Attorney General's Opinion
Attorney General, Richard Blumenthal
February 24, 2004
The Honorable Kevin B. Sullivan
President Pro Tempore
Hartford, CT 06106
Dear Senator Sullivan:
You have asked for a formal legal opinion as to whether the State's decision to stop accepting applications from legal aliens1 for certain state benefit programs violates the equal protection clause of the United States Constitution. In particular, you state that during the 2002 May Special Session, the General Assembly approved 2002 Conn. Pub. Acts No. 02-07, which contained provisions implementing the fiscal year 2003 budget previously passed by the General Assembly. Sections 22 through 25 of Public Act 02-07 state that effective June 30, 2003, the Commissioner of Social Services will no longer accept applications for assistance from legal aliens seeking benefits under the following state programs: State Administered General Assistance – Cash ("SAGA-cash"); State Medical Assistance for Aliens ("SMANC"); Temporary Family Assistance ("TFA”"; Home Care Program for Seniors; and Food Stamps. The result is that as of June 30, 2003, legal aliens can no longer apply for critical services and assistance under these programs, despite the fact that, at least in some cases, similar benefits are still being offered to citizens. You have questioned whether the decision to close these programs to legal aliens violates principles of equal protection.
For reasons that are fully explained below, we conclude that a court applying existing state and federal precedent would likely hold that 2002 Conn. Pub. Acts No. 02-07 (May Special Session) violates the equal protection clause to the extent that it denies SAGA-cash and solely state-funded Home Care Program benefits to legal aliens, while continuing to provide such benefits to citizens. We further conclude that a court would be unlikely to find a similar violation with regard to the denial of solely state-funded TFA, SMANC, and state Food Stamp benefits, because these programs are offered only to aliens and thus their closure does not discriminate against aliens in favor of citizens. Finally, although you do not expressly raise the issue in your letter, we conclude that a court looking into the constitutionality of state benefit programs would, with the termination of SMANC, likely conclude that the State Administered General Assistance medical program ("SAGA – medical") violates the equal protection clause because it provides state medical benefits to citizens, but denies such benefits to many legal aliens.
In reaching these conclusions, we rely, as we must, on existing case law. While cases decided prior to 1996 predate the adoption of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA"), which dramatically reduced the eligibility of aliens for public benefits, neither the United States Supreme Court nor the Connecticut Supreme Court has overruled or modified existing law in its wake. Therefore, the Supreme Court cases we cite below are controlling precedents that we must apply. Of course, our conclusion that closure of a given program to aliens is not likely to be found unconstitutional does not mean that the courts could not hold otherwise. Nor does it mean that such closure is good public policy. Because our analysis is a purely legal one, we have not addressed the public policy implications of Public Act 02-07 (2002 May Special Session).
Your question focuses on the application of the equal protection clause of the U.S. Constitution, which prohibits each state from "denying to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. As interpreted by the Supreme Court, "'[p]erson' in this context encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside." Graham v. Richardson, 403 U.S. 365, 371 (1971).
In determining whether a state statute violates the equal protection clause, the Supreme Court applies different levels of scrutiny to different types of classifications. See Plyler v. Doe, 457 U.S. 202 (1982). Although the equal protection clause requires all persons similarly circumstanced to be treated alike, the Supreme Court has concluded that "the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Plyler v. Doe, 457 U.S. 202, 216 (1982). Instead, "[a] legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill." Id. Thus, "[i]n applying the Equal Protection Clause to most forms of state action, [the court] . . . seek[s] only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose." Id. This standard is known as the "rational basis" test.
When a classification disadvantages a "suspect class," however, such as individuals of a particular race or national origin, it is considered presumptively invidious and must be "precisely tailored to serve a compelling state interest." Plyler v. Doe, 457 U.S. 202, 217 (1982). The rationale for such heightened scrutiny is that "[t]hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy – a view that those in the burdened class are not as worthy or deserving as others." Cleburne v. Cleburne Living Center Inc., 473 U.S. 432, 440 (1985); Barannikova v. Greenwich, 229 Conn. 664, 676 (1994). "For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest." Id. Because this latter "strict scrutiny" standard is much more difficult to meet than the generally applicable rational basis standard, classifications that are subject to strict scrutiny are far more likely to violate the equal protection clause than those that are subject only to rational basis review.
In the landmark case, of Graham v. Richardson, 402 U.S. 365, 376 (1971), the United States Supreme Court held that "classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular' minority for whom such heightened judicial solicitude is appropriate." Id. at 372. Accordingly, classifications based on alienage are "subject to strict judicial scrutiny whether or not a fundamental right is impaired." Id. at 376.
At issue before the Court in Graham were two state statutes, one from Arizona and the other from Pennsylvania, that conditioned welfare benefits on citizenship. The Arizona law provided that in order to be eligible for a state-administered, partially federally funded program providing assistance for the permanently and totally disabled, an individual had to be a citizen of the United States or have resided in the U.S. for a total of fifteen years. The Pennsylvania statute provided that in order to be eligible for a state-funded general assistance program an applicant had to be a citizen of the United States. The court struck down both laws on the grounds that they violated equal protection and interfered with federal-state relations.
With regard to the issue of equal protection, the states in Graham tried to justify the eligibility requirements on the grounds that they had a "special public interest" in favoring their own citizens over aliens in distributing limited resources such as welfare benefits. The court rejected this argument, noting that "[a]liens, like citizens, pay taxes and may be called into the armed forces. [They] . . . may live within a state for many years, work in the state and contribute to the economic growth of a state. There can be no 'special public interest' in tax revenues to which aliens have contributed on an equal basis with the residents of the State." Id. at 376. Accordingly, the Court concluded that "a State's desire to preserve limited welfare benefits for its own citizens is inadequate to justify . . . making noncitizens ineligible for public assistance." Id. at 374. Stated otherwise, "[t]he saving of welfare costs cannot justify an otherwise invidious classification." Id. at 375.
