CALIFANO v. WESTCOTT

Print this transcript Transcript: 

Argument of William H. Alsup

Chief Justice Warren E. Burger: We'll hear arguments first this morning in 78-437, Califano against Westcott and the consolidated case.

Mr. Alsup, you may proceed whenever you're ready.

Mr. William H. Alsup: Mr. Chief Justice and may it please the Court.

This is a direct appeal from the United States District Court for the District of Massachusetts.

The District Court held unconstitutional, Section 407 of the Social Security Act that's a provision which extends Aid to Families with Dependent Children, the two-parent families whose father is unemployed.

The District Court held the provision unconstitutional because it does not likewise extends such aid to similarly situated families whose mothers are unemployed.

The Secretary of HEW appeals the holding that that Section is unconstitutional.

John Pratt, Commissioner of Public Welfare and a consolidated appeal appeals only from the remedies selected by the District Court.

The Aid to Families with Dependent Children provides financial assistance to families with needy children.

It's a program under which if a state elects to participate and submits a plan which complies the Section 402 of the Social Security Act, the federal government will participate in funding of the program.

Originally, the program was limited to needy children who where deprived of parental, the support of a parent by virtue of the absence from the home of the parent or a parent or the death of a parent or the incapacity of a parent.

Principally, this was limited to single parent families.

Later in adjunct program, that is the program that we're concerned with today was added.

That program extended AFDC benefits, the two parent families where there was an unemployed father.

Now, that program appears in Section 407 of the Social Security Act, that's 42 U.S.C. 706, I'm sorry 607.

In order for a two-parent family to qualify under that provision, the family must show that the father has a minimum but recent connection with the employment market and that he is unemployed.

The Act does not require that the mother be in a labor market nor does it require that she be unemployed or that she be employed.

In fact, she may be employed and the only effect of her earnings is to reduce the amount of the benefits that are paid to the family.

In this case, the appellees are two families which did not qualify because the father's lack the requisite employment history.

The Act as mentioned requires that there be some recent but minimal connections with the labor market.

Justice William J. Brennan: In both cases, the mothers and the appellee family would've qualified under the statute had they have been fathers instead of mothers, correct?

Mr. William H. Alsup: That's correct.

The fathers did not qualify because the Act requires that within one year prior to the date of application, the father have been employed that is earned at least $50.00 in six out of the preceding 13 quarters or it counts in addition to earning of $50.00 per quarter if the father had been enrolled in a training program that would've counted toward the six out of the 13 quarters.

As mentioned, neither Mr. Westcott nor Mr. Westwood satisfied this prerequisite.

And as Justice Stewart points out in both cases, the mothers did satisfy that requirement and they we're unemployed.

Accordingly, they were denied benefit under the program.

These two families then brought this action in the District Court.

On summary judgment the Court held the program was unconstitutional either under the rational basis test or under the substantial connection test.

Justice Byron R. White: Now, but under what provision of the Constitution?

Mr. William H. Alsup: Under the Due Process Clause of the Fifth Amendment and the equal protection component of that Due Process Clause.

Justice Byron R. White: Because it discriminated on the basis of gender?

Mr. William H. Alsup: Correct.

The District Court in fact sustained that claim.

The District Court reasoned that there were only purposes that could be imagined for such a program, one was to assist needy children of families which were impacted adversely by unemployment.

Secondly, the Court said, the unemployed fathers program have been designed to remedy a structural flow in the basic AFDC program which had encouraged unemployed fathers to desert in order that their remaining family could qualify for benefits.

Justice William H. Rehnquist: Mr. Alsup, is “impact” a verb?

Justice William J. Brennan: It is these days.

Mr. William H. Alsup: I think that's -- It has been recently.

I'll re-modify that to say that families adversely effective by unemployment.

Well, the District Court reasoned that with respect to the first of those two objectives, that is to assist families adversely affected by unemployment, it didn't make any difference whether it was the woman or the man who had been discharged or lost employment that both families we're just as needy.

I should say by the way that the Government does not disagree with that part of the analysis of the District Court.

Our disagreement concerns the second goal of the statute.

That again is to remedy a structural flow in the basic AFDC program that had created an incentive for an unemployed father to leave home so that the mother and child or other children could qualify.

Chief Justice Warren E. Burger: Some reports of the Secretary or a Congressional Committee indicated that that was rather pervasive, did it not?

Mr. William H. Alsup: Yes, Your Honor.

In fact, I would like because that has become such an important issue in this case.

I would like to spend a fair part of my argument time going over some of the legislative history but I think you're absolutely correct that was a predominant goal in both 1961, 1962, and 1967 when this program took final shape.

With respect to that goal though, the District Court said that the program might go to a part of the way towards eliminating the incentive to desert but there was still an incentive to desert and exactly the case before the Court because the mother had lost her job and therefore the family needed income and the father, though he had been connected with the labor market within the meaning of the act, nonetheless might leave home in order to qualify the family.

Therefore, the Court said the statute was -- did not go as far as necessary and to remedy the desertion problem and in fact afforded the desertion remedy intended by Congress and therefore did not satisfy the substantial connection test nor the rational basis test.

Now, our appeal here is a narrow one as I mentioned we do not -- in fact we agree that if the sole purpose of the unemployed fathers program had been to provide relief to needy families hurt by unemployment that it would be unconstitutional to limit the benefits based upon a stereo typical assumption that working mother's incomes are less important that working father's incomes.

We disagree however with the District Court's refusal to sustain the program as substantially related to the purpose to remove or mitigate that incentive for fathers to desert that was existent and identified under the prior program.

Let's consider that latter point for a moment.

The AFDC program began in 1935 as President Roosevelt said at the time he proposed it to Court the program was to provide to aid to children.

There we're two basic principles involved.

First, the President and Congress reason that needy children with two able body parents with be assisted by general work relief programs and unemployment compensation.

Therefore, there was no especial need to enact the program for them.

However, second, children with only a single parent would not be assisted by such general work relief because as was all too common in that day such a parent would be an able to accept employment without placing the child in an institution.

That was an order to avoid breaking up the home where there was a single parent that Congress originally enacted the AFDC programs so as to give that parent a choice to be able to stay home and take care of the child in the event there was only a single parent and that applied whether the -- it was a father or a mother.

Now, over the years it became generally accepted in Congress so found that 1961, 1962, and 1967 that rather than “maintaining and strengthening family life” as Section 401 proclaims its goal to be the AFDC program in fact had a very perverse effect of breaking up homes.

President Kennedy said in his first State of the Union Address, “too many fathers unable to support their families had resulted to real or pretended desertion in order to qualify there children for help.”

So, the President asked Congress to pass what was then called an unemployed parent program.

That program provided aid both unemployed fathers and unemployed mothers but where the predominant reasons behind that --

Chief Justice Warren E. Burger: Well, let me have that again.

Aid to them?

Mr. William H. Alsup: Aid to the families.

Chief Justice Warren E. Burger: Yes.

Not to the unemployed mother or father but for the benefit of the family unit.

