JOHN R. BLOCK, SECRETARY OF AGRICULTURE, APPELLANT, V. NATIVIDAD CASTILLO, ET. AL. No. 85-250 In the Supreme Court of the United States October Term, 1985 On Appeal from the United States District Court for the Southern District of Texas Jurisdictional Statement PARTIES TO THE PROCEEDING Appellant John R. Block, Secretary of Agriculture, was named as a defendant in each of four consolidated cases before the district court. The plaintiffs in Civil Action No. B-81-260, in addition to Natividad Castillo, were Fernando Sosa; Petra Sosa, for herself and as next friend of Roberto Sosa, Saul Sosa, Roy Sosa, and Eduardo Sosa; Catalina Castillo; Natividad Castillo and Graciela Castillo, Minors; Blanca Martinez, for herself and as next friend of Venessa Marie Martinez, Minor; Sara Cortez, for herself and as next friend of Perla Ruby Cortez and Sylvia Cortez, Minors. The non-federal defendants were Marlin Johnston, in his capacity as the Director of the Department of Human Resources; and Jose Campos, in his capacity as the Program Director for the Brownsville Food Stamp Office of the Department of Human Resources. The plaintiffs in Civil Action No. B-82-21 were Robert Cody, Jerry Cody, for themselves and as next friend of Gary Cody and Robin Cody. The non-federal defendants were Marlin Johnston, in his capacity as the Director of the Department of Human Resources; and Rene Zamora, in his capacity as the Program Director of the Harlingen Food Stamp Office of the Department of Human Resources. The plaintiff in Civil Action No. B-82-7 was Sylvia Nieto, for herself and as next friend of Rolando Nieto, Minor. The non-federal defendants were Marlin Johnston, in his capacity as the Supervisor for the Raymondville Food Stamp Office of the Department of Human Resources. The plaintiff in Civil Action No. B-83-106 was Cecilia Villafranca, for herself and as next friend of Alberto Trevino and Eric Villafranca, Minors. The non-federal defendants were Marlin Johnston, in his capacity as the Director of the Department of Human Resources; and Jose Campos, in his capacity as the Program Director for the Brownsville Food Stamp Office of the Department of Human Resources. TABLE OF CONTENTS Opinions below Jurisdiction Statutory provision involved Statement The question is substantial Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The memorandum and order of the district court (App., infra, 1a-8a) is unreported. The supplemental memorandum of the district court (App., infra, 9a-13a) is also unreported. JURISDICTION The order of the district court was entered on April 23, 1985. A notice of appeal was filed on May 17, 1985 (App., infra, 14a). On July 8, 1985, Justice White extended the time within which to docket this appeal to and including August 15, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. STATUTORY PROVISIONS INVOLVED Section 3(i) of the Food Stamp Act of 1964, 7 U.S.C. 2012(i), provides in pertinent part: "Household" means (1) an individual who lives alone or who, while living with others, customarily purchases food and prepares meals for home consumption separate and apart from the others, or (2) a group of individuals who live together and customarily purchase food and prepare meals together for home consumption; except that parents and children, or siblings, who live together shall by treated as a group of individuals who customarily purchase and prepare meals together for home consumption even if they do not do so, unless one of the parents, or siblings, is an elderly or disabled member * * *. QUESTION PRESENTED Whether Section 3(i) of the Food Stamp Act of 1964, 7 U.S.C. 2012(i), which provides that parents and children, or siblings, who live together shall generally constitute a single "household" for food stamp entitlement purposes, violates equal protection principles of the Fifth Amendment's Due Process Clause by discriminating against family members or impermissibly burdening family decisions to live together. STATEMENT The Food Stamp Act of 1964, 7 U.S.C. (& Supp. I) 2011 et seq., establishes a public welfare program, funded by the Department of Agriculture and administered by state agencies, that supplements the food purchasing power of low-income households. This appeal involves four consolidated suits, brought by a number of potential benefit recipients against the Secretary of Agriculture (the Secretary) and state welfare administrators, challenging the constitutionality of Section 3(i) of the Act, 7 U.S.C. 2012(i), which defines the term "household" for food stamp entitlement purposes. The United States District Court for the Southern District of Texas held that Section 2012(i) is unconstitutional and enjoined its enforcement against the plaintiffs. The court reasoned that the statute violates equal protection principles of the Due Process Clause of the Fifth Amendment by creating a classification that discriminates against family members and that impermissibly burdens family decisions to live together. The Secretary seeks direct review, pursuant to 28 U.S.C. 1252, of the district court's far-reaching and unprecedented decision. 