Transcript

IN THE SUPREME COURT OF THE UNITED STATES

PATRICIA R. HARRIS, SECRETARY OF HEALTH AND HUMAN SERVICES, Appellant, v. CHARLES EDWARD WILSON, ET AL., Appellee

No. 79-1380

December 2, 1980

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:09 o'clock a.m.

APPEARANCES:

ELLIOTT SCHULDER, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C. 20530; on behalf of the Appellant

JAMES D. WEILL, ESQ., Legal Assistance Foundation of Chicago, 343 South Dearborn St., Room 800, Chicago, Illinois 60604; on behalf of the Appellee

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear arguments next in Harris against Wilson. Mr. Schulder, you may proceed when you are ready.

ORAL ARGUMENT OF ELLIOTT SCHULDER, ESQ., ON BEHALF OF THE APPELLANT

MR. SCHULDER: Mr. Chief Justice, and may it please the Court:

This case is before the Court on direct appeal from the United States District Court for the Northern District of Illinois. The question presented is whether Section 1611(e)(1) of the Social Security Act violates the equal protection component of the Fifth Amendment's due process clause by excluding from certain public assistance benefits under the Supplemental Security Income program otherwise eligible individuals who are residents of public institutions and whose care and treatment are not funded under the Medicaid program. In order to gain a proper understanding of this question, it is necessary to explore the interaction of Medicaid and SSI statutes that give rise to the equal protection issue here.

Under Medicaid, the federal government provides financial assistance to those states that choose to reimburse certain costs of medical treatment for needy persons. The Medicaid program generally covers in-patient and out-patient care for physical and mental illnesses, but it excludes coverage for treatment of persons aged 21 through 64, in an institution for treatment of tuberculosis or mental diseases. Since Appellees are between 21 and 64 years of age and are patients in mental institutions, their treatment is not funded under Medicaid. The validity of the Medicaid mental institution exclusion was upheld in this Court's summary affirmance in Legion v. Richardson, and Appellees do not challenge their exclusion from Medicaid coverage in this litigation.

Under the SSI program, which was in effect on January 1st, 1974, the federal government provides monthly cash assistance to indigent, aged, blind and disabled persons. A person is considered disabled within the meaning of the statute if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. Currently a standard SSI benefit amounts to $238 per month. In Section --

QUESTION: In total dollars, how much are we talking about, any idea?

MR. SCHULDER: In terms of the particular benefit at issue here, while we've stated --

QUESTION: Overall, overall to the government; how much annually?

MR. SCHULDER: We've stated the figure would be in the vicinity of 30 million dollars, although it's difficult to compute it with --

QUESTION: Annually.

MR. SCHULDER: -- precision.

QUESTION: Incidentally, Appellee Wilson is no longer in the case, is he?

MR. SCHULDER: That's correct. The only two Appellees -- the only two named Appellees who are still in the case are Appellee Simmons and Turney. But the case was certified by the District Court as a class action.

Section 1611(e)(1) of the statute at issue here provides that an otherwise eligible person who resides in a public institution is ineligible for full SSI benefits.

QUESTION: Mr. Schulder, could I just ask one question --

MR. SCHULDER: Surely.

QUESTION: -- following up on what Justice Blackmun said, in computing the 30 million dollars, do you just take the number of persons in mental institutions who, and multiply that by the $25 figure, is that how you do it? It's an awful lot of people if you are up to 30 million dollars. Or is there any other cost, other than the $25, in arriving --

MR. SCHULDER: No, that's the only cost that was considered here, but it was done on a, I believe, a nationwide basis. The class that was certified in this case is limited to one of the regions that's covered by the Social Security Administration.

QUESTION: Can you translate the 30 million to the number of persons? Do you know how many people are -- have an interest in the outcome of the case? Well, don't try to -- if you don't have it, then okay.

MR. SCHULDER: As I was saying, Section 1611(e)(1), the statute at issue here provides for an exclusion from SSI benefits generally, of all persons who are residents in public institutions. However, the statute provides that a small, $25-a-month benefit for "comfort items" to those individuals who reside in a medical facility which is receiving a payment under the Medicaid program to pay for the costs of their care and treatment.

The purpose of this reduced monthly benefit, as expressed in the legislative history, is to allow the recipient to purchase small comfort items, such as magazines, stationery or clothing, not supplied by the institution. The statute, the statutory exclusion and exemption at issue here has the effect of denying SSI payments to all residents of public institutions whose treatment, for whatever reason, is not funded under Medicaid. Because of their exclusion from Medicaid, persons between 21 and 64 years of age who reside in public mental institutions are not eligible for the reduced SSI benefit.