Mr. William H. Alsup: You're absolutely correct Your Honor and I misspoke and it is important to emphasize that this is aid to the families and not to any particular individuals within that family.

The whole program is designed for families with children.

Now, two reasons were given by the administration and throughout the legislative history for enacting the program in 1961.

First, the country was in a recession and extension of AFDC to families that were hurt by unemployment was a form of temporary unemployment relief.

Second however, Congress did want to reduce or mitigate the incentive for fathers to desert which have been caused since 1935 by the basic AFDC program itself.

Now, even though we're concern principally with 1967 change, this legislative history in 1961 and 1962 is very pertinent because it reflects and eliminates Congressional intent in dealing with this problem over the years.

Secretary Ribicoff appeared as the lead of witness or the second witness behind Secretary Goldberg.

He said, “This bill would eliminate one of the major concerns expressed through the years about aid to dependent children namely that unemployed fathers are forced to desert their families in order that their families may receive aid.”

He presented convincing evidence of this.

He showed that there was an overwhelming percentage of cases in which there was no father in the home.

In fact, the 1958 statistic show this and only 1% of the AFDC cases, 1% was there just a father in the home with the children.

And 70% of the cases there was mother in the home with the children but no father and --

Justice Potter Stewart: How about the other 29%?

Mr. William H. Alsup: In 19.5% both were present and in 10% both had deserted or neither was present.

Justice Potter Stewart: I thought the program up until then was applicable only to families and which there was one parent and only one parent.

Mr. William H. Alsup: That's principally correct except for the incapacity point if a parent is incapacitated if they were not able bodied and therefore they were able to qualify.

As a practical matter, most of the families were single parent families but an exception was made when the father (voice overlap) --

Justice Potter Stewart: Well, some 29% of the total, we're not one parent family.

Mr. William H. Alsup: No, it's 19.5%.

Justice Potter Stewart: 70% were no father, 1% were no mother?

Mr. William H. Alsup: And 10% was in neither.

Justice Potter Stewart: And 29%?

Mr. William H. Alsup: And 10% of those were neither that means that the children were living with relatives and not with the parents.

Justice Potter Stewart: With or such family with kinfolk?

Mr. William H. Alsup: Correct.

Chief Justice Warren E. Burger: Or foster homes?

Justice Potter Stewart: Wouldn't apply in foster homes?

Mr. William H. Alsup: Not to a foster home.

Usually, the grant parents or uncles or aunts foster homes came in later in a later amendment.

So, again there's 1% a father only, 70% mother only, 19.5% both and 10% neither.

Now, 18% of all those cases was a case in which the father had deserted.

And by desert, I don't mean that they had died or divorced there's another category for those.

This 18% were people who literally deserted their family.

Now, there was no evidence that there was a problem with maternal desertion.

The statistics that were presented showed that the number of cases in which a mother had deserted from a two-parent-family at most could be 1.8%.

That 1.8% also included departures due to death or incapacity or divorced.

So, although we can't give you the exact breakdown within that 1.8%, we know that number of maternal desertions was quite small.

So, we only have a problem of massive fathers deserting in order at least in some cases to qualify for benefits virtually, no mothers doing the same.

Justice William O. Douglas: Mr. Alsup, can I ask one question about the facts to this case?

If the fathers in this case both families should desert, would the families then become eligible?

Mr. William H. Alsup: That is correct.

Now, representative McCormick --

Justice Potter Stewart: Under the original concept the families would then become eligible, wouldn't it?

Mr. William H. Alsup: That's correct under the original program.

I don't believe that's happened in this case but you're correct.

Justice William O. Douglas: No, but to the extent you're emphasizing the desire to prevent a paternal desertion from qualifying a family the statute really doesn't accomplish anything in this particular case and does it, because the incentive is still aware?

Mr. William H. Alsup: That's correct.

Congress did not remedy this precise situation and the 1967 Amendment.

Now, for example on the House in 1961, in the House Floor, Representative McCormick said about this great provision, “it is my considered opinion which is shared by many social welfare leaders that these restrictions referring to the previous program have contributed to advance instability and synthetic desertions when such desertions represented the fathers only means of getting adequate financial protection for his minor children.

That has been cited in the briefs but because it's in a footnote let me call the Court's attention to that.

That's 107 Congressional Record 3768.

Now we cited other passages similar to that in our brief.

The program was passed it was optional only with the states just the unemployed parent program in 12 states quickly adopted it.

But the program ran out a year later.

Secretary Ribicoff came back to Congress and successfully obtained another extension of the same program.

He submitted the report during the senate hearings on the bill which showed that in fact it had accomplished the purpose in part of preventing family breakups.

He said that one of the most significant services which the ADC-UP referring to unemployed parents program offered the recipient families was “the prevention of family breakups.”

Assistant Secretary Wilbur Cohen also testified one of the reasons why the recommendation was made was to provide assistance where there was unemployment.

So as not to encourage men to leave their homes in order to make their families eligible, it appears page 154 of the Senate Hearings.

And then Representative Keil (ph) said concerning the extension.

“It seemed to me last year or it seemed to us last year before the provision was first added that Congress was saying this to the unemployed father.

If you stay with your family and try to hold it together during this critical period, we can offer you no federal assistance but if you happen to desert them, your family will be fully eligible for Aid to Dependent Children.”

He continued, this seems then and it seems to us now an anomalous and indefensible situation.

Moreover, there is evidence which indicates that this new program has already had the effect of returning fathers to their families.

A study he said conducted by HEW for the first seven months of the program's operations shows that of the 66,100 applications allowed at that time 2,900 families which have been receiving Aid to Dependent Children for reasons other than unemployment became eligible under the new program usually because an absent father had returned to the home.

Now, in 1967 Congress restricted the program to unemployed fathers only.

The recession had passed at that time and the principle objective in 1967 in restricting it only to unemployed fathers was that Congress had intended to remedy the structural incentive built-in to the original program for fathers to desert.

I will only burden you with one quotation from the Senate Report in 1967.

They said, “many is concerned about the effect that absence of a state program has on family stability where there is no such program and let me pause here.

There were only 22 states at that time which had adopted this program.

Congress was concerned that the other 28 had not yet adopted it where there is no such program there is an incentive for an unemployed father to desert his family in order to make them eligible for assistance.

This will be a matter of continuing study by the committee.

This program was originally conceived by Congress as one to provide aid for the children of unemployed fathers.

However, some states make families in which the father is working but the mother unemployed eligible for assistance the Bill will not allow such situations.”

Thank you, Your Honor.

Justice William H. Rehnquist: Mr. Alsup, could I ask you a question?

The District Court did certify this case as a class action, did it not?

Mr. William H. Alsup: Correct.

Justice William H. Rehnquist: And it did define the class as all Massachusetts families who would be eligible for the AFDC-UF and therefore medicate benefits except for the requirement 407 that the unemployed parent be a father?

Mr. William H. Alsup: I believe that's correct.

Justice William H. Rehnquist: So that yes, it's the relief that granted and its decision really went far beyond the facts of this particular case, did it not?

