Tony Korab v. Patricia McManaman

Accordingly, AFFIRM deprived. 113 S.Ct. 2085. we her cial creation. judgment. forfeiture went on to conclude The Court thus the Rule 10b-5 shaping responsibility Congress ... has left to

action was “task 294,113 2085.

us.” Id. at S.Ct. no authori- delegated has such rules the federal courts to craft new

ty to punish- the enforcement of or

governing violating immigration ments for federal Tony KORAB; Tojio Clanton; Keben noted, Supreme laws. As the Enoch, individually each and on be immigration is a “control over matters of similarly persons half of those situat largely sovereign prerogative, within ed, Plaintiff-Appellees, legisla- control of the executive and the Plasencia, London v. 459 U.S. ture.” (1982). 321, 74 L.Ed.2d 21 FINK, capacity Kenneth in his official similarly that “[t]he have observed

We Hawai'i, Department as State of judicial into scope inquiry Med-QUEST Services, Divi Human legislation exceedingly narrow ... [be- sion Administrator Patricia subject ‘over conceivable is the no cause] McManaman, capacity in her official com- legislative power more Hawai'i, as Director of the State of than it is over the admission of plete Services, Department of Human De ” Barajas-Guillen, aliens.’ States v. fendants-Appellants. (9th Cir.1980) (quoting 632 F.2d No. 11-15132. Bell, Fiallo v. (1977)). Indeed, L.Ed.2d 50 exec- Appeals, United States Court legislative primacy in this area

utive and Ninth Circuit. government’s au- stems the federal 18, 2012. Argued Sept. and Submitted thority under the Constitution to establish naturalization, regulate uniform rules of April Filed nations, foreign con- commerce with Moreno, foreign duct affairs. See Toll v. 10, 102 73 L.Ed.2d compelling offers no Castillo

justification long- from this departing understanding.

held

II. right no to contribu- possesses

Castillo law, existing

tion under and we right her to find a new

decline invitation implied or

contribution —either as matter Consequently, common law. her fails, point she can process

due claim constitutionally protected liberty or

no has been

property interest of which she

Lee Ann (argued) N.M. Brewer General, Molay, Deputy John F. Attorneys Honolulu, Hawaii for Defendant-Appel- lant.

Paul D. Alston (argued), Zachary A. McNish, Alston, Blaine Rogers, J. Hunt, Honolulu, Hawaii; Floyd, Ing,& Catherine Leilani Aubuchon Margery Bronster, Hoshibata, S. Bronster Honolu- lu, Hawaii; Geminiani, 1622(b). Id Lawyers § M. provides Victor citizens. Honolulu, Justice, Hawai‘i, Recipients category also benefit 1612(b)(2). from federal funds. Id Plaintiffs-Appellees. category second prohibits —no benefits — Serrano, Honolulu, K. Susan Hawaii for providing any states from benefits to cer- Japanese Amici Curiae American Citizens aliens, tain such as those who are League-Honolulu Chapter, National Asso- United States without authorization. Id ciation for the Advancement of Colored 1621(a). § category third —discre- Branch, People-Honolulu and Kokua Kal- tionary benefits —authorizes states to de- Valley Comprehensive Family ihi Services. eligibility termine the any state bene- McKEOWN, alien, Before: M. MARGARET fits of an alien qualified who is a a CLIFTON, 1622(a). Id RICHARD R. and JAY nonimmigrant, parolee. § S. or a BYBEE, Judges. Circuit the third category Within are nonimmi- grant residing in Hawaii under a McKEOWN;

Opinion by Judge Compact of Free Association with the BYBEE; by Judge Concurrence Dissent States, United known as COFA Resi- by Judge CLIFTON. dents.1 Although group this was eligi- OPINION ble for federal reimbursement under the cooperative state-federal plan, Medicaid McKEOWN, Judge: Circuit initially Hawaii included them the state presents yet This challenge case another plans health insurance at the same level complex area of state-funded bene- of coverage eligible as individuals for fed- enacting comprehensive fits for aliens. In Medicaid, eral reimbursement under and 1996, Congress welfare reform in rendered Hawaii assumed the full cost of that cov- groups various of aliens ineligible for fed- Thén, in erage. declining the face of rev- eral benefits and also restricted states’ enues, dropped 2010 Hawaii COFA ability to use their own funds provide Residents from general health insur- benefits to certain aliens. See 8 U.S.C. plans plan ance and a new created § seq. 1601 et receiving As condition of coverage more limited Health Ha- —Basic funds, Congress required states to exclusively for COFA Residents waii— benefits, eligibility limit for federal such as legal permanent and residents who have Medicaid, to citizens and certain aliens. lived in the United States for less than benefits, For state such as the Hawaii years. five Haw.Code R. 17-1722.8-1. here, health program insurance issue adopt plan Hawaii did not for other Congress essentially catego- created three coverage aliens excluded from federal un- eligibility. category ries of The first —full category. der the third requires provide states to benefits — particular groups same benefits to class action suit on behalf of aliens, adult, Residents, including legal permanent certain non-pregnant COFA residents, asylees, Korab, Clanton, refugees, Tony Tojio and Keben Islands, Republic Compact 1. The Marshall of Free Association Act of Micrоnesia, Federated States of Re- (1986), Pub.L. No. 99 Stat. 1770 public of Palau have each entered into a Com- by Compact amended of Free Association ("COFA”) pact of Free Association with the Amendments Pub.L. Act of No. 108- States, which, among things, other 2720; 117 Stat. see also 48 U.S.C. allows their citizens to enter the United States COFA). (joint approving § 1901 resolution "nonimmigrant.” and establish residence aas “Korab”) creat- completely ‘fills the void’ gram claim that (collectively Enoch Act’s by the Federal Welfare Reform violates the ed Hawaii Basic Health vacate against aliens.” We the Fourteenth discrimination Protection Clause grant preliminary of a the district court’s provides less health because Amendment Hawaii from reduc- injunction preventing Residents than the coverage to COFA ing state-paid health benefits for COFA provides Hawaii coverage that health obligated Hawaii is not eligi- Residents because aliens who are qualified citizens and funds with to backfill the loss of federal through reimbursements ble for federal not to do so is state funds and its decision challenge does not Medicaid. Korab subject to rational-basis review. law exclud- constitutionality of the federal from federal Medic- ing COFA Residents Background Rather, the claim is aid reimbursements. comprehensive level of prior, that the more I. The Welfare Reform Act Aliens so that coverage state should be reinstated policy of welfare reforms enact- part As equal footing are on with COFA Residents the Personal Congress passed ed those covered Medicaid. Rec- Responsibility Opportunity and Work argu- sympathetic We are Korab’s (“the Re- onciliation Act of 1996 Welfare accept the rationale. The ment but cannot Act”). 104-193, form Act” or “the Pub.L. proposition flaw in the is that Korab basic (1996). Title IV of the 110 Stat. 2105 comprehensive is excluded from the more public Reform Act restricts bene- Welfare benefits, Medicaid which include federal aliens, rationale that fits for based on the funds, consequence congressional as a depend public should “not on re- Congress plenary power to action. needs, rather sources to meet their but immigration and the conditions on regulate rely capabilities on their own and the re- States, aliens remain in the United families, which sponsors, of their their sources do Congress and has authorized states to private organizations.” and 8 U.S.C. 1601(2)(A). exactly what Hawaii has done § here —de- Congress declared the re- for, of, eligibility compelling government termine the terms “a in- forms to be in the narrow state benefits for aliens that is “in accordance with national terest” 1601(5)-(6). category, regard § with to whom immigration policy.” third Con- Id. gress expressly gave states limited discre- benefits,2 regard to federal Con- With no tion. Hawaii has constitutional obli- categories two of aliens: gress created gation gap by Congress’s to fill the left aliens,” “qualified may eligible who for funding withdrawal of federal for COFA benefits, aliens, and all other who Residents. benefits. ineligible are for federal 1611-13, “Qualified §§ aliens” are thought

The district court otherwise. brief, residents, legal permanent asy- it in put As Hawaii “the district defined as lees, refugees, parolees, certain and aliens Department court ruled that the [Hawaii] constitutionally categories Human re- who fall within other limited [of Services] 1641(b)-(c). § quired up state-only pro- specified to set in the statute.3 Id. funded individual, "[fjederal provided Act to an house- 2. The Welfare Reform defines sistance hold, agency family eligibility unit or public part "any benefit” in relevant retire- by appropriated the United States or funds of ment, welfare, health, disability, public or as- 1611(c)(1)(B). Id.§ the United States.” education, housing, postsecondary sisted food assistance, benefit, unemployment any or oth- exceptions, requires 3. With some the Act payments er or similar benefit for as- qualified present aliens to have been quali- The Act renders aliens who are approves plan not a state to fund medical ser ineligible public fied aliens for all federal vices for low-income residents and then benefits, only exceptions, with limited significant such reimburses a portion of the provision as the of emergency expenses as- state’s in financing medical that medical 1611(b). § sistance. Id. care. See Pub.L. No. 79 Stat. (1965) (codified as amended at 42 regard benefits,4 With to state such as § seq.); U.S.C. et see also Wilder v. Hawaii, Basic Health further Ass’n, Virginia Hosp. subdivided aliens into three categories: 110 L.Ed.2d 455 category one of aliens eligible who are Participation by states is voluntary, but any public (particular quali- funds, order to receive participat aliens, fied refugees, asylees, such as cer- ing comply states must both with the stat legal residents, tain permanent veterans utory requirements of the Medicaid Act military members of the active regulations with promulgated by the 1622(b); duty), § id. a second category to Secretary of Health and Human Services. whom may give any states benefits at Dep’t See Alaska Health & Soc. Servs. v. (aliens aliens, all qualified who are not Servs., Ctrs. Medicare & Medicaid 1621(a); nonimmigrants, parolees), id. (9th Cir.2005). F.3d category and a third for whom Hawaii obtained a waiver compliance authorizes states to make their own eligi- guidelines some pursuant bility aliens, (qualified determinations non- § 1115 of Security the Social Act so that it immigrants, and paroled aliens into the could privatized create a managed care United for States less than a year), id. project demonstration that allows Hawaii 1622(a). § In articulating immigration to contract with health-maintenance organ policy by the advanced Welfare Reform (“HMOs”) izations for the provision of Act, Congress emphasized that a that state state health insurance. AlohaCare v. Ha the Federal “follow[s] classification de- Servs., waii Dep’t Human 572 F.3d termining eligibility of ... aliens (9th Cir.2009). public assistance shall be considered to have chosen least restrictive means Act, Before the Welfare Reform COFA achieving available for the compelling gov- eligible Residents were for federal Medic- assuring ernmental interest of that aliens aid subsidies and received medical services be self-reliant in accordance with national through state-sponsored Hawaii’s man- 1601(7). § policy.” Id. aged plans. care The Welfare Reform Act changed landscape dramatically by Copa II. Medicaid Residents rendering nonimmigrants and others ineli- is a cooperative gible Medicaid public state-federal for federal benefits. As non- program which the government immigrants, COFA Residents are thus ine- (B) retirement, health, welfare, United years any States for at least five before dis- they eligible any federally ben- funded ability, public housing, postsec- or assisted 1613(a)-(b). § efit. Id. educаtion, assistance, ondary unemploy- food benefit, any ment or other similar benefit for "[sjtate 4. The Reform Welfare Act defines or payments provided or assistance are public “(A) part local benefit” in relevant individual, household, family eligibility an or contract, loan, license, any grant, professional govern- an agency unit of a State or local provided by or agency commercial license by appropriated ment or funds of a or State government of a State appropri- or local 1621(c)(1). government.” local government; ated of a State funds or local alleged in benefits. He the diminution purposes For Medicaid.5 ligible for Residents from the benefits, however, nonimmigrants removing fall COFA plans and comprehensive insurance aliens for whom state’s category of within the Ha- in Basic Health eligi- enrolling their own them instead to set states are authorized based on waii constituted discrimination bility criteria. in violation of the Protec- alienage in- nonimmigrants made After in vio- tion Clause of the Constitution through reimbursement eligible for federal with Disabilities lation of the Americans Medicaid, initially continued to Hawaii (“ADA”). injunction sought Act Korab benefits to the same medical provide claim. solely on the constitutional based before, funded the Residents as but COFA through state funds. exclusively shortfall reasoned that Con- The district court Residents parties agree that COFA pass alienage restric- gress’s power as citizens and received the same benefits Reform Act flows tions in the Welfare aliens, quibble but over whether qualified enumerated the Natu- powers from the technically un- provided were the benefits Constitution, which ralization Clause plan. the same der to “establish an uni- authorizes concerns, Const., in 2010 Citing budget Hawaii Naturalization.” U.S. form Rule of qualified I, 8,§ Residents and dropped COFA art. cl. 4. The district court conclud- who had resided Reform Act is not ed that the Welfare years from the grants for less than five sufficiently States uniform because existing managed plans. care The state regard states some discretion with them instead in more limited cov- Ac- enrolled of state benefits to aliens. provision Hawaii, a erage provided by Basic Health cordingly, the district court found exclusively for рlan new state created decision scrutiny applied strict to Hawaii’s §R. 17- groups. differently these two Haw.Code to treat COFA Residents under Basic Health Ha- qualified 1722.3-1. Benefits aliens. Strict scruti- citizens and respect physician limited with ny requires government prove waii are visits, days prescription hospital protected and on any classifications based “ qualify do not for the drugs, recipients narrowly and tailored characteristics ‘are transplant pro- tissue organ compelling govern- state’s and further measures that ” plans covering long- insurance gram California, or its v. mental interests.’ Johnson 1141, § 499, 505, services. 17-1722.3-18- term care 125 S.Ct. 160 543 U.S. 19. (quoting Adarand Con- L.Ed.2d 949 structors, Pena, 200, 227, Inc. v. 515 U.S. Proceedings III. Court District (1995)). 2097, 132 L.Ed.2d 158 S.Ct. Korab, scrutiny, strict the district court dialysis patient Applying a who had been that Hawaii had not identified seeking kidney transplant, stop a sued to concluded provision Nationality nitely. Although no in 8 Immigration and Act de- there is 5. The Residents, 1101(a)(15) "nonimmigrant” any alien who has § fines U.S.C. for COFA pursuant of the various been admitted to one Compact expressly provides their admis- 1101(a)(15). § With visas set out in 8 U.S.C. "nonimmigrants,” regard sion as without exceptions, generally some these visas admit Immigration provisions and Nation- specific pur- only temporarily for a ality relating labor certification and Act visas, visas, pose, tran- such as tourist student Compact nonimmigrant of Free Asso- visas. visas, specialized work visas. COFA sit Residents, however, 141, 1985, Pub.L. No. ciation Act of 99-239 are entitled to reside 99 Stat. nonimmigrants indefi- the United States as any 719-22, state interest valid advanced 93 S.Ct. 37 L.Ed.2d 910 (1973). contrast, of COFA Residents the ex- In removal regu- statutes isting plan. lating benefit The dis- state-funded alien classifications subject are trict denied Hawaii’s motion to dis- the easier-to-satisfy court rational-basis review. granted injunction blocking miss a Hampton See v. Mow Wong, Sun reducing 88, 103, Hawaii from benefits for COFA 48 L.Ed.2d 495 (1976). Residents. presents This case a conundrum neatly does not fit within these broad injunction standard is well rules. Although Basic Health is a Hawaii known: “A plaintiff seeking injunction a program state-funded directed to a certain likely must establish that he is to succeed aliens, class of it part larger, is of a merits, on the that he is to suffer likely statutory scheme regulating relief, irreparable harm in the absence aliens. equities tips the balance оf in his favor, injunction and that an is in the To understand framework for re public interest.” Winter v. Natural Res. case, solving this helpful is to start with Council, Inc., 7, 20, key Def. the two Supreme Court cases on bene 172 L.Ed.2d 249 Although we Richardson, fits for aliens. v. Graham grant injunc- review the district court’s 365, 367, discretion, tive relief for an abuse of Har (1971), L.Ed.2d 534 the Supreme Court Supervisors, ris v. Bd. F.3d considered an challenge (9th Cir.2004), a court necessarily would two state statutes denied welfare ben “ abuse that discretion if it rul ‘based its efits to resident aliens. One im statute ing on an erroneous view of the law or on a posed residency requirement to become clearly erroneous assessment of the evi benefits, eligible for and the other statute ” dence,’ Anderson, Roe v. 134 F.3d excluded aliens altogether. from benefits (9th Cir.1998) (quoting Cooter & Gell Id. at 91 S.Ct. 1848. The Court v. Corp., 496 Hartmarx 110 emphasized that state classifications based (1990)). L.Ed.2d 359 This alienage inherently suspect way is of saying another that “interpreta subject scrutiny, to strict like classifica underlying tion of the legal principles, tions nationality. based on race or Id. at however, subject to de novo review.” class,” 91 S.Ct. 1848. “Aliens as a Registration Sw. Project Voter Educ. determined, prime “are a example of (9th Cir.2003) Shelley, 344 F.3d minority ‘discrete and insular’ for whom (en banc) curiam). (per heightened judicial such ap solicitude is propriate.” (quoting Id. United States

