Soskin v. Reinertson

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 12 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

VALENTIN SOSKIN, BEI DEI
HOWE, EVA ROSENTHAL,
VATCHAGAN TATEVOSIAN,
GINDA K. GELFAND, YAKOV
GELFAND, DUBALE SHIBESHI,
SARIN PERLMAN, on their own
behalf and on behalf of all others
similarly situated,

Plaintiffs-Appellants,
v. No. 03-1162
KAREN REINERTSON, in her
official capacity as Executive Director
of the Colorado Department of Health
Care Policy and Financing,

Defendant-Appellee.

UNITED STATES OF AMERICA,

Intervenor.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 03-RB-529 (BNB))

Lucas Guttentag, American Civil Liberties Union, Immigrants’ Rights Project,
Oakland, California; Marc Cohan, Welfare Law Center, Inc., New York,
New York (Mary R. Mannix, Anne H. Pearson, and Rebecca L. Scharf, Welfare
Law Center, Inc., New York, New York; Mark Silverstein, American Civil
Liberties Union Foundation of Colorado, Denver, Colorado; Gregory Piché, Scott
Barker and Stephen Masciocchi, Holland & Hart LLP, Denver, Colorado; Linton
Joaquin and Gabrielle Lessard, National Immigration Law Center, Los Angeles,
California; Tanya Broder, National Immigration Law Center, Oakland, California;
Jane Perkins, National Health Law Program, Chapel Hill, North Carolina, with
them on the briefs), for Plaintiffs-Appellants.

Terence P. (Renny) Fagan, Deputy Attorney General (Ken Salazar, Attorney
General, Ann Hause, First Assistant Attorney General, and Ilene I. Wolf Moore,
Assistant Attorney General, with him on the briefs), Denver, Colorado, for
Defendant-Appellee.

Robert D. McCallum, Jr., Assistant Attorney General; John W. Suthers,
United States Attorney, Denver, Colorado; Thomas M. Bondy and Eric D. Miller,
Attorneys, Appellate Staff Civil Division, United States Department of Justice,
Washington, D.C., on the brief for Intervenor.

Before KELLY , HENRY , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

Plaintiffs represent a class of legal aliens who will lose their Medicaid

benefits when last year’s Colorado Senate Bill 03–176 (SB 03–176) takes effect.

They contend that the eligibility requirements of SB 03–176 violate the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution,

and that the state’s procedures for terminating benefits violate Medicaid law and

the Due Process Clause of the Fourteenth Amendment. The district court denied

Plaintiffs’ motion for a preliminary injunction against implementation of SB

03–176. We granted an injunction pending resolution of this appeal. We now

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reject Plaintiffs’ contentions except that we agree that the state’s procedures

violate the Medicaid Act in denying some members of the class a right to a

hearing. Accordingly, we vacate our injunction, and we affirm in part and reverse

in part the district court’s denial of a preliminary injunction.

I. BACKGROUND

A. Medicaid

Prior to the enactment of SB 03–176, which was signed into law on

March 5, 2003, and scheduled to take effect on April 1, 2003, Colorado provided

optional Medicaid coverage to all legal aliens eligible under federal law to receive

such coverage. The new statute would repeal optional Medicaid coverage,

terminating Medicaid benefits to approximately 3,500 aliens residing in Colorado.

Medicaid is a joint state and federal medical assistance program for the

poor, disabled, and others in need. 42 U.S.C. § 1396 et seq. It provides coverage

for such medical services as inpatient and outpatient hospital care, physicians’

services, prescriptions, home health care services, and nursing home care. Id.

§§ 1396a(a)(10)(A), 1396d(a)(1)–(5), (17) & (20). Although states are not

required to participate in Medicaid, if a state does elect to participate, it must

comply with the minimum requirements of the federal Medicaid Act in order to

receive federal matching funds. See Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502

(1990). States implement their Medicaid programs in accordance with

comprehensive written plans that must be submitted to and approved by the

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Secretary of the United States Department of Health and Human Services. See 42

U.S.C. § 1396. Colorado has opted to participate in the Medicaid program, and

has designated the Department of Health Care Policy and Financing (the Colorado

Department), currently headed by Defendant Karen Reinertson (sued here in her

official capacity), as the single state agency responsible for administering

Medicaid. See Colo. Rev. Stat. § 26–4–104(1).

Federal law requires participating states to provide full Medicaid services

to all individuals designated as categorically needy. 42 U.S.C.

§ 1396a(a)(10)(A)(i). States have discretion to provide full Medicaid coverage to

additional “optional” segments of the population. Id. § 1396a(a)(10)(A)(ii).

Emergency care must be provided to all individuals in need of such services. 8

U.S.C. § 1611(b)(1)(A).

In 1996 Medicaid law changed significantly. The federal Personal

Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA),

Pub. L. No. 104-193, 110 Stat. 2105 (1996) (often referred to as the Welfare

Reform Act), was enacted. Explaining the purpose of the provisions with respect

to aliens, the Act states:

The Congress makes the following statements concerning national
policy with respect to welfare and immigration:

(1) Self-sufficiency has been a basic principle of United States
immigration law since this country's earliest immigration statutes.

(2) It continues to be the immigration policy of the United States

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 that--
(A) aliens within the Nation's borders not depend on
public resources to meet their needs, but rather rely on
their own capabilities and the resources of their families,
their sponsors, and private organizations, and

(B) the availability of public benefits not constitute an
incentive for immigration to the United States.

(3) Despite the principle of self-sufficiency, aliens have been
applying for and receiving public benefits from Federal, State, and
local governments at increasing rates.

(4) Current eligibility rules for public assistance and unenforceable
financial support agreements have proved wholly incapable of
assuring that individual aliens not burden the public benefits system.

(5) It is a compelling government interest to enact new rules for
eligibility and sponsorship agreements in order to assure that aliens
be self-reliant in accordance with national immigration policy.

(6) It is a compelling government interest to remove the incentive for
illegal immigration provided by the availability of public benefits.

(7) With respect to the State authority to make determinations
concerning the eligibility of qualified aliens for public benefits in
this chapter, a State that chooses to follow the Federal classification
in determining the eligibility of such aliens for public assistance
shall be considered to have chosen the least restrictive means
available for achieving the compelling governmental interest of
assuring that aliens be self-reliant in accordance with national
immigration policy.

8 U.S.C. § 1601(1)–(7).

The PRWORA imposes several limitations on the availability of Medicaid

benefits to aliens. 8 U.S.C. § 1601 et seq; id. § 1612(b)(3)(C). Prior to the

PRWORA, Medicaid benefits were mandated for otherwise qualified aliens who

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were lawfully admitted for permanent residence or otherwise permanently

residing in the United States. See 42 C.F.R. § 435.406(a) (1990). Now, the

PRWORA requires states to provide Medicaid coverage only to “qualified aliens,”

which it defines as lawful permanent residents, refugees, aliens granted asylum,

and certain other specified categories of lawfully present aliens. 8 U.S.C.

§ 1612(b); id. § 1641(b). The PRWORA also provides that most of these

qualified aliens are ineligible for Medicaid benefits until they have lived in the

United States for at least five years. Id. § 1613. But the five-year requirement

does not apply to certain qualified aliens, such as lawful permanent residents who

have worked in the United States for 40 qualifying quarters, veterans, and active-

duty members of the military. Id. § 1612(b)(2). Nor does the requirement apply

to qualified aliens who entered the United States prior to August 22, 1996. Id.

§ 1613(a).

The PRWORA does, however, allow states to provide optional Medicaid

coverage to legal aliens not included within Congress’s definition of “qualified

aliens.” Id. § 1612(b). In essence, states may redefine “qualified aliens” to cover

additional legal aliens, so long as they do not cover those aliens explicitly

excluded by the PRWORA (e.g., most aliens who have not lived in the

United States for five years). Id.

Initially Colorado opted to provide coverage beyond that mandated by the

PRWORA. In 1997 Colorado responded to the PRWORA by enacting legislation

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that maintained the optional Medicaid coverage it had previously provided to all

lawfully present aliens who were otherwise eligible. See 1997 Colo. Sess. Laws

1257-58. But Colorado policy changed in March of 2003. Faced with an

enormous budget shortfall, the state looked to its Medicaid program for savings.

The Colorado legislature passed and the governor signed SB 03–176, which

removed the optional Medicaid coverage Colorado had been providing to legal

aliens. SB 03–176 § 1. After SB 03–176 takes effect, only those aliens that

Congress defined in the PRWORA as “qualified aliens” will be eligible for

Medicaid in Colorado. SB 03–176 § 2; Colo. Rev. Stat. § 26-4-201(2)(a)–(b).

The state estimates that it will save $5.9 million annually by eliminating optional

alien coverage.

B. Coverage Termination Procedures

In Colorado the county departments of social services make the initial

Medicaid eligibility determinations. Colo. Rev. Stat. § 26-4-106(1)(a).

Accordingly, in anticipation of enactment of SB 03-176, the Colorado Department

notified the state’s 64 counties of the impending Medicaid eligibility changes and

instructed them on procedures to use in effectuating those changes.

First, the Department sent the counties two letters, informing them that SB

03–176 was moving through the legislative process and that the Department

would keep them informed as the legislation progressed. Then, after the

legislation was passed by the legislature but before it was signed by the Governor,

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the Department sent a third, more-detailed letter. The letter, labeled HCFP 03-

001, set forth an eligibility redetermination process providing for county officials

to ascertain whether individuals whose Medicaid eligibility was eliminated by SB

03-176 could qualify under a different eligibility category.

Five days after the HCFP 03-001 letter was sent to the counties, a statewide

conference call was conducted to discuss the letter. Forty counties participated in

the conference call. Once the governor signed the bill, the Colorado Department

notified the counties and instructed them to provide notice to affected recipients.

The counties were directed to provide at least 10 days’ notice prior to termination

of benefits for all individuals losing coverage as a result of SB 03–176.

C. Procedural History

On March 27, 2003, Plaintiffs filed this class-action lawsuit to enjoin the

implementation of SB 03–176. Class members include legal aliens who rely on

Medicaid to cover important medical services, including chemotherapy, nursing

home care, home health care, surgical care, and life-sustaining prescription drug

coverage. Without Medicaid, Plaintiffs claim, they will be unable to afford these

necessary services and will suffer serious injuries and irreparable harm. Plaintiffs

contend that in some cases the loss of medical care could be life threatening.

Plaintiffs’ suit seeks a judgment declaring that SB 03–176’s eligibility

requirements violate the Equal Protection Clause of the Fourteenth Amendment

because they discriminate against legal aliens, and that Defendant’s procedures

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for terminating benefits are inadequate under Medicaid law and the Due Process

Clause of the Fourteenth Amendment. Plaintiffs also seek an injunction

permanently enjoining termination of benefits under SB 03–176.

The district court granted Plaintiffs’ request for a temporary restraining

order, but it later denied their motion for a preliminary injunction and lifted the

temporary restraining order. Plaintiffs then moved this court for an injunction

pending appeal. We granted that motion and expedited the appeal. See Soskin v.

Reinertson, No. 03-1162 (10th Cir. April 25, 2003) (order granting injunction

pending appeal). After oral argument we notified the Attorney General of the

United States, in accordance with Fed. R. App. P. 44, that this case called into

question the constitutionality of an Act of Congress, 8 U.S.C. § 1612(b) (which

authorizes states to reduce Medicaid coverage to aliens). The United States filed

a brief in support of the constitutionality of the statute.

II. DISCUSSION

We have jurisdiction under 28 U.S.C. § 1292. We

review[] a district court’s grant or denial of a preliminary injunction
for an abuse of discretion. A district court abuses its discretion
where it commits a legal error or relies on clearly erroneous factual
findings, or where there is no rational basis in the evidence for its
ruling. We examine the district court's underlying factual findings
for clear error, and its legal determinations de novo.

Davis v. Mineta, 302 F.3d 1104, 1110-11 (10th Cir. 2002) (internal citations and

quotation marks omitted). For Plaintiffs to be entitled to a preliminary injunction,

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they must show:

(1) a substantial likelihood of prevailing on the merits; (2)
irreparable harm unless the injunction is issued; (3) [that] the
threatened injury outweighs the harm that the preliminary injunction
may cause the opposing party; and (4) [that] the injunction, if issued,
will not adversely affect the public interest. If [Plaintiffs] can
establish that the latter three requirements tip strongly in [their]
favor, the test is modified, and [Plaintiffs] may meet the requirement
for showing success on the merits by showing that questions going to
the merits are so serious, substantial, difficult, and doubtful as to
make the issue ripe for litigation and deserving of more deliberate
investigation.

