(concurring).
Being of the view that as a general matter a proliferation of concurring opinions is unwholesome, I am reluctant to state my views separately. However, in this instance I feel constrained to do so because it appears to me that the issues raised by cases such as this are becoming unnecessarily entangled and doctrinal disagreements developing where consensus should prevail.
I believe that Judge Ervin has analyzed and applied the prior decisions of this Court accurately. I further believe, however, that this case brings to the fore concerns which make it apparent that two of those decisions, Fabula v. Buck, 598 F.2d 869 (4th Cir.1979) and Randall v. Lukhard, 729 F.2d 966 (4th Cir.1984), affirming in part, 709 F.2d 257 (4th Cir.1983), cert. denied, 469 U.S. 872, 105 S.Ct. 222, 83 L.Ed.2d 152 (1984), while being correctly decided on their facts, may be misdirecting the Court’s focus.
Judge Ervin fairly reads Fabula and Randall as establishing the principle that absent specific congressional authorization, a State lacks the power to adopt as an anti-fraud measure a transfer of assets rule which conflicts with a requirement of federal law. In the abstract this principle is sound. However, in applying it I would begin the process of analysis at a somewhat different point than Randall and Fabula suggest. It seems to me that it is sensible to assume that, absent an indication to the contrary, Congress, when enacting welfare legislation, proceeds on the unspoken premise that those who commit fraud against a program should not receive its benefits. If this premise is accepted as true, the inquiry becomes twofold: (1) is there evidence in the legislative history or in the general statutory scheme that Congress intended that particular conduct should not be deemed to be fraudulent, and *1291(2) is the State transfer of assets rule drawn with sufficient precision to prohibit only actual fraud rather than to impose an unauthorized additional eligibility requirement.
It is this approach, rather than one which starts by asking if Congress has specifically authorized an exception to the amorphous “availability principle,” which I believe to be the proper one. Applying it here, I would find that Virginia may properly adopt a transfer of assets rule to deter fraud. However, I would also find that the transfer of assets rule in question is too broadly drawn for an anti-fraud purpose. Specifically, I would find that the conclusive presumption which it establishes rendering a transfer fraudulent unless “the client ... [can] provide evidence that other resources were available, at the time of the transfer, to meet the needs of that client” is far too encompassing in its scope. Although such a presumption (like other mechanical rules) may make administration of the AFDC program easier, it is too crude an instrument to use to determine if a recipient has committed fraud. Cf. Owens v. Roberts, 377 F.Supp. 45 (M.D.Fla.1974).1 Of course, Congress may (as it did in enacting the Boren-Long Amendment) empower or direct States to adopt procedural rules which under certain circumstances place the burden upon a recipient to prove that he has not committed fraud. In my view, however, where a State adopts a transfer of assets rule as an implicitly authorized anti-fraud measure, the rule must be sufficiently flexible and fair to ferret out only genuinely fraudulent conduct.
. In his dissent Judge Wilkinson suggests that the presumption established by the Virginia regulation is a rebuttable one. I disagree. Although the regulation permits a client "to establish that ... [the] transfer was not made in an effort to qualify for ADC," it unqualifiedly posits that in order to meet that burden the client "must provide" evidence of the availability of other assets at the time of the transfer. Thus, a client who must liquidate assets at less than fair market value in order to meet an emergency for the very reason that he does not have other resources available to him cannot sustain his burden under the regulation. It is this rigidity in the regulation which in my view renders it violative of due process.