Analysis Co., 144, 153 4, Carolene Prods. 304 U.S. n. Equal (1938)). 778, Protection Clause of the 58 S.Ct. 82 L.Ed. 1234 the Fourteenth Amendment provides light judicial review, that searching of this “a ... deny any person “[n]o shall to preserve State State’s to desire limited welfare jurisdiction within the benefits for its own citizens is inadequate Const, XIV, of the laws.” U.S. justify amend. making ineligi ... noncitizens § 1. Accordingly, generally 374, states must ble.” Id. at 91 S.Ct. 1848. The Court lawfully present treat as the same struck down both statutes as violations of citizens, 376, and state based on Equal classifications the at Protection Clause. Id. alienage subject scrutiny are to strict Continuing re 91 apply S.Ct. strict 717, Griffiths, view. See In re scrutiny discriminating state laws on the 882 to serve that actually intended rule was repeatedly- the Court alienage,

basis of interest”). state statutes array of an struck down licenses, access to denying aliens by the protected are Although aliens See, e.g., benefits. or state employment, and Protection Claus- Due Process 217-18, Fainter, 467 U.S. Bernal v. еs, Con- prevent does not protection (1984); 175 L.Ed.2d 104 81 S.Ct. legitimate distinctions gress creating 1, 12, Mauclet, 97 U.S. 432 Nyquist v. or and aliens between citizens either (1977); Examin 63 53 L.Ed.2d S.Ct. allocating among categories of aliens Surveyors Architects & Eng’rs, ing Mathews, Bd. 426 on that basis. 572, 601, Otero, 96 426 de U.S. v. Flores (explaining that U.S. at S.Ct. (1976); Sugar L.Ed.2d ‍​​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​‌​​‌‌‌‌​‌​‌‌​​‌​‍65 S.Ct. citizens between legitimate “a distinction Dougall, 413 U.S. justify man v. and ben- may attributes and aliens (1973).6 2842, 37 L.Ed.2d 853 accorded to the for one class not efits

other”). . between state The difference the eligibility for In the context alienage based on and federal distinctions in Mathews v. program, Medicare the limits is the difference between Diaz, dis- places Amendment the Fourteenth (1976), considered the by power the Court states and the L.Ed.2d 478 crimination govern- constitutionality congressional grants dis to the federal Constitution 84-85, 96 immigration. Id. at alienage. Because ment over tinctions on the basis 1883; at Nyquist, 432 U.S. rela see also regulating responsibility “the (“Congress, 7 n. States tionship between immigra- over aspect power of its broad has been committed our alien visitors naturalization, enjoys rights to tion and Gov branches of the Federal political that are not distinguish among aliens ernment,” that Con concluded States.”). The Court shared may distinguishing laws be gress enact that, given concluded the federal Mathews long as those and aliens so tween citizens power extensive over government’s legitimate to a rationally related laws residence, un- “it is immigrants’ terms of at interest. government Congress to reasonable for questionably (concluding that the Constitu S.Ct. 1883 depend eligibility an alien’s [benefit] make of re a narrow standard “dictate[s] tion and the duration of on both the character view of decisions made 82-83, 96 his residence.” immigration”); in the area of the President S.Ct. 1883. Hampton, see also Fed- (holding that Mathews Recognizing “[w]hen 5.Ct. 1895 that Graham and overriding asserts an na- bookends present pristine examples eral Government justification impose for a dis- alien classifica- tional interest as on the eligibility violate the state law restric- criminatory purely rule which would tions—a by a adopted if tion in the case Graham Equal Protection Clause entanglements State, that there be a statute without state process requires due say fair to case of Mathews —it is presuming legitimate basis operations go to positions whose exception application of nonelective to the 6. One limited alienage representative government. See scrutiny to state classifications strict the heart of a exception, Chavez-Salido, "political is the function” U.S. 437- Cabell v. citizenship applies review to re- rational-basis 70 L.Ed.2d 677 quirements enact for elective and that states (This presents hybrid suit.) Basic Hawaii Health latter group part is not of this case, Instead, in which a following challenges state is a federal Korab the lack pari- of ty in direction. This variation was foreshad- benefits COFA Residents receive owed, however, through Basic by Health Hawaii compared Graham. 403 U.S. at to the provided through 91 S.Ct. 1848. Medicaid. part argument, As of this Korab essential- In its examination of residency Arizona’s ly brings a challenge to backdoor the fed- requirement for eligibility alien welfare for classifications, eral arguing that the state benefits, the Court in Graham considered provide cannot differing levels of benefits prohibiting whether federal statute through programs different because the requirements length based of citi- uniformity requirement of the Naturaliza- zenship, but not explicitly prohibiting re- tion Clause prohibits Congress grant- quirements alienage, based on could be ing any states in discretion the immigra- “read so as to authorize discriminatory tion or alienage contexts. begin We option treatment of aliens at the of the the federal by classifications established States” and concluded that it not. Id. did the Welfare Reform Act and then address 91 S.Ct. 1848. The ad- Court the appropriate level of constitutional scru- dressed the following issue of states con- tiny applicable to Hawaii’s decision ex- gressional only elliptically, sug- direction ercise the discretion afforded it the Act. gesting that a granting federal law wide adopt divergent discretion states “to I. The Fedekal A Classifications: Uni- subject laws on the of require- citizenship Policy form National ments ... would appear to contravene The Supreme Court has consistent explicit requirement [the] constitutional ly held government pos uniformity” arising out of the Naturaliza- sesses powers regulate extensive immi tion Expanding Clause. Id. on the refer- gration and the conditions under which uniformity еnce to the requirement aliens remain in the United States. See Doe, Plyler 219 n. — States, —, Arizona v. United (1982), 72 L.Ed.2d 786 2492, 2498, 183 L.Ed.2d 351 explained: “if the Federal Govern- (2012) (“This authority regulate [to immi ment uniform prescribed has rule what rests, gration and the aliens] status appropriate believes to be standards for part, on the National Government’s consti subclass, of an treatment alien power tutional to ‘establish an uniform may, course, States follow the federal Naturalization,’ Const., I, Rule of Art. direction.” cl. power and its inherent as sover does not challenge directly Korab eign to control and conduct relations with ” validity of the federal classifications (citations omitted)). foreign nations.... Welfare Reform Act. Nor does dispute he The reference to naturalization has been Hawaii’s selective classification within broadly read to mean federal control over “discretionary category benefits” aliens, just the status of criteria qualified Act—COFA Residents and (“The citizenship. Government present in the United States for fewer broad, States undoubted than years eligible five are Basic subject over Hawaii; Health all nonimmigrants other aliens.”); status of see also Takahashi v. parolees are ineligible Comm’n, under Hawaii’s Fish & Game plan, though they even included 92 L.Ed. 1478 (noting “discretionary Act’s group. congressional benefits” power under the Naturaliza- origin to the of the Naturaliza- Looking the conduct of regulate tion Clause Clause, concluded the Tenth Circuit tion aliens). uniformity requirement that “the Act, Congress Reform In the Welfare is not undermined Naturalization Clause respect policy “national announced a grant of by Act’s] Reform [Welfare 8 U.S.C. immigration.” and to welfare respect to the states with discretion that immi- § determined benefits.” qualifications for Medicaid alien an element of self-sufficiency was grant uniformity requirement 1257. The Id. at there was policy and that arose to the tensions that response was a assuring national interest compelling a the Articles of the intersection of and that “that aliens be self-reliant” both Comity Clause and Confederation’s not availability public benefits does laws, which divergent naturalization states’ immigra- illegal “incentive for serve as an citizenship in ineligible an alien for allowed 1601(5)-(6). accomplish To tion.” Id. state, to move to another obtain one state a objectives, the statute sets out these original state citizenship, and return require- eligibility set of comprehensive privileges a citizen entitled to all of both fed- governing aliens’ access to ments Ogden, immunities. v. See Gibbons Federal benefits eral and state benefits. (1824); 1, 6 L.Ed. 23 9 Wheat. are, course, strictly by circumscribed Madison). (James The Federalist No. wholly categories. Even for designated that be- The court Soskin determined benefits, Act establishes state-funded grant or cause “the choice one state to follow: categories that states must three not deny ... benefits to an alien does states must category one of aliens whom suit,” the require another state to follow benefits, catego- all state a second provide uniformity requirement purpose for states must not ry of aliens whom undermined states’ discretion under not benefits, a third any state provide at 1257. Reform Act. 353 F.3d Welfare au- of aliens for whom category agree. Considering the Wel We eligibility to determine thorizes states whole, a it fare Reform Act as establishes §§ 1621-22. The limit- state benefits. Id. providing federal structure for a uniform cate- authorized for the third ed discretion classes of welfare benefits to distinct Residents, gory, which includes COFA aliens. The entire benefit scheme flows uniformity re- does not undermine the classifications, a from these state’s quirement of the Naturalization Clause'. plan a implement limited discretion to level, specified category of aliens does only the Tenth On the federal uniformity. argu defeat or undermine Soskin has considered this issue. Circuit contrary, ignores the dissent Reinertson, ing to the 353 F.3d 1256-57 of discretion can (10th Cir.2004). that “a state’s exercise Hawaii, Like Colorado policy.” national Id. at also effectuate wholly initially provide chose to state-fund- explained Tenth 1255. As the Circuit coverage to all aliens ed health insurance Soskin, category. in the third Id. at 1246. When an about-face in 2003 and against option-

Colorado did a state ... decides When sued, argu- un- dropped coverage, coverage Soskin certain noncitizens [for al Act], it is ad- ing letting states determine benefit der the Welfare Reform (not Congressional concern eligibility dressing was unconstitutional beсause concern) that “in- just rule. sufficiently parochial not a uniform federal was public aliens not burden the dividual

885 system.” 1601(4). benefits § 8 U.S.C. in particulars certain differently in differ- may This policy, be bad but it is Con- ent states.” Id. at 22 S.Ct. 857. gressional policy; and we it only review The principle that “uniformity not does to determine whether it is rational. require the elimination of any differences 353 F.3d 1255. We are not in accord among the States” traction here. with the dissent’s myopic view that the Ry. Labor Gibbons, Execs.’ Ass’n v. Welfare Reform Act establishes no federal 457, 469, U.S. 71 L.Ed.2d direction and conclude that Hawaii's dis- As in the context, bankruptcy cretionary deny decision to coverage to although “particulars” the are different in COFA Residents Congress’s effectuates states, different the operation basic uniform policy national on the treatment of Welfare Reform Act is uniform throughout aliens in the welfare context. the United States.7 Stellwagen Clum, v.