1. The Food Stamp program is a federally-funded, state-administered effort to "permit low-income households to obtain a more nutritious diet through normal channels of trade by increasing food purchasing power." 7 U.S.C. 2011. Households with aggregate income and financial resources below specified national standards may participate. 7 U.S.C. (&Supp. I) 2014. They receive coupons (food stamps) that can be used for food purchases at retail stores. 7 U.S.C. 2013. Over 21 million persons received food stamps in 1983, representing a federal outlay of over $11.1 billion. See Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States 1985, at 122-123 (105th ed.). Although the federal government is responsible for establishing standards, see 7 U.S.C. (& Supp. I) 2014, the states have primary responsibility for distributing food stamps. See 7 U.S.C. (& Supp. I) 2020; Atkins v. Parker, No. 83-1660 (June 4, 1985), slip op. 2. State agencies are authorized to allot food stamps to each eligible household in an amount based on the cost of a "thrifty food plan," reduced by 30% of the household's income. 7 U.S.C. 2017. The "thrifty food plan" is the diet, as determined by the Secretary, necessary to feed an average family of four. 7 U.S.C. 2012(o). The cost of the diet is used to calculate standard household allotments, based on household size, that "tak(e) into account economies of scale." Ibid.; see 7 C.F.R. 273.10 (e)(4); 49 Fed Reg. 42765 (1984). Because food stamps are distributed on the basis of household units, the definition of "household" is central to the amount of the entitlement. The 1964 Act defined "household" broadly to include virtually any single individual who prepared his own meals using separate cooking facilities and virtually any group of individuals that functioned as a single economic unit and shared common cooking facilities. See 7 U.S.C. (1964 ed.) 2012(e). However, as the Food Stamp program grew, /1/ Congress gave the term a more exacting definition. Congress amended the definition of "household" in 1971 to exclude most groups of unrelated persons from participation in the Food Stamp program. See 7 U.S.C. (Supp II 1972) 2012(e). However, this Court declared the amendment unconstitutional, concluding that it represented purposeful discrimination against "hippie communes." United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973). Congress again amended the definition in 1977, requiring groups of individuals, whether related or unrelated, who customarily purchased and prepared meals together, to be treated as a single household. 7 U.S.C. (Supp. II 1977) 2012(i). The definition provided that individuals, whether living alone or with others, could qualify as distinct households provided that each customarily purchased food and prepared meals separately. Ibid. The amendment was intended to end the focus on cooking facilities and "economic units" in classifying households, concentrating instead on "what the household members do with their food money." H.R. Rep. 95-464, 95th Cong., 1st Sess. 143 (1977). /2/ In 1981, Congress conducted hearings that revealed widespread abuse of the Food Stamp program. /3/ It responded to the evidence of recipient fraud by broadly reforming portions of the program, including the definition of "household." These changes, enacted as part of the 1981 and 1982 Omnibus Budget Reconciliation Acts, Pub. L. No. 97-35, Tit. I, 95 Stat. 358, and Pub. L. No. 97-253, Tit. I, Subtit. E, 96 Stat. 772, precipitated the present litigation. The 1981 modifications addressed, among other matters, the application of the term "household" to parents and children. Congress provided that parents and children who live together shall comprise a single household for food stamp purposes, regardless of whether they purchase food and prepare meals separately or together, unless one of the parents is at least 60 years old. 7 U.S.C. (Supp. V 1981) 2012(i). The Senate Report indicates that this change was "designed to prevent household members from artificially claiming to be separate households although they live and prepare meals together." S. Rep. 97-128 97th Cong., 1st Sess. 31 (1981). It explains (id. at 31-32): (B)ecause of economics of scale, small * * * households are provided more food stamps per person than larger households * * *. * * * * * Current law results in some individuals claiming separate household status for purposes of