12 Colum. J. Eur. L. 713

CITIZENSHIP AND FREE MOVEMENT:
EUROPEAN AND AMERICAN FEATURES OF A

JUDICIAL FORMULA FOR INCREASED COMITY
Francesca Strumia*
This Article explores the judicial application of the doctrines of
free movement and citizenship in the European Union and in the
United States. A comparative examination of the case law on
these two doctrines shows remarkable similarities in the European
and American courts' combination of citizenship and free
movement in resolving analogous judicial issues. Further
investigation, however, reveals that behind a first sight affinity of
judicial formulas, different rationales and diverging constitutional
roots can be found in the two systems. In order to spell out more
closely the role of citizenship in promoting unconstrained
movement in the United States and in Europe, the Article takes
into account additional factors incidental to the judicial interplay
of citizenship and movement. Considerations of economic versus
political integration and interstate equality versus state autonomy
turn out to be key in identifying the centripetal forces that govern
the role of citizenship in the two examined systems. The Article
ultimately offers the outcomes of this investigation as a tool to
direct the evaluation of European citizenship, assessing its
potential contributions and its shortcomings in the evolving
integration of Europe.
INTRODUCTION ....................................................................................................... 714
I. TRENDS IN EUROPEAN FREE MOVEMENT DOCTRINE: A CHANCE FOR
THE ECONOMICALLY INACTiVE .................................................................. 716
A. The Route to Trojani and Collins ..................................................... 718
B. Current Status of the Free Movement Doctrine: The Trojani Case .... 720
C. The Legislative Side: Directive 2004/31 .......................................... 723
D. Separated Social Security: A Persisting Barrier ............................... 724
E. The Status of Freedom of Movement in Europe: Between
Migration and Unconstrained Travel ............................................... 726
II. THE RIGHT TO TRAVEL IN THE UNITED STATES ......................................... 727
A. Origins and Early History of the Right ............................................ 727
B. The Equal Protection Branch of the Right to TraveL ...................... 730
C. Right to Travel and Non-Discrimination Rationale ......................... 735
D. Right to Travel and Citizenship ....................................................... 736
* SJ.D. Candidate, Harvard Law School. I would like to thank Professor Daniel J. Meltzer for his
valuable supervision and advice during research and writing of this Article. Also, I am very grateful to
Tim Corthaut for his research suggestions and to Yen-Tu Su, Chi Chung, Florian Sander, and Keyvan
Rastegar for listening to ideas and sharing thoughts and remarks. Thank you also to Will Phelan for his
helpful comments on an earlier draft of this Article.
713
714 COLUMBIA JOURNAL OF EUROPEAN LAW [Vol. 12
III. REVERSE PATTERNS: A GLANCE INTO THE KINGDOM OF THE
ECONOMICALL y ACTIVE ............................................................................ 738
A. Students ............................................................................................ 739
l. Mobility of Students in the European Union ............................. 739
2. Mobility of Students in the United States .................................. 741
B. Professionals .................................................................................... 743
1. Professional Mobility in the European Union ............................ 743
2. Professional Licensing in the United States ............................... 744
C. Mobility of Lawyers ......................................................................... 746
l. Mobility of Lawyers Within the European Union ..................... 746
2. Mobility of Lawyers in the United States .................................. 747
CONCLUSION .......................................................................................................... 749
INTRODUCTION
Similar judicial formulas, blending citizenship and non-discrimination
arguments, sustain the doctrine of free movement in the European Union and the
right to travel doctrine in the United States. This Article challenges the apparent
closeness of these formulas and discusses their hidden conceptual distance.
Accordingly, the study of free movement is fundamental to understanding notions of
citizenship in the two examined models. Unconstrained movement across the
territory of the state is one of the main entitlements connected to the idea of
membership expressed by citizenship; doctrines of free movement provide a
privileged perspective on the operation of citizenship. Comparing the application of
citizenship discourse in judicial opinions concerning free movement issues helps
unmask the qualities and weaknesses of the membership status in a certain legal
system. A superficial affinity in judicial rationales on both sides of the Atlantic
masks considerable divergence in the role that citizenship plays in supporting the
right to travel and the freedom to move. This divergence stems from a discrepancy
in the American and European concepts of citizenship.
Recent European cases tend to apply the citizenship provision as an expansive
tool, making it the core of a judicial effort to shift the doctrine of free movement
from a model of economically active entitled categories to one of generalized
entitlement. In the United States, instead, unconstrained travel on the territory of the
union has always been a general right, and judges use notions of citizenship to guard
this general entitlement against threats raised by state particularism. Different
elements interact with citizenship in the two systems to create the architecture of free
mobility. Considerations of state autonomy, right of residence, and economic
cohesion combine to create a judicial formula blending citizenship, non-
discrimination, and free movement. While European citizenship represents great
promise, the European Court of Justice is bestowing upon European citizenship a
task it is not equipped to handle. Focusing on inconsistencies existing in the
relationship of free movement and citizenship is a starting point to evaluate the
potential of citizenship as an instrument of integration in Europe. The citizenship
mechanism could be key at some point for Europe to deal with its increasing
integration issues.
Part I of this Article focuses on the free movement doctrine in Europe. Freedom
of movement was invented in the European Union for specific categories of
2006] CITIZENSHIP AND FREE MOVEMENT 715
economically active people. The doctrine has since been extended, in good part
through the efforts of the European Court of Justice. Especially in recent years, the
Court appears to have engaged in an effort to stretch the pre-existing categories and
to generalize the freedom to move based on European citizenship and the principle
of non-discrimination. The two most recent expressions of the Court's expansive
effort are the judgments in the Trojani case, I rendered in September 2004, and in the
Bidar case,z rendered in March 2005. The Bidar case primarily concerns the free
movement of students, but it also discusses the citizenship-based doctrine of
movement. The Trojani case fits squarely into what might be called the Court's
concern for mobility of the non-economically active; it is a useful starting point for
analysis.
Part II describes the origins and judicial evolution of the right to travel in the
United States. The right to travel lacks a textual basis in the U.S. Constitution, but it
is considered a fundamental right related to the nature of the federal union and
belonging directly to the people.
3
The non-discrimination component of right to
travel case law introduces an element of affinity with the dormant commerce clause
doctrine and the privileges and immunities clause. The interaction of these
constitutional principles in case law results in a doctrine of unconstrained travel that
is largely indebted to ideas of non-discrimination and equal citizenship. Despite the
apparent affinity with recent judicial developments regarding free movement in the
European Union (EU), federal citizenship in the U.S. has served the reverse function
of the one observed in Europe. American citizenship guards the general entitlement
to freedom of movement. EU citizenship has been used instead as a mechanism to
extend this right; its function has been to prevent undue restraints on interstate
mobility.
Part III explores reverse patterns of free movement in the European Union and
in the United States. A review of the rights to free movement of economically active
people shows the apparent inconsistencies in the two theories of mobility. Free
movement of students and free movement of professionals are the two pillars of the
analysis. Among professionals, particular attention is paid to lawyers as
representatives of a professional category for which, due to a lack of homogeneity
within the profession, mobility is especially challenging. This investigation reveals
an apparent paradox. In the European Union, where free movement is a recently
articulated principle and the systems pre-existing the union are highly disparate, the
mobility of economically active categories and of students has received an
unprecedented legal incentive. The scenario is different on the other side of the
Atlantic. The mobility of professionals and students in the United States is more
difficult than it has become in the European Union. The unexpected contrast could
be attributed to different logics of integration. In the American federal system,
maintaining political balance requires individual state autonomy. This autonomy is
reflected in professional regulations, which vary from state to state, and in tuition
incentives for resident students. Citizenship by marking permissible distinctions
signals an area of undisputed sovereignty for the single state. If state autonomy is
I Case C-456/02, Trojani v. Centre public d'aide sociale de Bruxelles, 2004 E.C.R. 7573.
2 Case C-209/03, The Queen v. London Borough of Ealing, Secretary of State for Education and
Skills, 2005 E.C.R. 2119.
3 Smith v. Turner (Passenger Cases), 48 U.S. (7 How.) 283 (1849) (Taney, 1., dissenting).
clearly important to the federal system in the United States, supra-national
integration in Europe disregards state autonomy to the extent necessary to create a
strong internal market. When the supply of labor and services are involved, other
rationales for integration prove much stronger than citizenship.
The mosaic that emerges from comparing the doctrines of free movement and
right to travel is one of affinity and contrasts. Free movement and travel rely indeed
on the same judicial formula blending citizenship and equal treatment. However,
these similar formulas are based on very different values. In both systems, there is a
connection between federal or common citizenship and right to free movement. The
non-discrimination component of common citizenship also helps attenuate interstate
disparities and inconsistencies that the exercise of individual sovereignty could
create. Beyond these partial similarities, however, European jurisprudence is asking
the notion of citizenship in the European Union to contribute more actively to
advance free movement and interstate cohesion than has ever been asked of
American citizenship. European citizenship, however, does not have as strong a
status as American citizenship: It is a promising resource of integration, but in order
to achieve its potential, it needs strengthening.
II. TRENDS IN EUROPEAN FREE MOVEMENT DOCTRINE:
A CHANCE FOR THE ECONOMICALLY INACTIVE
The Treaty Establishing the European Community (EC Treaty) grants the
freedom to move within the Community to specified categories of people, to whom
this right is valuable in pursuing economic goals. Freedom of movement is derived
from Article 39 (freedom of movement for workers), Article 43 (freedom of
establishment), and Article 49 (freedom to provide services) of the EC Treaty. Over
the years, these initial well-defined categories of free movers have been subject to an
expanding force, first in response to the need to thoroughly integrate migrant
workers into a host state, and later as an attempt to extend the freedom of movement
to non-economically active people. In order to facilitate the migration and
integration of workers, provisions have been enacted with regard to their family
members that lay the conditions for them to follow the migrant worker and integrate
themselves into another state. First steps in this direction can be found in a 1968
regulation
4
which governs the rights ofresidence,5 employment,6 and education
7
for
family members of migrant workers. The interest in movement of the non-
economically active was first taken into account by the common legislator in three
directives enacted in the 1990s, regarding, respectively, the right of residence in
general,s the right of residence for employees and self-employed persons who have
ceased their occupational activity,9 and the right of residence for students.
1O
The
rights of residence provided for in these directives are subject to the availability of
Council Regulation 1612/68, 1968 OJ. (L 257) 12.
s Id. art. 10.
6 Id. art. II.
1 Id. art. 12.
8 Council Directive 90/364/EEC, 1990 OJ. (L 180) 26.
9 Id. at 28.
sufficient resources and rest on the belief that intra-community movement should not
create financial burdens for the host states.
This is still, in good measure, the European philosophy supporting free
movement of non-economic actors. However, some recent decisions in the
European Court of Justice (ECJ)II suggest that there is an ongoing effort within the
Community, particularly evident in the job of the judges in Luxembourg, to stretch
the original borders of freedom of movement and to extend it from the economic
field into the social one. In order to reach this goal, the Court is building a delicate
network of basic EU law provisions by combining the citizenship clauses,12 the
freedom of movement provisions, and the principle of non-discrimination on the
basis of nationality.13 Behind this judicial effort, there is probably a renewed sense
of the value of individuals in the European project. As some scholars have
suggested,14 the Maastricht Treaty and the Charter of Fundamental Rights
l5
have had
a significant part in granting a status, at the Community level, to persons, who are no
longer considered merely members of an economically active class. This
development may be the initial step in a trend towards overcoming the layers of
entitlement
l6
that originally characterized the enjoyment of freedom to move within
the Community. 17
The relevant ECJ case law evidences a judicial desire to expand the social
connotation of movement, coupled with some hesitation. While becoming more and
more concerned for the freedom of movement of EU citizens,ls the Court still relies
on pre-existing categories whenever possible. Family members of migrant workers,
for instance, hold a right to move as dependents of an economically active subject,
even if they are citizens themselves. 19 Jobseekers are entitled to move as a marginal
II Case C-S5/96, Sala v. Freistaat Bayern, 1998 E.C.R. 2691; Case C-4I3/99, Baumbast v. Sec'y of
State for the Home Dep't, 2002 E.C.R. 7091; Case C-456/02, Trojani v. Centre public d'aide sociale de
Bruxelles, 2004 E.C.R. 7573.
12 Treaty Establishing the European Community arts. 17-IS, Nov. 10,1997, 19970.1. (C 340) 3,
[hereinafter EC Treaty].
13 EC Treaty art. 12.
I. Claudio De Rose, Osservatorio di DirillO Pubblico Comunitario--La libera circolazione delle
persone nell'Unione Europea: profili generali ed istituzionali anche con rijerimenlo alia normativa
italiana, 54 CONSIGLIO DI STATO 599, 604 (2003) (underlining that Article 45 of the Charter of
Fundamental Rights, by granting EU citizens a freedom of movement without conditions, indicates that
conditions are possible but not intrinsecal to such freedom); Alain Buzelay, Libre circulation des
travailleurs en Europe et protection sociale, 470 REVUE DU MARCHE COMMUN ET DE L 'UNION
EUROPEENNE 448, 452-53 (2003) (underlining that the 1989 Charter and the 2000 Charter have changed
the core of European citizenship from an ensemble of prerogatives connected to nationality to an
ensemble of prerogatives connected to the person).
15 Charter of fundamental rights of the European Union, Dec. 18,2000,20000.1. (C 364) I.
16 This expression is borrowed from Sybilla Fries & Jo Shaw, Citizenship of the Union: First Steps
in the European Court of Justice, 4 EUROPEAN PUB. LAW 533, 535 (1998).
17 See id. at 535 (finding that Community Law has traditionally drawn distinctions between
economically active categories of migrants and migrants belonging to more marginal categories;
distinctions of this kind have created a system of access to equal treatment and freedom of movement
based on layers of entitlement).