Id. at 1111 (internal citations and quotation marks omitted).

A. Equal Protection Claim

The Fourteenth Amendment to the United States Constitution declares that

“[n]o State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” The Equal Protection Clause “keeps governmental

decisionmakers from treating differently persons who are in all relevant respects

alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Plaintiffs allege that SB 03-

176 violates the Equal Protection Clause because it improperly discriminates

between citizens and legal aliens. They argue that such discrimination is subject

to strict scrutiny, so the statute can be upheld only if it “advance[s] a compelling

state interest by the least restrictive means available.” Bernal v. Fainter, 467

U.S. 216, 219 (1984).

Defendant disputes that strict scrutiny is the appropriate standard for

reviewing the statute. She contends that Congress used its plenary immigration

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powers to enact the PRWORA, and because Colorado was acting in accordance

with the PRWORA when it enacted SB 03-176, the more deferential rational-basis

test applies. The statute satisfies that test, she argues, because it is rationally

related to a legitimate state interest. See Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 440 (1985) (under rational-basis standard of review, “legislation is

presumed to be valid and will be sustained if the classification drawn by the

statute is rationally related to a legitimate state interest”).

The parties appear to agree that SB 03-176 would not survive strict scrutiny

but would satisfy the rational-basis test. Thus, the constitutionality of SB 03-176

depends on the level of scrutiny to which the law is subject. We turn to Supreme

Court precedent for guidance.

1. Graham v. Richardson

Plaintiffs rely heavily on Graham v. Richardson, 403 U.S. 365 (1971),

which resolved a consolidated appeal involving two cases arising out of different

statutory schemes: one from Arizona and one from Pennsylvania. Id. at 366-70.

The Arizona statute limited alien eligibility for benefits under federally funded

programs for persons who were disabled, in need of old-age assistance, or blind.

Id. at 367. The state limitation on eligibility for the programs provided: “No

person shall be entitled to general assistance who does not meet and maintain the

following requirements: 1. Is a citizen of the United States, or has resided in the

United States a total of fifteen years.” Id. (internal quotation marks omitted).

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The Pennsylvania statute concerned a welfare program that was not federally

funded. It limited state benefits to those Pennsylvania residents who either were

citizens of the United States or had filed a declaration of intention to become a

citizen. Id. at 368.

The Court observed that “the Arizona and Pennsylvania statutes in question

create two classes of needy persons, indistinguishable except with respect to

whether they are or are not citizens of this country.” Id. at 371. Regarding the

Arizona statute, the Court wrote that “[o]therwise qualified United States citizens

living in Arizona are entitled to federally funded categorical assistance benefits

without regard to length of national residency, but aliens must have lived in this

country for 15 years in order to qualify for aid.” Id. As for Pennsylvania, the

Court said, “United States citizens living in Pennsylvania, unable to meet the

requirements for federally funded benefits, may be eligible for state-supported

general assistance, but resident aliens as a class are precluded from that

assistance.” Id.

The Court first rejected the states’ argument that they could favor

United States citizens over aliens in the distribution of welfare benefits. While

the Court recognized that “[u]nder traditional equal protection principles, a State

retains broad discretion to classify so long as its classification has a reasonable

basis,” id., it was well established “that classifications based on alienage, like

those based on nationality or race, are inherently suspect and subject to close

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judicial scrutiny.” Id. at 372 (footnotes omitted). “Aliens as a class,” the Court

wrote, “are a prime example of a discrete and insular minority for whom such

heightened judicial solicitude is appropriate.” Id. (internal quotation marks and

citation omitted).

The Court then concluded that the Arizona and Pennsylvania laws could not

withstand strict scrutiny. Id. at 376. It rejected the states’ fiscal motive:

“[J]ustification of limiting expenses is particularly inappropriate and

unreasonable when the discriminated class consists of aliens. Aliens like citizens

pay taxes and may be called into the armed forces . . . . [A]liens may live within

a state for many years, work in the state and contribute to the economic growth of

the state.” Id. (internal quotation marks omitted). Thus, the Court concluded, “a

state statute that denies welfare benefits to resident aliens and one that denies

them to aliens who have not resided in the United States for a specified number of

years violate the Equal Protection Clause.” Id.

In addition, and significantly for present purposes, the Court rejected

Arizona’s argument that its durational residency requirement for aliens was

authorized by a federal statute. Id. at 380-82. The statute, 42 U.S.C. § 1352(b)

(1971), stated: “The Secretary shall approve any plan which fulfills the conditions

specified in subsection (a) of this section, except that he shall not approve any

plan which imposes, as a condition of eligibility for aid to the permanently and

totally disabled under the plan-- . . . (2) Any citizenship requirement which

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excludes any citizen of the United States.” Id. at 380 (internal quotation marks

omitted). Arizona argued that the statutory language implicitly authorized

citizenship requirements that excluded non-citizens.

The Court observed that “[o]n its face, the statute does not affirmatively

authorize, much less command, the States to adopt durational residency

requirements or other eligibility restrictions applicable to aliens.” Id. at 381. It

then traced the language in question to the Social Security Act of 1935, when the

language apparently was included to prevent treating naturalized citizens

differently from native-born citizens. Id. at 381. The Court noted that the statute

may have reflected Congressional understanding of the law as it stood in 1935,

before Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948), had established

the equal-protection rights of aliens. Graham, 403 U.S. at 382. Now, however,

significant constitutional concerns would be raised by discrimination against

aliens. The Court wrote:

[W]ere [the federal statute] to be read so as to authorize
discriminatory treatment of aliens at the option of the States,
Takahashi demonstrates that serious constitutional questions are
presented. Although the Federal Government admittedly has broad
constitutional power to determine what aliens shall be admitted to the
United States, the period they may remain, and the terms and
conditions of their naturalization, Congress does not have the power
to authorize the individual States to violate the Equal Protection
Clause.

Id. Moreover, the Court said that “[u]nder Art. I, § 8, cl. 4, of the Constitution,

Congress’ power is to ‘establish an uniform Rule of Naturalization,’” id.

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(emphasis added), and that a “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 this explicit constitutional requirement of uniformity.” Id. These

constitutional concerns, the Court declared, argued against interpreting the

statutory language to authorize state discrimination against aliens. “Since statutes

should be construed whenever possible so as to uphold their constitutionality, we

conclude that [the statute] does not authorize the Arizona 15-year national

residency requirement.” Id. at 382-83 (internal quotation marks and citation

omitted).

A footnote to the quoted passage noted that the Court had “no occasion to

decide whether Congress, in the exercise of the immigration and naturalization

power, could itself enact a statute imposing on aliens a uniform nationwide

residency requirement as a condition of federally funded welfare benefits.” Id. at

382 n.14. As we will discuss below, that issue was resolved in Mathews v. Diaz,

426 U.S. 67 (1976).

In the years immediately following Graham, the Supreme Court

reemphasized the central holding of the case: that state laws creating citizen-alien

classifications must meet strict scrutiny. See, e.g., Bernal, 467 U.S. at 219-20

(citizenship requirement for state notaries public is subject to strict scrutiny);

Examining Bd. v. Flores de Otero, 426 U.S. 572, 601-02 (1976) (same for state

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civil engineering licenses); In re Griffiths, 413 U.S. 717, 721 (1973) (same for

admission to state bar); Sugarman v. Dougall, 413 U.S. 634, 642 (1973) (same for

state civil service jobs). In particular, in Nyquist v. Mauclet, 432 U.S. 1 (1977),

the Court held that a state could not circumvent Graham by contending that it was

merely distinguishing among aliens, as opposed to discriminating against aliens

vis-a-vis citizens. Reviewing a statute restricting certain aliens’ access to state-

funded tuition assistance, the Court rejected the state’s argument that strict

scrutiny should not apply because the classification “distinguishe[d] only within

the heterogeneous class of aliens and d[id] not distinguish between citizens and

aliens vel non.” Id. at 8 (internal quotation marks omitted). The Court wrote:

Graham v. Richardson . . . undermines [the state’s] position. In that
case, the Court considered an Arizona statute that imposed a
durational residency requirement for welfare benefits on aliens but
not on citizens. Like the New York statute challenged here, the
Arizona statute served to discriminate only within the class of aliens:
Aliens who met the durational residency requirement were entitled to
welfare benefits. The Court nonetheless subjected the statute to
strict scrutiny and held it unconstitutional. The important points are
that [the tuition assistance restriction] is directed at aliens and that
only aliens are harmed by it. The fact that the statute is not an
absolute bar does not mean that it does not discriminate against the
class.

Id. at 8-9.

2. Mathews v. Diaz

In Mathews v. Diaz, 426 U.S. 67 (1976), the Court answered the question

left open in Graham, holding that the federal government could impose a uniform

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residency requirement as a condition of receiving federal benefits. Mathews

considered a federal law granting Medicare benefits to certain resident citizens 65

years of age and older, but denying eligibility to comparable aliens unless they

had been admitted for permanent residence and had resided in the United States

for at least five years. Id. at 70.

The Court explained why Congress’s broad constitutional powers over

naturalization and immigration give it authority to treat aliens differently from

citizens:

The fact that all persons, aliens and citizens alike, are
protected by the Due Process Clause does not lead to the further
conclusion that all aliens are entitled to enjoy all the advantages of
citizenship or, indeed, to the conclusion that all aliens must be placed
in a single homogeneous legal classification. For a host of
constitutional and statutory provisions rest on the premise that a
legitimate distinction between citizens and aliens may justify
attributes and benefits for one class not accorded to the other; and
the class of aliens is itself a heterogeneous multitude of persons with
a wide-ranging variety of ties to this country.

In the exercise of its broad power over naturalization and
immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens. The exclusion of aliens and the
reservation of the power to deport have no permissible counterpart in
the Federal Government’s power to regulate the conduct of its own
citizenry. The fact that an Act of Congress treats aliens differently
from citizens does not in itself imply that such disparate treatment is
“invidious.”

In particular, the fact that Congress has provided some welfare
benefits for citizens does not require it to provide like benefits for all
aliens. . . .

....

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 For reasons long recognized as valid, the responsibility for
regulating the relationship between the United States and our alien
visitors has been committed to the political branches of the Federal
Government. Since decisions in these matters may implicate our
relations with foreign powers, and since a wide variety of
classifications must be defined in the light of changing political and
economic circumstances, such decisions are frequently of a character
more appropriate to either the Legislature or the Executive than to
the Judiciary. . . .

. . . In short, it is unquestionably reasonable for Congress to
make an alien’s eligibility depend on both the character and the
duration of his residence. Since neither requirement is wholly
irrational, this case essentially involves nothing more than a claim
that it would have been more reasonable for Congress to select
somewhat different requirements of the same kind.

Id. at 78-83 (footnotes omitted) (emphasis added).

Mathews also distinguished Graham, recognizing that its “equal protection

analysis . . . involves significantly different considerations because it concerns

the relationship between aliens and the States rather than between aliens and the

Federal Government.” Id. at 84-85. It explained that

[i]nsofar as state welfare policy is concerned, there is little, if any,
basis for treating persons who are citizens of another State
differently from persons who are citizens of another country. Both
groups are noncitizens as far as the State’s interests in administering
its welfare programs are concerned. Thus, a division by a State of
the category of persons who are not citizens of that State into
subcategories of United States citizens and aliens has no apparent
justification, whereas, a comparable classification by the Federal
Government is a routine and normally legitimate part of its business.

Id. at 85.

3. Lower Courts

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 Neither Graham nor Mathews determines the result in this case. Unlike

Graham, here we have specific Congressional authorization for the state’s action,

the PRWORA. Unlike Mathews, here we have a state-administered program, and

the potential for states to adopt coverage restrictions with respect to aliens that

are not mandated by federal law.

