flaw in internal workings of the system.

Appellee did not marry another child's insurance beneficiary; therefore to the extent that he remained needy, his continued need was not occasioned by the circumstances that Congress sought to remedy in 1958.

Yes of course they accord no principle of constitutional adjudication.

The Congress may constitutionally spend money to solve one problem and not another, so long as this spending decision is not arbitrary.

Here there was a good reason worked for resolving the problem of marriage between two insurance beneficiaries under Title II of the Act but not resolving the problem created by appellee's situation.

As I mentioned it was easy to identify the marriage of insurance beneficiaries but appellee's need which arises from his marriage to someone who is unknown to the Social Security Administration could not be identified without substantial alteration in the method of allocating benefits that is presently employed in Title II.

Title II uses broad presumptions as to dependency as we said and that method would not identify appellee.

I suppose it would also not be a sufficient indicator of need that appellee's wife is disabled since presumably disabled people may have resources or be able to otherwise, in some other way to provide support.

So what would really be needed is a very close analysis of the marriages of all insurance beneficiaries to determine who is needy and who is not and presumably that inquiry would call for that determination, would call for a close detail month by month inquiry into eligibility.

Moreover, this Title II would have to be further altered to pay these persons on the basis of these individualized determinations of need and as I have explained today and as we have explained at length in our brief, Title II is simply not setup for that purpose and the constitution does not require that it be altered to accommodate that purpose.

Instead, without working such a drastic change in Title II.

Congress instead has designed general assistance programs to work in-tandem with the insurance provisions of the Act, by providing that further relief of need that is not covered by insurance programs.

Here in particular under the supplemental security income program provided for in sections of the Title XVI of the Act, benefits are allocated on a basis of an individual's need.

Appellee's case rest, ultimately on the fact that he is a needy person but the Supplemental Security Income Program has taken up where Title II has left off in providing the appellee with the form of federal relief.

I think when seen in this context, there can be a little doubt that appellee has been treated rationally by the social security program and that the Title II provisions at issue in this case are constitutional.

Justice Byron R. White: And you are satisfied that, that is all you need indicate with the rationality?

Mr. Stephen L. Urbanczyk: Yes, Mr. Justice White.

I think that so long as the purpose is permissible and I do not think that there is any issue about that here if the means are rationally related to those events.

Court has said that the social welfare programs or classifications dealing with economic and social welfare issues can be sustained.

Unknown Speaker: This does deter marriage I would suppose; I mean the general marriage rule would deter marriage, would it not?

Mr. Stephen L. Urbanczyk: Well it deters marriage; I suppose in the same sense that other laws which affect an individual and then whether or not he gets married --

Unknown Speaker: So, you do not think that you need to pay much attention to the validity of your general marriage rule or your disqualification of marriage.

Mr. Stephen L. Urbanczyk: No, I do not think -- I think the appellees’ and the District Court's focus is on the distinction created by the narrow exception.

Unknown Speaker: So your answer is, no you do not need to pay any attention to that.

Mr. Stephen L. Urbanczyk: No, I do not need to pay any attention to that, although I do think that whether they like it or not, appellee's argument implicates that general termination rule.

I think we necessarily had to address the issue in our brief and in this case.

Chief Justice Warren E. Burger: Is it not sometimes true that two individuals who marry, each having an income will pay a higher tax than they did unmarried, separately.

Mr. Stephen L. Urbanczyk: Well, tax Law was something I had in mind when I was trying to answer Mr. Justice White's question.

Unknown Speaker: Well I suppose a State law that permits a minor to renounce his contract so long as he is under the age of minority or not married, might be said that they deter marriage too.

Mr. Stephen L. Urbanczyk: Yes, I think that is correct.

I do not--

Justice Byron R. White: Suggesting a rule of billion dollars generally.

I just suggest it might raise this level of scrutiny.

So he would have to make individual determinations of need rather than having either an over inclusive or under inclusive classification.

Mr. Stephen L. Urbanczyk: Well, I do not think so Mr. Justice White.

I think De Castro could be said implicated the same kind of personal decisions.

