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Finch v. Commonwealth Health Insurance Connector Authority: State Legislative Determinations and the Personal Responsibility and Work Opportunity Reconciliation Act
MATTHEW GRAZIO* ABSTRACT
In 2006 Massachusetts enacted the pioneering public benefit program Commonwealth Care. As a result, over 97% of Massachusetts residents enjoy health insurancethe highest rate of insurance in the nation. However, increasing costs for consumers and budget shortfalls threatened the viability of the program. In response, the Massachusetts legislature instituted a reduction in coverage for legal aliens unable to receive matching federal funds. The Massachusetts Legislature incorporated the federal welfare eligibility requirements of the Personal Responsibility and Work Opportunity Reconciliation Act into the Commonwealth Care scheme and created a supplemental care program for those who lost eligibility in Commonwealth Care, funded solely with state monies. In reviewing the eligibility restriction, the Supreme Judicial Court ruled that incorporation of federal eligibility requirements required strict judicial scrutiny review. However, if Congress passed the same legislation, this eligibility restriction would be reviewed under rational basis . This Comment explores the Massachusetts legislatures policy concerning Commonwealth Care and state and federal precedent confronting state legislative decisions concerning the incorporation of federal eligibility requirements into state health care schemes. This Comment attempts to reconcile the divergent precedent and come to a different conclusion than the Supreme Judicial Court.

* Candidate for Juris Doctor, New England Law | Boston (2013). B.A. Political S cie nce, magna cum laude, American University (2010). I would like to thank the members of volumes 46 and 47 of the New England Law Review for their thoughtful editing and comments throughout the writing process.

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INTRODUCTION

n 2006, Massachusetts enacted the pioneering public benefit program Commonwealth Care.1 As a result over 97% of Massachusetts residents enjoy health insurancethe highest rate of insurance in the nation.2 But this laudable figure is undermined by both increasing costs faced by consumers 3 and budget shortfalls that threaten the continued viability of the program.4 In response to that strained budget and increased enrollment, the Massachusetts legislature instituted a reduction in coverage for certain individuals; legal aliens unable to receive matching federal funds lost their Commonwealth Care eligibility. 5 Following Congresss lead, the Massachusetts Legislature chose to incorporate federal welfare eligibility requirements into the Commonwealth Care scheme. 6 Simultaneously, it created a supplemental care program for those who lost eligibility in Commonwealth Care, and funded it solely with state monies. 7 A class of resident aliens denied enrollment in Commonwealth Care challenged statute, and the suit eventually reached the Supreme Judicial Court (SJC) in Finch v. Commonwealth Health Insurance Connector Authority , where the Court ruled that incorporation of federal eligibility requirements required the application of strict judicial scrutiny. 8 However, if Congress passed the same legislation, this eligibility restriction would be subject to rational basis review because of their strong interest in controlling national immigration policy. 9 This Comment will argue that the SJC incorrectly concluded that Massachusetts decisi on to adopt the Personal Responsibility and Work

M ASS G EN. LAWS A NN. ch. 118H, 1 (West 2008). Glen S hor et al., Exec. Office of Fin. & Admin., Health Care Reform , GOVERNORS BUDGET FY 2011: Health Care Reform, http://www.mass.gov/bb/h1/fy11h1/exec_11/ hbudbrief17.htm (last visited Aug. 27, 2013). 3 S ee Charles Wallace, Is Health Care Reform Working in Massachusetts, DAILYFINANCE . COM (Jan. 25, 2011), http://www.dailyfinance.com/2011/01/25/health-care-law-repeal (citing experts who determined that Massachusetts healthcare premiums have risen 5.9% more than the national average from 2006 to 2008). 4 See Kay Lazar, State Cuts its Health Coverage by $115m: Board to Slow Enrollment in Commonwealth Care, BOS. G LOBE , June 24, 2009, at A1.
2

Id.; see infra Part II.A. 2009 Mass. Acts, 695 [hereinafter 2009 Mass. Acts]. This law expired after fiscal year 2010 but was renewed without change, for the subsequent fiscal year. 2010 Mass. Acts, 686 [hereinafter 2010 Mass. Acts]. Since both sections are the same, all references to 2010 Mass. Acts refer to both Acts.
6 7 8