The fact of state administration in itself is not a distinction from Mathews

that has impressed the circuits that have addressed the matter. Following

Mathews, several circuits have applied rational-basis review to uphold federal

statutes restricting state-administered welfare benefits to legal aliens. See, e.g.,

Lewis v. Thompson, 252 F.3d 567, 582 (2d Cir. 2001) (upholding under rational-

basis review PRWORA restrictions on alien eligibility for state-administered pre-

natal Medicaid benefits); City of Chicago v. Shalala, 189 F.3d 598, 603-05 (7th

Cir. 1999) (same for supplemental security income (SSI) and food stamps);

Aleman v. Glickman, 217 F.3d 1191, 1197 (9th Cir. 2000) (same for food stamps);

Rodriguez v. United States, 169 F.3d 1342, 1346-50 (11th Cir. 1999) (same for

SSI and food stamps).

The potential for states to adopt coverage restrictions for aliens that are not

federally mandated is, however, more problematic. The difficulty is illustrated by

opinions addressing non-mandated state restrictions—one each from the high

courts of New York and Massachusetts. We discuss each in turn.

In Aliessa v. Novello, 754 N.E.2d 1085 (N.Y. 2001), the New York Court of

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Appeals reviewed state alien classifications that were authorized by the

PRWORA. Relying on Graham, it concluded that the classification scheme must

be subjected to strict scrutiny. New York’s Medicaid system had two

components—one was funded jointly by the state and federal governments, and

one was solely state-funded. Id. at 1089. Aliessa reviewed only the state-funded

portion of the program. Id. at 1089, n.3.

As it does with regard to jointly funded Medicaid programs, the PRWORA

gives states flexibility to grant or deny aliens state-only Medicaid, so long as they

adhere to certain requirements. Id. at 1091. In response to the PRWORA, the

New York legislature enacted a law that terminated state-only Medicaid coverage

for many aliens. Id. at 1091-92. Aliens who lost coverage brought suit, arguing

that the new state law violated the state constitution and the Equal Protection

Clause of the United States Constitution. Id. at 1092.

The parties’ equal protection arguments in Aliessa mirrored those of the

parties in this case: the plaintiffs argued that the state law discriminated based on

alienage and that strict scrutiny should apply, and the state argued that it was

acting with Congress’s permission and that rational-basis review was appropriate.

The court agreed with the plaintiffs, concluding that strict scrutiny applied and

that the state law could not withstand it.

The court relied on the language in Graham that “a Federal statute

authorizing ‘discriminatory treatment of aliens at the option of the States’ would

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present ‘serious constitutional questions,’” and that a “‘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.’”

Id. at 1097 (quoting Graham, 403 U.S. at 382) (emphasis in Aliessa). The court

reasoned:

[The federal statute] does not impose a uniform immigration
rule for States to follow. Indeed, it expressly authorizes States to
enact laws extending “any State or local public benefit” even to those
aliens not lawfully present within the United States. The converse is
also true and exacerbates the lack of uniformity: [the federal statute]
provides that, subject to certain exceptions, States are authorized to
withhold State Medicaid from even those qualified aliens who are
eligible for Federal Medicaid under PRWORA. Thus, in
administering their own programs, the 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. Considering that Congress has conferred
upon the States such broad discretionary power to grant or deny
aliens State Medicaid, we are unable to conclude that [the federal
law] reflects a uniform national policy. If the rule were uniform,
each State would carry out the same policy under the mandate of
Congress—the only body with authority to set immigration policy.

. . . New York—along with every other State—with
Congressional permission is choosing its own policy with respect to
health benefits for resident, indigent legal aliens. Thus, we address
this case outside the context of a Congressional command for
nationwide uniformity in the scope of Medicaid coverage for indigent
aliens as a matter of federal immigration policy.

Id. at 1098 (internal citations omitted). The New York court concluded that strict

scrutiny was the appropriate standard by which to assess the New York statute,

-21-
and held that the statute failed the test. It wrote:

We conclude that [the state law] is subject to . . . strict
scrutiny, notwithstanding [the federal statute’s ] authorization. . . .
[The federal law] is directly in the teeth of Graham insofar as it
allows the States to “adopt divergent laws on the subject of
citizenship requirements for federally supported welfare programs.”
Moreover, [the federal statute] goes significantly beyond what the
Graham Court declared constitutionally questionable. In the name of
national immigration policy, it impermissibly authorizes each State
to decide whether to disqualify many otherwise eligible aliens from
State Medicaid. [The New York statute] is a product of this
authorization. In light of Graham and its progeny, [the federal
statute] can give [the New York statute] no special insulation from
strict scrutiny review. Thus, [the New York statute] must be
evaluated as any other State statute that classifies based on alienage.

Id. at 1098 (footnotes and internal citations omitted); see Kurti v. Maricopa Cty.,

33 P.3d 499, 505 (Ariz. Ct. App. 2001) (applying strict scrutiny to optional

coverage of aliens for public health benefits).

The Massachusetts Supreme Judicial Court addressed similar issues in Doe

v. Comm’r of Transitional Assistance, 773 N.E.2d 404 (Mass. 2002), but reached

a different result. It concluded that state-made intra-alien classifications are

subject only to rational-basis review. Doe involved a state-only supplemental-

benefits program that was enacted to provide coverage to certain aliens who,

based on the PRWORA, were going to lose the joint state-federal benefits they

had previously received. Id. at 407. But the benefits provided by the

supplemental program were restricted to aliens who had resided in Massachusetts

for at least six months. Id. at 407-08.

-22-
 The plaintiffs in Doe argued that the six-month residency requirement

violated the Equal Protection Clause because it imposed the requirement on some

legal aliens, but not on other legal aliens and citizens. Here again, the dispute

hinged on whether strict scrutiny or rational-basis review applied.

The court first emphasized that the benefits provided by the program went

only to aliens (not citizens), meaning that the six-month residency requirement

did not discriminate between citizens and aliens, but rather only amongst aliens.

Then, after reviewing Graham, Mathews, and other relevant law, the court turned

to the standard of review:

We conclude that the appropriate standard of review in these
circumstances depends on the nature of the classification that creates
the distinction between subgroups of aliens. If that classification
were a suspect one such as race, gender, or national origin, we would
apply a strict scrutiny analysis. Where, as here, that classification is
Massachusetts residency, the proper standard of review is rational
basis. We reach this conclusion because we find that the operative
classification for equal protection purposes in the setting of this case
is not alienage, but residency.

Id. at 414 (internal citation omitted). (We note, however, that the court may have

applied rational-basis review only because it viewed the distinction between

aliens and citizens under the Massachusetts statute as not invidious to aliens. The

court wrote:

In concluding that a rational basis standard of review applies, we
have also considered the context in which the supplemental program
was enacted; its purpose and the clearly noninvidious intent behind
its promulgation; the effect of its implementation on mitigating the
harm to qualified alien families that might otherwise be without

-23-
 substantial assistance for five years under the requirements of the
welfare reform act; and the potential harm to those same families if
the Legislature could only choose to create an all-or-nothing program
as a remedy to their disqualification from federally funded programs.

Id.)

4. Analysis

The Supreme Court precedents establish two propositions. First, states on

their own cannot treat aliens differently from citizens without a compelling

justification. See Graham, 403 U.S. at 371-72, 376. Second, the federal

government can treat aliens differently from citizens so long as the difference in

treatment has a rational basis. See Mathews, 426 U.S. at 78-83. This case fits

somewhere in between. Plaintiffs claim that its location is clear, because Graham

said that “Congress does not have the power to authorize the individual States to

violate the Equal Protection Clause.” 403 U.S. at 382. But we think the issue is

more nuanced than the quoted proposition indicates.

We do not read Graham as being as categorical as Plaintiffs claim it is

regarding the effect of Congressional authorization of state discrimination against

aliens. If the Court had definitively decided that the distinctions made in Arizona

law would be unconstitutional regardless of Congressional authorization, there

would have been no cause for the Court to examine the legislative history of the

federal statute that Arizona relied upon. See Graham, 403 U.S. at 382. Nor

would the Court have needed to rely on a rule of construction—construing the

-24-
statute to avoid constitutional concerns—to resolve the case before it. See id. As

we read Graham, the Court was, in essence, insisting on a clear expression of

Congressional intent to permit states to discriminate against aliens before it would

tackle the constitutional issue. See id.

We recognize that Graham said that “Congress does not have the power to

authorize the individual States to violate the Equal Protection Clause.” Id. But

that proposition is almost tautological. The question is not whether Congress can

authorize such a constitutional violation. The question is what constitutes such a

violation when Congress has (clearly) expressed its will regarding a matter

relating to aliens. After all, Congress has extensive powers with respect to aliens

derived from specific constitutional provisions as well as from the inherent

powers of a sovereign nation. See, e.g., Chae Chan Ping v. United States, 130

U.S. 581, 609 (1889) (stating that Congress’s immigration power is “an incident

of sovereignty”); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952)

(“[A]ny policy toward aliens is vitally and intricately interwoven with

contemporaneous policies in regard to the conduct of foreign relations, the war

power, and the maintenance of a republican form of government.”).

When Congress exercises these powers to legislate with regard to aliens,

the proper standard of judicial review is rational-basis review. That is the lesson

of Mathews. Although Mathews involved Medicare, a program administered and

funded by the federal government, while the PRWORA involves a program

-25-
administered and partially funded by the states, that difference, as noted above, is

immaterial in assessing the constitutionality of the federal legislation itself. See

Lewis, 252 F.3d at 582; City of Chicago, 189 F.3d at 603-05; Aleman, 217 F.3d at

1197; Rodriguez, 169 F.3d at 1346-50.

There is, however, one significant difference between the federal law at

issue here and the one at issue in Mathews. The present law gives the states a

measure of discretion. Some benefits for aliens are required, some are prohibited.

In between, the states are permitted to be more restrictive (or, depending on one’s

point of view, more generous). Relying on Graham, one could say, as Plaintiffs

do, that when a state elects not to provide aliens with the maximum benefits

permitted by federal law, it is discriminating against aliens and the federal

government’s imprimatur for such discrimination cannot reduce the level of

scrutiny to which the state’s choice is subjected under the Equal Protection

Clause. This is the view adopted by the New York Court of Appeals in Aliessa.

We do not share that view. The reason for applying rational-basis review

to federal law regarding aliens is that such laws reflect national policy that

Congress has the constitutional power to enact. Once Congress has expressed that

policy, the courts must be deferential. See Mathews, 426 U.S. at 78-83. What

Plaintiffs fail to consider is that a state’s exercise of discretion can also effectuate

national policy. Recall that the PRWORA does not give the states unfettered

discretion. Some coverage must be provided to aliens; some coverage is

-26-
forbidden. State discretion is limited to the remaining optional range of coverage.

In exercising that discretion each state is to make its own assessment of whether

it can bear the burden of providing any optional coverage. When a state

determines that the burden is too high and decides against optional coverage, it is

addressing the Congressional concern (not just a parochial state concern) that

“individual aliens not burden the public benefits system.” 8 U.S.C. § 1601(4).

This may be bad policy, but it is Congressional policy; and we review it only to

determine whether it is rational.

One way of regarding the impact of Congressional policy is to view the

PRWORA in a way suggested by the analysis of the Massachusetts Supreme

Judicial Court in Doe. What Congress has done in the PRWORA is, in essence,

create two welfare programs, one for citizens and one for aliens. Within the

aliens-only program, states have the option of including more or fewer aliens. The

decision to have separate programs for aliens and citizens is a Congressional

choice, subject only to rational-basis review. See Mathews. A state’s exercise of

the option to include fewer aliens in its aliens-only program, then, should not be

treated as discrimination against aliens as compared to citizens. That aspect of the

discrimination is Congress’s doing—by creating one program for citizens and a

separate one for aliens. Rather, what the state is doing is discriminating within the

aliens-only program against one class of aliens as compared to other classes of

aliens. Cf. Mathews, 426 U.S. at 80 (“The real question presented by this case is

-27-
not whether discrimination between citizens and aliens is permissible; rather, it is

whether the statutory discrimination within the class of aliens allowing benefits to

some aliens but not to others is permissible.”). This discrimination among

subclassifications of aliens is not based on a suspect classification (such as

alienage). The discrimination, rather, is based on nonsuspect classifications such

as work history or military service. We follow the Massachusetts Supreme

Judicial Court’s Doe decision in applying rational-basis review to such

distinctions. See 773 N.E.2d at 414.