obtaining food stamp benefits to which they would not otherwise be entitled. This results when the individual claims separate household status and indicates he has zero income. The individual could be certified as a separate household although, in fact, he is being supported by his parents. * * * * * By allowing an exception for parents 60 years of age and older, those parents most likely to reside with their children, but who truly maintain separate household status, will not be barred from participation as separate households. See also H.R. Rep. 97-106, 97th Cong., 1st Sess. 118-119 (1981). The Senate Committee on the Budget estimated that this change, together with a change eliminating boarders from participation in the Food Stamp program, would save $195 million in fiscal years 1982-1984. See S. Rep. 97-139, 97th Cong., 1st Sess. 52-53 (1981). The 1982 modifications further refined the definition of "household" to prevent food stamp abuses. The principal change, presently codified with the 1981 modifications at 7 U.S.C. 2012(i), prohibits siblings, as well as parents and children, from increasing their food stamp benefits by splintering into separate "households." It was enacted with an accompanying provision excepting disabled and elderly family members from the restriction. See ibid.; 7 U.S.C. 2012(r). These changes were adopted, together with other measures, upon the advice of federal and state food stamp administrators. See H.R. Rep. 97-687, 97th Cong., 2d Sess. 6, 25 (1982). The House Committee on Agriculture estimated that they would result in savings of $120 million in fiscal years 1983-1985. Id. at 105. /4/ Thus, Congress carefully modified and refined the definition of "household" to reduce widespread fraud in the Food Stamp program and to preserve the public's limited welfare resources for the truly needy. The present definition, treating most parents and children, or siblings, who live together as single households for Food Stamp entitlement purposes, reflects a considered response to the persistent problem of family groups mischaracterizing their food purchasing and preparation habits to obtain undeserved food stamp benefits. 2. In 1981, Natividad Castillo, his wife Petra Sosa, and their children, moved into the home of Sosa's daughter, Teresa Barrera (App., infra, 17a). The Castillo family applied for food stamp benefits from the Brownsville, Texas Food Stamp Office. Although the Barrera family already received food stamps, the Castillos claimed that they were entitled to their own food stamp allotment because they did not purchase food in common with the Barreras and the two families were not "living as one economic unit" (id. at 18a). The Food Stamp Office denied the request, concluding that the Castillo and Barrera familes constituted a single household within the meaning of 7 U.S.C. 2012(i). The Office indicated, however, that Barrera's food stamp allotment would be supplemented to reflect an increase in the household's size (App., infra, 18a). Shortly thereafter, the Castillo family sued state food stamp officials in the United States District Court for the Southern District of Texas, claiming, inter alia, that the denial of their food stamp request violated the Fifth and Fourteenth Amendments. The district court issued a temporary restraining order prohibiting the state agencies from denying the Castillos food stamp benefits on grounds other than their family income. The Castillos eventually added additional plaintiffs and joined the Secretary of Agriculture as a defendant. The district court consolidated the Castillos' action with three similar actions by family groups alleging that the revised definition of the term "household" unconstitutionally denied them separate household status and attendant food stamp benefits. /5/ The court then considered the constitutional challenge to 7 U.S.C. 2012(i) on cross-motions for summary judgment. It ruled that Section 2012(i) violates equal protection principles of the Fifth Amendment's Due Process Clause by discriminating against family members and impermissibly burdening family decisions to live together (App., infra, 1a-8a). The district court recognized that a social welfare program may generally distinguish among benefit recipients provided that the distinctions do not "'invidiously discriminate * * * on the basis of criteria which bear no rational relation to a legitimate legislative goal'" (App., infra, 3a-4a, quoting Weinberger v. Salfi, 422 U.S. 749, 772 (1975). And the court acknowledged that Section 2012(i), which was enacted to limit claims of separate household status among family members, "conforms to the 'rational basis' test as it is pronounced in Salfi" (App., infra, 6a). However, the court stated that "a great