Finch v. Commonwealth Health Insurance Connector Authority

Gants, J.

(concurring in part and dissenting in part, with whom Cordy, J., joins). I agree with the court that aliens are entitled to the equal protection of our laws, not because the prohibition against discrimination on the basis of national origin under art. 106 of the Amendments to the Massachusetts Constitution provides specific protection from discrimination on the basis of alienage, but because such protection is present under the penumbra of the obligations set forth in arts. 1, 6, 7, and 10 of the Declaration of Rights of the Massachusetts Constitution, which require the State to provide all people with the equal protection of our laws. The third certified question asks us to determine the standard of review that applies to the State’s exclusion of the plaintiff aliens from the Commonwealth Care program, a program whose operation is heavily dependent on Federal reimbursements for which the plaintiff aliens are ineligible. The court has decided that, while Congress has made a constitutionally valid decision to deny Federal Medicaid funds to most categories of lawfully residing aliens, the Commonwealth most likely violates its equal protection obligations if it does not replace the lost Federal funds dollar-for-dollar with State revenues in order to include federally ineligible aliens in the *680Commonwealth Care program.1 As discussed below, I do not agree that the State’s obligation to provide all people with the equal protection of its laws extends to require it to nullify the effects of Congress’s lawful exercise of its plenary power, to replace the lost Federal dollars with State revenues, and to spend more than twice as much in State funds on health care coverage for the plaintiff aliens as it spends for the federally subsidized citizen and alien participants in Commonwealth Care. Because I believe that strict scrutiny is the appropriate standard of review to evaluate a State’s alienage classification only where the State’s per capita expenditures for the plaintiff aliens are substantially less than the per capita amount contributed by the State for similarly situated Commonwealth Care participants, and because the limited record in this case does not yet demonstrate that the plaintiff aliens are suffering discrimination in the expenditure of funds derived from State revenues, I respectfully dissent from the court’s holding as to Question 3.2

It has long been recognized that aliens within our jurisdiction are entitled to the equal protection of our laws. See Plyler v. Doe, 457 U.S. 202, 210-212 (1982); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (Mathews); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); Doe v. Commissioner of Transitional Assistance, 437 Mass. 521, 525 (2002) (Doe). This case requires us to determine what these equal protection guarantees require of a State when the Federal government has exercised its plenary *681power over immigration to deny federally funded public benefits to most categories of lawfully admitted aliens. To answer this question, we must attempt to harmonize the decisions of the United States Supreme Court in Graham v. Richardson, 403 U.S. 365 (1971) (Graham), and Mathews, supra, both of which interpret the equal protection guarantees of the Fifth and Fourteenth Amendments to the United States Constitution.3

In Graham, supra at 374, the Supreme Court rejected efforts by Arizona and Pennsylvania to preserve State funds by excluding lawfully residing aliens from State welfare programs. Arizona’s program provided benefits to United States citizens and to aliens that had resided in the United States for fifteen years. Id. at 367. Pennsylvania’s program extended benefits to those qualifying for federally funded benefits, and to those who did not qualify for Federal benefits but were United States citizens. Id. at 368. The Court rejected the argument of the two States that each had a “special public interest” in “favoring its own citizens over aliens in the distribution of limited resources such as welfare benefits.” Id. at 372. See id. at 374. Instead, the Court held that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny,” because aliens are a “prime example of a ‘discrete and insular’ minority.” Id. at 372, quoting United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). See Nyquist v. Mauclet, 432 U.S. 1, 7-8, 12 (1977) (applying strict scrutiny to strike down New York law restricting financial aid for higher education based on citizenship and intent to apply for citizenship); Shapiro v. Thompson, 394 U.S. 618, 633 (1969) *682(“The saving of welfare costs cannot justify an otherwise invidious classification”).4

In Mathews, supra at 82-84, the Supreme Court considered whether the Federal government constitutionally could do what the State governments were not permitted to do in Graham, and concluded that it could. The Court held constitutional a Federal law that excluded aliens from Medicare’s supplemental medical insurance plan unless they were permanent residents who had lived in the United States for at least five years. Id. at 80, 82, 84. The Court declared:

“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” (emphasis in original).