Furthermore, we reject the argument that the PRWORA’s authorization to

the states to provide or deny Medicaid benefits to certain aliens runs afoul of the

uniformity requirement of the Constitution’s Naturalization Clause. This argument

rests largely on dictum in Graham. Graham considered whether Arizona’s

durational residency requirement for aliens was authorized by a federal statute.

The Court ruled that the statute did not confer such authority. In reaching that

conclusion the Court relied in part on the proposition that such statutory

authorization would be of questionable constitutionality. The Court wrote:

Under Art. I, § 8, cl. 4, of the Constitution, Congress’ power is to
“establish an uniform Rule of Naturalization.” A 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 this explicit
constitutional requirement of uniformity. Since “statutes should be
construed whenever possible so as to uphold their constitutionality,”
we conclude that [the federal statute] does not authorize the Arizona
15-year national residency requirement.

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403 U.S. at 382-83 (emphasis added; footnote and internal citation omitted).

It is now our task to determine whether this appearance of

unconstitutionality is real. To begin with, we note that Congressional power over

aliens derives from more than just the Naturalization Clause. Other sources of

Congressional authority include “its plenary authority with respect to foreign

relations and international commerce, and . . . the inherent power of a sovereign to

close its borders.” Plyler v. Doe, 457 U.S. 202, 225 (1982) (Equal Protection

Clause is violated by state law authorizing local school districts to deny

enrollment to children not legally admitted into the United States).

Indeed, it is not at all clear how the authority “[t]o establish an uniform

Rule of Naturalization” is being exercised when Congress restricts welfare benefits

to aliens on grounds that have no direct relationship to the naturalization process.

Whether the alien is seeking naturalization is not a consideration under the

PRWORA. We find it significant that Mathews made no explicit mention of the

Naturalization Clause in upholding Congressional authority to establish a

residency requirement for aliens to obtain Medicare benefits. Of course, if

Congressional authority for the PRWORA’s provisions regarding aliens does not

rest on the Naturalization Clause, the limits on the exercise of power under that

clause do not necessarily apply; the uniformity requirement is imposed only on a

“Rule of Naturalization.”

Moreover, the purpose of the uniformity requirement in the Naturalization

-29-
Clause is not undermined by the PRWORA’s grant of discretion to the states with

respect to alien qualifications for Medicaid benefits. The uniformity requirement

was a response to the widely divergent practices among the states under the

Articles of Confederation with respect to the requirements to become a naturalized

citizen. One state would have a lenient rule, another a very strict rule; yet the

Articles required the strict state to treat as a full citizen anyone admitted to

citizenship by the lenient state. See Michael Hertz, Limits to the Naturalization

Power, 64 Geo. L.J. 1007, 1009-17 (1976); Judith Schenck Koffler, The

Bankruptcy Clause and Exemption Laws: A Reexamination of the Doctrine of

Geographic Uniformity, 58 N.Y.U. L. Rev. 22, 85-87 (1983). Here, the choice by

one state to grant or deny Medicaid benefits to an alien does not require another

state to follow suit. We also note that there is reason to believe that at least some

Founders did not believe that the Immigration Clause in itself precluded individual

states from adopting more lenient standards for naturalization. See U.S. Term

Limits Inc., v. Thornton, 514 U.S. 779, 873 n.13 (1995) (Thomas, J., dissenting).

One final point needs to be addressed. Plaintiffs argue that the language of

8 U.S.C. § 1601(7) illustrates that Congress intended strict scrutiny to apply to

state laws that alter legal aliens’ eligibility for jointly funded benefit programs.

That section states:

With respect to the State authority to make determinations
concerning the eligibility of qualified aliens for public benefits in this
chapter, a State that chooses to follow the Federal classification in

-30-
 determining the eligibility of such aliens for public assistance shall be
considered to have chosen the least restrictive means available for
achieving the compelling governmental interest of assuring that aliens
be self-reliant in accordance with national immigration policy.

Id. We think Plaintiffs read too much into this provision. For Congress to say

that its statute would survive strict scrutiny is a far cry from Congress’s stating

that the statute should be subject to such scrutiny. We find no reason to believe

that Congress wanted to impose on its statute a standard of review more stringent

than what the Constitution requires.

5. Appropriateness of Injunctive Relief

Our analysis of Plaintiffs’ equal-protection claim enables us to short-circuit

the factor-weighing process for determining whether to grant injunctive relief.

The merits issue on this appeal is a pure matter of law. No material facts are

disputed. When we determine that a claim lacks merit, we can hardly find an

abuse of discretion in denying injunctive relief. To grant relief in that

circumstance would be to ignore the demands of the law and express our personal

policy views regarding the importance of the interests of the parties and the public.

B. Alleged Procedural Violations

Plaintiffs contend that the procedures used by the Colorado Department in

implementing SB 03-176 have three defects: (1) prior to terminating affected

Medicaid recipients the Department failed to perform a “full eligibility

-31-
redetermination” to assess whether the recipients qualified for Medicaid under any

other eligibility categories; (2) the state improperly denied certain of the affected

recipients an opportunity for a hearing (sometimes referred to as an appeal) to

contest the county termination decision before it takes effect; and (3) the state

failed to provide timely and adequate notice to the affected recipients prior to

terminating coverage. Plaintiffs claim that each of these deficiencies violates the

Medicaid Act, and that the second and third also violate the Due Process Clause of

the Fourteenth Amendment. They seek injunctive relief forbidding

implementation of SB 03-176 until the procedural deficiencies are corrected.

The district court concluded that Plaintiffs had not shown a substantial

likelihood of success with respect to the merits of their procedural claims. After

reviewing the Department’s procedures, the court observed that “[t]he evidence

adduced at the hearing demonstrated the organized, comprehensive, and proactive

manner the Department employed to anticipate and implement SB 03-176

consistent with extant federal and state law and regulations.” Soskin v. Reinertson,

257 F. Supp. 2d 1320, 1327 (D. Colo. 2003). It stated that “the Department

notified the counties [of SB 03-176], instructed them to provide notice to affected

recipients, and provided information about how to assess clients, how to determine

whether an alien could continue as Medicaid eligible, how to provide notice to

each client, and how to calculate the forty working quarters attributable to each

client which could affect an alien’s continuing coverage.” Id. at 1328. According

-32-
to the court, “[S]ystemically the Department did all that it was required to do

under due process to provide timely and sufficient notice to aliens potentially

affected by SB 03-176.” Id.

We address Plaintiffs’ three contentions in turn.

1. Redetermination Process

a. System Established by Department

The purpose of the redetermination process is to ascertain whether

individuals who lose their status under one eligibility category may qualify under

a different eligibility category. After SB 03-176 passed the legislature but before

it was signed by the Governor, the Department sent a letter to the counties

outlining redetermination procedures. The letter began by describing which legal

aliens would be adversely affected by the new law, and which would still be

eligible for coverage. It noted that legal permanent residents with 40 quarters of

work history would remain eligible, as would honorably discharged veterans and

their immediate family members, active duty military personnel and their family

members, and certain other specified groups (such as Canadian-born Indians with

at least 50% American Indian blood).

The letter then set forth what it described as “the steps necessary to

implement [SB 03-176] and stay in compliance with Medicaid eligibility rules.”

Aplt. App. at 125. The counties were instructed first to compile a list of all

-33-
Medicaid clients whose status would need to be redetermined as a result of SB

03–176. The Department assisted the counties by attaching to each letter a

county-specific report identifying the Medicaid clients whom the Department’s

database recorded as having alien registration numbers.

Once the county had compiled the redetermination list, it was to pull the

files of everyone on the list and check them for “immigration verification.” (The

parties have not explained what is entailed in an “immigration verification,” nor

have we found an explicit explanation in the record, although it appears to

encompass obtaining data relating to all qualification categories for aliens,

including work history and military service.) If the file included immigration

verification from within the preceding three months indicating that the individual

met current eligibility requirements, coverage for that person would be

maintained. If, however, the file indicated that the individual did not meet the

new Medicaid eligibility requirements, the county was to perform an ex parte

redetermination. The letter cryptically stated that “[t]hese individuals can be

discontinued without requesting additional verification from the client.” Aplt.

App. at 126. The letter does not describe the procedures to follow in performing

such an ex parte review.

Because legal permanent residents with 40 creditable work quarters would

be eligible for continued Medicaid coverage, the Department’s letter instructed

-34-
the counties to use the state’s work-history database to “[i]dentify legal

permanent residents with 40 quarters of work history.” Id. The letter did not

specifically instruct the counties to inquire into the work history of an

individual’s spouse during marriage or of a parent while the individual was under

18. See 8 U.S.C. § 1645 (including such work history in calculation of

individual’s eligibility). But an attachment to the letter defined “40 Qualifying

Quarters” as including those of parents and spouses:

A qualifying quarter means a quarter of coverage as defined under
title II of the Social Security Act, which is worked by the alien,
and/or

• All the qualifying quarters worked by the spouse of
such alien during their marriage and the alien remains
married to such spouse or such spouse is deceased, and

• All of the qualifying quarters worked by a parent of
such alien while the alien was under age 18 . . . .

Aplt. App. at 37-38. It appears that those who had 40 verifiable quarters of work

history would be removed from the list of aliens to be considered for

termination, and that those who did not have the necessary quarters would

remain on the list (although neither the letter nor record are altogether clear on

this point).

The county officials were then to complete a redetermination of Medicaid

eligibility for all who remained on their lists after these initial reviews. The

-35-
letter directed county officials to send redetermination packets to all aliens who

had an unknown immigration status. The Department provided a redetermination

form to include in the packet. The form told potentially affected individuals of

the impending Medicaid eligibility changes for legal immigrants. It stated:

Due to a new state law, Medicaid eligibility must be redetermined
for legal immigrants. Our records show that the following people in
your household are legal immigrants. They must have their
Medicaid redetermined. Please send us a copy of each person’s
current INS card. Also, answer all 5 questions below for each
person. If you do not provide the requested information within 10
days from the date listed above, the following people will lose their
Medicaid.”

Aplt. App. at 132. The five questions for each listed member of the household

were: (1) “[What is your] [s]ocial security number, if available[?]” (2) “Is this

person a US citizen?” (3) “Country of origin?” (4) “Is this person on active duty

in the U.S. Armed Forces or a spouse, surviving spouse or child of one?” and (5)

“Is this person a veteran, survivor of a veteran, or a dependent of a veteran?” Id.

If the redetermination packet was not returned within 10 business days, the

Department directed the counties to send a “Notice of Medicaid Closure” form,

along with a second redetermination form. The sample notice form, which

apparently was to be used only in cases in which affected recipients did not

timely return their redetermination forms, stated:

-36-
 Notice of Medicaid Closure

[Name, Address, and Date]

This notice is to tell you that Medicaid has been Closed effective
March 30, 2003 for the following family member(s) of your
household:

[NAME]

The household member(s) listed above lost their Medicaid because a
new state law changed the citizenship requirements for the program.
The person(s) listed above did not provide the required verification
of their immigration status to complete the redetermination of
eligibility. 8.100.7 and 8.100.53 A (10CCR-2505-10)

If you have any questions about this letter, please contact Medicaid
Customer Service at (303) 866-3513 or 1-800-221-3943.

This statement certifies that health coverage has been provided to the
following client(s) through Colorado Medicaid in accordance with
the Health Insurance Portability and Accountability Act.

[Client Name] [Coverage Dates]

Aplt. App. at 136. If still no response was received after the second

redetermination packet and Medicaid closure form were sent, the counties were to

terminate the individual’s Medicaid coverage. The letter did not direct what form

of notice to use for such terminations.

Five days after the Department mailed its letter to the counties, there was a

-37-
conference call with state and county Medicaid officials to discuss the letter and

the implementation process. Forty counties participated in the call. The record

does not provide details of what was discussed.

b. Adequacy of the Department’s Process

Plaintiffs assert that the redetermination procedures described above fail to

satisfy the requirements set forth in the Medicaid Act and its implementing

regulations, because they do not provide for a full redetermination of eligibility of

aliens excluded by SB 03-176. They contend that (1) the Department employee in

charge of Medicaid conceded at the evidentiary hearing that she did not conduct

“full redeterminations of eligibility” prior to terminating coverage; and (2) the

Department failed to direct the counties to determine whether recipients affected

by SB 03-176 are eligible for coverage under any other eligibility category. In

particular, they assert that the Department failed to require counties to request

work histories of spouses or parents to determine whether they had quarters of

work that could be credited to the affected individual.