Appellees are indigent individuals between 21 and 64 years of age, who are disabled by reason of mental impairment. They thus satisfy the general eligibility requirements for SSI. However, because Appellees are hospitalized in public mental institutions, under the operation of Section 1611(e)(1) they are ineligible for SSI benefits. They are ineligible for the full SSI benefit, because they are housed in a public institution. And they also do not receive the reduced benefit for comfort items because their treatment in a mental institution is not funded under the Medicaid program.

Appellees brought this lawsuit for declaratory relief on April -- challenging the constitutionality of Section 1611(e)(1) on equal protection grounds. District Court, as I mentioned earlier, certified the case as a class action and granted summary judgment for Appellees. The District Court first concluded that the statute invidiously discriminates against the mentally ill, it then determined that classifications based on mental illness are sufficiently similar to suspect classifications, such as race or natural origin to require a stricter standard of review than is normally applicable in reviewing social welfare legislation.

QUESTION: This Court has never held that mental illness is a suspect classification, has it?

MR. SCHULDER: That's correct. Actually what the District Court held in this case was that mental illness was a quasi-suspect classification and thus entitled to an intermediate or heightened level of scrutiny. The only two federal courts of which I am aware, that have specifically addressed the question, have held that mentally ill individuals -- or classifications, are not entitled to any kind of heightened or strict scrutiny. We have cited those in our brief.

The District Court ruled in this case that mental health classifications must serve important governmental interests and must be substantially related to achievement of those objectives.

QUESTION: Well that's pretty much the Boren test, I guess, isn't it?

MR. SCHULDER: That's correct. The Court held that the statute in this case failed to pass muster under this heightened standard. In addition, the Court expressed the view that the statute appeared to be an accidental by-product of the legislature rather than a deliberate means of serving a legislative end.

The case here presents a problem of line-drawing in enactment of social welfare legislation. In enacting the statutory provision at issue here, Congress drew the line at providing SSI benefits to public institution residents whose treatment was partially funded by the federal government under the Medicaid program, while leaving it to the states and local governments to provide for the comfort needs of public institution residents whose care was wholly funded by state and local government sources. We submit that the statute is rationally based on considerations of conserving economic resources and of respect for the responsibilities of state and local governments for caring for those who are within -- caring for the comfort needs of those within public institutions that are wholly funded by those local governments.

The District Court, however, held that the classification at issue here is based on mental health. We submit that the Court's conclusion that this statute discriminates on the basis of mental health, is incorrect, and in fact the Court's conclusion that the statute discriminates on the basis of mental health ignores the fact that individuals such as Appellees, who are disabled by reason of mental impairment are included within the SSI program in the first place, precisely because their mental condition is severe enough to warrant -- to constitute a disability, and to warrant benefits under the SSI program.

Appellees arguments and the conclusions of the District Court, therefore, rest and fall on this tortology. Moreover, it is important in this case to focus on precisely what kind of --

QUESTION: I have some difficulty following that argument. Supposing that they said you are eligible for SSI, one ground would be mental illness, but then they said, however, mentally ill people get half the benefits everybody else gets. They would get in because they are mentally ill, but then they only get a lesser benefit. Couldn't they then still claim the classification was based on mental illness?

MR. SCHULDER: But that's not the classification at issue here.

QUESTION: But I'm just, I'm just directing my question at your point that because they get initial eligibility by reason of mental illness, therefore nothing else done by reason of mental illness can be based on mental illness.

MR. SCHULDER: That may be true, that merely because a class of people are included within the statute initially and then not given equal treatment with other beneficiaries, that would not necessarily mean that the statute did not discriminate against them. But one of the points that we are trying to make here is that the District Court's conclusion that the statute invidiously discriminates against them and the Court's ascribing some kind of antipathetic attitude on the part of Congress toward the mentally ill, simply is unfounded in the context of a statute that singles out people who are mentally impaired for special treatment and inclusion in the program in the first instance. And in fact, the statutory exclusion at issue here does not exclude the mentally ill across the board; in fact, there are large numbers of mentally ill individuals who do qualify for the reduced SSI benefit.

QUESTION: There are a large number of non-mentally ill people who do not.

MR. SCHULDER: That's correct.

QUESTION: Well, Mr. Schulder, if you admit people to schools you can't discriminate, can you? So if you let them in this program, how can you discriminate against them after you admit them, and say that we're not discriminating, because we did admit them.