Mr. William H. Alsup: That's correct in this sense.

The facts of this case are that the fathers do not even meet the connection with the employment market test of the six out of the 13 quarters.

The relief afforded by the District Court would also provide relief in the case where the father actually is employed.

But the mother becomes unemployed and therefore because they below the standard of need are eligible for assistance.

So, you are correct.

The relief, I believe does extend beyond the facts of this individual case.

Justice Byron R. White: Mr. Alsup, your opponent's brief says that the tax for zone sex discrimination of the civil rights division last October made in this report to the President made a flat statement that the statute overtly and sub-sensitively discriminated against women, do you have any comment about that?

Mr. William H. Alsup: Yes.

I've looked at that provision of the task force report it's about a page and a half and the context of a much longer report concerning discrimination against women in federal legislation.

That report does not purport to have to any exhaustive analysis of the legislative history.

In fact, there is no analysis on the legislative history and on its face this does appear to be some sort of curious sex discrimination but once you get into the legislative history and you see that there was a very permissible purpose that Congress had in mind and that this is substantial related to curing that problem.

Then, you see that it is not a suspect or unconstitutional classification and the task force report didn't address itself to that legislative history.

So, we disagree with the analysis of that report and I believe had they considered the legislative history that we know like that they might agree with us.

Justice Byron R. White: Does the Department of Justice assume any responsibility for what the task force?

Mr. William H. Alsup: Well, of course the Solicitor General speaks for the United States and the Department of Justice before this Court with respect to one of our legal positions are.

So, to that extent, the Solicitor General has disapproved the report of the task force.

Argument of Paul W. Johnson

Chief Justice Warren E. Burger: Mr. Johnson.

Mr. Paul W. Johnson: Mr. Chief Justice and may it please the Court.

My name is Paul Johnson.

I'm an Assistant Attorney General representing the Commissioner of the Massachusetts Department of Public Welfare.

The Commissioner has only appealed from the District Court's remedy for the defect which it found in Section 407.

This appeal raises a fundamental question concerning the balance to be struck between equity powers of the federal courts and the separations of power's principle.

The District Court elected to extend Section 407 under inclusive class in order to salvage the AFDC-UF program.

While this decision to extend the class was correct, the District Court extended the class too far.

The District Court rewrote Section 407 such that the unemployment of either parent would qualify the family for benefits even though the family's principal wage earner was still employed.

Under this remedy, a parent who had been only a casual member of the labor force could trigger benefits by his or her unemployment.

Justice Byron R. White: Do you agree that then that the challenge provision is unconstitutional?

Or do you agree with the United States in that respect?

Mr. Paul W. Johnson: We incorporated United States' arguments before the District Court.

We have not appeal from the District Court's ruling.

We have no objection.

Justice Byron R. White: That isn't quite what I've asked you.

Mr. Paul W. Johnson: We have no objection to the District Court's ruling on the unconstitutionality of the provision (Voice Overlap) of the Congress.

Just the remedy Your Honor.

Justice William H. Rehnquist: Will you get reimbursed with regards of how it comes out on that point?

Mr. Paul W. Johnson: Well, we get reimbursed to a 50% rate, Your Honor.

So, the gross spend out by the state does go up of course and dramatically in the case of the remedy ordered by the District Court.

Justice William H. Rehnquist: Whether reversal on the federal appellant's appeal moot your client?

Mr. Paul W. Johnson: Yes, Your Honor it would.

Justice Byron R. White: And save this amount?

Mr. Paul W. Johnson: It would be a less expensive program, Your Honor.

Contrary to the District Court's ruling, Section 407 legislative history demonstrates the Congressmen to assist only those families whose principle wage earner had become unemployed.

This legislative goal is the critical fact in this case.

The judicial power to extend and under inclusive class depends upon an implied grant of power from Congress to recast its programs in a unconstitutional form.

Justice Potter Stewart: Well, Mr. Johnson, didn't they District Court's remedy do no more than provide that the existing statutory framework shall be applicable when -- to unemployed, to situations where the mother is not employed as it has been in passed to situation for the father's unemployment.

Mr. Paul W. Johnson: That was the District Court's remedy, Your Honor.

It simply attempted to --

Justice Potter Stewart: In other words, even today under the existing statute quite apart from -- I mean assuming it's all valid.

When the father is unemployed even though the mother is the primary wage earner in the family, when the father is unemployed, benefits are payable if the family income is below the standard of need, isn't that correct?

Mr. Paul W. Johnson: Yes, Your Honor.

The present practice is not less beyond --

Justice Potter Stewart: But the District Court did no more than I suggest, isn't that correct?

Mr. Paul W. Johnson: Your quite correct, Your Honor.

Justice Potter Stewart: Having found it invalid and so far is that didn't -- discriminated against the women.

It said the same statutory test and framework shall be applicable now when the mother is unemployed as it has been up to now when the father is unemployed, isn't it what it did?

Mr. Paul W. Johnson: Yes Your Honor, but that rather straight forward attempt to extend to extend the statutory classification, ignores the fact that 1967 Congress at it's level made a decision that families would not get benefits simply because the mother whom Congress assumed to be a secondary --

Justice Potter Stewart: The Government says of course that that's perfectly valid legislation and that is my brother White suggests would be the end of your case if we agree with the Government of United States that this is not unconstitutional, then that's the end of it.

Mr. Paul W. Johnson: But Congress has always meant the AFDC-U program.

Justice Potter Stewart: Congress also in 1967 enacted the law that said these AFDC payments shall be made only when the father is unemployed but that was held unconstitutional?

Mr. Paul W. Johnson: Yes, Your Honor, but in order to fashion a remedy which stays true, the Congressional intent.

Justice Potter Stewart: If we state true the Congressional intent we'd reverse the District Court's judgment holding that the intent of Congress was an unconstitutional.

Mr. Paul W. Johnson: But a remedy -- the remedy of extension finds its fountain of justification in what Congress would've done if they had known that the program is written was incorrect.

What Congress meant to do at bottom was to establish a program for families whose principal wage earner had been knocked out of labor market.

Congress traditionally assumed that that principal wage earner was the father.

Justice Potter Stewart: But in fact under the assuming the validity of the present program if the principal wage earner was in fact the mother, nonetheless AFDC payments are payable if the father is unemployed, isn't that right?

Mr. Paul W. Johnson: That practice has been tolerated by the Congress, Your Honor.

Justice Potter Stewart: Well, isn't that true in the statue not the practice being tolerated, isn't it with the statute provides?

Mr. Paul W. Johnson: Well, statute simply says the father's --

Justice Potter Stewart: Unemployment.

Mr. Paul W. Johnson: -- unemployment.

Justice Potter Stewart: Right.

Mr. Paul W. Johnson: But the legislative reports in 1967 when that term came in specifically said the reason for this was because states had abused the term “parent” by providing benefits to families where the mothers are unemployed even though that principle wage earner, the presumed principle wage earner the father was still working.