To support their claim of a full-redetermination requirement, Plaintiffs rely

on a statute, a regulation, and a few judicial opinions. The statute is 42 U.S.C.

§ 1396a(a)(8), which states: “A State plan for medical assistance must . . .

provide that all individuals wishing to make application for medical assistance

under the plan shall have opportunity to do so, and that such assistance shall be

-38-
furnished with reasonable promptness to all eligible individuals.” The regulation

is 42 C.F.R. § 435.930(b), which states: “The [state] agency must . . . [c]ontinue

to furnish Medicaid regularly to all eligible individuals until they are found to be

ineligible.” Plaintiffs then point out that several courts have held that this federal

statute and regulation (or their earlier versions) together require an ex parte

redetermination process before termination of a Medicaid recipient. See Crippen

v. Kheder, 741 F.2d 102, 104-07 (6th Cir. 1984); Mass. Ass’n of Older Ams. v.

Sharp, 700 F.2d 749, 751-54 (1st Cir. 1983); Stenson v. Blum, 476 F. Supp. 1331,

1339-42 (S.D.N.Y. 1979); Olson v. Reagen, No. 85-101-A, 1985 U.S. Dist. Lexis

20823, at *7-8 (C.D. Iowa April 11, 1985).

Assuming, without deciding, that we would follow those decisions, we

observe that none of the decisions (or the laws they rely on) speak to the scope of

the redetermination review that would be required here, such as what records

should be obtained and how they should be analyzed. In Sharp, for example,

eligibility would have been immediately apparent. See 700 F.2d at 751-54. The

plaintiffs in Sharp had been eligible for Medicaid as recipients of Aid to Families

with Dependent Children (AFDC), but they lost their AFDC eligibility as a result

of a change in the law that required including stepparent income in determining

AFDC eligibility. Id. at 751. Medicaid rules were unchanged, however, so

stepparent income was irrelevant to their Medicaid eligibility. Id. at 753-54. The

statute, regulation, and case law cited by Plaintiffs do not support the proposition

-39-
that the Department’s extensive redetermination process was inadequate.

In addition, Plaintiffs make a passing reference to a letter (not included in

the record) to the state Medicaid directors from the Director of the Center for

Medicare and Medicaid Services, the United States Department of Health and

Human Services division that administers Medicaid and promulgates

implementing regulations. That letter discusses the redetermination process. But

Plaintiffs offer no argument why this letter has the force of law.

In any event, Plaintiffs have not produced substantial evidence that the

Department’s redetermination process is inadequate. First, we disagree with

Plaintiffs’ assertion that Defendant has conceded that the Department failed to

require “full redetermination[s] of eligibility.” Plaintiffs rely on an isolated

remark at the district court evidentiary hearing by Diana Maiden, the Department

employee in charge of Medicaid services, the same witness who discussed in

detail how the Department conducted the elaborate redetermination process

discussed above. True, Ms. Maiden said, “[W]e were not asking for a full re-

determination on all aspects of eligibility.” Aplt. App. at 436. It appears,

however, that she meant only that the counties were not required to review

eligibility requirements that apply to all Medicaid recipients, but were required

only to look at factors applicable to aliens. As noted in Defendant’s brief,

“[C]itizenship is a prerequisite to all other eligibility categories with the

-40-
exception of Supplemental Security Income (“SSI”) and IV-E Foster Care

recipients, [so] a full redetermination is unnecessary.” Aple. Br. at 20-21. Ms.

Maiden certainly was not saying that counties had no obligation to assess

alternative bases of eligibility for those whose existing eligibility was to be

eliminated by SB 03-176.

Also, although Plaintiffs have offered (minimal) evidence that one of the

named Plaintiffs may in fact remain eligible for Medicaid benefits even if SB 03-

176 is lawful, they have not provided evidence that the information establishing

eligibility could have been acquired through ex parte procedures, so we have no

reason to doubt the adequacy of the state’s ex parte review. And even if an error

was made, Plaintiffs have not shown that the error was systematic, rather that

being the isolated error of a single worker. Moreover, it appears that lapses in the

ex parte review would ordinarily be correctable through information requested

from recipients in the redetermination process conducted before termination of

benefits. (We note in particular that, as we read the record, Plaintiffs erred in

saying that county officials were not instructed to obtain relevant work histories

of spouses and parents.)

c. Propriety of Relief Requested

Plaintiffs have not shown a substantial likelihood of success on the merits

of their challenge to the Department’s redetermination process. They also have

-41-
failed to show a threat of irreparable injury. As we explain below, any person

subject to termination of benefits under SB 03-176 is entitled to a hearing before

termination. Errors in the redetermination process can be exposed at the hearing.

Given the absence of irreparable injury and the failure to show a substantial

likelihood of success on the merits, the district court did not abuse its discretion

in denying injunctive relief on this ground, regardless of how one evaluates the

remaining two factors relating to the propriety of such relief.

2. Right to Hearing

We next turn to Plaintiffs’ argument that the Department improperly

deprived certain recipients of their right to appeal the County’s decision through a

pre-termination hearing. Plaintiffs complain that those individuals who failed to

return their redetermination forms had their eligibility terminated without appeal

rights. This is improper, Plaintiffs argue, because the Medicaid Act and Due

Process Clause provide recipients a right to a hearing whenever the state takes

action to deny services or eligibility. Because we determine that Plaintiffs’ claim

succeeds under the Medicaid Act, we need not address constitutional due process.

We start with a brief review of the relevant facts. As part of the

redetermination process, the Department instructed counties to send packets to

affected individuals, seeking information that would allow the counties to

ascertain continued eligibility. If the first packet was not returned within 10 days,

-42-
a second packet, along with a Notice of Medicaid Closure form, was sent. If the

county received no response to the second packet, it was to terminate coverage.

As Plaintiffs point out, Department employee Ms. Maiden testified that those

individuals who failed to respond to two redetermination packets were terminated

without appeal rights (though she did indicate that those recipients could reapply

for Medicaid and have their eligibility reinstated if they came forward with

adequate documentation).

Turning now to the governing law, the Medicaid Act, 42 U.S.C.

§ 1396a(a)(3), states that a state agency must “provide for granting an opportunity

for a fair hearing before the State agency to any individual whose claim for

medical assistance under the [state] plan is denied or is not acted upon with

reasonable promptness.” Additionally, one of the implementing regulations, 42

C.F.R. § 431.220, directly addresses when hearings are required; it states:

When a hearing is required.

(a) The State agency must grant an opportunity for a hearing to the following:

(1) Any applicant who requests it because his claim for
services is denied or is not acted upon with reasonable promptness.

(2) Any recipient who requests it because he or she believes
the agency has taken an action erroneously.

....
(b) The agency need not grant a hearing if the sole issue is a Federal

-43-
 or State law requiring an automatic change adversely affecting some
or all recipients.

42 C.F.R. § 431.220 (emphasis added). If a hearing is requested, the affected

individual maintains eligibility pending the outcome of the hearing. 42 C.F.R.

§ 431.231; Volume 8, Colorado Medicaid Manual § 8.057.5. Thus, the hearing

contemplated by the regulations is in effect a pre-termination hearing.

Defendant relies on the exception created by § 431.220(b) to argue that the

Department was not required to provide hearings to individuals whose eligibility

was eliminated by SB 03-176. Because Plaintiffs contest only Defendant’s failure

to provide a hearing to those individuals who were terminated based on their

failure to return the redetermination forms, we limit our analysis to that issue.

We do not agree that § 431.220(b) applies here. In our view a law

imposing an automatic change in benefits is not “the sole issue.” Affected

individuals who did not timely return their redetermination forms could contest

several factual matters. For example, they could assert that they did return the

form but that the county lost it or failed to process it; or they could argue that

they never received either of the two redetermination forms the county allegedly

mailed. They might also be able to argue that they are eligible based on an

alternative eligibility category—40 quarters of work, veteran status, etc. The

potential for these various factual disputes makes inapplicable the hearing

exception provided by § 431.220(b).

-44-
 Such potential factual disputes renders Defendant’s reliance on Benton v.

Rhodes, 586 F.2d 1 (6th Cir. 1978), misplaced. Benton involved a new state

policy that categorically terminated certain types of supplies and services—over-

the-counter drugs, medical supplies, non-emergency ambulatory coverage, dental

services, speech therapy, etc.—that were provided to all Medicaid recipients. Id.

at 2. The court held that no hearings were required because the sole issue was

legal, not dependent upon the factual circumstances of individual recipients. See

id. at 3-4. There was no factual scenario in which people would otherwise qualify

for the supplies and services that the state law discontinued. See id.

Because § 431.220(b) is inapplicable, the other provisions of § 431.220

remain effective. Specifically, “[t]he State agency must grant an opportunity for

a hearing to . . . (2) Any recipient who requests it because he or she believes the

agency has taken an action erroneously.” 42 C.F.R. § 431.220. No such hearing

rights were recognized by the Department for those individuals who failed to

return their redetermination forms. Accordingly, we conclude that Plaintiffs have

shown a substantial likelihood of success on the merits of this issue. The other

factors clearly weigh in favor of Plaintiffs. We therefore reverse in part the

district court’s denial of a preliminary injunction. Defendant should be

preliminarily enjoined from denying a request for an appeal by one whose

benefits are to be terminated for failure to return a redetermination form.

-45-
 3. Sufficiency of Notice

Plaintiffs’ final argument is that the notice forms used by the Department to

terminate eligibility are facially invalid because “they fail to provide an adequate

statement of appeal rights or an explanation of the basis for the termination

sufficient to enable recipients to identify themselves as having been terminated

erroneously.” Aplt. Br. at 48. They contend that such information is required by

the Medicaid Act and regulations, as well as by the Due Process Clause.

The Medicaid Act’s implementing regulations set forth requirements for

notice related to the right to appeal and the reasons for termination. Addressing

appeal rights, 42 C.F.R. § 431.206 states that “[a]t the time of any action

affecting [a recipient’s] claim,” id. § 431.206(c),

(b) The agency must . . . inform every applicant or recipient in
writing--

(1) Of his right to a hearing;

(2) Of the method by which he may obtain a hearing; and

(3) That he may represent himself or use legal counsel, a
relative, a friend, or other spokesman.

42 C.F.R. § 431.206. Furthermore, 42 C.F.R. § 431.210 states that the notice
must contain—

(a) A statement of what action the State . . . intends to take;

(b) The reasons for the intended action;

-46-
 (c) The specific regulations that support, or the change in Federal or
State law that requires, the action;

(d) An explanation of—

(1) The individual’s right to request an evidentiary
hearing if one is available, or a State agency hearing; or

(2) In cases of an action based on a change in law, the
circumstances under which a hearing will be granted; and

(e) An explanation of the circumstances under which Medicaid is
continued if a hearing is requested.

42 C.F.R. § 431.210.

The constitutional right to due process may also impose notice

requirements. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970) (when

public welfare benefits are terminated, due process “principles require that a

recipient have timely and adequate notice detailing the reasons for a proposed

termination”).

Plaintiffs’ brief alleges that inadequate notice was provided by each of

seven different forms of notice used to implement SB 03-176—the Notice of

Medicaid Closure Form quoted above and six others. W e share Plaintiffs’

concern about the adequacy of notice provided by the forms. The notice of appeal

rights on certain forms appears to be inaccurate. Also, there is room for

-47-
improvement in some of the language explaining why benefits are being

terminated. Nevertheless, the factual record is so deficient that the district court

did not abuse its discretion in failing to find a likelihood of success on the merits.

The briefs do not explain, and the record before us does not reveal, critical

information regarding the notices, such as: (1) Which notice went to what

people? (2) Under what circumstances was the notice sent? (3) What other

information, if any, had previously been provided to the recipients? (4) Were

notices other than the seven challenged by Plaintiffs sent to persons to be

terminated? This information is essential to an assessment of whether language in

a notice is likely to be misleading to those who actually receive it.

This same lack of information also makes it impossible to determine who,

if anyone, is likely to suffer injury in the absence of better notice. It would be

inappropriate to issue an injunction with respect to all alien Medicaid recipients if

only a fraction are receiving improper notice.