amount of inconsistency surrounds Salfi," noting that "such a limitation does not apply to gender-based classifications" (ibid., citing Califano v. Goldfarb, 430 U.S. 199, 210-212 (1977)). The district court therefore queried "whether family-based classifications are subject to such limitations" (App., infra, 6a). It turned for guidance to Cleveland Board of Education v. LeFleur, 414 U.S. 632 (1974), and Moore v. City of East Cleveland, 431 U.S. 494 (1977). Relying on these cases, the court concluded that "(i)t is clear that family life-styles have been afforded a stricter standard of review than the 'rational basis' test as it is pronounced in Salfi" (App., infra, 7a). The district court attached "even greater importance" (App., infra, 7a) to this Court's decision in United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973). That decision held that a provision of the Food Stamp Act, denying benefits to cohabiting, unrelated individuals, was inconsistent with the Due Process Clause because it represented a "bare congressional desire to harm a politically unpopular group" (413 U.S. at 534). The district court reasoned that "if the Supreme Court is willing to protect unpopular political groups it should be even more willing to protect the traditional family value of living together" (App., infra, 8a). The district court thus found that "(f)amily type classifications are clearly deserving of the judicial scrutiny that was applied in" Goldfarb (App., infra, 7a). It concluded, without further analysis, that the provisions of Section 2012(i), limiting family member eligibility for separate household status, "are discriminatory and in violation of the Plaintiffs' Fifth Amendment rights" (App., infra, 8a). The court permanently enjoined enforcement of these provisions against the plaintiffs. THE QUESTION IS SUBSTANTIAL The district court has held unconstitutional a carefully considered legislative attempt to correct widespread abuse in the Food Stamp program. The court's decision, by its own admission (App., infra, 3a), departs from established equal protection jurisprudence. It employs heightened scrutiny to a social welfare classification that does not involve a "suspect" or "quasi-suspect" class, justifying its result through the unsupportable theory that Congress, in amending the definition of the term "household," has discriminated against families and impermissibly burdened their fundamental rights. The district court's ultimate conclusion -- that the Food Stamp program must apply the same limitations to family groups that it applies to groups of unrelated individuals -- has the practical effect of ascribing constitutional status to a family member's decision to purchase food and prepare meals apart from the parents, children, or siblings with whom he lives. This result cannot be reconciled with equal protection principles or common sense; moreover, it represents a striking lack of deference to "the duly enacted and carefully considered decision of a coequal and representative branch of our Government." Walters v. National Association of Radiation Survivors, No. 84-571 (June 28, 1985), slip op. 13. Thus, the question presented by this appeal is substantial; indeed, the answer is so clear that we suggest that this Court consider summary reversal. 1. Equal protection principles generally require that legislation accord like treatment to similarly situated individuals. See, e.g., City of Cleburne v. Cleburne Living Center, Inc., No. 84-468 (July 1, 1985), slip op. 6; Plyler v. Doe, 457 U.S. 202, 216 (1982). But the precept of equal protection does not preclude legislators from making rational distinctions. Ibid. "A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of (government) to remedy every ill." Ibid. The judiciary therefore gives broad deference to the choices of Congress, "the appropriate representative body through which the public makes democratic choices among alternative solutions to social and economic problems." Schweiker v. Wilson, 450 U.S. 221, 230 (1981). A legislative choice is subjected to heightened scrutiny only if it "employs a classification that is inherently invidious or that infringes on fundamental rights." Ibid. These principles confirm that Congress acted well within its powers in amending 7 U.S.C. 2012(i). Congress concluded, quite reasonably, that parents, children, and siblings who reside under the same roof are more likely to purchase food and prepare meals together than others persons. It therefore precluded such family members from claiming separate household status for food stamp purposes because their claims were more likely to be fraudulent. The different treatment that Section 2012(i) accords to family members advances a legitimate government interest -- preserving the integrity of benefits distribution -- in a way that cannot be described as "patently arbitrary or irrational," U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 177 (1980), and thus easily meets the traditional "rational basis" test applied to public welfare programs. See Weinberger v. Salfi, 422 U.S. 749, 772 (1975). See also Schweiker v. Wilson, 450 U.S. at 230; Vance v. Bradley, 440 U.S. 93, 97 (1979); Fleming v. Nestor, 363 U.S. 603, 611 (1960). The district court acknowledged (App., infra, 6a) that Section 2012(i) "conforms to the 'rational basis' test as it is pronounced in Salfi." Indeed, this conclusion is manifest. The legislative history reveals that Congress carefully considered the problem of widespread fraud in the Food Stamp program. See generally 1981 Hearings. It received redommendations from federal, state, and local administrators that the definition of "household" should be tightened. See S. Rep. 97-504, 97th Cong., 2d Sess. 25-26 (1982); S. Rep. 97-128, supra, at 31-32; 1981 Hearings 31-32, 42, 305-306, 308-311. Congress agreed that it had to deal with the problem of "some closely related individuals claiming separate household status for purposes of obtaining food stamp benefits to which they would not otherwise be entitled." H.R. Rep. 97-106, supra, at 119; see also S. Rep. 97-128, supra, at 31. Faced with the "administrative difficulties of individual eligibility determinations," Salfi, 422 U.S. at 784, Congress responded by establishing prophylactic rules that would "eliminate the potential for this type of program abuse." H.R. Rep. 97-106, supra, at 119; see also S. Rep. 97-128, supra, at 32. /6/ These rules represent Congress's legitimate policy determination that the Food Stamp program, and its millions of beneficiaries, would benefit from a definition of "household" that prevents fraudulent claims. See Salfi, 422 U.S. at 784. Congress rationally concluded "that generalized rules (were) appropriate to its purposes and concerns" and "that the difficulties of individual determinations outweigh the marginal increments in the precise effectuation of congressional concern which they might be expected to produce." Id. at 785. See Mathews v. De Castro, 429 U.S. 181, 189 (1976). /7/ 2. This case should have ended upon that conclusion. Instead, the district court discerned a need for heightened scrutiny. In departing from the traditional "rational basis" analysis, the court relied, indiscriminately, upon cases involving "quasi-suspect" classifications, fundamental rights, and rational basis scrutiny. This amalgam of loosely connected precedent cannot support the application of heightened scrutiny to Section 2012(i)'s legislative classification. a. The district court suggested, without clear explanation, that this Court's decision in Califano v. Goldfarb, 430 U.S. 199 (1977), recognizing gender as a "quasi-suspect" classification, justified heightened scrutiny in the present case (App., infra, 6a). It seems unlikely that the district court seriuosly meant to imply that family members who live together constitute a "quasi-suspect" class. That contention is, of course, facially meritless. /8/ b. The district court's suggestion (App., infra, 7a-8a) that Section 2012(i) creates a classification system that infringes upon the "fundamental right" of food stamp recipients to make choices concerning family living arrangements is also unsupportable. This Court has held that certain family-based choices do enjoy constitutionally protected status. See, e.g., Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Loving v. Virginia, 388 U.S. 1, 12 (1967). Thus, when the government intrudes on basic choices concerning the composition of the family unit, the Court will "examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977). But such scrutiny is appropriate only when the government regulation directly and substantially interferes with family choices. Zablocki v. Redhail, 434 U.S. 374, 386, 387, n.12 (1978); id. at 403 (Stevens,J., concurring); Califano v. Jobst, 434 U.S. 47, 58 (1977). Unlike the zoning provisions at issue in Moore, which prohibited a grandmother from living together with her grandchild, or the statute in Zablocki, which provided that members of a certain class could not marry, Section 2012(i) does not have a direct and substantial impact upon family living arrangements. Section 2012(i) does not prevent any group of persons, related or unrelated, from living or dining together. The Act's definition of "household" merely reflects a congressional determination, concededly rational, that closely related persons who live together should receive food stamp benefits based on the economic needs of a single household that purchases food and prepares meals