author: Mr. Justice Blackmun Mr. Justice Stevens,

text:
    MATHEWS, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. LUCAS et al.
    No. 75-88.
    Argued January 13, 1976
    Decided June 29, 1976

      Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 516.

      Deputy Solicitor General Jones argued the cause for appellant. On the brief were Solicitor General Bork, Assistant Attorney General Lee, and William Kanter.

      C. Christopher Brown argued the cause for appellees. On the brief was Thomas W. Pearlman.

   Mr. Justice Blackmun

delivered the opinion of the Court.

This case presents the issue of the constitutionality, under the Due Process Clause of the Fifth Amendment, of those provisions of the Social Security Act that condition the eligibility of certain illegitimate children for a surviving child’s insurance benefits upon a showing that the deceased wage earner was the claimant child’s parent and, at the time of his death, was living with the child or was contributing to his support.

I

Robert Cuffee, now deceased, lived with Belmira Lucas during the years 1948 through 1966, but they were never married. Two children were born to them during these years: Ruby M. Lucas, in 1953, and Darin E. Lucas, in 1960. In 1966 Cuffee and Lucas separated. Cuffee died in Providence, R. I., his home, in 1968. He died without ever having acknowledged in writing his paternity of either Ruby or Darin, and it was never determined in any judicial proceeding during his lifetime that he was the father of either child. After Cuffee’s death, Mrs. Lucas filed an application on behalf of Ruby and Darin for surviving children’s benefits under i 202 (d)(1) of the Social Security Act, 70 Stat. 807, as amended, 42 U. S. C. § 402 (d)(1) (1970 ed. and Supp. IV), based upon Cuffee’s earnings record.

II

In operative terms, the Act provides that an unmarried son or daughter of an individual, who died fully or currently insured under the Act, may apply for and be entitled to a survivor’s benefit, if the applicant is under 18 years of age at the time of application (or is a full-time student and under 22 years of age) and was dependent, within the meaning of the statute, at the time of the parent’s death. A child is' considered dependent for this purpose if the insured father was living with or contributing to the child’s support at the time of death. Certain children, however, are relieved of the burden of such individualized proof of dependency. Unless the child has been adopted by some other individual, a child who is legitimate, or a child who would be entitled to inherit personal property from the insured parent’s estate under the applicable state intestacy law, is considered to have been dependent at the time of the parent’s death. Even lacking this relationship under state law, a child, unless adopted by some other individual, is entitled to a presumption of dependency if the decedent, before death, (a) had gone through a marriage ceremony with the other parent, resulting in a purported marriage between them which, but for a nonobvious legal defect, would have been valid, or (b) in writing had acknowledged the child to be his, or (c) had been decreed by a court to be the child’s father, or (d) had been ordered by a court to support the child because the child was his.

An. Examiner of the Social Security Administration, after hearings, determined that while Cuffee’s paternity was established, the children had failed to demonstrate their dependency by proof that Cuffee either lived with them or was contributing to their support at the time of his death, or by any of the statutory presumptions of dependency, and thus that they were not entitled to sur-vivorship benefits under the Act. The Appeals Council of the Social Security Administration affirmed these rulings, and they became the final decision of the Secretary of Health, Education, and Welfare. Lucas then timely filed this action, pursuant to § 205 (g) of the Act, 42 U. S. C. §405 (g), in the United States District Court for-the District of Rhode Island on behalf of the two children (hereinafter sometimes called the appellees) for review of the Secretary's decision.

The District Court ultimately affirmed each of the factual findings of the administrative agency: that Robert Cuffee was the children’s father; that he never acknowledged his paternity in writing; that his paternity or support obligations had not been the subject of a judicial proceeding during his lifetime; that no common-law marriage had ever been contracted between Cuffee and Lucas, so that the children could not inherit Cuffee’s personal property under the intestacy law of Rhode Island; and that, at the time of his death, he was neither living with the children nor contributing to their support. 390 F. Supp. 1310, 1312-1314 (1975). None of these factual matters is at issue here.

A motion for summary judgment, filed by the appel-lees, relied on Jimenez v. Weinberger, 417 U. S. 628 (1974). It was urged that denial of benefits in this case, where paternity was clear, violated the Fifth Amendment’s Due Process Clause, as that provision comprehends the principle of equal protection of the laws, because other children, including all legitimate children, are statutorily entitled, as the Lucas children are not, to survivorship benefits regardless of actual dependency. Addressing this issue, the District Court ruled that the statutory classifications were constitutionally impermissible. 390 F. Supp., at 1314-1321. Recognizing that the web of statutory provisions regarding presumptive dependency was overinclusive because it entitled some children, who were not actually dependent, to survivorship benefits under the Act — although not underinclusive, since no otherwise eligible child who could establish actual dependency at the time of death was denied such benefits — the court concluded that the Act was not intended merely to replace actual support that a child lost through the death of the insured parent. Id., at 1319-1320. Rather, the court characterized the statute as one designed to replace obligations of support or potential support lost through death, where the obligation was perceived by Congress, on the basis of the responsibility of the relation between the child’s parents, to be a valid one. Thus, the court concluded:

“[The Act] conditions eligibility on the basis of Congress’ views as to who is entitled to support and reflects society’s view that legitimate and ‘legitimated’ children are more entitled to support by or through a parent than are illegitimate children. But this is not a legitimate governmental interest, and thus cannot support the challenged classification. Gomez v. Perez, [409 U. S. 535 (1973)].” Id., at 1320. (Emphasis in original.)

With this conclusion, the District Court reversed the administrative decision and ordered the Secretary to pay benefits for both children. Jurisdictional Statement 28a.

The Secretary appealed directly to this Court. 28 U. S. C. § 1252. We noted probable jurisdiction and set the case for argument with Norton v. Mathews, post, p. 524. 423 U.S. 819 (1975).

Ill

The Secretary does not disagree that the Lucas children and others similarly circumstanced are treated differently, as a class, from those children — legitimate and illegitimate — who are relieved by statutory presumption of any requirement of proving actual dependency at the time of death through cohabitation or contribution: for children in the advantaged classes may be statutorily entitled to benefits even if they have never been dependent upon the father through whom they claim. Statutory classifications, of course, are not per se unconstitutional; the matter depends upon the character of the discrimination and its relation to legitimate legislative aims. “The essential inquiry . . . is . . . inevitably a dual one: What legitimate [governmental] interest does the classification promote? What fundamental personal rights might the classification endanger?” Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 173 (1972).

Although the District Court concluded that close judicial scrutiny of the statute's classifications was not necessary to its conclusion invalidating those classifications, it also concluded that legislation treating legitimate and illegitimate offspring differently is constitutionally suspect, 390 F. Supp., at 1318-1319, and requires the judicial scrutiny traditionally devoted to cases involving discrimination along lines of race or national origin. Appellees echo this approach. We disagree.

It is true, of course, that the legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears no relation to the individual’s ability to participate in and contribute to society. The Court recognized in Weber that visiting condemnation upon the child in order to express society’s disapproval of the parents’ liaisons

“is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent.” 406 U. S., at 175. (Footnote omitted.)