18 See Case C-85/96, Sala v. Freistaat Bayern, 1998 E.C.R. 2691; Case C-456/02, Trojani v. Centre
public d'aide sociale de Bruxelles, 2004 E.C.R. 7573.
19 See, e.g., Case C-4I3/99, Baumbast v. Sec'y of State for the Home Dep't, 2002 E.C.R. 7091.
class of workers and not as EU citizens.
2o
The Court's alternation between daring21
and pulling back22 has produced a wavering trend in its free movement judgments.
A. The Route to Trojani and Collins
Through the innovative application of particular Treaty provisions, the ECJ is
attempting to strengthen the doctrine of free movement. A judicial approach to free
movement, blending principles of citizenship and non-discrimination can be found in
a number of recent cases, starting with Martinez Sala?3 Mrs. Sala, a Spanish
national lawfully residing in Germany, encountered difficulty renewing her
residence permit. Accordingly, she had no formal title of residence in Germany and
because of this was denied a child-raising allowance.
24
Given that Mrs. Sala was a
lawful resident under German domestic law, the ECJ held that she was a European
citizen under art. 18 EC, and was therefore entitled to equal treatment under Article
12 EC.
25
The Court found that requiring Mrs. Salas to obtain a formal title of
residence, which would not be requested of a German national, before receiving the
child raising allowance, was discriminatory.26 In Sala, the ECJ puts down the first
stones--citizenship and equal treatment-in the architecture of free movement.
Even if the Court is not yet ready to grant direct effect to Article 18 EC, the Court
enriches the European acquis
27
with the concept of lawful residence notwithstanding
economic status.
28
The Martinez Sala case has drawn attention to the European
judicial initiative to replace a stratified system of free movement with generalized
personal mobility?9 The facts of the case also suggest that the Court's confident use
of citizenship in this judgment is somehow encouraged by the economic justification
for movement. Mrs. Sala was a worker when she originally moved to Germany; her
freedom of movement rested on European provisions of well-tested application.
Even if no longer employed at the time of the judgment, she was a lawful resident in
Germany. Her migration to and her residence in Germany were legal under the
existing jurisprudence. In this light, the Court's application of European citizenship
as a general mechanism is less ambitious. As the dynamic aspect of movement rests
here on well-known provisions, the Court only needs citizenship in order to support
the non-discrimination component of free movement: A migrant European citizen is
entitled to enjoy welfare benefits at the same conditions as nationals of the host state.
The Court moved a step forward in the Baumbast case,30 where the judges explicitly
affirmed, for the first time, that Article 18 EC has a direct effect on granting a right
20 &e, e.g., Case C-I38/02, Collins v. Sec'y of State for Work and Pensions, 2004 E.C.R. 2703.
21 See, e.g., Case C-85/96, Sa/a, 1998 E.C.R. 2691; Case C-456/02, Trojani, 2004 E.C.R. 7573.
22 See, e.g., Collins, 2004 E.C.R. 2703.
23 Case C-85/96, Sa/a, 1998 E.C.R. 2691.
H Id. at 2715.
25 Id. at 2726.
26 Id. at 2724.
21 Acquis or acquis communautaire is derived from French and refers to the combination of
statutory and common law applicable to the European Union.
28 See Fries & Shaw, supra note 16, at 550.
29 Siofra O'Leary, PUlling F/esh on the Bones of European Union Citizenship, 24 EUR.L.REV. 68,
77 (1999) (observing that it seems that the Martinez Salajudgement "explodes the linkages with E.C. law
previously required for the principle of non discrimination to apply").
30 Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, 2002 E.C.R. 1-
7091.
of residence, even if this right is subject to legislative conditions.
31
The Baumbast
case joined the claims of two families, whose rights to reside in another Member
State as workers or family members of workers had been put into question. Part of
the decision deals with the residence rights of children of migrant workers, when
their parents divorce or become unemployed. The more innovative part of the
judgment grants direct effect to Article 18 EC:
32
direct application of Article 18 is a
strong step towards abolishing the requirement of lawful residence. Residency
requirements remain the main impediment in the EU for migrants' enjoyment of
equal rights. However the specifics of the situation temper enthusiasm for the effect
of this judgment on European citizenship status. First, Mr. Baumbast, who claimed
a right to stay in the United Kingdom, was employed and was covered by sickness
insurance in Germany;33 behind the Court's decision there is therefore a steady and
trustworthy financial position of the interested person. Secondly, the Court applies
the provision on European citizenship to grant a right to a person having been
originally a migrant worker. The citizenship provision is not yet independently
applied, thus, but rather relied upon to perpetuate a pre-existing situation, originally
based on other provisions, and now in need of a renewed basis of legitimacy. There
is however some advancement between Sala and this case: Mrs. Sala was a lawful
resident according to domestic law, and European citizenship was only used there to
grant her benefits incidental to the right of residence. In Baumbast instead, the
provision on European citizenship is used to remedy a situation of more radical lack
of legal protection, by granting Mr. Baumbast the right to residence itself, which he
no longer enjoyed.
A certain connection to the job market, once again in potential terms, can be
found also in the D'Hoop judgment.
34
Ms. D'Hoop was a Belgian national. She
applied for an unemployment alIowance while seeking a job in Belgium, and was
denied the benefit because she completed her secondary education in France.
35
The
D'Hoop Court relied on the citizenship clause to prevent discrimination against an
EU citizen for having exercised the right to move.
36
This decision adds to this line
of cases a concern for freedom of movement as an independent value.
37
Mobility
has slowly become an interest to protect in the Court's case law and tends to require
some form of financial cooperation among the states. Lack of such cooperation
remains one of the more significant obstacles in the European Union, preventing
operation of common citizenship in a way comparable to the United States. In the
European Union, reluctance to extend social security to migrants is one of the
reasons that make extending lawful residence status to migrants so complex. This
complexity marks the line between free movement and migration, a line that it is still
far from being erased in the EU, and that depends in part on the lack of social
security cooperation among the Member States.
31 Id. "j[94.
32 /d. "j[84.
33 /d. "j["j[88-89.
" Case C-224/98, Marie-Nathalie D'Hoop v. Office national de I'emploi, 2002 E.C.R. 1-6191.
35 /d. "j["j[1 O-Il.
36 /d. "j["j[27-28.
37 /d. at 394 (the idea underlying the judgment is that free movement does not only imply
prohibition of discrimination based on nationality but also opposition to obstacles for cross-border
mobility.)
The European Court of Justice cannot introduce financial cooperation among the
states, but it has underlined, in some cases, the need for financial solidarity. The
Grzelczyk judgment is one example.
38
Even if EU migrant students are required to
have sufficient resources to support themselves,39 when Grzelczyk, previously
financially self-sufficient, applied for a minimum subsistence allowance in his last
year of study, he was denied this benefit. The Court admits that some degree of
financial solidarity among the states is unavoidable.
40
It is not the same solidarity
historically acknowledged in the United States.
41
It is not a historical doctrine, it is a
rather young one, but the European Court is strongly advancing it, as recent
decisions confmn.42
B. Current Status of the Free Movement Doctrine: The Trojani Case
The recent decision in the Trojani case
43
advances judicial attitudes expressed in
previous free movement cases and shows a commitment to coupling citizenship and
free movement. Here, more than ever, the Court skillfully plays with provisions
regarding citizenship and non-discrimination in order to grant a migrant, who is
clearly not economically active, a social security benefit. Mr. Trojani was a French
citizen, who moved to Belgium, where he claimed to have worked temporarily in the
past. In Belgium, he became involved in a reintegration program of the Salvation
Army, which provided him with room and board, and with a weekly allowance.
44
When Mr. Trojani applied for the "minimex," the minimum subsistence allowance,
the Bruxelles Centre Public d' Aide Sociale rejected his request, because he was not a
Belgian citizen and did not qualifY as a worker.
45
After dismissing the possibility that a person in Mr. Trojani's situation would
qualifY as a worker under Community Law, the ECJ proceeded to examine his
position in light of Union citizenship. Confirming that Article 18 EC is directly
applicable, the judges held that Mr. Trojani, as a European citizen, could rely
directly on this provision, in order to move and reside elsewhere in the
Community.46 Under secondary legislation
47
though, this right is not absolute; it
depends on the availability of sufficient resources and requires that the right-holder
be covered by sickness insurance. It would not have been easy therefore for a person
in Mr. Trojani's situation to obtain a residence permit in Belgium under Article 18
EC. Mr. Trojani was a lawful resident under Belgian domestic law though. The
Court relied therefore on Mr. Trojani's lawful residence to override the possibly
38 Case C-184/99, Rudy Grzelczyk v. Centre Public d'Aide Sociale d'Ottignies-Louvain-La-Neuve,
2001 E.C.R. 1-6193. This case will be discussed in more detail infra in Part III.
39 Council Directive 93/96/EC, OJ. 1993 (L 317) 59, repealed by Parliament and Council Directive
2004/38/EC, 2004 OJ. (L 158) 77.
40 Case C-184/99, Rudy Grzelczyk v. Centre Public d' Aide Sociale d'Ottignies-Louvain-La-Neuve,
2001 E.C.R. 6193, ~ 44.
41 See Edwards v. California, 314 U.S. 160 (1941).
42 See, e.g., Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of
Ealing, Secretary of State for Education and Skills, 2005 E.C.R. 1-2119.
43 Case C-456/02, Michel Trojani v. Centre public d'aide sociale de Bruxelles (CPAS), 2004 E.C.R.
1-7573 .
.. 1 d . ~ 9 .
45 J d . ~ 1 0 .
46 Id. ~ 31.
47 See Council Directive 90/364/EC, 19900.1. (L 180) 26.
unjustified conditions of his original migration and focus instead on his right of non-
discrimination as a European citizen. Lawful residence provides Mr. Trojani with
"amnesty" for not meeting the full conditions for free movement throughout the
Community.48 The Court confidently stated that, by virtue of his status of European
citizen, Mr. Trojani was entitled to equal treatment with the nationals of the host
State under Article 12 EC.
49
He could not be denied the minimum subsistence
allowance, where a Belgian citizen in his same situation would have been granted
one. 50
Trojani is distinct from Martinez Sala and other previous free movement cases
because Mr. Trojani held a title to residence based on domestic rather than European
law without regard to his past as a migrant worker. While the reasoning of the Court
and the principles applied are similar to previous cases, Trojani represents a greater
detachment from the logic of mobility of production factors and it may be the "hard
case" that some scholars
51
are looking for to support the belief that the Union intends
to expand its social significance. In Trojani, the Court for the first time has granted
equal treatment on the basis of European citizenship without any consideration of
economic factors. Mr. Trojani clearly was neither economically productive nor
financially independent. Enduring reliance on categories of domestic law tempers
however the innovative character of the judgment. The Court confirms in any case
its decreasing interest in categorized free movement to the advantage of the idea of
general entitlements of European citizens.
Despite the Court's interest in general entitlements, the magnetic effect of
economic categories remains strong. When dealing with issues involving migrants
that could be classified as economically active with a stretch of the imagination, the
Court will tend to do so. Community citizenship is only used for gap filling. The
morass of layers of entitlement is hard to dismantle. It is easier to prevent the
introduction of layers in a structure that is based on general entitlement, like it would
be for the right to travel of U.S. citizens,52 than to merge layers into a real
homogeneous class-a challenge facing the ECJ.
This issue is considered in another recent ECJ case, Collins v. Secretary of State
for Work and Pensions.
53
Mr. Collins was a citizen of the United States and of
Ireland. When he moved to the United Kingdom, where he had previously studied,
he sought a jobseekers' allowance. Mr. Collins was neither a worker nor a habitual
resident. The ECJ considered Mr. Collins a jobseeker, in the penumbra of Article 39
Case C-456/02, Trojani, 2004 E.C.R. 1-7573, ~ 43 nA] citizen of the Union who is not
economically active may rely on Article 12 EC where he has been lawfully resident in the host member
State for a certain time or possesses a residence permit.") .
9 Id. ~ 40 (affirming that even if Member States can subject the stay on their territory of a European
citizen to the availability of sufficient resources, they cannot deny to a European citizen, who is lawfully
present on their territory the right to equal treatment, under Article 12 of the EC Treaty).
50 Id. ~ 46.
51 Annette Schrauwen, Sink or Swim Together? Developments in European Citizenship, 23
FORDHAM INT'L LJ. 778, 787 (1999--2000).
52 For an analysis of the right to travel in the United States, see infra Part II.
53 Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, 2004 E.C.R.I-
2703.
EC.
54
Article 39 EC grants jobseekers equal treatment for access to work, but not
with regard to social advantages.
55
In previous cases, the Court leaned toward
granting also social advantages in a non-discriminatory way to jobseekers,56 but it
seemed to be willing to do this only for jobseekers, who have previously been
employed in the state where they seek a job, and who retain a closer connection to
the workers' category.57 However, in Collins, the Court extends social advantages to
jobseekers, by relying once more on the citizenship provision. European citizenship
is called here to play a gap-filling role rather than to generalize entitlement.
European citizens-jobseekers are entitled to general equal treatment provided for in
Article 12 EC. Social advantages cannot be foreign to this provision, and cannot be
excluded from equal treatment under Article 39 EC, read together with the
citizenship provision.
58
The use made of the citizenship and equal treatment
provisions in this case seems to realize the hope of scholars, who saw in the
citizenship provision a potentially significant enhancement of social protection for
jobseekers.
59
There are many categories of non-economically active that the
citizenship provision can in some way benefit; however, jobseekers are the only
group who might escape the sufficient resources condition.
60
The ECJ limits the
reach of its holding by affirming that the job seeking allowance can be subject to
residency requirements, being proportionate to a legitimate national aim and based
on considerations independent of nationality.61 A habitual residency requirement
could be justified in light of the need to establish a genuine link between the job
seeker and the addressed job market.