The divorce or continuing marriage of an individual and certainly the unanimous Court there did not subject to the classification to any higher form of a scrutiny, than that which I have identified today.

I think this is not to say that the statute would not survive a higher form of scrutiny.

When I think that we are talking here about--

Unknown Speaker: But you might have some trouble.

Mr. Stephen L. Urbanczyk: No, I do not think that I would have trouble.

But, I have not really frankly thought about it.

Unknown Speaker: Well you certainly given up attention in the brief to the validity of your underlying marriage rule. Didn’t you?

Mr. Stephen L. Urbanczyk: Well, that is right, I think because really what is at the bottom of the District Court's concern is the fact that the underlying assumptions in the general termination rule, may not have worked in this case.

Appellee may have married someone who is not able to provide support for him and I think the point of our -- that portion of our brief and the portion of my argument today points out that that is largely an irrelevant consideration.

When we are caught talking about insurance benefits, Title II of the act, since the --

Justice Thurgood Marshall: What would happen if there is an unknown --

Mr. Stephen L. Urbanczyk: That is a situation which the Social Security Act does not address.

I suppose if there is an annulment.

I do not know the legal affect of an annulment, if the marriage were void out and we see a--

Justice Thurgood Marshall: Well, on everything that you said up till now, if there is an annulment, he would be out.

Mr. Stephen L. Urbanczyk: That is correct.

Annulment is a special circumstance that I had not given explicit consideration to.

Justice Thurgood Marshall: But, he will be out.

Mr. Stephen L. Urbanczyk: I would think so, unless he had a good lawyer who can make an argument that annulment avoided the statute.

Unknown Speaker: You say, he was never married.

Mr. Stephen L. Urbanczyk: Ab initio, so that in the essence under the law he was really never married.

Justice Thurgood Marshall: As of nominee that --

Unknown Speaker: Mr. Urbanczyk, is the SSI program relevant to your constitutional argument at all.

I do not understand it to be, but I just want to be sure.

Mr. Stephen L. Urbanczyk: No, I certainly think that the insurance provision at issue can be sustained as constitutional and should be sustained without reference to the SSI program.

I think that the existence of the SSI program, however underscores the purpose of Title II and how to social security program inter relates, different program inter relates and I certainly think that to the extent that appellee's claim is based on the fact that he his needy.

SSI benefits provide relief for that form of need.

Unknown Speaker: But, there is no constitutional requirement that the SSI program be adapted in order to save this particular statute (Voice Overlap)

Mr. Stephen L. Urbanczyk: No and I think the remand in the first instance was largely to supplement the record to bring that into the case.

But not our position is that the statute would be constitutional with or without of the SSI program.

We therefore respectfully submit that the judgment of the District Court be reversed.

Thank you.

Chief Justice Warren E. Burger: Mr. Riffel.

You may proceed.

Argument of J. D. Riffel

Mr. J. D. Riffel: Mr. Chief Justice and may it please the Court.

I represent John Jobst.

Mr. Jobst maintains that the decision of the District Court on remand should be affirmed.

I think that at the beginning there are certain things we want to emphasize.

Number one the holding of the District Court is a very narrow one.

It is to the effect that 202(d) puts child's insurance beneficiaries who are disabled into two classes.

One class of totally disabled recipients who marry other totally recipients and continue to receive social security benefits, and a second class which marries totally disabled non-recipients.

In this case, a recipient of welfare benefits and for this reason alone, perpetually, loses his right to lifetime social security benefits.

As was admitted by appellant, this termination is perpetual.

Mr. Jobst therefore by the statute is relegated to a lifetime of receipt of welfare benefits.

This is a case regardless of whether you call it a supplemental security income or whether it is federally assisted, welfare disability benefits under Statute's of the State of Missouri.

It is still welfare, its still need based.

Unknown Speaker: Mr. Riffel could I interrupt you, is it really quite correct to say that the statute makes the classification you describe, there is nothing in the statute that places people who marry totally disabled non-recipients in a special category.

It’s a broader category of which they are a part.

Isn’t that correct?

