(dissenting). I agree with the court that, “if Congress intends to impose a condition on the grant of fed*29eral moneys, it must do so unambiguously.” Suter v. Artist M., 112 S. Ct. 1360, 1366 (1992), quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). I dissent because I do not believe that the Family Support Act (Act) unambiguously requires the Commonwealth to provide child care to the plaintiffs absent legislative funding.
The Act mandates that each State create a JOBS program and that the State will “to the extent that the program is available . . . and State resources otherwise permit ... (I) require all recipients of aid to families with dependent children in such subdivision with respect to whom the State guarantees child care in accordance with [subsection g] to participate,” 42 U.S.C. § 602 (a)(19)(B) (1988), and further that the State must guarantee child care to each participating individual in accordance with subparagraph (B). 42 U.S.C. § 602 (g) (1988). I read the provision specifically mandating child care as being subject to the language of sub-paragraph (B) “to the extent . . . resources otherwise permit.” I conclude, therefore, that Congress intended child care to depend on the availability of State resources, like the rest of the program.
Furthermore, the court acknowledges that the Act gives the department discretion and flexibility with respect to the MassJOBS program, even when limiting the program indirectly affects child care. However, the court concludes that this discretion only applies to the general composition of the JOBS program, and not to funding child care. Ante at 26. I contend that, since Congress allowed the State to be flexible in funding the over-all MassJOBS programs, it presumably would also want to allow the same flexibility in funding the child care aspect.
The court agrees that there was “some basis in the language of [the statute]” to distinguish between voluntary and nonexempt participants. Ante at 25. However, the court concludes that the child-care “guarantee” extended to both groups. I disagree. A cursory reading shows that the statute distinguishes between those required to participate in the program and those who can volunteer. Those required to par*30ticipate can be nonetheless exempt if the State cannot provide child care to them. As to those who volunteer for the program, however, the statute is silent. Thus, from reading the statute as “an harmonious whole,” ante at 25-26, it appears the department need not provide child care to those who volunteer for the program.
The court acknowledges that the programs in which all the plaintiffs participate are a discretionary component of the JOBS program and could be eliminated. Ante at 26 n.7. However, the court decides that, once the department has included such a discretionary component, it must then provide “guaranteed” child care for those enrolled in that component. I do not think that Congress’s intent was to require the State to fund child care for voluntary participants in a discretionary program of MassJOBS that the State could eliminate entirely.
We were told at oral argument that, if the injunction stands, the MassJOBS program will run out of funding in May. Thus, the department will be forced to cut the program, causing both nonexempt and voluntary participants to lose services, assuming that the Legislature does not provide additional funding. I fail to see how cuts to the over-all program benefit anyone. In any case the decision to cut the program or to curtail child care seems to be a policy decision better left to the executive department rather than being decided by judicial decree.
The plaintiffs have not demonstrated that the Act requires the department to provide child care to the plaintiffs. At the most, the statute is ambiguous on the point. As such, I do not believe that the plaintiffs have shown a likelihood of success on the merits. In addition, I do not believe that the plaintiffs have shown that their harm without the injunction will be greater than the harm to other participants in the MassJOBS program with the injunction, particularly since entire programs may be cut for lack of funding. I, therefore, respectfully dissent.