In the absence of an adequate showing of either a likelihood of success or

irreparable injury, the district court did not abuse its discretion in denying

injunctive relief. The sole exception relates to notice to those who were

terminated for failure to return the redetermination forms. Defendant admits that

those persons were not notified of the right to request a hearing. We therefore

REVERSE the district court’s denial of a preliminary injunction requiring that

-48-
such persons be advised of the right to request a pre-termination hearing.

Moreover, we express the hope that Defendant will review all notices so that it

can revise and resend (or instruct the counties to resend) notice to those of the

3,500 affected persons who may have received inadequate notice.

III. CONCLUSION

We VACATE our injunction pending appeal and AFFIRM the district

court’s denial of Plaintiffs’ motion for a preliminary injunction, except that we

REVERSE in part and REMAND to the district court for entry of a preliminary

injunction prohibiting Defendant from terminating benefits to any member of the

class for failure to return redetermination forms unless the member has been

given notice of the right to request a pre-termination hearing.

-49-
Soskin v. Reinhartson, 03-1162
HENRY, J., dissenting:
I. Introduction

Although America is very much a nation of immigrants, portions of its

history are replete with instances of discriminatory policies and practices against

aliens. “Whether it is founded on economic protectionism, xenophobia, or other

motivations, aliens frequently have been denied benefits and privileges accorded

to citizens.” E RWIN C HEMERINSKY , C ONSTITUTIONAL L AW : P RINCIPLES AND

P OLICIES § 9.5.1 at 738 (2d ed. 2002). Even the judiciary, charged under the

Constitution with the protection of rights, does not have a pure historical record.

See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); see also William H.

Rehnquist, The Supreme Court: How it Was, How it Is 313 (1987) (“But a

governmental order classifying people solely on the basis of race without any

inquiry into disloyalty in a particular case undoubtedly strains the bounds of the

Constitution even in time of war.”). Fortunately, the Supreme Court clearly

reversed that trend in Graham v. Richardson, 403 U.S. 365, 372 (1971), holding

that strict scrutiny is appropriate to safeguard the constitutional rights of aliens. 1

1
This history is certainly counter-intuitive for a nation populated not just at
the outset, but through its history, by recurrent waves of immigration. For
example “early twentieth-century restrictionists viewed Italians and Eastern
Europeans (especially Jews) as outside their ‘race.’” Hiroshi Motomura, Whose
Alien Nation?: Two Models of Constitutional Immigration Law, 94 Mich. L. Rev.
1927, 1931 (1996). This is particularly morally ironic, noting that Jewish law is
one of the major foundations for modern equal protection doctrine. See Richard
Elliott Friedman, Commentary on the Torah 385 (2001) (“And if an alien will
reside with you in your land, you shall not persecute him. The alien who resides
(continued...)
 In the case at bar, the majority has advanced a deft methodology, but it

disregards the Supreme Court’s mandate that we apply strict scrutiny to a state’s

classification of persons on the basis of United States citizenship for the purposes

of distribution of economic benefits. Colorado’s program undisputedly

discriminates between subclasses of legal aliens and classifies a group of legal

aliens as ineligible for benefits. The majority holds that, under Graham and its

progeny, if the federal government expresses a policy that gives the states the

option to provide coverage for legal aliens, then we apply rational review to the

state’s actions. In refusing to apply strict scrutiny to Colorado’s classification of

legal immigrants as ineligible for Medicaid coverage, the majority compromises

this court’s equal protection jurisprudence, as Colorado S.B. 03-176 compromises

the rights of legal, tax-paying, and military-serving aliens.

1
(...continued)
with you shall be to you like a citizen of yours, and you shall love him as yourself,
because you were aliens in the land of Egypt. I am the YWWH, your God.”
(trans. of Leviticus 19:33-34)) (emphasis supplied). “Earlier and in like manner,
many who sought to preserve American ‘racial purity’ in the mid-nineteenth
century did not consider the Irish to belong to the same race as Anglo-Saxon
Protestant immigrants.” Motomura, supra, at 1931.
-2-
 II. The General Rule

In Graham, the Supreme Court reiterated that the Fourteenth Amendment

mandates that “classifications based on alienage, like those based on nationality or

race, are inherently suspect and subject to close judicial scrutiny.” 403 U.S. at

372 (footnotes omitted). The protections of the Fourteenth Amendment have long-

applied to non-citizens; indeed, its “provisions are universal in their application[]

to all persons within the territorial jurisdiction[] without regard to any difference

or race, or color, or of nationality.” Yick Wo v. Hopkins, 118 U.S. 356, 369

(1886).

We have long recognized that “[a]liens as a class are a prime example of a

discrete and insular minority for whom such heightened judicial solicitude is

appropriate.” Graham, 403 U.S. at 372 (internal quotation marks and citation

omitted); see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

As the late Professor John Hart Ely, one of America’s most distinguished

constitutional scholars observed, the “Equal Protection Clause is properly read to

extend unusually strenuous protection to aliens.” John Hart Ely, Democracy and

Distrust 194 n.51 (1980). In fact, Professor Ely also argued that the Privileges and

Immunities Clause could, and perhaps should, be read to apply to aliens. See id. at

24-25.

The unbiased treatment of legal aliens–the “strangers at thy gates”–is more

than simply a long-standing tradition from which U.S. citizens have benefitted: it
-3-
is a bedrock principle of the development of law-based nations and cultures

throughout history. Recent policy initiatives underscore our nation’s abidance to

the tenet of nondiscrimination based on national origin. See, e.g., Exec. Order No.

13,166 (delineating parameters for the provision of meaningful access to federal

programs for persons of limited English proficiency to assure compliance with

Title VI of the Civil Rights Act of 1964, as amended, and its implementing

regulations).

The recognition of aliens as a discrete and insular minority partially stems

from the preclusion of aliens from voting. Aliens are thus unable to protect

themselves through the normal democratic process. See Toll v. Moreno, 458 U.S.

1, 21 (1982) (Blackmun, J., concurring) (“[T]he Court always has recognized that

aliens may be denied use of the mechanisms of self-government, and all of the

alienage cases have been decided against the backdrop of that principle.”).

Justice Blackmun, concurring in Toll v. Moreno, gave a compelling

explanation of the Court’s consistent treatment of the discrete class of aliens:

If anything, the fact that aliens constitutionally may be–and generally
are–formally and completely barred from participating in the process
of self-government makes particularly profound the need for
searching judicial review of classifications grounded on alienage. I
might add that the Court explicitly has endorsed this seemingly self-
evident proposition: in Hampton v. Mow Sun Wong, 426 U.S. 88
(1976), after noting that “[s]ome of [an alien’s] disadvantages stem
directly from the Constitution itself,” the Court declared that “[t]he
legitimacy of the delineation of the affected class [of aliens]
buttresses the conclusion that it is a discrete and insular minority . . .
and, of course, is consistent with the premise that the class is one
-4-
 whose members suffer special disabilities.” Id. at 102, n. 22.

Toll, 458 U.S. at 23-24 (Blackmun, J., concurring) (emphasis supplied).

Similarly, then-Associate Justice Rehnquist explained:

It is clear, therefore, that the reason alienage classifications receive
heightened judicial scrutiny is because aliens, qua aliens, are a
“discrete and insular” minority. Presumptively, such a minority
group, . . . is one identifiable by a status over which the members are
powerless. And it is no doubt true that all aliens are, at some time,
members of a discrete and insular minority in that they are identified
by a status which they are powerless to change until eligible to
become citizens of this country.

Nyquist v. Mauclet, 432 U.S. 1, 17-19 (1977) (Rehnquist, J., dissenting) (internal

quotation marks and citations omitted).

Because of the relatively powerless status aliens maintain in our society,

laws that create classifications based on alienage are presumptively invalid, and

the classification will be found to be constitutional only if the state can

demonstrate that the law is the least restrictive means to achieve a compelling

state interest. In re Griffiths, 413 U.S. 717, 721-22 (1973) (“In order to justify the

use of a suspect classification, a State must show that its purpose or interest is

both constitutionally permissible and substantial, and that its use of the

classification is necessary . . . to the accomplishment of its purpose or the

safeguarding of its interest.”) (internal footnotes and quotation marks omitted). 2

2
Although strict scrutiny review is the general rule when states create
(continued...)
-5-
As Justice Blackmun made clear, by labeling aliens as a discrete and insular

minority, the Court reiterated its “considered conclusion that for most legislative

purposes there simply are no meaningful differences between resident aliens and

citizens, so that aliens and citizens are persons similarly circumstanced who must

be treated alike.” Toll, 458 U.S. at 20 (Blackmun, J., concurring) (internal

quotation marks omitted). With this considered conclusion in mind, we turn to its

application to Colorado’s statute.

2
(...continued)
classifications based on alienage, the Supreme Court has created two discrete and
specific exceptions. The Court recognizes a self-government exception that
applies when a state creates a law excluding aliens from participation in its
democratic political institutions. Only rational basis review is used under this
exception. Thus, a “State, in the course of defining its political community, may,
in appropriate circumstances, limit the participation of noncitizens in the States’
political and governmental functions.” Toll, 458 U.S. at 12 n.17 (citing Cabell v.
Chavez-Salido, 454 U.S. 432 (1982); Ambach v. Norwick, 441 U.S. 68, 72-75
(1979); Foley v. Connelie, 435 U.S. 291, 295-96 (1978); Sugarman v. Dougall,
413 U.S. 634, 646-49 (1973)).
Second, the Supreme Court has recognized an exception to the application
of strict scrutiny in one case concerning undocumented or illegal aliens. In Plyler
v. Doe, 457 U.S. 202 (1982), the Supreme Court applied an intermediate level of
scrutiny and declared unconstitutional a Texas law that provided free public
education for children of citizens and lawfully admitted aliens, but required
undocumented aliens to pay for schooling for their children. The Court held that
strict scrutiny was inapplicable because illegal aliens cannot be treated as a
suspect class. Id. at 223. However, the Court applied more than rational basis
review, emphasizing the innocence of the children involved and the importance
that such children receive an education. Id. at 223-24. Here, of course, we are
dealing with legal aliens, who pay taxes and are eligible to serve in the military.
-6-
 A. The Twin Holdings of Graham v. Richardson

It is well-recognized that Graham established two distinct constitutional

hurdles for state legislation discriminating against legal immigrants: (a) Part II of

the opinion, which mandates that state legislation must satisfy strict scrutiny, 403

U.S. at 372 (“Aliens as a class are a prime example of a ‘discrete and insular’

minority for whom such heightened judicial solicitude is appropriate.”) (internal

citations omitted); and (b) Part III of the opinion, which holds that state legislation

must not encroach upon exclusive federal power, id. at 380 (“Since such laws

encroach upon exclusive federal power, they are constitutionally impermissible.”).

See also Toll, 458 U.S. at 30 (O’Connor, J., concurring) (recognizing the

encroachment of federal power as an “alternative ground” for striking the state

statute). The twin holdings of the Court are also apparent from the Court’s vote:

the Court unanimously held that state legislation cannot encroach upon exclusive

federal power. Justice Harlan did not join the Court’s equal protection ruling (Part

II of the opinion).

1. Strict scrutiny

In Graham, the Court considered a Pennsylvania law that made noncitizens

ineligible to receive public assistance and an Arizona statute that imposed a

durational residency requirement for welfare benefits on aliens but not on citizens.

Like Colorado’s S.B. 03-176, the Arizona statute served to discriminate only

within the class of aliens: “Aliens who met the durational residency requirement
-7-
were entitled to welfare benefits.” Nyquist, 432 U.S. at 8-9 (discussing Graham).

The Court nonetheless subjected the statutes to strict scrutiny and both statutes

were held unconstitutional. Graham, 403 U.S. at 372.

2. Encroachment of federal power

“As an alternative ground, the [Graham] Court also declared the law invalid

as an encroachment on federal power.” Toll, 458 U.S. at 30 (O’Connor, J.,

concurring). The plaintiffs do not challenge that the federal preemption holding of

Part III of the Graham opinion is not at issue here. Colorado is not imposing

“auxiliary burdens upon the entrance or residence of aliens,” because it is acting

pursuant to federal authorization in 8 U.S.C. § 1612(b). Graham, 403 U.S. at 379;

accord DeCanas v. Bica, 424 U.S. 351, 358 n.6 (1976) (discussing preemption and

noting that “state regulation not congressionally sanctioned that discriminates

against aliens lawfully admitted to the country is impermissible if it imposes

additional burdens not contemplated by Congress”). As such, we should focus on

the strict scrutiny holding in Part II of Graham.