62
If the effort to abandon a system based on
categories of free movers could partially reduce the distance between European
Union and federally integrated entities, this position of the Court clearly marks a still
wide conceptual distance from a more engaging philosophy of unconstrained
movement.
63
It suggests furthermore that European free movement is still closer to
5 ~ Case C-292/89, The Queen v. Immigration Appeal Tribunal, ex parte Gustaff Desiderius
Antonissen, 1991 E.C.R. 1-745, ~ \3 (at1irming that Article 39 [former 48] EC must be read in the sense
that freedom of movement for workers entails the freedom to move for purposes of job seeking).
55 Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, 2004 E.C.R. 1-
2703, ~ ~ 56-58.
56 See Case C-85/96, Martinez Sa/a v. Freistaat Bayem, 1998 E.C.R. 1-2691.
57 Michael Dougan, Free Movement: the Workseeker as Citizen, 4 CAMBRIDGE Y.B. EUR. LEGAL
STUD. 93, 95-96 (2001) (suggesting that the Court in Martinez Sala seemed to consider that jobseekers
have to be treated like workers under every point of view, but adding that this judicial choice was likely
referred to jobseekers who have already worked in the host State).
2703, ~ 63.
59 See Michael Dougan, supra note 57, at 1 \3-17 (noting that while the citizenship provision cannot
be particularly helpful for jobseekers in terms of right to residence, it could be instead very helpful, in
combination with the principle of non discrimination to extend the guarantee of equal treatment for
jobseekers also to social advantages).
60 Id. at 119-22 (observing that jobseekers are not subject to any de iure condition of availability of
sut1icient resources when exercising their freedom to move; this aspect situates them in a better position
than, for example, students). Peculiar aspects of intra-Community mobility of students will be examined
infra in Part III.
2703, ~ 73.
62 Id. ~ 69.
63 See Fries & Shaw, supra note 16, at 558 (hoping that the combination of principle of equa/
treatment and citizenship clause might lead to consider the freedom to move and the consequent burdens
traditional migration concepts than to American free interstate travel principles. It is
in the end a fragmentary decision that shows a hesitant attitude in the Court. While
jobseekers are partly referred to as workers,64 citizenship is used as a complement.
This shows that, even if ambitious, citizenship is not yet an absorbing status.
C. The Legislative Side: Directive 2004131
While freedom of movement jurisprudence reached its last stage with the
Trojani and Collins decisions, a directive regarding this same freedom entered into
force in April 2004.
65
The directive still needs to be implemented in the Member
States and has not been applied in the recent commented decisions. Its purpose is to
coordinate and merge provisions regarding the mobility of European citizens and
their families,66 provisions previously distributed into different legislative
instruments.
67
There is no revolutionary innovation: The directive repeats pre-
existing legislative provisions ordering them in a more consistent framework. In
some parts, though, it implements rules of judicial origin.
68
In addition, it introduces
an unconditional right of residence for up to three months,69 and a right of permanent
residence after five years of lawful residence in a host State.
70
In the temporal space
between the two, residence is regulated more or less like before. Article 7 of the
directive grants a right of residence over three months to students, workers, and the
self-employed if they have sufficient resources and sickness insurance. Family
members of people belonging to the said categories are also entitled to residence.
71
Article 7 of the directive expresses the legislature's preference for the categorized
system of free movement over judicial experiments with entitlements based on
citizenship. Categories seem to be confirmed and expanded by virtue of the
combination between the concept of economic activity, the concept of financial
independence, and the idea of family reunion.72 Articles 12, 13, and 14 of the
directive, determining the conditions for the continuing residence of family
for public authorities as an incident of EU citizenship, in line with the U.S model, in which the right to
travel is seen as an incident of federal citizenship).
(>4 But see Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, 2004
E.C.R.I-2703, '1133 (clarifying that a person in the position ofMr. Collins is not a worker for the purposes
ofTitle \I, Part I, of the regulation 1612/68).
65 Council Directive 2004/38/EC, 2004 OJ. (L 158) 77.
66 See premise n.3 to the Directive (suggesting that union citizenship is the fundamental condition
behind the freedom of movement and this is what commands a codification and review of the various
dispositions regarding freedom of movement of different categories of people).
67 Directive 2004/38 modifies Regulation 1612/68 and repeals Directives 64/221, 68/360, 72/194,
73/148, 75/34, 75/35,90/364,90/365 and 93/96.
68 See M. Dolores Blazquez Peinado, EI Derecho de Libre Circulacion y Residencia de los
Ciudadanos de la Union y de los Miembros de sus Familias, Ultimos Desarrollos Normativos: la
Directiva 20041381CE del 29 de Abril, 233 GACETA JURiDiCA U.E. Y COMPETENCIA 18,28 (2004) (noting
that Article 24 of the directive creates a link between equal treatment and freedom of movement, which
existed before only in the ECJ case law). For other judicial influence in the directive content, see Articles
12, 13, and 14.
69 Council Directive 2004/38/EC art. 6,2004 OJ. (L 158) 77.
70 Council Directive 2004/381EC art. 16,2004 OJ. (L 158) 77.
71 Council Directive 2004/38/EC art. 7,2004 OJ. (L 158) 77.
72 See Blazquez Peinado supra note 68, at 21-22 (observing that the directive enlarges the concept
of family members by including couples registered according to the legislation of a Member State.)
members, in case of death, departure or breach of the marriage link with the original
entitled person, clearly echo the Baumbast case.
73
Article 24 of the directive also
follows judicial suggestions in openly linking free movement and equal treatment.
The provision states that all European citizens residing on the basis of the directive
in a host Member State shall enjoy equal treatment with the nationals of the host
State. The breadth of this statement is reduced by the specification that such equality
remains subject to other provisions in the Treaty or in secondary legislation, and
particularly by the exception introduced in Article 24, paragraph 2, according to
which states are not required to grant social assistance during the three months of
unconditional residence.
The ensemble of these provisions casts a shadow on the status of EU citizenship
in the Court's case law. The provisions of the directive do not rely on notions ofEU
citizenship. The legislative approach to free movement relies on the old system of
categories and does not solicit optimism for bypassing financial considerations in
granting free movement rights. However, the same directive introduced a possible
way out of the layered categorization system by suggesting that other possible
criteria of lawful residence external to the directive remain effective and by
providing for a right of permanent residence. This is also the most innovative
provision. According to premise 17/
4
behind the idea of permanent residence, there
is a will to "strengthen the feeling of union citizenship" in those who have chosen to
reside long term in another Member State, facilitating "social cohesion.,,75 The
directive suggests the creation of a real citizenship bringing about seeds of a new
identity. Even if the directive relies on a category-based concept of free movement,
the European Parliament and the Council show some openness to the idea of a free-
moving people of Europe. By providing for a right of permanent residence, they
introduce a long-term durational residency requirement, which leads to complete and
unconditional integration in the host State.
D. Separated Social Security: A Persisting Barrier
Stretching the concept of citizenship is not enough to achieve harmony. There
are material obstacles that a more integrated and dynamic Europe has to cope with.
A first barrier to the realization of an authentic and unconditional freedom of
movement for the people of Europe is the lack of a common system of social
security. Issues of social security have long been perceived as connected to freedom
of movement on a Community level.
76
Commentators observe that "it is one thing to
allow a person to stay, but another to enable a person to stay.,,77 Clearly there is
73 Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, 2002 E.C.R. 1-
7091.
7. Premise 17 to the Council Directive 2004/38/EC, 2004 0.1. (L 158) 77 ("[E]njoyment of
permanent residence by Union citizens who have chosen to settle long term in the host member State
would strengthen the feeling of Union citizenship and is a key-element in promoting social cohesion,
which is one of the fundamental objectives of the Union .... ").
75 See Bhizquez Peinado, supra note 68, at 26.
76 See Enrico Limardo, La Sicurezza Sociale Comunitaria tra Riforme /stituzionali e Allargamento
dell 'Unione Europea, 2004 DIRITTO DEL LAVORO 99, 100-01 (2004).
77 David O'Keeffe, Margot Horspool, European Citizenship and the Free Movement of Persons,
XXXI THE IRISH JURIST 145, 155 (1996).
some distrust of the reliability of a concept of citizenship, which is still mainly
market-based, as a vehicle of European social rights.
78
At present, Community law provides for a coordination of social security
systems with regard to migrant workers. The main rules are set forth in Regulation
1408/71.79 The regulation adopts the principle of the State of belonging,80 stating
conditions for the export of social security benefits enjoyed in the home State and for
the combination of periods of social security coverage completed in different
states.
81
The fact that the regulation only applies to workers and students
82
shows its
compatibility with category-based freedom of movement rather than general
entitlement theory. The regulation has proved inadequate to protect certain marginal
categories-unemployed migrants
83
and jobseekers,84 who can only rely on the
legislative provisions with significant limitations. With regard to the social security
rights of migrants, who do not fit in any of the traditional free movement categories,
Community law is silent.
State control over the administration of welfare is still a national prerogative in
Europe, but it has been noted that ECJ case law on citizenship and freedom of
movement subjects this sovereignty to judicial scrutiny.85 The activity of the Court
in this area is likely to solicit a legislative response at some point.
86
In a delicate
field where national cultures and identities are so marked, it is difficult or impossible
to think about a reunification, but many voices call for a review of the relevant
harmonization rules.
87
It is true that the Community does not have a "welfare
responsibility" comparable to the one of the U.S. federal govemment,88 but the
European case law applying Article 18 EC to free movement issues lays foundations
for the social rights of migrants
89
and calls for some degree of European
78 Stefano Giubboni, Liberta di Circolazione e Protezione Sociale nell'Unione Europea, 77
GIORNALE DIR. LAVORO E RELAZ. INDUSTRIALI 81, 84-85 (1998) (stating that freedom of movement is
still dependent on the economic integration paradigm and it will be hard for the concept of citizenship to
pull it out of this paradigm. It is still far from being a fundamental right of the person ut sic. In the light of
this consideration, it is particularly difficult to extend social guarantees to forms of mobility not
immediately dependent on productive goals).
79 Council Regulation 1408171, 1971 OJ. (L 249) 2.
80 See JOrg Markt & Gerhard Schick, Freiziigigkeitfiir Arme in der Europtiischen Union, 50/2 ZFW
179, 183 (2001) (stating that the currently applied principle of the State of belonging, in the absence of a
coordination of social security systems, threatens perpetual immobility for the poor).
8' See Limardo, supra note 76, at 103 (stating that the fundamental principle in the system of
coordination implemented by the Regulation 1408171 are equal treatment, unicity of the applicable law,
prohibition of double contribution, cumulation of insurance periods and exportability of social security
benefits).
82 Regulation 1408171, according to Article 2 of the same regulation, originally applied only to
employed people and their family members. A 1999 regulation (Council Regulation 307/99,1999 OJ. (L
38) I), though, has extended its coverage to students. See Limardo, supra note 76, at 110.
83 See Giubboni, supra note 78, at 97 (providing a detailed analysis of the indirect limits of social
protection for unemployed migrants).
S< See Dougan, supra note 57, at 96-98 (looking at the conditions that jobseekers must meet in
order to obtain social assistance during the enjoyment of their freedom to move).
85 See Fries & Shaw, supra note 16, at SS8.
86 See Matthew Moore, Freedom of Movement and Migrant Workers' Social Security: an Overview
of the Case Law of the Court of Justice, 1997-2001,39 COMMON MKT. L.R. 807, 837-39 (2002).
87 See Fries & Shaw, supra note 16, at SS8; see also Limardo, supra note 76, at 117-19 .
8 See Fries & Shaw, supra note 16, at SS8.
89 See Moore, supra note 86, at 814.
responsibility in this area. This paraJlels the "degree of financial solidarity" called
for by the judges.
90
A European model of social security should be "migration
neutral" in order to avoid national resistance, and resentments of taxpayers reluctant
to fund the mobility of others.
91
Further harmonization of social security is a
delicate undertaking, which raises a number of issues and requires a significant shift
in Community competence. A real space without frontiers, where intra-Community
travel is as simple as intrastate travel requires abolition of both material welfare
barriers and individual psychological barriers. The ECJ commitment to designate
mobility as an individual right of European citizenship could provide a valid
conceptual basis for subsequent social integration.
92
On the other hand, the judicial
initiative requires reflection on the results of continuing integration.
E. The Status of Freedom of Movement in Europe: Between Migration and
Unconstrained Travel
This overview confirms that there is a judicial trend in Europe moving from
endorsing the free movement of the economically active to granting a right of free
movement to citizens in general. The ECJ has started to use the citizenship clauses
(Articles 17-18 EC) combined with the principle of equal treatment (Article 6 EC),
in order to stretch the pre-existing categories of intra-Community migrants, and
subsume them into a wider conceptual container.
While these undertakings of the ECJ reinforce free movement and expand its
scope, they are not yet sufficient to completely eradicate aspects of migration from
the European doctrine of free movement. European judges acknowledged direct
effect to the right of residence of European citizens, but this right is conditional. The
most ambitious decisions were made in Luxembourg where the claimants had
obtained rights of residence on the basis of domestic rather than European law. This
is an area of divergence between the European and the American systems. In the
European Union, lawful residence is a necessary condition for complete equality of
treatment notwithstanding nationality; lawful residence is not automatically granted
to every person that moves throughout Europe. In the United States, every citizen
can easily become a lawful resident in another state. This distinction in ideas of
residence and local citizenship seems to mark the boundary between the discourse of
migration and the discourse of free movement. While making this boundary less
pronounced, European judicial efforts have not yet overcome this gap.
European citizenship, blended with other provisions of Community law serves
as an impetus for recognizing free movement rights. But there are obstacles that
citizenship alone, especiaJly a citizenship with the prerogatives of the European one,
cannot overcome. Territorial residence and heterogeneous social security systems
stand in the way of integration and developing European citizenship. American
citizenship encounters lesser obstacles in preserving a system of generalized
entitlement to free travel. Citizenship is not expected to add to the right to travel nor
is it expected to increase integration. Associating the two merely contributes to the
90 Case C-184/99, Rudy Grzelczyk v. Centre Public d'Aide Sociale d'Ottignies-Louvain-La-Neuve,
2001 E.C.R. 1-6193, ~ 44.
9\ See Markt & Schick, supra note 80, at 197.
