ABCD, INC. & others [Note 1] vs. COMMISSIONER OF PUBLIC WELFARE & others [Note 2] (and a companion case [Note 3]).

WILKINS, J. These actions challenge the refusal of the Commonwealth to make certain payments to present recipients of the program of aid to families with dependent children (AFDC) and the refusal of the Commonwealth to provide AFDC and general relief benefits to certain persons who, it is claimed, are newly entitled to such benefits. A single justice reported these cases to the full court on the complaints, a joint motion to consolidate the actions, a class stipulation, and a statement of agreed facts. [Note 4]

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The plaintiffs seek a determination that the Commonwealth's response to the enactment of Section 44 and Section 44A of St. 1978, c. 367 (the general appropriation act for the 1979 fiscal year), is unlawful. Section 44A, which is set forth in full in the margin, [Note 5] provides a 6% supplementary payment in the 1979 fiscal year for each recipient of AFDC, computed on the net monthly consolidated grant payable to that recipient. Section 44, which is also set forth in the margin, [Note 6] provides each recipient of the program of general relief a 6% supplementary payment based on the standard needs portion of each monthly grant payable to each recipient. Each section contains, in identical language, a sentence stating that "[s]aid supplementary payment shall not be considered in determining the eligibility for said program." [Note 7]

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The Commonwealth has concluded that Section 44A's 6% supplemental payments for current AFDC recipients should not be paid because, not only will those payments not qualify for the approximately 50% reimbursement normally available from the Federal government, but any such payments will have to be reflected in corresponding reductions in AFDC payments to AFDC recipients. Thus the Commonwealth argues that it need not implement Section 44A because, if it did, the legislative purpose of increasing payments to AFDC recipients would not be achieved. ABCD challenges these conclusions, claiming an improper executive impoundment of funds. We conclude that the Commonwealth properly declined to pay the additional 6% allowance to current AFDC recipients because to make such payments would be futile.

The Massachusetts Association of Older Americans (Association) presents a different contention. Its concern is with the interests of certain persons not currently eligible for AFDC or general relief benefits. The Association's challenge is to the Legislature's attempt to provide additional benefits only to current AFDC and general relief recipients, and to those who would be eligible for benefits under the law as it stood before the 1978 statutory changes. The Association, unlike ABCD, accepts the Commonwealth's conclusion that the AFDC program as restricted by Section 44A conflicts impermissibly with Federal law. It asserts, however, that the legislative classifications in both Section 44 and Section 44A deny equal protection of the laws to certain persons who are ineligible for public welfare benefits despite the fact that they have fewer resources than some welfare recipients have after receiving welfare benefits. The Association then argues that to avoid Section 44A's conflict with Federal law and to avoid the

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equal protection problem, the invalid protections of Section 44 and Section 44A, including the eligibility restriction of each section, should be treated as severable. Once these portions are severed, the argument goes, the remaining provisions of Section 44 and Section 44A can be implemented, thus permitting additional persons to qualify for AFDC and general relief benefits and all recipients to obtain benefits at the higher level expressed in the 1978 act. [Note 8]

We conclude that the eligibility restriction of Section 44A is not properly severable. The result is that no portion of Section 44A, concerning AFDC, need be implemented. In addition, we find no denial of equal protection of the laws in the classifications made by Section 44 concerning general relief. The ABCD Case

Each State that participates in the AFDC program authorized by the Social Security Act (42 U.S.C. Section 601 et seq. [1976]) administers its program under a plan that must be approved by the United States Department of Health, Education, and Welfare (HEW) as a pre-condition to reimbursement by the Federal government of a percentage (approximately 50% in Massachusetts) of the payment made to AFDC recipients. Id. at Sections 601, 603. See Carroll v. Acting Director of Pub. Welfare, 355 Mass. 182, 187 (1969). The Commonwealth has had such a program for many years. See St. 1936, c. 413. The AFDC benefits, not in excess of the standard of need, for each individual or family. [Note 9] See Rosado v. Wyman, 397 U.S. 397, 408 (1970);

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Bourgeois v. Stevens, 532 F.2d 799, 802-803 (1st Cir. 1976); 45 C.F.R. Section 233.20(a)(2) and (b)(2) (1978). In this Commonwealth, the level of benefits is 100% of the standard of need for AFDC. The net payment to a recipient is determined by deducting from the full standard of need for that recipient any "countable income," that is, income from other sources that, under existing State and Federal regulations, is not to be disregarded and must be counted against the amount otherwise payable. See 42 U.S.C. Section 602(a)(8) (1976). See generally Shea v. Vialpando, 416 U.S. 251, 254 (1974).