2010 Mass. Acts, supra note 6, at 136(b); see infra Part II.A. See infra Part II. 9 See infra Part I.A.1.

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Opportunity Reconciliation Act of 1996s (PRWORA) eligibility restrictions into Commonwealth Care was subject to strict scrutiny review because the program is a jointly funded state and federal endeavor. This argument asserts that the SJCs conclusion was based on a hollow viewing of Commonwealth Care and its funding mechanisms; forced the state to replace federal funding for ineligible aliens in direct contravention of congressional intent; and ignored the budgetary consequences now facing the Massachusetts Legislature. While this Comment is confined to the SJCs decision in Finch , its analysis is applicable to any state public assistance program receiving matching federal funding. Part I will trace the divergent Equal Protection jurisprudence that occurs when courts confront federal laws restricting an aliens access to public benefits. This includes a discussion of PRWORA and the controversial and confounding effect it has had in state and federal courts. Part II will discuss the positions of both the majority and dissent in Finch v . Commonwealth Health Insurance Connector Authority.10 Part III.A will argue that Commonwealth Cares funding is analogous to a federal -state cooperative public benefit program and should legally be treated as such. Part III.B will use this presupposition to show that the Massachusetts legislatures adoption of PRWORAs eligibility restrictions is entitled to rational basis review under existing precedent. Part IV.A will show how Massachusetts has effectuated congressional intent and Commonwealth Care operates harmoniously within the federal system, contributing to the creation of a uniform national immigration policy. Part IV.B concludes with a discussion of the practical effects of holding this legislative decision subject to heightened judicial scrutiny . I. Background A. Equal Protection Analysis Concerning Aliens: Federal Plenary Authority and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 1. Development of Federal Equal Protection Analysis Regarding Classifications Based on Alienage

The U.S. Supreme Court has recognized that the political branches of the federal government possess the responsibility for regulating the relationship between the United States and our alien visitors . . . .11 Congresss decisions regarding national immigration policy are the source of this deferential treatment of laws that draw distinctions between citizens

10 11

Finch v. Commonwealth Health Ins. Connec tor Auth., 946 N.E.2d 1262 (Mass. 2011). Matthews v. Diaz, 426 U.S . 67, 81 (1976).

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and aliens.12 Judicial deference to congressional decisions is important when aliens allege the federal government violated their Equal Protection rights because the federal governments stake in immigration regulation requires only a rational basis for a discriminatory legislative decision. 13 The Supreme Court established the standard for federal alienage classifications almost thirty years ago in Matthews v. Diaz , and its precedential value remains controlling.14 In that case the Court addressed the constitutionality of a provision of the Social Security Act.15 It allowed citizens to enroll in a specific segment of Medicare while denying enrollment to aliens who had not been admitted for permanent residence and had not actually resided in the U.S. for more than five years. 16 Though the Court recognized that aliens, like citizens, are protected from the deprivation of life, liberty, or property without due process of law, it nevertheless ruled that such protection does not mean that aliens are entitled to all the benefits afforded to citizens.17 The Court also noted that alienage, as a legal classification, contains several subclasses representing a wide- ranging variety of ties to this country.18 Due to the possibility of changes in the American economic and political arenas, Congress is granted deference to determine which alien residents are eligible for receipt of public benefits.19 Following from this analysis, the Court adopted a rational basis standard of review for federal classifications based on alienage.20

12 US C ONST., art. 1, 8, cl. 4 (Congress shall have [the] Power . . . [t]o establish a uniform rule of Naturalization . . . .). When Congress promulgates a uniform rule it cannot be successfully questioned on the ground that it is not uniform . . . merely because its operation or working may be wholly different in one state from another. Darling v. Berry, 13 F. 659, 667 (C.C.D. Iowa 1882); see also Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV . 1425, 1426 (1995) (asserting that courts will defer to the legislature because they have difficulty distinguishing between policy designed to regulate the entry of aliens to the U.S . and policy regulating aliens once they reside within U.S . territory). 13 See Matthews, 426 U.S . at 77-80. 14 See id. at 81. 15 See id. at 69. 16 Id. 17 Id. at 78. 18 Id. at 78-79 & n.13 19 Mathews, 426 U.S . at 81. For instance, the federal government is required to asses international security, international comity, the level of allegiance aliens have to the U.S ., and various other considerations that state legislatures do not face. See id. at 80. Therefore, Congress is permitted to determine when duration of residency, as well as other factors, is relevant in distributing welfare benefits. Id. at 78. 20

See id. at 78.