92 Limardo, supra note 76, at 119 (stating that through EU citizenship, it should be possible to
construe a common system of values, which could be the central element ofa social Europe).
balance between national homogeneity and state idiosyncrasy that is the essence of a
federal system.
II. THE RIGHT TO TRA VEL IN THE UNITED STATES
The right to travel in the United States is well grounded in tradition. However,
the lack of a direct constitutional right to travel and differing judicial approaches to
the right induce continuous debate with regard to its scope. There seems to be, in the
background of the right to travel, an idea of national solidarity, which finds
expression in the renowned words of Justice Cardozo in the case of Baldwin v.
G.A.F. See/ig:
93
the union rests on a concept of comity, which links the American
people and dictates that they should "sink or swim together." The philosophy of
sharing luck and bad luck supports the interstate equality component of the right to
travel. The right to travel does not derive from a single class of constitutional
norms, but national citizenship is certainly a common background idea that
reinforces the doctrine.
94
Enriched by the flavor of national comity, citizenship is
the general foundation of the freedom to "ingress and egress the different States,,95
and of the non-discrimination rights that mobility triggers. The abyss between
American travel and European movement lies exactly here. In Europe, the nascent
notion of European citizenship is being used as a mechanism to stretch pre-existing
categories and generalize entitlement to move. In the United States, a bicentenary
citizenship provides the basis for a right to mobility perceived as fundamental, for
the union, and for its people. It has been a right of all, not the right of a carefully
defined group of categories.
A. Origins and Early History of the Right
The right to travel has no clear early history or definitive origins. Likely origins
include the Commerce Clause,96 or the Privileges and Immunities Clause of Article
IV.97 The Supreme Court has blended various constitutional doctrines to uncover the
roots of the fugitive right. By mixing individual rights dialectic with equal
protection-inspired discourse, the Court has added to the original confusion.
98
The connection between right to travel and national citizenship is discussed, as
early as 1849 in Justice Taney's dissent in the Passenger Cases.
99
Whatever the
textual source of the right, it clearly entitles U.S. citizens to move in and out of every
part of the U.S. territory.
93 Baldwin v. GAF. Seelig, 294 U.S. 511 (1935).
"' See Justice Taney dissenting in the Passenger Cases, 48 U.S. 283 (1849); see also Rebecca
Zietlow, Belonging, Protection and Equality: the Neglected Citizenship Clause and the Limits of
Federalism, 62 U. PITT. L. REV. 281,317 (2000).
95 U.S. ARTS. OF CONFEDERATION art. IV.
96 See JOHN E. NOWAK & DONALD D. ROTUNDA, CONSTITUTIONAL LAW 14.38 (7th ed. 2004).
97 See, e.g., Justice O'Connor in Zobel v. Williams, 457 U.S. 55 (1982) and Saenz v. Roe, 526 U.S.
489 (1999).
98 See Nzelibe, Free Movement: a Federalist Reinterpretation, 49 AM. UNIV. L. REV. 433, 462
(1999).
99 Passenger Cases, 48 U.S. 283 (1849). These are a group of cases in which state statutes
imposing taxes on alien passengers entering the ports of that state were challenged. These cases were
argued together in front of the Supreme Court, and the challenged statutes were held unconstitutional.
History suggests that the idea of free travel might have been born in reaction to
a very constrained situation in seventeenth century England.
loo
There migration
suffered severe limits, imposed by a rigid organization of professions and arts, and
by a parish-based system of relief for the poor. 101 People were only granted
assistance by the parish to which they belonged. If they moved elsewhere and
encountered economic difficulties, their only chance would have been to go back to
their home parish. In this system, not only were parishes reluctant to welcome new
residents, but they tended to discourage their own residents from leaving, for fear
that they would return in need for help.lo2 The immobility of this society made the
territories of the American colonies an attractive destination, where there were less
legal and traditional constraints to thwart individual entrepreneurship.103 The silence
of the colonial charters on the issue of freedom of movement has been interpreted by
modem scholars as a sign that the right to travel was taken for granted.
104
The first
and sole explicit mention of the right to "ingress and regress to and from any other
State" is found in the Articles of Confederation. 105 This has been considered an
early expression of federal intent.
106
Article IV of the Articles of Confederation
links mobility with an interest in "perpetuating mutual friendship and intercourse
among the people of the different States.,,107 Cohesion and movement represent, in a
relationship of mutual dependence, the building blocks of the Federation. The same
cannot be said of the European Union, where only recently the ECJ has redirected
free movement, a liberty originally introduced for purposes of economic integration,
to support goals of increased cohesion.
The right to ingress and egress was already mature and solid when the U.S.
Constitution was drafted. Accordingly, the right was not explicitly mentioned.
Scholars have suggested that the fact that the right was mentioned in the Articles of
Confederation, and then left out in the Constitution, might suggest an intent to
repudiate this right on the part of the drafters.
108
A similar conclusion seems to
conflict however with the historical development from confederation to federation.
The thesis that freedom of movement was taken for granted by the framers, and
impliedly resides in some other Constitutional provision, has generally prevailed:
09
Notwithstanding doubts about the origins of the right, travel is an acknowledged
liberty in the United States, recalled and reinforced in a varied, but rich line of cases.
The courts tum to the right to travel in two types of situations: when there are
IOU See ZECHARIAH CHAFEE, 1885-1957: THREE HUMAN RIGHTS IN THE CONSTITUTION OF 1787
163 (1956); see also Bradley A. Meyer, Constitutional Law-Right to Travel: the United States Supreme
COllrt Invalidates a Statute Requiring Welfare Recipients to Reside in a State for One Year before
Receiving Full Benefits, 76 N.D. L. REV. 427, 430--31 (2000).
101 See CHAFEE, supra note 100, at 163.
102Id. at 163-67.
103Id. at 167.
"" Id. at I 77-81. The right to travel was taken for granted I ike "something in air or blood of
Americans-people went where work called."
105 U.S. ARTS. OF CONFEDERATION 4 ("The people of each state shall have free ingress and regress
to and from any other state.").
106 See CHAFEE, supra note 100, at 184.
1t11 U.S. ARTS. OF CONFEDERATION 4.
ItIS &e CHAFEE, supra note 100, at 185; see also Gerald M. Rosberg, Free movement of persons in
the United States, in II COURTS AND FREE MARKETS-PERSPECTIVES FROM THE UNITED STATES AND
EUROPE 275,281 (1982).
1t19 &e CHAFEE, supra note 100, at 185; see also Rosberg, supra note 108, at 281.
barriers to movement and when differences in treatment of residents and cItIzens
imply a restraint on the rreedom to migrate. 110 The former attitude has prevailed in
an early series of cases. Today, it seems to be clear that interstate mobility cannot
encounter direct barriers. I I I
The consolidation of the right to travel takes place through the dicta in a number
of landmark decisions. Almost twenty years after Justice Taney's dissent in the
Passenger Cases, I 12 the right to travel was awarded judicial recognition in Crandall
v. Nevada. There the Court struck down a one-dollar tax imposed on every
passenger leaving the State as a restraint on the right of citizens to move rreely
throughout the country and to "come to the seat of the federal government.,,113 The
combination of individual entitlement and the belief that citizens should have rree
access to the seat of government served to support the recognition of a right to travel.
The Court's reasoning in Crandall anticipates the confusion that arises when the
language of fundamental rights and federalism are both used as the basis for a
right. 114 Although still working in the general rramework of individual rights the
Court also considers the importance of taking into account equality in right to travel
cases like the one presented in Edwards v. California. I 15 This case stands at the
crossroad between mobility rights and social solidarity. The holding eventually
privileges this second element. The same dualism between concern for mobility
rights and for social solidarity can be found in European jurisprudence on rree
movement, where it is not yet clear which of the two aspects is predominant. I 16 Mr.
Edwards was convicted under a California statute, which punished transporting or
assisting in the transport of indigent persons into the state. He had driven his
indigent brother-in-law rrom Texas to California. The Court held that the California
statute constituted an impermissible burden on interstate commerce and recalled the
110 See Bryan H. Wildenthal, State Parochialism, the Right to Travel. and the Privileges and
Immunities Clause of Article IV, 41 STAN. L. REv. 1557, 1569-74 (1989); see also Laurence H. Tribe,
Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-or Reveal the
Structure of the Present?, 113 HARV. L. REV. 110, 133 (1999) (looking at the validity of dividing in the
concept of travel the concept of "physical movement" from the concept of "change of legal
environment").
III Actually old precedents affirming quarantine laws could support the view that states are still
entitled to impose barriers for health reasons. Justice Jackson, concurring in Edwards v v. California, 314
U.S. 160 (1941), seems to admit that restraints of this type still remain. It is not sure, however, that the
Court would rule in favor of health barriers, if faced with a similar issue today. Its reluctance to admit, in
more recent judgments, health related barriers even for goods suggests an even stronger resistance to
using health reasons as an obstacle to people. See Rosberg, supra note 108, at 293-94. Health, together
with public security and public policy, is one of the reasons that still allow restraints on migration within
the EU, according to the wording of the 2004 Directive on the right to residence. This apparently subtle
distinction of attitudes in the United States and in the EU reveals though that what in one continent is a
doctrine of free movement, in the other one is still in good part a discourse of migration.
112 Passenger Cases, 48 U.S. 283 (1849).
113 Crandall v. Nevada, 73 U.S. 35 (1867).
II. See Jide Nzelibe, supra note 98, at 435 (observing that the Supreme Court has contributed to
make the boundaries of this right less clear by mixing a lexicon of federalism with a lexicon of individual
rights).
115 Edwards v. California, 314 U.S. 160 (1941).
116 See A.P. Van der Mei, Freedom of Movement for Indigents: a Comparative Analysis of
American Constitutional Law and European Community Law, 19 ARIZ. 1. INT'L & COMPo L. 803, 831-38
(2002).
"sink or swim together" philosophy of Justice Cardozo.
lI7
The Court emphasized
that the recent industrial development demanded a shift in the nation approach to
welfare assistance and the maturation of national solidarity in this field. I IS
Concurrences by Justice Jackson and Justice Douglas treat the right to travel in
depth. These opinions rely on the Privileges and Immunities Clause of Article IV to
connect freedom of movement and citizenship.119 Justices Douglas and Jackson
articulate the importance of free movement that remains latent in the majority
opinion. Justice Douglas argued that freedom of movement, even for the poor, is a
necessary ingredient of a federal system and an incomparable guarantee of freedom
of opportunity.120 Again, federalism and individualism, specifically autonomy in
making individual choices of life, are joined to substantiate the right to travel.
Federalist reasoning for the right to travel also appears in the most recent case
dealing with the dynamic aspect of the right to travel, 12l u.s. v. Cuest.l22 Cuest is
the first case where the individual's right to travel was protected against private
interference. According to the Court, interstate mobility and the ability to engage in
interstate commerce occupy a "position fundamental to the concept of our federal
union.,,123
Equality concerns come into the courts' agenda, when the right of citizens to be
treated equally at the end of their journey becomes an important component of the
right to travel doctrine. In some sense, thus, there is a stretch also in the American
case law regarding the right to travel. While the ECJ focuses on expanding the club
of those entitled to move, the U.S. Supreme Court is busy showing that the right to
travel entails an additional component, the right to settle down and start over in a
new state. 124
B. The Equal Protection Branch of the Right to Travel
The passage from the dynamic to the static aspect of the right to travel has not
always been linear in judicial decisions. Inconsistencies and doctrinal obstacles have
hampered the way from time to time.
125
In the end, the route has been from a
doctrine targeting direct deterrence on travel to a doctrine where the value of travel
117 Edwards, 314 U.S. at 173-74.
IIsld. at 174-75. The Edwards holding suggests that major switches in the American federal
attitude to welfare have been dictated by economic and political changes on a global scale more than by
intentions of integration deepening. The historical and temporal gap makes it difficult to forecast whether
pursuing more integration could be enough to trigger more welfare solidarity in Europe.
119 See Justice Douglas concurring in Edwards v. California, 314 U.S. 160 (1941) (suggesting that
the freedom to move from State to State is an "incident of national citizenship").
120 Ill.
121 But see Bradley A. Meyer, supra note 100, at 433 (stating that u.s. v. Guest might be the
connecting ring to cases, where there is no real issue of movement, but the right to travel is nonetheless
relied upon).
122 U.S. v. Guest, 383 U.S. 745 (1966). In this case, the Supreme Court holds that denying the right
to use public accomodation to a person because of racial considerations violates the right to travel from
state to state, and to necessarily use in doing so highways and other instrumentalities of interstate
commerce.
123/d. at 757.
m See Shapiro v. Thompson, 394 U.S. 618, 629 (1969).
125 See Gregory B. Hartch, Wrong Turns: a Critique of the Supreme Court's Right to Travel Cases,
21 WM. MITCHELL L. REV. 457, 471-72 (1995).
itself is only tangential, while the equal protection element is predominant.
126
One
major issue is in this context the difference in treatment among newly arrived and
long-time residents. Since the late 1960's durational residency requirements have
become a main concern of the courts. States impose these requirements as a
condition to enjoy various benefits, including education, health care, and welfare.
127
The Supreme Court has been most daring in experimenting with the movement-
citizenship-non-discrimination triad in cases involving welfare benefits and
durational residency requirements. These cases illustrate how the ECJ and the U.S.
Supreme Court are using the same three concepts. Fundamental differences in these
three concepts result in different practical outcomes of freedom of movement cases
in the United States as compared to the European Union. One example is the
divergent interpretation of residence in the U.S. and the EU. In the European
Community, it is difficult to obtain residence in one of the Member States. That
residency, however, is a condition of full membership in the national community.