In July, 1978, following the enactment of the appropriation bill for the 1979 fiscal year (containing Sections 44 and 44A), questions were raised whether the provisions of Section 44A complied with Federal requirements for an AFDC program. In July, 1978, HEW's Acting Assistant Regional Commissioner for Family Assistance sent a letter to the Commissioner of Public Welfare. That letter indicated that payments in excess of the standard of need were not contemplated by the Federal AFDC program and that the Commonwealth's failure to increase the standard of need raised questions of conformity to Federal requirements. The Acting Assistant Regional Commissioner stated that it was doubtful whether "HEW would be able to provide Federal financial participation in the 6% supplementary payments made under [Section 44A]." He also noted that amounts paid above the standard of need would be considered income to the recipient which would require a dollar-for-dollar reduction in that recipient's AFDC payment. The letter expressed doubt whether "the Massachusetts Legislature intended to have the 6% supplementary payment cause a reduction in the AFDC

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grant with no net benefit to the recipients." The Acting Assistant Regional Commissioner also questioned the implementation of that provision in Section 44A which directed that the 6% supplementary payment should be computed "on the net monthly consolidated grant payable to each recipient" (emphasis supplied). The standard of need includes the monthly portion of a quarterly payment, but Section 44A does not increase this element by 6%. Nor does Section 44A provide any increase in the portion of a recipient's standard of need which is met by "countable income." The 6% additional payment disregarded these items and thus, the letter indicated, did not treat all types of income in the same way, as required by 45 C.F.R. Section 233.20(a)(1) (1978). Subsequently, HEW formally disapproved a proposed amendment to the Commonwealth's AFDC State plan which undertook to implement Section 44A.

The result of the position taken by HEW, with which the Commonwealth agrees, is that the Federal government would decline to participate financially in any 6% supplemental payment, and, if any such payment were proposed to be made, the amount of the payment would be considered "countable income," thus reducing correspondingly the AFDC payments to be made. [Note 10] The parties stipulated that, if the Commonwealth were to implement Section 44A, as written, and were to treat Section 44A payments as "countable income" recipients would realize no net increase as a result of those payments. Further, the parties agreed that if the Section 44A payments were not treated as "countable income" to recipients, HEW might seek to penalize the Commonwealth. See 42 U.S.C. Section 604 (1976).

ABCD argues that the Commonwealth should have pressed its case further with HEW. We need not consider whether the Commonwealth may rely conclusively in this case on HEW's interpretations of its regulations.

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HEW's assessment of the situation was unequivocal, and its interpretations are entitled to considerable weight in any judicial proceeding. See Miller v. Youakim, 440 U.S. 125, 144 (1979); Quern v. Mandley, 436 U.S. 725, 738 (1978); New York Dep't of Social Servs. v. Dublino, 413 U.S. 405, 421 (1973); Lewis v. Martin, 397 U.S. 552, 559 (1970). Here, in any event, we agree that, if the 6% supplementary payments were made, no Federal contribution would be available toward those payments and the recipients would gain no financial advantage. [Note 11]

In light of the utter futility of making 6% supplementary payments to current AFDC recipients, we think that the Commonwealth was justified in not implementing Section 44A by impounding that portion of the appropriation for AFDC that was intended to fund it. [Note 12] Certainly, the

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refusal was warranted until a judicial determination could be made whether the decision was correct. The loss of Federal reimbursement is itself a major departure from the expectations the Legislature must have had. [Note 13] In any event, the futility of making the increased payments contemplated by Section 44A conclusively justifies the Commonwealth's determination not to implement it.

Although the circumstances in which the Executive Department may decline to implement legislation are strictly limited by constitutional principles (Opinion of the Justices, 375 Mass. 827 [1978]), it has some discretion "not to spend money in a wasteful fashion, provided that [it] has determined reasonably that such a decision will not compromise the achievement of underlying legislative purposes and goals." Id. at 836. Here, every dollar spent on 6% supplemental payments pursuant to Section 44A would have been wasted. Although the current Legislature has the authority to rectify the situation, the executive branch acted properly in not implementing Section 44A. The Association's Case

To this point in this opinion, we have been concerned with ABCD's arguments on behalf of current recipients of AFDC. ABCD has contended that there is no supremacy clause problem because the plan can be implemented without contravening Federal requirements. Our discussion has shown that Section 44A does violate Federal AFDC requirements and further that any attempt to implement Section 44A's 6% increase in payments would be futile.

