Alienage classifications and the denial of health care to DREAMers.

• Author: Marouf, Fatma
• Position: II. Scrutinizing Standards of Review for Alienage Classifications C. Discrimination Pursuant to Federal State Hybrids through Conclusion, with footnotes, p. 1307-1339

3. Discrimination Pursuant to Federal-State Hybrids

   Under the framework established by Graham and Mathews, laws that would violate equal protection if enacted by a state are usually legitimate if enacted by Congress. (216) The analysis becomes more complicated, however, when the federal government authorizes states to discriminate based on alienage. (217) The Naturalization Clause authorizes Congress "[t]o establish an uniform Rule of Naturalization ... throughout the United States." (218) Accordingly, Plyler advised, "if the Federal Government has by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction." (219) But courts do not always agree on what constitutes a "uniform" rule. In fact, courts are currently divided about what standard of review applies to alienage-based eligibility restrictions in state laws implementing the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the "Welfare Reform Act"), as some have concluded that the statute prescribes a uniform rule, while others see no such uniformity.

   The Welfare Reform Act provides eligibility requirements regarding noncitizens' access to both federal and state benefits. For state-funded benefits, the Act creates a category of noncitizens to whom states must provide all benefits, another category of noncitizens to whom states cannot provide any benefits, and a third category of noncitizens for whom states are given discretion to determine what, if any, benefits to provide. (220) This third category, which allows states to determine benefit eligibility based on alienage, has been challenged in both federal and state courts. On the federal level, three appellate courts--the First, Ninth, and Tenth Circuits--have addressed this issue and upheld state restrictions under rational basis review. (221) On the state level, the highest courts of New York, Maryland, and Massachusetts have all applied strict scrutiny and struck down such restrictions as a violation of equal protection. Connecticut's Supreme Court applied rational basis review, but only after finding that the state statute did not actually discriminate based on alienage. (222)

   1. Decisions Applying Rational Basis Review

      In Soskin v. Reinertson, the Tenth Circuit considered the argument that allowing states to determine benefit eligibility under the Welfare Reform Act violated the Naturalization Clause of the US Constitution, which requires Congress to "establish an uniform Rule of Naturalization" and has been interpreted broadly to refer to federal control over the status of aliens. (223) In rejecting this argument, the Court examined the historical origins of the Naturalization Clause, which was a response to divergent state naturalization laws that allowed an alien ineligible for citizenship in one state to become a citizen in another state and then return to the original state as a citizen entitled to all of its privileges and immunities. (224) The Tenth Circuit found that the purpose of the uniformity requirement was not undermined by the discretion given to states under the Welfare Reform Act because "the choice by one state to grant or deny ... benefits to an alien does not require another state to follow suit." (225)

      The Ninth Circuit recently agreed with the Tenth Circuit's analysis in Korab v. Fink, finding that the Welfare Reform Act as a whole "establishes a uniform federal structure for providing welfare benefits to distinct classes of aliens," and that "a state's limited discretion to implement a plan for a specified category of aliens does not defeat or undermine uniformity." (226) Analogizing to bankruptcy law, the court explained that the principle of uniformity does not require the elimination of differences among states, but rather that the basic operation of the federal statute be uniform. (227) Accordingly, the Ninth Circuit upheld Hawaii's decision to deny Medicaid benefits to noncitizens from three Micronesian nations who were lawfully present in the country as nonimmigrants pursuant to Compacts of Free Association that those nations had with the United States. (228) The case, however, produced three separate opinions, and it does not appear that two of the judges actually agreed on the equal protection analysis. Judge Bybee, who wrote a concurring opinion, based his vote on a preemption analysis, acknowledging that "if we looked exclusively to equal protection principles, I think it is likely that Hawai'i's law would fall." (229)

