dissenting:
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. It is settled law that alienage is a suspect class and that state laws that discriminate against aliens who are lawfully present in this country generally violate the Equal Protection Clause unless they can withstand strict scrutiny.1
In this case, the State of Hawai'i discriminated against aliens from three Micronesian nations who were lawfully present in this country, based on the terms of Compacts of Free Association those nations entered with the United States (“COFA Residents”), by limiting the state-funded health benefits available to them. The state could provide to them the same benefits it provides to citizens. It had, in fact, provided the same benefits to COFA Residents for fourteen years, until budgetary woes motivated the state to try to save money, by exercising an option given to it by Congress.
But the state’s fiscal condition does not provide the compelling justification required under the Equal Protection Clause to justify unequal treatment of aliens. The option given to the states by Congress to decide whether to treat aliens different*903ly was illusory, under established Supreme Court precedent. Congress has broad power, based on its authority over immigration and foreign relations, to decide whether to treat aliens differently than citizens, but Congress does not have the power to assign that discretion to states. As explained by the Supreme Court, “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.” Graham v. Richardson, 403 U.S. 365, 382, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). When the State of Hawaii exercised the option given to it by Congress, it discriminated against aliens without a compelling justification. In my view, that violated the Equal Protection Clause. I respectfully dissent.
I. Disparity in Expenditure of State Funds
The majority opinion most obviously goes astray when it suggests that Plaintiffs have failed to establish a claim of disparity because they have not claimed that Hawaii’s per capita expenditures of state funds differ as between citizens and COFA Residents. Maj. Op. at 886-87 & n. 8. The majority thus appears to require that, in order to establish a claim of disparate treatment, a class alleging discrimination under the Equal Protection Clause must demonstrate that the state is expending less funds, on a per capita basis, than it is spending on the rest of the population. In effect, the majority requires Plaintiffs to allege (and eventually, I presume, to prove) that they have been shortchanged on a per capita basis. Because Plaintiffs have not so alleged, the majority harbors serious doubts that Plaintiffs have made out a claim of an equal protection violation by the state. That approach is wrong in two separate ways.
First, it treats Medicaid as if it consisted of two separate programs, one federal and one state, because the program is partially funded by the federal government. But that is not how Medicaid actually works. In Hawaii, as in most states, there is a single plan, administered by the state. The federal government reimburses the state for a significant portion of the cost, and the plan must comply with federal requirements, but it is a state plan. The majority opinion’s own description of the program, at 5, confirms as much. Beneficiaries are not covered by two separate federal and state plans, but rather by one single plan administered by the state.
Second, and more importantly, the approach suggested by the majority opinion runs afoul of bedrock equal protection doctrine dating back at least to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The majority opinion would allow a state to treat a class of aliens differently as long as the state’s financial outlay for Plaintiffs and other members of the suspect class is the same, on a per capita basis, as the state’s expenditures for the rest of the population. But that does not change the fact that Hawaii has treated aliens differently by placing COFA Residents in a program with reduced benefits. That action constitutes disparate treatment in violation of the Equal Protection Clause. The disparate treatment is not immunized because the per capita expenditures might be the same. “Separate but equal” is not permitted.
The approach of the majority opinion could justify a state reducing benefits provided to members of a particular group on the ground that providing benefits to that group is more expensive than providing the same benefits to the general population. For example, a state could reduce chemotherapy and radiation therapy benefits for African Americans and justify this discrimination by citing African Ameri*904cans’ increased susceptibility to various types of cancer.2 That state could argue that, despite the reduced benefits available to any single individual, its average per capita expenditures for African Americans were not less than the expenditures for the rest of the population.
Such a “separate but equal” approach runs counter to the dictates of Brown v. Board of Education. “The point of the equal protection guarantee is not to ensure that facially discriminatory laws yield roughly equivalent outcomes.... Rather, the right to equal protection recognizes that the act of classification is itself invidious and is thus constitutionally acceptable only where it meets an exacting test.” Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655, 946 N.E.2d 1262, 1278 (2011).