Mr. J. D. Riffel: Yes, Your Honor.

I think, that the statute can be read to do specifically that as was read by Judge Oliver in section 202(d)(5)(B), capital B I believe.

It specifically speaks of disabled child recipients who do marry other disabled child recipients.

So under that specific provision, I think the holding of the Court could be very narrowly limited to that Section B and perhaps the constitutionality of Section A which refers to general marriages to, like someone receiving old age benefits could be left alone, that would be one possibility.

Unknown Speaker: Well it refers it creates the B class for those who marry totally disabled dependents who are covered, but there is no classification in the Statute of persons who marry totally disabled spouses who are not receiving benefits.

It’s these people who marry anyone who is not receiving benefits.

Is it not the classification?

Mr. J. D. Riffel: Well if you look at the broadest spectrum I think it is, yes.

Unknown Speaker: I mean that is line the statute draws.

You are saying within that broad category there is the smaller category.

Mr. J. D. Riffel: Yes.

The statutory scheme as I hold generally provides that anyone who marries another recipient who is eligible under that statute continues to receive benefit.

All I am saying is there a narrow provision which I think is what District Court was looking at in this specific case.

Unknown Speaker: And your submission is that the District Court's decision should not be understood to affect the validity of the general provision of Social Security Act and that would terminate benefits for a beneficiary of the category under which your client falls, who marries a wage earner or anybody else who is just simply not disabled.

Am I right?

Mr. J. D. Riffel: That’s my precise point.

Unknown Speaker: It does make it rather narrow.

Mr. J. D. Riffel: Now another point, we want to emphasize is that there is a substantial difference in benefits at the time of the remand of this case, there was considerable disagreement between the Government's position and our position, as to just what affect SSI and self security benefits had, as compared to one another on level of benefits.

The Government chose to compare that as to the family.

Mr. Jobst, the dependent of an insured wage earner, however, admittedly was receiving far less than he would have, had he been a Social security recipient.

The reason for this is that SSI is based on need.

That is for every $2 earned above $80, the benefits are reduced by a total of $1.

Under a Social security, Mr. Jobst's assets are unlimited; he could become a millionaire by a windfall and still receive benefits under SSI.

At the most Mr. Jobst can have an assets is $2,250 and remain eligible.

Another important point is that Congress has in fact discriminated as to level of benefits between social security and supplemental security income from a historical perspective.

This is clearly shown by the fact that at the time of remand, and the entry of the stipulation which was the record on remand in this case, there was a difference of some $9,000 in the level of benefits received by Mr. Jobst as compared to what he would have received, had he continued receiving social security benefits.

I also want to emphasize that even had Mr. Jobst remained married which he did not, his marriage is now been dissolved, he has no further relationship to Sandra Jobst, he is now living alone.

Even had he remained married then an amount of $20 which it was at that time for a month for a person or family with an income so low, can be a huge amount of money to that family.

Now just what did the District Court do, I do not think it was a very strange holding, I do not think the Court deviated in any way from any current standard established by this Court.

Rather I think that Court was looking to the central question under the Social Security Act, that question being, was that person dependent?

Did he remain dependent on the insured wage earner?

Was that terminating event reasonable?

Unknown Speaker: The District Court's the constitutional decision was made in January of 1974, wasn’t it?

Mr. J. D. Riffel: Yes, Your Honor.

Unknown Speaker: And that was before our decision in Weinberger, before our decision in Lucas, and before our decision in De Castro.

Mr. J. D. Riffel: Yes, Your Honor.

That is correct and you would be a better judge than I of this, but my understanding of your current opinions are that you still apply the standard established in Richardson vs. Belcher and Fleming vs. Nestor, that is imposing the equal protection standards of the Fourteenth Amendment on the Fifth amendment, as to Federal Legislation and stating that an utterly irrational discriminatory classification is borrowed by the Fifth Amendment.

I do not believe that those more recent cases change that standard and the District Court specifically cited Richardson vs. Belcher and Fleming vs. Nestor.

This was the standard that was applied, and under my understanding this is still the proper standard applied by the Court.