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On the same day that Matthews was decided, the Court confronted a similar issue in Hampton v. Mow Sun Wong a federal hiring policy that prohibited aliens from obtaining certain civil service jobs. 21 The Court concluded that despite the federal governments heightened national interest in immigration, the Civil Service Commission was not the proper body to pass such a restrictive rule.22 The asserted interests in national policy might be legitimate if posited by Congress or the President, but the Civil Service Commission had no sufficient justification explaining how the restrictive policy provided the Commission itself with a direct benefit. 23 The Court also took issue with the Commissions limited and specific function, as well as the absence of a justification in support of the policy.24 The Court stated that [t]he only concern of the [ Commission] is the promotion of an efficient federal service.25 Thus, an important inquiry in an equal protection analysis will concern whether the actor promulgating the law or regulation, tailors the regulation to meet a specific institutional interest.26

2. The Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 and Permissible Federal Policy Restricting Aliens From Certain Benefits Twenty years after the Supreme Cour ts endorsement of a rational basis standard for laws classifying persons based on alienage, Congress enacted PRWORA.27 Congress stated that the immigration policy of the U.S. required a showing of self- sufficiency, and [d]espite the principle of self-sufficiency, aliens h[ad] been applying for and receiving public benefits from Federal, State, and local governments at increasing rates. 28 This concern prompted Congress to restrict the eligibility of immigrants for certain federally-funded welfare programs conditioning their receipt on both qualifying status and duration of residency. 29 All non - qualified

Hampton v. Mow S un Wong, 426 U.S . 88, 90 (1976). Id. at 116. 23 Id. at 116-17; Dan T. Coenen, The Rehnquist Court, Substantive Due Process, and Semisubstantive Constitutional Review , 75 S . CAL . L. REV . 1281, 1370-71 (2002).
22

21

See Hampton, 426 U.S . at 116-17. Id. at 114. 26 See Coenen, supra note 23, at 1370-71. 27 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 400-51, 110 Stat. 2105, 2260-77 (codified in scattered sections 7, 8, 21, 25, and 42 U.S .C.). 28 8 U.S .C. 1601(1)-(3) (2006). 29 See id. at 1611-15; Tricia A. Bozek, Comment, Immigrants, Hea lth Care, and the Constitution: Medicaid Cuts in Maryland Suggest that Legal Immigrants Do Not Deserve the Equal
25

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aliens are ineligible to receive any federal funding. 30 Generally, aliens who are lawfully admitted permanent residents, asylees, refugees, parolees, and those granted conditional entry into the U.S. are considered qualified, but their eligibility is limited to certain programs. 31 Additionally, states are permitted to deny qualified legal immigrants public benefits for a five year period following their arrival in the U.S.32 Generally, state laws that draw distinctions between aliens and citizens receive strict judicial scrutiny as enunciated by the Supreme Court in Graham v. Richardson.33 When enacting PRWORA, Congress cognizant of the Supreme Courts divergent precedent in Matthews and Grahamincluded a section designed to allow state legislatures the ability to enact laws which comply with and further the goals of PRWORA. 34 In pertinent part, the section provides:
With re spe ct to the State authority to make de te rminations conce rning the e ligibility of qualifie d alie ns for public be ne fits in this chapte r, a State that choose s to follow the Fe de ral classification in de te rmining the e ligibility of such alie ns for public assistance shall be conside re d to have chose n the least restrictive means available for achieving the compelling governmental interest of assuring that alie ns be se lf-re liant in accordance with national immigration policy.35

By asserting that a state which complies with the provisions of PRWORA has chosen the least restrictive means to effectuate the states compelling interest, Congress sought to restrict judicial redress for aliens who might challenge state laws under the heightened judicial scrutiny traditionally applied to such actions. 36 This presumption of validity
Protection of the Law, 36 U. BALT. L. REV . 77, 84-85 (2006). 30 8 U.S .C. 1611(a). 31 Id. at 1641(b) (defining qualified alien); see id. at 1612(a) (listing programs that qualified aliens are ineligible for).
32 See id. at 1624(a)-(b) (granting states discretion to set eligibility for programs so long as the restrictions are not more stringent than federal restrictions). 33

Graham v. Richardson, 403 U.S. 365, 379-80 (1971); see infra text accompanying notes 39-

45.
34 See Roger C. Hartley, Congressional Devolution of Immigration Policymaking: A Separation of Powers Critique, 2 D UKE J. CONST. L. & P UB . P OL Y 93, 101-02 (2007).