together. It ensures that the amount of a family's food stamp entitlement reflects the economies of scale that a family can enjoy in jointly purchasing and preparing meals. Section 2012(i) thus simply adjusts food stamp benefits in light of the cooperative arrangements that families can employ; it does not amount to a constitutionally significant intrusion on family living arrangements. Admittedly, Section 2012(i) may encourage families to take advantage of the savings available in joint meal purchase and preparation and may discourage family members from purchasing food and preparing meals separate and apart from the parents, children, or siblings, with whom they live. But this limitation on the "right" to dine separately hardly amounts to the kind of interference with family relationships that this Court has found constitutionally significant. See Zablocki v. Redhail, 434 U.S. at 386-387 ("reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed"); Califano v. Jobst, 434 U.S. at 58 (Social Security provisions terminating a child's benefits upon marriage do not violate equal protection principles even though they "may have an impact on (the child's) desire to marry, and may make some suitors less welcome than others."). In particular, Section 2012(i) does not disrupt family bonds by preventing closely related individuals from living together. Under Section 2012(i), a family's Food Stamp entitlement differs from that of an unrelated group only to the extent that it reflects the economies of scale derived from cohabitation. Thus, while Section 2012(i) may provide family members with an increased incentive to prepare meals together and reap this economy, it generally provides no incentive to live apart simply to collect increased food stamp allotments. And even if there might be exceptional cases in which the statute has that indirect effect, such cases would not control the equal protection inquiry. See, e.g., Schweiker v. Hogan, 457 U.S. 569, 589 (1982); Vance v. Bradley, 440 U.S. at 108. /9/ Likewise, Section 2012(i)'s distribution of benefits does not impair a fundamental liberty simply because it does not subsidize the full range of possible family living arrangements. Although the Due Process Clause "protect(s) against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom." Harris v. McRae, 448 U.S. 297, 317-318 (1980). Family members may sincerely desire to share the same living quarters while purchasing food and preparing meals separately; however, the public is not obligated to subsidize that choice. Congress may freely create a financial incentive for family members to purchase food and prepare meals together without distrubing a family member's "range of choice" concerning family living arrangements. See 448 U.S. at 316-318. /10/ In sum, the district court was plainly wrong in suggesting that Section 2012(i) creates a classification that burdens family decisions to live together. Section 2012(i) does not impair a family member's exercise of fundamental rights. c. The district court also premised its heightened scrutiny requirement on this Court's decision in United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973). See App., infra, 7a. In Moreno, the Court applied equal protection principles to invalidate provisions of the Food Stamp Act that excluded benefits to households composed of unrelated persons. Examining the scant legislative history behind that exemption, the Court concluded that the provisions had no purpose other than "a bare congressional desire to harm a politically unpopular group." 413 U.S. at 534. However, the Court clearly employed "rational basis" scrutiny to reach that result. Id. at 532-534. Thus, Moreno offers no support for applying heightened scrutiny to the present case. /11/ 3. The district court's partial invalidation of Section 2012(i) directly impairs an important congressional attempt to reduce serious abuses in the Food Stamp program. Over $11 billion in food stamp benefits were distributed to eight million households in 1980, representing the Nation's "second most costly 'needs-based' Federal assistance program." S. Rep. 97-128, supra, at 2. However, the Administration and congressional sources estimated that from 11% to 20% of these benefits were issued in error. See 1981 Hearings 3. The refinement of Section 2012(i)'s definition of "househould" represents a significant effort to address these staggering losses. As previously noted, Congress estimated that the 1981 and 1982 amendments would result in three year savings, respectively, of $195 million and $120 million. S. Rep. 97-139, supra, at 52-53; H.R. Rep. 97-687, supra, at 105. Section 2012(i), as amended, attempts to "place a reasonable control on a situation that State and local administrators