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54 Calif. L. Rev. 443 (1966)
Unconstitutional Conditions: Welfare Benefits with Strings Attached

handle is hein.journals/calr54 and id is 467 raw text is: Unconstitutional Conditions: Welfare Benefits with Strings Attached Robert M. ONeil* M AY A STATE COMPEL a foreign corporation, in order to transact busi- ness within the state, to forego removal of lawsuits to the federal courts?1 May the same state require recipients of welfare benefits to agree not to join certain political organizations while they receive benefits? Surprisingly, constitutional law has tended to view these two questions as almost equivalent. Both, it has been said, raise problems of unconsti- tutional conditions. The vital differences between these two cases should be rather obvious. Both the corporation and the welfare-seeker face, to be sure, a superfi- cially similar choice: whether to accept the benefit encumbered by the condition, or forego the benefit because of reluctance to submit to the condition. But that theoretical if beguiling similarity obscures critical dif- ferences which warrant different legal analysis. The choice facing the cor- porate management calls for an essentially practical, economic decision- is it worth relinquishing the opportunity to remove cases to the federal courts in order to carry on local business? If the price is excessive, many other markets beckon. Even if the state which imposes the offensive con- dition happens to be the site of the principal or most logical market, the corporation may avoid the condition by incorporating there. Thus the decision whether to accept or reject the condition in order to obtain the benefit is an unemotional, objective one.2 * A.B., 1956, A.M., 1957, LL.B., 1961, Harvard University; Acting Associate Professor of Law, University of California (Berkeley). 1 The case on which the question is based is Doyle v. Continental Ins. Co., 94 U.S. 535 (1877). The Court's holding that such a condition could constitutionally be imposed was overruled in Terral v. Burke Constr. Co., 257 U.S. 529 (1922). See generally Willcox, Invasions of the First Amendment Through Conditioned Public Spending, 41 Coprmm L.Q. 12, 22-23 (1955). 2 This is not to say, of course, that the corporate decision may not be a difficult and even painful one for those charged with making it. In a time of greater solicitude for the foreign corporation than the present, the Supreme Court held that California could not constitution- ally compel a contract carrier seeking to do business within the state to assume the burdens of a common carrier as a condition of the privilege of using the state's highways. Mr. Justice Sutherland spoke feelingly of the dilemma facing the corporation confronted with such an unpalatable option: In reality, the carrier is given no choice, except a choice between the rock and the whirlpool,--an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden. Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 593 (1926). For the Court's lack of corresponding solicitude for the dilemma of individuals seeking conditioned benefits, see, e.g., Hamilton v. Regents of the Univ. of Calif., 293 U.S. 245 (1934).