8 U.S .C. 1601(7) (2006) (emphasis added). The issue of whether Congress may devolve its power to the states, and allow state legislatures the ability to posit a rational basis concerning a law that denies public welfare benefits to aliens has been much discussed in the academic literature. Compare Hartley, supra note 34, at 102 (arguing that only when congressional policies are mandated, can state laws discriminate against aliens), with Howard F. Chang, Public Benefits and Federal Authorization for Alienage Discrimination by the States, 58 N.Y.U. A NN. S URV . A M. L. 357, 370 (2002) (concluding that the underlying policy concerns of PRWORA are sufficiently weighty to allow Congress to
36

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afforded to a state law when it adopts PRWORAs classification scheme is not valid simply because Congress says so; rather, the states concurrent power to classify based on alienage is given the same type of deference that the federal government enjoys in their exercise of plenary authority. 37 This section is not a congressional usurpation of state judicial authority; it merely fosters a uniform immigration policy and allows states to decide when such a classification is necessary to promote unique state goals. 38 B. Equal Protection and State Laws Which Draw Distinctions Based on Alienage Unlike their federal counterparts, state laws discriminat ing based on alienage are generally subject to strict judicial scrutiny. 39 Graham v. Richardson, the leading opinion, struck down two state laws that conditioned the receipt of public benefits on citizenship status and duration of residency.40 The Court reasoned that alien s, as a class, are a prime example of a discrete and insular minority for whom . . . heightened judicial solicitude is appropriate.41 Underscoring this reasoning was the fact that Congress holds the authority to regulate immigration and the state laws at issue conflicted with an express national policy.42 Because a fifteen-year residency requirement created tension between Congresss authority to regulate aliens and the terms in which they enter the country, Arizona in effect created a discriminatory burden upon aliens who were lawfully admitted to the U.S. 43 The Court concluded that such a requirement discourage[s] entry into or continued residency in the State, and therefore impacts national immigration policy.44 Accordingly, when state laws create a dissonance with federal policies and impose auxiliary burdens upon resident aliens, th e laws are subject to strict scrutiny.45 The application of rational basis review would result in a

delegate its authority and enable the states to adopt divergent policies concerning aliens and public benefits). Chang, supra note 36, at 367. See id.at 369-70. 39 E.g. , Graham v. Richardson, 403 U.S . 365, 371-72 (1971). 40 403 U.S . 365, 374 (1971); Harold Hongju Koh, Equality with a Human Face: Justice Blackmun and the Equal Protection of Aliens, 8 HAMLINE L. REV. 51, 59 (1985) (discussing the significance of Graham ); Jennifer Huffman, Note, Justice Rehnquist and Alienage as a Suspect Classification, 7 G EO. IMMIGR. L. J. 845, 847 (1993) (discussing the importance of Graham ).
38 41 42 37

Graham , 403 U.S . at 371 (citations omitted). Id. at 376-77. 43 Id. 44 Id. at 379. 45 Id. (citing Truax v. Raich, 239 U.S . 33, 42 (1915)).

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multitude regime of divergent state statutes which obfuscate, rather than effectuate, the implementation of congressional policy. 46 Additionally, the state statutes at issue did not rely upon an affirmative authorization or congressional mandate.47 Apart from the general application of strict scrutiny, state and federal courts alike have faced the issue of whether a state may condition an aliens receipt of public benefits on congressional classifications. 48 Despite the seemingly irrefutable rule annunciated in Graham, courts have taken different approaches when addressing issues of state classifications which mirror federal law.49 In Soskin v. Reinerston, the Tenth Circuit was faced with a challenge to a Colorado law that conditioned the receipt of Medicaid benefits on PRWORAs eligibility requirements.50 The Colorado legislature did not initially adopt the provisions of PRWORA, thereby granting full benefits to aliens who did not federally qualify for funding. 51 However, in response to budget shortfalls, the legislature in 2003 decided to incorporate PRWORAs classifications into the states conditions for Medicaid funds. 52 The Tenth Circuit concluded that while the Colorado law appeared to contravene the teachings of Graham, in actuality, Colorado garnered its authority to classify al iens from Congresses express authority to pass such laws.53 The court stated: [U]niformity . . . is not undermined by the PRWORA's grant of discretion to the states with respect to alien qualifications for Medicaid benefits.54 The court chose to review Colorados eligibility requirements under rational basis review because Congress did not fully delegate its authority to regulate immigration conditions to the state.55 Congress simply manifested its intent to permit