Id. at 79-80. Relying on the plenary power of Congress to regulate the relationship between the United States and the aliens within its borders subject only to a “narrow standard of review,” the Court deferred to the line drawn by Congress and found that *683neither the requirement of permanent residency nor the durational residency requirement was “wholly irrational.” Id. at 81-83. The Court was not explicit about the standard of review it applied, but its decision has been understood to dictate that alienage classifications made by the Federal government in the distribution of economic benefits are reviewed under rational basis. See Chicago v. Shalala, 189 F.3d 598, 604-605, 609 (7th Cir. 1999); Rodriguez v. United States, 169 F.3d 1342, 1350 (11th Cir. 1999); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979), cert, denied sub nom. Confederation of Iranian Students v. Civiletti, 446 U.S. 957 (1980).

The Mathews Court distinguished Graham by noting that the relationship between aliens and States is different from that between aliens and the Federal government. Mathews, supra at 84-85. A classification based on alienage is “a routine and normally legitimate part” of the Federal government’s business, whereas a State would have “no apparent justification” to draw distinctions based on alienage. Id. at 85. See Plyler v. Doe, supra at 225 (“States enjoy no power with respect to the classification of aliens”). Thus, after Graham and Mathews, alienage-based eligibility limits for public benefits under Federal law are subject to rational basis analysis, but comparable eligibility limits based on alienage under State law are subject to strict scrutiny.5

In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (1996), codified at 8 U.S.C. §§ 1601 et seq. (2006), which severely restricted the eligibility of legal immigrants for federally funded public benefits. See 8 U.S.C. §§ 1612, 1613. Congress prefaced the section of PRWORA governing alien eligibility for benefits by stating that “[sjelf-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.” 8 U.S.C. § 1601. Congress further declared it to be the continued policy of the United States that “aliens within the Nation’s borders not depend on public resources . . . *684but rather rely on their own capabilities and the resources of their families,” and that “the availability of public benefits not constitute an incentive for immigration to the United States.” Id. PRWORA prevented all but a few categories of aliens from receiving federally funded public benefits, such as Medicaid, within their first five years after being admitted to the United States in a status otherwise qualifying for federally funded benefits. See 8 U.S.C. §§ 1611-1613, 1641. At the same time, it allowed States to make their own determinations about alien eligibility for State benefits, subject to certain restrictions. See 8 U.S.C. §§ 1621-1624.

For States and localities, PRWORA’s withdrawal of Federal funding for large groups of aliens increased the financial burden of providing benefits to noncitizens6 and raised questions about the States’ obligations to those that Congress had determined to be ineligible for Federal funds. See Doe, supra at 524. We first confronted these questions in Doe, supra at 522, which involved the federally subsidized transitional aid to families with dependent children (TAFDC) program. After PRWORA, large numbers of noncitizens could no longer receive Federal funding under this program and had to be removed from the TAFDC program so that the State could comply with the conditions of its Federal funding. Id. at 522 & n.4. See Doe vs. Mclntire, Suffolk Superior Court No. 2000-03014 (Feb. 2, 2001). In response, the Massachusetts Legislature barred from the TAFDC program qualified aliens who were ineligible to receive federally funded benefits. Doe, supra at 523. The Legislature then established a new, supplemental program that was funded solely with State funds, provided benefits comparable to those provided under the TAFDC program, and was available only to qualified aliens who had resided in the Commonwealth for at least six months and who were not eligible to receive TAFDC benefits because of PRWORA. Id. Benefits under the TAFDC program were thus *685available to citizens who had resided in the Commonwealth for less than six months but not to similarly situated aliens, and the issue in Doe was whether rational basis or strict scrutiny applied to this classification. Id. at 525.

In Doe, we applied rational basis review to the provision barring ineligible qualified aliens from the TAFDC program, declaring that “it would make no sense to say that Congress has plenary power to legislate national immigration policies and guidelines subject to a deferential (rational basis) standard of review, and then to hold that the equal protection clause of the Constitution restrains States from adhering to or adopting those national policies and guidelines because their actions are subject to a higher (strict scrutiny) standard of review.” Id. at 526-527. We then considered the statutory provisions that created a new program to provide federally ineligible aliens the same level of assistance as available under TAFDC, but excluded those who had resided in the Commonwealth for less than six months. Id. at 528. We noted that the parties did not dispute “that the Massachusetts Legislature was not required to establish the supplemental program,” and that only qualified aliens were eligible for benefits under the supplemental program, so the Legislature, in establishing the program, was not discriminating against aliens and in favor of citizens. Id. Instead, we concluded that the discrimination at issue was not between citizens and qualified aliens, but between two subclasses of qualified aliens based on the length of their residency in Massachusetts, and held that this durational residency requirement was subject to rational basis analysis. Id. at 528, 533-534.7