MR. SCHULDER: Well, we're not --

QUESTION: Aren't you saying we didn't discriminate as much?

MR. SCHULDER: No. Because the specific statutory exclusion that we're dealing with here does not single out any one group of individuals. It draws a bright line between those public institution residents who are receiving Medicaid funding for their care and treatment and those who are not. It's not based in terms of mental illness or even residence in a mental institution. The line that was drawn here is based on a neutral factor of Medicaid eligibility versus non-Medicaid eligibility. We submit that that distinction only has to serve a rational basis and that the rational basis is present to uphold the statutory distinction here.

QUESTION: I thought you said that the reason that was not discriminatory was because they did recognize them in one instance?

MR. SCHULDER: Well, but as I explained in answering Mr. Justice Stevens' question, we're not saying that --

QUESTION: I don't see the difference between that and the school. You say okay, we're not discriminating, we'll let you in the school, but we will educate you in the basement.

MR. SCHULDER: Well, what we're saying is, that the District Court's finding --

QUESTION: To put it more precisely we'll let you in the school, but you can't get the $25 that everybody else gets. Would that be all right?

MR. SCHULDER: Well, what we're saying here is that this legislative scheme does not manifest or reflect any kind of antipathetic attitude on the part of Congress toward the mentally ill. It draws the line at which some mentally ill are excluded and some people who are not mentally ill are excluded. And these people are excluded for reasons wholly unrelated to their mental health status. And it includes people who happen to be mentally ill, and it includes other individuals.

Also in that regard --

QUESTION: Who are not mentally ill?

MR. SCHULDER: That's correct. But who may be disabled for other reasons and who reside in public institutions, and whose treatment is covered under Medicaid.

QUESTION: Mr. Schulder, let me go at it another committed to public mental hospitals. In fact, Appellees brief points out on page 28, footnote 12, that the medium length of stay in a mental hospital is 41 days. On the basis of that bit of evidence, we submit that presence in a mental institution certainly is not an immutable characteristic.

And third, the political powerlessness of public mental institution residents is based, at least in part, on legitimate considerations that these people are simply unable to contribute equally to the political process. This is not a factor like sex or race, where disparate treatment is not a function of ability, but is simply a function of stereotyped views and discriminatory treatment. It's more like the factors of intelligence or physical disability that were discussed in the plurality opinion of frontiero.

Because the statute does not discriminate against the suspect or quasi-suspect group, we submit that it need only have a rational basis to pass muster. As we've shown in our brief, the statute meets this test. Congress could limit benefits to those it was already helping under other programs, such as the Medicaid program here, and it could determine that the needs of these -- of others who are not covered under Medicaid should continue to be met by the states. Now, Appellees argue that the same reasons that support the Medicaid exclusion that was upheld in Legion do not support the SSI exclusion here. But we do not argue that precisely the same reasons support both exclusions; Medicaid and SSI are two separate programs. In enacting the statutory exclusion here, Congress was painting with a broad brush and was not limiting the exclusion to those within a particular Medicaid eligibility provision at issue in Legion. The line in this case is one between public institution residents whose treatment is funded by Medicaid, and those whose treatment is not funded by Medicaid. To say that Congress had to consider a separate --

QUESTION: Do I correctly understand that if Congress did fund the mental institution program with Medicaid, that the government would concede that they could not constitutionally deny the mental patients the $25?

MR. SCHULDER: Well, under the operation of the statute --

QUESTION: I understand the statute would take care of it, but assume that they have adopted a plan -- with an amendment that provided federal funding for mental institutions and for these mental patients, but nevertheless, retained the exclusion of the $25 for these people -- as I understand your argument, that would be unconstitutional and irrational.

MR. SCHULDER: I believe it probably would be and we would --

QUESTION: Yes. So you rest entirely on the fact that the funding is provided by the states exclusively without any federal support?

MR. SCHULDER: That's correct.

QUESTION: And does that mean that there is a presumption that the state is given the equivalent of $25, or just the mere fact that because it's a different source of funding, we don't care whether they get the $25?

MR. SCHULDER: I think the latter would be the proper consideration, although the amicus brief filed by the States of New York and Pennsylvania point out that -- at least, the State of New York does provide this type of benefit out of its own funds. I'm not sure whether other states similarly provide for this benefit.

In sum, our submission is --

QUESTION: Well, that's why New York is against you, here. They want to be relieved.