This reading of the uniformity require- S.Ct. 62 L.Ed. ment finds an analog in (holding the that Supreme bankruptcy law may Court’s interpretation of yet the uniform and Bankruptcy “may recognize Clause, the similarly laws of the state in calls for certain particulars, uniformi- Const, ty. See I., although such recognition art. may cl. 4 lead dif to (empowering ferent results states”). in “[t]o establish different uniform Rule of Naturalization, overarching national policy uni- and alienage form subject Laws on the classifications set out in Bankruptcies the Welfare Re throughout States”). form the Act have repeatedly In upheld been Hano- ver National Bank v. Moyses, courts on rational-basis review. See, (1902), e.g., L.Ed. 1113 Lewiss Thompson, v. 252 F.3d (2d Cir.2001) considered a 582-84 challenge to the 1898 (upholding the alien- Bankruptcy Act ground age on the that classifications in the Welfare Reform incorporation divergent Act); City state laws Chicago Shalala, failed 189 F.3d (7th “establish Cir.1999) uniform laws subject on the 603-08 (same); see also of bankruptcies” Arizona, (“Federal unconstitutionally 132 S.Ct. at 2499 law “delegate[d] legislative certain powers also authorizes deny States to noncitizens several states.” Id. at benefits_”). range public 857. The Court held that the incorpo- II. The State Action: Hawaii Follows ration “is, of state laws in the constitution- Policy the Federal and Direction al sense, uniform throughout the United States” “gеneral because the operation of logical corollary to the national the law is uniform although may it policy result set out the Welfare 7. distinguish an effort to Bankruptcy Bankruptcy cable says nothing Clause Clause, Clause from the Naturalization question about more relevant of whether argues dissent Protection uniformity is undermined by the existence places Clause constitutional constraints on among differences the states. In the context states that are not present bankruptcy clauses, of both question the answer to that is argument context. This misunderstands the no, and the dissent offers controlling no au- analogy Bankruptcy Clause. We refer- thority contrary. Like the Tenth Cir- ence the Bankruptcy only Clause to show that Soskin, cuit in we conclude that the discretion uniformity is not undermined where states afforded to states under the Welfare Reform adopt paths different effectuating larger Act does undermine the uniformity estab- federal scheme or policy. That Natural- Soskin, lished under that statute. F.3d ization Clause is historically and has been subject to constitutional constraints not appli- it put Appeals Court of York theAs New pro that, where Act is Reform provided program here, a state constitutional, upholding states

gram is federal who were to aliens the federal replace partial be forced cannot Pi See right removed. to the Congress ineligible, has funding ly 1096, 1109 670 F.3d to remediate Dreyfus, the State “require v. not mentel does a similar Cir.2012). considered (9th Act].” We Reform Welfare [the effects the McMahon, 767 v. in Sudomir Doar, situation 12 N.Y.3d Khrapunskiy Cir.1985), (9th where 1456, 1457 (2009); F.2d 70, 77 N.E.2d N.Y.S.2d chal protection brought plaintiffs Health v. Commonwealth Finch also see a that determination to California’s lenge 655, 946 Auth., Mass. Connector Ins. ineligible aliens was category particular (2011) (Gants, J. 1262, 1286 concur N.E.2d in statute under the for benefits (“It is part) in dissenting and part in ring the application in the structing states require the to with Mathews inconsistent to Families Aid federal-state cooperative deci Congress’s the effect to undo State weAs program. Children Dependent Congress, that funds the replace and sion no Sudomir, sense would make “[i]t in said aliens, deter over plenary power its under in plenary has Congress say that to provide.”). not it would mined and naturalizаtion area of the impels Constitution that the then hold and relevant the drawn Congress has adhering the to refrain to the states only classifications, Hawaii’s and alienage at 1466. guidelines.” regarding is its decision here action Sudomir, Korab in plaintiffs Like aliens to provide will funding it agrees, that dissent argues, and by created discretionary category third, to obligation has constitutional a state Kor- decision. expenditure Congress—an that Con benefits the federal up for make Hawai'i, that any evidence offer fails to ab Putting him. away from took gress closely decision, has that making in terms, funding practical argument ad and direction” the federal “follow[ed] provide to whol compelled would states by prescribed requirements hered equal to Medicaid ly state-funded benefits. of state provision in its Congress cate discretionary third aliens in the to all 19, 102 S.Ct. 219 n. U.S. at Plyler, 457 meaning rendering effectively thus gory, alleged even Notably, has not Korab 2382. gave discretion less in for health expenditures the state that 1622(a). Sudo See in 8 U.S.C. states discretionary within the surance (“To hold would mir, so 767 F.2d less Congress are by created category adopt the states compelling amount in for health expenditures the state than classifica generous every more each assuming ar- irrational.”). Even for others.8 surance face, is not which, tion X, concurring part dis- (Ganis, we harbor proceedings, stage of the At this ap- (“[S]trict scrutiny is senting part) his carried Korab has that doubts serious a to evaluate of review propriate standard disparity claim to establish burden initial only where Medicaid, alienage classification State’s Under state's actions. vis-a-vis plain- expenditures for the capita per State's covered under eligible aliens are citizens per substantially less than aliens are tiff funds. federal and plan both funded by the State contributed capita amount contrast, is funded Hawai'i By Basic Health partic- Care however, similarly situated Commonwealth Here, Korab solely the state. any ...”). evi- offered has Korab Nor ipants. are receiv- COFA Residents not claimed expenditures on average state’s that the dence funding than citizens ing per capita state less Health in Basic Residents Finch, of COFA behalf N.E.2d qualified aliens. guеndo discretionary Hawaii’s deci- most tautological.” Soskin, 353 F.3d at provide sion not to optional coverage for 1254. The question constitutional before COFA Residents constitutes alienage- us is not whether Congress may authorize discrimination, based decision, which Hawaii to violate the Equal Protection indisputably is authorized by the Welfare Clause but rather “what constitutes such a Act, Reform subject to rational-basis violation when Congress has (clearly) ex- review. The posture of Korab’s constitu- pressed its will regarding a matter relating tional challenge-essentially a complaint aliens,”9 has done through about state spending-coupled with the le- the Welfare Reform Act. Id. Our determi- gitimacy of the federal statutory frame- nation that rational-basis review applies to work, leads to this conclusion. Hawaii’s conduct is consistent with Gra- ham

The dissent urges result, a and the contrary Supreme equal Court’s pro- seizing upon Supreme the tection cases Court’s state- because Hawaii is merely ment in Graham following “Congress does not the federal direction set by forth have the power to authorize the individual under the Welfare Reform Act. States to violate Plyler, See Protection 19, U.S. at 219 n. 102 S.Ct. 382, Clause.” 408 at bottom, 2382. At 1848. the dissent reaches the We acknowledge the rhetorical wrong force of conclusion it because asks proposition, but, this like the Tenth wrong question Cir- split.10 invites circuit cuit, conclude that the “proposition Soskin, is al- at F.3d 1254-56. are kin, Hawai'i less than the amount the state 353 F.3d at 1254-56. Congress’s That contributes for qualified citizens and aliens will is also the preemption touchstone of anal eligible record, for ysis Medicaid. On this does not Ha- render irrelevant to the deter waii nothing “does more scrutiny than refuse mination of required to ex- our pend equal protection State monies inquiry. Plyler, restore the See Federal 19, 2382; at Sudomir, 219 n. Congress’s funds lost constitutional exer- at Id.; F.2d 1466. plenary cise power." of its Hong Pham Starkowski, v. 300 Conn. 16 A.3d Beyond asking question, the wrong the dis- (2011) (concluding that Connecticut’s sent muddies its own analysis continually elimination of state-funded health insurance shifting target of its inquiry. constitutional merely implemented the Act’s re- hand, On one argues the dissent that “the strictions and any did not alienage- create stаte of ultimately Hawaii ... responsible" is classifications). Nevertheless, based because for the equal “denial of benefits to COFA we vacate the grant district court’s of the Residents,” at Dissent and that we must injunction ground basis, on the that rational subject "Hawaii’s actions” to strict scrutiny, rather than scrutiny, strict is appropriate hand, Dissent 905. On the other dis- of scrutiny, standard we need not resolve this acknowledges Congress, sent through the evidentiary question at stage. this Act, Welfare Reform giving "was states broad discretion to against discriminate aliens in the 9. The dissent that our Congress's reference provision of welfare but benefits” concludes clearly expressed will demonstrates our “con lacked constitutional fusion as to whether this an so. do Dissent 909-10. So which is it? preemption or a case.” Dissent at 908 n. 7. challenge Does the dissent the constitutionali- We confused. To the appli determine actions, ty Congress's, of Hawaii's or both? cable level of scrutiny constitutional in this mixing dissent’s own matching case, protection we ask whether Ha point why underscores Hawaii’s conduct direction, following waii the federal see part parcel should viewed as Plyler, 457 U.S. at 219 n. scheme, federal welfare a scheme that is not turn, which in demands consideration of challenged Con by Korab and has been deemed gress’s intent in establishing a See, uniform Lewis, e.g., constitutional. 252 F.3d at policy through Act, 582-84; Shalala, the Welfare Reform Sos 189 F.3d at 603-08. v. Common restrictions); Finch injunction vacate we Accordingly, Auth., 459 Connector Health Ins. for fur- wealth court the district and remand (2011) 1262, 1279-80 655, 946 opin- Mass. N.E.2d with this consistent ther proceedings Massachusetts’ scrutiny to Reed, 676 (applying strict 586 F.3d v. See Doe ion.11 restric eligibility alien ruling Cir.2009) injunction PRWORA-based (9th (reversing 691, 908 Perez, Md. tions); incor- Ehrlich v. applied court the district where (2006) strict (applying 1243-44 scrutiny). A.2d rect level PRWORA-based Maryland’s scrutiny REMANDED. AND VACATED restrictions); ex Aliessa eligibility alien Novello, 96 NY.2d Fayad v. rel. concurring and BYBEE, Judge, Circuit 754 N.E.2d N.Y.S.2d judgment: concurring York’s scrutiny to New strict (applying Judge McKeown’s full in I concur restric eligibility alien PRWORA-based Her court. for the opinion thoughtful Glickman, 242 tions); see also Basiente nature the unsettled captures opinion Cir.2001) (9th (applying 1137, 1143 F.3d offers law and the current scrutiny to PRWORA-based basis rational ap- conflicting through the morass way for federal eligible on aliens restriction explain separately to I write proaches. the of Commonwealth the unclear remains so alienage law of why the Marianas). Northern it. approach might better we and how might that courts surprising It is not implemen state reaction to courts’ equal protec of application the divide over Responsibility of the Personal tation where Even PRWORA. tion rules Act Reconciliation Opportunity Work review, the standard agree on courts co the (“PRWORA”) demonstrates 1996 application over the may disagree judges Protection Equal current of our nundrum See, Fisher v. Univ. e.g., standard. Compare to aliens. as applied doctrine — U.S.—, Austin, S.Ct. 133 Tex. at 1242, Reinertson, 1254 F.3d 353 v. Soskin (2013); v. 474 Gratz 2411, L.Ed.2d 186 Cir.2004) basis (10th rational (applying 2411, 156 244, 123 S.Ct. Bollinger, 539 U.S. PRWORA-based scrutiny to Colorado’s (2003); Bollinger, v. Grutter L.Ed.2d 257 restrictions); Khrapunskiy eligibility alien 2325, 306, 156 L.Ed.2d 123 S.Ct. 539 U.S. 377, 478, Doar, 881 N.Y.S.2d 12 N.Y.3d v. 518 Virginia, v. (2003); States United 304 (2009) (holding that 70, 76 909 N.E.2d 735 2264, L.Ed.2d 515, 135 116 S.Ct. apply does not Protection Clause seven is that isWhat remarkable eligibil alien New York’s PRWORA-based v. Caro States after ty-five years restrictions); Pham v. Starkow Hong ity the need announced (2011) Co. tene Products 635, 412, 661 ski, 16 A.3d 300 Conn. scrutiny” “dis judicial exacting “more scrutiny to Con basis rational (applying minorities,” 304 U.S. and insular crete eligibility alien necticut’s PRWORA-based significantly, stage. as Just we at this thoughtful and should written a Judge Bybee has analysis adoption preemption urging Judge Bybee’s compelling concurrence —that alienage approach expressly program is not preemption-based of a welfare Hawai'i However, Judge Bybee ac- as classifications. violate Con- preempted nor does impliedly away approach veers knowledges, this fresh gress's dormant —side- authority forth in controlling set question steps constitutional the ultimate no goes where and Mathews Graham parties: by both and briefed Korab raised It is at 901. gone. Concurrence circuit action violates namely, Hawaii’s whether party has unsurprising that neither therefore Clause. Equal Protection and neither appeal, preemption addressed