But where the law is arbitrary in such a way, we have had no difficulty in finding the discrimination impermissible on less demanding standards than those advocated here. New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 (1973); Richardson v. Davis, 409 U. S. 1069 (1972); Richardson v. Griffin, 409 U. S. 1069 (1972); Weber, supra; Levy v. Louisiana, 391 U. S. 68 (1968). And such irrationality in some classifications does not in itself demonstrate that other, possibly rational, distinctions made in part on the basis of legitimacy are inherently untenable. Moreover, while the law has long placed the illegitimate child in an inferior position relative to the legitimate in certain circumstances, particularly in regard to obligations of support or other aspects of family law, see generally, e. g., H. Krause, Illegitimacy: Law and Social Policy 21-A2 (1971); Gray & Rudovsky, The Court Acknowledges the Illegitimate: Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., 118 U. Pa. L. Rev. 1, 19-38 (1969), perhaps in part because the roots of the discrimination rest in the conduct of the parents rather than the child, and perhaps in part because illegitimacy does not carry an obvious badge, as race or sex do, this discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes. See Frontiero v. Richardson, 411 U. S. 677, 684-686 (1973) (plurality opinion).

We therefore adhere to our earlier view, see Labine v. Vincent, 401 U. S. 532 (1971), that the Act’s discrimination between individuals on the basis of their legitimacy does not “command extraordinary protection from the majoritarian political process,” San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 28 (1973), which our most exacting scrutiny would entail. See Jimenez, 417 U. S., at 631-634, 636; Weber, 406 U. S., at 173, 175-176.

IV

Relying on Weber, the Court, in Gomez v. Perez, 409 U. S. 535, 538 (1973), held that “once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother.” The same principle, which we adhere to now, applies when the judicially enforceable right to needed support lies against the Government rather than a natural father. See New Jersey Welfare Rights Org. v. Cahill, supra.

Consistent with our decisions, the Secretary explains the design of the statutory scheme assailed here as a program to provide for all children of deceased insureds who can demonstrate their “need” in terms of dependency at the times of the insureds’ deaths. Cf. Jimenez, 417 U. S., at 634. He authenticates this description by reference to the explicit language of the Act specifying that the applicant child’s classification as legitimate, or acknowledged, etc., is ultimately relevant only to the determination of dependency, and by reference to legislative history indicating that the statute was not a general welfare provision for legitimate or otherwise “approved” children of deceased insureds, but was intended just “to replace the support lost by a child when his father . . . dies . . . .” S. Rep. No. 404, 89th Cong., 1st Sess., 110 (1965).

Taking this explanation at face value, we think it clear that conditioning entitlement upon dependency at the time of death is not impermissibly discriminatory in providing only for those children for whom the loss of the parent is an immediate source of the need. Cf. Geduldig v. Aiello, 417 U. S. 484, 492-497 (1974); Jefferson v. Hackney, 406 U. S. 535 (1972); Richardson v. Belcher, 404 U. S. 78 (1971). See also Weber, 406 U. S., at 174-175.

But appellees contend that the actual design of the statute belies the Secretary’s description, and that the statute was intended to provide support for insured decedents’ children generally, if they had a “legitimate” claim to support, without regard to actual dependency at death; in any case, they assert, the statute’s matrix of classifications bears no adequate relationship to actual dependency at death. Since such dependency does not justify the statute’s discriminations, appellees argue, those classifications must fall under Gomez v. Perez, supra. These assertions are in effect one and the same. The basis for appellees’ argument is the obvious fact that each, of the presumptions of dependency renders the class of benefit-recipients incrementally overinclusive, in the sense that some children within each class of presumptive dependents are automatically entitled to benefits under the statute although they could not in fact prove their economic dependence upon insured wage earners at the time of death. We conclude that the statutory classifications are permissible, however, because they are reasonably related to the likelihood of dependency at death.

A

Congress’ purpose in adopting the statutory presumptions of dependency was obviously to serve administrative convenience. While Congress was unwilling to assume that every child of a deceased insured was dependent at the time of death, by presuming dependency on the basis of relatively readily documented facts, such as legitimate birth, or existence of a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency, Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment, so long as that lack of precise equivalence does not exceed the bounds of substan-tiality tolerated by the applicable level of scrutiny. See Weinberger v. Salfi, 422 U. S. 749, 772 (1975).

In cases of strictest scrutiny, such approximations must be supported at least by a showing that the Govem-merit’s dollar “lost” to overincluded benefit recipients is returned by a dollar “saved” in administrative expense avoided. Frontiero v. Richardson, 411 U. S., at 689 (plurality opinion). Under the standard of review appropriate here, however, the materiality of the relation between the statutory classifications and the likelihood of dependency they assertedly reflect need not be “ 'scientifically substantiated.’ ” James v. Strange, 407 U. S. 128, 133 (1972), quoting Roth v. United States, 354 U. S. 476, 501 (1957) (opinion of Harlan, J.). Nor, in any case, do we believe that Congress is required in this realm of less than strictest scrutiny to weigh the burdens of administrative inquiry solely in terms of dollars ultimately “spent,” ignoring the relative amounts devoted to administrative rather than welfare uses. Cf. Weinberger v. Salfi, 422 U. S., at 784. Finally, while the scrutiny by which their showing is to be judged is not a toothless one, e. g., Jimenez v. Weinberger, 417 U. S. 628 (1974); Frontiero v. Richardson, 411 U. S., at 691 (Stewaet, J., concurring in judgment, Powell, J., concurring in judgment); Reed v. Reed, 404 U. S. 71 (1971), the burden remains upon the appellees to demonstrate the insubstantiality of that relation. See Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78-79 (1911); cf. United States v. Gainey, 380 U. S. 63, 67 (1965).

B

Applying these principles, we think that the statutory classifications challenged here are justified as reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child’s dependency at the time of the parent’s death. To begin with, we note that the statutory scheme is significantly different from the provisions confronted in cases in which the Court has invalidated legislative discriminations among children on the basis of legitimacy. See Gomez v. Perez, 409 U. S. 535 (1973); New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S. 68 (1968). These differences render those cases of little assistance to appellees. It could not have been fairly argued, with respect to any of the statutes struck down in those cases, that the legitimacy of the child was simply taken as an indication of dependency, or of some other valid ground of qualification. Under all but one of the statutes, not only was the legitimate child automatically entitled to benefits, but an illegitimate child was denied benefits solely and finally on the basis of illegitimacy, and regardless of any demonstration of dependency or other legitimate factor. See also Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff’d, 409 U. S. 1069 (1972); Davis v. Richardson, 342 F. Supp. 588 (Conn.), summarily aff’d, 409 U. S. 1069 (1972). In Weber v. Aetna Casualty & Surety Co., supra, the sole partial exception, the statutory scheme provided for a child’s equal recovery under a workmen’s compensation plan in the event of the death of the father, not only if the child was dependent, but also only if the dependent child was legitimate. 406 U. S., at 173-174, and n. 12. Jimenez v. Weinberger, supra, invalidating discrimination among afterbom illegitimate children as to entitlement to a child’s disability benefits under the Social Security Act, is similarly distinguishable. Under the somewhat related statutory matrix considered there, legitimate children and those capable of inheriting personal property under state intestacy law, and those illegitimate solely on account of a nonobvious defect in their parents’ marriage, were eligible for benefits, even if they were born after the onset of the father’s disability. Other (illegitimate) afterborn children were conclusively denied any benefits, regardless of any showing of dependency. The Court held the discrimination among illegitimate afterborn children impermissible, rejecting the Secretary’s claim that the classification was based upon considerations regarding trustworthy proof of dependency, because it could not accept the assertion:

“[T]he blanket and conclusive exclusion of appellants’ subclass of illegitimates is reasonably related to the prevention of spurious claims [of dependency] . Assuming that the appellants are in fact dependent on the claimant [father], it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits.” 417 U. S., at 636.

Hence, it was held that

“to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment.” Id., at 637.