Until the European Community has no authority to determine residency of its
citizens, its power is limited. In the United States, residence defines state
citizenshipl28 and is easily granted.
129
The problem is that it is in the United States a
weak status,130 vulnerable to state attempts to fragment it into classes. Federal
citizenship as a source of general entitlements is however a valuable tool to prevent
inequalities based on residence.
Durational residence requirements for welfare benefits are central in the 1969
case that signaled a turning point in the Court's right to travel doctrine, Shapiro v.
Thompson. 13 I The Supreme Court held that a one-year state residence requirement
to obtain welfare assistance is unconstitutional. The decision of the Court rested on
the equal protection clause of the Fourteenth Amendment and on the due process
clause of the Fifth Amendment.
132
Length of residence cannot be used to create
different classes of needy people.
133
Excluding indigents from the right to migrate
means foreclosing for them, or at least discouraging, a chance to "resettle, find a new
job and start a new life." In this way the residency requirement constituted an
impermissible penalty on the affected person's right to travel.
Later, in the Solo-Lopez case,134 the Court specifically defined what should be
considered an infringement on the right to travel. A state law offends the right to
travel when it deters travel, has as first objective the impediment of travel, or uses a
126 See Bryan H. Wildenthal, supra note 110, at 1578.
127 See, e.g., Shapiro, 394 U.S. at 629; Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974),
Starns v. Malkerson, 326 F. Supp. 234 (D.C. Minn.197I), aff'd 401 U.S. 985 (1971).
128 U.S. CON ST. amend. XIV, I ("All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside .... ").
129 See Van der Mei, supra note 116, at 850; see also Wildenthal, supra note 110, at 1586.
130 BRYANT G.GARTH, Migrant Workers and Rights of Mobility in the European Community and the
United States: a Study of Law, Community, and Citizenship in the Welfare State, in INTEGRATION
THROUGH LAW-EuROPE AND THE AMERICAN FEDERAL EXPERIENCE 85, 108-09 (1986).
131 Shapiro v. Thompson, 394 U.S. 618 (1969); see also Wildenthal, supra note 110, at 1572-74
(observing that Shapiro initiates the equal protection strand of the right to travel cases).
132 Shapiro, 394 U.S. at 642.
133 Id. at 627.
13' Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) (holding that New York's
restriction of its service preference to veterans who entered armed forces while residing in New York was
unconstitutional).
classification that penalizes the enjoyment of this right.135 In this way, Soto-Lopez
confirmed and perpetuated Shapiro's penalty rationale. In subsequent cases, the
court, in deciding whether there had been disruption of the right to travel, focused on
the nature of the citizen's interest with regard to which equal treatment was being
denied. 136 In Memorial Hospital v. Maricopa County, the Supreme Court struck
down a one-year residence requirement for access to non-emergency medical care. 137
Recalling Shapiro's rationale, the judges underlined that medical care, like welfare,
is a primary necessity of life. 138 The Court also considered the importance of the
benefit sought in Sosna v. lowa,139 where the Court upheld a one-year residence
requirement. The requirement was found to be valid based on the importance
attributed to divorce. Persons filing for divorce must demonstrate a significant
attachment to the state before the state gmnts something as important and final as a
divorce. The judicial trend moving away from travel in the direction of equal
protection that began in the 1980's seems to have continued.
'40
The court addressed
discrimination based on residency with renewed vigor in Zobel v. Williams. 141 Here,
the Court struck down an Alaska statute providing for the distribution of oil
revenues, which granted residents a certain number of units proportional to their
length of stay in Alaska. This distribution plan was found to be invalid under the
Equal Protection Clause ofthe Fourteenth Amendment. Justice Burger, writing for
the Court, explained that, in the end, "the right to travel analysis is little more than a
particular application of the equal protection analysis.,,'42 The right to travel, indeed,
apart from protecting against obstacles that actually thwart mobility, protects new
residents from being penalized because of their migration. Protecting new residents
from discrimination is one aspect of closeness between the American and European
judicial analysis. An echo of the Court's attitude in Zobel can be found, in Europe,
in the D 'Hoop case,143 where the emigrant citizen returning to his state of origin was
protected from state-imposed disadvantages arising from her concrete enjoyment of
the freedom to move. Concurring opinions in Zobel expanded on the right to tmvel
analysis. In his concurrence, Justice Brennan considered the possible effect of
adoption of regulations compamble to the one adopted by Alaska in all the states.
The loss of seniority caused by movement and the need to start back from the
beginning in another state would be the worst deterrent for mobility and a severe
encroachment upon the right to travel. 144 According to Justice Brennan, mobility has
a huge value for the social order and the economic progress of the nation.
'45
His
words reflect a vision of mobility deeply rooted in the fabric of the Union and
connected to the essence of citizenship. 146 The European right to movement, based
I3S Id. at 903.
136 Wildenthal, supra note 110, at 1581.
IJ7 Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).
138/d. at 259.
139 Sosna v. Iowa, 419 U.S. 393 (1975).
140 Wildenthal, supra note 110, at 1581-87.
141 Zobel v. Williams, 457 U.S. 55 (1982).
142 Id. at n.6.
143 Case C-224/98, Marie-Nathalie D'Hoop v. Office national de I'emploi, 2002 E.C.R. 1-6191.
144 Zobel v. Williams, 457 U.S. 55,68 (1982) (Brennan, J. concurring).
145 Id. at 68.
146 Id. at 69--70.
as it is on economic justifications, has a hard time keeping pace with a concept of
travel so deeply indebted to the idea of social, political, and economic union.
147
In the 1990s, there was a new wave of interest in residence requirements for
welfare benefits after the enactment of the Personal Responsibility and Work
Opportunity Act (PRWORA), which decentralized the welfare system.
148
Under the
Temporary Assistance to Needy Families program (T ANF), which is partially
funded by the Federal government, states are encouraged to experiment in the field
of social assistance
l49
and they are also allowed to use mechanisms like durational
residence requirements. 150 T ANF led to the widespread adoption of durational
residency requirements, some of which are being challenged on the basis of Shapiro.
In 1999, durational residence requirements knocked again on the Supreme
Court's door. In Saenz v. Roe,151 the Court unexpectedly applied the privileges and
immunities clause of the XIV Amendment, made silent more than a century before
by a very restrictive interpretation in the Slaughter House Cases.
152
In Saenz v. Roe,
the challenged California statute enacted a welfare scheme limiting welfare
assistance during the first year of residence in California to the level of benefits that
the new resident used to receive, or would have received, in the state of previous
residence. 153 Therefore, the Court addressed with sharper determination a less
aggressive form of discrimination than the one at stake in Shapiro. In Shapiro,
welfare benefits were being completely denied within a certain time frame. Here,
they were merely capped for the first year of residence in California. The Court
addressed the issue by analyzing and decomposing the right to travel into three
different parts. This right entails the freedom of citizens to enter and leave other
states, the right to be "treated as a welcome visitor" while temporarily staying in
another state, and the right of newly arrived residents to the same privileges and
immunities enjoyed by other citizens. 154 This third component of the right to travel,
which the Court held protected by the Privileges and Immunities Clause of the XIV
Amendment, was the one threatened by the California scheme.
155
In order to strike
down the statute at issue, the Court used a judicial blend of privileges and
immunities, equal protection, and citizenship. The equal protection tone is evident in
the passage of the judgment in which the judges underline that the California scheme
creates several different classifications among citizens, merely on the basis of the
147 See JONATHAN D. VA RAT, Economic Integration and Interregional Migration in the United
States Federal System, in COMPARATIVE CONSTITUTIONAL FEDERALISM-EuROPE AND AMERICA 21,50
(1990) (considering the different relative weight of goals of political union and of economic integration in
the United States, and evaluating the role of a framework of political union in shaping the features of
integration ).
148 See Van der Mei, supra note 116, at 808-09. According to the author description, the current
welfare system provides for three types of welfare programs. One part, the Supplemental Security Income
Program is administered on a federal level. The second part, T ANF, is partially financed by federal
government, but the states are responsible for its management. The third part consists of programs of
Home Reliefwhich are entirely administered at a local level.
149 See id. at 809.
150 See Saenz v. Roe, 526 U.S. 489, 497 (1999).
151 Id.
152 Slaughter House Cases, 83 U.S. 36 (1872).
153 Saenz, 526 U.S. at 497.
154 Saenz, 526 U.S. at 500.
1551d. at 502.
734 COLUMBIA JOURNAL OF EUROPEAN LA W [Vol. 12
level of welfare benefits acknowledged in their previous state of residence. 156
Citizenship is crucial to defeat the argument that Congress, through the PR WORA,
has authorized California's legislation. The Court relies upon the Citizenship Clause
of the XIV Amendment, to affirm that the introduction of degrees of citizenship is
foreclosed not only to the states, but also to the federal government. 157 And the
federal government has therefore no power to authorize the violation of the XIV
Amendment by the states.
15S
The judgment in Saenz is at the same time incredibly
close to the positions of the ECJ and miles away from it. On the one hand, the
constitutional instruments that the Supreme Court applies here are the same that the
ECJ uses in the Trojani case and its immediate forerunners: a blend of freedom of
movement, equal protection, and citizenship. There is a partially common goal,
making free movement more effective by enhancing interstate equality, but there are
also conceptual and practical gaps that seem hard to fill in the short term. In the U.S.
cases, indeed, the Court deals with a freedom to move of the citizen, which is taken
for granted. The right to travel, to migrate, to settle down elsewhere, start a new life,
and obtain benefits like other citizens is already granted. 159 The Court is working on
marginal conditions, such as time frames for complete equality that risk casting a
shadow on the strong status of federal citizenship. 160 In the European Union,
instead, freedom of movement and citizenship, in their joint effort, are a newly
introduced concept,161 whose enforcement is currently enduring all the resistance of
well-established national contours and of well-defined pre-existing categories. To
extirpate all these unwanted borders, the citizenship provision seems quite lonely
and inadequate. It does not share indeed the federal strength of U.S. citizenship.162
Insistence on the right to travel, in Saenz, might detract attention from another
less blatant, but not less important focus of the Court in this case: 163 the entitlement
to welfare throughout the union. The nexus between freedom to move and recourse
to social assistance provides another point of contact between European Union and
the United States. The same concern that animates in Europe the resort to financial
restrictions for migrants leads to the introduction in the United States of durational
residence requirements.
l64
Discussion over the possible impact of social tourism
accompanied the enactment of residence requirements during the era that goes from
1561d. at 505.
157/d. at 507--{)8 (affirming that the protection granted to citizens by the citizenship clause of the
Fourteenth Amendment is a limitation imposed both on the power of states and on the power of the
federal government).
158/d. at 507--{)S.
159 See Passenger Cases, 48 U.S. 283 (1849) (Taney, J. dissenting) ("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.").
160 See, e.g., Saenz v. Roe, 526 U.S. 489 (1999).
161 See Van der Mei, supra note 116, at 850-51 (observing that legal tools like citizenship and right
to travel, traditionally available to the U.S. Supreme Court were not until recent time available to the
ECJ).
162 See Thomas Faist, Social Citizenship in the European Union: Nested Membership, 39 J.
COMMON MKT. STUD. 37,48-49 (2001) (stating that the derivative status ofEU citizenship determines its
weakness and at the same time impedes its smooth evolution into a status of real federal citizenship).
163 See Kevin Maher, Like a Phoenix from the Ashes: Saenz v. Roe, the Right to Travel, and the
Resurrection of the Privileges or immunities Clause of the 14th Amendment, 33 TEX. TECH L. REv. 105,
124 (2001).
I"" See Van der Mei, supra note 116, at 814.
Shapiro to Saenz.
165
The main worry is that the threat of social tourism might lead
states to engage into a race to the bottom in the provision of welfare benefits.
166
The
most recent research seems to discourage the idea that states are likely to tum into
welfare magnets in the United States.
167
The consequent reduced appeal of residence
requirements facilitates the Court's role in Saenz, in emphasizing the non-
discrimination rationale enshrined in citizenship and in its privileges and
immunities.
168
The non-discrimination argument reinforces on the other hand the
Court's undertaking to protect the right to travel. Travel and non-discrimination
doctrines have indeed shared destiny in a number of judicial decisions.
C. Right to Travel and Non-Discrimination Rationale
Ideas of non-discrimination bring together the right to travel and two other
constitutional doctrines, whose features are helpful in unfolding all aspects of the
mobility doctrine.
Both the Commerce Clause and the Privileges and Immunities Clause of Article
IV have origins in common with the right to travel. They all proceed from the same
provision in the Articles of Confederation.
169
The Commerce Clause and the
Privileges and Immunities Clause were transferred later into the Constitution. The
right to travel, as mentioned above,I7O remained homeless, but judicial applications
preserved the germaneness of the three original clauses by emphasizing common
themes in the relative doctrines.
On the one hand, dormant commerce clause analysis and privileges and
immunities clause analysis have been applied in similar contexts.
171
On the other
hand, some early cases regarding personal mobility have been decided under the
insignia of the Commerce Clause.172
The dormant commerce clause, like the right to travel, is the product of a
constitutional textual silence. The courts have progressively affirmed that the power
explicitly granted to Congress with regard to the regulation of commerce
l73
implies
restraints on the regulatory power of the states in fields that have some connection to
165 Id. at 821.
166 Nan S. Ellis & Cheryl M. Miller, Welfare Waiting Periods: A Public Policy Analysis o/Saenz v.
Roe, II STAN. L. & POL'y REV. 343, 349 (1999-2000).
167 See Van der Mei, supra note 116, at 821, (stating that more recent studies show less concern for
welfare migration and the consequent race to the bottom in welfare benefits. In light of this it would be
more justified to talk of a job magnet rather than of a welfare magnet. See also Ellis & Miller, supra note
166, at 349-50 (looking at how the theory of states as welfare magnets does not work). Welfare migration
is rare and people are generally attached to a job market. Migration is determined by a multitude of
factors and welfare is only one.
