Dandridge v. Williams

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

No. 131 Argued: December 9, 1969 --- Decided: April 6, 1970
MR. JUSTICE STEWART delivered the opinion of the Court.

This case involves the validity of a method used by Maryland, in the administration of an aspect of its public welfare program, to reconcile the demands of its needy citizens with the finite resources available to meet those demands. Like every other State in the Union, Maryland participates in the Federal Aid to Families [p473] With Dependent Children (AFDC) program, 42 U.S.C. § 601 et seq. (1964 ed. and Supp. IV), which originated with the Social Security Act of 1935. [n1] Under this jointly financed program, a State computes the so-called "standard of need" of each eligible family unit within its borders. See generally Rosado v. Wyman, ante, p. 397. Some States provide that every family shall receive grants sufficient to meet fully the determined standard of need. Other States provide that each family unit shall receive a percentage of the determined need. Still others provide grants to most families in full accord with the ascertained standard of need, but impose an upper limit on the total amount of money any one family unit may receive. Maryland, through administrative adoption of a "maximum grant regulation," has followed this last course. This suit was brought by several AFDC recipients to enjoin the application of the Maryland maximum grant regulation on the ground that it is in conflict with the Social Security Act of 1935 and with the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court, convened pursuant to 28 U.S.C. § 2281 held that the Maryland regulation violates the Equal Protection Clause. 297 F.Supp. 450. This direct appeal followed, 28 U.S.C. § 1253 and we noted probable jurisdiction, 396 U.S. 811.

The operation of the Maryland welfare system is not complex. By statute, [n2] the State participates in the AFDC program. It computes the standard of need for each eligible family based on the number of children in the family and the circumstances under which the family lives. In general, the standard of need increases with each additional person in the household, but the increments [p474] become proportionately smaller. [n3] The regulation here in issue imposes upon the grant that any single family may receive an upper limit of $250 per month in certain counties and Baltimore City, and of $240 per month elsewhere in the State. [n4] The appellees all [p475] have large families, so that their standards of need, as computed by the State, substantially exceed the maximum grants that they actually receive under the regulation. The appellees urged in the District Court that the maximum grant limitation operates to discriminate against them merely because of the size of their families, in violation of the Equal Protection Clause of the Fourteenth Amendment. They claimed further that the regulation is incompatible with the purpose of the Social Security Act of 1935, as well as in conflict with its explicit provisions.

In its original opinion, the District Court held that the Maryland regulation does conflict with the federal statute, and also concluded that it violates the Fourteenth Amendment's equal protection guarantee. After reconsideration on motion, the court issued a new opinion resting its determination of the regulation's invalidity entirely on the constitutional ground. [n5] Both the statutory and constitutional issues have been fully briefed and argued here, and the judgment of the District Court must, of course, be affirmed if the Maryland regulation is in conflict with either the federal statute or the Constitution. [n6] We consider the statutory question first, because, [p476] if the appellees' position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA, 297 U.S. 288, 346-347 (Brandeis, J., concurring); Rosenberg v. Fleuti, 374 U.S. 449.

I

The appellees contend that the maximum grant system is contrary to § 402(a)(10) of the Social Security Act, as amended, [n7] which requires that a state plan shall

provide . . . that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.

The argument is that the state regulation denies benefits to the younger children in a large family. Thus, the appellees say, the regulation is in patent violation of the Act, since those younger children are just as "dependent" [p477] as their older siblings under the definition of "dependent child" fixed by federal law. [n8] See King v. Smith, 392 U.S. 309. Moreover, it is argued that the regulation, in limiting the amount of money any single household may receive, contravenes a basic purpose of the federal law by encouraging the parents of large families to "farm out" their children to relatives whose grants are not yet subject to the maximum limitation.

It cannot be gainsaid that the effect of the Maryland maximum grant provision is to reduce the per capita benefits to the children in the largest families. Although the appellees argue that the younger and more recently arrived children in such families are totally deprived of aid, a more realistic view is that the lot of the entire family is diminished because of the presence of additional children without any increase in payments. Cf. King v. Smith, supra, at 335 n. 4 (DOUGLAS, J., concurring). It is no more accurate to say that the last child's grant is wholly taken away than to say that the grant of the first child is totally rescinded. In fact, it is the family grant [p478] that is affected. Whether this per capita diminution is compatible with the statute is the question here. For the reasons that follow, we have concluded that the Maryland regulation is permissible under the federal law.