MR. SCHULDER: That's correct. That's correct. Our position in a nutshell is that at least where a statutory distinction is based on a neutral factor such as Medicaid eligibility, the classification should be judged on its own terms and not in terms of the specific impact on the various subgroups that happen to be affected by it.

Finally, we submit that contrary to the suggestion of the District Court, the statute here is not the product of Congressional inadvertence. In the same legislative package that contained the SSI provision at issue here, Congress also provided for expanding Medicaid to include coverage of those under 21. Congress also considered, and rejected in conference, a proposal to set up demonstrations projects to study the feasibility of expanding Medicaid coverage to those mental institution residents between the ages of 21 and 64.

The brief of the private psychiatric hospital association supports us in our contention that Congress knew what it was doing and knew the impact of what it was doing when it enacted the statute at issue here.

QUESTION: Well if Congress inadvertently enacts a piece of legislation, does that make it unconstitutional?

MR. SCHULDER: Not necessarily, Justice Rehnquist. In fact, the next thing I was about to say was that if Appellees have any problem with the statute and believe that Congress did inadvertently exclude them, then their remedy is with Congress and not with the Courts. For the reasons that I have stated here and we have stated in our briefs, we respectfully submit that the judgment of the District Court should be reversed. I'd like to reserve any time remaining.

MR. CHIEF JUSTICE BURGER: Very well, Mr. Schulder. Mr. Weill.

ORAL ARGUMENT OF JAMES D. WEILL, ESQ., ON BEHALF OF APPELLEES

MR. WEILL: Mr. Chief Justice, and may it please the Court:

The Supplemental Security Income program is a wholly federal program, providing public assistance benefits to indigent, aged, blind and disabled people. One important component of that program is this grant of $25-a-month income maintenance for those people who reside in public or private medical institutions.

The government has tried to characterize the program as excluding residents of public institutions generally, and as involving no discrimination at all against the mentally ill. But this ignores the broad grant of eligibility to virtually all aged, blind and disabled residents of medical institutions whether public or private, and the contrasting special exclusionary rules for certain mental institution residents. The framework is created by the incorporation of the receipt of Medicaid as the trigger for SSI eligibility. But under the Medicaid statute, virtually all residents of medical institutions get Medicaid. That includes residents of hospitals, including specialty hospitals and residents of hospitals and wards treating psychiatric diseases. It includes skilled nursing homes and intermediate care facilities; Medicaid also includes people over 65 and under 22 in mental hospitals.

The group that is excluded from Medicaid is the group of persons 22 to 64 in mental hospitals.

QUESTION: Did I correctly understand Mr. Schulder to tell us that the Court has, through summary affirmance upheld the constitutional validity of the Medicaid?

MR. WEILL: That's correct, in Legion v. Weinberger.

QUESTION: Okay.

MR. WEILL: And we are not taking issue with Medicaid exclusion. In Legion, the Court locked to specific reasons that Congress had articulated in the Medicaid exclusion, that it felt were substantial reasons. And we're not challenging that in any sense. We're looking at the linkage here, to SSI.

QUESTION: Right. So -- but you're proceeding on the premise that the Medicaid exclusions are valid?

MR. WEILL: That's right. No dispute. But it is Appellees, who are 22 to 64, and in public mental hospitals, who are excluded from SSI because they are excluded from Medicaid.

The SSI program, let me first talk a little bit about the nature of the discrimination. The government has argued that this doesn't discriminate at all against the mentally ill. We agree the statute discriminates to some extent among mental patients as well as against mental patients, but that doesn't alter the nature of the case. This Court has frequently considered cases in which statutes discriminated both among and against women, illegitimate children, and aliens. But the Court in each case identified the discrimination -- the discriminated group, as aliens, women or illegitimate children.

The statute and the legislative history of the medical assistance provisions that have been incorporated into SSI, demonstrates mental health status of Appellees plays a key role in the discrimination. The original medical assistance provisions excluded persons who were diagnosed as having psychosis and being treated in a medical institution as a result thereof. Those provisions have been narrowed since the current provision, excludes the Appellees from Medicaid because they reside in an institution for mental diseases. And it is this exclusion that Section 1611(e)(1)(B) incorporates into the SSI statute. Thus, the Secretary's suggestion that mental health status of Appellees is irrelevant to the SSI exclusion is incorrect.