The Court further found that "[s]tate laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage conflict with . . . overriding national policies in an area constitutionally entrusted to the Federal Government." Id. at 378. The federal government has "broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization." Id. at 377. Pursuant to this power, Congress has provided, as part of a comprehensive plan for immigration and naturalization, that aliens who are paupers or likely to become public charges shall be excluded from admission to the United States. The Court noted, however, that Congress had not, at least as of 1971 when Graham was decided, imposed any burden or restriction on those who became indigent after they entered the United States. On the contrary, all such individuals were guaranteed the full and equal benefit of the law by federal statute. The Court concluded that by imposing burdens on immigrants who became indigent after entry into the United States, the state statutes at issue were in conflict with this federal policy.
Finally, the Court rejected the argument that Arizona's statute was, or could be, authorized by a provision of the federal Social Security Act. According to the Court, even though "the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they may remain, and the terms and conditions of their naturalization, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause." Id. at 382. Because Arizona's statute violated the equal protection clause, it could not be authorized by federal law.
Following its 1971 decision in Graham, the Supreme Court has repeatedly applied strict scrutiny to state laws that base eligibility for economic benefits on an applicant's citizenship. See, e.g., Sugarman v. Dougall, 413 U.S. 634, 641-646 (1973)(New York law that permitted only U.S. citizens to hold permanent positions in state civil service violated equal protection because it could not withstand close judicial scrutiny); In re Griffiths, 413 U.S. 717, 718-722 (1973)(Connecticut law that prohibited aliens from taking the bar exam was subject to close judicial scrutiny and violated equal protection); Nyquist v. Mauclet, 432 U.S. 1, 7-12 (1977)(New York law that barred resident aliens from state financial assistance for higher education could not withstand close judicial scrutiny and therefore violated equal protection); Bernal v. Fainter, 467 U.S. 216, 227-228 (1984)(Texas law that denied aliens the opportunity to serve as notaries public was subject to strict scrutiny and violated equal protection). The Connecticut Supreme Court has taken the same approach, concluding that "state law classifications regarding eligibility for welfare benefits based on alienage are unconstitutional unless they are narrowly tailored to serve a compelling state interest." Barannikova v. Town of Greenwich, 229 Conn. 664, 681 (1994).2
Although state laws that condition economic benefits on an applicant's citizenship are generally subject to strict scrutiny, federal laws that make similar classifications are subject only to rational basis review. The basis for this distinction is explained by the Court in Mathews v. Diaz, 426 U.S. 67 (1976), and derives from Congress' constitutional power "'[t]o establish [a] uniform Rule of Naturalization,' United States Constitution, Art. I, § 8, cl. 4, its power '[t]o regulate Commerce with foreign Nations,' id. cl. 3, and its broad authority over foreign affairs." Toll v. Moreno, 458 U.S. 1, 10 (1982).
At issue in Mathews v. Diaz was whether Congress could condition an alien's eligibility for participation in a federal medical insurance program on continuous residence in the United States for a five year period and admission for permanent residence. The Court concluded that both conditions were constitutional.
First, the Court concluded that it was constitutional for Congress to distinguish between citizens and aliens. According to the Court:
Id. at 80. Thus, "the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits to all aliens." Id.
The Court went on to conclude that Congress can discriminate not only between citizens and aliens, but also between classes of aliens. This is because:
Id. at 81-82. Applying rational basis review, the Court concluded that "it is unquestionably reasonable for Congress to make an alien's eligibility [for benefits] depend on both the character and duration of his residence." Id. at 82.
In so holding, the Court distinguished Graham v. Richardson. As explained by the Court, Graham involved the relationship between aliens and the States, whereas the case before it involved the relationship between aliens and the federal government. According to the Court:
Id. at 85.
Twenty years after the Supreme Court decided Mathews v. Diaz, 426 U.S. 67 (1976), Congress exercised its broad power over naturalization and immigration by passing legislation that dramatically reduced the eligibility of aliens for state and federal benefits. The legislation in question was the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA"), which was signed into law by President Clinton on August 22, 1996. See Pub. L. No. 104-193, 110 Stat. 2105 (1996), codified at 8 U.S.C. §§ 1601 – 1646.
PRWORA represented a substantial overhaul of the federal benefits system. The Act cut back on, or eliminated, the availability of federal public benefits for many aliens in order to "assure that aliens [would] be self-reliant in accordance with national immigration policy" and "to remove the incentive for illegal immigration provided by the availability of public benefits." 8 U.S.C. §§ 1601(5) and 1601(6). 3 As discussed below, the Act also authorized states to restrict the eligibility of aliens for certain state-funded public benefit programs. 8 U.S.C. § 1624.
PRWORA divides aliens into two categories: "qualified aliens" and "non-qualified aliens." In general, qualified aliens are aliens who are: (1) lawfully admitted for permanent residence; (2) granted asylum; (3) designated refugees; (4) paroled into the United States; (5) being withheld from deportation; (6) granted conditional entry; (7) from Cuba or Haiti; or (8) victims of battering or extreme cruelty by a spouse or other family member. 8 U.S.C. § 1641. All other aliens are non-qualified.
Under PRWORA, non-qualified aliens are not eligible for "any Federal public benefit," which is broadly defined as "any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States," with limited exceptions. 8 U.S.C. § 1611.