889 153 n. 82 (1938), L.Ed. 1234 Wing States, v. United 228, 237, forty more than years since 16 Graham 41 (1896); S.Ct. L.Ed. 140 Yick Wo v. Richardson declared v. classification Hopkins, based

on alienage subject (1886); to strict 30 L.Ed. scrutiny, 220 Graham, see also (“It U.S. at S.Ct. L.Ed.2d has long (1971), been ... we settled should divided over ‘person’ term proper encompasses сontext standard lawfully review for classifica- admitted resident tions based on aliens ... alienage. and entitles both citi- zens and aliens to the equal protection of below, As discussed doc- Graham laws-”). For the first half of the trine —while ostensibly clear when is- twentieth century, the Court was generally been, fact, sued—has riddled with ex- deferential to alienage restrictions, so ceptions and caveats that make consistent long they did interfere with “[t]he judicial review of alienage classifications authority to control immigration admit —to difficult. years since Graham was or exclude [which] is vested solely aliens— decided, the Supreme Court has applied in the Federal Government.” Truax different levels of scrutiny depending on Raich, U.S.33, 42, 60 L.Ed. whether the state or the federal govern- (declaring unconstitutional ment established the challenged restric- Arizona requiring law that employers with tion, whether the restriction involved eco- more than five employees hire at least 80 nomic rights or the process democratic percent native-born citizens since (often self-government stretching that con- “denying] to aliens the opportunity of cept), whether the restriction involved un- earning a livelihood when lawfully admit- aliens, documented and whether the dis- ted state would be tantamount criminatory classification was created the assertion right to deny them Congress or an agency. administrative A ”) entrance and ... abode But a where history review of the of alienage jurispru- discriminatory state’s classification related dence, particular with a review of Gra- to a public interest without a clear nexus ham —both what it said and how it has to a field of control, the Court (and applied been applied) not in the past often upheld the restriction. See Clarke v. forty years suggests that it is time to — Deckebach, 392, 396, 274 U.S. 47 S.Ct. rethink I below, doctrine. As explain I (1927) 71 L.Ed. 1115 (holding an Ohio law persuaded am that an alternative approach banning alien ownership pool of halls con- based on preemption analysis bring would stitutional as it did amount to “plainly clarity welcome to this area. Employing discrimination”); irrational Crane v. New preemption analysis instead equal of pro- York, 36 60 S.Ct. L.Ed. tection analysis in alienage cases will not (1915) (upholding statute criminalizing spare cases, us hard but it offers us a the employment of aliens public on works mode of analysis that is more consistent contracts); v. Terrace Thompson, 263 U.S. Constitution, with the our history, and the 197, 221, (1923) 68 L.Ed. 255 Court’s cases since Graham. (holding a Washington banning law alien ownership of land constitutional because I quality “[t]he and allegiance of those who For a century, over the Supreme own, occupy and use the farm lands within has recognized that aliens “persons” are [a State’s] borders of matters highest entitled protection to the of the Fifth and importance ...”); McCall, Heim v. Fourteenth Amendments. See Wong L.Ed. make Territory to and every State in employ- of prohibition a

(1915) (upholding sue, contracts, parties, to be and enforce contracts works public on of aliens ment full evidence, and and to give in subway City York constructing New proceedings laws a of all over the state special “the light as is property persons security of employ- [government subject-matter the' ... citizens enjoyed by white Pennsylvania, ment]”); v. Patsone L.Ed. to “extend[s] this section Finding that excluding a law (footnote constitutional (holding citizens,” id. to well as aliens noting game hunting wild from omitted), aliens declared the Court with classify may [aliens] “a state Act “in the Rights adopted Civil had if ... prevented evil to the legislative reference comprehensive a enactment of or rea- against regu- discriminated class control and the nation-wide plan for to define considered might be sonably naturalization lation of to be mainly is evil added). whom Accordingly, from those (emphasis ...” Id. ”). ... “a with feared conflicted provision California’s Fourteenth in “[t]he found policy” general re alienage approach Court’s under adopted and the laws Amendment after Sec change began strictions in lawfully persons that “all authority” War, notably in Takahashi World ond anon any state’ abide ‘in country shall Comm’n, & Game Fish all citizens privileges ‍​​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​‌​​‌‌‌‌​‌​‌‌​​‌​‍legal equality Tak 1138, 92 L.Ed. 1478 Id. at nondiscriminatory laws.” under alien fisher ahashi, resident Japanese public “special Without 68 S.Ct. 1138. barring law a California challenged man yield had interest,” California’s law fishing obtaining commercial aliens law. Id. law down the struck The Court licenses. in the course fluctuating but doc- grounds, prеemption of this light It was civil discussion, it referred Graham

of its the Court decided trine Fourteenth enforcing the law rights

Amendment: II con- has broad Government Federal what determining powers stitutional confu- current much of The root to the United be admitted shall alienage the courts’ treatment over sion remain, reg- may States, they the period with dealt itself. Graham in Graham lies before natural- conduct of their ulation by imposed public benefits on restrictions conditions ization, terms and and Arizona, In Pennsylvania. Arizona laws State naturalization....

their totally disabled permanently persons discriminatory burdens impose under for assistance eligible not were aliens residence of or the entrance upon Arizona partici- in which program States conflict the United lawfully within the Unit- they were not citizens if pated constitutionally derived federal with had resided U.S. or States ed ... to regulate 366- 403 U.S. at years. than fifteen fewer (internal Pennsylvania had citation 419, 67, 1848. 68 S.Ct. 91 S.Ct. at Id. fund- Civil not omitted). quoted the one program, then assistance general government, at 42 codified the federal any part Act of now ined Rights to U.S. citizens. § limited participation 1981: U.S.C. pro- The Court at 91 S.Ct. Id. the jurisdiction within persons All fronts: analytic distinct on two right ceeded the same shall States have United Equal Protection Clause pre- and federal Second, and alternatively, the Court in emption based on the Supremacy Clause. Graham found the state laws preempted First, it law, addressed the state thereby classifications violating the Su Const, Equal premacy under the Protection Clause. Clause U.S. VI, § art. (“This Const, Constitution, Fourteenth Amendment. and the U.S. Laws of the United (“No States XIV, which shall amend. in State made Pur shall ... deny suance thereof ... shall be any person the supreme jurisdiction within its Land”). Law of the The Court found protection laws.”). Although the state restrictions on alienage could Court had mentioned the Fourteenth “withstand constitutional scrutiny” because Amendment in connection with state re- of “[t]he National Governmentf’s] ... strictions on aliens previous cases, ‘broad powers constitutional in determin Court had never judgment rested its solely ing what aliens shall be admitted to the Protection In Clause.1 Gra- States, the period they may re ham, for time, first the Court estab- main, regulation of their conduct before lished a level of scrutiny, holding that naturalization, and the terms and condi “classifications based on alienage, like ” tions of their Graham, naturalization.’ those based on nationality race, 403 U.S. at 91 S.Ct. 1848 (quoting inherently suspect subject ju- close Takahashi, 1138). 68 S.Ct. dicial scrutiny.” 403 U.S. at Describing Congress’s “comprehensive (footnotes omitted). This meant that plan the regulation of immigration and state classifications based on alienage must naturalization,” including aliens who be fall unless the state can “a show compel- come “public charges,” the Court found ling state interest by the least restrictive that “Congress has not seen fit impose means available.” Fainter, Bernal v. any burden or restriction on aliens who 81 L.Ed.2d become indigent after their entry into the Graham, Arizona’s and United States.” Id. at 68 S.Ct. 1138. Pennsylvania’s preserve “desire to limited Accordingly, “State laws that restrict welfare benefits for its own citizens [was] eligibility of aliens for welfare benefits inadequate justify” the restrictions, 403 merely because of their alienage conflict U.S. at and “a concern overriding these national policies for fiscal integrity” was not compelling. an area constitutionally entrusted to the Id. at 91 S.Ct. 1848. With respect to Federal Government.” Arizona, whose state plan including — 1138. As “the States ‘can neither add to alienage restriction —was previously ap- nor take from the conditions lawfully im proved by the Secretary Health, Edu- posed by Congress upon admission, natu Welfare, cation & the Court construed fed- ralization and residence of ” eral law not to authorize the restrictions United States or the states,’ several Ari because “Congress not does have the pow- zona’s Pennsylvania’s and “laws en- er to authorize the individual States to croachfing] upon exclusive power violate the Equal Protection Clause.” Id. ... [were] constitutionally impermissible.” 382, at 91 S.Ct. 1848. 378, Id. at 68 S.Ct. 1138 (quoting Takaha Wo, 1. Even in Yick where the Court cluding China, first the treaty U.S. with the Four- declared “persons" aliens to be within the Amendment, teenth Rights and the Civil Act scope Amendment, of the Fourteenth the of 1866. 118 U.S. at 6 S.Ct. 1064. Court cited several sources of authority, in- 892 precisely always been 380, equal protection 1138), 68 419, 68 S.Ct. at

shi, 334 U.S. under equal protection to the as same the 1138. S.Ct. Weinberger Amendment.” Fourteenth the equal case a watershed was Graham 2, 636, 95 638 n. U.S. Wiesenfeld, 420 v. classi placed it analysis because protection (1975). See 1225, L.Ed.2d 514 43 S.Ct. in the same alienage on based fications — —, Windsor, U.S. v. States United race, on based classifications as category 2695, . 808 2675, L.Ed.2d 186 S.Ct. 133 States, U.S. 323 v United Korematsu see Fifth (“The by the liberty protected (2013) (1944), 194 193, L.Ed. 89 216, 214, 65 S.Ct. Clause contains Process Due Amendment’s than classifi class protected in a more and denying against prohibition it the within see illegitimacy, gender on based cations of the protection equal the any person 197, 190, 97 S.Ct. Boren, 429 U.S. Craig v. Paradise, 480 v. laws.”); United States , (1976) (gender); Clark 451, 397 50 L.Ed.2d 1053, 94 16, S.Ct. n. 107 149, 166 1910, U.S. 461, 456, 108 Jeter, U.S. v. 486 (1987) of opinion (plurality 203 L.Ed.2d (1988) (illegitimacy). 100 L.Ed.2d (“[T]he equal J.) of the Brennan, reach significant. were Graham implications of Amend Fifth of the guarantee cases, protection the Gra line of important Under the Four that of coextensive is the federal ment bound have rule would ham Valeo, 1, 424 U.S. ...”); Buckley v. the degree as teenth the same government (1976) 612, L.Ed.2d 659 Sharpe, 347 U.S. 96 S.Ct. Bolling v. In states. Fifth (1954), analysis decided (“Equal protection 98 L.Ed. 74 S.Ct. under Edu as that area the same Brown v. is day as Board Amendment the same of Amendment.”). see 98 L.Ed. But cation, 74 S.Ct. Fourteenth U.S. the the same Wong, held that (1954), the Court v. Mow Sun Hampton to the applied principles L.Ed.2d 495 applied Four government Fifth and both (“Although [the obvious, was not proposition the same That states. require Amendments teenth] Clause Protection Equal ... analysis, because [equal protection] of type Amendment, in the Fourteenth always found coexten protections two to the states applies terms by its sive.”). to enforce grants discussion most extensive In the Court’s Const, XIV, §§ 5. amend. it. U.S. Court principle, Bolling of the date however, declared the Court Bolling, “the Bolling Court that in recounted same Constitution “unthinkable the ex- questioned explicitly first time the Federal duty on impose lesser would obli- between any difference istence Government.” Federal Government gations held Brown Although the Court racial classifications.” to avoid the States on basis that state discrimination Pena, Constructors, Inc. Adarand Clause Protection race violated 2097, 132 L.Ed.2d 200, 215, 115 S.Ct. Amendment, the Court Fourteenth of the con- “Bolling’s, facts While discrimination that federal Bolling held ... its rea- desegregation, school cerned race violated the basis Id. The limited.” not so soning was Proсess the Due component protection “ of the the Constitution ‘that repeated Amendment. Fifth Clause forbids, form, States, present in its Brown, 693; also see rights are political the civil far as Bolling, so Since 74 S.Ct. 686. & n. at 495 General concerned, by the discrimination the that established well it has been States, any Government, against the Fifth Amendment to approach “Court’s