The $25 benefit at issue here is in some senses small but its significance to the Appellees is great. For residents of a mental hospital, as for residents of any other medical institution, the $25 dollar a month grant represents the ability to obtain the rudiments of a barely decent existence. It's used to purchase personal clothing, eyeglasses, articles necessary for personal care, reading material, or to pay the costs of transportation for trips when they are permitted by the hospital, to visit relatives or friends, or to participate partially in the life of the society outside of the institution.

QUESTION: What's that got to do with --

QUESTION: So does that have anything to do with whether other people in the family unit could provide that assistance? Is there any showing that needs to the made of need?

MR. WEILL: Yes. By definition, the members of the class are indigent and eligible, except for the exclusion caused by Section 1611(e)(1).

QUESTION: Well what has the -- the benefit that goes with the receiving of the $25 a month got to do with the constitutionality of the statute?

MR. WEILL: It demonstrates that the Appellees needs for the items are identical and Appellees are identically situated vis a vis the purpose of the statute, as the people who are receiving the benefits. That's all --

QUESTION: So in your view then, the record shows that people in public mental institutions do not receive similar items?

MR. WEILL: That's correct. The record shows that and the government doesn't dispute that.

QUESTION: No, I didn't say the same $25, but I meant similar care provided by the institution.

MR. WEILL: It was Congress that made the determination that medical institutions, by and large, do not provide these items. We are relying, we don't have affidavits from every medical institution in the country or in the region, but we are relying on the Congressional determination that institutions meet the food, shelter and medical needs of recipients, but by and large, do not meet the needs for these types of items.

The Secretary has not disputed that. Mr. Schulder suggested that the New York brief, amicus brief, indicates that New York does make a grant payment of this sort. I disagree with his reading of that brief. I think what he's referring to is a statement in the brief that New York allows people who have income from other sources to retain, including SSI, to retain the $25 or comparable amount, for these possessions, or to buy these items. But the New York brief does not say that New York itself makes a grant for these items.

So Appellees have been denied this grant --

QUESTION: Well on that basis, why is New York on your side of the case?

MR. WEILL: New York is on our side of the case, representing the interests of the residents of its mental hospitals, as is Pennsylvania. They are here not, not necessarily out of the economic interests of New York of Pennsylvania, but on behalf of the residents of their mental hospitals.

QUESTION: Just some good charitable, generous approach?

MR. WEILL: Correct.

QUESTION: But not, you can't rule out the fact that if they got in from the federal government, their own treasuries wouldn't have to bear any of the cognate responsibilities?

MR. WEILL: Well, it's not clear to what extent their own treasuries are bearing any of the responsibility now.

QUESTION: But they must be bearing some, are they not?

MR. WEILL: Now, yes, they must be bearing some of it, Your Honor.

QUESTION: Something more than a token.

MR. WEILL: Well, it's -- it varies from institution to institution. I mean, with the affidavits and -- from the Illinois institutions that are in the record, describe the patients begging visitors and relatives who come to the institution for money to buy some of these items. The institutions in Illinois that they reside in do provide institutional clothing for them, not personal clothing. It varies from institution to institution. But Congress, I keep returning to the point that Congress has made a determination here that people in medical institutions need this grant. Congress has not said why residents of mental hospitals aged 22 to 64 as residents of medical institutions, don't need this grant, that all other residents of medical institutions get, assuming that they are aged, blind, disabled and indigent. Okay. And this denial has occurred not only without the slightest suggestion from Congress of a reason for it, but the Secretary has also not articulated any rational relationship to a legitimate governmental interest.

Unlike many of the public assistance cases on which the Secretary relies, in this case Congress did not differentiate between the covered group and the uncovered group on the basis of a judgment of differing economic need. And the government concedes that Appellees needs for SSI are the same as that of other residents of medical institutions.

QUESTION: But surely you don't deny that the Congressional statutory scheme as written has the effect that the only way your clients can get the money is to hold it unconstitutional?

MR. WEILL: No, we don't deny that. The statute has that effect, legislative history does not describe the statute as it passed, we believe. There is --

QUESTION: Well, but if you don't have legislative history, you have legislation which prevents it?

MR. WEILL: That's correct. We're not making a statutory argument; we are challenging the statutory exclusion. But Congress, all that the legislative history says, it's not directed solely to people in Medicaid institutions, but it's directed generally to residents of medical institutions. For residents of medical institutions, both the House and the Committee reports say, "while most subsistence needs are met by the institution and therefore full SSI benefits are not needed, some payment is necessary for remaining subsistence needs not supplied by the institution." The government does dispute that the Appellees are identically situated with regard to this determination and this need.

