Monday, November 14, 2016

The Right to Travel

In the most recent post, I wrote about the fundamental right to vote.  Another fundamental right that shows up in MBE questions (not all that frequently) is the fundamental right to travel. And to reiterate, these fundamental rights are important both for substantive due process and for equal protection. In either case, if a law impairs such a right, the law will only be valid if it passes strict scrutiny.

An individual has a fundamental right to travel from state to state and to be treated equally after migrating to the new state.  It's important to note, though, that not every restriction on the right to cross state lines is an impairment on the fundamental right to travel.   An example to illustrate a restriction that would not be an impairment on the fundamental right to travel would be a penalty incurred by a parent who has abandoned his/her children by leaving the state and not paying child support.  In addition, often states will impose durational residency requirements for receiving certain benefits within the state.  It's questionable whether strict scrutiny is necessary here (in other words, it's questionable if such a residency requirements is an impairment on the fundamental right to travel).  It's probably best to keep the following in mind:  A one-year residency to receive full welfare benefits is invalid, as is a one-year residency to receive state-subsidized medical care.  Likewise, a one-year residency to vote in state is invalid.  On the other hand, a 30-day residency requirement to vote in state is valid, as is a one-year residency to obtain a divorce.

Note also that international travel is not a fundamental right.  It's best instead to apply rational basis scrutiny to ensure that any regulations impairing international travel are not arbitrary.

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