B. Strict Scrutiny Post-Graham

As the majority notes, since Graham, “the Court has experienced no

noticeable discomfort in applying strict scrutiny to alienage classifications.” Toll,

458 U.S. at 22 (Blackmun, J., concurring); see Maj. op. at 16; see, e.g.,

-8-
Examining Bd. v. Flores de Otero, 426 U.S. 572, 601-02 (1976) (applying strict

scrutiny for limitations on state civil engineering licenses and noting that the

Court had “establish[ed] that state classifications based on alienage are subject to

strict judicial scrutiny”) (internal quotation marks omitted); Sugarman v. Dougall,

413 U.S. 634, 642 (1973) (holding that the exclusion of aliens from civil service

jobs denied them equal protection and that a “flat ban on the employment of aliens

in positions that have little, if any relation to a State’s legitimate interest, cannot

withstand scrutiny under the Fourteenth Amendment”); In re Griffiths, 413 U.S. at

721 (applying strict scrutiny to a state law that excluded aliens from being

licensed as attorneys); see also Cabell v. Chavez-Salido, 454 U.S. 432, 438 (1982)

(“[C]itizenship is not a relevant ground for the distribution of economic

benefits.”).

In Mathews v. Diaz, 426 U.S. 67 (1976), the Supreme Court upheld as

constitutional the amendments to the Social Security Act that conditioned an

alien’s eligibility for Medicare benefits on the alien’s continuous residence in the

United States for five years and admission for permanent residence. In doing so,

the Supreme Court recognized that

the relationship between the United States and our alien visitors has
been committed to the political branches of the Federal Government.
Since decisions in these matters may implicate our relations with
foreign powers, and since a wide variety of classifications must be
defined in the light of changing political and economic
circumstances, such decisions are frequently of a character more
appropriate to either the Legislature or the Executive than to the
-9-
 Judiciary.

426 U.S. at 81. Mathews also distinguished Graham, recognizing that its “equal

protection analysis . . . involves significantly different considerations because it

concerns the relationship between aliens and the States rather than between aliens

and the Federal Government.” Id. at 84-85. The Court explained that

[i]nsofar as state welfare policy is concerned, there is little, if any,
basis for treating persons who are citizens of another State differently
from persons who are citizens of another country. Both groups are
noncitizens as far as the State’s interests in administering its welfare
programs are concerned. Thus, a division by a State of the category
of persons who are not citizens of that State into subcategories of
United States citizens and aliens has no apparent justification,
whereas, a comparable classification by the Federal Government is a
routine and normally legitimate part of its business.

Id. at 85 (emphasis supplied). The Court thus articulated the “distinction between

alienage classifications imposed by the federal government and those created by

state and local governments.” Chemerinsky, supra, § 9.5.4. The federal

government, rather than the states or the judiciary, regulates the condition of entry

and residence of aliens. Mathews, 426 U.S. at 85. Thus, whereas the federal

government might “routine[ly] and normally” create divisions between citizens

and aliens as a “legitimate part of its business,” a similar division a by a state “has

no apparent justification.” Id. Because “the responsibility for regulating the

relationship between the United States and our alien visitors has been committed

to the political branches of the Federal Government,” id. at 81, the Supreme Court

-10-
afforded the statute a deferential standard of review. Id. at 82. The Court thus

upheld the federal program because it was not “wholly irrational” and served the

“legitimate” purpose of securing the fiscal integrity of the Medicaid program at

issue. Id. at 83, 85.

Particularly relevant here, as the majority notes, is that in the following

year, the Court applied Graham’s strict scrutiny analysis to invalidate a New York

law that limited financial aid for higher education to citizens, those who had

applied for citizenship, and those who declared an intent to apply when they

became eligible. Nyquist v. Mauclet, 432 U.S. 1 (1977). In explaining the

rationale of Mathews, the Court also noted that, “classifications by a State that are

based on alienage are inherently suspect and subject to close judicial scrutiny.”

Id. at 7 (emphasis supplied) (internal quotation marks omitted). “Congress, as an

aspect of its broad power over immigration and naturalization, enjoys rights to

distinguish among aliens that are not shared by the States.” Id. at 7 n.8. The

Court also emphasized the inherent discriminatory intent of the statute, noting that

the law “is directed at aliens and . . . only aliens are harmed by it.” Id. at 9.

III. Application of Graham by the Majority

Given this background of the Court’s consistent application of strict

scrutiny to a state statute that discriminates between citizens and resident aliens,

-11-
we turn to the majority’s analysis. The majority first recognizes that a “central

holding” of Graham is that “state laws creating citizen-alien classifications must

meet strict scrutiny.” Maj. op. at 16. But the majority soon reverses and declares

that Graham does not apply because “we have specific Congressional

authorization for the state’s action, the PRWORA.” Id. at 19. As a result, the

majority appears to have conflated the twin holdings of Graham, which has

resulted in a misapplication of Graham’s central tenet.

A. The Majority’s Misapplication of Graham

As indicated above, Graham held first, that we must subject a state’s

classifications based on alienage to “close judicial scrutiny.” 403 U.S. at 372. The

Court went on to hold that “[a]n additional reason” a state statute might not

“withstand constitutional scrutiny emerges from the area of federal-state

relations,” citing conflict with “overriding national policies” where the federal

government has occupied the field with its “superior authority.” Id. at 376-78

(emphasis supplied). As mentioned above, the plaintiffs do not argue that the

statute violates the preemption prong of Graham. Plaintiffs’ arguments stem

from the discrete strict scrutiny holding of Graham.

The majority correctly concludes that Mathews does not apply, because

“”[u]nlike Mathews, here we have a state-administered program.” Maj. op. at 19

-12-
(emphasis supplied). While holding that a rational basis test applies to federal

policy regarding an alien’s eligibility for welfare programs, the Court recognized

that a similar “division by a State of the category of persons who are not citizens

of that State into subcategories of United States citizens and aliens has no apparent

justification.” Mathews, 426 U.S. at 85. As the majority indicates, the circuit

cases applying rational basis to a federal statutory classification of aliens, as

administered by a state, routinely recognize that “the strict scrutiny standard does

apply to Fourteenth Amendment equal protection challenges to a state’s

classification of aliens.” Rodriguez v. United States, 169 F.3d 1342, 1347 (11th

Cir. 1999) (citing Graham); Aleman v. Glickman, 217 F.3d 1191, 1199 n.5 (9th

Cir. 2000) (recognizing that Mathews noted “equal protection analysis . . .

involves significantly different considerations [when] it concerns the relationship

between aliens and the States rather than between aliens and the Federal

Government”) (quoting Mathews, 426 U.S. at 84-85) (alterations in original); City

of Chicago v. Shalala, 189 F.3d 598, 605 (7th Cir. 1999) (“‘The States enjoy no

power with respect to the classification of aliens.’”) (quoting Plyler, 457 U.S. at

225); see also Lewis v. Thompson, 252 F.3d 567, 583 (2d Cir. 2001) (plaintiffs do

not contest that rational basis scrutiny applies to federal classification of

eligibility for welfare benefits to the extent that they are asserting harm to

themselves).

-13-
 B. The Majority’s Reading of the State Courts’ Application of Graham

Turning to the state courts that have applied restrictions and classifications

based on alienage, the majority presents Aliessa v. Novello, 754 N.E.2d 1085

(N.Y. 2001), and Doe v. Comm’r of Transitional Assistance, 773 N.E.2d 404

(Mass. 2002), as adopting contending approaches: Aliessa applied strict scrutiny to

a state’s termination of state Medicaid coverage for many qualified aliens, while

Doe applied a rational basis analysis to “state-made intra-alien classifications.”

Maj. op. at 23. In fact, a closer reading of the cases reveals that the New York

State Court of Appeals and the Massachusetts Supreme Court decisions are not

incongruous, but are in fact, complementary and represent a consistent application

of the Supreme Court’s jurisprudence in the wake of Graham.

1. Aliessa

The New York State legislature enacted Social Service Law § 122, which

terminated Medicaid for various non-qualified aliens and placed a five-year

residency requirement for eligibility for state Medicaid benefits. This latter group

included lawfully admitted permanent residents.

As the majority opinion points out, “[t]he parties’ equal protection

arguments in Aliessa mirrored those of the parties in this case: the plaintiffs

argued that the state law discriminated based on alienage and that strict scrutiny

should apply, and the state argued that it was acting with Congress’s permission

-14-
and that rational-basis review was appropriate.” Maj. op. at 21. The New York

Court of Appeals presented a convincing rejection of the New York statute at

issue:

We conclude that section 122 is subject to–and cannot pass–strict
scrutiny, notwithstanding title IV’s authorization. Because title IV
authorizes each State to extend the ineligibility period for Federal
Medicaid beyond the mandatory five years and terminate Federal
Medicaid eligibility for certain refugees and asylees after seven years
. . ., it is directly in the teeth of Graham insofar as it allows the States
to “adopt divergent laws on the subject of citizenship requirements
for federally supported welfare programs.” . . . Moreover, title IV
goes significantly beyond what the Graham Court declared
constitutionally questionable. In the name of national immigration
policy, it impermissibly authorizes each State to decide whether to
disqualify many otherwise eligible aliens from State Medicaid.
Section 122 is a product of this authorization. In light of Graham and
its progeny, title IV can give section 122 no special insulation from
strict scrutiny review. Thus, section 122 must be evaluated as any
other State statute that classifies based on alienage. We hold that
section 122 violates the Equal Protection Clauses of the United States
and New York State Constitutions insofar as it denies State Medicaid
to otherwise eligible PRUCOLs and lawfully admitted permanent
residents based on their status as aliens.

Aliessa, 754 N.E.2d at 1098-99 (internal citation omitted) (emphasis supplied); see

Maj. op. at 21-23.

2. Doe

In Doe, the Massachusetts Supreme Court applied rational basis analysis to

a supplemental benefits program that imposed a residency requirement on

qualified aliens applying for benefits. A key difference in the Massachusetts

Supreme Court’s analysis, noted in the majority opinion only by a parenthetical, is
-15-
that the program affected in Massachusetts was a supplemental benefits program

that was open to only aliens and designed to benefit only aliens; that is, the

program was enacted by the state legislature to supplement federal benefits that

had been taken away from Massachusetts aliens by Congress. See Doe, 773

N.E.2d at 411 (“It is undisputed that the Massachusetts Legislature was not

required to establish the supplemental benefits program. It is also undisputed that

the supplemental program provides no benefits to citizens, and that the only

persons eligible for benefits are qualified aliens.”).

The court held it axiomatic that the supplemental program crafted to restore

benefits to aliens could not discriminate against aliens and in favor of citizens. Id.

(“[W]e are left to determine what standard of review to apply to a State law that

does not discriminate between citizens and aliens.”). Thus, noting the “critical

differences” between the New York and Massachusetts statutes, 773 N.E.2d at

412, and heeding the admonitions of Nyquist that strict scrutiny applies to a

statute that “discriminate[s] only within the class of aliens,” 432 U.S. at 8, the

Massachusetts Supreme Court determined that Aliessa’s strict scrutiny review

could not apply. See Doe, 773 N.E.2d at 412 (distinguishing Nyquist: Unlike the

New York statute at issue there, “the Massachusetts statute establishes a program

open only to aliens, imposes a residency requirement on all who are qualified to

apply for its benefits, and does not harm aliens by barring them from the benefits

of the program.”); id. at 413 (distinguishing Aliessa: “Unlike the supplemental

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program created [by the Massachusetts Legislature], the amended New York State

Medicaid program presented . . . the very paradigm so definitively addressed in

Graham.”). It is this distinction between the Colorado and Massachusetts statutes

that mandates we view S.B. 03-176 through the lens of strict scrutiny. Thus, the

Massachusetts court did not reach a decision inconsistent with Aliessa; in fact, the

court cited Aliessa with approval and carefully distinguished its holding. Id. at

413.

IV. Other Arguments Presented by the Defendant

The defendant vehemently resists the application of strict scrutiny to S.B.