This is also consistent in the view of Mr. Jobst with the case of Mathews vs. Lucas and other more recent cases which have consistently stated, that it must be judged against the standard of the actual purpose of Congress enacting child's insurance benefits.

Now what was that standard?

Why was it enacted?

It is quite clear at the time of the original enactment of that act in 1956, that Congress had two objectives in mind.

The first objective was to assure that dependence of insured wage earners had a certain amount of security and income in the event of the death, disability, or retirement of the insured wage earner.

The second reason which we submit is equally important and under which there is as much discrimination, in this particular case is to assure the American worker, that in the event of his retirement, death, or disability, that a disabled child who was unable to provide for himself will be taken care of, under the child's insurance provisions.

Now that original Act requires that the party established dependency on that insured wage earner in order to be eligible --

Unknown Speaker: Isn’t the language of Congress one of the best evidences of the purpose that it had in mind?

Mr. J. D. Riffel: Yes, Your Honor.

I think that you have to go first to the statute itself and what it actually stated?

Unknown Speaker: And here the statute itself clearly bars your client, doesn’t it?

Mr. J. D. Riffel: Statute itself, we argued at one point that under, what we called I think a liberal, reading of the statute that you could state that Congress never intended this party to lose his benefits upon marriage.

I think that, that could be read into the act and that anything that happened in this case in terms of his termination, I think may have been a non-intentional application of the act something they never thought of, but on the other hand under a strict reading of that law, yes, its clear that it is as originally acted and as it exists it does terminate benefits.

But on the other hand the legislative history of this law is quite clear, we are not talking about a statutory scheme which has been in effect for a short period of time.

Social security benefits have existed since the 1930s.

Unknown Speaker: Are you arguing that the legislative history is contrary to the statutory language that bars your client?

Mr. J. D. Riffel: Yes sir, I think it is.

Unknown Speaker: Which do you take, the express legislative language or legislative history in a case like that?

Mr. J. D. Riffel: Well I think any time you have a situation, Your Honor, where a statute excludes a certain class, that you have to look at the legislative history in essential purpose of that legislation.

It is not a question what statute says, it s the question of whether that statute is constitutional and whether it’s prescribed by the Fifth Amendment.

Unknown Speaker: Well the question is whether what the Statute says is Constitutional?

Mr. J. D. Riffel: Yes sir.

It’s clearly the question.

Unknown Speaker: And you go to the legislative history only if the statute is ambiguous.

Isn’t that correct?

Mr. J. D. Riffel: I think that’s correct.

Yeah.

I think this Court have said time and again that you look at the legislative history (Voice Overlap)

Unknown Speaker: Only if the statute is ambiguous.

Mr. J. D. Riffel: Sure, but it still have some way.

Justice Thurgood Marshall: What about the statute is unconstitutional?

The wording of the statute.

Mr. J. D. Riffel: The wording of the statute?

Your Honor, in my view, if you look at the purpose of the statue --

Justice Thurgood Marshall: If you look at the wording, what about the wording is unconstitutional?

Mr. J. D. Riffel: The wording simply states that unless the party marry someone who also receives disability benefits under Section B that they are to be terminated and I think that fails to recognize the fact that there are many recipients who are suffering in the same hardship as a result of marriage who are disabled as recovered by the statute.

Justice Thurgood Marshall: Does that make it unconstitutional because it's under-inclusive?

Mr. J. D. Riffel: Well, I think-- I do not think it makes it unconstitutional, no sir, if it is under-inclusive, I think under Weinberger vs.--

Justice Thurgood Marshall: Aren't you really trying to get another exception in the statute to write it in?

Mr. J. D. Riffel: No sir, I think this is no more an extension of the law than Jimenez vs. Weinberger.

What we are saying is--

Justice Thurgood Marshall: In your case, you want the statute to say that when a person marries and is divorced, he comes back to the original status.

Isn't that what you want us to write into the statute?

Mr. J. D. Riffel: No, Your Honor.

Justice Thurgood Marshall: Well, how else can we cover your man?

Mr. J. D. Riffel: You can just say that, that statutory scheme applies unconstitutionally to Mr. Jobst.