In 2006, when Massachusetts created the Commonwealth Care program at issue in this case, St. 2006, c. 58, § 45 (effective Oct. 1, 2006), the Legislature initially chose to admit most categories of aliens into the program and to bear the considerable per capita burden of providing the full cost of coverage for federally ineligible aliens. 8 In 2009, however, the Legislature decided to bar from the Commonwealth Care program all aliens *686who were not eligible to receive Federal funds under PRWORA, and created a separate and more limited program, the Commonwealth Care Bridge, to provide medical care for the federally ineligible aliens who had previously been admitted to the Commonwealth Care program. St. 2009, c. 65, § 31 (§ 31).

While in Doe the plaintiffs did not address whether the Commonwealth had an obligation to create a supplemental program to provide benefits for qualified aliens who were forced out of the TAFDC program, the plaintiffs here contend that the Legislature has a constitutional obligation to keep qualified aliens in the Commonwealth Care program and to pay in State funds every Federal Medicaid dollar denied to these qualified aliens under PRWORA. In short, the plaintiffs contend that, where the Federal government has lawfully exercised its plenary power over immigration to deny federally funded Medicaid benefits to most categories of aliens, equal protection guarantees require the State to pay twice the State funds per capita for the health care of qualified aliens as it pays for the health care of citizens. Adopting the plaintiffs’ constitutional argument would mean that, although Congress has the plenary power to deny public benefits to qualified aliens, the States are constitutionally required to use State funds to make up the difference (unless they can establish that their refusal to do so is narrowly tailored to further a compelling State interest), thereby nullifying the effect of the congressional decision except to shift expenditures from the Federal government to the State. 9

I conclude, as we did in Doe, supra at 526, that such a result *687“would make no sense.” It is inconsistent with Mathews to require the State to undo the effect of Congress’s decision and replace the funds that Congress, under its plenary power over aliens, determined it would not provide. Thus, I would hold that where a Federal law that denies Federal monies for benefits for certain qualified aliens is constitutional, see Mathews, supra, and where a State merely declines to restore every dollar lost in Federal funding, rational basis review applies. “[T]he right to equal protection does not require the State to . . . guarantee equal outcomes .... Nor does it require the State to remediate the effects of PRWORA.” Khrapunskiy v. Doar, 12 N.Y.3d 478, 489 (2009) (upholding State’s removal of federally ineligible individuals from program that supplemented Federal Supplemental Security Income, and placement of these individuals in program providing partial benefits). See Hong Pham v. Starkowski, 300 Conn. 412, 431 (2011) (rejecting claim that equal protection clause requires State to use State funds to provide plaintiff aliens with equivalent level of benefits provided to citizens through Federal Medicaid program). The court’s holding means that it is constitutional for the Federal government to deny Federal funds for welfare or medical benefits to *688qualified aliens, but State governments are constitutionally required to make up the difference with State funds. I am not confident that the court has fully considered the legal implications (and the fiscal consequences) of the precedent it establishes today for the many other State programs that receive Federal funding that is limited on the basis of alienage.

In contrast with some courts, I do not reach this conclusion because of the provisions in PRWORA authorizing States to make choices about the allocation of benefits to aliens. 8 U.S.C. §§ 1612(b), 1622. See, e.g., Soskin v. Reinertson, 353 F.3d 1242, 1254-1255 (10th Cir. 2004). Congressional authorization is important to the extent that it defeats any argument that the Commonwealth encroaches on Federal authority by excluding the plaintiff aliens from Commonwealth Care. See Graham, supra at 379-380; note 4, supra. However, congressional authorization would be to no avail if the State were funding Commonwealth Care without Federal subsidy, and had singled out the plaintiffs and other similarly situated individuals for exclusion from the Commonwealth Care program because of their alienage. That case, quite different from this one, would be “the very paradigm so definitively addressed in Graham ... a State-funded benefit program available to citizens but not available to aliens on the same terms.” Doe, supra at 531. It is clear that “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.” Graham, supra at 382. See Ehrlich v. Perez, 394 Md. 691, 725 (2006). The key in this case is not that Congress has authorized States to deny State funds to aliens for most medical benefits, but that Congress, in the exercise of its plenary power over immigration, made the choice to cut off the Federal funds that the States otherwise could have used to help pay for the medical benefits of federally ineligible qualified aliens.

