Right to Travel - Constitutional Law Interactive

The Right to Travel

The right to travel is a fundamental right with roots in multiple constitutional provisions: the Privileges and Immunities Clause of Article IV, the Commerce Clause, and the Fourteenth Amendment's Privileges or Immunities Clause. In Saenz v. Roe (1999), the Supreme Court identified three distinct components of the right to travel, each protecting different aspects of a citizen's mobility and freedom to relocate among the states.

Strict Scrutiny

Laws that burden the right to travel are subject to strict scrutiny: they must be narrowly tailored to serve a compelling government interest. Durational residency requirements — which condition state benefits or rights on how long a person has lived in the state — are the paradigmatic burden on the right to travel. A law that penalizes new residents by delaying their eligibility for state benefits must pass strict scrutiny or be struck down.

Component 1: Right to Enter and Leave

Citizens have the right to travel freely from state to state. States cannot restrict entry or exit. This component is rooted in the structural protections of the Commerce Clause and the Privileges and Immunities Clause of Article IV.

This component is rarely tested because outright travel bans are almost unheard of in modern law. No state openly forbids citizens from moving to another state.

Component 2: Right to Be a Welcome Visitor

When a citizen enters another state, the state must treat them as a welcome visitor rather than a hostile stranger. The Privileges and Immunities Clause of Article IV, § 2 prohibits discrimination against out-of-state citizens regarding fundamental rights and essential activities (practicing a trade, owning property, accessing courts).

The state may treat nonresidents differently only if: (1) there is a substantial reason for the difference, and (2) the discrimination bears a substantial relationship to that reason.

Component 3: Right to Be Treated as a Resident Upon Becoming One

New residents must be treated the same as long-term residents. The Fourteenth Amendment's Privileges or Immunities Clause protects this right. Durational residency requirements — which deny benefits to new residents during an initial period — violate this component.

Example: In Saenz v. Roe, the Court struck down California's one-year waiting period for full welfare benefits for new residents. Once a person establishes bona fide residency in a state, they must receive the same benefits as those who established residency long before.

Durational Residency vs. Bona Fide Residency

A bona fide residency requirement — requiring that a person actually reside in the state to receive state benefits or exercise state rights — is constitutional. But a durational residency requirement — conditioning benefits on how long the person has resided there — is subject to strict scrutiny and almost always unconstitutional.

The distinction:

"Do you live here?" (permissible)
"How long have you lived here?" (suspect)

Hypothetical A: In-State Tuition Waiting Period

A state provides free tuition at state universities for all residents but imposes a one-year waiting period — new residents must pay out-of-state tuition for their first year, even after establishing domicile.

Does this violate the right to travel?

Likely yes — the one-year durational residency requirement for in-state tuition penalizes new residents and triggers strict scrutiny under Saenz's third component. No — states can charge out-of-state tuition to ensure nonresidents do not exploit state subsidies. No — education is not a fundamental right, so only rational basis applies.

Correct! Under Saenz v. Roe's third component, new residents must be treated the same as long-term residents once they establish bona fide residency. A one-year waiting period before new domiciliaries qualify for in-state tuition is a durational residency requirement that penalizes the exercise of the right to travel. Strict scrutiny applies. The state's interest in preventing tuition abuse is legitimate, but less restrictive means exist — such as requiring proof of bona fide domicile (driver's license, voter registration, lease) rather than requiring a waiting period. Note: Vlandis v. Kline struck down Connecticut's irrebuttable presumption that students who applied from out of state remained nonresidents for their entire enrollment.

Hypothetical B: Bar Admission Residency Requirement

A state requires all attorneys to have been residents of the state for at least three years before being admitted to the state bar. A recent transplant who is an experienced attorney licensed in another state challenges the requirement.

Is the three-year residency requirement constitutional?

No — durational residency requirements for bar admission violate the right to travel and the Privileges and Immunities Clause; the state can require current residency but not three years of it. Yes — states have exclusive authority to regulate bar admission and can impose any requirements they choose. It depends on whether the state can show that long-term residents make better attorneys.

Correct! Supreme Court of New Hampshire v. Piper (1985) held that the Privileges and Immunities Clause of Article IV bars states from requiring residency at all for bar admission (practicing law is a fundamental activity). A three-year durational requirement goes even further — it not only requires residency but conditions admission on how long the attorney has been a resident. This violates both the Privileges and Immunities Clause (discrimination against out-of-state citizens in a fundamental activity) and the right to travel (penalizing new residents). The state's interest in ensuring familiarity with local law can be served by a bar exam, not by a waiting period.

Hypothetical C: Emergency Medical Care Eligibility

A state limits eligibility for state-funded emergency medical care to persons who have been residents for at least six months.

Is the six-month residency requirement constitutional?

No — this is a durational residency requirement for a critical state benefit that penalizes new residents and cannot survive strict scrutiny. Yes — states can limit benefits to established residents to protect limited resources. It depends on whether the state can demonstrate a fiscal emergency.

Correct! Under Saenz's third component, states cannot condition access to state benefits on how long a person has been a resident. A six-month waiting period for emergency medical care penalizes new residents for exercising their right to travel. Strict scrutiny applies, and the requirement fails: the state's interest in conserving fiscal resources, while legitimate, does not justify denying emergency medical care to bona fide residents based solely on how recently they moved. A bona fide residency requirement (you must actually live here) would be permissible, but a durational requirement (you must have lived here for six months) is not.

Hypothetical D: Commercial Fishing License Fees

A state charges nonresidents a $500 annual fee for commercial fishing licenses, while residents pay $50. The state argues it needs to conserve marine resources for its own citizens.

Does this fee differential violate the Constitution?

Likely yes — the Privileges and Immunities Clause of Article IV prohibits discrimination against nonresidents in fundamental economic activities unless substantially justified and closely tailored. No — states own their natural resources and can charge nonresidents more for access. No — fishing is not a fundamental right, so equal treatment is not required.

Correct! Toomer v. Witsell held that commercial fishing is a fundamental economic activity protected by the Privileges and Immunities Clause of Article IV. A 10:1 fee differential substantially discriminates against nonresidents. The state must show (1) a substantial reason for the difference (nonresidents are a peculiar source of the problem) and (2) the discrimination bears a substantial relationship to that reason. While conservation is a legitimate interest, a 10:1 differential is likely not proportional — a modest differential reflecting administrative or conservation costs might survive, but this magnitude suggests protectionism. States do not "own" marine resources in a way that permits excluding nonresidents from fundamental economic activities.

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