Justice Thurgood Marshall: To him, because of his peculiar circumstances.

Mr. J. D. Riffel: Because of his peculiar circumstances and because of the peculiar circumstances of a very small class of persons just like him, whose benefits are terminated who have the same continuing need for insurance benefits as the other subclass and are invidiously discriminated against by effect of the statutory scheme.

I think that is just fundamental constitutional law applied by this court.

Unknown Speaker: I suppose it would, you and I could agree that there might be many such people, who after they are 18 year old, still have the same needs, still of dependency, non-disabled children of a deceased wage earner lose their benefits when there is secondary benefits, when they reach the age of 18 and are still students but I suppose you and I could agree that many people over 18 are in the same economic position after their 18th birthday one day as they were one day before their 18th birthday.

Mr. J. D. Riffel: Yes, Your Honor, but I think that is a completely different situation.

Marriage is terminating an event, normally is rational.

Unknown Speaker: A birthday terminates an event.

Mr. J. D. Riffel: There is no question about it, yes sir, numerous things can terminate, but as to this class of disabled persons I think as a reasonable empirical judgment, Congress could say that as a -- to a disabled person, they very often do not marry people capable of supporting them.

In fact general experience would indicate that they very often marry people like themselves.

Most child's insurance beneficiaries under the legislative history, as stated by Congress, it was anticipated that they would have been disabled from birth, birth defects, in this case both.

Unknown Speaker: Well the statute provides they must have been disabled before the death, disability of the wage earner, doesn't it?

Mr. J. D. Riffel: For age 18, yes.

Unknown Speaker: Anytime before age 18.

Mr. J. D. Riffel: It could be something like car accident or something like that but where they were speaking of what they anticipated to be the usual case for example, both of these recipients suffer from cerebral palsy.

They are the identical, I have seen both of them have almost the identical disability.

Unknown Speaker: Mr. Riffel, you started out by emphasizing the narrowness of the District Court holding, why would not the District Court's reasoning apply equally to widower situation?

Assume your client were a widower, who was drawing benefits, and married first in one case, a person who was getting benefits then his benefits would continue.

In the other case, married someone who had cerebral palsy and was not receiving benefits and not able to support the widower.

The benefit will terminate and would it not be equally invalid under your reasoning within the stay.

That termination would be equally subject to challenge.

Mr. J. D. Riffel: I do not think so because I think that you have just an accidental application in the case of, it is not very likely widower is going to plan out marry another disabled person and under the statute, if a widower does marry another--

Unknown Speaker: Or may be not a disabled person; may be just an older person who is not able to -- who was too old to get a job and support her or support him.

I mean it is we are talking about a man losing his benefit, he could very often marry a person of his own age who is unable to get a job to support him but yet is not covered by the act.

Mr. J. D. Riffel: Yeah, I understand it that very often old people do not marry but they just live together because of that in forward and so forth but I think there is no such exception as--

Unknown Speaker: What is the constitutional difference between that situation and the one before us?

I do not quite follow why you would not apply the same reasoning in both cases?

Mr. J. D. Riffel: Well I think that if--.

Unknown Speaker: Whichever way you come out that is--

Mr. J. D. Riffel: I think if you look at the purposes of the legislation, a disabled child, it is reasonable to assume he is never going to accumulate enough work credits to receive social security on his own; he always going to be disabled.

It is not for a short period of time such as -- or relatively short period time as such with an older person, we are talking about--

Unknown Speaker: My hypothesis, my other example is one where the person is just getting the secondary benefit.

By hypothesis, it is not a person who has got the social security benefit out on the basis of his own earnings. So what is the difference?

Mr. J. D. Riffel: I think the difference is that Congress has not recognized a marriage as an exception in the cases to which you speak, Your Honor.

In the case of child's insurance benefits, congress has actually said, look we can see that marriage of a person like this does not affect his dependency on the insured wage earner.

For example, Mr. Jobst's marriage and his divorce were really unrelated, totally unrelated.

Congress recognized that, they saw that hardship.