I don’t really think the majority opinion is trying to return to the era of separate but equal. Although it denies the existence of a claim of disparity vis-a-vis state action, the majority opinion nevertheless proceeds to assume arguendo the existence of such a claim and subjects Hawaii's actions to review under the Equal Protection Clause, albeit based on a rational basis standard. See Maj. Op. at 886-87. If there really were no disparity attributable to the State of Hawaii, as the majority argues, the Equal Protection Clause would simply be inapplicable, and no further judicial review would be required. By discussing the equal protection framework established by Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), and Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), and applying rational basis review to uphold Hawaii’s discriminatory health welfare programs, the majority tacitly ae-knowledges that a claim for discrimination based on disparate treatment does not require proof of disparate per capita expenditure of funds. But it shouldn’t even start down that road.
II. Hawaii’s Decision to Reduce Benefits for COFA Residents
The main thrust of the majority opinion, as I understand it, is that Hawaii’s actions are subject only to rational basis review under the Equal Protection Clause, rather than strict scrutiny, because those actions were authorized by Congress. Here again, the majority fails to heed well established Supreme Court precedent.
We must decide this case under the equal protection framework established by the Supreme Court in Graham and Mathews. The equal protection holdings in those cases are clear, and the majority opinion ably summarizes them, at 881-84. In brief, Graham requires that we review state discrimination against aliens under strict scrutiny, while Mathews requires that we review federal discrimination against aliens under rational basis review, because of the federal government’s broad powers in the area of immigration and foreign relations. The question this case thus turns on is whether the denial of equal benefits to COFA Residents is ultimately the responsibility of the state or of Congress.
I conclude that it is the State of Hawaii that is ultimately responsible. The majority reaches a different conclusion, permitting it to uphold Hawaii’s program under rational basis review, by obscuring the role states play within the statutory framework established by Congress.
*905The majority repeatedly emphasizes that Hawaii is following the federal direction and that states are given only limited discretion to decide which aliens to provide benefits to under the Welfare Reform Act. But there is no federal direction regarding how to treat COFA Residents and others within what the majority describes as the Welfare Reform Act’s third category of aliens. The statute gives states discretion to decide whether or not to provide health benefits to persons within that category.3 See 8 U.S.C. §§ 1621-1622; Maj.Op. at 878-79.
In making the decision not to provide equal benefits to COFA Residents, Hawaii has necessarily made a distinction on the basis of alienage: a similarly situated citizen is eligible to receive more benefits. Because Hawaii has classified COFA Residents on the basis of alienage, the Equal Protection Clause requires that we strictly scrutinize Hawaii’s actions to ensure that they are “narrowly tailored measures that further compelling governmental interests.” Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)).
That federal discrimination against aliens would be subject only to rational basis review is irrelevant. We are presented with a case not of federal discrimination, but one of state discrimination. It is undisputed that COFA Residents are not eligible for federal benefits and that Hawaii thus cannot obtain federal reimbursements for expenses incurred to cover COFA Residents under Hawaii’s Medicaid programs.4 See 8 U.S.C. §§ 1611, 1641. But it is also undisputed that Hawaii remains free to cover COFA Residents under its Medicaid programs, so long as it uses only state funds — something Hawaii did for fourteen years, from the time of the enactment of the Welfare Reform Act in 1996 until 2010. See id. §§ 1621-22. In 2010, based on COFA Residents’ status as aliens, Hawaii cut them off from its Medicaid programs and placed them in the reduced-benefits BHH program.5 See Haw. Admin. Rules (HAR) §§ 17-1714-28, 17-1722.3-7. Hawaii’s actions thus classify on the basis of alienage and are subject to strict scrutiny.
