Because I believe that neither the court below nor the majority may usurp the function of the Legislature to convert an appropriation for a supplement to a federal benefit into a fully-fledged, new state-funded program, I must respectfully dissent.
Until 1996, the plaintiffs in this class of elderly, blind and disabled persons who are lawful residents of New York State but are not American citizens were eligible for federal Supplemental Security Income (hereinafter referred to as SSI) benefits, and consequently were also eligible for an additional state payment (ASP) pursuant to Social Services Law §§ 207-212. However, with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter referred to as the Welfare Reform Act) (tit IV, codified at 8 USC § 1601 et seq.), Congress denied federal benefits like SSI and food stamps to certain categories of qualified aliens, distinguishing between them and U.S. citizens. The Welfare Reform Act further provided that states that had made provisions for additional payments like New York’s ASP, and which had also entered into agreements whereby the federal government administered the supplemental program, were bound by the restrictions. (See 8 USC § 1612 [a] [1], [3] [A]; 20 CFR 416.2040.) As a result, the plaintiffs in this class action who for various reasons1 became ineligible for SSI, lost their ASP.
*212It is uncontested that the plaintiffs then became eligible for, and currently receive, public assistance pursuant to Social Services Law § 131-a. However, the monthly payments are less than the payment they received as a combined SSI and ASP federal benefit. 2
The plaintiffs commenced this action seeking an increase in their state public assistance to the level they claim was established as a separate “standard of monthly need” for the aged, blind and disabled by the Legislature in Social Services Law § 209 (2) when it set the amounts for the ASP The plaintiffs did not dispute that the ASP was denied them because it was inextricably linked to eligibility for the federal SSI benefits. Nor did the plaintiffs seek reinstatement of their SSI or ASP payments under the federal program. Instead, the plaintiffs sought to be provided with public assistance benefits by the administrative mechanisms of Social Services Law § 131-a but calculated at the higher amount established by Social Services Law § 209 (2).
In effect, the plaintiffs “hung their hat” on the assertion that the Legislature had established a higher standard of need for the aged, disabled and blind as a general class in Social Services Law § 209 (2). On a motion for summary judgment, they argued that the State’s failure to increase their benefits is a violation of article XVII, § 1 of the New York Constitution, which imposes an affirmative duty on the State to aid the needy. The plaintiffs also argued that by denying such increased benefit to persons based solely on immigration status, the State is violating their equal protection rights under both the Federal and State Constitutions.
The motion court agreed with the plaintiffs, holding that the standard of need set out in Social Services Law § 209 (2) was *213the State’s “independent determination of the level of assistance appropriate for such [aged, blind and disabled] persons in New York” (9 Misc 3d 1109[A], 2005 NY Slip Op 51462[U], *5) and thus the State was obliged to meet that level according to article XVII, § 1 of the New York Constitution. The court also held that the State’s disparate treatment of plaintiffs based solely on immigration status violated their equal protection rights. Further, the motion court ordered retroactive payments to be made to the plaintiffs to bring them up to the level of assistance they would have received pursuant to Social Services Law § 209 (2) before they became ineligible on immigration status grounds, and to continue their payments on that basis.
On appeal, defendant, the Commissioner of the New York State Office of Temporary and Disability Assistance (hereinafter referred to as OTDA), sought to reverse this separation-of-powers violation wherein the lower court has impermissibly rewritten statutory provisions resulting in a grant of appropriations by judicial decision rather than legislative enactment. For the reasons set forth below, I believe that the motion court and the majority ignored history, plain language, legislative intent and the principles of statutory construction.
As a threshold matter, OTDA does not argue with the fact that historically, the State has expressed, as a “special matter of state concern and a necessity in promoting the public health and welfare,” the need to provide for the care and relief of the aged and disabled. (See e.g. L 1930, ch 387, § 1, adding Public Welfare Law § 122; L 1951, ch 77, § 1, adding Social Services Law § 300.) However, the Aid to the Aged, Blind and Disabled programs (hereinafter referred to as AABB) providing relief to these groups have changed over time.