893 citizen 216, because his race.’” Id. at From outset, the rule, Graham sim 115 (emphasis S.Ct. 2097 original) (quot- pliciter, was unsupportable. Adarand, See ing Bolling, 499, 693) 347 U.S. 74 515 217-18, U.S. at S.Ct. (ac 115 S.Ct. 2097 (other citation quotation knowledging omit- marks that the equal protection ted). component The Court also underscored that Fifth Amendment coextensive component of with Fifth that of the Fourteenth except Amendment is Amendment obligation “an with equivalent respect to to some of cases); the alien Id.; that of the 217, States.” see id. at States v. 74 Verdu (“the go-Urquidez, 259, 494 273, S.Ct. U.S. protection 693 equal 110 S.Ct. obligations 1056, (1990) (“[Our 108 L.Ed.2d 222 imposed by the Fifth and the deci Fourteenth sions] expressly differing ] protec Amendments indistinguishable”). [are] accordf tion to citizens, aliens than to based only exception on our might be “a few con- conclusion that particular provision trary suggestions appearing in eases in question were not intended extend special we found deference to the aliens in the degree same citizens.”); toas political branch of the Federal Govern- Currie, David P. The Constitution in the ment be appropriate detract Supreme Court: The Second Century, general 217-18, rule.” Id. at 74 S.Ct. 1888-1986, (Graham at 500 “carried (citing Hampton, 88, 426 U.S. at this line of authority to the extreme of 1895). S.Ct. declaring alienage suspect a classifica This last caveat was It huge. turns out tion as race—a characterization so implau that, in the area of immigration and natu- sible would soon have to be re ralization, “unthinkable,” Bolling, 347 vised.”) (footnote omitted). 500, U.S. at 693, exactly was what At the first opportunity, the Court de- the Court had thinking been for more than clined to impose equal protection com- years. one-hundred obligations ponent of the Fifth Amendment on the federal government and the states federal government. Indeed, the Graham respect to aliens were indeed “[]distin- rule, as a mode protection analy- guishable,” Adarand, 515 U.S. at 115 sis, has never fully applied been S.Ct. 2097. In a casеs, venerable line of government since Graham. Just the Court had approved political years five Graham, after v. Mathews branches’ control over the privileges that Diaz, the Court phrased the issue as aliens enjoy in See, the United States. “whether Congress may condition an e.g., Bell, Fiallo v. 792-96, U.S. 97 alien’s eligibility for participation in a fed- S.Ct. (1977); L.Ed.2d 50 Hines v. eral medical program insurance on contin- Davidowitz, 62-68, U.S. uous residence in the United States for a 399, 85 (1941); L.Ed. 581 Fong Ting Yue five-year period and admission for perma- States, v. United nent residence.” 426 U.S. (1893); L.Ed. (1976). 48 L.Ed.2d 478 The Court Henderson v. Mayor York, New 92 U.S. did begin not with Graham and equal pro- 259, 273-74, 23 (1876); L.Ed. 543 Chy analysis. Rather, tection it divided the Freeman, Lung 275, 92 23 alienage question into parts: two May L.Ed. 550 time, At the same the Congress discriminate between citizens Court had established states had may aliens? And Congress discrimi- some, unlimited, but control over nate between groups different of aliens? aliens’ privileges within the state. See As to the question, first the Court had I, supra. Part little difficulty finding “[i]n exer- 894 Hamp- decided Court day, the The same naturalization over its broad

cise of 88, 96 at 426 U.S. Wong, Sun v. Mow regularly ton Congress immigration, and perma- lawful Hampton, In 1895. if S.Ct. unacceptable be would rules that makes em- denied were residents an nent fact that to citizens.... applied Commission Service by the Civil differently ployment aliens treats Congress Act of This citizens. not they were that because imply in itself not does citizens from ” an however, began with the Court time, is ‘invidious.’ treatment disparate such consistent with analysis protection The Court 79-80, 1883. 96 S.Ct. at Id. Dougall, Sugarman Citing or Graham. of Graham acknowledgment no made 2842, 853 634, 37 L.Ed.2d 93 S.Ct. 413 U.S. ques- to the second respect Bolling. With 717, Griffiths, (1973), re and In mentioning even without tion, again and (1973), two 37 L.Ed.2d S.Ct. reasoned the Court Bolling, Graham applied Gra- had the Court in which cases it was that since strike analysis to s ham’ has no constitu- Congress that obvious employ- on alien restrictions down state the aliens with all duty provide tional the feder- similarly struck ment, the Court citizens, the provided welfare of non- employment the on al restrictions constitutionality of the challenging party and Graham The Court linked citizens. has drawn Congress line particular the “Al- them: distinguish Bolling, but advancing principled of the burden Fourteenth] and Fifth though [the both at once invalidate will reasoning that type of same the require Amendments line a different tolerate yet line and that are not protections two ... the analysis others. aliens from separating some Hampton, always coextensive.” added). (emphasis at 96 S.Ct. Id. ob- The Court 1895.2 at S.Ct. to “substi- end, declined Court In the the the dictated Sugarman served for that judgment [its] tute em- on federal the restriction strike Court eligible shall aliens deciding which was there aliens unless ployment insurance supplementary participate ],” at id. interest[ “overriding national as citi- on same conditions the program have would proof of which 96 S.Ct. then Only 1883. at zens.” President, and or the come Graham, it which consider did the Court Service Commis- the Civil just from distinguishing “because difficulty had no 1895. sion, id. between relationship concerns juxtaposition about is odd aliens What between rather than the States and way in which is two cases these Classifi- Federal Government.... and the hand, virtu- and the one on followed Federal Govern- by the aliens] [of cation other, equal protec- ally ignored on normally legitimate ais routine ment an- previously it had principles tion S.Ct. Id. at of its business.” part followed the Court Hampton, nounced. 1883. Puerto purposes, the Court's Rico. For Puerto I can locate only reference 2. other Four- “If the did not matter: Bolling status both Rico's refers to the Court applicable, Amendment in Exam- teenth Term in the same was later Graham statutory exclu- Architects, nullifies Clause Sur- Protection Engineers, ining Board of hand, Fifth If, it is the the other Otero, the Court sion. where de v. Flores veyors Clause Process and its Due restricting Amendment law a Puerto Rico down struck egre- is so discrimination apply, the statute's engineers to U.S. citizens. civil [Bolling v. rule that it falls gious ofOne L.Ed.2d 65 Sharpe].” Id. status questions constitutional was equal protection principles, finding that that would by be raised congressional or employment federal restrictions were Presidential enactment of a bar on employ- presumptively invalid under Sugarman ment of by the Federal Govern- there unless a compelling was governmen- ment”). Instead, the Court largely ig- tal interest and the rules expressly “were nored the equal protection component of by the mandated Congress or the Presi- the Fifth Amendment left us scratch- dent. ...” Id. at 96 S.Ct. 1895. When ing our heads over two entirely separate thе Court couldn’t find such an interest modes of analysis of challenges to federal by mandated branches, the elected the law restrictions on alienage.3 fell. It have easy would enough been

Mathews for the Court to analyzed Bolling have equivalence principle aside, the restrictions on federal benefits under the Court has also qualified Graham as equal protection, but the Court made Gra- applied to the states. The Court has tend- ham an afterthought. Had it started with ed to affirm state classifications regarding Graham, the Court would have considered political or rights democratic afforded to statutory on restrictions aliens receiv- aliens and has tended to invalidate those ing federal benefits presumptively invalid classifications that limited the distribution and then asked whether there awas com- of economic benefits regulated or commer- pelling governmental interest. See Gerald cial opportunities, altering the level of Rosberg, M. The Protection Aliens from scrutiny on an almost case-by-case basis. Discriminatory Treatment by the Nation- Graham, Following the Court has applied Government, al 1977 Sup.Ct. Rev. scrutiny strict to some state restrictions (“The existence of special these see, Bernal, e.g., 467 U.S. at aliens — may explain interests why the gov- 216, 104 S.Ct. 2312 (holding unconstitu- ernment can demonstrate a compelling tional Texas law prohibiting aliens from need particular for a classification even becoming notaries); Mauclet, Nyquist v. though a could not. But it does not 53 L.Ed.2d 63 in an obvious way explain why the burden (1977) (holding unconstitutional a New justification on the federal government York barring law resident aliens from should be different from the burden on a state assistance for higher education); In state.”). Given the Court’s statements in Griffiths, re 413 U.S. at 93 S.Ct. Hampton, given its analysis of the (holding unconstitutional a Connecticut national interest naturalization and im- law barring aliens migration, from becoming the Court law- might well have hon- yers); Sugarman, Congress’s ored preferences, 413 U.S. at even under strict S.Ct. 2842 scrutiny. (holding But see Hampton, unconstitutional a New U.S. at (Brennan, City York J., law making aliens ineligible for concurring) (joining the majority city employment) opinion not to others. —but “with the understanding that there one case it applied a form of intermediаte reserved the equal protection questions scrutiny. Doe, Plyler See Compare Erwin Chemerinsky, (1979) ("The Constitution- Supreme Court's creation in Principles al Law: and Policies 9.5.3 at 744 Graham v. suspect Richardson of a classifica- (3d ed.2002) (“the Court's decisions can be alienage tion of has not been a successful criticized openly for so manipulating the level experiment_[T]he equal treatment of resi- scrutiny. The Court could have used strict by dent aliens required the states pre- scrutiny....”) Levi, Note, with David F. emption equal than protection rather Equal Treatment Preemption Aliens: clause.”). Protection?, 31 Stan. L.Rev. state restrictions down the struck 72 L.Ed.2d challenge, but protection face of requiring a law unconstitutional (holding apply consistent did that the for education pay alien schoolchildren thing be one It would citizens). other of review.4 In still standard free to

that was strict applying Court, consistently ‍​​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​‌​​‌‌‌‌​‌​‌‌​​‌​‍basis if rational applied cases, the Court restrictions some state See, upheld v. Cha e.g., scrutiny, Cabell scrutiny instead. entirely an 735, is 70 It 432, striking 102 S.Ct. others. vez-Salido, while U.S. 454 doesn’t Court when the (1982) (holding matter constitutional different 677 L.Ed.2d review. of offi its standard probation consistently requiring apply law a California Norwick, difficulty of the citizens); respect v. Ambach due all With cers to 49 indecision 1589, 60 L.Ed.2d the Court’s 68, questions, S.Ct. 99 these 441 U.S. re- York of a New standard (1979) protection constitutional (holding equal over the to be that appearance schoolteachers cases the public these requiring gives view law 291, Connelie, to ac- 435 U.S. manipulated citizens); v. been Foley has the standard (hold (1978) the 1067, L.Ed.2d 287 intuition over 55 the Court’s 98 S.Ct. commodate limiting case York law And its a New case. ing particular constitutional result to citi force police alienage state review appointment court lower law makes cases, zens). other in still And more difficult. all the restrictions Equal. Protection ignored largely has Moreno, v. Toll altogether. See Clause Ill 2977, 563 73 L.Ed.2d 1, 102 S.Ct.

458 U.S. reth- make us history should This brief University of Ma (1982) (holding that-the equal protection Graham’s ink whether aliens barring domiciled policy ryland’s the Court’s explain can alone analysis in acquiring from dependents and their- cannot. that it Obviously, I believe cases. supremacy tuition violated state preemp- thаt Graham’s I believe But do 647, Moreno, clause); v. Elkins anal- analysis, not tion (hold L.Ed.2d 614 98 S.Ct. power explanatory significant ysis, has can be aliens resident whether ing that here. matter is a Maryland come domiciliaries leave should federal courts law of state securely more analysis is preemption A comity); as a matter courts to state There itself. in the Constitution anchored Bica, DeCanas Govern “[t]he question little can be (1976) (holding that a L.Ed.2d ... has broad States the United ment of employer an prohibiting law California and immigration subject of over power alien illegal an employing knowingly from v. United Arizona of aliens.” the status regulation — not unconstitutional was U.S.—, States, under preempted being asor (2012). The constitution L.Ed.2d Clause). Supremacy both textual for that al sources I obviously, Article Most structural. and my purposes point curious authority to “es- express grants or upheld the Court much whether so ap- difficulty notes, which underscores all of Maj. Op. 887 n. Majority 4. As n in cases of review standard plying uniform deni- Hawaii’s suggests both the Dissent they in- when alienage, especially involving is-sub- residents to COFA al of schemes of federal intersection volve the scrutiny, Dissent ject to strict the ab- least in have—at schemes that "broad given states Congress has differing of scru- levels afforded stract —been against aliens in discriminate discretion benefits,” tiny. Dissent welfare provision of tablish uniform Rule of Naturalization.” political departments largely immune Const, I, art. cl. addition, 4. In judicial control”). sum, the Court has “ authority political branches to said, ‘over no subject conceivable is the determine the terms may legislative power of Congress more com- immigrate to States, the United whether plete than it is over’ the admission of visit, work, study, marry, remain, Fiallo, aliens.” U.S. at rests on an undefined amalgamation of 1473 (quoting Oceanic Navigation Co. v. powers in Congress vested and the Presi Stranahan, dent. powers Those include the Foreign (1909)). 53 L.Ed. 1013 Clause, Commerce id. I, 8,§ art. cl. 3 The Court frequently employed pre (“Congress shall have Power ... to regu emption as its mode of analyzing state late Commerce foreign Nations”), restrictions based on alienage. In general, the foreign powers affairs derived from the there are ways three Congress may President’s authority “to make Treaties” preempt a law through legislation. See “appoint and Ambassadors, public other Arizona, 132 S.Ct. at 132 S.Ct. Consuls,” Ministers and II, 2,§ id. art. cl. First, because possesses 2, and to “receive Ambassadors and other plenary authority over immigration and public Ministers,” II, Toll, § id. art. 3. See naturalization, Congress may expressly 10, 458 at U.S. 102 S.Ct. 2977. The Court preempt See, certain laws. e.g., Chamber has also relied on the power “inherent [of — Commerce v. Whiting, —, U.S. of

the United sovereign States] as to control 131 1968, S.Ct. (2011) 179 L.Ed.2d 1031 and conduct relations with foreign na (discussing 8 U.S.C. 1324a(h)(2), tions,” which Arizona, 132 S.Ct. at 132 “any forbids State or local law imposing S.Ct. including concepts core to “the civil or criminal sanctions ... upon conduct of those foreign relations, the pow war who employ ... er, aliens”). unauthorized and the maintenance of republican form Second, where state government,” actually of laws conflict Harisiades v. Shaughnes with laws, sy, 342 580, 588-89, state U.S. laws 72 must S.Ct. 96 yield. Arizona, L.Ed. 132 586 S.Ct. at See 2502 (holding also United States Valenzuela-Bernal, a law making failure 458 with comply U.S. alien-registration 73 requirements L.Ed.2d 1193 a (“The power state to regulate immigration misdemeanor was preempted). —an Third, attribute of even sovereignty where Congress essential has not ex preservation of any pressly preempted laws, been en nation —has but “has trusted the Constitution to the enacted a political complete of regulation scheme branches of the ..., Federal Government.”); cannot, states inconsistently with the Shaughnessy v. United States purpose rel. ex of Mez Congress, conflict or interfere 73 with, 97 ei L.Ed. curtail or complement, the federal (1953) (“[T]he 956 power to expel law, or ex or enforce additional or auxiliary reg clude aliens a [is] fundamental sovereign Hines, ulations.” U.S. at attribute exercised by the Government’s 399. This is so-called field preemption.5 5. The distinction pre- between actual conflict impose penalties its own for the federal emption and field preemption is always not offense here would conflict with the careful See, Arizona, e.g., clear. 132 S.Ct. at 2502 framework adopted”). See also (finding that “the Hines, Federal Government has 312 U.S. at (noting S.Ct. 399 occupied the field of registration” alien expressions but "conflicting” such as "oc- or concluding then “[p]еrmitting cupying [Arizona] provide field” do not “an infalli- this; for more than It is character. 17, 102 S.Ct. Toll, at