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We have not been concerned solely with the question whether the Commonwealth on its own may provide benefits in addition to those required by the Federal government. Compare Ottman v. Fisher, 319 A.2d 56, 62 (Me. 1974), where the court indicated that the State might provide AFDC benefits beyond those authorized by HEW, but there was no question of the futility of making such payments. Here, relevant Federal law renders the 6% payment futile and prohibits the exclusion from AFDC benefits of persons whose income exceeds the standard of need but would not exceed it if that standard were increased to reflect the 6% supplementary payment ordered by Section 44A. ABCD has not shown how the State's failure to increase the standard of need to the level of payments extended by Section 44A to current AFDC recipients, and thus its denial of eligibility to certain persons, can be squared with Federal requirements. To be sure, ABCD is concerned in this case only with the interests of current recipients. However, the application of Federal supremacy principles makes the pattern of Section 44A, as written, unacceptable as to a class of potential recipients of AFDC, a point that we cannot ignore. [Note 14]

We turn then to the argument of the Association, which accepts the point that Section 44A as written violates Federal requirements. It urges that those portions of Section 44A that can be implemented without contravening Federal standards should be put into effect and the balance of Section 44A severed and disregarded. We are dealing with a subject not often considered by courts treating AFDC questions. In the typical case, where a court has held that a State statute or regulation cuts back impermissibly on benefits in light of Federal requirements for an AFDC program, the court has treated the State provision

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as inoperative and has assumed that the State's AFDC program will be carried on as if the invalid State provision no longer existed. See Townsend v. Swank, 404 U.S. 282, 285 (1971); King v. Smith, 392 U.S. 309, 333 (1968); Ottman v. Fisher, 319 A.2d 56, 60-61 (Me. 1974). Normally, this conclusion is correct because of the general expectation that the State does not intend its entire participation in a Federally approved AFDC program to cease simply because of one element of noncompliance. Moreover, there has not always been a need in such cases to consider carefully the severability of a State statute because Federal courts may not grant retroactive financial relief against States than have failed to comply in some respect with Federal AFDC requirements. See Quern v. Jordan, 440 U.S. 332 (1979); Edelman v. Jordan, 415 U.S. 651 (1974). The Eleventh Amendment bars money judgments against States for past failures to provide AFDC benefits. See Quern v. Jordan, supra; Edelman v. Jordan, supra. In granting relief, the Federal courts have acted prospectively, respecting the fiscal autonomy of each State, since each State has the opportunity to make such corrective changes in its AFDC program as it may wish or to withdraw entirely from participation in the Federal program. See Townsend v. Swank, 404 U.S. 282, 292 (1971) (Burger, C.J., concurring). Courts have not often discussed the possibility that a statutory amendment might be implemented in part with its invalid aspects excised. See Rosado v. Wyman, 397 U.S. 397, 420-421 (1970). It is this possibility -- the severability of portions of Section 44A -- on which the Association relies.

The Association grants that Section 44A cannot be implemented effectively because it conflicts with the Social Security Act. It argues that the classifications made by Section 44A violate the rights of certain needy persons to equal protection of the laws. We agree that the implementation of Section 44A as written would be futile. We also agree that the "cure" of severability that the Association prescribes would remedy not only the futility problem but also any

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possible equal protection defects in Section 44A. However, because we reject the view that the problematic portions of Section 44A are severable, we need not determine whether those equal protection claims have merit. [Note 15]

The Association's severability argument, if accepted, would eliminate Section 44A's major conflicts with Federal AFDC requirements. The Association contends that the limitation on eligibility expressed in the second sentence of Section 44A should be disregarded; that the 6% supplementary payment should be computed on the consolidated grant, disregarding the words "net monthly" in Section 44A; and that the balance of the statute should then be permitted to have full effect. So revised, Section 44A could then reasonably be construed to increase the standard of need by the amount of the 6% supplementary payment. [Note 16] If the standard were increased, additional persons would be eligible for AFDC benefits and the 6% supplementary payment would not exceed the standard of need. The parties have stipulated that such an increase in the standard of assistance would permit "1000 to 3000 additional individuals or families" to be eligible for AFDC benefits.