Graham and the long string of Supreme Court cases dealing with equal protection and alienage provide other important limitations on States’ ability to discriminate on the basis of alienage. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886). Thus, the mere use of a Federal classification coupled with a claim to be pursuing Federal policy objectives is insufficient to allow a State to make classifications based on alienage and *689receive only rational basis review. See Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 418, 420 (1948) (rejecting argument by California that denial of fishing licenses to those “ineligible for citizenship” was justified because State was following lead of Federal policy); Barannikova v. Greenwich, 229 Conn. 664, 676 (1994) (applying strict scrutiny to general assistance program that deemed income of alien’s sponsor to be available to support alien; rejecting argument that rational basis should apply because statute paralleled scheme used in determining Federal benefit eligibility).

I also note that rational basis would not be the standard of review if the Commonwealth were to use the denial of Federal Medicaid funds for certain qualified aliens as an excuse to put aliens in a worse position than they would have been had no Federal funding been available, that is, if the State used the denial of Federal funding as a reason to deny these qualified aliens the State funds for medical care they would otherwise have received if they were citizens.10 Similarly, rational basis review would not apply if the Commonwealth were to replace lost Federal funds with State funds for United States citizens for whom Federal reimbursement was unavailable, but not replace them for qualified aliens. Such a scheme would recall the Pennsylvania statute that was subjected to strict scrutiny and struck down as unconstitutional by the Supreme Court in Graham, supra at 368, 371, 376. See Aliessa v. Novello, 96 N.Y.2d 418, 424, 436 (2001) (where State had two components to its Medicaid system, one federally subsidized and one fully State funded, strict scrutiny applied to strike down use of PRWORA’s alienage categories to limit alien access to State Medicaid).11

*690I conclude that the State’s exclusion of the federally ineligible qualified aliens from Commonwealth Care is entitled to rational basis review if the State does nothing more than refuse to expend State monies to restore the Federal funds lost by Congress’s constitutional exercise of its plenary power. The exclusion is subject to strict scrutiny only if the plaintiffs were to prove that the State is paying substantially less per capita in State monies for medical care for federally ineligible qualified aliens than for similarly situated Commonwealth Care participants. Because, on the limited record before us, the plaintiffs have failed to make this showing, I respectfully dissent from the court’s holding as to Question 3.

Without prejudging the results of the application of strict scrutiny to the specific facts of this case, I cannot ignore the reality that strict scrutiny presents a high hurdle for the Commonwealth and is generally “fatal in fact.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978) (Brennan, J., concurring in the judgment in part and dissenting in part), quoting Gunther, The Supreme Court, 1971 Term —• Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972). See Dunn v. Blumstein, 405 U.S. 330, 363-364 (1972) (Burger, C.J., dissenting) (“So far as I am aware, no state law has ever satisfied this seemingly insurmountable standard, and I doubt one ever will, for it demands nothing less than perfection”).

In the final paragraphs of its discussion of the third certified question, the court concludes that the classifications at issue also constitute national origin discrimination. Because the third certified question asks us to address the appropriate standard of review for the State’s alienage classification, and not to determine whether any other classifications may also be at issue, I believe the court should not have addressed this question.

Although the plaintiffs raise their challenge under our State Constitution, the right to equal protection under the Massachusetts Declaration of Rights as to questions of alienage has been deemed to be coextensive with the right to equal protection under the United States Constitution. See Doe v. Commissioner of Transitional Assistance, 437 Mass. 521, 525 (2002) (Doe). Thus, the question whether a State classification based on alienage should be subjected to strict scrutiny or rational basis (or another standard of review) is the same under the United States and Massachusetts Constitutions, and our analysis is guided largely by Federal case law discussing equal protection obligations under the Fifth and Fourteenth Amendments to the United States Constitution. See id.

The United States Supreme Court also concluded that the welfare laws at issue in Arizona and Pennsylvania unconstitutionally encroached on Federal authority to regulate the admission of aliens because their requirements would discourage entry or residence in a particular State by aliens whom the Federal government permitted to reside in the United States. Graham v. Richardson, 403 U.S. 365, 378-380 (1971). The Court declared: “State alien residency requirements that either deny welfare benefits to noncitizens or condition them on longtime residency, equate with the assertion of a right, inconsistent with federal policy, to deny entrance and abode. Since such laws encroach upon exclusive federal power, they are constitutionally impermissible.” Id. at 380. See Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948) (“State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration . . .”). See also Toll v. Moreno, 458 U.S. 1, 12-13 (1982); DeCanas v. Bica, 424 U.S. 351, 358 n.6 (1976).