Qualified aliens may or may not be eligible for federal benefits, depending on a variety of factors, including the specific benefit at issue, the length of time they have been in the United States, and whether they are a member of a select group, such as, for example, refugees, veterans, Indians, children or the disabled. 8 U.S.C. § 1612. In general, qualified aliens are not eligible for food stamps or the supplemental security income program. 8 U.S.C. § 1612. They are, however, eligible for temporary assistance for needy families ("TANF"), social services block grants, and Medicaid, provided they entered the United States prior to August 22, 1996. 8 U.S.C. §§ 1612, 1613. Those qualified aliens who entered the United States after August 22, 1996, must wait 5 years before being eligible for such benefits. 8 U.S.C. § 1613.
PRWORA also limits eligibility for state and local public benefits, which are defined as "any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government." 8 U.S.C. § 1621(c)(1). Under PRWORA, non-qualified aliens are not eligible for most state and local public benefits unless the state has enacted a law, after August 22, 1996, that specifically provides for such eligibility. 8 U.S.C. § 1621(d). With regard to qualified aliens, each state is authorized to determine, and limit the eligibility of such individuals for state public benefits, with certain exceptions. 8 U.S.C. § 1622. States are also specifically authorized "to prohibit or otherwise limit or restrict the eligibility of aliens or classes of aliens for programs of general cash public assistance furnished under the law of the State," provided such limitations are not more restrictive than the restrictions imposed by comparable federal programs. 8 U.S.C. § 1624.
After PRWORA was enacted in 1996, there were multiple suits challenging the constitutionality of the classifications in the Act based on alienage. In each case, the court applied rational basis review based on Mathews and upheld the law. See, e.g., Rodriguez ex. rel. Rodriguez v. U.S., 169 F.3d 1342 (11th Cir. 1999)("Congress' decision to reduce the number of aliens eligible for SSI and food stamps by providing that only the aliens in the fourteen categories specified in [8 U.S.C.] § 1612(a)(2) are eligible for those benefits is rationally related to the legitimate purpose of reducing the cost of those welfare programs"); City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999), cert. denied, 529 U.S. 1036 (2000)("Mathews v. Diaz requires the application of rational basis review" and based on that standard, PRWORA does not offend the equal protection clause); Kiev v. Glickman, 991 F. Supp. 1090 (D. Minn. 1998)("the Welfare Reform Act does not violate the Equal Protection Clause of the Fifth Amendment, as it is rationally related to legitimate governmental interests").
Although PRWORA has been upheld, questions have been raised about state laws that were enacted pursuant to PRWORA that discriminate in providing benefits based on alienage. Courts that have considered the issue have uniformly held that PRWORA does not insulate state laws from constitutional requirements, including the equal protection clause. Thus, the fact that PRWORA authorizes the states to limit benefits based on alienage does not mean that state laws that do so are constitutional. Instead, as discussed below, the determination whether a state benefit law that discriminates based on alienage violates the equal protection clause primarily turns on whether it is implementing the requirements of a federal law, in which case it is subject only to rational basis review, or governs a state program whose parameters and eligibility rules are set by the state, in which case strict scrutiny applies.
In the following cases, 4 the courts applied rational basis review in concluding that a state's denial of benefits to aliens based on a state statute or regulation that implemented federal law did not violate the equal protection clause. As one court stated, it would make little sense to subject a state law that implements federal law to strict scrutiny when the federal law itself is only subject to rational basis review. Soskin v. Reinertson, 257 F. Supp. 2d 1320 (D.Colo. 2003).
(1) Monmouth Medical Center v. Kwok, 444 A.2d 610 (N.J. Super. 1982): In Monmouth, the plaintiff, who was an illegal alien, challenged a New Jersey regulation that required applicants for Medicaid to be "either a citizen or an alien lawfully admitted for residence or otherwise permanently residing in the United States under color of law." Monmouth, 444 A.2d at 611. In concluding that the regulation did not violate the equal protection clause, the court first focused on the nature of the Medicaid program. As described by the court, "[t]he Medicaid program is jointly funded by State and Federal governments and enables participating states to furnish assistance to individuals whose economic resources are insufficient to meet the cost of necessary medical care." Id. In order to participate in the program, a state submits a plan, which must comply with federal regulations, to the federal government for approval. Id. One of the federal regulations with which the plan had to comply provided that the state program must be open to "any otherwise eligible resident of the United States who is either a citizen or an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law; and must exclude any individual who is not lawfully in this country." Id. at 612, quoting 38 Fed. Reg. 16,911 (June 27, 1973). Given the fact that the New Jersey regulation excluding illegal aliens from Medicaid was implementing a mandatory federal policy, the court concluded that it did not violate the equal protection clause based on the rationale of Mathews v. Diaz.
(2) Sudomir v. McMahon, 767 F.2d 1456 (9th Cir. 1985): Sudomir involved a situation similar to that in Monmouth. In Sudomir, three aliens who had applied for, but not yet received, political asylum, challenged California's denial of their application for welfare benefits under the Aid to Families with Dependent Children ("AFDC") program. As described by the court, "[t]he AFDC program is a cooperative federal-state effort established by Congress to furnish financial assistance to certain needy families with dependent children." Sudomir, 767 F.2d at 1457. Federal law dictates the eligibility requirements for the program which the states must apply. In particular, federal law (as of 1985) required states to grant benefits to aliens lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law and to deny benefits to aliens who did not meet these qualifications. Id., citing 42 U.S.C. § 602(a)(33). Given this situation, in which the state was applying mandatory uniform federal standards to determine eligibility for a joint federal-state program, the Ninth Circuit concluded that the district court properly applied rational basis review and properly concluded that, under this standard, the state's denial of benefits did not violate the equal protection clause.