Most significantly, in 1972, the federal government assumed responsibility for this group, enacting the SSI program to provide cash assistance to the aged, blind and disabled with little or no income. (See 42 USC § 1381 et seq.) This program, effective January 1974, provided cash for food, shelter, clothing, medical care and other items. From its inception, SSI excluded various persons for various reasons; for example, alcoholics or drug addicts who did not participate in treatment, and individuals outside the country. (42 USC § 1382 [e], [f]; 20 CFR 416.202.)
In December 1973, the federal government enacted the Mandatory Minimum State Supplementation of Supplemental Security Income Benefits amendment. This required the states to provide one of two types of supplements. The first type of *214supplement was required where pre-SSI benefits were higher than what SSI was providing. (See 42 USC § 1382.) That is, states had to make up the difference so that the SSI benefits and the state benefits combined could be no less than the person was receiving under the former state program for the aged, blind and disabled. The other type of supplement permitted states to adopt optional state supplements through which the state could provide amounts above the SSI payments.
In 1974, because the federal government had assumed responsibility for the aged, blind and disabled, New York State altered its policies and obligations with respect to this group. It repealed its AABD programs and replaced them in their entirety with the federal SSI program by the enactment of “Title 6—Additional State Payments for Eligible Aged, Blind and Disabled Persons” (ASP). (L 1974, ch 1080, § 1, adding Social Services Law §§ 207-212.)
The states had two options for administration of the supplemental payments. They could enter into an agreement with the Social Security Administration, under which the federal government would administer the distributions based solely on federal standards of eligibility, or the state could administer the supplements itself. (42 USC § 1382e [a]-[b].) New York entered into an agreement for federal administration of its supplemental payments to the aged, blind and disabled. (See Social Services Law § 211.)
As a result, the federal government administers and determines eligibility for the state supplemental payments in tandem with SSI benefits. In fact, ASP eligibility is governed by federal law, which provides that the only aged, blind and disabled who are eligible for ASP are those who are eligible for SSI benefits “or who would but for their income be eligible to receive [SSI] benefits.” (See 42 USC § 1382e [a].) Thus, the New York Legislature enacted provisions to parallel the federal provisions. (See Social Services Law §§ 207-212; see also Social Services Law § 122 [1] [f].)
The plaintiffs do not challenge the constitutionality of these provisions or seek reinstatement in the federal program. Instead they contend that by enacting these provisions, specifically Social Services Law § 209 (2) which sets the amounts of the supplemental payments, the Legislature set a higher and different standard of need for the aged, blind and disabled. They contend, therefore, that the State’s failure to meet that level violates New York Constitution, article XVII, § 1 which states *215that, “The aid, care and support of the needy are public concerns and shall be provided by the state . . .
The most pertinent question then is, whether Social Services Law § 209, in fact, establishes a state-recognized, higher “standard of need” for the aged, blind and disabled of the state. OTDA contends that it does not.
OTDA asserts that sections 207-212 were enacted only as SSI supplements, and were not intended to set a “standard of need” as a general matter of public assistance. OTDA further points to the fact that the Legislature repealed its prior assistance to the aged, blind and disabled, and that sections 207-212 are not listed under the definition of “public assistance” in Social Services Law § 2 (19). (See also Matter of Garvey v Kirby, 94 AD2d 702, 703 [2d Dept 1983] [a person receiving SSI benefits is not within the statutory definition of one receiving public assistance].)
Indeed, it is uncontested that when the Legislature enacted the ASP (Social Services Law, art 5, tit 6, §§ 207-212, as added by L 1974, ch 1080, § 1), it repealed the prior AABD programs and transferred those recipients from the AABD programs to the SSI program. (L 1974, ch 1080, §§ 3-4.) It further amended “Public assistance and care” by striking out reference to “old age assistance, assistance to the blind, [and] aid to the disabled.” (Id. § 5, amending Social Services Law § 2 [20].)
OTDA also asserts that sections 207-212 repeatedly refer to supplemental payments to the federal benefits for eligible recipients and do not by any reference or cross-reference award such payments to any aged, blind or disabled who are not eligible for the federal program. OTDA thus maintains that there is no indication of any legislative intention to create a separate article XVII, § 1 public assistance program for the aged, blind and disabled who are not eligible for the federal program.
I find OTDA’s arguments persuasive. First, a plain reading of title 6 clearly evinces the Legislature’s intention to limit the additional state payments to a certain subgroup of the State’s aged, blind and disabled. The title 6 heading is: “Additional State Payments for Eligible Aged, Blind and Disabled Persons” (emphasis added].)