Congress specifically reacted to that syndrome of allowing a secondary wage earner to trigger benefits by unemployment.

That, I think when you strip away the sex characteristics that Congress used to define these economic terms is the underlying intent of Congress.

If you consider a program that provides benefits when a secondary or even a casual wages earner is knocked out at the labor market that is a great step forward from the limited goal which Congress sought in 1961, 1962, and 1967 to achieve what was simply to help families whose principal wage earner, their economic means that have a knock out of that employment market.

Chief Justice Warren E. Burger: Some of your arguments make me wonder why you did not appeal on the constitutional question instead of just on the remedy.

Mr. Paul W. Johnson: Your Honor, I think that may highlight the fact that the Commissioner differs tremendously with the Secretary and the Solicitor General on his reading of legislative history.

The Solicitor General has retreated to the concept that the only purpose of AFDC-U was to kept fathers from leaving the home, a prophylactic against the defect in the AFDC structure.

Chief Justice Warren E. Burger: The simulated desertions you mean?

Mr. Paul W. Johnson: Pardon?

Chief Justice Warren E. Burger: The simulated desertions, the synthetic --

Mr. Paul W. Johnson: Yes.

Chief Justice Warren E. Burger: -- as they were called?

Mr. Paul W. Johnson: Yes, Your Honor.

But we say the a fundamental reason that Congress enacted this program, and my brief bares this out in terms of legislative history was to get benefits out of families whose principal wage earner had been laid off.

When President Kennedy came into office in 1961, he found the tremendous recession and institute two major programs right after that to extend that employment compensation and to provide benefits to wage earners who couldn't find jobs.

The concept was one of the equality of treatment why should a child whose father sits at home because his employer is shut down be any less needy, any less where the benefits in a father -- than a child whose father has simply walked out the door, the idea was to take care of children whose wage earners had been let down by the economy.

This is what AFDC-U was generated to do.

In short, the District Court's remedy has two flaws, as a constitutional matter, it over steps the limits which Congress set for AFDC-U program.

As a matter of equity, its remedy exceeds the scope of the constitutional wrong which it would remedy.

A principal wage earner remedy that advocated by the Commissioner would assist every family whose principal wage earner whether male or female is an unemployed.

That is a complete remedy and more accurately preserves the Congressional conception of the AFDC-U program which I discussed with Justice Stewart and Mr. Chief Justice Burger.

The Secretary in its brief now attempts to buttress the District Court's remedy from another direction.

He asserts that his power to define unemployment by this Court from adopting the principal wage earner remedy even if that remedy more accurately reflects the intent to Congress.

Secretary's argument misreads Section 407, it must be rejected.

Turning first to legislative history and quite briefly because I've discussed it, the key when the commission is I to this case is what Congress meant when it selected the father as the parent who must be unemployed.

Congress identify the principal wage earners whose unemployment would impoverish their families as fathers, purged to this sex bias only the legislative focus upon the family's principal wage earner remains.

Substitution of the term “principal wage earner” for term “father” would preserve the legislative purpose to assist those families whose true bread winners were unemployed no more and no less.

Turning to the Secretary's argument, the plane language of Section 407 rebuts the Secretary's assertion the only he has the power to adopt the principal wage earner remedy.

The Secretary now points to exclusive discretion under Section 407 to define unemployment.

Section 407 defines an eligible family in terms of and I quote, “the unemployment has determined in accordance with standards prescribed by the Secretary of its father.”

Section 407 only authorizes the Secretary to define unemployment.

It does not authorize him to redefine term “father.”

These two terms expressed very different concepts unemployment is a relative notion subject to empirical definition.

A definition appropriately left to administrative discretion on ongoing basis.

Congress' choice of the term “father” on the other hand represents a policy judgment as to which families should be entitled to benefits.

The Commissioner argues those families whose principal wage earner has been knocked out of the labor force.

In order to reaffirm the limits on the judicial ability to rewrite legislation, this Court should reverse the remedy ordered by the District Court and put the principal wage earner remedy in it instead.

Thank you very much.

Argument of Henry A. Freedman

Chief Justice Warren E. Burger: Very well, Mr. Johnson.

Mr.Freedman.

Mr. Henry A. Freedman: Mr. Chief Justice and may it please the Court.

Under Section 407 of the Social Security Act, appellees are denied desperately needed cash and medical benefits for one reason and one reason only.

The parent and the family whose unemployment cause the destitution is female.

These families are just as needy as those who received benefits.

The female parent has extensive of work history and does has willing to comply with work requirements as the male parent whose unemployment qualifies the family for benefits.

The problem with the appellee families apparently, is that the mother for reasons of circumstance or of choice does not conform to traditional stereo types and is or has been a family breadwinner, but only traditional that is male bread winners can qualify family for AFDC-U benefits.

The gender discrimination that we have in this case is more onerous than that what this Court has encountered in any prior gender discrimination cases because of a combination at work here.

First, subsistence benefits, benefits needed for survival are being denied and secondly, the act imposes an absolute bar to receive to those benefits rather than simply applying a further test under which a showing must be made such as a test of dependency.

Since there is gender discrimination in this case, the test to be applied as this Court most recently reiterated in Orr versus Orr last month is that the gender classification must serve important governmental objectives and be substantially related to the achievement of those objectives.

Justice Potter Stewart: Was Orr against Orr was not a case involving a government largesse?

Mr. Henry A. Freedman: That's correct Your Honor that was in a case involving claim between parties.

Justice Potter Stewart: Right and then in any events it was, what that did was limited discretion of a divorce court judge no matter what the situation was he was simply not prohibitive from ever awarding alimony in favor of a husband against (Voice Overlap) wife but that involved private property of two other people, this involves government largesse and there are opinions in that area or somewhat -- it was somewhat different cast, don't they?

Mr. Henry A. Freedman: Well, there might be somewhat more division it is still clear that the Orr decision was applying to test that it previously been applied by this Court in Califano versus Webster, Califano versus Goldfarb cases involving the Social Security Act.

So, Government benefits have been tested under the same standard by this Court.

In seeking to avoid the effect of this test however, the Solicitor General particularly in his brief has argued that there was one objective really and one objective only for the AFDC-U program.

And that was to encourage fathers not parents not the father or the mother but just the father to remain in the home.

But as the state has also argued the overriding objective of the AFDC-U program through out its history has been to meet needs of children cause by unemployment of parent.

And that objective is of course totally unserved by the gender classifications to this (Voice Overlap).

Justice William H. Rehnquist: Well, does your argument boil down all to at what point you slice this thing so to speak?

Did you determine intent as of 1935 or as of 1967?

Mr. Henry A. Freedman: For purpose of this case we would argue it doesn't matter as of what you determine there it.

There were really two years here were decisions were made with regard to the AFDC-U program.

The first was in 1961 when the program was created and then was clearly sex neutral.

If no change has been made 1967, the Westcott family, The Westwood family would have qualified for benefits.

So, what we have here is a cutback made in 1967.