(3) Cid v. South Dakota Department of Social Services, 598 N.W.2d 887 (S.D. 1999): In Cid, the plaintiff challenged a South Dakota administrative rule that denied her benefits under the Medicaid, Temporary Assistance to Needy Families ("TANF"), and food stamp programs because she was a resident alien who had not resided in the United States for at least five years. The court found that the state rule in question simply implemented federal legislation, was consistent with PRWORA, and did not place any burdens, other than those contemplated in the federal law, on those subject to its provisions. Accordingly, the court applied rational basis review and concluded that the rule passed constitutional muster. As stated by the court:
Id. at 892-893. Accordingly, the court concluded that "the DSS rule, which mirrors the Act's provisions, passes rational basis scrutiny, and its implementation does not constitute a denial of equal protection under the law." Id. at 893.
(4) Doe v. Commissioner of Transitional Assistance, 773 N.E.2d 404 (Mass. 2002): Doe involved qualified aliens who were denied benefits under a program known as "Transitional Aid to Families with Dependent Children" ("TAFDC") because they did not meet the program's residency requirement. The plaintiffs claimed that because state law imposed the residency requirement on some legal immigrants, but not on other legal immigrants or citizens, it violated the equal protection clause.
The TAFDC program was a state program that was funded by combining federal TANF funds with state funds. Because the co-mingled funding meant an applicant for TAFDC had to meet the eligibility requirements for TANF, Massachusetts amended the TAFDC eligibility requirements after the passage of PRWORA to add a residency requirement in order to conform to the federal eligibility rules for TANF.
In upholding the amendment, the Massachusetts Supreme Judicial Court explained that as a general rule, "State laws that discriminate against legal aliens in the distribution of economic benefits are subject to strict scrutiny. This general rule does not apply, however, to State laws that merely adopt uniform Federal guidelines regarding the eligibility of aliens for benefits." Doe, 773 N.E. 2d at 409. Because the situation before it fell into the latter category, the court applied rational basis review based on Sudomir and Cid and found no equal protection violation. 5
(5) Soskin v. Reinertson, 2004 U. S. App. Lexis 343 (10th Cir. Jan. 12, 2004): In Soskin, the plaintiffs sought to enjoin the implementation of a Colorado law that eliminated Medicaid benefits for certain qualified aliens for whom the federal government did not require the state to provide coverage. Under federal law, states are required to provide Medicaid coverage to certain qualified aliens and are given the option of covering other qualified aliens. Although Colorado had been providing the optional additional coverage, it chose, in response to a fiscal crisis, to eliminate the optional coverage and provide only the coverage that was mandated by federal law.
The Colorado District Court applied rational basis review and denied the injunction, stating that:
Soskin v. Reinertson, 257 Supp. 2d 1320, 1326-27 (D. Colo. 2003). The Tenth Circuit affirmed in pertinent part, 6 concluding that rational basis review was appropriate because the State was effectuating national policy. As stated by the court:
Soskin v. Reinertson, 2004 U.S. App. Lexis 343 *37-38 (10th Cir. Jan. 12, 2004)(emphasis added). 7 Concluding that the district court had not abused its discretion in refusing to enjoin the termination of benefits, the Tenth Circuit affirmed the denial of a preliminary injunction.
Although the cases discussed above concluded that state statutes and regulations that discriminate against aliens are subject to rational basis review if they are implementing federal programs, the courts in the following cases concluded that when the state is not implementing federal law, but rather is exercising its discretion in establishing eligibility standards for its own benefit programs, strict scrutiny applies.
(1) Barannikova v. Greenwich, 229 Conn. 664 (1994): After the Supreme Court had decided Graham and Mathews, but before Congress had passed PRWORA, the Connecticut Supreme Court considered whether a state law that paralleled federal law, but was not mandated by federal law and did not implement a federal program, was subject to strict scrutiny. The statute at issue required the assets of an immigrant's sponsor to be considered in determining whether the immigrant was eligible for a state-funded and state-administered general assistance program. Based on Graham v. Richardson, the court concluded that strict scrutiny applied because, as in Graham, the statute at issue was a statute that denied welfare benefits on the basis of alienage. Although the state argued that rational basis review should apply because the state statute paralleled federal law, the court found that, even if the federal government had authorized the program, which it had not, the Supreme Court had stated in Graham that Congress did not have the power to authorize the states to violate the equal protection clause. Accordingly, the court applied strict scrutiny and struck down the law because the state's claimed interest in preserving the "economic and social welfare of the state" was not compelling.
(2) Aliessa v. Novello, 754 N.E. 2d 1085 (N.Y. 2001): In Aliessa, twelve aliens challenged a New York law that denied Medicaid benefits to legal aliens. The benefits at issue were not federal Medicaid benefits, which are jointly funded by the state and federal governments and must conform to federal standards, but rather were state Medicaid benefits, which are funded solely by the state and may be granted based largely on state designed eligibility rules. Although New York had long provided state Medicaid benefits to needy recipients without distinguishing between legal aliens and citizens, the state changed its eligibility rules as a result of PRWORA. Specifically, the state (1) terminated state Medicaid payments for all non-qualified aliens; (2) maintained state Medicaid for qualified aliens who had entered the United States before August 22, 1996; (3) allowed qualified aliens who had entered the United States after August 22, 1996, to obtain state Medicaid after 5 years; and (4) allowed all aliens to receive safety net assistance and emergency medical treatment. The plaintiffs claimed that these changes violated the state and federal equal protection clauses.
In defending the constitutionality of the law, the state argued that the law was implementing federal law, and thus rational basis review, not strict scrutiny applied. The state based this argument on the fact the state requirements mirrored federal requirements and that PRWORA specifically authorized the states to determine, and limit, the eligibility of aliens for state public benefits.