have identified as one which requires congressional action." S. Rep. 97-504, supra, at 25. /12/ It is a rational legislative response to perceived abuses in the Food Stamp program. /13/ If the district court's decision is permitted to stand, it will result in payment of millions of dollars in food stamp benefits to the undeserving, diverting the Nation's limited welfare resources from the truly needy to those who choose to abuse the benefits program. CONCLUSION Probable jurisdiction should be noted. In light of the district court's clear error, the Court may wish to consider summary reversal. Respectfully submitted. CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General ROBERT S. GREENSPAN JOHN S. KOPPEL Attorneys AUGUST 1985 /1/ In 1965, approximately 633,000 persons participated in the Food Stamp program, representing a federal outlay of $33 million. By 1970, participation had grown to nearly 6.5 million persons, representing a federal outlay of $550 million. In 1975, nearly 20 million persons participated, representing a federal outlay of over $4.3 billion. See Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States 1985, at 123 (105th ed.). /2/ The House Committee expressly observed that "some persons who constitute (a single) eating unit may currently be certified as separate household because they are separate economic units. The Committee believes that their eating unit status, not their economic unit status, is what is relevant to the food stamp program." H.R. Rep. 95-464, supra, at 143. /3/ See Proposed Reauthorization of the Food and Agriculture Act of 1977 (Food Stamps): Hearings Before the Senate Comm. on Agriculture, Nutrition, and Forestry, 97th Cong., 1st Sess. Pt. II (1981) (hereinafter cited as 1981 Hearings). The Chairman of the Senate Committee cited estimates by the Administration and congressional investigators that from 11 to 20% of food stamp benefits were issued in error. Id. at 3 (statement of Chairman Helms). /4/ The Senate Committee on Agriculture, Nutrition, and Forestry recommended that all related persons be treated as a single household unless one of the related persons is elderly or disabled. See S. Rep. 97-504, 97th Cong., 2d Sess, 24-25, 87-88 (1982). However, the House proposal, limited to parents, children, and siblings, was adopted in conference. See H.R. Conf. Rep. 97-759, 97th Cong., 2d Sess. 62-63 (1982). /5/ In Civil Action No. B-82-21, Robert Cody and his family live with Robert Cody's mother, a single person who already receives food stamps. In Civil Action B-82-7, Sylvia Nieto and her child live with Sylvia Nieto's parents, a couple that does not qualify for food stamps. In Civil Action No. B-83-106, Cecilia Villafranca and her children live with Cecilia Villafranca's brother, and their combined household income exceeds the food stamp eligibility requirements. /6/ The testimony of food stamp fraud investigators in the 1981 Hearings established the need for general rules. Individual determinations are impractical because, as a Texas investigator explained, "(t)he complexity of the program works to the advantage of those determined to abuse it." 1981 Hearings 52 (statement of E. Richards). The very size of the program prevents individual investigations. Id. at 51 (noting an investigation backlog of 10,000 cases in Texas alone). Moreover, the inherent difficulty of verifying whether families are preparing meals separately or together would make individual determinations particularly difficult in the present case. Any meaningful enforcement scheme would require huge commitments of investigative resources to determine meal purchasing and preparation habits. Indeed, an effective program might require rather elaborate, and perhaps intrusive, surveillance and verification of family activities. Thus, Congress quite reasonably chose "to avoid the burden and expense of specific case-by-case determination." Mathews v. Lucas, 427 U.S. 495, 509 (1976). /7/ Congress specifically emphasized that the new provisions would "not disqualify legitimately poor households that apply as a single unit, but merely require that family units apply as single households, rather than splintering for the purpose of receiving higher benefits." S. Rep. 97-128, supra, at 32. Moreover, the provisions were carefully tailored to exclude the disabled and the elderly from the single household requirement, assuring that "those parents most likely to reside with their children, but who truly maintain separate household status, will not be barred from participation as separate households." Ibid. No doubt, Congress could have prohibited any member of a group of individuals who live together from claiming separate household status for food stamp purposes. Instead, it carefully