Id. at 482. Graham , 403 U.S. at 380-81. The federal statutes authorized the approval or disapproval of state plans that propose eligibility restrictions on aliens. Id. (citing 42 U.S.C. 1352(b)). This ambiguity, the c ourt feared, would authorize divergent state policies and conflict with federal power to create uniformity within the area of immigration. See id. at 382. 48 Id. at 366; S oskin v. Reinertson, 353 F.3d 1242, 1248 (10th Cir. 2004); Aliessa v. Novello, 754 N.E.2d 1085, 1094 (N.Y. 2001).
47

46

See infra note 64. 353 F.3d at 1244-45. 51 Id. at 1246. 52 Id. 53 Id. at 1251; Michael Shaplan, Soskin v. Reinertson: An Analysis of the Tenth Circuits Decision to Permit the State of Colorado to Withhold Medicaid From Aliens Pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act, 2 S ETON HALL CIR. REV . 339, 349-50 (2005).
50 54 55

49

Soskin, 353 F.3d at 1257. See id. at 1255-56.

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states to operate within the precepts of PRWORA.56 When states choose to comply with this congressional policy, they are effectuating national policy and determining whether the financial burdens of providing optional benefits are too high.57 This determination is a national concern, even though it implicates parochial interests. 58 However, not all courts reach the same conclusion. The New York Court of Appeals deemed a similar New York law unconstitutional by utilizing a strict scrutiny standard. 59 In Aliessa v. Novello, the court interpreted a state law that incorporated PRWORAs eligibility provisions and resulted in the denial of Medicaid benefits to certain aliens. 60 Drawing on the Graham holding, the court concluded that Congress cannot devolve its power to draw classifications based on alienage and permit the states to violate the Equal Protection clause.61 If states are permitted to promulgate different rules regarding alien status and the receipt of federally supported welfare benefits, then divergent policies from state to state would emerge and contradict Congresss authority to establish uniform rules for nationalization.62 The conflict between these two cases is but a microcosm of the current debate.63 Some courts hold that states which adopt federal policies effectuate the national immigration standards set forth in PRWOA, while others find such devolution unconstitutional, ruling that state laws creating discriminatory classifications based on alienage should face strict scrutiny.64

See id. at 1257; see also S haplan, supra note 53, at 349. Soskin, 353 F.3d at 1255. 58 Id. 59 Aliessa v. Novello, 754 N.E.2d 1085, 1098 (N.Y. 2001). 60 Id. at 1088. 61 Id. at 1098. 62 Id. at 1095-96; see Hartley, supra note 34, at 112, 115. 63 See generally Hartley, supra note 34, at 110-15, 150 (providing an overview of the academic debate and discussing the level of scrutiny a state should receive when they adopt a law Congress attempted to devolve).
57 64 Compare Pimentel v. Dreyfus, 670 F.3d 1096, 1106 (9th Cir. 2012) (holding that no equal protection violation occurred when Washington defunded its state food assistance program thereby leaving aliens not meeting PRWORAs eligibility requirements without federal or state aid), S oskin v. Reinertson, 353 F.3d 1242, 1246 (10th Cir. 2004), Hong Pham v. S tarkowski, 16 A.3d 635, 662-63 (Conn. 2011) (concluding that the state law, which provides assistance to individuals displaced by PRWORAs eligibility requirements, doe s not require the state to use their own funds to provide the displaced individuals with equal coverage); Kharpunsky v. Doar, 909 N.E.2d 70, 77 (N.Y. 2009) ([T] he right to equal protection does not require the S tate to create a new public assistance prog ram in order to guarantee equal outcomes under wholly separate and distinct public benefit programs. Nor does it require the

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II. Finch v. Commonwealth Health Insurance Connector Authority A. Facts In 2006, with the stated purpose of reducing uninsurance in the [C]ommonwealth, the Massachusetts Legislature enacted Commonwealth Care.65 The program is administered by the Commonwealth Health Insurance Connector Authority (Connecter).66 In its capacity as administrator, the Connecter is responsible for facilita[ting] the availability, choice and adoption of private health insurance plans to eligible individuals . . . .67 Funding for Commonwealth Care comes from both state and federal sources.68 Massachusetts created the Commonwealth Care Trust Fund to receive funding from various taxes, employer contributions, and individual mandate penalties. 69 Federal funds come from Medicaid expenditures, and the feder al government treats Commonwealth Care as a component of the Massachusetts Medicaid