168 See Van der Mei, supra note 116, at 828.
16. See Nzelibe, supra note 98, at 436-39.
170 See CALVERT CHIPCHASE, Saenz v. Roe: The Right to Travel, Durational Residency
Requirements, and a Misapplication 0/ the Privileges or Immunities Clause, 23 U. HAW. L. REV. 685
(2001).
171 See Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371 (1978); Toomer v. Witsell 334
U.S. 385 (1948); see also JOHN E. NOWAK & DONALD D. ROTUNDA, TREATISE ON CONSTITUTIONAL
LA W : SUBSTANCE AND PROCEDURE 190-91 (3d ed. 1999).
172 See Crandall v. Nevada, 73 U.S. 35 (1867); Edwards v. California, 314 U.S. 160 (1941); see also
NOWAK & ROTUNDA, supra note 171, at 187-88.
173 See U.S. CON ST. art. I, 8.
interstate commerce.
174
The rationale at the basis of judicial holdings in this regard
is related to the creation of a national market.
175
The dormant commerce clause
spells out the logic behind interstate economic equality. Even ifthe focus is partially
removed from the one of personal interstate mobility, similar ideas of non-
discrimination among the states inform the doctrine. The presence of an ideal of
national cohesion both in the right to travel and in the dormant commerce clause
doctrine underlines a further divergence from the European Union. In the EU,
personal mobility is developing as a further step of the initial rationale of economic
cohesion. In the United States, national cohesion has been the common goal of
separate and parallel constitutional doctrines, promoting different angles of a
common view of non-discrimination.
Friendly interstate intercourse and prevention of discriminations among citizens
are goals pursued also through the adjudication of the Privileges and Immunities
Clause of Article IV. The clause states that "the citizens of each State shall be
entitled to all privileges and immunities of citizens in the several States.,,176 In its
judicial "modem era," the Privileges and Immunities Clause has turned out to rely
mainly on a non-discrimination rationale. 177 The clause has found judicial
application mainly in cases regarding constitutional rights and economic activities.
178
It closes in this way the circle involving the dormant commerce clause and the right
to travel. The dormant commerce clause encourages and protects the common
market among the states of the union. The right to travel protects the freedom of
American citizens to pass and re-pass through every part of the union.
179
The
Privileges and Immunities Clause of Article IV creates and maintains a substrate of
interstate equality, which is fundamental to realize the goal of national cohesion
inherent in the other two doctrines.
The non-discrimination idea is not the only inheritance of the Privileges and
Immunities Clause in right to travel cases. The clause illustrates also the helpful
connection between travel and citizenship spelled out in concurring and dissenting
opinions in the right to travel cases. In this regard, the clause of Article IV is a
companion to the oile of Amendment XIV.180 Even before the Saenz case added the
clause of Amendment XIV to the profile of the right to travel, the two privileges and
immunities clauses were partners indeed in founding and developing a model of
citizenship which underlies the right to travel rationale.
D. Right to Travel and Citizenship
The two privileges and immunities clauses, the one in Article [V of the U.S.
Constitution and the other one in the Fourteenth Amendment, belong to two different
moments of constitutional history. [fthe first one is aimed at protecting the status of
state citizens, the second and younger one undertakes the defense of rights connected
m See NOWAK & ROTUNDA, supra note 171, at 131.
1751d. at 133.
176 See U.S. CONST. art. IV, 2.
177 Id. at 250-51.
178 See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 449 (2d ed. 2002).
179 See Passenger Cases 48 U.S. 283 (I 849} (Taney, J. dissenting).
180 See U.S. CONST. amend. XIV, I ("No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States.").
to federal citizenship.181 Notwithstanding these different roles, the two clauses can
be said to cooperate in some way to build and expand the American concept of
citizenship.182 The Privileges and Immunities Clause of Article IV, by guaranteeing
an equal ity of status among the citizens of the several states, lays the foundations for
union citizenship. The late born clause of the XIV Amendment protects the
privileges and immunities of federal citizenship while working on a pre-existing
basis of equality among citizens of the states that the Privileges and Immunities
Clause of Article IV is responsible for.
183
The first phase of equality building is
what has been lacking in Europe: the citizenship provision of Article 18 EC simply
added a new artificial status to pre-existing national citizenship. Only now, the ECJ
is starting to work on harmonization of the condition of different nationals, using as
a unirying tool a combination of citizenship and non-discrimination. The freedom of
movement and the right to travel offer, in this regard, a privileged ground of
observation for comparing the harmonizing role of the citizenship provisions in the
United States and in Europe. Equal treatment is indeed one of the imperatives of
mobility.
In the United States, several concurring opinions in the main right to travel cases
have suggested reliance on this community of values, in order to stretch the right to
travel, reinforce its equality component, and make mobility and resettling effective
and rewarding in the United States. A first symptom of this attitude can be found in
Justice Bradley dissent in the Slaughter House Cases: after affirming that the XIV
Amendment has made federal citizenship the primary status of the Americans, he
adds that federal citizens have now the right to go and reside in any State of their
choice and claim there citizenship and equality.184 As he points out, "the whole
power of the nation is pledged to sustain (the citizen) in this right.,,185 An early
reliance on the Fourteenth Amendment privileges and immunities is evidenced by
the words of Justice Douglas in Edwards v. California. He defines the freedom to
move as an "incident of national citizenship," which the Fourteenth Amendment
protects from state interference.
186
Justice Jackson, concurring in the same case,
shares his view and reflects upon "the power of citizenship as a shield against
oppression.,,187 He also underlines that the right to enter any state either for
temporary sojourn or for the establishment of permanent residence is a privilege of
national citizenship. 188 In Zobel v. Williams, Justice Brennan concurring observes
that the "right to travel and equality of citizenship are the essence of the
Republic.,,189 The most promising re-evaluation of the Privileges and Immunities
181 See MAHER, slipra note 168, at 110-14.
182 See id. at 112 (observing that the Fourteenth Amendment was passed as a remedy to the
ineffectiveness of the Privileges and Immunities Clause of Article IV and therefore the latter clause
should be a guide to understand the Privileges and Immunities Clause of the Fourteenth Amendment).
183 See Justice O'Connor concurring in Zobel v. Williams, 457 U.S. 55 (1982), whose attempt to fill
the emptiness of protection left by the two clauses, by expanding the scope of the clause of Article IV,
shows that the underlying equality among citizens of different states contributes to "put flesh on the
bones" of the American federal citizenship.
18< See The Slaughter House Cases, 83 U.S. 36, 112-13 (1872)(Bradley, 1. dissenting).
185 [d. at 113.
186 Edwards v. California, 314 U.S. 160, 178 (1941) (Douglas, J. concurring).
187 [d. at 182-83 (Jackson, J. concurring).
188 [d. at 183.
189 Zobel v. Williams, 457 U.S. 55, 70 (1982) (Brennan, J. concurring).
738 COLUMBIA JOURNAL OF EUROPEAN LA W [Vol. 12
Clause, in its Article IV version, is however in the words of Justice O'Connor in this
same case.
190
Justice O'Connor acknowledges a legal association based on the
Articles of Confederation between the right to travel and the Privileges and
Immunities Clause of Article IV.191 In particular, she suggests a way to overcome
the obstacle that the clause of Article IV has only been held applicable to citizens,
who, moving to another state, do not acquire citizenship there: the fact that the
discrimination "unfolds" after the travel element has finished and the person has
become a resident of the new state should not preclude the application of this clause,
as the situation underlines the disability of the "citizen of State A who has ventured
in State B" to establish a home there.
l92
This analysis underlines the ambiguity of
the Privileges and Immunities Clause of Article IV and its high content in terms of
interstate equality, notwithstanding its fundamental rights evoking aspect. In the
end, the right to travel, privileges and immunities, and the theory of non-
discrimination build an extremely delicate and surprisingly complex architecture,
where interstate equality and citizenship are key to the trade-off between individual
dignity and concerns of the federation.
193
For the sake of the federal system, this interstate equality seems to be in
perpetual tension with the value of state autonomy. State autonomy might be key in
explaining some reverse patterns of mobility that the exam of peculiar categories
will reveal in the following part of this analysis. Certain values fall in the United
States on the side of state autonomy rather than interstate equality.194 Among these
values, there are certain economic goals. In the European Union, instead, economic
goals are the first instance of union, demanding equality.
III. REVERSE PATTERNS: A GLANCE INTO THE KINGDOM OF THE
ECONOMICALLY ACTIVE
In this Part, two peculiar categories of free movers will be the target of a
comparative analysis of U.S. and European solutions. First of all, I will briefly
examine the regime of student mobility in the two systems. With an eye to mobility
issues, students stand at the intersection of the class of economically active and
economically inactive people. On the one hand, they represent an appendix of the
economically active, as their status is structurally aimed at entering this c1ass.
195
At
the same time, they are not financially independent. Then, I will address, in a
general and exemplificative overview, patterns of mobility (or immobility) of
I"U See Wildenthal, supra note 110, at 1585-87.
191 Zobel v. Williams, 457 U.S. 55, 79--81 (1982) (O'Conner, J. concurring).
In Id. at 74-75.
1"3 See Rebecca Zietlow, Belonging, Protection and Equality: the Neglected Citizenship Clause and
the Limits a/Federalism, 62 U. PITT. L. REV. 281, 308 (2000) (the citizenship clause which has also been
relied upon in Saenz stands "at the intersection offederalism and individual rights"); see also Jonathan D.
Varat, State Citizenship and Interstate Equality, 48 U. CHI. L. REv. 487, 494 (1981).
194 See id. at 35-37 (describing how generally' states cannot, by using their regulatory and taxing
power, impose stricter requirements on non residents or non instate business than on instate ones and
residents. But such obligation is lifted where State has complete autonomy in choosing how to spend its
money; for instance with regard to welfare payments and education. This freedom, combined with
freedom to move, makes the States the firms offering goods to people and directing their choice of where
to settle. In some way this sacrifices economic integration, but confers value to political union).
195 See Siofra O'Leary, supra note 29 (discussing the idea that students, even if not squarely fitting
in the category of the economically active, are in preparation for a future economic activity).
professionals subject to license requirements in the European Union and in the
United States, in order to assess features of free movement for economically active
people in the two systems. In particular, I will focus on the rules and cases regarding
the mobility of lawyers. Incentives or lack thereof, for the mobility of lawyers can
prove particularly meaningful in exploring the attitude of legal orders towards free
movement, as the interest in mobility of this class encounters a natural hardship, for
the intrinsic localism that familiarity with a peculiar jurisdiction requires. 196
There are apparent incongruities in the approach to mobility for economically
active and economically inactive people in the two compared systems.
Consideration of the original scope and essence of the union in the two cases might
be helpful in understanding how citizenship and state autonomy interplay in the two
orders, according to a different level of relative weight.
A. Students
I. Mobility of Students in the European Union
The current statute of the European migrant studene
97
has been progressively
shaped through an inter-play of case law and secondary legislation, with a sudden
reinforcement in a very recent judgment of the European Court. 198 Before the
adoption of the Maastricht Treaty, lack of a common competence in the field of
education, forced the ECJ to expand the rights of moving students by a combination
of the provision on vocational training
l99
and the principle of equal treatment.
200
This judicial expedient led to the early affirmation in case law of the right to equal
treatment in access to vocational training. The Gravier case
201
represents the
foundation in this area. The ECJ considered here the Belgian imposition of a
university enrolment fee only on foreign students as an impermissible form of
national discrimination in access to vocational training.
202
The rule of equal access
to education received judicial strengthening and delimitation in the co-eve cases of
Brown and Lair.
203
Both cases dealt with the denial of study allowances in the host
state to students who were nationals of a different Member State. The ECJ clarified
that the equal access right under Article 12 of the EC Treaty pertains only to
registration and tuition fees.
204
Maintenance grants are, instead, excluded from the
196 On the peculiarity of the lawyer's profession, see Supreme Court of New Hampshire v. Piper, 470
U.S. 274 (1985) (Rehnquist, J. dissenting).
197 See Jacques Pertek, Le Statut de i'fitudiant mobile dans la Communaute europeenne, 7/8
ACTUALITE JURIDIQUE DROIT ADMIN. 539 (1999).
198 Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of Ealing,
Secretary of State for Education and Skills (2005), available at http://curia.eu.intljurisp/cgi-
binlform.pl?lang=en.
199 See EC Treaty art. 50.
2") Id. art. 6.
201 Case C-293/83, Fran,<oise Gravier v. City of Liege, 1985 E.C.R. 593.
2021d. ~ ~ 21-23.
203 Case C-197/86, Steven Malcolm Brown v. The Secretary of State for Scotland, 1988 E.C.R.
3205; Case C-39/86, Sylvie Lair v. Universitat Hannover, 1988 E.C.R. 3161.
2,," In the United States, there have been debates about the admissibility of admission quotas for
residents and non-residents. In Europe, this kind of discrimination among national and international
non-discrimination coverage.
205
They are instead awarded on an equal basis to
migrant students who are family members of migrant workers.
206
Connections to
employment-related mobility do indeed reinforce the non-discrimination coverage.
The Court's approach seems to enucleate in the status of students two different
components: the element of education consumer as a potential future worker, who
deserves equal protection, and the element of migrant economically inactive person,
which in the prelude to the introduction of European citizenship, cannot yet fit in any
category entitled to move. This second self of the student has to rely on his own
forces for facing life costs. The Court's sanction will tum into legislative condition,
with Directive 93/96,207 which requires of migrant students that they have sufficient
resources. The idea itself that migrant students have an independent right of
residence, which Directive 93/96 crowns, was born once again in a judicial
statement. In the Raulin case,208 the European judges clarified that, as a consequence
of the right of equal access to vocational training, a student who has been admitted
into an education program in a Member State other than his state of nationality,
enjoys there a right of residence for the duration of the education program.