In effect, through the Welfare Reform Act, I think Congress has given states a lit firecracker, at risk of exploding when a state exercised its discretion to discriminate on the basis of alienage. It was Hawaii’s decision not to cover COFA Residents under its Medicaid programs that effected the discrimination in this case. “Insofar as state welfare policy is concerned, there is little, if any, basis for treating persons who are citizens of anoth*906er State differently from persons who are citizens of another country.” Mathews, 426 U.S. at 85, 96 S.Ct. 1883 (footnote omitted). “The States enjoy no power with respect to the classification of aliens. This power is ‘committed to the political branches of the Federal Government.”’ Plyler, 457 U.S. at 225, 102 S.Ct. 2382 (citation omitted) (quoting Mathews, 426 U.S. at 81, 96 S.Ct. 1883). And, as I will discuss below, this is not a power the federal government can delegate to the states.
III. A Tale of Three Clauses: Equal Protection, Preemption, and the Immigration and Naturalization Power
The principles just articulated lead me to the majority’s final reason for upholding Hawaii’s discriminatory actions: its conflation of the Supreme Court’s equal protection holdings in Graham and Mathews with the distinct preemption holding in Graham. As explained above, in the equal protection arena, Graham stands for the proposition that strict scrutiny applies to state laws classifying on the basis of alien-age, and Mathews stands for the proposition that rational basis review applies to similar federal laws. As a case interpreting the Supremacy Clause, Graham is part of the line of cases that establishes federal supremacy in the area of immigration and naturalization, as the concurrence by Judge Bybee explains, at 885-88. See Graham, 403 U.S. at 376-80, 91 S.Ct. 1848; see also, e.g., Arizona v. United States, — U.S. —, 132 S.Ct. 2492, 2498-501, 183 L.Ed.2d 351 (2012) (outlining the preemption principles applicable in the area of immigration and naturalization).
In this case, no one argues that Hawaii’s actions are preempted by the Welfare Reform Act. Preemption doctrine has no bearing on the outcome here. Congress has authorized Hawaii to exclude COFA Residents from the state Medicaid programs, see 8 U.S.C. § 1622, so there is no conflict between the state’s action and the Welfare Reform Act.
The crux of the question is not whether Hawaii has adhered to the requirements prescribed by Congress in the Welfare Reform Act — it has, and no one argues that it has not — but rather whether Hawaii could constitutionally take the action it took “as part and parcel of the federal welfare scheme.” Maj. Op. at 887 n. 10. I submit that we should answer this question in the negative, following precedent from both the Supreme Court and our own court.
Graham stated that:
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. Shapiro v. Thompson, 394 U.S., at 641, 89 S.Ct., at 1335. 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.
403 U.S. at 382, 91 S.Ct. 1848; see also Saenz v. Roe, 526 U.S. 489, 508, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (“Congress has no affirmative power to authorize the States to violate the Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such violation.”).
*907We previously relied on this passage in holding that a federal statute that requires states to grant benefits to citizens and certain aliens while also requiring states to deny benefits to other aliens did not authorize the states to violate the Equal Protection Clause, because “Congress ha[d] enacted a uniform policy regarding the eligibility of [certain aliens] for welfare benefits.” Sudomir v. McMahon, 767 F.2d 1456, 1466 (9th Cir.1985). As such, we stated that “[t]his makes inapplicable the suggestion in Graham v. Richardson that Shapiro may require the invalidation of congressional enactments permitting states to adopt divergent laws regarding the eligibility of aliens for federally supported welfare programs.” Id. at 1466-67 (citation omitted).
Both the Supreme Court and this court recognize that uniformity is required for any congressional enactment regulating immigration and the status of aliens, because Congress’s power over immigration and naturalization matters derives from the Naturalization Clause, which grants Congress the power “[t]o establish an uniform Rule of Naturalization.” U.S. Const, art. I, § 8, cl. 4. The majority opinion makes an effort to argue that the uniformity requirement is inapplicable here because the original motivations for the Naturalization Clause centered around avoiding a scenario that had plagued the Articles of Confederation, whereby a naturalization decision made by one state with respect to aliens within its territory was binding on other states. Maj. Op. at 884-85 (citing Soskin v. Reinertson, 353 F.3d 1242, 1257 (10th Cir.2004)). However, the majority also appears to recognize that, whatever the original intent of the Naturalization Clause’s uniformity requirement may have been, it applies to this case. See id.