S tate to remediate the effects of PRWORA. ), Doe v. Commr of Transitional Assistance, 773 N.E.2d 404, 414-15 (Mass. 2002) (asserting that a supplemental program designed to ameliorate the effects of PRWORA does not invidiously discriminate against aliens and places no additional burdens on aliens beyond those contemplated by [PRWORA]), Guaman v. Velez, 23 A.2d 451, 468 (N.J. S uper. Ct. App. Div. 2011) (holding a rational basis test should apply to a New Jersey law which adopted PRWORAs five year residency requirement in relation to the New Jersey Medicaid program), and Avila v. Biedess, 78 P.3d 280, 282 (Ariz. App. Ct. 2003), depublished by , 85 P.3d 474 (2004), cert. denied sub. nom. , Kurti v. Biedess, 542 U.S. 942 (2004) (ruling that Arizonas state -funded portion of a health insurance premium program did not violate equal protection by imposing PRWORAs five year residency requirement for aliens as a condition of eligibility), with Aliessa , 754 N.E.2d at 1098, Ehrlich v. Perez, 908 A.2d 1220, 1233 (Md. 2006) (concluding that PRWORA does not proscribe a uniform rule that states may choose to comply with, and thus strict scrutiny applies to state action viewed as discriminating against aliens and sub classes of aliens), Korab v. McManaman, 805 F.Supp.2d 1027, 1037 (D. Haw. 2011) (ordering that strict scrutiny review applied to aliens challenge that a supplemental, state -funded, health insurance program discriminated based on alienage). 65 Commonwealth Care Health Insurance Program, ch. 58, 45 2006 Mass. Acts 113, 113 (codified as amended at M ASS. G EN. LAWS ch. 118h, 2 (2006)).
66 See Brief of Defendants at 2, Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262 (Mass. 2011) (No. S JC-10748).

M ASS. G EN. LAWS ch. 176Q, (2)(a) (2010). Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262, 1266-67 (Mass. 2011). 69 Id. The penalty is assessed through the residents tax return. Ch. 58, 12, 2006 Mass. Acts at 94-95. If the resident is statutorily required to obtain insurance, but fails to do so or indicate they have creditable coverage on their return, the resident loses their tax credit. Id.; see also Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation, 49 WM . & M ARY L. REV . 229, 239-44 (2007).
68

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Program for purposes of calculating federal reimbursement. 70 The Legislature initially permitted all residents, assuming they qualified, to participate in Commonwealth Care.71 This included aliens who were not eligible for federal funding under PRWORA. 72 Absent federal reimbursement, the Commonwealth assumed one hundred per cent of the costs of providing Commonwealth Care subsidies to federally ineligible aliens.73 Federal reimbursement provided approximately 50%and 62%of expenditures in 2009 and 2010 respectively. 74 On August 7, 2009, the legislature changed the eligibility requirements for Commonwealth Care to conform with PRWORAs eligibility restrictions.75 Consequently, Commonwealth care dropped 29,000 individuals from coverage and denied enrollment to 14,000 more.76 To remedy these large-scale denials, the legislature created a new program Commonwealth Care Bridge (Commonwealt h Bridge).77 Commonwealth Bridge provided a form of insurance for individuals previously covered by Commonwealth Care, who subsequently lost eligibility based on the new requirements.78 The plaintiffs in this case were resident aliens denied acceptance into Commonwealth Care due to the new eligibility requirements.79

70 Brief of the Commonwealth of Mass., Intervener-Appellee, Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262 (Mass. 2011) (No. S JC -10748). 71

Ch. 58, 45, 2006 Mass. Acts at 114; Finch , 946 N.E.2d at 1267. 946 N.E.2d at 1267. 73 Id. 74 Id. 75 Id. The relevant section provides:
72 Finch ,