Justice William H. Rehnquist: But I thought you are arguing is the overall purpose of AFDC program which I understood was adopted in 1935?

Mr. Henry A. Freedman: That is correct and the AFDC-U program is a sub-program clearly sub-program of the AFDC.

AFDC was designed to meet the needs of dependent children.

AFDC-U was added in 1961 to expand the class of dependent children whose needs were going to be met by the program namely to include the children of the unemployed and that definition of the dependent child has been maintained in the AFDC-U program until the state, the dependent child.

The child qualifying for benefits of the program is the child deprived of parental supporter care by reason of the unemployment and it was just the word of strange in 1967 was unemployment of a father instead of unemployment of the parent.

The clearly, the purpose reflective by the statutory language and by the legislative history through out was to meet a need cause by an unemployment.

Indeed in 1967 former HEW Secretary Ribicoff, now Senator Ribicoff has stated that a child can be just as hungry if a parent is unemployed as a parent is dead absent or incapacitated.

Indeed, nowhere in the legislative history is there any statement or any reflection that the fundamental purpose of the AFDC-U program to meet needs was being rejected or abandoned or even diminished by Congress.

Justice Byron R. White: But in fact it was?

Mr. Henry A. Freedman: Indeed it was.

Justice Byron R. White: So, I mean --

Mr. Henry A. Freedman: But nowhere did Congress say we are cutting back on the program because we believe they are needy children whose needs we don't want to meet.

Justice Byron R. White: But Congress did cut back in the program --

Mr. Henry A. Freedman: It certainly did.

Justice Byron R. White: -- whatever that be or you wouldn't be here?

Mr. Henry A. Freedman: That's correct and but we're trying to discern is why the Congress cutback on the program.

Justice Byron R. White: As a representative of the people of the United States he did.

Mr. Henry A. Freedman: It had power to act.

The question is, is why they did act.

Under the test that we're applying today the Court has set out for itself the test to determine was the actual purpose of the gender classification.

Justice William H. Rehnquist: Well, are you telling us that there is something to this Court knows that Congress didn't know about what its purpose was in 1967?

Mr. Henry A. Freedman: Not at all with this Court has to do is to read the act which tells us that the purposes to aid dependent children and then look at legislative of history and attempt to discern why wasn't that Congress made the change that it did in 1967 and then does the gender classification substantially served that purpose and when we look at the legislative history in 1967 as I was saying refined no indication that there was desire to move away from needs meeting purpose and move as the Solicitor General argues to an anti-paternal desertion purpose what we do far is that the debate was pervaded by sex stereo typing that the words “father and parent” were used interchangeably without any indications or sense that something different was being said.

Justice William H. Rehnquist: Well, what do you say the purpose of Congress in 1967 was when did enact this as reflected in the legislative history?

Mr. Henry A. Freedman: We would say that the purpose of the introduction of the gender classifications was consistent with the general concern that Congress had in 1967 as regard to AFDC-U program that some states were qualifying families for benefits on the basis of the so-called unemployment of a family member who they assume to be homemaker, the housewife when that person really had no prior task into the workforce and was not the type of person whom Congress saw as unemployed who was losing income and therefore someone who created the need that Congress was to meet.

Congress addressed this in several ways.

It addressed it by adding a primary attachment to the work force task.

But it would seem that in terms of the stereo difficult thinking that the real wage earner in the family is the father and that the mother is basically person who stays at home but a way of nailing down that decision was to deny a whether there was unemployed mother.

Now, we don't really know because that the problem we have here is that the legislative history is generally so uninformative.

But what we do know is that no one claims that the purpose was being changed.

No one attached real significance to this change.

Rather they spoken terms of the type of the stereo types which this Court is consistently rejected such --

Justice William H. Rehnquist: Well, are you saying that where legislative history is not clear you're not free to look at language of the statue itself?

Mr. Henry A. Freedman: Not on the list, not on the list the argument is that the language of the statute demonstrates concern about need caused by deprivation and the Solicitor General is arguing that the purpose here was to deter desertion and we looked at the language of the statute and no where do we see any discussion of that.

That is why we suggest that it is valid to look at legislative history.

Chief Justice Warren E. Burger: Do you have difficulty finding that concept in legislative history?

Mr. Henry A. Freedman: The deterrence of desertion?

Chief Justice Warren E. Burger: Yes.

Mr. Henry A. Freedman: Not all.

We find it quite easy to find in the legislative history with regards to other sections of the AFDC program which were enacted specifically to address the question of desertion.

In fact, in taking the action that Congress took in the Social Security Amendments of 1967, the bill that we're addressing here today both committee reports had a heading.

One heading that said AFDC-U program and another heading that said desertion.

And under the heading desertion, two provisions were discussed, one, to strengthen the child support program under which states would identify and pursue absent parents for child's supports; and the other to impose a so-called AFDC freeze under which federal reimbursement to the states there will be cut on federal reimbursement to the states for absent parent cases so that if the states absent parent case load increase there will be no further federal funding.

Congress made it clear that the reason for this was to store the states into action to do something about desertion to improve their family services, to strengthen the child support program but in both of those instances and which Congress explicitly addressed the question of desertion it did so clearly in a sex neutral matter in terms of the legislation.

There is no indication that it was a less concern about a mother deserting family than about a father deserting a family.

And clearly if Congress had such an anti-desertion objective related to the AFDC-U program it too would've been sex neutral and of course the gender discrimination would not bear fair and substantial relationship to such an objective.

The Solicitor General to be noted has made no attempt to defend to the gender discrimination in this case on the basis of a general congressional desire to maintain family stability or to deter desertion.

Moreover, we would want to point out that the Solicitor General has this morning relied almost entirely upon the 1961 and 1962 history the Act when the act was clearly sex neutral where an unemployed --

Justice Byron R. White: Supposed in 1961, was it this first adopted in 1962?

Mr. Henry A. Freedman: At 1961 for one day.

Justice Byron R. White: 1961, suppose the 1967 has been adopted the 1961 and the 1967 form and were perfectly clear from legislative history which you dispute that the reason they want to adopt it was to aviate the desertion of fathers.

Would you still argue that there was unconstitutional gender discrimination?

Mr. Henry A. Freedman: We certainly would Your Honor for at least two reasons.

One would be that it's concern was to deter desertion of fathers as Justice Stevens noted before it simply doesn't work that way if the cases in which, cases such as a plaintiff's cases in which it was the mother who became unemployed are still cases and which there's the father or the mother as the cases from the father becomes unemployed.

The father or the mother will be in a position where the family can only qualify for benefits if one of the parents leaves home.

We should note in response the question before that indeed in this case Billy Westcott although his landlord suggested that he leave home in order to qualify the family for AFDC benefits and able to pay the landlord rent but he didn't not found rather the family went out benefits until --

Justice Potter Stewart: What is true that up until 1961 if two parents were in the home even though the father became unemployed they were totally ineligible for AFDC payments?

Mr. Henry A. Freedman: That is correct.