See also Weinberger v. Wiesenfeld, 420 U. S. 636, 645 (1975); cf. Labine v. Vincent, 401 U. S., at 539. But this conclusiveness in denying benefits to some classes of afterborn illegitimate children, which belied the asserted legislative reliance on dependency in Jimenez, is absent here, for, as we have noted, any otherwise eligible child may qualify for survivorship benefits by showing contribution to support, or cohabitation, at the time of death. Cf. Vlandis v. Kline, 412 U. S. 441, 452-453, n. 9 (1973), distinguishing Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), summarily aff’d, 401 U. S. 985 (1971).

It is, of course, not enough simply that any child of a deceased insured is eligible for benefits upon some showing of dependency. In Frontiero v. Richardson, supra, we found it impermissible to qualify the entitlement to dependent’s benefits of a married woman in the uniformed services upon an individualized showing of her husband’s actual dependence upon her for more than half his income, when no such showing of actual dependency was required of a married man in the uniformed services to obtain dependent’s benefits on account of his wife. The invalidity of that gender-based discrimination rested upon the “overbroad” assumption, Schlesinger v. Ballard, 419 U. S. 498, 508 (1975), underlying the discrimination “that male workers’ earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families’ support.” Weinberger v. Wiesenfeld, 420 U. S., at 643; see Frontiero, 411 U. S., at 689 n. 23. Here, by contrast, the statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations. The presumption of dependency is withheld only in the absence of any significant indication of the likelihood of actual dependency. Moreover, we cannot say that the factors that give rise to a presumption of dependency lack any substantial relation to the likelihood of actual dependency. Rather, we agree with the assessment of the three-judge court as it originally ruled in Norton v. Weinberger, 364 F. Supp. 1117, 1128 (Md. 1973):

“[I]t is clearly rational to presume the overwhelming number of legitimate children are actually dependent upon their parents for support. Likewise . . . the children of an invalid marriage . . . would typically live in the wage earner's home or be supported by him. . . . When an order of support is entered by a court, it is reasonable to assume compliance occurred. A paternity decree, while not necessarily ordering support, would almost as strongly suggest support was subsequently obtained. Conceding that a written acknowledgment lacks the imprimatur of a judicial proceeding, it too establishes the basis for a rational presumption. Men do not customarily affirm in writing their responsibility for an illegitimate child unless the child is theirs and a man who has acknowledged a child is more likely to provide it support than one who does not.”

Similarly, we think, where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life and at his death. For in its embodiment of the popular view within the jurisdiction of how a parent would have his property devolve among his children in the event of death, without specific directions, such legislation also reflects to some degree the popular conception within the jurisdiction of the felt parental obligation to such an “illegitimate” child in other circumstances, and thus something of the likelihood of actual parental support during, as well as after, life. Accord, Watts v. Veneman, 155 U. S. App. D. C. 84, 88, 476 F. 2d 529, 533 (1973).

To be sure, none of these statutory criteria compels the extension of a presumption of dependency. But the constitutional question is not whether such a presumption is required, but whether it is permitted. Nor, in ratifying these statutory classifications, is our role to hypothesize independently on the desirability or feasibility of any possible alternative basis for presumption. These matters of practical judgment and empirical calculation are for Congress. Drawing upon its own practical experience, Congress has tailored statutory classifications in accord with its calculations of the likelihood of actual support suggested by a narrow set of objective and apparently reasonable indicators. Our role is simply to determine whether Congress’ assumptions are so inconsistent or insubstantial as not to be reasonably supportive of its conclusions that individualized factual inquiry in order to isolate each nondependent child in a given class of cases is unwarranted as an administrative exercise. In the end, the precise accuracy of Congress’ calculations is not a matter of specialized judicial competence; and we have no basis to question their detail beyond the evident consistency and substan-tiality. Cf. United States v. Gainey, 380 U. S., at 67. We cannot say that these expectations are unfounded, or so indiscriminate as to render the statute’s classifications baseless. We conclude, in short, that, in failing to extend any presumption of dependency to appellees and others like them, the Act does not imper-missibly discriminate against them as compared with legitimate children or those illegitimate children who are statutorily deemed dependent.

Reversed.

Mr. Justice Stevens,

with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

The reason why the United States Government should not add to the burdens that illegitimate children inevitably acquire at birth is radiantly clear: We are committed to the proposition that all persons are created equal. The Court’s reason for approving discrimination against this class — “administrative convenience” — is opaque and insufficient: opaque because the difference between this justification and the argument rejected in Jimenez v. Weinberger, 417 U. S. 628, is so difficult to discern; insufficient because it unfairly evaluates the competing interests at stake.

I

Jimenez involved a requirement that the wage earner must have contributed to the support of his illegitimate child prior to the onset of his disability; this case involves the requirement that the deceased wage earner was contributing to the support of his illegitimate child at the time of his death. The critical objections to the classification held invalid in Jimenez apply with equal force in this case.

The classification in Jimenez was “overinclusive” because it conclusively presumed that all legitimates and some illegitimates were dependent on the disabled wage earner when many such persons were not in fact dependent. Since legitimate as well as illegitimate children are sometimes abandoned by their father before his death, precisely the same objection applies to this statutory classification. Moreover, the Jimenez classification was “underinclusive” because it conclusively excluded some illegitimates who were in fact dependent on the wage earner. In this ease the two appellee children were conclusively excluded from the class of eligibles even though they had been supported by their father for 15 years and eight years respectively. If the underinclu-siveness of the Jimenez classification was arbitrary, this classification is even more objectionable because it attaches greater weight to support at a particular moment in time than to support of several years’ duration.

In Jimenez the Secretary told the Court that the classification was “designed only to prevent spurious claims.” Id., at 633. The Court held that objective insufficient to justify “the blanket and conclusive exclusion” of a subclass of illegitimates. Id., at 636. The statute has not changed but now we are told that the justification for a similar blanket and conclusive exclusion is “administrative convenience.” I suggest that this is merely a different name for the same federal interest. For the statutory classification will not affect the processing of claims in any way except by substituting a mechanical test of dependency for the kind of inquiry that would otherwise be required to differentiate between the spurious and the genuine.

I am unable to identify a relevant difference between Jimenez and this case.

II

The Court recognizes “that the legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears no relation to the individual’s ability to participate in and contribute to society.” Ante, at 505. For that reason, as the Court also recognizes, “ ‘imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.’ ” Ibid. Thus the Court starts its analysis from the premise that the statutory classification is both “ 'illogical and unjust.’ ” Ibid. It seems rather plain to me that this premise demands a conclusion that the classification is invalid unless it is justified by a weightier governmental interest than merely “administrative convenience.”

The Court has characterized the purpose of the statute as providing benefits not for those individuals who had a legitimate claim to support from the deceased wage earner but rather for those who were actually dependent on the wage earner at the time of his death. In this analysis, the provisions of the statute which allow certain classes — such as legitimate children — to receive benefits without showing actual dependency are no more than statutory presumptions in aid of administrative convenience. This is an appropriate reading of the statute.

The Court goes on, however, to hold that such presumptions in aid of “administrative convenience” are permissible so long as the lack of precise equivalence between the fact giving rise to the presumption and the fact presumed “does not exceed the bounds of substan-tiality tolerated by the applicable level of scrutiny,” ante, at 509. The opinion tells us very little, however, about the “applicable level of scrutiny.” It is not “our most exacting scrutiny,” ante, at 506; on the other hand, if the classification derives “possibly rational” support from another source, it is not “inherently untenable” simply because it rests in part on illegitimacy. Ante, at 505. I believe an admittedly illogical and unjust re-suit should not be accepted without both a better explanation and also something more than a “possibly rational” basis.