      The dissents in Soskin and Korab argued that strict scrutiny was the correct standard of review, stressing Graham's warning that "Congress does not have the power to authorize the individual States to violate the Equal Protection Clause." (230) Both dissents challenged the majorities' conclusion that Congress had created a uniform law in allowing states to decide whether to restrict eligibility for benefits for certain noncitizens. Judge Clifton, dissenting in Korab, noted that "[a] federal 'direction' that points in two opposite ways is not a direction" and characterized Congress's delegation of power to the states as a "lit firecracker, at risk of exploding when a state exercised its discretion to discriminate on the basis of alienage." (231) He found that the majority's analogy to the conceptualization of uniformity in bankruptcy law failed to fit because that analogy ignored "the crucially important counterweight" of the Equal Protection Clause, which is absent from the bankruptcy arena. (232) In Judge Clifton's view, "[t]he option given to the states by Congress to decide whether to treat aliens differently was illusory," in light of the Supreme Court's decision in Graham. (233) Both dissents also noted that, under Graham, a state's financial condition does not provide a compelling justification to treat noncitizens differently. (234)

      While the First Circuit reached the same conclusion as the Tenth and Ninth Circuits in reviewing Maine's legislation terminating noncitizens from state benefits, it applied a different analysis. (235) The court found that the disparate treatment of noncitizens was not attributable to Maine's statute but to the Welfare Reform Act's alienage-based restrictions on eligibility for public welfare benefits. (236) Accordingly, the court found "no class of similarly situated citizens with whom the appellants can be compared vis-a-vis the state of Maine," which undermined the equal protection claim. (237) In light of its finding that Maine had drawn no distinctions based on alienage, the court found it unnecessary to reach the issue of whether Maine was following a uniform federal policy. Thus, not only are courts divided about the standard of review, but the courts that have rejected equal protection challenges do not agree on the reasoning.

   2. Decisions Applying Strict Scrutiny

      Like the dissents in the Ninth and Tenth Circuit decisions discussed above, the three state courts that applied strict scrutiny to strike down similar state statutes under the Equal Protection Clause reasoned that Congress had failed to prescribe a "uniform" rule by allowing states to determine for themselves the extent to which they would discriminate against certain categories of noncitizens. In Matter of Aliessa, New York's highest court addressed an equal protection challenge to a state law that implemented title IV of the 1996 Welfare Reform Act. (239) Prior to that Act, New York had provided state Medicaid to needy recipients without distinguishing between legal aliens and citizens. (240) The court examined "whether title IV can constitutionally authorize New York to determine for itself the extent to which it will discriminate against legal aliens for State Medicaid eligibility." (241) In holding that Congress could not authorize such discrimination, the court relied heavily on Graham, which had explained that "congressional enactment construed so as to permit state legislatures to adopt divergent laws on the subject of citizenship requirements for federally supported welfare programs would appear to contravene [the] explicit constitutional requirement of uniformity." (242) The court reasoned that title IV does not impose a uniform immigration rule for states to follow, as it authorizes states to extend state benefits even to aliens not lawfully present, while also authorizing states to withhold state Medicaid even from aliens eligible for federal Medicaid. (243) In other words, "States are free to discriminate in either direction--producing not uniformity, but potentially wide variation based on localized or idiosyncratic concepts of largesse, economics and politics." (244) According to the court, a uniform rule would require each state to "carry out the same policy under the mandate of Congress--the only body with authority to set immigration policy." (245) The court concluded that title IV was "directly in the teeth of Graham" by authorizing states to extend the ineligibility period for federal Medicaid for LPRs beyond five years and terminate federal Medicaid eligibility for refugees and asylees after seven years. Indeed, the court found that title IV went "significantly beyond what the Graham Court declared constitutionally questionable" by "impermissibly authorizing] each State to decide whether to disqualify many otherwise eligible aliens from State Medicaid." (246) The court therefore applied strict scrutiny and held that the state law violated equal protection. (247)

      The Court of Appeals of Maryland agreed with the reasoning of the New York Court of Appeals. Prior to 2006, Maryland chose to provide non-emergency medical benefits to LPRs excluded from federal benefits by the Welfare Reform Act because they did not satisfy a five-year residency requirement. (248) Maryland's Fiscal Year 2006 budget cut off these benefits. (249) In Ehrlich v. Perez, the court considered an equal protection...