In 1969, the U.S. Supreme Court ruled in Shapiro v. Thompson that states could not impose durational residency requirements for the receipt of public assistance on the grounds that it violated a constitutional right to travel. At the time, 41 states had a one-year residency requirement that had to be met before any family could qualify for Aid to Families with Dependent Children (AFDC). The Court ruled 6–3 against such durational residency requirements in a majority opinion written by Associate Justice William Brennan that argued that “the purpose of inhibiting migration of needy persons into the State is constitutionally impermissible.”
The Court, however, failed in Shapiro to ground the right to travel in a specific clause of the Constitution. Instead, Associate Justice Potter Stewart argued in a concurring opinion that the right to travel was so elementary to our federal system that it was assumed as essential for forging the “stronger Union the Constitution created.” Yet, this failure to locate the right to travel in a specific clause of the Constitution created over time an opportunity for challenge, especially by those who sought to address what they saw as the real, if not well documented, problem of “welfare migration” (i.e., the movement of poor families from one state to another to receive higher welfare benefits).
Welfare was dramatically reformed in 1996 with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act that significantly focused on reducing poor families’ reliance on welfare and gave states extensive discretion to achieve this goal. The law also allowed states to reimpose durational residency requirements that involved paying no more than the benefits of their origin state to migrating families that had lived in the destination state for less than one year. Sixteen states utilized this option. Yet, the U.S. Supreme Court in 1999 reaffirmed the right to travel of Shapiro by a vote of 6–3 in Saenz v. Roe, locating it this time in the Fourteenth Amendment’s Privileges or Immunities Clause. Writing for the majority, Associate Justice John Paul Stevens concluded his opinion by stating that while citizens get to pick their states, states do not get to pick their citizens.
Martha F. Davis, “The Evolving Right to Travel: Saenz v. Roe,” Publius 29, no. 2 (Spring 1999): 95–110; and Sanford F. Schram and Samuel Beer, eds., Welfare Reform: A Race to the Bottom? (Washington, DC:Woodrow Wilson Center Press, 1998).