The majority minimizes the significance of the divergent Medicaid eligibility requirements allowed through the discretion the Welfare Reform Act gives to the states. See id. at 884 (“The limited discretion authorized ... does not undermine the uniformity requirement of the Naturalization Clause.”); id. at 884 (“[A] state’s limited discretion to implement a plan ... does not defeat or undermine uniformity.”). In reaching this conclusion, the majority relies on the Supreme Court’s reading of the Bankruptcy Clause’s uniformity requirement. See id. at 885-86.
Unfortunately, the majority’s analogy to the Bankruptcy Clause does not fit. The analogy fails to recognize the crucially important counterweight the Equal Protection Clause provides against the constitutional grant of power-a counterweight present in this case but absent from the bankruptcy arena.
The grants of power in Article I with respect to naturalization and bankruptcy are very similar. Indeed, the Naturalization Clause and the Bankruptcy Clause are listed together in a single clause within Article I, section 8, which grants Congress the power “[t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const, art. I, § 8, cl. 4. It is also true that the Supreme Court has interpreted the uniformity requirement in the Bankruptcy Clause to allow for the incorporation of divergent state laws within the Bankruptcy Act. See Maj. Op. at 885 (citing, among others, Hanover National Bank v. Moyses, 186 U.S. 181, 22 5.Ct. 857, 46 L.Ed. 1113 (1902)).
The Naturalization Clause and the Bankruptcy Clause are simply grants of power to Congress, however. They do not require Congress to pass federal naturalization and bankruptcy laws. The first federal naturalization law, Act of Mar. 26, *9081790, ch. 3, 1 Stat. 103, was passed right away, by the First Congress, likely to avoid the serious difficulties presented by the states’ divergent laws on the subject under the Articles of Confederation. The first federal bankruptcy law was not passed for more than a decade, until 1800, Act of Apr. 4, 1800, ch. 19, 2 Stat. 19.
That the majority relies so heavily on the constitutional grants of power contained in Article I is thus particularly problematic. If there were no federal bankruptcy law (as was the case for the first eleven years of our nation’s Constitution), it is clear that the states could adopt their own bankruptcy laws, crafting their creditor-debtor relationships as they wished, advantaging some creditors and debtors over others, so long as the states’ laws were rational.
Not so for immigration and naturalization. It would not be the case that, if there were no federal immigration and naturalization laws dealing with the United States’ relations with aliens, the states would be free to craft their own laws, advantaging citizens and some aliens over other aliens. The Equal Protection Clause would prevent them from doing so, given the strict scrutiny applied to distinctions by states between aliens and citizens under Graham.
It is this crucial interaction between the Article I grant of power and the Equal Protection Clause that the majority opinion neglects, which leads it to its unpersuasive conclusion that the discretion given to the states by the Welfare Reform Act does not undermine uniformity. That conclusion rests on the separate preemption doctrine that is not part of this case and does not come to grips with the dictates of the Equal Protection Clause.
Consider the following hypothetical. Congress passes and the President signs a new law, the Alien Discrimination Act. In it, Congress authorizes states to classify aliens in any manner that is not wholly irrational. To justify the Act, Congress articulates a uniform policy of devolving more traditionally state police powers to the states.6 As a preemption matter, this Act would remove any obstacles to state legislation on the subject. But could the states then discriminate against aliens subject only to rational basis review under the Equal Protection Clause? The answer must surely be “no,” if we are to heed Graham’s statement that “Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.” 403 U.S. at 382, 91 S.Ct. 1848. Strict scrutiny must still apply in this hypothetical. The majority opinion, at 887, describes that statement in Graham as “almost tautological” and proceeds to treat it as if it were not there, taking the view that as long as Congress clearly expresses its will, it can authorize individual states to discriminate against aliens.7 Though I may have sympathy for the posi*909tion of the State of Hawaii, see below at 910, I would not so freely disregard the Supreme Court’s explicit pronouncements.