The Court has repeatedly held that distinctions which disfavor illegitimates simply because they are illegitimate are invalid. Gomez v. Perez, 409 U. S. 535; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164. However irrational it may be to burden innocent children because their parents did not marry, illegitimates are nonetheless a traditionally disfavored class in our society. Because of that tradition of disfavor the Court should be especially vigilant in examining any classification which involves illegitimacy. For a traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification. Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship'— other than pure prejudicial discrimination — to the stated purpose for which the classification is being made.

In this case, the “true” classification, according to the Court, is one between children dependent on their fathers and children who are not so dependent. All of the subsidiary classifications (which have the actual effect of allowing certain children to be eligible for benefits regardless of actual dependency) are supposedly justified by the increased convenience for the agency in not being required in every case to determine dependency. But do these classifications actually bear any substantial relationship to the fact of dependency?

In this statute, one or another of the criteria giving rise to a “presumption of dependency” exists to make almost all children of deceased wage earners eligible. If a child is legitimate, he qualifies. If the child is illegitimate only because of a nonobvious defect in his parents’ marriage, he qualifies. If a court has declared his father to be in fact his father, or has issued an order of support against his father, or if the father has acknowledged the child in writing, he qualifies. Apart from any of these qualifications, if the child is lucky enough to live in a State which allows him to inherit from his intestate father on a par with other children, he also qualifies. And in none of these situations need he allege, much less prove, actual dependency. Indeed, if the contrary fact is undisputed, he is nevertheless qualified.

The Court today attempts, at some length, to- explain that each of these factors is rationally and substantially related to the actual fact of dependency, adopting even the somewhat tenuous rationalization of the District Court that “ ‘[m]en do not customarily affirm in writing their responsibility for an illegitimate child unless the child is theirs and a man who has acknowledged a child is more likely to provide it support than one who does not/ ” ante, at 514, without also noting that a man who lives with a woman for 18 years, during which two children are born, who has always orally acknowledged that the children are his, and who has lived with the children and supported them, may never perceive a need to make a formal written acknowledgment of paternity. Even more tenuous is the asserted relationship between the status of the illegitimate under state intestacy law and actual dependency. The Court asserts that “in its embodiment of the popular view within the jurisdiction of how a parent would have his property devolve among his children in the event of death, without specific directions, such legislation also reflects to some degree the popular conception within the jurisdiction of the felt parental obligation to such an ‘illegitimate’ child in other circumstances, and thus something of the likelihood of actual parental support during, as well as after, life.” Ante, at 514-515. That nebulous inference upon inference is treated as more acceptable evidence of actual dependency than proof of actual support for many years.

Whether the classification is expressed in terms of eligible classes or in terms of presumptions of dependency, the fact remains that legitimacy, written acknowledgments, or state law make eligible many children who are no more likely to be “dependent” than are the children in appellees’ situation. Yet in the name of “administrative convenience” the Court allows these survivors’ benefits to be allocated on grounds which have only the most tenuous connection to the supposedly controlling factor — the child’s dependency on his father.

I am persuaded that the classification which is sustained today in the name of “administrative convenience” is more probably the product of a tradition of thinking of illegitimates as less deserving persons than legitimates. The sovereign should firmly reject that tradition. The fact that illegitimacy is not as apparent to the observer as sex or race does not make this governmental classification any less odious. It cannot be denied that it is a source of social opprobrium, even if wholly unmerited, or that it is a circumstance for which the individual has no responsibility whatsoever.

A fair evaluation of the competing interests at stake in this litigation requires affirmance of the judgment of the District Court.

I respectfully dissent.

       Section 202 (d)(1) of the Act, as set forth in 42 U. S. C. § 402 (d) (1), provides in pertinent part:
      “Every child (as defined in section 416 (e) of this title) ... of an individual who dies a fully or currently insured individual, if such child—
      “ (A) has filed application for child’s insurance benefits,
      “(B) at the time such application was filed was unmarried and (i) either had not attained the age of 18 or was a full-time student and had not attained the age of 22 .. . and
      “(C) was dependent upon such individual—
      “(ii) if such individual has died, at the time of such death, . . .
      “shall be entitled to a child’s insurance benefit for each month, beginning with the first month after August 1950 in which such child becomes so entitled to such insurance benefits . . . .”
      Section 216 (e), 42 U. S. C. §416 (e), includes, under the definition of child, inter alia, “the child ... of an individual,” certain legally adopted children, certain stepchildren, and certain grandchildren and stepgrandehildren. Additionally, § 216 (h) (2) (A) of the Act, 42 U. S. C. § 416 (h) (2) (A), provides:
      “In determining whether an applicant is the child ... of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property ... by the courts of the State in which [such insured individual] was domiciled at the time of his death .... Applicants who according to such law would have the same status relative to talcing intestate personal property as a child . . . shall be deemed such.”

       Section 202 (d)(3) of the Act, 42 U. S. C. §402 (d)(3), provides in pertinent part:
      “A child shall be deemed dependent upon his father or adopting father or his mother or adopting mother at the time specified in paragraph (1) (C) of this subsection unless, at such time, such individual was not living with or contributing to the support of such child and—
      “(A) such child is neither the legitimate nor adopted child of such individual, or
      “(B) such child has been adopted by some other individual.”
      Additionally, any child who qualifies under §216 (h)(2)(A), see n. 1, supra, is considered legitimate for § 202 (d) (3) purposes, and thus dependent.

       Section 202 (d)(3), as set forth in 42 U. S. C. §402 (d)(3), provides in pertinent part that “a child deemed to be a child of a fully or currently insured individual pursuant to section 416 (h) (2) (B) or section 416 (h) (3) . . . shall be deemed to be the legitimate child of such individual,” and therefore presumptively dependent. Section 216 (h) (2) (B), as set forth in 42 U. S. C. §416 (h)(2)(B), provides:
      “If an applicant is a son or daughter of a fully or currently insured individual but is not (and is not deemed to be) the child of such insured individual under subparagraph (A), such applicant shall nevertheless be deemed to be the child of such insured individual if such insured individual and the mother or father, as the case maybe, of such applicant went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment described in the last sentence of paragraph (1)(B), would have been a valid marriage.”
      The specified last sentence of §216 (h)(1)(B), 42 U. S. C. §416 (h)(1) (B), in turn, refers only to
      "an impediment (i) resulting from the lack of dissolution of a previous marriage or otherwise arising out of such previous marriage or its dissolution, or (ii) resulting from a defect in the procedure followed in connection with such purported marriage.”
      Section 216(h)(3), as set forth in 42 U. S. C. §416 (h)(3), provides:
      "An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) of this subsection, shall nevertheless be deemed to be the child of such insured individual if:
      “(C) In the case of a deceased individual—
      "(i) such insured individual—
      “(I) had acknowledged in writing that the applicant is his son or daughter,
      “(II) had been decreed by a court to be the father of the applicant, or
      “(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter, “and such acknowledgment, court decree, or court order was made before the death of such individual, or
      “(ii) such insured individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.”

       Upon the original petition for review under §205 (g), the District Court affirmed the administrative findings that had then been made, but remanded the case to the Secretary for him to determine the common-law status of the relationship between the children’s parents, a question left unconsidered in the first administrative proceeding. After an adverse determination on this point and an unsuccessful administrative appeal, Lucas, on behalf of the children, again timely sought review in the District Court, presenting the common-law marriage question and asserting a constitutional challenge to the Act. The District Court affirmed the administrative conclusion of no common-law marriage, and then turned to the constitutional questions that are the subject of this appeal.

       See, e. g., Jimenez v. Weinberger, 417 U. S., at 637; United States Dept. of Agriculture v. Moreno, 413 U. S. 528, 533 n. 5 (1973); Frontiero v. Richardson, 411 U. S. 677, 680 n. 5 (1973) (plurality opinion).