In King v. Smith, supra, we stressed the States' "undisputed power," under these provisions of the Social Security Act, "to set the level of benefits and the standard of need." Id. at 334. We described the AFDC enterprise as "a scheme of cooperative federalism," id. at 316, and noted carefully that

[t]here is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.

Id. at 318-319.

Congress was itself cognizant of the limitations on state resources from the very outset of the federal welfare program. The first section of the Act, 42 U.S.C. § 601 (1964 ed., Supp. IV), provides that the Act is

For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection. . . .

(Emphasis added.) Thus, the starting point of the statutory analysis must be a recognition that the federal law gives each State great latitude in dispensing its available funds. [p479]

The very title of the program, the repeated references to families added in 1962, Pub.L. 87-543, § 104(a)(3), 76 Stat. 185, and the words of the preamble quoted above, show that Congress wished to help children through the family structure. The operation of the statute itself has this effect. From its inception, the Act has defined "dependent child" in part by reference to the relatives with whom the child lives. [n9] When a "dependent child" is living with relatives, then "aid" also includes payments and medical care to those relatives, including the spouse of the child's parent. 42 U.S.C. § 606(b) (1964 ed., Supp. IV). Thus, as the District Court noted, the amount of aid

is . . . computed by treating the relative, parent or spouse of parent, as the case may be, of the "dependent child" as a part of the family unit.

297 F.Supp. at 455. Congress has been so desirous of keeping dependent children within a family that, in the Social Security Amendments of 1967, it provided that aid could go to children whose need arose merely from their parents' unemployment, under federally determined standards, although the parent was not incapacitated. 42 U.S.C. § 607 (1964 ed., Supp. IV).

The States must respond to this federal statutory concern for preserving children in a family environment. Given Maryland's finite resources, its choice is either to support some families adequately and others less adequately or not to give sufficient support to any family. We see nothing in the federal statute that forbids a State to balance the stresses that uniform insufficiency of payments would impose on all families against the greater ability of large families -- because of the inherent [p480] economics of scale -- to accommodate their needs to diminished per capita payments. The strong policy of the statute in favor of preserving family units does not prevent a State from sustaining as many families as it can, and providing the largest families somewhat less than their ascertained per capita standard of need. [n10] Nor does the maximum grant system necessitate the dissolution of family bonds. For even if a parent should be inclined to increase his per capita family income by sending a child away, the federal law requires that the child, to be eligible for AFDC payments, must live with one of several enumerated relatives. [n11] The kinship tie may be attenuated, but it cannot be destroyed.

The appellees rely most heavily upon the statutory requirement that aid "shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV). But since the statute leaves the level of benefits within the judgment of the State, this language cannot mean that the "aid" furnished must equal the total of each individual's standard of need in every family group. Indeed, the appellees do not deny that a scheme of proportional reductions for all families could be used that would result in no individual's receiving aid equal to his standard of need. As we have [p481] noted, the practical effect of the Maryland regulation is that all children, even in very large families, do receive some aid. We find nothing in 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV) that requires more than this. [n12] So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated.

This is the view that has been taken by the Secretary of Health, Education, and Welfare (HEW), who is charged with the administration of the Social Security Act and the approval of state welfare plans. The parties have stipulated that the Secretary has, on numerous occasions, approved the Maryland welfare scheme, including its provision of maximum payments to any one family, a provision that has been in force in various forms since 1947. Moreover, a majority of the States pay less than their determined standard of need, and 20 of these States impose maximums on family grants of the kind here in issue. [n13] The Secretary has not disapproved any state plan because of its maximum grant [p482] provision. On the contrary, the Secretary has explicitly recognized state maximum grant systems. [n14]

Finally, Congress itself has acknowledged a full awareness of state maximum grant limitations. In the Amendments of 1967, Congress added to § 402(a) a subsection, 23:

[The State shall] provide that, by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximum that the State imposes on the amount of aid paid to families will have been proportionately adjusted.

81 Stat. 898, 42 U.S.C. § 602(a)(23) (1964 ed., Supp. IV). (Emphasis added.) This specific congressional recognition of the state maximum grant provisions is not, of course, an approval of any specific maximum. The structure of specific maximums Congress left to the States, and the validity of any such structure must meet constitutional tests. However, the above amendment does make clear that Congress [p483] fully recognized that the Act permits maximum grant regulations. [n15]

For all of these reasons, we conclude that the Maryland regulation is not prohibited by the Social Security Act.

