A Briefing Paper Prepared for the NACHA EBT Council by
Barbara Leyser, EBT Consultant, National Consumer Law Center
January 6, 1998
The National Consumer Law Center supports the concept of EBT as a means of
providing an enhanced delivery system for public benefit recipients that potentially
increases the security of their benefits and reduces the stigma associated
with a coupon based food stamp program. However, we have been concerned about
particular design features that might actually make benefit access more problematic
or costly for recipients than the paper based system under which they had
been operating. The lack of interoperability among diverse state EBT systems
is one of our key concerns in this area.
We submit that national interoperability between diverse state EBT systems
should be federally mandated and that recipients have a right to expect such
accommodations, not only because portability of benefits has always existed
since the inception of both the Food Stamp program and the various direct
federal benefit programs such as Social Security, but more fundamentally because
to do otherwise would infringe on one of the most basic rights of U.S. citizens--the
right to freely travel anywhere within the country. Accordingly, it is our
contention that, regardless of the number of recipients involved or the costs
of insuring portability of benefits, federal agencies that authorize the delivery
of their benefits through EBT systems must assure that recipients can continue
to access those benefits wherever they may be in the country at no additional
cost to them.
Under the paper based food stamp system, benefits issued in one state can
be used by a recipient at any authorized food stamp retailer in the entire
country. This portability of food stamp benefits is not only of critical
importance to migrant farm workers and other seasonal workers whose employment
requires frequent moves across state lines but also enables entire households,
or individual household members, to retain their benefit access when they
need to temporarily leave the area to look for work, to take care of a family
member, or to visit relatives. Moreover, it both recognizes the fact that
in many areas along state borders crossing state lines to shop is in fact
the norm and allows for a greater freedom of choice--optimizing the purchasing
power of the limited funds available to such households by giving them the
freedom to shop across state and county lines to take advantage of sales,
lower prices, or lower taxes on consumables purchased with other funds.
There simply is no justification for impinging on the right to freely shop
at any authorized food stamp retailer solely because of a change in the method
of issuing the benefits, especially when the benefits themselves are uniform
across the contiguous United States with amounts determined not by the state
in which one lives or shops but only on household size and income. The lack
of interoperability defeats the purpose of the Food Stamp Act, which is "to
alleviate such hunger and malnutrition" by permitting "low-income
households to obtain a more nutritious diet through normal channels of
trade..." (emphasis added) 7 U.S.C. Section 2011. Restricting the
ability of households to use their benefits in the state of their choice does
not allow households to obtain more nutritious diets through normal channels
of trade. Additionally, the Act explicitly calls for national eligibility
standards, 7 U.S.C. Section 2014(a). It is illogical to require national
eligibility standards but not require a uniform, interoperable benefit delivery
system. Congress could not have been contemplating that result when it called
for uniform eligibility standards.
Furthermore, there is a long line of court cases addressing policies that
violate the right to freely travel across state lines. The right of free
interstate travel not only has roots in a number of provisions of the Constitution,
but "inheres in the concept of a union". Green v. Anderson,
811 F. Supp. (E.D. Cal. 1993) at 518 and n.7, aff'd.26 F 2d 95 (9th
Cir. 1994), vacated and remanded on other grounds, 115 S. Ct. 1059
(1995). As stated early on by the Supreme Court:
"...For all the great purposes for which the Federal
government was formed, we are one people, with one common country. We are
all citizens of the United States, and as members of the same community must
have the right to pass and repass through every part of it without interruption,
as freely as in our own States..."
Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 48-49 (1867), quoting
from The Passenger Cases, 48 U.S. (7 How.) 283, 492 (1849) (Taney, C.
J., dissenting); accord United States v. Guest, 383 U.S. at 758, 86
S. Ct. at 1178 ("a right so elementary was conceived from the beginning
to be a necessary concomitant of the stronger union the Constitution created").
Two years later, the Court said, in interpreting the Privileges and Immunities
Clause of Article IV:
[I]t gives [citizens of each state] the right of free ingress
into other States and egress from them....
[W]ithout some provision of the kind...the Republic would have constituted
little more than a league of States; it would not have constituted the Union
which now exists.
Paul v. Virginia, 75 U.S. (8 Wall) 168, 180 (1869).
These principles have been consistently reinforced in the years since. For
example, in Williams v. Fears, the Court said:
Undoubtedly the right of locomotion, the right to remove
from one place to another according to inclination, is an attribute of personal
liberty, and the right, ordinarily, of free transit from or through the territory
of any state is a right secured by the 14th Amendment and by other provisions
of the Constitution.
Williams v. Fears, 179 U.S. 270, 274, 21 S. Ct. 128, 129 (1900); see
also Twining v. New Jersey, 211 U.S. 78, 97, 29 S. Ct. 14, 19 (1908) (since
"right to pass freely from state to state" is among rights and privileges
of national citizenship recognized by Supreme Court, it is also guaranteed
by privileges and immunities clause of 14th Amendment against abridgment by
the states). In yet another context, the Supreme Court observed:
[T]he right to travel is part of the "liberty"
of which the citizen cannot be deprived without due process of law under the
Fifth Amendment....[T]hat right was emerging at least as early as the Magna
Carta....Freedom of movement across frontiers...., and inside frontiers as
well, was part of our heritage....Freedom of movement is basic in our scheme
of values.
Kent v. Dulles, 357 U.S. 116, 125-126, 78 S. Ct. 1113, 1118 (1958).
Given that federal agencies have an obligation to enforce and uphold the
Constitution and that said Constitution protects the right to travel, we contend
that it is therefore incumbent on the agencies to not only mandate nationwide
interoperability of EBT but to further assure that none of the costs associated
with affording such universal access be passed on to the recipient as to do
so would be in direct violation of the Constitutional guarantee of free travel.
and NCLC