QUESTION: Are you going to mention this new classification that the District judge referred to, the quasi-suspect classification?

MR. WEILL: Yes, I intend to, Your Honor. If I may say one other thing first, about the government's rational basis, rationale. Because we do believe that it's not necessary to reach heightened scrutiny here, that the exclusion is so patently irrational that the Court can strike it down on irrational basis grounds without reaching heightened scrutiny. The Secretary's sole contention is that Congress will simply say, well maybe the states will take care of these personal needs for people who are not in institutions that aren't receiving Medicaid. But that argument is flawed in several respects. First, the argument is simply conclusory, it's merely descriptive of the statutory result, but has no content that's related to a function of the SSI program or the Medicaid program, or any other concrete concept of governmental interest. Second, it misapprehends the nature of the SSI program. Congress created SSI to take over existing state income maintenance responsibilities, in part because of the inadequacies of the prior state income maintenance programs. SSI dramatically altered the previous governmental roles and responsibilities for providing public assistance to the aged, blind or disabled. When the federal government has created a federal program, like SSI, like food stamps, like Social Security, to meet a perceived need, irrational discrimination in that program between similarly situated people can't be justified.

And this Court has never suggested that it can be justified by a hypothesis that the need may be met by the state. That approach would simply subvert the Congressional determination, like the one here, that such needs were not being met, or were not being adequately met, or should be part of a federal income maintenance program. In the Social Security, illegitimacy and gender discrimination cases, the Court has never suggested that state AFDC programs, which would cover illegitimate children or women and children, justify exclusion from Social Security. The same is true with the food stamp cases the Court has decided on constitutional grounds, Moreno and Murry. Traditional state assistance roles are no excuse for irrational exclusion in federal programs.

Third, the federal $25 grant is a federal grant to meet a Congressionally determined element of need for people in medical institutions generally. It's not simply a bonus for the happenstance of eligibility for Medicaid programs. As the Secretary agrees, the needs of Appellees exist, regardless of whether Medicaid subsidizes the state's cost for institutional care. But the government's argument ignores the Congressional determination of purpose and the importance of the SSI benefit itself, and the importance of the federal role on income maintenance. Congress found this to be an unmet need. There is no indication that any state, including New York, provides such a grant to meet these needs; Medicaid is withheld in part because states are not meeting the needs of mental hospital residents, that's why Congress originally did not give the Appellees Medicaid and we do not dispute that. But to withhold the federal SSI personal needs grant, because Congress didn't want to subsidize the inadequate state medical care for Appellees, turns rationality on its head and merely penalizes the mental patients for the inadequacies of the states.

The Secretary's argument also assumes, incorrectly, that there is an absolute consistent link between Medicaid and SSI eligibility. And there is not. There are groups of residents of institutions, including medical institutions, that get SSI even though they don't get Medicaid. That includes residents of private mental hospitals aged 22 to 64, includes residents of educational and vocational schools, and residents of public non-medical institutions with fewer than 16 residents. All these groups get SSI benefits, and not Medicaid. The government --

QUESTION: Mr. Weill, I am puzzled by the private mental institution. How could someone be a resident of a private mental institution, and be able to afford a private mental institution and also be on SSI?

MR. WEILL: The person might have Medicare paying part of the bill, there are some people eligible for Medicare but not social security. Or there may be contributions from a church group or some other governmental contribution from the state. Under the SSI rules, in that situation, I believe that church and governmental contributions to the cost of care are not considered income to the person.

QUESTION: I see. Those would probably be fairly rare, though, I mean is there anything in the record to tell us --

MR. WEILL: There's nothing in the record that says. And I don't believe they would necessarily be rare.

QUESTION: Necessarily be what?

MR. WEILL: Rare.

QUESTION: Rare.

QUESTION: Well, when you are dealing with a federal program that simply doles out federal money on a -- basis of perceived need, do you think that your analysis can be carried over so that a Corps of Engineers dam approved in Utah and a Corps of Engineers dam disapproved in Wyoming would leave Wyoming to have a right to claim in this Court that the Wyoming dam should have been funded rather than the Utah dam?

MR. WEILL: Well it's not a situation that normally arises, it would depend on the structure of the federal statute.

QUESTION: Supposing they were virtually identical and Congress simply chose to spend its money on the one in Utah rather than the one in Wyoming?

MR. WEILL: In that situation there's no violation of equal protection.

QUESTION: Well why is there in yours?