The court rejected this argument. In so doing, the court relied on Graham v. Richardson, which held that "a Federal statute authorizing 'discriminatory treatment of aliens at the option of the States' would present 'serious constitutional questions.'" Aliessa, 754 N.E.2d at 1097 (emphasis in Aliessa), quoting Graham v. Richardson, 403 U.S. at 382. According to the court:
Id. at 1097, quoting Graham, 403 U.S. at 382.
According to the Aliessa court, PRWORA did not impose a uniform immigration rule for the States to follow. Instead, it expressly authorized States to enact laws extending any state or local benefit, even to aliens not lawfully present within the United States. 8 U.S.C. § 1621(d). In the case of state Medicaid, it also authorized states to withhold such benefits even from aliens who are eligible for federal Medicaid. 8 U.S.C. § 1622(a). Thus, far from imposing a uniform policy concerning state benefits, PRWORA vested the states with broad discretion to grant or deny aliens coverage as they saw fit. Because New York had exercised this discretion in establishing its own eligibility policy for its state Medicaid program, the court concluded that this policy, like the policy at issue in Graham, was "outside the context of a Congressional command for nationwide uniformity" and therefore subject to strict scrutiny. Because the policy could not survive strict scrutiny review, the court concluded that it was unconstitutional. 8
(3) Kurti v. Maricopa County, 33 P.3d 499 (Ariz. App. 2001): In Kurti, two qualified aliens challenged Arizona's statutes governing eligibility for indigent health care benefits. The Arizona statutes at issue did not mirror federal law because, unlike federal law, which permitted qualified aliens to be eligible for federal health care benefits after 5 years, the Arizona law held that the same individuals would only be eligible for emergency health services after 5 years. Because the state laws did not mirror federal law, the court concluded that strict scrutiny applied. In further elaborating on this conclusion, the court distinguished Mathews, Sudomir and Cid, noting that each of those cases involved federally funded programs, whereas the Arizona benefit program was a state and county funded program. Based on strict scrutiny review, the court concluded that the statutes violated the equal protection clause.
(4) Avila v. Biedess, 78 P.3d 280 (Ariz. App. 2003): This recent decision concerned the constitutionality of two Arizona health care programs -- its Title XIX Medicaid program, which was jointly funded by the state and federal governments, and a wholly state-funded health care program known as the Premium Sharing Program. With regard to the Title XIX Medicaid program, the court concluded that rational basis review applied because the program was a joint federal/state program that applied federal eligibility standards. According to the court, Arizona's interests in complying with national immigration policy and allocating scarce public resources met the rational basis test. With regard to the Premium Sharing Program, however, the court found that it was a wholly state-funded program for which Congress had not mandated that the state adopt any particular eligibility criteria. Accordingly, strict scrutiny applied. Unlike prior cases, however, the court in Avila found that strict scrutiny had been satisfied because the Premium Sharing Program was "essentially a state-funded extension of the federally-funded Title XIX program." Id. at 288. The only difference in eligibility criteria for the two programs was that the Premium Sharing Program was open to individuals with income levels that were too high to qualify for Title XIX. Accordingly, the court concluded that:
Id. at 288. In so holding, the court cautioned that "[a] state may not, of course, always apply federal criteria to services or programs that are distinct from programs subject to the applicable federal law." Id. Instead, "[t]he combination of the federal policy and the benefits of uniform eligibility criteria for different parts of the state's program create the rare circumstance when a state classification based on alien status satisfies strict scrutiny." Id.
Based on the caselaw discussed above, we conclude that in order to determine whether the General Assembly's decision to stop accepting applications from legal aliens for SAGA-cash, SMANC, Temporary Family Assistance, Home Care for Seniors and Food Stamps violates equal protection, it is necessary to examine each program to determine whether it is implementing federal law and applying federally mandated eligibility standards, or is a state-funded, state administered program for which the state sets its own eligibility criteria. The exclusion of legal aliens from a program that falls into the latter category will be subject to strict scrutiny and will likely be found to violate equal protection unless the limited exception set forth in Avila is met. Each of the benefit programs at issue will be discussed separately.
The state-administered general assistance program ("SAGA") provides financial assistance to individuals who are unable to support themselves and have failed to qualify for other types of state and federal assistance. Conn. Gen. Stat. § 17b-111; City of Bridgeport v. Department of Social Services, 2002 WL 316723, n. 2 (Conn. Super. Ct., Feb. 8, 2002). Prior to 1998, when the state took over administration of the program, it was administered by each town, with the state reimbursing the towns for 85% of their expenditures. Id.; Conn. Gen. Stat. § 17b-111. The program is purely state-funded and does not involve any federal matching funds or federal assistance. Barannikova v. Greenwich, 229 Conn. 664, 672 (1994).
Until July 1, 2003, SAGA cash assistance 9 was available to citizens and to qualified aliens who did not qualify for federally-funded cash assistance, other lawfully residing immigrant aliens and aliens who formerly held the status of permanently residing under color of law. Conn. Gen. Stat. § 17b-112c. As of July 1, 2003, however, based on 2002 Conn. Pub. Acts No. 02-07 (May Special Session), DSS stopped accepting SAGA-cash applications from aliens. Citizens, however, are still eligible for the program. 10
Because SAGA-cash is a purely state-funded, state run program whose eligibility requirements are not mandated by Congress, but rather are discretionary with the state, the caselaw discussed above, in particular Barannikova, Aliessa and Avila, suggest that the state's decision to provide SAGA-cash to citizens, but not to legal aliens, must satisfy strict scrutiny and be justified by a compelling state interest.