The “limited” nature of the discretion to discriminate the states are given under the Welfare Reform Act is irrelevant: the Act still authorizes states to discriminate against some aliens in the provision of some welfare benefits, and thus authorizes them to violate the Equal Protection Clause. Therefore, in this case as in the hypothetical above, strict scrutiny must apply.
My conclusion does not detract from Sudomir’s requirement that states cannot be compelled to replace federal funding where the federal statute requires states to discriminate against aliens. 767 F.2d at 1466. In such cases, the states are merely “following] the federal direction.” Plyler v. Doe, 457 U.S. 202, 219 n. 19, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).
In this case, though, there is no federal direction for states to follow. The ultimate decision is left up to each state. Congress articulated what the majority argues are uniform policies in the Welfare Reform Act, including a policy “to assure that aliens be self-reliant in accordance with national immigration policy,” 8 U.S.C. § 1601(5), and “to remove the incentive for illegal immigration provided by the availability of public benefits,” id. § 1601(6). Those policies would presumably support a flat prohibition on providing benefits to aliens or to a specified group of aliens. Congress did not enact a prohibition, though. The decision as to how a given group of aliens is to be treated is simply left to each state. In light of the broad discretion it gives to the states, the Act simply does not provide a federal direction with regard to COFA Residents and others in the third category of aliens. It does not require or forbid the states to do anything.
Although the majority opinion argues, at 15, that Hawaii followed a federal direction by shunting COFA Residents into the BHH program, it could also be said that Hawaii followed a federal direction during the fourteen years when it included COFA Residents in its Medicaid programs. A federal “direction” that points in two opposite ways is not a direction. We have already recognized as much. See Pimentel v. Dreyfus, 670 F.3d 1096, 1109 (9th Cir.2012) (per curiam) (“[T]he Welfare Reform Act did not establish a uniform rule with respect to state welfare programs -”); see also, e.g., Ehrlich v. Perez, 394 Md. 691, 908 A.2d 1220, 1240-41 (2006) (holding that the Welfare Reform Act’s “laissez faire ... approach to granting discretionary authority to the States in deciding whether to continue State-funded medical benefits” for certain aliens does not amount to a “single, uniform, and articulated directive”).
In the Welfare Reform Act, Congress itself recognized that, far from providing a uniform federal direction, it was giving states broad discretion to discriminate against aliens in the provision of welfare benefits. This recognition comes through in Congress’s statement of policy emphasizing that the states exercising their discretion to determine some aliens’ eligibility for welfare benefits “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(7). But Congress does not have the power to give states discretion to discriminate.
IV. Conclusion
Though the majority opinion asserts that I am inviting a circuit split, I note *910that it is the majority opinion that is contrary to the opinions of a majority of courts that have considered this question. Only one other circuit has spoken, in Soskin v. Reinertson, 353 F.3d 1242 (10th Cir.2004), and that is the only decision consistent with the majority opinion. For the reasons discussed above, as well as for the reasons Judge Henry articulated in his dissent, I believe that Soskin was wrongly decided, under current Supreme Court precedent. See Soskin, 353 F.3d at 1265 (Henry, J., dissenting). Against Soskin lie three decisions of the high courts of Maryland, Massachusetts, and New York. Ehrlick v. Perez, 394 Md. 691, 908 A.2d 1220 (2006); Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655, 946 N.E.2d 1262 (2011); Aliessa ex rel. Fayad v. Novello, 96 N.Y.2d 418, 730 N.Y.S.2d 1, 754 N.E.2d 1085 (2001). All three decisions applied strict scrutiny under the Equal Protection Clause to strike down state statutes that purported to exclude certain aliens from Medicaid because they were aliens. See Ehrlich, 908 A.2d at 1243; Finch, 946 N.E.2d at 1280;8 Aliessa, 730 N.Y.S.2d 1, 754 N.E.2d at 1098. The majority opinion’s application of equal protection rational basis review to state action thus stands against the weight of authority.