II

Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not, of course, impose a regime of invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its maximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and that the regulation is rationally supportable on at least four entirely valid grounds. The regulation can be clearly justified, Maryland argues, in terms of legitimate state interests in encouraging gainful employment, in maintaining an equitable balance in economic status as between welfare families and those supported [p484] by a wage-earner, in providing incentives for family planning, and in allocating available public funds in such a way as fully to meet the needs of the largest possible number of families. The District Court, while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation "is invalid on its face for overreaching," 297 F.Supp. at 468 -- that it violates the Equal Protection Clause

[b]ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply. . . .

297 F.Supp. at 469.

If this were a case involving government action claimed to violate the First Amendment guarantee of free speech, a finding of "overreaching" would be significant, and might be crucial. For when otherwise valid governmental regulation sweeps so broadly as to impinge upon activity protected by the First Amendment, its very overbreadth may make it unconstitutional. See, e.g., Shelton v. Tucker, 364 U.S. 479. But the concept of "overreaching" has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. [n16] For this Court to approve the invalidation of.state economic or social regulation as "overreaching" would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws "because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical Co., 348 U.S. 483, 488. That [p485] era long ago passed into history. Ferguson v. Skrupa, 372 U.S. 726.

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78.

The problems of government are practical ones, and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific.

Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70. "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426.

To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have, in the main, involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. [n17] See Snell v. Wyman, 281 F.Supp. 853, aff'd, 393 U.S. 323. It is a standard that has consistently been applied to State legislation restricting the availability of employment opportunities. Goesaert v. Cleary, 335 U.S. 464; Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552. See also Flemming v. Nestor, 363 U.S. 603. And it is a [p486] standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy. [n18]

Under this long-established meaning of the Equal Protection Clause, it is clear that the Maryland maximum grant regulation is constitutionally valid. We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State's legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient's grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner. [n19]

It is true that, in some AFDC families, there may be no person who is employable. [n20] It is also true that with respect to AFDC families whose determined standard of need is below the regulatory maximum, and who therefore receive grants equal to the determined standard, the employment incentive is absent. But the Equal Protection Clause does not require that a State must [p487] choose between attacking every aspect of a problem or not attacking the problem at all. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61. It is enough that the State's action be rationally based and free from invidious discrimination. The regulation before us meets that test.

We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly, ante, p. 254. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Cf. Steward Mach. Co. v. Davis, 301 U.S. 548, 584-585; Helvering v. Davis, 301 U.S. 619, 644.

The judgment is reversed. [p488]

APPENDIX TO OPINION OF THE COURT

The following was the schedule for determining subsistence needs, exclusive of rent, at the time this action was brought. Md. Manual of Dept. of Pub. Welfare, pt. II, Rule 200, Sched. A, p. 27:

          STANDARD FOR DETERMINING COST OF SUBSISTENCE NEEDS

---------------------------------------------------------------------------------------------

                                  I            II           III         IV            V

                                          -----------------------------------------------------------------

                                                    Monthly costs when

  Number of persons in      -----------------------------------------------------------------

assistance unit (include

   unborn child as an          No heat or   Light and/   Heat with   Heat, cook-     Heat

   additional person)          utilities    or cooking   or without   ing fuel      and all

                                included     fuel in-      light      and water    utilities

                                  with        cluded      included     heating     included

                                shelter        with         with      included       with

                                              shelter      shelter   with shelter   shelter

---------------------------------------------------------------------------------------------

1 person living:

   Alone . . . . . . . . .      $ 51.00      $ 49.00      $ 43.00      $ 40.00      $ 38.00

   With 1 person . . . . .        42.00        41.00        35.00        36.00        35.00

   With 2 persons. . . . .        38.00        37.00        35.00        34.00        33.00

   With 3 or more persons         36.00        35.00        34.00        33.00        32.00

2 persons living:

   Alone . . . . . . . . .        84.00        82.00        76.00        72.00        70.00

   With 1 other person . .        76.00        74.00        70.00        68.00        66.00

   With 2 or more other

      persons. . . . . . .        72.00        70.00        68.00        66.00        64.00

3 persons living:

   Alone . . . . . . . . .       113.00       110.00       105.00       101.00        99.00

   With 1 or more other

      persons. . . . . . .       108.00       106.00       101.00        99.00        97.00

4 persons. . . . . . . . .       143.00       140.00       135.00       131.00       128.00