As is evident from the legislative history of Public Act 01-2 (the act that first imposed an end to alien applications for SAGA-cash benefits), the state's interest in cutting off such benefits for aliens was to save money. As stated by Representative Flaherty:
44 Conn. H. R. Proc., pt 23, 2001 June Sp. Sess. 7989-7992 (June 28, 2001)(remarks of Rep. Flaherty). When Representative Horton specifically asked "is it fair to say that the State's interest in Section 17 [the amendment to § 17b-112c cutting off benefits for aliens] is to save money?," Representative Thompson responded that "it's fair to say that it does save some money." 44 Conn. H. R. Proc., pt 23, 2001 June Sp. Sess. 7996-7997 (June 28, 2001)(remarks of Reps. Horton and Thompson). The specific amount, according to Rep. Thompson was approximately $1.13 million in fiscal year 2002 and $1.66 million in fiscal year 2003. Id. at 7997. The desire to conserve state resources, however, is not a compelling state interest. Graham v. Richardson, 403 U.S. 365, 374-375 (1971).
In Avila, the court held that a state may have a compelling state interest in having uniform eligibility standards if it administers both federal and state programs and the latter is just a state-funded extension of the former. SAGA-cash, however, is not a state-funded extension of a federal program. Accordingly, we conclude that a court would likely hold that the termination of SAGA cash assistance coverage for aliens, but not for citizens, violates the equal protection clause. See 44 Conn. H. R. Proc., pt. 23, 2001 June Sp. Sess. 8008-8012 (June 28, 2001)(remarks of Rep. Horton)(arguing that the termination of benefits for aliens violated equal protection).
In 1997, when PRWORA caused many aliens to become ineligible for Medicaid, the Connecticut General Assembly adopted a state medical assistance program for non-citizens, known as "SMANC," in order to provide state-funded medical assistance to aliens who were not eligible for Medicaid. See 1997 Conn. Pub. Acts. No. 97-2, § 146, codified at Conn. Gen. Stat. § 17b-257b. The coverage provided by the program is the same as that provided by "the Medicaid program, state-administered general assistance medical aid or the HUSKY Plan, Part B provided other conditions of eligibility are met." Conn. Gen. Stat. § 17b-257b. The program is entirely state funded, is exclusively for aliens and, until July 1, 2003, was open to qualified aliens, other lawfully residing immigrant aliens, and aliens who formerly held the status of permanently residing under color of law. As of July 1, 2003, the Commissioner of DSS stopped accepting applications for the program. As with SAGA-cash, the apparent reason for closing the program was to save money. See 44 Conn. H. R. Proc., pt 23, 2001 June Sp. Sess. 7989-7992 (June 28, 2001)(remarks of Rep. Flaherty). 11
Given the fact that SMANC is offered solely to aliens and not to citizens, we conclude that a court would likely conclude that the state's decision to stop offering it does not pose an equal protection problem because it does not result in aliens being treated any differently than citizens. As noted above in FOOTNOTE 6, the Massachusetts Supreme Judicial Court addressed a somewhat similar situation in Doe v. Commissioner of Transitional Assistance, 773 N.E.2d 404 (Mass 2002), in which the plaintiffs challenged the constitutionality of a state-funded supplemental benefit program for aliens who did not qualify for the federal TAFDC program. Because the supplemental program was available only to aliens, and not to citizens, the court concluded that the eligibility requirements, which included a durational residency requirement, did not discriminate based on alienage, but rather based on residency. Because residency is not a suspect classification, rational basis applied. Similarly, in the present case, because SMANC is open only to aliens, and not to citizens, changes to the program simply do not involve classifications based on alienage. Accordingly, strict scrutiny does not apply.
Although the closure of SMANC does not raise equal protection concerns, there is another, related medical benefit program, the State Administered General Assistance medical program (SAGA-medical), that would likely be held unconstitutional if examined by a court. The SAGA-medical program is purely state-funded and provides medical benefits for financially needy individuals who do not qualify for Medicaid. See Conn. Gen. Stat. § 17b-257. SAGA-medical is not available to aliens, but, at least until July 1, 2003, aliens could obtain similar benefits through the SMANC program. The fact that SMANC is no longer available means that aliens who do not qualify for Medicaid have no medical benefits program, whereas citizens who do not qualify for Medicaid may qualify for SAGA-medical assistance. The fact that SAGA-medical, a purely state-funded, state-administered benefit program is available to citizens, but not to aliens, and there is no program such as SMANC providing comparable benefits for aliens, raises equal protection concerns. Given the fact that SAGA-medical is not a state extension of a federal program, and thus the State has no compelling state interest in uniform eligibility standards as was the case in Avila, we conclude that a court would likely find that the exclusion of aliens from SAGA-medical, in the absence of SMANC, was unconstitutional.
Conn. Gen. Stat. § 17b-112 establishes "a temporary family assistance [TFA] program under which cash assistance shall be provided to eligible families in accordance with the temporary assistance for needy families program [TANF], established pursuant to [PRWORA]." Conn. Gen. Stat. § 17b-112(a). The Connecticut Superior Court has described the history of the program as follows:
Robinson v. Ward, 1999 WL 395392, n.1 (Conn. Super. Ct. June 3, 1999).
Pursuant to Conn. Gen. Stat. § 17b-112c, the General Assembly provided that until June 30, 2003, the following aliens would be eligible for "solely state-funded temporary family assistance:" 1) qualified aliens who did not qualify for federally funded cash assistance; 2) lawfully residing immigrant aliens; and 3) aliens who formerly held the status of permanently residing under color of law ("PRUCOLs"). Although funding for TFA comes from state funds augmented with federal funds from a TANF block grant, the program for which aliens are eligible is "solely state-funded temporary family assistance." Conn. Gen. Stat. § 17b-112c (emphasis added). The limitation on eligibility to "solely state-funded" temporary family assistance is likely because the program is providing benefits to aliens who do not qualify for federal assistance and "no program that receives TANF money may pay benefits to qualified aliens who are ineligible for federal benefits under the 1996 Act." Doe v. Commissioner of Transitional Assistance, 2001 Mass. Super. Lexis 153 *24 (Feb. 2, 2001), aff'd 773 N.E. 2d 404 (Mass. 2002). Thus, the solely state funded temporary family assistance provided for in Conn. Gen. Stat. § 17b-112c is a supplemental program to extend coverage to aliens who otherwise could not be covered by TFA.
