Califano v. Westcott, 443 U.S. 76 (1979)

Author: Justice Powell

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Califano v. Westcott, 443 U.S. 76 (1979)

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, concurring in part and dissenting in part.

I agree with the Court that § 407 violates the equal protection component of the Fifth Amendment. In my view, however, the court below erred when it ordered the extension of benefits to all families in which a mother has become unemployed. This extension reinstates a system of distributing benefits that Congress rejected when it amended § 407 in 1968. Rather than frustrate the clear intent of Congress, the court simply should have enjoined any further payment of benefits under the provision found to be unconstitutional.

As Mr. Justice Harlan observed:

Where a statute is defective because of underinclusion, there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.

Welsh v. United States, 398 U.S. 333, 361 (1970) (concurring in result).

In choosing between these alternatives, a court should attempt to accommodate as fully as possible the policies and judgments expressed in the statutory scheme as a whole. See id. at 365-366, and n. 18. It should not use its remedial powers to circumvent the intent of the legislature.

The Court correctly observes that

the gender qualification [of § 407] was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs.

Ante at 87. It is clear that Congress intended to proscribe the payment of benefits to families where only one parent was unemployed and where the principal wage earner continued to work.

From all that appears, Congress, with an image of the "traditional family" in mind, simply assumed that the father would be the family breadwinner, and that the mother’s employment role, if any, would be secondary.

Ante at 88. Yet the result of the Court’s decision affirming the District Court’s relief is to compel exactly the extension of benefits Congress wished to prevent.{1}

Rather than thus rewriting § 407, we should leave this task to Congress. Now that we have held that this statute constitutes impermissible gender-based discrimination, it is the duty and function of the Legislative Branch to review its AFDC-UF program in light of our decision and make such changes therein as it deems appropriate. Leaving the resolution to Congress is especially desirable in cases such as this one, where the allocation and distribution of welfare funds are peculiarly within the province of the Legislative Branch. See Califano v. Jobst, 434 U.S. 47 (1977); Maher v. Roe, 432 U.S. 464, 479 (1977); Dandridge v. Williams, 397 U.S. 471 (1970).

We cannot predict what Congress will think to be in the best interest of its total welfare program. The extension of AFDC benefits to families suffering only from unemployment was a relatively recent development in the history of the program, a development that Congress made permanent only on the understanding that payments could be limited to cases where the principal wage earner was out of work. We cannot assume that Congress, in 1968, would have approved this extension if it had known that ultimately payments would be made whenever either parent became unemployed. Nor can we assume that Congress now would adopt such a system in light of the Court’s ruling that § 407 is invalid.

The Court emphasizes the hardships that may be caused by enjoining the program until Congress can act. There is the possibility, not mentioned by the Court, that other hardships might be occasioned in the allocating of limited funds as a result of court-ordered extension of these particular benefits. In any event, Congress has the option to mitigate hardships by providing promptly for retroactive payments. An injunction prohibiting further payments at least will conserve the funds appropriated until Congress determines which group, if any, it does want to assist. The relief ordered by the Court today, in contrast, ensures the irretrievable payment of funds to a class of recipients Congress did not wish to benefit.{2}

Because it is clear that Congress intended to prevent the result mandated today, and that the reexamination of § 407 required under our decision properly should be made by Congress, I dissent.

1. The relief that perhaps would best approximate what Congress appears to have intended would limit payment of benefits to those families in which the principal wage earner, regardless of gender, has become unemployed. But this approach presents several difficulties, as the Court demonstrates. Ante at 91-93. Under these circumstances, the modification of the order sought by appellant in No. 78-689 properly was rejected.

The Court suggests that payments to families where a breadwinner remains employed are not inconsistent with the Act, because, in cases where a parent becomes incapacitated, benefits are paid regardless of the other parent’s employment status or history. 42 U.S.C. § 606(a); see ante at 92 n. 9. This overlooks the special circumstances involved when a parent suffers from an incapacity. In such cases, the family usually must bear not only the costs of income lost through the one parent’s unemployment, but also medical and other expenses resulting from the disability that often are quite substantial.

2. The fact that none of the parties here has sought this step, a point which the Court emphasizes, is irrelevant. This issue should turn on the intent of Congress, not the interests of the parties. A court no less is "infringing legislative prerogatives," ante at 92, when it acts at the behest of the particular litigants before it, than when it chooses a remedy on its own initiative.


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Chicago: Powell, "Powell, J., Concurring," Califano v. Westcott, 443 U.S. 76 (1979) in 443 U.S. 76 443 U.S. 94–443 U.S. 96. Original Sources, accessed March 29, 2023,

MLA: Powell. "Powell, J., Concurring." Califano v. Westcott, 443 U.S. 76 (1979), in 443 U.S. 76, pp. 443 U.S. 94–443 U.S. 96. Original Sources. 29 Mar. 2023.

Harvard: Powell, 'Powell, J., Concurring' in Califano v. Westcott, 443 U.S. 76 (1979). cited in 1979, 443 U.S. 76, pp.443 U.S. 94–443 U.S. 96. Original Sources, retrieved 29 March 2023, from