       The District Court affirmed the Secretary’s factual findings in a “Memorandum and Order” entered August 30, 1974, Viewing the constitutional claim as one requiring the convention of a three-judge district court under 28 U. S. C. §§ 2282 and 2284, the single District Judge did not reach that issue. A three-judge District Court was convened, but disbanded when appellees’ renewed motion for summary judgment omitted their earlier request for in-junctive relief. The constitutional claim thus was correctly determined by a single District Judge.

       It adds nothing to say that the illegitimate child is also saddled with the procedural burden of proving entitlement on the basis of facts the legitimate child need not prove. The legitimate child is required, like the illegitimate, to prove the facts upon which his statutory entitlement rests.

       Appellees do not suggest, nor could they successfully, that strict judicial scrutiny of the statutory classifications is required here because, in regulating entitlement to survivorship benefits, the statute discriminatorily interferes with interests of constitutional fundamentally. Weinberger v. Salfi, 422 U. S. 749, 768-770 (1975); Dandridge v. Williams, 397 U. S. 471 (1970).
      The Court, of course, has found the privacy of familial relationships to be entitled to procedural due process protections from disruption by the State, whether or not those relationships were legitimized by marriage under state law. Stanley v. Illinois, 405 U. S. 645 (1972). But the concerns relevant to that context are only tangential to the analysis here, since the statutory scheme does not interfere in any way with familial relations.

       See Loving v. Virginia, 388 U. S. 1, 11 (1967); Bolling v. Sharpe, 347 U. S. 497 (1954).

       See Oyama v. California, 332 U. S. 633, 644-646 (1948); Korematsu v. United States, 323 U. S. 214, 216 (1944); Hirabayashi v. United States, 320 U. S. 81, 100 (1943).

       That the statutory classifications challenged here discriminate among illegitimate children does not mean, of course, that they are not also properly described as discriminating between legitimate and illegitimate children. See Frontiero v. Richardson, supra; cf. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 169, 172 (1972). In view of our conclusion regarding the applicable standard of judicial scrutiny, we need not consider how the classes of legitimate and illegitimate children would be constitutionally defined under appellees’ approach.

       The significance of this consideration would seem to be suggested by provisions enabling the parents to legitimatize children born illegitimate. Compare Weber, 406 U. S., at 170-171, with Labine v. Vincent, 401 U. S. 532, 539 (1971). Of course, the status of “dependency” as recognized by the statute here is wholly within the control of the parent.

       In Rodriguez the Court identified a “suspect class” entitled to the protections of strict judicial scrutiny as one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” 411 U. S., at 28.

       We are not bound to agree with the Secretary’s description of the legislative design if the legislative history and the structure of the provisions themselves belie it. Weinberger v. Wiesenfeld, 420 U. S. 636, 648 n. 16 (1975) ; Jimenez v. Weinberger, 417 U. S., at 634. Appellees are unable, however, to summon any meaningful legislative history to support their position regarding the congressional design. They rely largely upon a section of the House-Senate Conference Committee Report on the 1965 Amendments to the Social Security Act, reproduced at 111 Cong. Rec. 18383 (1965), partially explaining, id., at 18387, the addition of §216 (h)(3), set forth in n. 3, supra, to the Act:

        “A child would be paid benefits based on his father’s earnings without regard to whether he has the status of a child under State inheritance laws if the father was supporting the child or had a legal obligation to do so.”
      But the clause’s reference to legal obligations to support hardly establishes that the statute was designed to replace any potential source of lifetime support; in our view the passage appears only to be a partial description of the actual effect of §§ 416 (h) (3) (C) (i) (II) and (III), set forth in n. 3, supra, not an enunciation of the general purpose of the Act.
      Thus, appellees, in order to make their case, must ultimately rely upon the asserted failure of the legislative product adequately to fit the purported legitimate aim.

       That these provisions may thus reflect a “secondary” purpose of Congress is, of course, of no moment. McGinnis v. Royster, 410 U. S. 263, 274-277 (1973).

       Vacated and remanded for further proceedings in light of Jimenez, 418 U. S. 902 (1972); adhered to on remand, 390 F. Supp. 1084 (1975); aff'd sub nom. Norton v. Mathews, post, p. 524.

       The Secretary, pointing out that §202 (d)(3), as set forth in 42 U. S. C. §402 (d)(3), in specific terms provides only that "a child deemed to be a child of a fully or currently insured individual pursuant to section 416 (h) (2) (B) or section 416 (h) (3) . . . shall be deemed to be the legitimate child of such individual,” urges that we misconstrued the statute in Jimenez, 417 U. S., at 631 n. 2, in concluding that an applicant qualifying as a child under § 216 (h) (2) (A) is to be considered as a legitimate child and therefore dependent under § 202 (d) (3). We have no question, however, as to the correctness of that conclusion. First, it is only through operation of § 216 (h) (2) (A) that the recognition of “legitimacy” by state law under § 202 (d) (3) (A) as giving rise to a presumption of dependency takes on a consistent operational meaning. Second, §§ 216 (h) (2) (B) and (3) specifically exclude any child qualified under § 216 (h) (2) (A); if a § 216 (h) (2) (A) child were not considered legitimate under §202 (d)(3), this would have the anomalous effect that an illegitimate child who had been acknowledged in a written statement by the insured father, for example, would be deprived of otherwise established eligibility for benefits, see § 216 (h) (3) (C) (i) (I), if under applicable state law such an acknowledgment worked to make the child an intestate heir. Moreover, the legislative history is clear that the Social Security Amendments of 1960, Pub. L. 86-778, 74 Stat. 924, §§ 208 (b) and (d), 42 U. S. G. § 408 (b) and (d), adding § 216 (h) (2) (B) to the Act and inserting the provision in § 202 (d) (3) specifying that a § 216 (h) (2) (B) child shall be deemed to be a legitimate, and therefore dependent, child for death benefit purposes, were intended to have the effect of deeming any § 216 (h) (2) child “legitimate” and thus “dependent.” See S. Rep. No. 1856, 86th Cong., 2d Sess., 78-79, 133 (1960) (discussing §§ 207 (b) and (d)); H. R. Rep. No. 1799, 86th Cong., 2d Sess., 91-92, 152 (1960).

       Appellees do not suggest, and we are unwilling to assume, that discrimination against children in appellees’ class in state intestacy laws is constitutionally prohibited, see Labine v. Vincent, 401 U. S. 532 (1971), in which case appellees would be made eligible for benefits under § 216 (h) (2) (A).

       “Even if children might rationally be classified on the basis of whether they are dependent upon their disabled parent, the Act’s definition of these two subclasses of illegitimates is ‘overinclusive’ in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is ‘underinclusive’ in that it conclusively excludes some illegitimates in appellants’ subclass who are, in fact, dependent upon their disabled parent. Thus, for all that is shown in this record, the two subclasses of illegitimates stand on equal footing, and the potential for spurious claims is the same as to both; hence to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment.” 417 U. S., at 637.

       There are other survivors who receive benefits only if they show dependency, e. g., parents, 42 U. S. C. § 402 (h), and widowers, 42 U. S. C. § 402(f).

       Such pure discrimination is most certainly not a “legitimate purpose” for our Federal Government, which should be especially sensitive to discrimination on grounds of birth. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U. S. 81, 100. From its inception, the Federal Government has been directed to treat all its citizens as having been “created equal” in the eyes of the law. The Declaration of Independence states:
      “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
      And the rationale behind the prohibition against the grant of any title of nobility by the United States, see U. S. Const., Art. I, § 9, cl. 8, equally would prohibit the United States from attaching any badge of ignobility to a citizen at birth.