Justice Potter Stewart: Until 1961 unemployment didn't have any thing to do with it if both parents were there and therefore if an unemployed father became unemployed prior to 1961 there would be an incentive for him to leave home and so it will be a single parent family so they'll be eligible?

Mr. Henry A. Freedman: There was an equivalent incentive for the mother to leave home and the point is that there is no gender discrimination.

The AFDC-U -- the AFDC program in 1935 (Voice Overlap) until the present time has not drawn a distinction on basis itself.

Justice Potter Stewart: Well, up until 1961 the family was eligible only if there was a single parent it was not eligible if they were -- if both parents were in the home even though unemployed.

Mr. Henry A. Freedman: Unless one was incapacitated of course as you pointed out before.

Justice Potter Stewart: Right.

Mr. Henry A. Freedman: That is correct.

Justice Potter Stewart: But after and that was the problem to which Congress is addressing itself because that prior to 1961 regime provided an incentive to unemployed father who became unemployed to leave home so his family would be eligible, isn't that right?

Am I might quite wrong about that?

Mr. Henry A. Freedman: You are right that the eligibility is based upon there being a parent absent.

Justice Potter Stewart: Away, physically gone.

Mr. Henry A. Freedman: That is correct.

We would not agree that that was the problem that Congress was addressing in 1961.

We believe the legislative history shows that the overwhelming problem that Congress was addressing in 1961 was that there were needy two-parent families out there at this point of recession who are not eligible for benefits and who desperately needed benefits and as purpose of the program as the legislative history shows through out is to meet the needs of these children.

It was also noted that this would have the desirable effect of eliminating an incentive that was precedes in the existing AFDC program.

There are those who argue in Congress that there was no such incentive to desert that indeed states had general assistance program which often provided for these families.

They were certainly the skeptics.

They said this was not the purpose.

Everyone did agree that the purpose of the legislation that the overwhelming purpose at least was to meet needs was to provide for families who otherwise not receiving benefits or who were receiving inadequate benefits under state plans or who exhausted unemployment compensation.

Chief Justice Warren E. Burger: Are telling us that this counterfeit or synthetic desertion pattern was not part of motivation of Congress?

Mr. Henry A. Freedman: We do not believe that the record shows that the motivation of the committees who adopted this legislation as the Congress has adopted that the motivation was affected in any significant way by concern about desertion real or synthetic.

But it clearly was discussed and certainly our case doesn't turn upon rejecting that is a purpose where is the Solicitor General's case, at least the way the brief has been represented, turns upon his establishing that there was no purpose related to meeting need.

It is our argument however that in 1967 when this chain was made there is no reflection that Congress adopted the gender discrimination because it was abandoning a fundamental needs meeting purpose of the program and moreover there is no indication that when adopted this change it was related to the issue of desertion.

Once again, all of the discussion about desertion comes essentially in two sources.

One is the other provisions of the act that I referred to, the concern desertion.

Child support program, the AFDC freeze and so forth.

There, responses of the legislation the committee chairman and so forth spoke in terms of desertion.

The other time desertion was discussed.

Well, was with regard to AFDC-U program and was by those upon who the Solicitor General relies who were those, who were oppose or rather who supported expansion of the program and will ultimately voted against this bill was adopted.

Those individuals said, we need a mandatory AFDC-U program and every state to fight desertion.

And that was voted down by the Congress.

But the Congress supported was a bill presented by Senator Long, by Congressman Mills which -- to which they attached no significance.

They never even noted on the House of Senate floor in presenting the bill that a gender discrimination it's been introduced here.

It went entirely without notice as Senator Long in discussing the bill with other Senators referred interchangeably to the unemployed fathers and the unemployed parent bill.

He didn't see it is a significant apparently and no one else called him on it said, why are we changing this from unemployed parent to unemployed father?

The reason we submit is that they were thinking consistently in terms of the type stereo type for this Court has rejected.

Rejected in standing, the assumption that men are going to go out into the world of work and women will stay at home.

The (Inaudible) can overbroad generalizations in Wiesenfeld that it is only the male parent's earnings that provides significance source of support.

Justice William H. Rehnquist: Mr. Freedman, isn't that somewhat inconsistent with your use of the word “archaic” if in your view the Congress had used correct perceptions of male and female roles in 1935 and 1961 and 1962?

Isn't that a little ironic that all of a sudden 67 years after those dates, it all of a sudden reverted to what you described as archaic notion?

Mr. Henry A. Freedman: It certainly is and we really have no explanation for that.

It did happen, it was not the law before the AFDC and AFDC-U benefits were divided in the sex neutral basis and we have searched through the legislative history as of our opponents and the best explanations have been offered and we believe the best explanation is that they even didn't think about it.

They slip into some format.

We believe because they were indeed looking to a prior touch into the work force and assumed when you look at the question of employment that women did not contribute significantly to their families in the past.

Justice Potter Stewart: I think you said that you understood the Solicitor General's argument to be entirely based upon this legislative purpose with which you disagree.

And it's true that he spent great deal a time this morning in oral argument on that subject.

But as I read the brief, the basic argument is that this is simply not the kind of gender discrimination with which this Court has previously dealt because this deals with benefits to families and the families might be all female or might be all girl, children and that the benefits that are payable or not payable are not in anyway discriminatory upon the basis of gender unlike our other cases to which you just been citing us?

Mr. Henry A. Freedman: Well, Mr. Justice Stewart, we were struck --

Justice Potter Stewart: Isn't that their argument?

Mr. Henry A. Freedman: We were struck by the fact that what appears to be a major argument in their brief that there's no gender discrimination in this case at all.

I was not trust before this morning --

Justice Potter Stewart: No gender discrimination with respect to the benefits are not payable?

Mr. Henry A. Freedman: Distribution of these benefits.

That's right, and that we simply believe --

Justice Potter Stewart: Because the beneficiary is maybe at least half have more female and maybe in of any particular case 100% of them are.

Mr. Henry A. Freedman: Well, indeed in every family their argument is that in every family where unemployed mother is denied benefits there is a father also because by definition we're talking about two-parent families.

Justice Potter Stewart: And there are children, there may be boys or girls.

Mr. Henry A. Freedman: Maybe boys, maybe girls.

The issues in this case however is that the benefits that are being provided --

Justice Potter Stewart: But didn't you understand that to be a large part of their argument in their brief?

Mr. Henry A. Freedman: That's right, Your Honor and I did not address it this morning because they seem to have pretty much abandon this morning --

Justice Potter Stewart: Well, I think they filed their brief here and I don't think they withdrawn any part of it.

Mr. Henry A. Freedman: Fine and our response to that is that the benefits that are issue in this case are benefits based upon past employment when Government distributes benefits on the basis of past employment.

And then denies them, when the person who is employed in the pass as a woman it is clearly denigrating the efforts of women who we're --

Justice Potter Stewart: But this is not employment compensation?

Mr. Henry A. Freedman: No, it is not a normal compensation.

Justice Potter Stewart: This is not based upon past employment?