See, e.g., international. be called may properly and it Immigration (holding that which of laws that class regu- belongs to It comprehensive a Act was Nationality of this relation visa the exterior domiciled, nonimmigrant G-4 concern lation of gov- and nations Maryland’s other nation preempted whole and that holders tu- in-state persons such grant ernments. refusal Hines, at ition); laws which Accordingly, “[t]he at 273. Id. Act of Registration Alien that the (holding right passengers to land govern regis- alien Pennsylvania’s preempted “may countries” other States requirements). tration uniform be, subject of ought be legislated Congress has Even where Hines, See plan.” or system kind enforced the Court specifically, Lung, 92 U.S. 399; Chy 66-67, 61 S.Ct. at analysis. immigration”6 of “dormant con- (“The laws passage authority legislative of “dormant” principle subjects of citizens the admission cern case, in a commerce recognized first was belongs to shores to our foreign nations sub- “Whatever Bd. Wardens: Cooley v. If it the States.... not to Congress, in their nature jects can, her otherwise, State single of one uniform national, only or admit quarrels disastrous us in embroil pleasure, may justly regulation, plan system, DeCanas, nations.”). But see with other require as to a nature of such to be be said (“[T]he S.Ct. 933 at by Congress.” legislation exclusive en- every state held that has never Court How.) 299, 319, (12 13 L.Ed. way deals with any in which actment time, has the Court that Since per and thus immigration of regulation ais ex- legislate Congress’s defended power, constitutional by this pre-empted se or a requiring national clusively on matters fact [T]he or exercised.... whether latent whether Con- rule, of irrespective uniform a state stat- subject of aliens are that a rule. adopted in such has fact gress of regulation it a render not ute does in principle invoked the same has Court ”). ... In Henderson immigration. of the context Con- recently enforced The Court York, it struck New City Mayor of of where, even powers dormant gress’s that provisions Louisiana York and New actually conflict not does though law from overseas. arriving passengers taxed a law, with it inconsistent Cooley, the Court with Citing at 259. Arizona, 132 scheme. See or imposed rule arriving aliens national taxing that wrote (observing Con- powers under 2504-05 Congress’s on burden does framework “comprehensive “in- and on our gress’s Clause Foreign Commerce on sanctions criminal impose federal relations”: ternational in unauthorized or engage who seek onerous, [aliens imposes regulation A imposing law Arizona’s work]” on those impossible, conditions perhaps alien unauthorized on penalties criminal foreign with in commerce active engaged the method with] employees nations, necessity be national “conflicts must (2007); Karl Aliens, N.Y.U. L.Rev. consti- exclusive test or an constitutional ble Manheim, Feder- Immigration Laws and State yardstick”). tutional L.Q. 939, Hastings Const. Supremacy, 22 al Note, Delaney, In Shadow F. 6. Erin See Immi- (1995) (referring the "Dormant Commerce Applying a I: Dormant Article Clause”). gration Regulating Laws Analysis to State Clause enforcement” because “Congress [must rel[ying] solely on the Federal Govern- have] decided would be inappropriate to ment’s own determination of who is an impose penalties criminal on aliens who alien, unauthorized and requiring] Arizona seek engage in unauthorized employ- employers to use the Federal Govern- ment”). ment’s system own for checking employee some,

In even status.” comprehensive, legislative schemes, Congress has expressly author- All of which is to suggest that preemp- ized regulate states to aspects certain analysis, tion not equal protection, is the an alien’s privileges within the state. better approach, for preemption analysis Court recently approved state laws can be applied more consistently to alien- relied such authorization. In Chamber age cases, with predictable more outcomes Commerce v. Whiting, ex- parties and courts. “ pressly preempted ‘any State or local law imposing civil (other or criminal sanctions IV than through licensing laws) and similar The choice between pure upon preemption those who employ ... unauthorized ” analysis a pure aliens.’ analy- S.Ct. at 1968 (quoting 8 yields 1324(h)(2) very sis U.S.C. added)). different (emphasis results effect, case. the parenthetical express was con-

gressional non-preemption. In response, adopted Arizona Legal Arizona Work- A ers inAct providеd which it that employ- In my view, and consistent with the ers who knowingly or intentionally em- majority opinion, Hawaii’s health insur- ployed unauthorized aliens could have ance program at issue this ease is not their business suspended licenses or re- expressly preempted by any federal law. voked. The rejected a claim that Neither does it actually conflict any Arizona’s law was either expressly or im- law, nor does it obstruct in any pliedly preempted by federal law. With way the congressional scheme. Hawaii’s respect to express preemption, the Court law most resembles law at issue in held that federal law “expressly preempts Chamber Commerce: Hawaii has re- of some powers state dealing with em- sponded congressional to a authorization, ployment of unauthorized aliens and it ex- and it has mirrored federal law make its pressly preserves others. We hold that law consistent with the federal scheme. licensing Arizona’s law falls well within the As confines of the authority majority opinion Congress explains, chose to Con leave to gress the States.” has Id. at 1981. established three categories With of respect to the of aliens for implied purposes claim of preemption, federal and state the Court observed Maj. benefits. “[g]iven Op. 878-79; that Con- at see Pimen gress specifically preserved tel v. such authority Dreyfus, (9th 670 F.3d 1100-01 States, for Cir.2012). it stands to group reason that One of including aliens— Congress did not intend to prevent permanent aliens, resident refugees and States from using appropriate asylees, tools to ex- and aliens who serving are or have ercise that authority.” Id. (plurality opin- served in the Armed Forces of the United ion). The Court noted that Arizona’s States —“shall eligible any for State “tools” mirrored the provisions, in- public 1622(b). benefits.” § 8 U.S.C. A cluding “us[ing] the Federal Government’s second group of including those aliens— own definition of alien,’ ‘unauthorized ... aliens here without authorization —are “not courts for federal is no reason There bene- public or local any State for eligible Congress’s to defend here intervene law “after a adopted fit,” unless the Con- and naturalization. over affirmatively pro- ...

August clearly: there lines 1621(a), drew gress §Id. eligibility.” viding] for such may come who of aliens classes all includes group (d). third Finally, the treated must be States and United “a State is group, For this aliens. other citizens; there they if were as basis same eligibility to determine authorized who of aliens—those classes 1622(a). are other Id. benefits.” public any State lawfully- our shores come to have not nonim- case, —who who are in this plaintiffs benefits, if the even such receive may not the Com- under admitted migrant afford disposed were otherwise states with the Free Association pact of is the Finally, there largesse. our them category. this third States,7 fall into en- including those class of third aliens— can as words 1622(a), plainly as Section under lawfully States the United tering decide states it, authorizes express deter- Congress has whom COFA—for eligi- of aliens that class to make whether them not treat that the states need mined is, Chamber It as in state benefits. ble for state’s so at the citizens, may do but Commerce, non-preemption. express made has Where discretion. Commerce, S.Ct. at Chamber See determination, should the courts such Commerce, Ha- inAs Chamber if judgment Con- second-guess only own Government’s Federal “uses the waii constitu- overstepped itself has gress alien’], relies [and] [‘qualified definition there believe I do not authority. tional own Government’s Federal solely on theory. any for that basis ‘[qualified is a[] who determination definition, Ha- By at 1987. Id. alien’].” B and, act is authorized waii’s pure If we follow (plural- preempted. accordingly, is scheme that Hawaii’s model, unlikely it is “ ‘neither add- Hawaii ity opinion). Fol- scrutiny. constitutional can muster the conditions take[n] to nor ed[ed] discrimi- Graham, law Hawaii’s lowing ” Graham, Congress.’ lawfully imposed and, aliens, citizens and nates between (quoting 378, 91 correctly (as court the district that reason 1138). Takahashi satisfy strict out), Hawaii must pointed scheme, Congress’s Acting consistent that it to show will have scrutiny. Hawaii cannot invitation, law Hawaii’s at its treating in state interest compelling power.” upon exclusive “encroach citizens, differently from resident 380, 91 S.Ct. 1848. Id. at interest, it such show if can and even narrowly it has prove will have Con- violate scheme Nor does Hawaii’s likely Hawaii can program. its tailored powers. immigration dormant gress’s however, subject- may, Association, States reprinted Compact of Free 7. See provid- nondiscriminatory limitations citizen of the ed § A at 48 U.S.C. 1901 note. States of for: ed the Federated or Islands Marshall regulations of the Unities (1) as a or in statutes may "establish residence Micronesia States; and its or nonimmigrant the United States in Compact regulations of the possessions.” those statutes or in territories specifies: which 141(a). concerned Compact territory further possession § or The States. the United by the laws of authorized habit- persons to establish right of such 141(b). § Compact territory possession of a in ual residence First, two interests. it adopted offer its government may offer for its own discrimi- budgetary law because of reasons. This policy, nation rely states cannot thought has never been to be a sufficient justification. same The states must justify discrimination that reason is sub supply their own sovereign reasons and ject judicial scrutiny. to increased See cannot cite the reasons of a coordinate Hosp. Cnty., Mem’l v. Maricopa U.S. government. City See Richmond v. 250, 263, 39 L.Ed.2d 306 Co., 469, 504, J.A. Croson (1974) (“[A] may protect State not (1989) (“Con- S.Ct. 102 L.Ed.2d 854 public by drawing fisc an invidious distinc gress has made national findings that citizens”); tion between classes of its Gra there has been societal discrimination in a ham, (“[A] 403 U.S. at 91 S.Ct. 1848 host of If fields. all a gov- state or local integrity concern for fiscal compel is not ernment need do is a congressional find ling.”); Shapiro Thompson, report subject on the to enact a set-aside 22 L.Ed.2d 600 program, the constraints of Equal Pro- (1969) (“a State has a valid interest will, tection effect, Clause have been preserving integrity the fiscal pro a nullity.”). sum, rendered In if we looked grams .... may But a State accomplish exclusively protection principles, I a purpose by such invidious distinctions likely think it is that Hawaii’s law would citizens.”); between classes of its see also fall. Legal Corp. Servs. v. Velazquez, 531 U.S. 533, 547-49, 121 1043, 149 L.Ed.2d 63 V (2001). Second, point Hawai'i can Congress’s PRWORA itself and declara principle an- tion that a state that “follow[s] Federal nounced in proven Graham has unsustain- in determining classification eligibility end, able. In the I that preemption think ... public aliens for assistance shall be analysis prove will more consistent with considered to have chosen the least restric the text and Constitution, structure tive means available for aсhieving the com pre-Graham cases, the Court’s and even pelling government of assuring interest history of the Fourteenth Amend- that aliens be self-reliant accordance ment itself.8 it within my power, Were I n with national policy.” adopt preemption would analysis as the 1601(7). appeal U.S.C. Despite appropriate analysis for evaluating the al- Congress’s finding, this likely is not a suf ienage cases. I am Because bound Graham, justification. ficient the Court it, join Graham and I cases follow “Congress clear that made does not have Judge McKeown’s opinion for the court. to authorize the individual Amendment, course, States to The Fourteenth violate the Protection Clause.” 403 took account of S.Ct. 1848. these differences in the importantly, More previous Privileges Clause, Court has and Immunities that, ly held whatever reasons the federal provided that the “privileges or immunities Truax, Nothing I have said here should dimmish in 239 U.S. at 36 S.Ct. 7. But the any way "persons” the fact that aliens are post-Graham tension evident in the Court's protection to entitled the the consequence of Due Process cases is of the Court’s efforts Equal and Protection Equal Clauses of the Four- to reconcile the Protection Clause with teenth Amendment recognition and the Due Process that there are common law including equal protection its rights com- constitutional between the distinctions Clause— ponent the Fifth Amendment. See Tak- rights visiting of citizens and the of aliens —of ahashi, 410, 1138; 334 U.S. at residing 68 S.Ct. in the United States. 902 dissenting: CLIFTON, Judge, Circuit could States” of the United citizens of Process and Due abridged, and of the Clause Equal Protection The Clauses, applied to which Protection Equal provides Amendment Fourteenth is confusion The current “any person." any person deny to shall ... “[n]o State disas to the Court’s part in no small due protection jurisdiction its the within Slaughter-House in The trous decision Const, XIV, amend. laws.” U.S. Wall.) (16 36, 21 L.Ed. 394 Cases, 83 U.S. alienage is a law that § 1. It is settled case, Field (1873). as Justice In that laws dis- class and state suspect the effectively read out, the Court pointed lawfully who are against aliens criminate out of Clause or Immunities