       If the relationship between an entitling presumption and the actual fact of dependency is so nebulous that the conclusion can be supported only by resort to a supposed popular conception within a jurisdiction, the classification must either be irrational, or serve a purpose other than the one by which it is assertedly justified.


source: Caselaw Access Project

author: Mr. Justice Blackmun Me. Justice Stevens,

license: Public Domain

text:
    NORTON, A MINOR, BY CHILES v. MATHEWS, SECRETARY OF HEALTH, EDUCATION, AND WELFARE
    No. 74-6212.
    Argued January 13, 1976
    Decided June 29, 1976

      BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 533.

      G. Christopher Brown argued the cause and filed briefs for appellant.

      Deputy Solicitor General Jones argued the cause for appellee. With him on the brief were Solicitor General Bork, Assistant Attorney General Lee, Harriet S. Shapiro, and William Kanter.

        Thomas R. Adams filed a brief for John J. Romero, Jr., as amicus curiae urging reversal.

   Mr. Justice Blackmun

delivered the opinion of the Court.

On the merits, this case raises the same question as to the constitutionality of §§ 202 (d)(3) and 216 (h)(3) (C)(ii) of the Social Security Act, 64 Stat. 484, as amended, and 79 Stat. 410, 42 U. S. C. §§ 402 (d) (3) and 416 (h) (3) (C) (ii), as was presented in Mathews v. Lucas, ante, p. 495. The present litigation, however, also raises certain jurisdictional issues. It now has become apparent that the simultaneous submission of Lucas to the Court, and our decision in that case today, make it unnecessary for us specifically to decide the jurisdictional questions.

I

Appellant Gregory Norton, Jr., was born out of wedlock in February 1964. Both his father and his mother then were high school students, aged, respectively, 16 and 14, who lived separately at home with their parents. The two never married and, indeed, never lived together. Appellant always has resided with his maternal grandmother and has been cared for by her. When Gregory was born, his father contributed six dollars and some clothing and other habiliments for the baby, but, being so young and unemployed, he never assumed appellant’s actual support.

In February 1965 the father entered military service. He was killed in Vietnam on May 19, 1966, at age 19. Before his death, the father apparently took some initial steps (the procurement of a birth certificate and other items) necessary for the processing of a dependent child’s military allotment. The father failed, however, to complete the required procedures before he was killed.

In September 1969 appellant’s maternal grandmother filed on his behalf an application for a surviving child’s benefits under § 202 (d)(1) of the Act, 42 U. S. C. § 402 (d)(1), based on the father’s earnings record. An administrative hearing followed. The Hearing Examiner concluded that appellant was not entitled to benefits as a dependent child because his father, at the time of his death, was neither living with appellant nor contributing to appellant’s support. App. 13-19. The subsequent administrative appeal was no more successful. Id., at 20-21.

The present action was then instituted on behalf of appellant against the Secretary of Health, Education, and Welfare. By the complaint, relief was sought alternatively on statutory and constitutional grounds. First, it was asserted that, by his attempt to secure a military allotment for appellant, the father, at the time of his death, in fact was contributing to appellant's support, within the meaning of § 216 (h) (3) (C) (ii) of the Act, and that appellant therefore was a dependent of the father, under §§ 202 (d)(1) and (3) (1970 ed. and Supp. IV), and entitled to benefits. Second, it was asserted that, by creating a presumption of dependency, and consequent qualification for benefits, for legitimate children generally, and for illegitimate children under certain, circumstances, see n. 1, but denying the presumption to appellant and others similarly situated, the Act discriminated against appellant's class, in violation of the guarantee of equal protection implicit in the Due Process Clause of the Fifth Amendment.

Appellant’s statutory claim was initially considered and rejected by a single District Judge. Norton v. Richardson, 352 F. Supp. 596 (Md. 1972). In view of the complaint's request for certification of a class pursuant to Fed. Rule Civ. Proc. 23 (c)(1), and for classwide injunc-tive relief against the alleged unconstitutional operation of the Act's presumptions of dependency, a three-judge court was convened under 28 U. S. C. §§ 2282 and 2284 (1970 ed. and Supp. IV) to pass upon the constitutional claim. The three-judge court first agreed with, and reaffirmed, the single judge’s rejection of appellant’s statutory claim. Norton v. Weinberger, 364 F. Supp. 1117, 1120 (1973). The court went on to identify the plaintiff class, id., at 1120-1121, but on the merits of the constitutional claim it ruled in favor of the Secretary and granted summary judgment in his favor. Id., at 1121— 1131.

Appellant, taking the position that the three-judge court had denied his request for an order enjoining enforcement of provisions of the Act, lodged a direct appeal here pursuant to 28 U. S. C. § 1253. While his jurisdictional statement was pending, Jimenez v. Weinberger, 417 U. S. 628 (1974), was decided. This Court thereafter vacated the three-judge court’s judgment and remanded the case for further consideration in the light of Jimenez. Norton v. Weinberger, 418 U. S. 902 (1974).

On the remand, the same three-judge court, with one judge now dissenting, adhered to its earlier conclusion in favor of constitutionality. Norton v. Weinberger, 390 F. Supp. 1084 (1975). Appellant has again appealed. We postponed the question of jurisdiction to the hearing of the case on the merits, 422 U. S. 1054 (1975), and, in doing so, cited Weinberger v. Salfi, 422 U. S. 749, 763 n. 8 (1975), which just then had been decided. Subsequently, we set the case for oral argument with Mathews v. Lucas, ante, p. 495. 423 U. S. 819 (1975).

II

The question whether the three-judge court was properly convened upon appellant’s demand for injunctive relief is relevant, of course, to our appellate jurisdiction. If the court was not empowered to enjoin the operation of a federal statute, then three judges were not required to hear the case under 28 U. S. C. § 2282, and this Court has no jurisdiction under 28 U. S. C. § 1253. Accordingly, appellant and the Secretary have debated whether the District Court possessed injunctive power under § 205 (g) of the Act, 42 U. S. C. §405 (g), and whether, in the light of § 205 (h), 42 U. S. C. § 405 (h), relief was available under the mandamus statute, 28 U. S. C. § 1361, or under the Administrative Procedure Act, 5 II. S. C. § 701 et seg.

We think it unnecessary, however, to resolve the details of these difficult and perhaps close jurisdictional arguments. The substantive questions raised on this appeal now have been determined in Mathews v. Lucas, ante, p. 495. This disposition renders the merits in the present case a decided issue and thus one no longer substantial in the jurisdictional sense.

Assuming that the three-judge court was correctly convened, and that we have jurisdiction over the appeal, the appropriate disposition, in the light of Mathews v. Lucas, plainly would be to affirm the judgment entered in this case in favor of the Secretary. Assuming, on the other hand, that we lack jurisdiction because the three-judge court was needlessly convened, the appropriate disposition would be to dismiss the appeal. When an appeal to this Court is sought from an erroneously convened three-judge district court, we retain the power “ ‘to make such corrective order as may be appropriate to the enforcement of the limitations’ ” which 28 U. S. C. § 1253 imposes. Bailey v. Patterson, 369 U. S. 31, 34 (1962), quoting Gully v. Interstate Natural Gas Co., 292 U. S. 16, 18 (1934). What we have done recently, and in most such cases where the jurisdictional issue was previously unsettled — and we do not imply that our doing so is statutorily or otherwise compelled — has been to vacate the district court judgment and remand the case for the entry of a fresh decree from which an appeal may be taken to the appropriate court of appeals. Gonzalez v. Employees Credit Union, 419 U. S. 90, 101 (1974), is an example. In the present case, however, the decision in Lucas has rendered the constitutional issues insubstantial and so much so as not even to support the jurisdiction of a three-judge district court to consider their merits on remand. See, e. g., Hicks v. Miranda, 422 U. S. 332, 343-345 (1975); Hagans v. Lavine, 415 U. S. 528, 536-538 (1974). Thus, there is no point in remanding to enable the merits to be considered by a court of appeals. See McLucas v. DeChamplain, 421 U. S. 21 (1975).