Second, Social Services Law § 207 in its “Declaration of purpose” of ASP clearly describes the eligible subgroup as those who are eligible for, and receiving SSI benefits or who would be receiving them but for their income:
*216“The legislature hereby declares its commitment to meeting the income needs of aged, blind and disabled persons who are receiving basic supplemental security income benefits or whose income and resources, though above the standard of need for the supplemental security income program, is not sufficient to meet those needs. In order to maintain assistance for such persons at a level consistent with their needs, and in order to fully employ available federal aid for the benefit of such persons residing in this state, there is hereby established a state-wide program of additional state payments for aged, blind and disabled persons” (emphasis added).
The description of those eligible for ASP tracks the language of the federal statute. (See 42 USC § 1382.) It also makes quite clear that the ASP is mandated by federal law and not by any independent state grant of aid. (See Social Services Law § 207 [“in order to fully employ available federal aid . . . there is hereby established a state-wide program of additional state payments”].)
Further, Social Services Law § 209 repeatedly refers to “additional state payments” and “eligible” persons, evincing an intent that such figures should be used only to determine the State’s additional payments under ASP, and only for those recipients eligible to receive federal benefits of SSI.
I can find nothing either in the plain language of the statute or legislative history to suggest that the Legislature was enacting a general standard of need that applied or would apply if the federal government denied SSI to an aged, blind or disabled person. Indeed, the majority does not point to any provision in the state law authorizing a state payment to every aged, blind, or disabled person regardless of their eligibility for SSI. Further, when faced with the potential exclusion of some aged, blind and disabled recipients by the Welfare Reform Act, the 1997 Legislature did not alter the language of the statutes establishing ASP to provide a specific benefit under a section 209 (2) standard of need, and made no cross-reference of that standard of need into the provisions of public assistance pursuant to Social Services Law §§ 131 and 131-a.
Consequently, I conclude that the motion court erred in finding that the State’s failure to pay increased benefits to this group was a violation of article XVII, § 1 of the New York Constitution which states: “The aid, care and support of the needy *217are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.”
In effect, this article provides the Legislature with discretion in determining the means by which this objective is to be achieved, in determining the amount of aid and in classifying recipients and defining the term “needy.” (See Matter of Aliessa v Novello, 96 NY2d 418, 428 [2001] [“New York is not required to meet every legitimate need of every needy person . . . (T)he Legislature may determine who is ‘needy’ and allocate the public dollar accordingly”].)
In the instant case, it is clear that the Legislature does not recognize the aged, blind and disabled as a separate group of recipients or separate or special class of “needy,” much less as a class or group with a different state-recognized “standard of need.” (Social Services Law § 207.) Their classification as a group for purposes of ongoing financial aid appears only in the context of a federally funded and federally administered welfare program.
Any assertion that the State could have just continued to provide the same section 209 (2) level of support to the plaintiffs rather than relegating them to receiving benefits at the lower standard of public assistance substitutes sentimentality for legal analysis. As even the plaintiffs themselves concede, the provision of such benefits could not be continued under Social Services Law § 209 which is inextricably linked to federal SSI eligibility. Yet, to simply agree with the lower court that such increased benefits must now be paid by utilizing the administrative mechanisms of the public assistance program pursuant to an entirely different and separate statutory provision is to ignore the reality that such mixing and matching by judicial fiat essentially and impermissibly usurps the role of the Legislature.
I conclude that the motion court also erred in finding a violation of the plaintiffs’ equal protection rights under both the Federal and State Constitutions. OTDA asserts that the denial of the additional state payment to this class of aliens is mandated by federal law, and so, while the State may not distinguish based on immigration status, the federal government is authorized to do so, and the State must comply with this federal law.