MR. WEILL: If there were a statute that said anybody could work on a federal dam except -- they had to be employed or be a contractor for a federal dam, except women, or except blacks, or except persons who were in a mental institution within the last ten years; that raises equal protection questions. There's an entitlement there and an exclusion from that entitlement. Not all federal programs, funding programs, create the types of entitlement that Social Security and SSI do. And in certain circumstances, some exclusions from those entitlements are subject to equal protection -- become equal protection violations.

QUESTION: What sort of entitlement is it that you say Congress has created here, since, as I understood it, reading the statute as written, your class is clearly excluded?

MR. WEILL: That's correct. But they are excluded on the basis of a factor that's irrelevant, not only to the primary purposes of the program, but to any governmental interests at all. And this Court has consistently said, in entitlement programs, that an exclusion has to have a rational basis rationally related to a legitimate governmental interest.

The government here has not come up with any legitimate governmental interests, except the conclusory one that I just mentioned, that's inconsistent --

QUESTION: Well --

MR. WEILL: -- that's inconsistent with the program.

QUESTION: -- they don't want to pay out the money?

MR. WEILL: Well that's never been held by this Court. The mere desire not to make a group eligible --

QUESTION: Well what about the Dandridge case?

MR. WEILL: Pardon me. I believe there are two questions there. The fiscal considerations that are involved have never alone been held by this Court to constitute a rational basis. We discussed that in the motion to affirm. The government here has not pressed the fiscal ground; I would add that the 30 -- in answer to the first question, Mr. Schulder, the 30 million dollar estimate is an estimate that the government made of what the cost would be if every mental patient in a public hospital aged 22 to 64 in the country got SSI. There are about 100,000 such persons, if each person got it each month that would be about 30 million dollars. The government conceded that that estimate did not discount for all the various other factors that would go into reducing that figure: some of those people aren't disabled, some of them have outside income and resources, et cetera, et cetera, et cetera.

QUESTION: What if it's only 20 million, or 10 million; what's -- how -- what's that got to do with it?

MR. WEILL: Pardon?

QUESTION: What if it's only 10 million or 20 million, not 30 million?

MR. WEILL: Well, I was just answering the previous question. The amount of the money, unless the amount is tremendous, as was a factor in Medicaid exclusion, where it came to billions of dollars a year, money alone has not been a basis for upholding an otherwise invidious, discriminatory classification. And as far as the rationale that Congress just didn't want to give it to this group, that's not a rationale that the Court has accepted. In Moreno, the Court said that a bare Congressional desire to harm is not a legitimate governmental interest --

QUESTION: Not a desire to harm, that was a withholding of food stamps, as I recall, from people whom it was felt, Congress felt, shouldn't have food stamps. This may just as well be a desire to draw the line somewhere as to how much we're going to fund into these programs.

MR. WEILL: Well, the things like line-drawing as I understand it, are elements that go into why this Court gives some deference to legislative judgments, because the legislature has to draw lines.

QUESTION: Well presumably, we give a great deal of deference.

MR. WEILL: A great deal of deference. But that does not make line-drawing itself a rational basis for an exclusion. There has to be something beyond just the fact that, oh well, Congress drew the line there. Well, in Dandridge, the Court said that classifications don't have to be imperfect. And several months later in Moreno, the Court said well, this classification like that in Dandridge, is not only imperfect, it has no rational relationship to a legitimate governmental interest. Classifications are not valid because they are imperfect.

QUESTION: Well, do you --

QUESTION: On the question of economy, isn't it true that the record is not clear that there was any legislative interest in that.

MR. WEILL: In this case, yes.

QUESTION: Yes.

MR. WEILL: The legislative, both the House and the Committee reports are both -- provide not only no reason for the exclusion, they provide no basis for suggesting that Congress understood that the exclusion was occurring.

QUESTION: That's right.

MR. WEILL: While the Court, the Court could certainly look beyond what Congress says, in identifying a rational basis for discrimination, if there is one, there are situations where legislative silence or confusion simply reinforced the conclusion that the discrimination is not a product or any rational Congressional scheme. That's -- the Court said that in Schlesinger and Johnson v. Robison, and the Illinois State Board of Elections Commissioner's case. Here, you just can't tell what Congress was doing, what it would have said to justify the denial of the grant, and contrary to the government's rather offhand argument, Appellees are in no political situation to seek relief from Congress. They can't vote, and it is evident from the SSI history and the Medicaid history, that Congress has frequently noted the inability of the mentally ill to obtain equal amount of discriminatory treatment from Congress because they can't vote.