It thus is evident that, whichever disposition we undertake, the effect is the same. It follows that there is no need to decide the theoretical question of jurisdiction in this case. In the past, we similarly have reserved difficult questions of our jurisdiction when the case alternatively could be resolved on the merits in favor of the same party. See Secretary of the Navy v. Avrech, 418 U. S. 676 (1974). The Court has done this even when the original reason for granting certiorari was to resolve the jurisdictional issue. See United States v. Augenblick, 393 U. S. 348, 349-352 (1969). Although such a disposition would not be desirable under all circumstances, we perceive no reason why we may not so proceed in this case where the merits have been rendered plainly insubstantial. Cf. McLucas v. DeChamplain, 421 U. S., at 32. Making the assumption, then, without deciding, that our jurisdiction in this cause is established, we affirm the judgment in favor of the Secretary on the basis of our decision in Mathews v. Lucas, ante, p. 495.

It is so ordered.

Me. Justice Stevens,

with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

In Jimenez v. Weinberger, 417 U. S. 628, this Court held, sub silentio, that a three-judge court was properly-convened in a case raising the same jurisdictional issue this case raises. See Jimenez v. Weinberger, 523 F. 2d 689, 693 n. 5 (CA7 1975).

In 1974 when this Court vacated the judgment of the three-judge court in this case and remanded for further consideration in light of the Jimenez case, Norton v. Weinberger, 418 U. S. 902, the Court again implicitly held that the three-judge court had been properly convened. See ante, at 529 n. 3.

Today the Court enters a judgment of affirmance which it has no power to enter unless the three-judge court was properly convened. For we have no jurisdiction over a direct appeal from a district court order denying an injunction unless a three-judge district court was required. 28 U. S. C. § 1253. Since I believe such a court was required to consider the appellant’s constitutional claim, I am satisfied that we have jurisdiction over this appeal.

The jurisdictional statute, § 205 (g) of the Social Security Act, 42 U. S. C. § 405 (g), authorizes the claimant to commence a “civil action” against the Secretary to obtain review of an adverse decision. In such an action the Secretary is a litigant. If the Secretary’s decision rested on a statutory provision which is challenged as unconstitutional, the District Court has jurisdiction to decide the constitutional issue. Weinberger v. Salfi, 422 U. S. 749, 762, 764. Before this Court raised the question on its own initiative in that opinion, id., at 763 n. 8, this Court, the lower federal courts, and the Secretary himself, had uniformly assumed that if the district court should hold the statute unconstitutional, it could then enter appropriate injunctive relief. I believe this uniform understanding of the meaning of the statute is correct.

The Secretary argues, however, that injunctive relief is superfluous in an action by an individual plaintiff, since he can obtain all the relief to which he is entitled by an order “affirming, modifying, or reversing” the administrative decision. The Secretary also argues that the same reasoning applies to class actions, since an application for benefits by unnamed members of the plaintiff class and a denial of benefits are jurisdictional prerequisites to an action under § 205 (g). Alternatively, the Secretary contends that a plaintiff class will never be proper in. a § 205 (g) action, and in any event, that a plaintiff class could not properly be certified in this case.

Even asuming that equitable relief is unavailable to a plaintiff suing only on his own behalf, the Secretary’s conclusions with respect to class actions in general, and with respect to the present class action in particular, do not follow. Indeed, the Secretary’s argument proves too much. Injunctive relief in a class action is so similar to that expressly authorized by § 205 (g) that Congress could not have intended to allow one but not the other. The Secretary suggests only one distinction between an order reversing or modifying the denial of benefits to the members of a plaintiff class and an injunction requiring payment of benefits to all such persons: if an oficial disobeys an order reversing or modifying a decision of the Secretary, he cannot be held in contempt without issuance of mandamus or injunctive relief compelling compliance with the order; but if he disobeys an injunction, he may be held in contempt immediately. Surely Congress did not intend § 205 (g) to provide reluctant federal officials with a means of delay in the remote eventuality that they might not feel bound by the judgment of a federal court. Assuming a district court may issue classwide relief reversing or modifying a decision of the Secretary, I see no reason why it may not issue injunctive relief of equal breadth and virtually identical effect.

Nor can I accept the Secretary’s argument that a plaintiff class may never be properly certified in a § 205 (g) action or that no class could properly be certified in this case. He contends that since § 205 (g) permits review only of “any final decision of the Secretary made after a hearing to which [the plaintiff] was a party,” it manifests a congressional intent that judicial review proceed only on a case-by-case basis. I fail to see, however, why the need for case-by-case adjudication is not fully satisfied by limiting the plaintiff class to those who have satisfied the prerequisites to an action under § 205 (g). By definition, such persons have been denied relief for failure to meet the statutory requirement under constitutional attack and upon an administrative record sufficiently complete to permit judicial review. Once such persons are identified from their administrative records, relief may be granted expeditiously. Although the plaintiff class in this case was erroneously defined to include persons who did not satisfy the prerequisites for judicial review specified in § 205 (g), the overbreadth of the class did not deprive the District Court of jurisdiction over members of the class properly before it. Nor would it prevent later certification of an appropriate, narrower class. Cf. Jimenez v. Weinberger, 523 F. 2d, at 695.

Accordingly, I would hold that the District Court had power to issue injunctive relief after certification of the plaintiff class and that an appeal from denial of such relief lies under 28 U. S. C. § 1253.

On the merits, I dissent for the reasons stated in my dissenting opinion in Mathews v. Lucas, ante, p. 516. I would reverse the judgment of the District Court.

       Section 202 (d) (1) provides survivorship benefits only to a child who was “dependent” upon the deceased insured parent at the time of the parent’s death. A legitimate child, a child entitled under the intestacy laws of the insured parent’s domicile to inherit personal property from the parent, a child whose illegitimacy results from a formal defect in the parents’ purported marriage ceremony, and a child acknowledged in writing by the insured father as his son or daughter or judicially decreed (during the father’s lifetime) to be such, are all deemed under the Act to be dependent upon the parent, unless the child has been adopted by some other individual, and thus are relieved of otherwise proving actual dependency. §§202 (d)(1), 202 (d)(3), 216(e), 216(h)(2), and 216(h)(3) (C)(i), 42 U. S. C. §§402 (d)(1), 402 (d)(3), 416 (e), 416 (h)(2), and 416 (h) (3) (C) (i) (1970 ed. and Supp. IV). Since appellant did not come within any of these categories, he could establish his status as a dependent child under the Act only by showing that his father lived with him or contributed to his support at the time of his death. §§202 (d)(3) and 216 (h) (3) (C) (ii), 42 TJ. S. C. §§402 (d)(3) and 416 (h) (3) (C) (ii). See generally Mathews v. Lucas, ante, p. 495.

       The definition of the class, however, does not appear to have been formalized in the three-judge court’s judgment. App. 59.

       In contrast to the situation in Weinberger v. Salfi, 422 U. S. 749, 763 n. 8 (1975), there is no jurisdiction here under 28 U. S. C. § 1252, since the District Court’s decision was in favor of the statute’s constitutionality.