209
The current judicial trend in the ECJ, tending to enhance free movement, as a
result of the joint effort of citizenship and equal treatment, has improved
opportunities of mobility also for students. Early symptoms of these renewed
chances for students' mobility can be read in the above-mentioned Grzelczyck
. d 210
JU gment.
Then, as mentioned above, the Court has vigorously confirmed its right-
expansive attitude in a decision rendered in March 2005 in the Bidar case.
211
There,
the Court openly overcame the distinction between equality for access to vocational
training and for maintenance aid while studying. The Bidar case regarded a French
student, who moved to the United Kingdom to follow his mother and pursued there a
good part of his secondary education.
212
When later he started his studies in
economics, he received assistance for his tuition fees, but he was denied
maintenance aid because he did not satisfY the requirement of national law that he be
settled in the United Kingdom.213 Called to decide whether maintenance grants and
loans are within the scope of Community law in light of developments of EU law
and whether, as a consequence, U.K. legislative requirements entail a form of
forbidden nationality-based discrimination, the ECJ engaged in wrinkle-less
students does not seem to be an issue and the European Court has coped mainly with the financial
conditions of admission.
205 Case C-293/83, Gravier v. City of Liege, 1985 E.C.R. 593, 15-16.
206 See Council Regulation 1612/68 art. 12, 1968 OJ. (L 257) 2; and Parliament and Council
Directive 2004/38IEC art. 24, 2004 OJ. (L 158) 77.
207 Council Directive 93/961EC, OJ. 1993 (L317) 59, repealed by Parliament and Council Directive
2004/38/EC, 2004 OJ. (L 158) 77.
2U8 Case C-357/89, V. J. M. Raulin v. Minister van Onderwijs en Wetenschappen, 1992 E.C.R. l-
Ion
2(19 Id. 34.
211' Case C-184/99, Rudy Grzelczyk v. Centre Public d' Aide Sociale d'Ottignies-Louvain-La-Neuve,
2001 E.C.R.6193.
211 Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of Ealing,
Secretary of State for Education and Skills (2005), available at http://curia.eu.intljurisp/cgi-
binlform.pl?lang=en.
212 Id. 20.
213 Id. 21-22.
reasoning, in which it applied the most successful formulas of its free movement
judgments. A national of a Member State, who lives in another Member State and
pursues there secondary education, is a lawful resident under Article 18 EC and
under the 1990 directive on the right of residence, if no claim has been raised that he
does not have sufficient resources or that he lacks sickness insurance?14 Quoting the
Trojani decision, the Court added that a European citizen who is not economically
active, but is lawfully resident, is entitled to equal treatment under Article 12 EC,215
and this entails maintenance aid for students.
216
Notwithstanding the degree of
financial solidarity concept that the Grze/czyk judgment contributed to students' free
movement, in order for maintenance grants not to become an unreasonable burden, it
is legitimate to require that the benefiting students have a certain degree of
integration into the host state.217 This degree of integration can be proved for
instance by length of residence and is certainly accomplished by students who have
pursued a significant part of their secondary studies in the host state.
218
The Bidar judgment confirms the judicial engagement to evade, in the context
of free movement, categories of entitlement, by reliance on citizenship and equal
treatment. The stretching trend reaches its zenith. In addition, the judgment
provides a valuable map of the free movement doctrine by applying systematically
principles affirmed in different lines of free movement cases.219 At the same time,
the Court's reasoning reaffirms a well-experienced external boundary of its
citizenship game: lawful residence, granted by a Member State, is still the threshold
for entitlement, whose persistence impoverishes somehow the independence of
European citizenship.
2. Mobility of Students in the United States
In the United States, economic implications of travel do not favor integration,
but rather justifY state autonomy.220 This attitude finds its first expression in the
field of students' mobility. The Supreme Court has repeatedly held that a distinction
between residents and non-residents for tuition purposes does not violate equal
protection, nor chills the right to travel. It pursues, instead, legitimate state goals,
such as the one of making sure that state resources are primarily reserved for those
who made a contribution to state wealth.
221
In this light, reduced tuition is
WId.'36.
215 Id., 37.
216Id.,42.
211 Id. , 57.
218/d. " 59-63.
219 It provides indeed a sum up of the concept of financial solidarity expressed in the Grzelczyk
judgment (, 56), of the conditions for social assistance of lawfully resident, but not economically active
European citizens (, 37), of the degree of integration in the host state, which can be required respectively
ofa student and ofajobseeker, in order to grant social assistance (" 57-58).
220 See VARAT, supra note 147, at 50 (observing that the presence of a political union framework
may make economic protectionist impulses more reduced. It produces less anti-common market policies
and those adopted are accepted as expression of local autonomy. Economic integration, in the United
States, has not been granted an independent constitutional value of the same strength as political
integration and people's freedom to move temporarily or permanently).
221 See, e.g., Starns v. Malkerson, 326 F. Supp. 234 (D.C. Minn., 1971) aff'd 401 U.S. 985 (1971).
considered an element of bona fide residence.
222
In this optic, the California Court
of Appeals in Markowitz v. University of Californid
23
recently upheld a one-year
residence requirement for purposes of in-state tuition. A limit to the differentiation
between in-state and out-of-state students has been established in Vlandis v. Kline,
where it was held that while durational residency for instate tuition is admissible,
non-rebuttable presumptions of out-of-state residence are illegitimate and quotas of
admission based on residence cannot be established.
224
Streams of students moving throughout the country to earn a degree at a certain
school are regarded to some extent as an endemic phenomenon of mobility that
could have to do with the structure of the education system in the United States and
with the ranking of schools,225 and at the same time with an absence of residential
bounds, which is peculiar of a certain phase of life?26 In this light, residence rights
for students belong to a peculiar category. Classifications according to this criterion
in the field of education satisfy needs for fair distribution of resources and
contribution rationales and represent a permissible exception to principles of
interstate equality.227 There is definitely an inverse regime in comparison with the
European Union where mobility for purposes of education has been supported as a
collateral factor of economic integration. While common citizenship in the EU
supports attempts of equalization for students' condition, peculiarity of students in
the United States leads to derogations from their status of equal citizens.
On the one hand, thus, certain background traditions of life make it hard to
compare the regime of educational mobility in the EU and in the United States. In
the former, there is indeed an economic-drawn desire to pull people out of a state of
immobility perceived as normal. As schools in Europe are not ranked as clearly as
in the United States, having a high number of out-of-state students could be a reason
for prestige, while there is no realistic threat that the afflux of out-of-state students
would displace education opportunities of local residents. Language and cultural
barriers reinforce a tradition of low student mobility and dilute these worries. In the
United States, where moving for education purposes is the rule rather than the
exception, there is a fear that fluxes of out-of-state students would represent a
disincentive for states to invest in good education facilities, as benefits would not
accrue mainly to local residents.
222 Id. at 240--41.
223 Markowitz v. University of California, No. A096182, 2002 WL 31428619 (Cal. Ct. App. Oct 30,
2002).
m See Gary J. Simson, Discrimination against Nonresidents and the Privileges and Immunities
Clause of Article IV, 128 U. PA. L. REV. 379, 395-96 (1979). But see Jonathan D. Varat, State
Citizenship and Interstate Equality, supra note 193, at 552-54 (stating instead that colleges and
universities should not be exempt from the general rule that state-created resources can be kept for
residents. States might not want to create a large system of education big enough to accommodate also
educational needs of non residents, even if they are willing to pay.
m See Starns v. Malkerson, 326 F. Supp. 234, 240 (D.C. Minn., 1971), affd 401 U.S. 985 (1971)
(affirming that there is a presumption that a student who is in Minnesota for purposes of studying is not a
permanent resident).
226 See Thomas B. Parent, Tuition Residence ReqUirements: a Second Look in Light of Zobel and
Martinez, 61 IND. LJ. 287, 311 (1986) (suggesting that the tendency of students to move merely for
purposes of attending college induces to suspect that relocation is simply temporary); see also Gary J.
Simson, supra note 224, at 386-87.
227 See id. at 396.
B. Professionals
I. Professional Mobility in the European Union
Free movement of professionals is a clearly affirmed commitment for the
European Union, where it finds a basis in the original Treaties.228 The two main
pillars of the current regime are harmonization and recognition of diplomas.
The ECJ, as in many other fields, has made the first efforts in this direction.
229
Judges in Luxembourg have relied particularly on the Treaty provisions on the
freedom of establishment and provision of services, whose direct application and
expansive reading certainly support chances of movement for professionals. In the
Reyners case,230 the Court affirmed the direct applicability of Article 43 EC
(freedom of establishment) in order to give relief to the claim of a Dutch national,
who, even if in possession of the required legal title, had been denied admission to
the practice of the profession of lawyer in Belgium, because he was not a Belgian
national.23I In the same year, and in another case, the Court also granted direct effect
to the provisions on freedom to provide services,232 in order to allow a Dutch
national to provide his services of legal representative in the Netherlands even if
established in Belgium.233
After this first expansive grip for freedom of professionals in EU case law,
legislative development followed. First came a series of sector-specific directives,
aimed at liberalizing the trans-national exercise of certain professions.
234
The typical
legislative scheme for each sector entailed a recognition directive, aimed at the
recognition of diplomas gained in states other than the one where the professional
activity is to be exercised, and a harmonization directive, aimed at the harmonization
of the conditions for the exercise of a profession.
235
[n 1989, this category-based system was improved with the adoption of a
general directive on the recognition of diplomas,236 which is residual in nature and
applies in all situations not specifically considered in one of the previous directives.
The concept of diploma adopted in the directive is deprived of any academic
connotation. Diploma is the title achieved upon completion of a period of training of
at least three years and enabling the practice of a certain activity.237 The idea at the
228 See EC Treaty arts. 39,43,49.
229 See Fabio Ferraro, Avvocati: Cronaca di una Condanna do Tempo Annunciata per / 'ftalia, 3
DIRITTO PUBBL. COMPo ED EUROPEO 1270, 1273 (2002).
230 Case 2-74, Jean Reyners V. Belgian State, 1974 E.CR. 631.
231 Id. ~ 32.
132 See EC Treaty arts. 49-55.
233 Case 33-74, Johannes Henricus Maria van Binsbergen v. Bestuur van de Bedrijfsvereniging voor
de Metaalnijverheid, 1974 E.C.R. 1299.
m See, e.g., Council Directive 78/687/EEC, 1978 OJ. (L 233) 10; Council Directive 78/686/EEC,
1978 O. J. (L 233) I (pertaining to dentists); Council Directive 85/384/EEC, 1985 OJ. (L 223) 15
(pertaining to architects).
235 See Ugo Villani, 1/ riconoscimento dei Titoli di Studio e Le Professioni nella Comunita Europea,
XLIX LA COMUNITA INTERNAZIONALE 497,502-03 (1994).
231 See Villani, supra note 235, at 503-04 (observing that academic recognition of diplomas with an
eye to continuing studies was left out because the Community was at the time not yet competent in the
field of education).
basis of recognition of diplomas is a principle of mutual trust. The directive rests on
the assumption that the length and kind of training necessary to become competent
for the exercise of a certain profession is more or less the same everywhere.
238
Recognition is key therefore, while the legislative intent is not in this case
harmonization: States remain free to maintain and introduce their own
regulations.239 This degree of state autonomy in regulating access to professions
obviously poses the problem of guaranteeing, together with mobility, uniformity in
the quality of the supplied services. To this purpose, the directive entails some
adjustment mechanisms/
40
differences in content or duration of the pursued studies
can be made up for, at the choice of the interested person, through a period of
adaptation or the successful passing of an aptitude test in the host state.
241
In 1992,
another directive was passed, which extended the recognition to diplomas received
upon completion of periods of training inferior in length to three years.242
The ECJ has looked at the effective implementation of these directives
243
and
from time to time creatively contributed to professional integration. In the Kobler
case,244 for instance, European judges held that legislation granting a special length
of service increment to professors in Austrian universities after fifteen years of
service curtailed freedom of movement if it did not allow the taking into account, for
the purpose of awarding the increment, years of service in other Member States.
245
Therefore, legislative measures are not only in place to facilitate transfer of
professional activities and professional competences from one state to another, but
the European judiciary has also undertaken to make sure that national provisions do
not provide disincentives to professional movement.
2. Professional Licensing in the United States
In the United States, professional licensing or certification is a prerogative of the
states. It is considered that states have a compelling interest in regulating
professions, as part of their power to provide for public health, wealth, and other
relevant state interests?46 The interest of the state in this field was judicially
affirmed in a landmark case in 1889, Dent v. State of West Virginia.
247
In that case,
the Supreme Court responded to a challenge to a West Virginia statutory
requirement that all practitioners of medicine have a certificate of the State Board of
Health, by making clear that it is in the power of states to require proof of a certain
level of skill and knowledge in order to practice a profession.
248
In performing their
238 See Jacques Pertek, Free Movement of Professionals and Recognition of Higher Education
Diplomas, 12 Y.B. EUR. L., 293, 312 (1992).
239 See Vincenzo De Sensi, La Libera Circolazione delle Persone e il Riconoscimento Reciproco dei
Diplomi, XXI LE NUOVE LEGGI CtVILI COMMENTATE 1116, 1126 (1998).
240 See Villani, supra note 235, at 509.
241 Council Directive 89/48/EEC, 1989 OJ. (L 19) 16, ~ 4.
242 Council Directive 92/51IEEC, 1992 OJ. (L 209) 25.
H3 Italy, for instance, has recently been condemned for maintaining a residence requirement for
dentists. See Case C-202/99, Commission of the European Communities v. Italian Republic, 2001 E.C.R.
1-9319.
244 Case C-224/01, Gerhard KObler v. Republik Osterreich, 2003 E.C.R. 1-10239.
m l d . ' ; ~ 71-72.