Mr. Henry A. Freedman: It is based upon past employment and need Your Honor that the federal government has by statute determined that certain people are eligible for benefits and the criteria for illegibility are essentially for its purposes, its need and past employment.

Justice Potter Stewart: His need unlike Social Security payments and unlike unemployment compensation.

Mr. Henry A. Freedman: It is need and past employment there's a specific past employment test 6 out of 13 quarters.

Justice Potter Stewart: There's a test as to where -- when a person is unemployed.

Mr. Henry A. Freedman: That is correct.

It is so based upon past employment.

It is not based upon past contributions to a fund.

Justice Potter Stewart: No.

Mr. Henry A. Freedman: It is based upon past employment.

And it's determined that past employment of men qualifies the family for benefits and the past employment of women --

Justice Potter Stewart: It is not unemployment but isn't it?

Mr. Henry A. Freedman: But that is defined in terms of past employment.

Justice Potter Stewart: Yes.

Mr. Henry A. Freedman: There's no question --

Justice Potter Stewart: (Voice Overlap) its present unemployment?

That's the test?

Mr. Henry A. Freedman: Yes.

Justice Potter Stewart: Yes.

Mr. Henry A. Freedman: And we would submit to that is no different from the kind of discrimination that this Court has found in many previous cases in Goldfarb and Wiesenfeld for example, the Court found that there was discrimination against one particular category of family, that and which the female spouse is the wage earner.

And in Frontiero and in Jablon the (Voice Overlap) Court found that --

Justice Potter Stewart: (Voice Overlap) there's a compensation, were they not?

Mr. Henry A. Freedman: Well, these are different cases.

In Frontiero, it was a question of husband wife families some of them receive larger benefits.

Justice Potter Stewart: Military compensation?

Mr. Henry A. Freedman: But they were benefits that went to the family not every person, not every serviceman or servicewoman received those benefits.

It was only if there is a dependent it was to a husband-wife family that those benefits were being provided and they were provided to all families in which the husband was the employee, but they were not provided to all families in which the woman was employee and they were family benefits that issued in those cases.

So, we submit that there is clearly gender discrimination involved in this case.

And therefore it's unconstitutional.

In sum then with regards to the case on merits, it is our argument that the purpose -- the overriding purpose of the AFDC-U program is to meet the need of children caused by the unemployment of parent and the denial on the basis of the sex of that unemployed parent neither to serves nor as related to important governmental objectives.

The purpose for the gender classifications was not to deter desertion but rather that purpose was served in sex neutral terms.

And finally, the classification was based upon sex stereotypes upon archaic and overbroad generalizations about the roles of men and women as breadwinners and I should also note, we have not discussed but the roles of men and women as family deserters with the assumption that it is the father who always desert the family despite the statistical showing that there are more fathers and mothers who desert.

But still clearly desertion is something that might confront either parent and this Court has never accepted sex stereotyping simply on the basis that more of one sex than another sex might engage in certain behavior and therefore denied benefits to all members of the sex because of the possible behavior of a certain members of the sex.

Accordingly, the decision on merit should be affirmed and I will turn to the question of remedy raised in this case solely by the State of Massachusetts.

I will first discuss for a moment the traditional choice of remedy, the choice that has always confronted this Court in the past between invalidation of the program itself or extension to the class that has been excluded.

In this case, the class of families with an unemployed mother where the families denied benefits solely because the unemployed parent was a female and not male.

We raise this for minute because the state's attack on extension has included the argument that extension violates the principle of separation of powers.

We will then turn to the restructuring primary wage earner remedy urged by the state.

Extension of benefits to the excluded class follows the consistent line of this Court's equal protection benefit cases including gender discrimination cases and it's clearly correct.

Invalidation would cause the abrupt termination of benefits to more half a million needy children and their parents would disrupt the state and local treasuries involved whereas, extension would continue benefits to those needy families and also provide benefits to needy family in which --

Justice Byron R. White: Do you have another case where the Federal Court ordered the state to remedy an equal protection violation one way or another?

Mr. Henry A. Freedman: Where a Federal court ordered this time I mean all of the Social Security Act cases before this Court extension has been the remedy and of course --

Justice Byron R. White: (Voice Overlap) Well, give me --

Mr. Henry A. Freedman: Example in the residency cases the duration of Shapiro against Thompson and so forth involved state AFDC and other public assistance programs and the remedy there was to extend to those who had less than a year's residence in the State.

Again, in all of these programs as we would point out there's an option to the state to participate in the program or not.

Indeed, with regard to the AFDC-U program.

There's an option to the state to participate in the AFDC-U program and still retain its participation in the basic AFDC program.

So, the order of extension here simply makes it possible for the State of Massachusetts and every other state to decide whether or not it wishes to participate in the extended program.

Whereas, in validation would make it impossible for any state even if it wants too to participate in the extended program and this Court as the earlier received an amicus brief from the State of Pennsylvania which indicated affirmatively that it wanted and extended AFDC program who would be denied that opportunity if invalidation --

Justice William H. Rehnquist: Denied that opportunity by whom the Pennsylvania legislative?

Mr. Henry A. Freedman: No, no if the Court's order were to invalidate the AFDC-U program the state then could only provide benefits to families of the unemployed by using its own money entirely had been denied the opportunity to request federal reimbursement in effect.

And that's what that issue here in terms of invalidation or extension.

And that is clearly why invalidation is simply not adopted in benefit cases because of the problems it would present.

Justice William H. Rehnquist: Well, why doesn't the state and invariably want the broadest possible option in terms of invalidation and if it's purely optional with the state and if it's just a question how much extra federal money of the state can pick up?

Mr. Henry A. Freedman: Well, the argument here is apparently the State of Massachusetts would like to get some federal matching for certain families but not for others.

So, it is taking the occasion of this case to do an effect and I believe Mr. Justice Stewart was suggesting before to try to redefine the terms in the act not really as a matter of extension or invalidation.

Extensions to the excluded class clearly extension to the excluded class here means picking up the families would be eligible but for the sex of the unemployed parents.

Justice Potter Stewart: Right.

Mr. Henry A. Freedman: And there's no really much complication, you're rather with the State of Massachusetts has said is why were added.

Why don't we redesign these programs away with in 1979 but really like to see it and that's why having a primary wage earner test with the state in effect is doing is arguing that as a matter of statutory construction that indeed perhaps is a way of avoiding the constitutional issue.

The Court could say that looking at the legislative history Congress in 1967 said file there but really meant primary wage earner.

The problem is that will clearly fail as a matter of statutory construction.

Congress said father, Congress meant father, Congress never said primary wage earner whenever been used the term.

So, instead what we have here is the state seeking a --

Justice Byron R. White: If you say the judge may add father and mother the Congress clearly meant father but you said the judge you can order those words that one word to mean mother and father?

Mr. Henry A. Freedman: That is extending the benefits to the classes it's been excluded.

Justice Byron R. White: No.

All the state suggests is that we said -- saying father and mother.

We say father and mother depending on father or mother whichever is the primary wage earner.