Privileges violate generally present country this Amendment, rendering Fourteenth enactment, they unless which Protection Equal idle Clause a “vain and Clause most unneсes nothing, scrutiny.1 accomplished strict can withstand people and the sarily excited case, of Hawai'i dis- In this the State (Field, J., dissent at 96 passage.” from three Mi- against aliens criminated Understandably, compensate, to ing). lawfully pres- cronesian nations who were Protec Equal invigorated later on the terms country, based ent in Clauses, had tion and Due Process those of Free na- Compacts Association more applied but purposes, narrower with the United States tions entered v. McDonald “persons.” all See broadly to (“COFA Residents”), limiting the state- 742, 130 U.S. S.Ct. City Chicago, 561 (2010). to them. health available funded benefits 3020, 3029-31, L.Ed.2d 177 894 the same provide to them aliens under The could treatment of state The Court’s been, had, large It Equal provides Protection Clause citizens. measure, coun counter-textual and fact, both benefits to COFA the same provided Currie, The David P. ter-historical. See budget- until years, for fourteen Residents Supreme Court: Constitution in try to save ary motivated state woes Years, 1789-1888, at 342- First Hundred given to it money, by exercising option Harrison, (1985); 50, John 387 & n.133 by Congress. Privileges or Immuni Reconstructing the condition does not the state’s fiscal But Clause, 1385, L.J. 101 Yale ties justification 1390, 1442-47 compelling re- provide Maltz, (1992); The Constitu Earl M. Protection Clause quired under Al Discrimination: and Nonracial tion of aliens. justify unequal treatment Sex, Framers’ Ideal ienage, and the by Congress given to the states 251, option 257-65 7 Comment Equality, Const. aliens different- whether treat decide 420, 1138, (1948) 365, 410, Richardson, S.Ct. 92 L.Ed. 1478 68 403 U.S. v. 1. See Graham 1848, (1971); principles to 371-72, (applying dis 29 L.Ed.2d 91 S.Ct. 216, 219, striking Fainter, against down aliens 467 U.S. crimination also Bernal v. see fishing). 2312, commercial (1984); Nyquist ban on aliens’ 81 L.Ed.2d 175 104 S.Ct. 2120, Mauclet, exceptions application two 97 S.Ct. There 432 U.S. v. (1977); scrutiny to this case. See Examining not relevant Bd. strict 53 L.Ed.2d 63 1, 17, Moreno, 102 S.Ct. 458 U.S. 12 n. Surveyors de Toll v. Flores Eng'rs, & v. Architects 2977, (1982) (outlining 2264, Otero, 73 L.Ed.2d 563 Doe, exception); Plyler v. (1976); self-government Griffiths, 413 U.S. In re L.Ed.2d 72 L.Ed.2d L.Ed.2d ‍​​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​‌​​‌‌‌‌​‌​‌‌​​‌​‍(holding that discrimination (1973); Sugarman Dougall, subject only (1973); illegal to inter against 37 L.Ed.2d 853 cf. Comm’n, scrutiny). mediate Fish & Game Takahashi v. state, illusory, Supreme under established one because the ly program partially was is by broad funded precedent. government. But that authority on its over immi- is how Medicaid power, actually based works. Hawaii, relations, states, In foreign to as in most gration and decide there is a differently single plan, by than whether to treat aliens administered the state. citizens, government the The federal but dоes not have reimburses the state for a assign significant portion cost, that discretion to states. of the power Court, by Supreme plan comply and the must explained As “Con- requirements, not have the to authorize but it is a state gress plan. does The majority opinion’s own Equal description the individual States to violate the of the program, at confirms Protection Graham v. Richard- as much. Benefi- Clause.” son, by separate 29 ciaries are not covered two (1971). plans, federal and state but by L.Ed.2d 534 When the State rather one single plan by administered option given by Hawaii exercised the to it state. Congress, against aliens discriminated Second, and more importantly, ap- compelling justification. my without a In proach suggested by the majority opinion view, Equal that violated the Protection runs afoul of equal protection bedrock doc- I respectfully Clause. dissent. dating trine back at least Brown v. Education, Board Disparity Expenditure I. in of State 98 L.Ed. 873 majority The Funds opinion would allow a state to treat a class majority opinion obviously most differently long aliens as as the state’s goes astray it suggests when that Plaintiffs outlay financial for Plaintiffs and other disparity have failed to establish a claim of same, suspect members of the class is the they because have not claimed that Ha- basis, per capita on a as the expen- state’s per capita expenditures waii’s of state population. ditures for the rest of the But funds differ as between citizens and COFA that change does not the fact that Hawaii Maj. atOp. Residents. 886-87 & n. 8. The has treated differently placing that, majority appears thus require program COFA Residents in a with re- order a claim disparate to establish duced benefits. That action constitutes treatment, a alleging class discrimination disparate treatment violation of the Equal under the Protection must Clause disparate Protection Clause. The expending demonstrate that the state is treatment is not immunized because the funds, basis, per capita less on a than it is per capita expenditures might be the spending population. on the rest of the “Separate equal” permit- same. but is not effect, majority requires Plaintiffs ted. (and I allege eventually, рresume, approach majority opinion they prove) shortchanged have been justify reducing pro- could a state a per capita on basis. Because Plaintiffs particular group vided to members of a alleged, majority have not so harbors ground providing benefits to that serious doubts Plaintiffs have made group expensive providing than is more out a claim of an violation general popula- same benefits approach wrong the state. That example, tion. For a state could reduce separate ways. two chemotherapy therapy and radiation bene-

First, justify it treats Medicaid if it African consisted fits for Americans and separate programs, by citing of two one federal and discrimination African Ameri- discrimination claim for that a knowledges to various susceptibility increased cans’ does not re- treatment argue disparate could based That state cancer.2 types of capita expen- disparate per available of quire proof that, the reduced despite even individual, average per But it shouldn’t of funds. diture any single Americans for African that road. expenditures start down capita for the expenditures than the not less were population. of the

rest Bene- to Reduce Decision II. Hawaii’s approach equal” “separate but Such Residents fits for COFA Brown v. of to the dictates counter runs majority opinion, of the The thrust main point “The Education. Board it, actions that Hawaii’s is as I understand not to ensure guarantee is protection rational basis review subject only to are yield discriminatory laws facially Clause, rather Protection Equal the under Rather, outcomes.... equivalent roughly those actions scrutiny, because than strict recognizes equal protection right the Congress. Here by were authorized invidi itself act of classification is that the to heed well estab- majority fails again, the acceptable constitutionally thus ous and is precedent. Court Supreme lished exacting test.” it meets an only where Health Ins. Con v. Commonwealth Finch this case decide under We must Auth., 946 N.E.2d 459 Mass. nector by framework established equal protection 1262, 1278 Math- Graham and Supreme opinion majority really think I don’t holdings equal protection ews. The separate to return era trying is clear, majority and the those cases it denies the exis- Although equal. but them, at 881-84. ably summarizes opinion disparity a claim of vis-a-vis tence of brief, that we review requires Graham action, majority opinion nevertheless against under state discrimination exis- arguendo the to assume proceeds requires Mathews scrutiny, while strict subjects Ha- a claim and of such tence federal discrimination that we review Equal to review under waii's actions review, basis under rational against aliens Clause, on a ration- albeit based Protection broad government’s of the federal because Maj. Op. at 886-87. al standard. See basis immigration and the area of powers in attribut- disparity no really If were there case question The foreign relations. Hawaii, majori- able to the State on is whether denial thus turns Clause ty argues, Protection ulti- Residents is to COFA equal benefits and no fur- simply inapplicable, be would of the state or mately responsibility required. judicial review would ther Congress. frame- discussing By of Hawaii that it is the State I v. Richard- conclude Graham work established majori- ultimately responsible. son, 29 that is conclusion, Diaz, permit- a different (1971), ty reaches Mathews L.Ed.2d program under it to Hawaii’s ting uphold 48 L.Ed.2d review, by obscuring the role rational basis (1976), basis review applying rational statutory framework within the play states discriminatory health Hawaii’s uphold Congress. tacitly ae- established majority programs, welfare (last Americans, aspxPID=2826 See, gov/templates/content. e.g., Cancer African 11, 2013). Office of Dep’t Sept. & Human Servs. updated of Health Health, http://minorityhealth.hhs. Minority majority repeatedly emphasizes sented with a case not of discrimi- nation, but one following that Hawaii the federal di- of state discrimination. It undisputed is that given only are lim- COFA rection and states Residents are eligible not for federal benefits and ited discretion to decide which aliens to Hawaii thus cannot obtain federal reim- provide benefits to under the Welfare Re- for expenses bursements incurred to cover form Act. But there is no federal direction COFA Residents under Hawaii’s Medicaid to treat COFA Residents regarding how programs.4 §§ See 8 U.S.C. 1641. the majority and others within what de- But it undisputed is also that Hawaii re- аs the scribes Welfare Reform Act’s third mains free to cover COFA Residents un- category of gives aliens. The statute programs, der its Medicaid long so as it states discretion to decide whether or not only uses state something Hawaii provide persons health benefits to with- funds — years, did for fourteen from the time of category.3 §§ in that 1621- See U.S.C. the enactment of the Reform Act Welfare 1622; Maj.Op. at 878-79. §§ in 1996 until 2010. See id. 1621-22. In making In not provide the decision 2010, based on COFA Residents’ status as Residents, equal benefits to COFA Hawaii aliens, Hawaii cut them off from its Med- necessarily has made a distinction on the programs icaid placed them in the alienage: similarly basis of situated citi- reduced-benefits BHH program.5 See eligible zen receive more benefits. (HAR) 17-1714-28, §§ Haw. Admin. Rules Because Hawaii has classified COFA Resi- classify 17-1722.3-7. Hawaii’s actions thus dents on alienage, the basis of on the basis of alienage subject and are requires strictly Protection Clause that we scrutiny. strict scrutinize Hawaii’s actions to ensure that effect, In through the Welfare Reform they “narrowly are tailored measures that Act, I think given states a lit compelling governmental further inter- firecracker, at exploding risk of when California, ests.” Johnson v. 543 U.S. state exercised its discretion to discrimi- 499, 505, 160 L.Ed.2d 949 nate on the alienage. basis of It was Constructors, (quoting Adarand Hawaii’s decision not to cover COFA Resi- Pena, 200, 227, Inc. v. programs dents under its Medicaid (1995)). 132 L.Ed.2d 158 effected the discrimination in this case. That discrimination against policy “Insofar as state welfare is con- subject cerned, little, aliens only would be to rational any, there is if basis for basis review pre- treating is irrelevant. We are persons who are citizens of anoth- fact, gives regard- pursuant approved by the statute discretion to a waiver ing how to treat aliens within second government under section 1115 of the well, category notwithstanding majori- Security programs Social Act. These include ty's description category of that as that of QUEST QUEST, QUEST-Net, Coverage Adult provide any "aliens for whom states must not QUEST Expansion, Expanded Access. benefits,” Maj. Op. (emphases at 884 added). The Welfare Reform Act allows program capped 5.Because the BHH has a provide category states to benefits to this enrollment, 17-1722.3-10, §HAR and more “through the enactment of a State law COFA Residents were moved from the Medic- August affirmatively after programs normally aid to BHH than would provides eligibility.” for [those aliens’] cap, be allowed under the new COFA Resi- 1621(d). § U.S.C. moving may dents to Hawaii after 2010 programs” any managed 4. "Medicaid to the be covered under state medical welfare refers programs operated program. care Hawaii has since Hawaii to exclude gress has authorized persons who differently from