Even though in my view Plaintiffs should prevail, I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawaii has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don’t think Congress had the power to give. Hawaii provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawaii offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawaii in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawaii as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawaii, that should be deemed responsible.
But the federal government is permitted to discriminate against aliens in a way that the state government is not. Because established precedent should require us to apply strict scrutiny to Hawaii’s exclusion of COFA Residents from the Medicaid programs, and no one seriously contends that Hawaii’s actions can withstand such strict scrutiny, I respectfully dissent.
. See Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); see also Bernal v. Fainter, 467 U.S. 216, 219, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984); Nyquist v. Mauclet, 432 U.S. 1, 7, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977); Examining Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 602, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); In re Griffiths, 413 U.S. 717, 721, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Sugarman v. Dougall, 413 U.S. 634, 642, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); cf. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948) (applying equal protection principles to discrimination against aliens and striking down state ban on aliens’ commercial fishing). There are two exceptions to the application of strict scrutiny not relevant to this case. See Toll v. Moreno, 458 U.S. 1, 12 n. 17, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982) (outlining the self-government exception); Plyler v. Doe, 457 U.S. 202, 223-24, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (holding that discrimination against illegal aliens is subject only to intermediate scrutiny).
. See, e.g., Cancer and African Americans, U.S. Dep’t of Health & Human Servs. Office of Minority Health, http://minorityhealth.hhs. gov/templates/content. aspxPID=2826 (last updated Sept. 11, 2013).
. In fact, the statute gives discretion regarding how to treat aliens within the second category as well, notwithstanding the majority's description of that category as that of "aliens for whom states must not provide any state benefits,” Maj. Op. at 884 (emphases added). The Welfare Reform Act allows states to provide benefits to this category of aliens “through the enactment of a State law after August 22, 1996, which affirmatively provides for [those aliens’] eligibility.” 8 U.S.C. § 1621(d).
. "Medicaid programs” refers to the managed care programs Hawaii has operated since 1993, pursuant to a waiver approved by the federal government under section 1115 of the Social Security Act. These programs include QUEST, QUEST-Net, QUEST Adult Coverage Expansion, and QUEST Expanded Access.
.Because the BHH program has a capped enrollment, HAR § 17-1722.3-10, and more COFA Residents were moved from the Medicaid programs to BHH than would normally be allowed under the cap, new COFA Residents moving to Hawaii after 2010 may not be covered under any state medical welfare program.
. This uniform federal policy would follow the principle of "New Federalism,” a principle which also underlies the Welfare Reform Act. See, e.g., Steven D. Schwinn, Toward a More Expansive Welfare Devolution Debate, 9 Lewis & Clark L.Rev. 311, 312-13 (2005).
. The majority opinion also states that I am asking the wrong question, but its own language underscores its confusion as to whether this is an equal protection or a preemption case. The majority would have me ask "not whether Congress may authorize Hawai'i to violate the Equal Protection Clause but rather 'what constitutes such a violation when Congress has (clearly) expressed its will regarding a matter relating to aliens.' ” Maj. Op. at 887 (quoting Soskin, 353 F.3d at 1254). I know of no equal protection doctrine that turns on whether "Congress has (clearly) expressed its will.” That is instead the language of preemption analysis. See, e.g., Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 1194-95, 173 L.Ed.2d 51 (2009).
. Although Finch speaks in terms of the Massachusetts Constitution’s right to equal protection, the Massachusetts Supreme Judicial Court has interpreted that state provision to be coextensive with the federal Equal Protection Clause in matters concerning aliens. See, e.g., Doe v. Comm’r of Transitional Assistance, 437 Mass. 521, 773 N.E.2d 404, 408 (2002). Accordingly, Finch’s analysis relies heavily on United States Supreme Court decisions interpreting the Equal Protection Clause. See 946 N.E.2d at 1273-80.