redefined "household" to include only certain closely related family members, recognizing those persons were most likely to purchase food and prepare meals together, and were most conveniently situated to submit fraudulent claims of separate household eligibility. Thus, Section 2012(i), as amended, is plainly the product of a conscientious and thorough deliberative process. See S. Rep. 97-504, supra, at 24-27; H.R. Rep. 97-687, supra, at 25, 105; S. Rep. 97-128, supra, at 31-32; H.R. Rep. 97-106, supra, at 118-119. /8/ Cohabiting family members exhibit none of the basic indicia of a suspect class -- they have not been not subject to historic discrimination, they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group, and they are neither a minority nor a politically powerless segment of society. Indeed, families have traditionally received favored status in American cultural and political processes. See generally Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy -- Balancing the Individual and Social Interest, 81 Mich. L. Rev. 463 (1983). Thus, family members fall far short of even the most minimal requirements for heightened scrutiny under equal protection principles. See, e.g., City of Cleburne v. Cleburne Living Center, Inc., No. 84-468 (July 1, 1985), slip op. 6-13 (declining to recognize the mentally retarded as a "quasi-suspect" class). Likewise, members of low-income families -- the subgroup served by the Food Stamp program -- do not meet suspect class requirements. The inclusion of poverty as an additional class characteristic does not change the constitutional calculus. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). /9/ Participation in the Food Stamp program is premised on household income. Thus, in some circumstances a family that would be ineligible for participation in the program if treated as a single household could become eligible if the individual members lived apart. Family members intent upon receiving food stamp benefits might conceivably adjust their living arrangements in response. But a family member's exercise of this option does not constitute government impairment of any fundamental family right. The government does not intrude upon family relationships simply because family members with combined income in excess of public welfare eligibility requirements may choose to adjust their life-styles to qualify for welfare benefits. /10/ By the same token, Section 2012(i) does not infringe on the constitutional rights of family members, presently living apart and receiving food stamp benefits, who wish to live together and preserve the same benefit level. At bottom, these family members are simply demanding "a constitutional entitlement to the financial resources to avail (themselves) of the full range of protected choices." 448 U.S. at 316. /11/ We note that the district court plainly misapplied Moreno in concluding that the decision would preclude food stamp benefit limitations even in the absence of "a congressional pronouncement of a desire to harm" (App., infra, 8a). Moreno clearly turned on a finding that Congress's sole reason for enacting the challenged legislation was its desire to disadvantage a "politically unpopular group," rather than to serve a legitimate government interest. 413 U.S. at 534. Thus, contrary to the district court's statement, congressional intent was critical to the Court's conclusion. /12/ Despite the substantial steps that Congress has taken to curtail abuse in the Food Stamp program, overpayments continue to present a serious problem. See, e.g., Oversight of the Food Stamp Program: Hearings Before the Senate Comm. on Agriculture, Nutrition, and Forestry and the Subcomm. on Nutrition of the Senate Comm. on Agriculture, Nutrition, and Forestry, 98th Cong., 2d Sess. 255 (1984) (excerpt from a General Accounting Office report estimating that $1 billion in food stamp benefits are issued in error annually). /13/ Indeed, Section 2012(i) would withstand the "intermediate" level of scrutiny that the district court mistakenly required. The sheer magnitude of food stamp fraud and the impossibility of policing it on a case-by-case basis provide "an exceedingly persuasive justification" for redefining the term "household" to prevent widespread systematic abuses. Cf. Heckler the judicious deliberation and weighing of competing interests that accompanied the redefinition indicate that the changes were "plainly adopted 'through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions.'" Mathews, slip op. 20 (quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 726 (1982). Thus, Section 2012(i)'s definition of "household" is substantially related to important government objectives and therefore constitutional even under heightened scrutiny.