5 persons. . . . . . . . .       164.00       162.00       156.00       152.00       150.00

6 persons. . . . . . . . .       184.00       181.00       176.00       172.00       169.00

7 persons. . . . . . . . .       209.00       205.00       201.00       197.00       193.00

8 persons. . . . . . . . .       235.00       231.00       227.00       222.00       219.00

9 persons. . . . . . . . .       259.00       256.00       251.00       247.00       244.00

10 persons . . . . . . . .       284.00       281.00       276.00       271.00       268.00

Each additional person over

  10 persons . . . . . . .        24.50        24.50        24.50        24.50        24.50

---------------------------------------------------------------------------------------------

   Modification of standard for cost of eating in restaurant:  add $15 per individual.

Other schedules set the estimated cost of shelter in the various counties in Maryland. See id. Sched. B -- Plan A, p. 29; Sched. B -- Plan B, p. 30. The present schedules, which are substantially the same, appear in the Md. Manual of Dept. of Social Services, Rule 200, pp. 33, 35. [p489]

1. 49 Stat. 620, as amended, 42 U.S.C. §§ 301-1394 (1964 ed. and Supp. IV).

2. Maryland Ann.Code, Art. 88A, § 44A et seq. (1969 Repl. Vol.).

3. The schedule for determining subsistence needs is set forth in an Appendix to this opinion.

4. The regulation now provides:

B. Amount -- The amount of the grant is the resulting amount of need when resources are deducted from requirements as set forth in this Rule, subject to a maximum on each grant from each category:

1. $250 for local departments under any "Plan A" of Shelter Schedule

2. $240 -- for local departments under any "Plan B" of Shelter Schedule

Except that:

a. If the requirements of a child over 18 are included to enable him to complete high school or training for employment (III-C-3), the grant may exceed the maximum by the amount of such child's needs.

b. If the resource of support is paid as a refund (VI-B-6), the grant may exceed the maximum by an amount of such refund. This makes consistent the principle that the amount from public assistance funds does not exceed the maximum.

c. The maximum may be exceeded by the amount of an emergency grant for items not included in a regular monthly grant. (VIII)

d. The maximum may be exceeded up to the amount of a grant to a person in one of the nursing homes specified in Schedule D, Section a.

3. A grant is subject to any limitation established because of insufficient funds.

Md. Manual of Dept. of Social Services, Rule 200, § X, B, p. 23, formerly Md. Manual of Dept. of Pub. Welfare, pt. II, Rule 200, § VII, 1, p. 20.

In addition, AFDC recipients in Maryland may be eligible for certain assistance in kind, including food stamps, public housing, and medical aid. See, e.g., 42 U.S.C. § 1396 et seq. (1964 ed., Supp. IV); 7 U.S.C. §§ 1695-1697. The applicable provisions of state and federal law also permit recipients to keep part of their earnings from outside jobs. 42 U.S.C. §§ 630-644 (1964 ed., Supp. IV); Md. Manual of Dept. of Social Services, Rule 200, § VI, B(8)(c)(2). Both federal and state law require that recipients seek work and take it if it is available. 42 U.S.C. § 602(a)(19)(F) (1964 ed., Supp. IV); Md. Manual of Dept. of Social Services, Rule 200, § III(D)(1)(d).

5. Both opinions appear at 297 F.Supp. 450.

6. The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court. Compare Langnes v. Green, 282 U.S. 531, 538, with Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 567-568. As the Court said in United States v. American Ry. Exp. Co., 265 U.S. 425, 435-436:

[I]t is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. By the claims now in question, the American does not attack, in any respect, the decree entered below. It merely asserts additional grounds why the decree should be affirmed.

When attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case, rather than deal with the merits of that question in this Court. See Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 468; United States v. Ballard, 322 U.S. 78, 88. That is not the situation here, however. The issue having been fully argued both here and in the District Court, consideration of the statutory claim is appropriate. Bondholders Committee v. Commissioner, 315 U.S. 189, 192 n. 2; H. Hart & H. Wechsler, The Federal Courts and the Federal System 1394 (1953). See also Jaffke v. Dunham, 352 U.S. 280.

7. 64 Stat. 550 as amended, 76 Stat. 185, 81 Stat. 881, 42 U.S.C. § 602(a)(10) (1964 ed., Supp. V).

8. 42 U.S.C. § 606(a) (1964 ed., Supp. IV) provides:

The term "dependent child" means a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (b) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.