State laws that discriminate based on alienage in matters relating to self-government and the democratic process are reviewed under rational basis. See, e.g., Foley v. Connelie, 435 U.S. 291, 296 (1978) (upholding citizenship requirement for police officers).

Some localities sued, unsuccessfully, to enjoin the restrictions in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (1996), codified at 8 U.S.C. §§ 1601 et seq. (2006), from taking effect. See Chicago v. Shalala, 189 F.3d 598, 600, 609 (7th Cir. 1999). See also Abreu v. Callahan, 971 F. Supp. 799, 806, 817-818 (S.D.N.Y. 1997) (noting PRWORA would shift “substantial” financial burden to New York City).

We were not asked to determine whether the provisions violated the right to travel pursuant to the Supreme Court’s analysis in Shapiro v. Thompson, 394 U.S. 618 (1969). See Doe, supra at 528-529.

The Federal government has generally provided a fifty per cent reimburse*686ment of eligible expenditures for federally eligible individuals. Because of additional Medicaid funding available pursuant to the American Recovery and Reinvestment Act of 2009, the reimbursement rate for Commonwealth Care expenditures in fiscal year 2010 is 61.59 per cent.

Contrary to the court’s assertion, in enacting PRWORA, Congress clearly did not intend merely to shift the burden of funding public benefits for noncitizens to the States rather than the Federal government. See ante at 673 n.18. Congress aimed to promote “[s]elf-sufficiency” and expressed its desire that aliens in the United States “rely on their own capabilities and the resources of their families, their sponsors, and private organizations” and “not depend on public resources,” such that “the availability of public benefits not constitute an incentive for immigration to the United States.” 8 U.S.C. § 1601. By allowing States to use State funds to provide public benefits to lawfully present aliens who were denied Federal funding, 8 U.S.C. § 1622, PRWORA reflects a compromise between the expressed goal of promoting alien self-sufficiency, *687and the implicit recognition that individual States should be allowed to decide whether to allocate their own funds to provide public benefits to aliens. While it allowed States to make these choices, Congress plainly did not intend the result the court mandates, that is, that States be constitutionally required to allocate State funds to make up for the lost Federal funding in order to provide public benefits to federally ineligible qualified aliens on an equal basis with federally eligible citizens and aliens. See 8 U.S.C. § 1601(7).

The court fails to come to grips with this point. The court recognizes that, in enacting PRWORA, Congress gave States the choice whether to provide public benefits to federally ineligible aliens. Ante at 673 n.18. But it fails to recognize that, under the reasoning of its holding, which rests entirely on the court’s interpretation of United States Supreme Court equal protection decisions, the States would not have this choice. All fifty States, including States that do not wish to provide public benefits to federally ineligible aliens, would be constitutionally mandated under the equal protection clause of the Fourteenth Amendment to provide the same benefits to federally ineligible aliens they now provide, with the help of Federal funds, to citizens (or demonstrate that their exclusion of these aliens is narrowly tailored to serve a compelling State interest). Consequently, under the court’s holding, the statutory provisions in PRWORA that provide the States with this choice are merely an illusion, because that choice is eliminated constitutionally by the equal protection clause.

Because the plaintiffs’ argument is that they must be allowed to enroll in the more costly Commonwealth Care program, the record is not fully developed as to all State health programs that benefit federally ineligible aliens. On the limited record before us, I cannot conclude that the State’s per capita expenditures for the plaintiff aliens are substantially less than the per capita amount contributed by the State for similarly situated Commonwealth Care participants. Assuming the court is correct that federally ineligible qualified aliens denied access to Commonwealth Bridge are not provided with alternative health coverage, see ante at 676,1 agree that the Commonwealth’s classification would provide them with less State funds for medical care than they would have received had they been citizens, and should be subject to strict scrutiny.

The plaintiffs have implied that such line drawing is at work, and the *690defendants have acknowledged that a small number of citizens who are ineligible for Federal reimbursement are included in Commonwealth Care at the State’s expense. However, too little information about these individuals and the reason for their inclusion in Commonwealth Care has been provided by the parties to allow this to be the basis of any ruling in this case.