They recognized the hardship of recipients, but there was a subclass of recipients they left out.

By doing so, by taking this specific affirmative action, in my view under a proper application of the Fifth Amendment, you have a different situation, you have an actual decision and actual recognition stated in the statute actually written in words as to those specific persons.

Unknown Speaker: But even then they are the same statement in the statute as to widowers who marry covered spouses, isn't it exactly the same?

Mr. J. D. Riffel: I do not know, I did not think it was.

Unknown Speaker: Well but that--

Mr. J. D. Riffel: I do not think it is.

As to a disabled child, who marries a widower, his benefits would continue, if that is what you mean but I do not think that a widower receiving benefits, who marries a disabled child, necessarily continues to receive his benefits.

Unknown Speaker: I thought that in all of these secondary benefits situations if the person, who is covered, marries another person who is covered, benefits of both continue, but that is the overall effect of the (Voice Overlap).

Mr. J. D. Riffel: Okay, I am mistaken.

Unknown Speaker: And then that is why I suggested that two cases really are quite parallel and maybe it does not mean you are necessarily wrong, the only thing I question is whether the holding is quite as narrow as you describe it.

Mr. J. D. Riffel: In that event, it obviously could be applied under other situation, but I do think that the situation is such that it could be a narrow holding.

I think someone else is going to come along and say it applies to my situation, I do not think there is any question about that.

The child insurance provisions then are a mere restatement of the general purposes of social security benefits and that is to provide a continuing income to the insured worker and his dependence in the event of disability, retirement, or death.

In this case, the secretary has placed great reliance on the premise that to promote administrative ease, administration of social security benefit, this Court should not look at this provision, should not question its constitutionality because this provision is necessary to ease the administration of the act.

Under our view, when compared with recent decisions of this case, this is not the case.

There are, I am sure, certain presumptions which could be established properly under this act to determine whether Mr. Jobst in fact, does still need social security benefits as a dependent of an insured worker, but this is not a proper classification.

For example, in the case of Weinberger vs. Salfi, this Court examined a nine-month duration of limitation statute which, in fact, an affect provided that a survivor and the children of that person of an insured worker must wait nine months following the date of the marriage in order to be eligible for secondary benefits as the survivors of the beneficiary.

The Court looked at that duration requirement and compared it to the purposes of the Social Security Act.

What the Court stated was that those purposes were related to the dependency of the insured wage earner that the classifications established must be measured against the dependency of the insured wage earner established which was reflected by the classifications.

Now in that case, in the Salfi case, it was clear one that Congress had stated a real concerned over false claims for benefits where individuals would marry sick insured workers, simply because they knew that person soon would be disabled, die, or retire and therefore enabled themselves to lifetime social security benefits.

This is not the case with child's insurance benefits. Congress has specifically examined this question, it is stated in the legislative history that one, they need not be concerned with determinations of disability as they were in the case of the other disability provisions for insured workers.

The reason being one, this is a small class of people, it is not very many disabled children entitled to benefits.

Secondly, because of congenital problems and so forth, in most cases, the disability will be very apparent.

Now when we compare this with the Salfi case, this is a quite different situation which the Court is faced with than in that case.

There is also the further consideration that the standards of disability must have been very similar.

Disability benefits under welfare statutes have been controlled by federal regulations under the Social Security Act for a long time, a long time before the enactment of Supplemental Security Income.

Under the Supplemental Security Income program now, again the Social Security administration has access to information on those disability benefits and there is a further reason that under the narrow holding of this Court as to other disabled children under Section B, in most cases that disability is going to be readily apparent.

For example, in this case, she was a victim of cerebral palsy.

She has been disabled from birth as the record reflects and as the Social Security administration admitted.

Under an old line of reasoning going to back to Dandridge, this classification simply is not rationally based on examination of more recent cases of this Court, Jimenez vs. Weinberger and Mathews vs. Lucas, this discrimination becomes apparent.

This discrimination under Jimenez vs. Weinberger is clear.

In the Jimenez case, this Court examined a presumption in the Social Security legislation which required some illegitimate -- which denied illegitimate children, some illegitimate children benefits under the Social Security Act, while other Illegitimate children and legitimate children under that act were entitled to a presumption of eligibility.