       Section 205 (g) reads in pertinent part:
      “Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action .... Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides .... As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.”

       Section 205 (h) reads in pertinent part:
      “The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under [§ 1331 and other specified sections] of Title 28 to recover on any claim arising under this [subchapter II of the Social Security Act].”
      See Weinberger v. Salfi, 422 U. S., at 756 n. 3.

       The initiating judge observed that jurisdiction for his court was asserted under the general federal-question provision of 28 U. S. C. § 1331, and under 28 U. S. C. § 1361, vesting the district courts with jurisdiction “in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” Norton v. Richardson, 352 F. Supp. 596, 598 n. 2 (Md. 1972).

       The Solicitor General contends that a district court has jurisdiction to review a Social Security ruling only under § 205 (g) because § 205 (h) specifically excludes any other source of review of such determinations. He then contends that, for two reasons, there was no jurisdiction here to issue an injunction under § 205 (g). First, § 205 (g) in terms specifies that a district court may enter a judgment only “affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing,” but does not say it may enjoin him, and, moreover, in this statutory structure an injunction is out of place. Second, although the suit was made to sound as a class action, a class action is never appropriate under § 205 (g), and in any case the class was not properly certified, inasmuch as there was no allegation that the members had even filed applications for benefits; thus there is no jurisdiction over the class aspects of the case. Weinberger v. Salfi, supra, is cited. Since only the individual claim remains, even if injunctive power were available under § 205 (g), it would not be appropriately exercised in review of a single claimant’s case.
      The appellant contends in rebuttal that the “affirming, modifying, or reversing” language in § 205 (g) does not withdraw a district court’s general and inherent equity powers, including the power to enjoin, and that, in any event, jurisdiction remains, and an injunction may be issued, under the other cited statutes.

       The respective jurisdictional statements for the original appeal and for the present one preserved appellant’s statutory claim along with his constitutional contention. The statutory claim, however, was not pressed in appellant’s brief in the present case, and at oral argument it explicitly was abandoned. Tr. of Oral Arg. 5-6.

       In McLucas a single District Judge enjoined the enforcement of Art. 134 of the Uniform Code of Military Justice, 10 U. S. C. § 934, without convening a three-judge court. He did so because he considered the constitutional infirmity of the Article to be plain. See Bailey v. Patterson, 369 U. S. 31 (1962). On direct appeal, under 28 U. S. C. § 1252, the propriety of proceeding without a three-judge court was questioned. We observed that if a three-judge court was originally required under 28 U. S. C. § 2282, we ordinarily were bound to vacate the judgment and remand for the convening of a three-judge court. Flemming v. Nestor, 363 U. S. 603, 607 (1960); FHA v. The Darlington, Inc., 352 U. S. 977 (1957). Concluding, however, that no purpose could be served by deciding whether a three-judge court was required originally, because intervening decisions of this Court sustaining the constitutionality of Art. 134 had rendered the merits issue plainly insubstantial by the time the ease was before us, we vacated the judgment and remanded the case, directing dismissal. 421 U. S., at 32.

       See, e. g., Jimenez v. Richardson, 353 F. Supp. 1356, 1358 (ND Ill. 1973), vacated and remanded on other grounds sub nom. Jimenez v. Weinberger, 417 U. S. 628; Maracle v. Richardson, 348 F. Supp. 234, 235, 237 (WDNY 1972) (three-judge court); Williams v. Richardson, 347 F. Supp. 544, 548, 552 (WDNC 1972) (three-judge court).

       The Secretary has repeatedly asserted jurisdiction in this Court under 28 TJ. S. C. § 1253 where a three-judge District Court has enjoined enforcement of provisions of the Social Security Act. See Jurisdictional Statement in Mathews v. Diaz, O. T. 1973, No. 73-1046, p. 2; Jurisdictional Statement in Weinberger v. Salfi, O. T. 1974, No. 74r-214, p. 2; Jurisdictional Statement in Weinberger v. Wiesenfield, O. T. 1974, No. 73-1892, p. 2. Indeed, when the present case was first here, the Secretary moved to affirm, not to dismiss for want of jurisdiction, even though no greater basis for jurisdiction was present then than now. See Jurisdictional Statement in Norton v. Weinberger, O. T. 1973, No. 73-5598, p. 2, Motion to Affirm 1. See also Brief for Appellee in Jimenez v. Weinberger, O. T. 1973, No. 72-6609, p. 2.

       Tr. of Oral Arg. 33-35.

       These prerequisites are: “(1) a final decision of the Secretary-made after a hearing; (2) commencement of a civil action within 60 days after the mailing of notice of such decision (or within such further time as the Secretary may allow); and (3) filing of the action in an appropriate district court, in general that of the plaintiff's residence or principal place of business.” Weinberger v. Salfi, 422 U. S. 749, 763-764. The last two requirements may be waived entirely by the Secretary and the first may be partially waived or satisfied by less than literal compliance. See id., at 763-767; Mathews v. Eldridge, 424 U. S. 319, 326-332; Mathews v. Diaz, 426 U. S. 67, 75-77.

       The District Court certified the plaintiff class “to include all of those persons otherwise eligible for child’s insurance benefits under 42 U. S. C. § 402 (d) (1) but who cannot qualify for such child’s insurance benefits solely because they cannot meet the requirement of 42 TJ. S. C. § 416 (h) (3) (C) (ii) that they be living with or supported by their father on the date on his death.” Norton v. Weinberger, 364 F. Supp. 1117, 1121 (Md. 1973). Although this class is too broadly defined, it may be appropriately narrowed to include only those who satisfy the prerequisites to an action under § 205 (g). See n. 7, infra.

       The Secretary also suggests that a plaintiff class would fail to satisfy the requirement that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Fed. Rule Civ. Proc. 23 (b) (3). He contends that individual members of the plaintiff class probably will assert independent grounds for relief that they do not share with the class. However, if the class action succeeds on the merits, such claims would simply become moot. In any event, the class in this case was certified under the separate requirements of Fed. Rule Civ. Proc. 23 (b) (2). 364 F. Supp., at 1120.

       The Secretary argues to the contrary, relying upon a statement in Salfi that a similar defect in the class action allegations in that case deprived the District Court of jurisdiction over the entire class. Weinberger v. Salfi, supra, at 764. However, the statement in Salfi was unnecessary to tho decision in that case, since this Court possessed jurisdiction over the case on independent grounds and relief was ultimately denied on, the merits. See 422 U. S., at 763 n. 8, 767-785. This Court has subsequently pointed out in a similar situation that the question whether a properly defined class may be certified need not be reached. Mathews v. Diaz, supra, at 71-72, n. 3. Accordingly, I do not read the statement in Salfi to preclude certification of a more narrowly defined class in this case. The District Court possessed jurisdiction over those members of the certified class who satisfied the prerequisites of a § 205 (g) action. It follows that it possessed jurisdiction to grant injunctive relief to that subclass and that the denial of such relief is appealable to this Court under 28 U. S. C. § 1253.

       The Secretary asserts that a limited class would not satisfy the "numerosity” requirement of Fed. Rule Civ. Proc. 23 (a)(1): “the class [must be] so numerous that joinder of all members is impracticable.” But as a general matter, one surely cannot say that this requirement could never be satisfied in any § 205 (g) action that might be brought. The Secretary offers no justification for such a broad assertion. Even if the Secretary has advanced a colorable claim on this record that a plaintiff class could not be certified in accord with the requirements of Rule 23, surely the jurisdiction of this Court — the question directly at issue — should not turn on that question. Such a jurisdictional rule would only increase the burden of three-judge court litigation to the breaking point, particularly as it affects the summary dispositions of this Court.