The Act also covers children who have been placed in foster homes pursuant to judicial order or because they are state charges. 42 U.S.C. § 608 (1964 ed., Supp. IV).

9. 42 U.S.C. § 606(a) (1964 ed., Supp. IV), supra, n. 8, formerly § 406, 49 Stat. 629, as amended, § 321, 70 Stat. 850. See also S.Rep. No. 628, 74th Cong., 1st Sess., 16-17 (1935).

10. The Maryland Dept. of Social Services, Monthly Financial and Statistical Report, Table 7 (Nov.1969), indicates that 32,504 families receive AFDC assistance. In the Maryland Dept. of Social Services, 1970 Fiscal Year Budget, the department estimated that 2,537 families would be affected by the removal of the maximum grant limitation. It thus appears that only one-thirteenth of the AFDC families in Maryland receive less than their determined need because of the operation of the maximum grant regulation. Of course, if the same funds were allocated subject to a percentage limitation, no AFDC family would receive funds sufficient to meet its determined need.

11. 42 U.S.C. § 606(a) (1964 ed., Supp. IV), n. 8, supra.

12. The State argues that, in the total context of the federal statute, reference to "eligible individuals" means eligible applicants for AFDC grants, rather than all the family members whom the applicants may represent, and that the statutory provision was designed only to prevent the use of waiting lists. There is considerable support in the legislative history for this view. See H.R.Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong.Rec. 13934 (1949) (remarks of Rep. Forand). And it is certainly true that the statute contemplates that actual payments will be made to responsible adults. See, e.g., 42 U.S.C. § 605. For the reasons given above, however, we do not find it necessary to consider this argument.

13. See HEW Report on Money Payments to Recipients of Special Types of Public Assistance, Oct.1967, Table 4 (NCSS Report D-4). See also Hearings on H.R. 5710 before the House Committee on Ways and Means, 90th Cong., 1st Sess., pt. 1, p. 118 (1907).

14. HEW, State Maximums and Other Methods of Limiting Money Payments to Recipients of Special Types of Public Assistance, Oct.1962, p. 3:

When States are unable to meet need as determined under their standards, they reduce payments on a percentage or flat reduction basis. . . . These types of limitations may be used in the absence of, or in conjunction with, legal or administrative maximums. A maximum limits the amount of assistance that may be paid to persons whose determined need exceeds that maximum, whereas percentage or flat reductions usually have the effect of lowering payments to most or all recipients to a level below that of determined need.

See also HEW Interim Policy Statement of May 31, 1968, 33 Fed.Reg. 10230 (1968); 45 CFR § 233.20(a)(2)(ii), 34 Fed.Reg. 1394 (1969).

15. The provisions of 42 U.S.C. § 1396b(f) (1964 ed., Supp. IV), also added by the Amendments of 1967, 81 Stat. 898, are consistent with this view. That section provides that no medical assistance shall be given to any family that has a certain level of income. The section, however, makes an exception, 4 U.S.C. § 1396b(f)(1)(B)(ii) (1964 ed., Supp. IV):

If the Secretary finds that the operation of a uniform maximum limits payments to families of more than one size, he may adjust the amount otherwise determined under clause (i) to take account of families of different sizes.

These provisions have particular significance in light of the Administration's initial effort to secure a law forcing each State to pay its full standard of need. See Rosado v. Wyman, supra.

This recognition of the existence of state maximums is not new with the Amendments of 1967. In reporting on amendments to the Social Security Act in 1962, 76 Stat. 185, the Senate committee referred to "States in which there is a maximum limiting the amount of assistance an individual may receive." S.Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962).

16. Cf. Shapiro v. Thompson, 394 U.S. 618, where, by contrast, the Court found state interference with the constitutionally protected freedom of interstate travel.

17. It is important to note that there is no contention that the Maryland regulation is infected with a racially discriminatory purpose or effect such as to make it inherently suspect. Cf. McLaughlin v. Florida, 379 U.S. 184.

18. See Developments in the Law -- Equal Protection, 82 Harv.L.Rev. 1065, 1082-1087.

19. The present federal minimum wage is $52-$64 per 40-hour week, 29 U.S.C. § 206 (1964 ed., Supp. IV). The Maryland minimum wage is $46-$52 per week, Md.Ann.Code, Art. 100, § 83 (Supp. 1969).

20. It appears that no family members of any of the named plaintiffs in the present case are employable.
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