er State Medicaid Mathews, Residents from the state COFA country.” of another citizens so there is (footnote programs, see 8 U.S.C. action and the state’s no conflict between omitted). enjoy power no “The States Act. Reform Welfare of aliens. the classification respect to political to the is ‘committed This is not whether question crux of the of the Federal Government.”’ branches requirements Hawaii has adhered 225, 102 S.Ct. 2382 457 U.S. at Plyler, by Congress Welfare prescribed omitted) Mathews, (citation (quoting has, argues no one Act—it Reform 1883). And, I as will at U.S. Ha- rather whether that it has not—but below, power a the this is not discuss constitutionally take the action waii could the delegate can to government part parcel of the federal it took “as states. n. 10. I Maj. Op. at 887 welfare scheme.” ques- should answer this submit we Equal A Tale of Three Clauses: III. following precedent negative, tion in the Protection, Preemption, and the and our own Supreme from both Immigration and Naturalization court. Power that: Graham stated lead me just articulated principles the Federal Government ad- Although majority’s upholding final reason for mittedly power has broad constitutional its con discriminatory actions: Hawaii’s what aliens shall be admit- to determine pro Supreme equal flation of the Court’s States, period they to the United ted and Mathews holdings tection Graham remain, and condi- may and the terms preemption holding with the distinct naturalization, Congress tions of their above, explained Graham. As to authorize the does not have the arena, for the stands protection Graham Equal to violate the individual States scrutiny applies to proposition that strict Thomp- Shapiro Protection Clause. of alien- classifying on the basis state laws S.Ct., son, U.S., at аt proposi for the age, and Mathews stands I, of the Art. cl. Constitu- Under applies rational basis review to tion that tion, is to ‘establish an Congress’ power interpret As a case similar laws. A con- uniform Rule of Naturalization.’ Clause, part Graham is ing Supremacy construed so as to gressional enactment line of cases that establishes federal legislatures adopt diver- permit state in the area of supremacy subject citizenship gent laws on the naturalization, the concurrence federally supported requirements Judge Bybee explains, at 885-88. See appear to con- programs welfare would Graham, 1848; at U.S. constitutional re- explicit travene this — States, also, e.g., Arizona v. see uniformity. quirement of 2492, 2498-501, —, 1848; 382, 91 see also (2012) preemp (outlining L.Ed.2d 351 Roe, 489, 508, 119 S.Ct. Saenz v. in the area of principles applicable tion (“Congress 143 L.Ed.2d 689 naturalization). immigration and affirmative power to authorize has no Amend- case, to violate the Fourteenth argues that Ha- States In this no one implicitly prohibited and is by the ment preempted waii’s actions are Wel- to vali- legislation purports Preemption passing Act. doctrine has fare Reform violation.”). any such outcome here. Con- date bearing no on the previously passage majority relied on this We minimizes significance divergent holding requires eligibility that a federal statute that Medicaid re- quirements allowed through the discretion grant states citizens and the Welfare Reform Act gives to the requiring certain aliens while also states to (“The states. See id. limited discre- deny benefits to other aliens au- did not tion authorized ... does not undermine thorize the states violate the Pro- uniformity requirement of the Natural- Clause, “Congress tection because ha[d] Clause.”); (“[A] ization id. at 884 state’s policy regarding enacted uniform limited discretion implement plan ... eligibility of [certain aliens] welfare does not defeat or undermine uniformi- McMahon, benefits.” Sudomir v. ty.”). In reaching conclusion, the ma- (9th Cir.1985). such, F.2d As jority relies on the Supreme Court’s read- we stated that makes inapplicable “[t]his ing of the Bankruptcy Clause’s uniformity suggestion in Graham v. Richardson requirement. See id. at 885-86. Shapiro may require the invalidation Unfortunately, majority’s analogy to congressional permitting enactmеnts the Bankruptcy Clause does not fit. The adopt divergent states to regarding laws analogy recognize fails to crucially the im- eligibility the of federally sup- aliens for portant counterweight Equal the Protec- ported welfare programs.” Id. 1466-67 provides tion Clause against the constitu- (citation omitted). grant tional of power-a counterweight Both the Supreme Court and this court present in this case but absent from the recognize uniformity is required for bankruptcy arena. any congressional regulating enactment grants power of in Article I with aliens,

immigration and the status of be- respect to naturalization and bankruptcy Congress’s power cause over Indeed, very similar. the Naturaliza- and naturalization matters derives from tion Clause and the Bankruptcy Clause are Clause, the Naturalization grants together listed single a clause within Congress power an uni- “[t]o establish I, grants Article section which Const, form Rule of Naturalization.” U.S. the power “[t]o establish uniform Rule I, 8,§ art. cl. 4. The majority opinion Naturalization, and uniform Laws on makes an argue effort to that the unifor- subject of Bankruptcies throughout the Const, mity requirement inapplicable I, here be- 8,§ United States.” U.S. art. cl. original cause the motivations 4. It Supreme for the is also true that the interpreted Naturalization Clause uniformity require- centered around avoiding Bankruptcy a scenario that ment in the plagued had Clause to allow Confederation, incorporation divergent Articles of state whereby a nat- Bankruptcy laws within the Maj. Act. See uralization decision made one state others, Op. (citing, among at 885 Hanover respect with to aliens within its territory Moyses, National Bank v. binding was on other Maj. Op. states. (1902)). 5.Ct. 46 L.Ed. 1113 Reinertson, (citing

884-85 Soskin (10th Cir.2004)). F.3d Howev- The Naturalization Clause and the er, the majority appears also recognize to Bankruptcy simply grants Clause are that, original whatever the intent of the power Congress, They however. do not Naturalization uniformity Clause’s re- require Congress pass federal natural- quirement may been, have it applies to bankruptcy ization and laws. The first this case. law, See id. federal naturalization Act of Mar. unpersua- it to neglects, which leads passed right was ion 3, 1 ch. Stat. given that the discretion sive conclusion likely Congress, by the First

away, by the Reform Act does the states Welfare presented difficulties avoid the serious uniformity. That conclu- not undermine subject on laws divergent the states’ separate preemption doc- rests on sion of Confederation. the Articles under does part trine that is not of this case and bankruptcy law was first grips the dictates of the not come decade, until more than passed for Protection Clause. Equal ch. Stat. Apr. Act of following hypothetical. Consider heavily so majority That the relies signs a Congress passes and the President con- grants the constitutional law, InAct. new the Alien Discrimination particularly pro- in Article I is thus tained it, classify authorizes states to no federal bank- If there were blematic. wholly any manner that is not (as for the first was the case ruptcy law Act, Congress justify To irrational. Constitution), years of our nation’s eleven devolving policy articulates a uniform adopt states could their it is clear that the traditionally police powers to more laws, crafting their credi- bankruptcy own matter, preemption the states.6 As wished, relationships they tor-debtor any to state Act would remove obstacles creditors and debtors advantaging some subject. But could the legislation on others, long as the states’ laws over so against then discriminate aliens sub- states were rational. ject only to rational basis review under immigration and naturaliza- Not so for Protection Clause? The answer that, if It would not be the case tion. “no,” if surely must we are to heed immigration and there were no federal Graham’s statement “Congress does dealing with naturalization laws the United power not have the to authorize the indi- aliens, the states States’ relations Equal to Protec- vidual States violate laws, their be free to craft own would at tion Clause.” 403 U.S. and some aliens over advantaging citizens scrutiny apply in 1848. Strict must still Equal Protection Clause other aliens. The majority opinion, hypothetical. so, doing given prevent would them from 887, describes that statement in Graham scrutiny applied the strict distinctions tautological” proceeds as “almost aliens and citizens un- states between there, if taking treat it as it were not der Graham. clearly long view that as ex- will, It is this crucial interaction between the presses its it can authorize individual grant Equal against Article I and the states to discriminate aliens.7 may sympathy posi- I have for the majority opin- Though Protection that the Clause Congress may policy authorize Hawai'i to 6. This uniform federal would follow the whether Federalism,” principle principle Equal rather of "New a violate the Protection Clause but which also underlies the Welfare Reform Act. 'what constitutes such a violation when Con- See, Schwinn, e.g., (clearly) regarding gress expressed Steven D. Toward a More its will has ” Debate, Expansive relating Maj. Op. Devolution 9 Lewis at 887 a matter to aliens.' Welfare (2005). Soskin, 1254). & 312-13 (quoting Clark L.Rev. I 353 F.3d know equal protection no doctrine turns (clearly) expressed "Congress whether majority opinion also states that I am pre- language of will.” That is instead the asking wrong question, but its own lan- Levine, See, analysis. e.g., Wyeth emption v. guage underscores its confusion as to whether preemption or a this is an (2009). majority L.Ed.2d 51 case. The would have me ask "not Hawaii, require see below at any- tion of the State forbid the states to do thing. freely disregard I would not so pronouncements. Supreme explicit Court’s Although majority opinion argues, at 15, that Hawaii followed federal di- The “limited” nature of the discretion to by shunting rection COFA Residents into given discriminate the states are under the program, the BHH it could also be said Reform Act is irrelevant: the Act Welfare that Hawaii followed a federal direction still authorizes states to discriminate during years the fourteen when it included against provision some aliens in the COFA Residents in pro- its Medicaid benefits, some welfare and thus authorizes grams. A points federal “direction” that them to violate the Protection opposite ways two is not a direction. Therefore, in Clause. this case as in the already recognized We have as much. See above, hypothetical scrutiny strict must Dreyfus, Pimentel v. 670 F.3d apply. (9th Cir.2012) curiam) (“[T]he (per Welfare Reform Act did not establish a uniform My conclusion does not detract respect rule with pro- state welfare requirement Sudomir’s states cannot -”); also, grams e.g., see Ehrlich v. Per- compelled replace funding ez, 394 Md. 908 A.2d 1240-41 requires where federal statute states (2006) (holding that the Welfare Reform against to discriminate aliеns. 767 F.2d at Act’s ... approach grant- “laissez faire cases, merely 1466. In such the states are ing discretionary authority to the States in “following] Plyler the federal direction.” deciding whether to continue State-funded Doe, 219 n. medical benefits” for certain aliens does 2382, 72 L.Ed.2d 786 uniform, “single, not amount to a artic- case, though, directive”). In this there is no federal ulated direction for states to follow. The ultimate Act, In the Welfare Reform up decision is left to each state. Congress that, recognized providing itself far from majority argues articulated what the direction, uniform federal giving was policies uniform Welfare Reform states broad discretion to discriminate Act, including a policy “to assure that against provision of welfare in aliens be self-reliant accordance with recognition through benefits. This comes immigration policy,” national 8 U.S.C. in Congress’s empha- statement of policy 1601(5), § and “to remove the incentive for sizing exercising that the states their dis- illegal immigration by provided the avail- eligibility cretion to determine some aliens’ 1601(6). benefits,” ability public § of id. for welfare benefits “shall be considered policies presumably Those would support a have chosen the least restrictive means prohibition providing flat benefits to achieving compelling gov- available for specified group aliens or to a of aliens. ernmental of assuring interest that aliens prohibition, did not enact a be self-reliant in accordance with national though. given 1601(7). The decision as to how a policy.” 8 U.S.C. group simply of aliens is to be treated is But does have the left to each In light give state. of the broad states discretion to discriminate. states, gives discretion it to the the Act IV. Conclusion

simply provide does not a federal direction regard to COFA oth- Though majority Residents and opinion asserts category ers the third of aliens. It that I am a circuit I inviting split, does note many Residents for majority opinion that is con icaid benefits COFA

that it is the majority opinions entirely treasury, of a trary years, out of its own this question. that have considered government courts the federal declined because spoken, in Sos Only one other circuit any that than part to bear cost. Rather (10th Reinertson, 353 F.3d kin v. completely in Ha- terminate benefits Cir.2004), only that is the decision program offered the BHH to COFA waii majority opinion. For consistent with Residents, again pocket. from its own above, as as for the reasons discussed well right of COFA to come to Ha- Residents Henry Judge articulated his reasons place in the first derives from the waii dissent, wrongly I that Soskin was believe of Free Compacts Association were decided, Supreme under current negotiated and entered into the federal Soskin, 353 F.3d at 1265 precedent. See government. disproportionate That a J., Against (Henry, dissenting). Soskin lie Residents, share of COFA from Pacific high Mary courts of three decisions of the nations, island come to Hawaii as com- Massachusetts, land, Ehr New York. forty-nine to the other pared states is Perez, lick v. 394 Md. 908 A.2d 1220 hardly a surprise, given geography. basic (2006); v. Commonwealth Health Finch keep The decision the state not to Auth., Ins. Connector 459 Mass. expense full paying the of Medicaid bene- (2011); Fayad N.E.2d 1262 Aliessa ex rel. really surprise, fits for those aliens is not a Novello, 96 N.Y.2d 730 N.Y.S.2d sense, larger either. it is the federal (2001). All 754 N.E.2d 1085 three deci Hawaii, government, not the State of applied scrutiny sions strict under responsible. should deemed Equal Protection Clause strike down government permitted But the federal purported state statutes that to exclude against in way to discriminate they certain aliens Medicaid because government the state is not. Because es- Ehrlich, were aliens. See 908 A.2d at precedent require tablished should us to 1243; Finch, 1280;8 946 N.E.2d Alies apply scrutiny strict to Hawaii’s exclusion sa, 730 N.Y.S.2d 754 N.E.2d at 1098. Residents from COFA the Medicaid majority opinion’s application programs, seriously and no one contends protection rational basis review to state that Hawaii’s actions can withstand such against weight action thus stands I scrutiny, respectfully strict dissent. authority. my though Even view Plaintiffs prevail, acknowledge

should I there is

something paradoxical and more than a my

little unfair in conclusion that the State against

of Hawaii has discriminated responded

COFA Residents. The state option given by Congress, to it an albeit

option that I don’t think had the give. provided Hawaii full Med- See, Although speaks e.g., Finch in terms of the Mas- Doe Comm’r Transitional Assis- tance, right equal pro- sachusetts Constitution’s 437 Mass. N.E.2d tection, Supreme Accordingly, analysis ‍​​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌​‌​‌​​‌‌‌‌​‌​‌‌​​‌​‍the Massachusetts Judicial Finch’s relies interpreted provision heavily Supreme Court has that state on United States Court deci- interpreting Equal be coextensive with the federal Protec- sions Protection concerning tion Clause in matters aliens. Clause. See 946 N.E.2d at 1273-80.

Case Details

Case Name: Tony Korab v. Patricia McManaman

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 1, 2014

Citation: 748 F.3d 875

Docket Number: 11-15132

Court Abbreviation: 9th Cir.