Soskin v. Reinertson, 2004 U. S. App. Lexis 343 (10th Cir. Jan. 12, 2004), discussed above, suggests that a supplemental state program for aliens who are ineligible for federal benefits can be terminated without being subject to strict scrutiny when the program that is being supplemented is a program such as Medicaid that is heavily regulated by, and partially funded by, the federal government. Thus, in Soskin, the court found no equal protection violation when the State of Colorado eliminated optional Medicaid coverage for aliens, leaving intact only the Medicaid coverage that was mandated by federal law.
The present case presents a similar situation. The legislature has chosen to close the supplemental TFA program for aliens, leaving intact the TFA program that is jointly funded by the state and federal government and heavily regulated by federal law. Under the reasoning of Soskin, a court would likely conclude that closure of the supplemental program need only satisfy rational basis review and the State's interest in saving money would meet that standard.
The Connecticut Home Care Program is set forth at Conn. Gen. Stat. § 17b-342 and is designed to prevent the institutionalization of the elderly by providing home and community-based care for individuals 65 and older. For the most part, the program is operated as part of Connecticut's federally-assisted Medicaid program. Approximately one-fourth of the individuals served, however, are not eligible for Medicaid and are served under an entirely state-funded portion of the Home Care program that is specifically limited by statute to available appropriations. See Conn. Gen. Stat. § 17b-342(i). Although only those individuals who "meet the citizenship requirements for eligibility under the Medicaid program" are eligible for home care services under the Medicaid portion of the program, Conn. Gen. Stat. § 17b-342(a), the Commissioner specifies conditions of eligibility for the state-funded portion of the program. Conn. Gen. Stat. §§ 17b-342(e) and 17b-342(i).
Because the state-funded portion of the Home Care Program is a state-administered program that is not implementing federal law, but rather is governed by state standards, we conclude that a court would likely hold that closing this portion of the program to legal aliens, but not to citizens, is subject to strict scrutiny and would not pass constitutional muster.
The final program for which the Commissioner of Social Services is no longer accepting applications from legal aliens is the food assistance program for immigrants, set forth at Conn. Gen. Stat. § 17b-790a. The General Assembly established the program in 1998 to provide assistance to aliens who would have been eligible for the federal food stamp program were it not for the passage of PRWORA. Conn. Gen Stat. § 17b-790a(a). The program is fully state funded and the amount of assistance provided is equivalent to the amount the individual would have received under the federal act. Conn. Gen. Stat. § 17b-790a(c). As of June 30, 2003, the Commissioner of Social Services stopped accepting new applications for the program.
Like SMANC and solely state-funded TFA, the food assistance program for legal immigrants is a program solely for aliens. No benefits are offered to citizens because citizens are eligible for federal stamps and thus do not need the state program. Because the state program does not provide benefits to citizens, the state's elimination of the program does not discriminate against aliens in favor of citizens. Instead, it simply eliminates optional coverage that the state was not obligated to provide, leaving the federal program as the only option. As the court concluded in Soskin v. Reinertson, 2004 U. S. App. Lexis 343 (10th Cir. Jan. 12, 2004), the elimination of such a supplemental program does not violate equal protection.
It should be noted that continuing to provide benefits to those aliens who applied before June 30, 2003, while denying benefits to those who did not, is not a classification based on alienage, or other suspect class. As the Supreme Judicial Court of Massachusetts recognized in Doe v. Commissioner of Transitional Assistance, 773 N.E.2d 404, 414 (Mass. 2002), when a statute discriminates among aliens, "the appropriate standard of review . . . depends on the nature of the classification that creates the distinction between subgroups of aliens. If that classification were a suspect one such as race, gender or national origin, [the court] would apply strict scrutiny analysis." Where, as in Doe, the basis for the classification does not involve a suspect class or fundamental right, rational basis review applies. See also Rayhall v. Akim Co, Inc., 263 Conn. 328, 344-345 (2003)(when the state discriminates amongst members of the protected class, rational basis applies unless there is evidence on the face of the statute or in its legislative history of intentional invidious discrimination).
In the present case, rational basis review applies because the classification is based purely on the time an applicant filed his application. It does not discriminate based on alienage, or even on residency, because aliens who have lived in the state a long time, but never applied for benefits, are equally as affected as new arrivals. Moreover, the classification is a rational means of cutting back on state benefits, and thereby saving the state money, without taking the drastic step of denying benefits to all those who were already receiving them. As the Supreme Court has recognized, "[l]egislatures may implement their program step by step, in . . . economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations." New Orleans v. Dukes, 427 U.S. 297 (1976)(upholding a "grandfather clause" that banned food vendors in the French Quarter of New Orleans unless they had been operating for eight years). Accordingly, although the food stamp program, and all the state benefit programs at issue, distinguish between aliens who applied for benefits before June 30, 2003, and those who did not, there is no basis for concluding that this distinction violates the equal protection clause.
Jane R. Rosenberg
Assistant Attorney General
1 Our analysis applies exclusively to legal aliens, who are lawfully residing in the United States, as opposed to illegal aliens, who are not. As discussed below, state laws that discriminate against illegal aliens are not subject to the same heightened scrutiny, and thus do not pose the same equal protection concerns, as state laws that discriminate against legal aliens. See Plyler v. Doe, 457 U.S. 202, 219 n. 19 (1982).