I think this case was the origin of the over-inclusive, under-inclusive language which has sometimes been referred to by this Court.

At any rate under the Jimenez opinion, this Court reversed a lower court decision which had stated that this presumption was alright.

Since it was intended to avoid various claims and this Court clearly said, it is not as described by the Fifth Amendment.

Why, because it is irrational, because it is invidious, because the Fifth Amendment has teeth, because sometimes the government, maybe not intentionally, I am sure not with an intent, no one sat down and said, we are going to nail John Jobst, this guy ought to receive welfare, but nevertheless by affect that discrimination is invidious.

It is not rationally related.

Unknown Speaker: Mr. Riffel, can I ask you one question about the Court's relief?

Mr. J. D. Riffel: Yes.

Unknown Speaker: As I understand the Court's order the test of entitlement of your client is whether his spouse was disabled, so that even if your spouse was disabled but not needy, say she was a wealthy person and had independent means nevertheless he would recover, is that correct?

Mr. J. D. Riffel: Yes, he would be precisely, he would be precisely in the same position as any other Social Security recipient, who marries another recipient.

Unknown Speaker: So that even under the Court's holding, the test is not one of need.

Mr. J. D. Riffel: No sir, it is the identical test applied in any Social Security case, Your Honor.

Under the later case of Mathews vs. Lucas, this Court sustained a similar administrative aid.

Why, because it gave some chance for those illegitimate children to come in and prove they were still dependent.

Therefore, it was reasonably related to the legislative purpose and could be sustained.

In this case, we submit this case should be affirmed.

Chief Justice Warren E. Burger: Do you have any further?

Rebuttal of Stephen L. Urbanczyk

Mr. Stephen L. Urbanczyk: If I may, Mr. Chief Justice, two very short points.

First, I would like to confirm that Mr. Justice Stevens, your understanding of the act with regard to other secondary insurance beneficiaries is correct.

For example, take a widower, those provisions provide with section 202 (f) that if the widower marries, the secondary insurance benefits are terminated but then there is savings provision in 202(f)(4) for when the insurance beneficiary marries someone else who is entitled to insurance benefits under the act.

So contrary to appellee's protestations about how narrow this case is, I think a principle of broad application is involved in this case.

Indeed I think it is broader than that because the Court's rational -- the District Court's rational carry to its logical extreme.

As I mentioned in my argument, I think would require Congress to attack a needs test under all terminating events.

Events such as non-disabled children reaching age 18, for example.

It is true that there is not a congruence between the District Court's judgment and its rational.

Justice John Paul Stevens: Let me just be sure I understand what you are saying because it is of some importance to me.

You are saying that the prior to 1958, there was flat termination when there was marriage.

After 1958, there is a broad classification in the two -- two broad categories rather.

One is persons who marry other persons who are covered, and the other classification is persons that is secondary beneficiaries, who marry persons who are not covered.

Mr. Stephen L. Urbanczyk: That is correct, Mr. Justice Stevens.

Justice John Paul Stevens: And you should test this statute on the broad classification.

I notice in that event, actually when you have a marriage between two covered persons if you did not have the 1958 Amendment, two people would be affected by the rule.

Mr. Stephen L. Urbanczyk: That is correct.

As I said, it would cause a simultaneous termination of both of their benefits and that was the hardship the Congress was concerned with.

Also to clarify appellee mentioned that there was a $9000 difference in the payments, that is covered in the stipulation of that page 15 of our appendix.

The $9000 reflects the amount of secondary child insurance benefits that would have been paid, have these benefits not been discontinued.

The secretary maintains if that money had been paid, he would be entitled to recoup as overpayment.

The amount of SSI benefits that has been paid, that is approximately $3000 and the reason it is so low is that from 1971, appellee married, till 1974 there were no SSI benefits.

Appellee was receiving state welfare insurance but not SSI.

For the reason stated in an our brief then and we respectfully urge that the judgment of the District Court be reserved.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The cases is submitted.