03-176 and professes three additional or alternative reasons to apply rational basis

examination: (1) Colorado’s need to protect its fiscal integrity; (2 ) S.B. 03-176

reallocates federal, not state benefits; and (3) PRWORA actually authorized the

enactment of S.B. 03-176. None of these arguments is persuasive.

A. Fiscal Integrity

First, the defendant cites Colorado’s vital economic interest in

promulgating S.B. 03-176, arguing that the measure is necessary to balance the

$850 million budget deficit. The State estimates that it will save $5.9 million (or

0.67% of the total $869 million in the State’s budget deficit) annually by

eliminating medical coverage to legal aliens.

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 In applying a rational basis test to the pro-alien statute at issue in Doe, the

Massachusetts Supreme Court clearly considered the purpose and the “clearly

noninvidious intent behind [the program’s] promulgation” when it applied the

rational basis test. See Maj. op. at 24 (quoting Doe, 773 N.E.2d at 414) (emphasis

supplied). Here, we only have the self-professed state interest of fiscal integrity,

which has been squarely rejected by the United States Supreme Court:

[A] State has a valid interest in preserving the fiscal integrity of its
programs. It may legitimately attempt to limit its expenditures,
whether for public assistance, public education, or any other program.
But a State may not accomplish such a purpose by invidious
distinctions between classes of its citizens. The saving of welfare
costs cannot justify an otherwise invidious classification.

Graham, 403 U.S. at 374-75 (internal quotation marks omitted) (emphasis

supplied). The impact upon the State is “not very significant in comparison to the

irreparable harm that would be caused” to those denied coverage. Kansas Hosp.

Ass’n v. Whiteman, 835 F. Supp. 1548, 1553 (D. Kan. 1993). Furthermore, “[t]he

state is in a much better position to absorb the budgetary impact of delayed

implementation of the amendment as compared to individual plaintiffs.” Id. 3

3
Apart from the legal problems this statute faces, it is not completely clear that
it would pass a rational basis test. As noted, the aliens affected by S.B. 03-176
include those who pay taxes–just like all other law-abiding Coloradans–and those
legal aliens who serve in the military. Furthermore, there is no indication that
immigrants will require more public assistance that similarly situated natives. See
Robert Kaestner, “Should Immigrants Be Singled Out?” 15 P OL ’ Y F. 1 (2002). In
fact, recent studies have indicated that “immigrants are more likely than similarly
situated natives to achieve economic self-sufficiency,” irrespective of public
benefits. Id. at 3. “[I]mmigrants are not a group in need of unusually strong
(continued...)
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Colorado’s suggestion that the preservation of its fiscal integrity, through a

projected savings of $5.9 million, warrants the upholding of S.B. 03-176 is not

sustainable.

B. S.B. 03-176 Reallocates Federal, not State Benefits

Second, the defendant’s argument that S.B. 03-176 is essentially a

reallocation of federal, not state, benefits does not insulate its discriminatory

program from strict scrutiny review. The defendant emphasizes Congress’s

reading of Graham’s holding as one curtailing the states from “deny[ing] legal

permanent residents State-funded assistance.” Aple’s Br. at 14 (quoting H.R.

Conf. Rep. No. 104-725 (1996)) (emphasis supplied). In addition, the district

court denied a preliminary injunction largely because “[t]he program at issue here

is not a state-only funded program as in Graham and Aliessa.” Dist. Ct. Order at

8. S.B. 03-176 impacts a “jointly funded component of Medicaid.” Id.

(...continued)
incentives to become economically self-sufficient.” Id. The denial of benefits
will not necessarily reduce the composition or number of immigrants locating in
any particular state. Id.
Colorado’s enactment of S.B. 03-176 was largely based on reallocating
public resources in an effort to achieve a balanced budget, Aple’s Br. at 28, and
this decision appears to have no compelling rationale, apart from “anti-immigrant
sentiment.” Kaestner , supra, at 3. Noting that rational basis tests require more
rationality than they used to, it is not clear to me on this record that the statute
meets rationality. I do not reach this, however, because the proper test is strict
scrutiny, and it is clear that “level of scrutiny is essentially dispositive of [this]
litigation.” Dist. Ct. Order at 7.

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 However, Graham’s strict scrutiny analysis was in no way limited to state-

funded programs. See Graham, 403 U.S. at 367 (noting that the Arizona state

program was “supported in part by federal grants-in-aid and administered by the

States under federal guidelines”); id. at 368 (noting that Pennsylvania’s general

assistance program was “not federally supported”); id. at 376 (striking down both

statutes for failure to satisfy strict scrutiny); see also Nyquist, 432 U.S. at 3 n.2

(applying strict scrutiny to loan program in question which was “largely

subsidized by the Federal Government”). Thus, the defendant’s reliance on the

statute’s mis-reading of Supreme Court case law is unpersuasive.

In a similar vein, the defendant maintains that Congress has devolved its

plenary powers to determine alien eligibility for welfare benefits, by “allowing

states to choose to extend benefits to other subgroups [of aliens] when

administering federal programs.” Aple’s Br. at 14. As noted above, plaintiffs

concede that PRWORA grants the states the power to act under § 1612(b). As

such, this analysis only applies to Part III of Graham, not to Graham’s strict

scrutiny analysis in Part II of the opinion.

“The authority to control immigration–to admit or exclude aliens–is vested

solely in the Federal government.” Truax v. Raich, 239 U.S. 33, 42 (1915); see

also The Federalist No. 32, at 201 (Alexander Hamilton) (Jacob E. Cook, ed.,

1961) (noting that the federal government had exclusive jurisdiction where the

Constitution granted Congress the power to make uniform laws, and “[t]his must
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necessarily be exclusive; because if each State had power to prescribe a DISTINCT

rule, there could be no UNIFORM rule”). To permit a comprehensive Congressional

devolution of its exclusive powers would be tantamount to saying “that those

lawfully admitted to the country under the authority of the acts of Congress,

instead of enjoying in a substantial sense and in their full scope the privileges

conferred by the admission, would be segregated in such of the states as chose to

offer hospitality.” Truax, 239 U.S. at 42. To allow such divergence and

discrimination in the welfare rights arena would be to ignore the “crucial role . . .

such benefits play in providing the poor with ‘means to obtain essential food,

clothing, housing, and medical care.’” Nyquist, 432 U.S. at 13 (Burger, C.J.,

dissenting) (quoting Goldberg v. Kelly, 397 U.S. 254, 264 (1970); id. (“Welfare

benefits [are] essential to sustain life for aliens [eligible for such benefits.]”)).

See also Plyler, 457 U.S. at 219 n.19 (“[I]f 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.”) (citing DeCanas, 424 U.S. 351) (preemption case focusing on

supremacy clause and the INA)).

As the New York Court of Appeals noted, “[i]f the rule were uniform, each

State would carry out the same policy under the mandate of Congress.” Aliessa,

96 N.E.2d at 1098 (emphasis supplied); see Wendy Zimmermann and Karen C.

Tumlin, Patchwork Policies: State Assistance for Immigrants Under Welfare

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Reform (The Urban Institute 1999), available at

http://www.urban.org/url.cfm?ID=309007. To apply PRWORA as the defendants

interpret it, Congress is advocating “potentially wide variation based on localized

or idiosyncratic concepts of largesse, economics and politics,” which only

“exacerbates the lack of uniformity.” Aliessa, 754 N.E.2d at 1098. Moreover, the

United States concedes that PRWORA promotes such variations noting that it

“represents a compromise on a difficult public policy question because it enables

some States to be relatively generous without imposing an unacceptably heavy

burden on other States.” U.S. Br. at 17 (emphasis supplied). To allow a

patchwork of state policies to prop up this admitted compromise does not support

Colorado’s construction of PRWORA. Indeed, the government’s candid and

proper admission that Congress could not decide on a federal policy but achieved a

“compromise” clearly reveals no uniform policy was adopted.

C. PRWORA Authorized the Enactment of S.B. 03-176

Third, the defendant argues that Title IV of PRWORA authorized

Colorado’s enactment of S.B. 03-176. To apply separate standards of review to

states that act pursuant to PRWORA would lead to “an absurd construction of

PRWORA.” Aple’s Br. at 11. The benefits Congress delineated as “optional”

become “mandatory.” Id.

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 The Supreme Court rejected a similar argument put forth by Arizona in

Graham. In Part IV of its opinion, the Court considered, and rejected, Arizona’s

argument that the durational requirement was actually authorized by federal law.

The Court stated that “[o]n its face, the statute does not affirmatively authorize,

much less command, the States to adopt durational residency requirements or

other eligibility restrictions applicable to aliens.” 403 U.S. at 381.

Under this theory, there would be few if any limits to a state’s ability to

discriminate against legal immigrants once given the “option.” In Graham, the

Court considered the legislative history of the Congressional acts at issue, and

rejected this theory. The Court noted that to the extent Congress sought to

“authorize discriminatory treatment of aliens at the option of the States . . . serious

constitutional questions are presented.” Graham, 403 U.S. at 382 (emphasis

supplied).

In addition, Congress itself anticipated that state laws that alter legal aliens’

eligibility for jointly funded benefit programs enacted pursuant to § 1607 would

be subject to strict scrutiny. Section 8 U.S.C. § 1601(7) states:

With respect to the State authority to make determinations concerning
the eligibility of qualified aliens for public benefits in this chapter, a
State that chooses to follow the Federal classification in determining
the eligibility of such aliens for public assistance shall be considered
to have chosen the least restrictive means available for achieving the
compelling governmental interest of assuring that aliens be self-
reliant in accordance with national immigration policy.

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Id. Congress clearly anticipated that state statutes would be challenged, and hoped

that in explaining Graham and enunciating that such state policies would satisfy

Graham’s strict scrutiny, the state programs might survive strict scrutiny. 4 See

H.R. R EP . N O . 104-651, at 1445-46. But in our constitutional structure it is for the

courts to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803), and, “[a]lthough the Federal Government admittedly has broad

constitutional power to determine what aliens shall be admitted to the United

States, the period they remain, and the terms and conditions of their naturalization,

Congress does not have the power to authorize the individual States to violate the

Equal Protection Clause.” Graham, 403 U.S. at 382 (emphasis supplied). As a

result, S.B. 03-176 would be still subject to strict scrutiny.

V. Conclusion

“Resident aliens are obligated to pay their full share of the taxes that

support the assistance programs [at issue.]” Nyquist, 432 U.S. at 12. The Court’s

“previous decisions have emphasized that immigrant aliens have been lawfully

4
As indicative of the true workings of the Colorado statute, I also emphasize
the language of the Notice of Medicaid Closure form that was to be sent to
recipients that did not return the redetermination packet. See Maj. op. at 38. The
Notice states that
The household member(s) listed above lost their Medicaid because a
new state law changed the citizenship requirements for the program.
Aplt’s App. at 136 (emphasis supplied). Question (2) of the redetermination
packet asked “Is this person a U.S. citizen?” Id. at 132. Clearly, the State
recognizes that the entirety of the class is affected.
-24-
admitted to this country for permanent residence and share many of the normal

burdens of citizenship, such as the duty to pay taxes and to serve in the Armed

Forces.” Toll, 458 U.S. at 44 (Rehnquist, J., dissenting) (citing Nyquist, 432 U.S.

at 12; Hampton, 426 U.S. at 107 n.30; Sugarman, 413 U.S. at 645; Graham, 403

U.S. at 376).

“[T]he denial of benefits cannot be justified on the grounds that

immigrants are an especially poorly motivated group that is unlikely to achieve

economic self-sufficiency.” Kaestner, supra, at 4. We cannot forget that the laws

that work to the disadvantage of those underrepresented in the political process are

subject to a “more searching judicial inquiry” than the inquiry that the majority

applies. Carolene Prods. Co., 304 U.S. at 152 n.4. If Congress wants to pass a

uniform policy under its plenary immigration powers, it is certainly free to do so.

But our “constitutional law appropriately exists,” as Dean Ely so ably stated, “for

those situations where representative government cannot be trusted, not those

where we know it can.” E LY , supra at 183. The Constitution protects minorities,

which we all are, in one way or another.

Accordingly, I dissent. 5

5
Because I would reverse the district court’s denial of a preliminary injunction to
the plaintiffs, I do not separately address the procedural violations alleged by
plaintiffs. To the extent that the majority reverses the district court’s denial of a
preliminary injunction for purposes of redetermination, I agree with this holding.
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