246 See 58 AM. JUR. 2D ~ 2 (2004).
W Dent v. West Virginia, 129 U.S. 114 (1889).
HS/d. at 122.
task to protect the community from the risks connected with fraud and ignorance,
states are free to assess the degree of stringency that is likely to absolve this
purpose.
249
Later cases have confirmed that the principle expressed in Dent can be
extended to other professional fields.
250
A limit to state-enacted requirements is,
however, that they must have a rational relationship with the applicant's capacity to
practice the chosen profession.
251
While licensing is a state competence, in the interest of interstate equality, there
are limits to barriers that a state can impose on the professional activity of out-of-
state residents or new residents. In the Piper case of 1985,252 the Supreme Court
held a residency requirement for admission to a state bar to be in contrast with the
Privileges and Immunities Clause of Article IV of the Constitution. This judgment,
even if specifically regarding lawyers, has been read as a broadband rejection of in-
state residency as a prerequisite for licensure.253 Apart from judicially enforced
restraints on the states' prerogatives, several states maintain rules of reciprocity for
admission to the practice of a profession of persons licensed in other states.
Reciprocity leads to the recognition of licenses released in other states, where the
state of release would grant a similar treatment to licensees of the first state.
254
Reciprocity certainly represents a factor of openness to inter-state mobility, but its
dynamic value should not be overstated. Several cases
255
have made clear that
having a license in a state does not automatically equate to being licensed in other
states.
256
Every state remains free to enact additional requirements and to exercise a
certain margin of discretion in granting reciprocal licenses. Reciprocity is not
considered in the United States as a means to construe a welI-functioning system of
professional circulation. It seems rather to be aimed at responding at specific
individual needs, examined on a case-to-case basis.
At the same time, the care for disincentives to mobility expressed by the ECJ in
the Kobler case does not find a correspondence in American judicial attitudes. In the
comparable case of Devereaux v. New York State Teachers Retirement Board,257 the
Court held that a New York statute providing for a right to reemployment and for
certain benefits in pay and status for teachers inducted into military service did not
create an obligation for the Board to take into account the military service rendered
by a teacher in New Jersey. This seems to be in sharp contrast with the ECJ's
249 [d. ("As one means to this end it has been the practice of different states, from time immemorial,
to exact in many pursuits a certain degree of skill and leaming upon which the community may
confidently rely. The nature and extent of the qualifications required must depend primarily upon the
judgment of the state as to their necessity.").
250 See, e.g., Smith v. State of California, 336 F.2d 530 (9th Cir. 1964); see also RANDOLPH P.
REAVES, THE LAW OF PROFESSIONAL LICENSING AND CERTIFICATION 5 (4th ed. 2001).
251 See REAVES, supra note 250, at 9.
252 Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).
253 See REAVES, supra at note 250, at 47.
254 [d. at 50.
255 See, e.g., Valdes v. New Jersey State Board of Medical Examiners, 501 A.2d 166 (N.J. Super. Ct.
App. Div. 1985); Sellers v. Board Of Psychologist Examiners, 739 P.2d 125 (Wyo. 1987); Frank v.
Wyoming Board of Dental Examiners, 965 P.2d 674 (Wyo. 1998). These cases reflect in good part the
choice of cases presented in REAVES, supra note 250, at 50.
256 See REAVES, supra note 250, at 50.
257 Devereaux v. New York State Teachers Retirement Board, 429 N.Y.S.2d 743 (N. Y. App. Div.
1980).
commitment to community-wise equality of treatment and oppositIOn to
disincentives to mobility. This case shows that in the American view, certain
professional privileges and protective measures are strictly state-related.
C. Mobility of Lawyers
That lawyers belong to a special category has been affirmed in the United States
by Justice Rehnquist, in his dissent in Supreme Court of New Hampshire v. Piper.
258
He stated that "[t]he reason that the practice of law should be treated differently is
that law is one occupation that does not readily translate across state lines. Certain
aspects of legal practice are distinctly and intentionally non-national." Justice
Rehnquist considered that this field of activity embodies a doctrine opposite to the
principles of interstate equality expressed in the Privileges and Immunities Clause of
Article IV.259 Rehnquist's perception of the practice of law finds support in U.S.
case law on admission to the bar: Even if mechanisms are in place to facilitate to
some extent interstate practice, admission to the bar is firmly considered a state-
based prerogative. In the EU, instead, rules on recognition of diplomas have eroded
state sovereignty with regard to licensing of lawyers. Considering that
differentiation of laws and jurisdictional systems is certainly higher in the EU
Member States than in the United States, European liberalization of intra-
Community practice oflaw stands in strong contrast with Rehnquist's reflections.
I. Mobility of Lawyers within the European Union
As the Reyners and the Van Binsbergen cases
260
mentioned above
261
suggest, for
lawyers, as for several other categories, it was a judicial impulse to give the first
incentive to the improvement of professional mobility. In the Vlassopolou case,262
the European Court held that freedom of establishment under Article 43 EC requires
that authorities of a Member State, in considering admission to the bar of a foreign
applicant, carry out a comparative examination of the applicant's knowledge and
credentials. I f the exam results in a lack of equivalence, the foreign applicant must
nonetheless be given the opportunity to prove her acquisition ofknowledge.
263
The legislative commitment to enhanced mobility started for lawyers with a
1977 directive on the provision of services.
264
Under this regime, lawyers are
allowed to perform certain acts in other states under the title of the state of origin. 265
258 Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 289-90 (1985) (Rehnquist, J.
dissenting).
2591d. at 290-91 (stating that there is an interest in interstate equality which is defended by the
Privileges and Immunities Clause of Article IV, but the Constitution builds a federal system, which allows
for the independent operation of sovereign States).
260 Case 2174, Jean Reyners v. Belgian State, 1974 E.C.R. 631; Case 33174, Johannes Henricus Maria
van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid, 1974 E.C.R. 1299.
261 Id. ~ ~ 41-42.
262 Case C-340/89, Irene Vlassopoulou v. Ministerium fur Justiz, Bundes- und Europaangelegenheiten
Baden-Wurttemberg 1991 E.C.R. 2357.
263 Id. ~ 23.
264 Council Directive 77/249/EEC, 1977 0.1. (L 78) 17.
265 See Jacques Pertek, L 'Europe des Profossions D 'Avocat Apres fa Directive 9815 sur L 'Exercice
Permanent dans un Autre Etat Membre, 445 REVUE D. MARCHECOMMUN ET DE L'U. E. 106, 107 (2001).
Directive 89/48 later provided a chance for integration into the professional
environment of another state.
266
Admission to the bar of other states for lawyers
already licensed elsewhere in the Community is subject to the passing of an aptitude
test or to a period of adaptation according to the choice of the host Member State?67
Directive 98/5
268
then introduced a system of recognition of diplomas specific to
lawyers. Under this directive, every lawyer licensed in a Member State can practice
in another Member State under the title of his country of origin, and then after three
years he is completely integrated into the national practice and can use the local
title.
269
At this point, migrant lawyers can choose to take an aptitude test and be
immediately integrated in the national practice under Directive 89/48, or they can
practice effectively and regularly for three years and be integrated in the national
practice as a result of their own activity.270
European case law, in the wake of the 1998 directive, is directed at sanctioning
defaults in the implementation of the new system, and at the same time brings an
echo of the European judiciary temptation to engage in expansive approaches. In the
first sense, in 2002, Italy was once more condemned for non-compliance with
Community provisions.271 In the second expansive sense, the ECJ has recently taken
care of the rights of lawyer trainees moving throughout the Community and has held
that Articles 39 and 43 EC protect their status.
272
2. Mobility of Lawyers in the United States
In the United States, bar admission is absolutely state specific. While there are
some legislative rules that allow partial attenuation of this feature, state authority
remains hard to challenge in this area. In general, the requirement to take the state
bar exam is seen as rationally-related to the state interest in the quality of its bar.273
In Goldfarb v. Virginia,274 the Supreme Court affirmed that "[t]he interest of the
states in regulating lawyers is especially great since lawyers are essential to the
primary governmental function of administering justice, and have historically been
officers of the courtS.,,275
The relevant case law provides a history of enlargement and restraint at the
same time. In partial continuity with the above-mentioned Piper case, in Supreme
Court of Virginia v. Friedman,276 the Supreme Court struck down a permanent
0000.
266 Council Directive 89/481EEC, 1989 OJ. (L 19) 16.
267 Council Directive 89/48/EEC, 1989 OJ. (L 19) 16, ~ 4.
268 Council Directive 98/5/EC, 1998 OJ. (L 77), 36
2691d. art. 2.
270 See Pertek supra note 265, at III.
27. Case C-145199, Comm'n v. Italy, 2002 E.C.R. 1-2235.
272 Case C-313/01, Morgenbesser v. Consiglio dell'Ordine degli avvocati di Genova, 2003 E.C.R. 1-
273 See id.
m Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).
mId. at 792. This is said in a case regarding the evaluation of fee schedules for certain legal
services as anticompetitive conduct within the scope of the Sherman Act. In holding such schedules in
contrast with the Sherman Act, the Supreme Court specifies that states have a compelling interest in
regulating professions and this interest is not affected by the judgment that a certain conduct is anti-
competitive.
276 Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988).
residency requirement for admission on motion to the state bar. Other conditions,
less burdensome than residency, can be validly enacted to make sure that a person
admitted on motion has a real interest in the practice of law in the state.
Consistently, the Supreme Court held in the Tolchin case,277 that the requirement of
maintaining a bona fide office in state is rationally related to the state legitimate
interest in regulating the practice of law within its borders.
It seems clear, in light of the previous cases, that residency is not a valid
criterion for determining admission to a state bar. Another strand of cases raised
challenges to the strictness of requirements for admission to the in-state practice of
law, of professionals already admitted in other states. For instance, in Lowrie v.
Goldenhersh,278 the Seventh Circuit considered the claim of a lawyer who did not
meet the requirements for admission on motion in Illinois, as he had not practiced
law in another state for five continuous years, within the previous seven, even if he
had altogether practiced law for thirteen years.279 Lowrie challenged the rule on
admission on motion as a violation of equal protection, of due process, and of the
right to travel. The Court rejected his claim, holding that the Illinois rule was a valid
alternative to the requirement of passing the Illinois bar, and that it had a rational
basis in the state concern for the character and fitness of the applicant.
28o
In
particular, the right to travel had not been not violated, because, as the Court pointed
out, "after all the written bar examination is a well-accepted prerequisite to bar
admission for the majority of applicants in nearly every state in our union.,,281 This
last statement underlines that the bottom line in the U.S. system is state regulation of
the practice of law. Regimes of exam waiver and reciprocity seem to be an
exception, and their regulation can therefore legitimately be more or less strict, while
their application can be targeted on individual features, without much concern for an
equal pattern of inter-state integration.
* * *
This brief overview of the rules on professional licensing and on professional
mobility in the United States and in the EU suggests some final considerations. The
European system for free movement of professionals is largely based on the
principle of mutual recognition of diplomas. The problem of recognizing
educational credentials does not exist, however, in the United States. As a paradox,
the starting point is here a greater degree of uniformity than in Europe. In the EU,
though, the free circulation of professionals turns out to be an acknowledged and
encouraged goal, harmonization of conditions of access to professions in different
states is actively promoted, and disincentives to movement are targeted as an
obstacle to remove. In the United States, the system rests on a basic homogeneity of
interstate education and training. The introduction of effective incentives for deeper
professional integration throughout the nation seems to be nonetheless thwarted by
the need to preserve the single states as meaningful bundles of authority.
277 Tolchin v. Supreme Court of the State of New Jersey, III F.3d 1099 (3rd Cir. 1997).
278 Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983).
279 Id. at 402.
280 Id. at 408--09.
281 Id. at 413.
Rules on the practice of law provide a further, significant proof of the strength
of the European commitment to professional integration. European lawyers are no
longer required to take more than one bar exam. As a result, practicing and being
integrated in another jurisdiction is now easier in Europe than in the United States,
even if national laws within the EU are likely to be more diversified and are the
product of diverging cultures and diverging judicial systems. In this light, European
progress towards easy mobility of lawyers seems paradoxical.
The paradox could perhaps find a solution in the logic of economic integration
underlying the European project. The drive towards creating a common market of
services can overcome significant professional differences and well-defined
boundaries, such as those among different jurisdictions. This level of integration is
functional to an economic rationale that U.S. federalism shares only in part.
CONCLUSION
Free movement and right to travel doctrines offer a privileged perspective to
evaluate citizenship. Unconstrained movement throughout the territory is in some
sense an intuitive prerogative of citizenship in a modem state. Structures of multi-
tiered governance tend to alter and fragment the natural correlation between
citizenship and movement. Subtle challenges face the judicially mediated endeavor
of using citizenship to facilitate free movement in the European Union. Such
challenges involve considerations of interstate equality and depend in part on
specific centripetal forces operating in different communities.
Considering the rights of movement and travel in the European Union and
United States reveals significant differences in these underlying forces. The
apparent similarity of jurisprudence is deceiving. Diverging goals and diverging
tools hide in the shadow of similar rationales. Spelling out these differences is
meant to help decipher the potential and the shortcomings of European citizenship.
The peculiar logics of the European Union pose, as a condition of generalized free
movement, a more autonomous citizenship armed against the obstacles of residence
and empowered in front of state resistance. Additionally, citizenship and movement
are a promising joint venture, likely to play an active role in the still uncertain future
of European integration. Waiting for further emancipation of European citizenship,
the outcome of this alliance, in terms of enhanced opportunities, will playa role, in
favor of European citizens' increasing perception of belonging to Europe.

12 Colum. J. Eur. L. 713

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12 Colum. J. Eur. L. 713

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CITIZENSHIP AND FREE MOVEMENT:

EUROPEAN AND AMERICAN FEATURES OF A

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