QUESTION: Well if the government is right about the average stay in a private mental institution being 41 days, one would think that many people who have been in private mental institutions, are capable and eligible to vote if they wish to vote, in most elections.

MR. WEILL: Well, the median stay is 41 days, but voting disqualifications don't necessarily relate in most states, simply to being in an institution. Most states disqualify people who have been found incompetent or have been found insane or have been committed, until there is a restoration of rights.

QUESTION: Are you suggesting that all of these people who are denied benefits will never again be allowed to vote?

MR. WEILL: No, I'm not suggesting that.

QUESTION: Well, and if they were sufficiently offended by the Congressional classification, wouldn't they register their protest in the ballot box?

MR. WEILL: Well, some of them might eventually, although, by that point they have presumably moved on to other interests.

QUESTION: Do you have any information that any of them are organized?

MR. WEILL: Well --

QUESTION: Any insane people-- do you know of any organizations of insane people?

MR. WEILL: None of any significance, that I know of. The lack of a vote for people in institutions and for the people who have been labelled mentally ill, generally, by the state, is in part why, if the Court finds the discrimination survives the rational basis test, it is appropriate to apply heightened scrutiny. The criteria the Court has used to invoke heightened scrutiny establishes propriety to discrimination against the mentally ill.

QUESTION: But I understood you are not arguing that heightened scrutiny is required here. Or are you?

MR. WEILL: No, we are arguing that the Court can and should first invalidate the statute under the rational basis test. If the Court finds that the statute meets the rational basis test, then it is appropriate to strike down the statute under the heightened scrutiny standard, akin to that applied by the District Court. We are not asking for strict scrutiny, we're asking for a form of heightened scrutiny, somewhat like that applied in Craig v. Boren.

QUESTION: Quasi-scrutiny --

MR. WEILL: Well that's --

QUESTION: Quasi-heightened scrutiny?

MR. WEILL: The District Court used the phrase quasi-heightened scrutiny, in Wengler this Court used the phrase heightened scrutiny, and I'll stick with this Court's phrase of heightened scrutiny.

Importance of political powerlessness, not just not having a vote, but being confined in institutions, being stigmatized, and having lack of political power escalate because of the relationship between these factors, has been recognized by this Court for many years. It was recognized as early as Yick Wo v. Hopkins, and this Court has since indicated in cases like Ratzenbach v. Morgan, that non-discriminatory treatment in governmental services is normally secured by the franchise. When political powerlessness is exacerbated by insularity, they have usually become, perhaps, the crucial indicia of heightened scrutiny.

QUESTION: Mr. Weill, do you contend that the number of people in the -- affected by the judgment has anything to do with this argument?

MR. WEILL: No, I don't.

QUESTION: The fact that there are only -- some fraction of 100,000 people involved, does that have anything to do with their political power?

MR. WEILL: No. Minorities exist in many forms in our society. On any political issue there is a minority which may be small, but if that minority can vote and participate and it's not stigmatized, it can trade in the legislative marketplace. A minority that cannot vote and that is stigmatized cannot do that, and they are so totally shut out, so they are not like the minority of 50,000 ophthalmologists in the Lee Optical -- this is a different type of minority of 50,000 people. It's precisely like the aliens. Aliens cannot vote, the reasons that this Court has given heightened scrutiny to discriminations against aliens are precisely applicable here. Aliens can't vote, their situation is not immutable, since they become citizens. But the voting factor and historical discrimination and the stigma, have been the crucial factors that have led this Court to give heightened scrutiny to aliens. Thank you.

MR. CHIEF JUSTICE BURGER: Mr. Schulder.

ORAL REBUTTAL ARGUMENT OF ELLIOTT SCHULDER, ESQ., ON BEHALF OF APPELLANT

MR. SCHULDER: I would just like to address myself briefly to Mr. Weill's argument that Section 1611(e)(1) is inconsistent with the objectives of the SSI program. I believe that the Ninth Circuit, in its opinion in Baur v. Mathews, at 578 F.2d at page 233, deals with this specific objection. In fact, the Ninth Circuit in that case refers to the legislative history as indicating that Congress considered efficient and an economical method of providing SSI assistance as one of the important factors that it was taking into consideration in structuring the SSI program.

And the Secretary has also interpreted this provision as reflecting Congressional intent to prevent the shift of public institutional programs which are traditionally the responsibility of state and local governments, to the federal government. Thank you.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 11:57 o'clock a.m. the case in the above matter was submitted.)