Is that much of a --

Mr. Henry A. Freedman: That is what the state is saying but we did run in many ways runs a file of the test for remedies starting with the separability clause that is in the Social Security Act itself which provides that the invalidation of any provision of the act and we are discussing remedy of course only if the provision of the act has been held invalid as it applies to certain persons shall not effect its application to others and yet with the state is arguing for is determination of benefits to many families currently receiving them because there some reason the father, well unemployed and while his unemployment has made the family needy the father does not satisfy the primary wage earner test for some reason.

So, clearly the separability clause of the act should be violated.

Moreover, the administration of the AFDC-U program would be seriously disrupted throughout the country.

The states attempted to grapple with the term primary wage earner as I suggest before the legislative history does not give any guidance as to what primary wage earner means.

What Congress did do in 1961 and 1967 is make irrelevant the employment of the spouse and we believe the Court should adhere to that.

And finally, --

Justice Potter Stewart: Mr. Freedman, what is the -- please refresh my recollection as to what is the procedural posture of this case, it was a class action?

What?

For declaratory judgment?

Mr. Henry A. Freedman: And injunctive relief.

Justice Potter Stewart: A declaratory judgment that this statutory scheme was constitutionally invalid?

Mr. Henry A. Freedman: Correct.

Justice Potter Stewart: And that's -- the Court so found wouldn't that -- shouldn't that as a matter of appropriate exercise of the judicial power be the end of it?

Mr. Henry A. Freedman: Well, it really was the end of it Your Honor, that the Court entered its injunction on April 20th and at least I think the United States and plaintiff thought the case was over.

The state then came back and in the process of implementing the Court's order sought to impose the primary wage earner test then the parties had to go back and litigate the state's changing of the test.

Justice Byron R. White: Why didn't the court just say I enjoin enforcement of this statute, I just found them constitutionally.

Justice Potter Stewart: Because it's unconstitutional.

Justice Byron R. White: Why didn't you say that?

It went much far than that.

It said, I'm not going to invalidate the statute I'm going to rewrite it.

Mr. Henry A. Freedman: Now, the Court did not rewrite it, the Court decided as between the choice it could either invalidate --

Justice Byron R. White: Yes, but the statute still enforce.

Justice Potter Stewart: After it's been held invalid.

Mr. Henry A. Freedman: The statute, the statute of the AFDC program was continued in effect but the (Voice Overlap) --

Justice William H. Rehnquist: (Voice Overlap) statute.

The 1967 amendment has been invalidated.

Mr. Henry A. Freedman: To the extent that changed the word “parent to father”, yes but not the rest of the act.

Justice Potter Stewart: Well, so that reinstated the earlier?

Mr. Henry A. Freedman: That's correct.

Justice Potter Stewart: 1961-1962, I see.

Mr. Henry A. Freedman: That's correct.

Justice Potter Stewart: Although that have been repealed, haven't it?

Mr. Henry A. Freedman: It had been repealed by the -- or it's been amended by the change of father, I don't believe it's been repealed the --

Justice Potter Stewart: But --

Mr. Henry A. Freedman: -- word have been changed.

Justice Potter Stewart: -- in effect it had.

Justice Byron R. White: Well, why -- that still doesn't explain why they needed and injunction to require the inclusion of women?

Mr. Henry A. Freedman: Well, the injunction was needed both as against the state to have it so long as it had in AFDC-U program to provide benefits in the sex (Voice Overlap) --

Justice Byron R. White: Why?

Justice Byron R. White: That that doesn't more than reinstate the 1961 law.

Mr. Henry A. Freedman: Well, no the state could off out of the program in any time.

The injunction is -- as de novo for cases what so long as you are in the federal program you must comply with the federal law that it's now been rendered constitutional.

Justice Byron R. White: Now been rendered the --

Mr. Henry A. Freedman: By the Court's decision.

Justice Byron R. White: -- now been held unconstitutional (Voice Overlap) to say I enjoined the enforcement of this unconstitutional statute.

Mr. Henry A. Freedman: Why I think the result would've been the same as this we're arguing before in this case.

I'm not sure what the differences (Voice Overlap)--

Justice Byron R. White: Why would the state within had to decide what to do about it?

Mr. Henry A. Freedman: Well, to size up inner out which still the decision that it has.

The one thing it cannot do is continue to discriminate (Voice Overlap) --

Justice Potter Stewart: Well, the Congress wouldn't to decide it, wouldn't it if the Court had held this statute, this 1967 statute is unconstitutional and I enjoined its enforcement for that reason period.

Then there would have been no unemployment, there would've been no AFDC-U?

Mr. Henry A. Freedman: That would have been invalidation of the program.

Justice Potter Stewart: Correct.

Mr. Henry A. Freedman: One of the two remedial choices (Voice Overlap) --

Justice Potter Stewart: It would because it was held to be unconstitutional.

Mr. Henry A. Freedman: It would've been the sex discrimination --

Justice Potter Stewart: Then about (Voice Overlap) whether they have anything at all, any AFDC-U or to put in a sex neutral one or none at all but until the Congress acted this 1967 statute would've been held unconstitutional and the District Court would've enjoined its enforcement for that reason.

Mr. Henry A. Freedman: That is not the course of course it is been followed in any of the prior cases in Weinberger against Wiesenfeld for example, the Court had the option of denying benefits to all young widows who were carrying for children in the home.

Justice Potter Stewart: But really that's an option of Congress.

Mr. Henry A. Freedman: Well, this Court did not if Congress that option of course that extended benefits and in Goldfarb, this Court did not give Congress the option to extended benefits and in every case it did the right thing.

We would submit the only thing that could be done under the circumstances because the test as all the parties agree Justice Harlan has announced to most succinctly in his concurring opinion in the Welsh case is --

Justice William H. Rehnquist: Was that a court opinion?

Mr. Henry A. Freedman: No, it was not.

It was a concurring opinion under just cited --

Justice Byron R. White: The only vote that way in the (Voice Overlap) --

Mr. Henry A. Freedman: He was the only vote the way in the case but various courts have -- had described that as the correlation of the case --

Justice William H. Rehnquist: This Court?

Mr. Henry A. Freedman: Alright, I withdraw that.

We would submit --

Justice Potter Stewart: One distinctive thing about that opinion is that none of the other aid agreed with it.

Mr. Henry A. Freedman: That is correct.

But the principle announced, the principle announced with regard and the principle followed in every case --

Justice Byron R. White: Since no one since have as far as I know.

Mr. Henry A. Freedman: The principle followed has been that the question that the confronting of court in determining at aspect of the statute unconstitutional is whether the entire program is to be abolish whether it is more consistent with Congress' purposes in terms of the entire program to abolish the entire program or to extend benefits to the class that have been excluded from the program.

Now, we submit that the legislative history here shows consistently that Congress's overwhelming concern was with the needy children of unemployed parents that benefits are quadrupled in the program since 1967 when this provision was last adopted and that therefore the congressional purposes is served by extending benefits to the class and leaving the Congress over time the choice of how it may wish to change the program in any way.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.