The plaintiffs, on the other hand, rely on Matter of Aliessa v Novello (96 NY2d 418 [2001]) to assert that they seek state assistance, and that, where states retain discretion in allocating *218welfare benefits they may not discriminate against lawful aliens in exercising that discretion. In Aliessa, the State, pursuant to Social Services Law § 122, denied state Medicaid benefits to legal aliens permanently residing in the United States under color of law (PRUCOLs). Those aliens asserted that section 122 violated article XVII, § 1 of the New York Constitution, as well as the Equal Protection Clauses of the State and Federal Constitutions. The Court of Appeals agreed. With regard to the equal protection claim, the Court noted that, when allocating welfare benefits, the Constitution does not prohibit Congress from distinguishing between aliens and citizens. (Id. at 433, citing Mathews v Diaz, 426 US 67, 69, 77-81 [1976].) However, as the Court noted, “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.’ ” (Aliessa at 433, quoting De Canas v Bica, 424 US 351, 358 n 6 [1976].)
Thus, while Congress may authorize a uniform immigration rule for states to follow, nevertheless, where states retain discretion, they may not discriminate against lawful aliens in exercising that discretion. Given that such discretion existed with Social Services Law § 122 in Aliessa, the Court found that section 122 was subject to strict scrutiny and could not pass that test.
The plaintiffs’ reliance on Aliessa is totally misplaced, however. In that case, the Court reviewed only the state-funded portion of the Medicaid program. (Id. at 421-422.)3 Thus, discretion existed because it was a solely state-funded and state-administered Medicaid program where the State, at its own option, had included residents who were ineligible for the federally subsidized program. Moreover, that state program was already in place when the Aliessa plaintiffs were denied benefits, unlike in the instant case where there is no state-funded or state-administered assistance program in existence specifically for the aged, blind and disabled.
It is uncontested that the only state-funded and administered public assistance program that is in place for all classes of “needy” residents has not denied benefits to the plaintiffs but *219includes them as recipients regardless of their immigration status. Further, New York does not pay the Social Services Law § 209 standard of need in the form of state public assistance to any person or group. There is, therefore, simply no state law classification that warrants finding an equal protection violation.
Finally, the plaintiffs asserted that because there is no prohibition against providing increased benefits to the plaintiffs by some other means, such as through the state public assistance programs (see 42 USC § 1382e [a]), the failure to set in motion the mechanisms to do so is an equal protection violation. In my opinion, this is error. While it is true that federal law authorizes states to enact laws extending “any State or local public benefit” even to those aliens “not lawfully present in the United States” (8 USC § 1621 [d]), the State has no obligation under equal protection principles to create a new program or expand an existing program simply because the federal government chooses not to extend its benefits or bars certain recipients.
So far, the State has not enacted a program to replace dollar for dollar the federally barred SSI/ASP benefit. Thus, there is no budget or administrative infrastructure in place to pay the additional benefits ordered by the motion court and affirmed by the majority, and only the Legislature has the authority to create the necessary agencies or agency links and programs demanded by the plaintiffs.
Marlow and Gonzalez, JJ., concur with Andrias, J.P.; Sweeny and Catterson, JJ., dissent in a separate opinion by Catterson, J.
Order, Supreme Court, New York County, entered August 17, 2005, affirmed, without costs.
. The plaintiffs, all legal immigrants, fall into one of two categories. One group of class members entered the United States in a humanitarian-based status (for example, a refugee) after August 22, 1996. Because of their immigration status, they are eligible for SSI only during the first seven years of that humanitarian-based status. Thereafter, unless they have become United *212States citizens, those class members are ineligible for SSI and, pursuant to Social Services Law § 122 (1) (f), § 208 (2) and § 209 (1) (a) (iv), they are also ineligible for additional state payments. The second group consists of class members who never received SSI because federal law has, since 1996, excluded them from the SSI program, either because they are permanently residing under color of law and were not receiving SSI on August 22, 1996, or are qualified immigrants, other than humanitarian-based immigrants, who entered the U.S. after August 22, 1996 but who cannot be credited with 40 qualifying quarters of earnings, or Eire not members of the armed services or honorably discharged veterans and their immediate family. (See 8 USC § 1612.)
. According to the plaintiffs, the combined amount for an elderly, blind or disabled single New Yorker is $690, of which the SSI component is $603 per month; whereas the standard of monthly need established for a single adult not elderly or disabled is $352.
. New York State’s Medicaid system has two components: one that is federally funded, and to remain eligible for federal funds, New York must conform its Medicaid program to federal standards, and a Medicaid program which the State funds entirely on its own and makes available to residents not eligible for federally subsidized Medicaid.