The major surgery that the Association argues we should perform on Section 44A in order to implement lawful concepts expressed in Section 44A is far more radical than any this court has performed previously. The Association grants that the Legislature was concerned about restricting the increased costs of public assistance. We see no justification for this court to disregard significant expressions

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of legislative intent. There is no severability clause applicable to Section 44A, and we would be engaging in the sheerest speculation as to the Legislature's intent if we were to assume that the Legislature would have adopted Section 44A in the revised form the Association urges.

The general rule concerning severability is that "[w]henever various portions of a statute have independent force, thus justifying the inference that the enacting body would have passed one without the other, this court will uphold the remainder of the enactment after the offending portion has been struck." Del Duca v. Town Adm'r of Methuen, 368 Mass. 1, 13 (1975), and authorities cited. A statute, such as Section 44A, that purports to make a change in existing law but is unlawfully restrictive is not a ready candidate for rescue under severability principles. See Dalli v. Board of Educ., 358 Mass. 753 (1971); 2 C. Sands, Sutherland's Statutory Construction Section 44.13 (4th ed. 1973). The proposed remedy in this case would not simply permit a part of a statute to be effective when another part cannot be. Rather, it would tear down a consciously erected legislative barrier and thus allow the limited legislative purpose to escape into the very area from which it was to have been excluded. A conclusion that the Legislature would have intended such a result cannot be justified in this instance. See Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 91 (1978). The eligibility limitation of Section 44A was not an insignificant aspect of the legislation. It was added in the course of the Legislature's consideration of the budget. [Note 17] We decline to disregard the plain language of Section 44A, particularly where to do so would result in the expenditure of funds for a purpose not intended.

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One final contention of the Association remains for consideration. It concerns the operation of Section 44, and specifically the limitation on eligibility that is expressed in Section 44 in the same fashion as the limitation on eligibility is expressed in Section 44A. The Association argues that the failure to include the 6% increase in determining the eligibility of persons not already on general relief violates principles of equal protection of the laws. Because the general relief program is funded solely by the Commonwealth and because the Commonwealth has fully implemented Section 44 as written, none of the objections discussed earlier concerning Section 44A is relevant here. [Note 18]

The Association points out that certain persons not now receiving general relief would qualify for assistance if the standard of need were increased to reflect the 6% supplementary payment. [Note 19] It argues that persons already receiving general relief (and persons newly qualifying under the unchanged eligibility standards) will be entitled to the 6% supplementary payments and will thus receive assistance in circumstances not rationally distinguishable from those applicable to certain persons not eligible for general relief.

The classification made by Section 44 does not violate equal protection principles. Decisions of the Supreme Court of the United States grant considerable leeway to States in fashioning classifications in welfare programs. See Jefferson v. Hackney, 406 U.S. 535, 545-551 (1972); Dandridge v. Williams, 397 U.S. 471, 483-487 (1970). Our decisions

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have also acknowledged the wide range of legislative discretion. See Rosary v. Commissioner of Pub. Welfare, 370 Mass. 862 (1976); Opinion of the Justices, 368 Mass. 831, 845-849 (1975). See also Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 92-97 (1978). Classifications that are less than perfect or that solve only part of a problem have been upheld. See Dandridge v. Williams, supra at 486-487. See also Amherst-Pelham Regional School Comm. v. Department of Educ., 376 Mass. 480, 495-496 (1978). The legislative desire to conserve public funds and to direct funds to a limited class of recipients is entitled to respect. Opinion of the Justices, supra at 845-846.

The Association has failed to demonstrate that the exclusion from general relief of certain potential recipients is not a rational choice. Such a limitation provides a means of accomplishing the Commonwealth's objective of preserving the fiscal integrity of its welfare programs. The Legislature could have concluded that the modest amount of assistance that would have been granted to certain persons if the eligibility standard had been raised was not a wise use of resources. [Note 20] Conclusion

We are not unsympathetic with the concerns of persons for whom the Legislature intended an increase in AFDC payments, but the pattern the Legislature selected in an attempt to achieve that result has defects for whose cure a legislative remedy alone is available.

Judgments shall be entered in the county court declaring that the Commonwealth properly declined to implement St. 1978, c. 367, Section 44A, and that the eligibility limitation in St. 1978, c. 367, Section 44, for general relief does not deny equal protection of the laws.

So ordered.