2 In a limited exception to this rule, the U.S. Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982), applied intermediate scrutiny, rather than strict scrutiny, to a Texas law that denied public education to illegal aliens. In so doing, the Court "reject[ed] the claim that 'illegal aliens' are a 'suspect class,'" because unlike most suspect classifications, entry into the class of illegal aliens is a voluntary, unlawful action. Id. at 219 n. 19. Because education is so important to maintaining the nation's basic institutions, however, the Court refused to apply rational basis review and instead settled on intermediate scrutiny that required the state to demonstrate that the law in question furthered a "substantial state goal." Id. at 224.
3Welfare reform was the subject of extensive legislative discussion prior to the enactment of PRWORA. "Members of Congress were concerned about the extent to which permanent legal residents were receiving federal public assistance. See, e.g., 142 Cong. Rec. H7801 (July 18, 1996)(Rep. English); Id., H7805 (Rep. Dunn). In a report to the House Subcommittee on Human Resources, Committee on Ways and Means, the General Accounting Office determined that the percentage of immigrants who receive federal assistance in the form of Social Security Income ("SSI") or Aid to Families with Dependent Children ("AFDC") is higher than the percentage of citizens receiving the same benefits – 6 percent of all immigrants compared to 3.4 percent of all citizens. GAO Report 95-588 at p. 2 (February 1995). From 1983 to 1993, the number of immigrants receiving SSI quadrupled. Id. Furthermore, reports to Congress suggested that the costs of welfare benefits to immigrants would increase from 3.6 billion dollars in 1996 to five billion dollars in the year 2000. GAO Report T-HEHS-96-149 p. 10 (May 1996). By the mid-1990's, 27 million people per month were receiving food stamp benefits at a cost of more than $26 billion per year. 142 Cong. Rec. H7747 (July 17, 1996)." Kiev v. Glickman, 991 F. Supp. 1090, 1092 (D. Minn. 1998).
4The cases are discussed chronologically, beginning with the earliest case, because the more recent cases rely on the earlier cases.
5The Doe plaintiffs also challenged a state-funded supplemental program that provided benefits to qualified aliens who were not eligible for TAFDC, provided they had resided in the state for six months. The court concluded that because the program was only available to aliens, it did not discriminate based on alienage, but rather based on state residency and was therefore subject only to rational basis review. Applying such review, the court upheld the law.
6The Tenth Circuit reversed the District Court's denial of a preliminary injunction only with regard to certain aliens who had their benefits terminated, without being notified of their right to a hearing, for failing to return particular forms. As to these aliens only, the Tenth Circuit reversed the district court's denial of a preliminary injunction and enjoined the state from terminating benefits to such individuals until they had been given notice of their right to request a pretermination hearing.
7 The court went on to note that it followed the reasoning of the Massachusetts Supreme Judicial Court in Doe v. Commissioner of Transitional Assistance, 773 N.E. 2d 404 (Mass. 2002), and rejected the reasoning of the New York Court of Appeals in Aliessa v. Novello, 754 N. E.2d 1085 (N.Y. 2001), discussed infra.
8The Tenth Circuit disagreed with the Aliessa analysis in Soskin v. Reinertson, 2004 U. S. App. Lexis 343 * 36-38 (10th Cir. Jan. 12, 2004).
9 In addition to providing cash assistance, SAGA also provides medical assistance. The SAGA medical assistance program is set forth at Conn. Gen. Stat. § 17b-257. Although Conn. Gen. Stat. § 17b-257b makes reference to aliens "who have been determined eligible for . . . state-administered general assistance medical aid," there is no statutory provision explicitly extending SAGA medical assistance benefits to aliens. Instead, as discussed below, the state has created a state medical assistance program exclusively for aliens, known as "SMANC," which provides coverage to the same extent as SAGA medical assistance, Medicaid or the HUSKY B plan. Conn. Gen. Stat. § 17b-257b. As interpreted by DSS, SMANC is the only medical coverage available to aliens who do not qualify for Medicaid.
10It should be noted that the language of Conn. Gen. Stat. § 17b-112c(a), directing the Commissioner of Social Services to stop accepting applications for SAGA-cash from aliens as of July 1st is contradicted by the language of § 17b-112c(b), which provides that "[n]otwithstanding the provisions of subsection (a)," certain aliens shall remain eligible for the program or be eligible after six months of residency. Although this inconsistency between the two subsections is likely a legislative oversight, it could be argued that, read literally, § 17b-112c does not require the Commissioner to stop accepting SAGA-cash applications from aliens. For the purposes of this opinion, however, we will assume that DSS was required to cease accepting applications.
11The legislative history cited pertains to 2001 Conn. Pub. Acts No. 01-2 (June Special Session), which adopted application deadlines for SAGA-cash, state-funded temporary family assistance, and food stamps. During debate on Public Act 01-2, there was extensive discussion of the fact that the cut-offs were being adopted for budgetary reasons. There was also repeated reference to the fact that a follow-up implementer bill would address the other programs for aliens, including medical assistance and home health care, that were not addressed in Public Act 01-2. The implementer bill that addressed medical assistance, and imposed the cut-off set forth in Conn. Gen. Stat. § 17b-257b, was passed the following day with no further discussion of the immigrant issue. 2001 Conn. Pub. Acts No. 01-9 (June Sp. Session). The fact that the two acts, both cutting off programs for aliens, were passed within a day of each other, and that the rationale for the former act was budget constraints, suggests that the rationale for the latter act was also, in the absence of further discussion, similar budgetary concerns.