RICHARD A. LYNG, SECRETARY OF AGRICULTURE, APPELLANT V. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, ET AL. No. 86-1471 In the Supreme Court of the United States October Term, 1986 On Appeal From The United States District Court for the District Of Columbia Reply Memorandum for the Appellant Appellees acknowledge that the district court has squarely invalidated a federal statute (Mot. to Aff. 1-2) and they do not deny that the decision below significantly impairs an important governmental program. Appellees simply contend that the district court's decision is correct. But far from "acting within the parameters of this Court's well-established precedent" (Mot. to Aff. 5), the district court's free-wheeling judgment striking down a provision of the Food Stamp Act of 1964 cannot be reconciled with the decisions of this Court and warrants review by this Court. 1. Appellees agree with the district court (Mot. to Aff. 5-12) that 7 U.S.C. 2015(d)(3) violates the First Amendment. Relying on largely anecdotal evidence of hardships faced by certain families of striking workers, appellees contend (Mot. to Aff. 7) that Section 2015(d)(3) "places a substantial burden upon the appellees' speech and associational rights." In so contending, however, appellees fail to distinguish the decision in Lyng v. Castillo, No. 85-250 (June 27, 1986), in which this Court rejected virtually the same "associational rights" claim pressed by appellees and upheld by the district court. The Court's analysis in Castillo is equally controlling here: Section 2015(d)(3) simply does not "directly and substantially" interfere with family living arrangements or with the right of unions to associate for common ends. What the statute does -- and does legitimately -- is to impose a rational criterion for the allocation of scarce federal resources. In doing so, Section 2015(d)(3), like any other social welfare legislation, necessarily draws distinctions that "leave some comparatively needy person outside the favored circle" (Schweiker v. Wilson, 450 U.S. 221, 238 (1981)). But this Court has cautioned that "the validity of a broad legislative classification is not properly judged by focusing solely on the portion of the disfavored class that is affected the most harshly by its terms." Schweiker v. Hogan, 457 U.S. 569, 589 (1982). At bottom, Section 2015(d)(3), like the Medicaid statute upheld in Harris v. McRae, 448 U.S. 297, 315 (1980), "places no governmental obstacle in the path of" strikers and their families, but rather "represents simply a refusal to subsidize certain protected conduct" (448 U.S. at 317 n.19). Appellees strain to deny this basic distinction, asserting (Mot. to Aff. 8-10) that in McRae the government withheld funds "to implement" the right to choose an abortion, whereas here the denial of benefits is "triggered by the() exercise of * * * protected rights" (Mot. to Aff. 9). This is no more than a semantic quibble. If, like a striker, the plaintiff in McRae had fully exercised her right before applying for federal funds, she would still have been denied benefits under the applicable statute; in that event, the denial of benefits would have been "triggered" by plaintiff's exercise of a right. But there is nothing in this Court's decision in McRae to suggest that, had the facts been thus altered, the Medicaid statute would have failed to pass constitutional muster. /1/ 2. Conceding that Section 2015(d)(3) need only be rationally related to a legitimate governmental interest to survive equal protection scrutiny (Mot. to Aff. 13, 14-15 n.5), appellees nevertheless assert (id. at 12-18) that the statute cannot be sustained. Appellees liken Section 2015(d)(3) to the statutory attempt to deny food stamps to "hippie communes", rejected by this Court in Department of Agriculture v. Moreno, 413 U.S. 528 (1973). Here, as there, appellees maintain (Mot. to Aff. 14), "Congress conditioned food stamp eligibility upon extraneous factors unrelated to income, resources, or the purposes of the Food Stamp Act." This claim founders, first, on the fact -- acknowledged by the district court (J.S. App. 10a) -- that Section 2015(d)(3) is rationally related to the "legitimate legislative objective() (of) requiring a person able to work to do so in order to receive food stamps." That policy, as we explained in the jurisdictional statement, is basic to the Food Stamp Act as a whole. The district court, having determined that Section 2015(d)(3) rationally promoted this legitimate goal, should not have ventured farther, in pursuit of a more "narrowly tailored" statute. Indeed, appellees do not dispute that it was entirely rational to tie the receipt of food stamps to a willingness to accept available employment. Instead, they assail the effectiveness of Congress's efforts. Noting that even striking workers must register for and seek other work (Mot. to Aff. 15-16), appellees assert that Section 2015(d)(3) "contribute(s) virtually nothing beyond existing requirements in tying food stamp eligibility to a willingness to work" (Mot. to Aff. 16). But this misses the mark. However vigorously a striking worker seeks other jobs, one job -- his old job -- remains available to him. In that essential respect, the striking worker has an option that is not open to the voluntary quitter, or so Congress could rationally have concluded. Finally, appellees contend that Section 2015(d)(3) cannot be defended as a rational effort to maintain the appearance of neutrality in labor disputes (Mot. to Aff. 17) or to conserve scarce resources (id. at 17-18), "especially when a more narrow disqualification (i)s possible" (id. at 17). Appellees do not explain, however, how Congress could have achieved its goal of labor neutrality while at the same time offering food stamps, which Congress viewed as tantamount to providing strike benefits that should instead be paid by the unions themselves. And while appellees make (ibid.) the "obvious factual point that those denied food stamps by (Section 2015(d)(3)) must meet the same financial guidelines applicable to all other food stamp households," they do not dispute that Congress is entitled to seek budgetary savings, except where such savings are pursued by means of "'invidious distinctions between classes of its citizens'" (Mot. to Aff. 18, quoting Shapiro v. Thompson, 394 U.S. 618, 633 (1969)). Appellees do not suggest, however, that Section 2015(d)(3) creates any such "invidious distinctions." For these reasons and those stated in the jurisdictional statement, probable jurisdiction should be noted. The Court may also wish to consider summary reversal. Respectfully submitted. CHARLES FRIED Solicitor General APRIL 1987 /1/ Moreover, appellees fundamentally misconstrue the language that they quote at length from McRae (Mot. to Aff. 9). In the cited portion of the McRae case (448 U.S. at 317 n.19), this Court distinguished the "refusal to subsidize certain protected conduct" from "a broad disqualification from receipt of public benefits." The Court concluded that while the latter, broader disqualification "would be analogous to Sherbert v. Verner, 374 U.S. 398 ((1963))," the mere "refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity." By enacting Section 2015(d)(3), Congress did not "broadly disqualify" striking workers or their families from the Food Stamp program; Congress simply refused to extend benefits for any loss of income that resulted from a strike. What is more, even that limited disqualification lapses as soon as the strike is at an end. Thus, appellees' claim that Section 2015(d)(3) unconstitutionally "penalizes" the assertion of a right to strike cannot be squared with the language from McRae on which appellees rely.