(a) Notwithstanding any general or special law to the contrary and except as provided in subsection (b) or (c), an eligible individual pursuant to section 3 of chapter 118H of the General Laws shall not include a person who is not eligible to receive federally -funded benefits under sections 401, 402 or 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104 193, as amended, for fiscal year 2011. 2010 Mass. Acts 686. Brief of the Commonwealth of Mass., Intervener-Appellee at 8-9, Finch , 946 N.E.2d 1262 (No. S JC-10748). 77 Finch , 946 N.E.2d at 1267-68. 78 Id. 79 See id. at 1268 n.5. Additionally, some plaintiffs are eligible for neither program. Those include federally-ineligible aliens who have resided in Massachusetts for less than six months; they are restricted from accessing Commonwealth Care due to their federal status, and are denied enrollment in Commonwealth Bridge based on the six month residency requirement. Id.; see also M ASS. GEN. LAWS ch. 118H, 3(a)(1),(2) (explaining the residency requirement for
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B. Courts Opinion The majority opinion began by determining whether alienage is a suspect class under the Massachusetts Constitution. 80 The Court concluded that the guarantee of equality under the law for all persons regardless of sex, race, color, creed, or national origin81 did not extend to aliens.82 The Court found that in 1976 when the legislature amended Article I to include sex a s a suspect classification deserving of strict scrutiny the voters expressed their knowledge of equal protection jurisprudence and extended the scope of heretofore recognized suspect classifications. 83 The Court held that the omission of alienage as one o f these suspect classes was not driven by ignorance or mistake [but] rather . . . [was the voters] conscious choice.84 Thus, the Court declined to include alienage classifications as suspect according to the provisions of the Massachusetts constitution.85 The Court ruled that the legislatures decision to adopt PRWORAs eligibility requirements does not mandate a rational basis review simply because they are an expression of federal policy. 86 The Court distinguished this decision from a closely analogous case: Doe v. Commissioner of Transitional Assistance.87 Doe held that the Massachusetts legislature can

resident aliens to be eligible for health benefits). This six month residency restriction is in harmony with Commonwealth Cares goals because this ensures that enrollees have not moved into the [C]ommonwealth for the sole purpose of securing health insurance . M ASS. G EN. LAWS ch. 118H (1) (2006). Finch , 946 N.E.2d at 1268-69. I. 82 Finch , 946 N.E.2d at 1272. 83 Id. (noting the incorporation of gender to equal protection jurisprudence). 84 Id. 85 Id. at 1272. The plaintiffs did not argue that any other provision of the Massachusetts constitution dictates that alienage is a suspect class for purposes of equal protection analysis, and therefore the court considered the claim waived. Id. at 1273. 86 Id. at 1276-77. 87 See id. at 1274-76 (citing Doe v. Commr of Transitional Assistance, 773 N.E.2d 404 (Mass. 2002)). In Doe, plaintiffs became ineligible for a jointly funded federal-state program, when Massachusetts adopted PRWORAs five year residency requirement. Doe, 773 N.E.2d at 40608. In response, Massachusetts voluntarily established a supplemental program which provided essentially the same amount of aid for those who qualified, the difference being that all funds came from state coffers and enrollees needed to satisfy a six month residency requirement prior to eligibility. Id. at 407. The S JC determined that the states adoption of PRWORAs eligibility requirements and the enactment of a supplemental program warranted rational basis review because the classification was one of residency not alienage; the legislatures intent was clearly non-invidious; and its effect mitigate[ed] the harm to qualified alien families that might otherwise be without . . . assistance for five years under
81 M A. C ONST. art. 80

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escape strict scrutiny review for discriminatory alienage classifications when they adopt compatible federal policies regarding aliens and their eligibility for public benefits.88 However, in this situation, the majority viewed the adoption of PRWORAs eligibility requirements as noncompulsory.89 It found that Commonwealth Care is a wholly funded s tate program and that Congress is indifferent to the use of State funds in providing public benefits to aliens, so long as federal funds are not used to subsidize federally- ineligible aliens healthcare.90 The Court reviewed the specifics of PRWORAs clas sifications and determined that they import impermissible discriminations based on national origin a violation of the Massachusetts Constitution.91 Accordingly, the legislatures adoption of PRWORAs classifications must be subject to strict scrutiny. 92 In dissent, Justice Gants took issue with the majoritys view not that aliens are entitled to equal protection under the law but that in this case the Commonwealth is constitutionally required to [replace the lost Federal funds] with State funds.93 Justice Gants concluded that the s tates decision to exclude is entitled rational basis review, unless the plaintiffs can establish that the s tate is expending substantially less per capita in State monies for medical care for federally ineligible aliens than for similarly situated Commonwealth Care participants. 94 Thus, the dissent employed a rebuttable presumption that the s tates imposition of federal classifications in Commonwealth Care is initially entitled to rational basis review.95 Plaintiffs would have to show that the state is not providing equal
PRWORA. Id. at 414. id. at 409. Finch , 946 N.E.2d at 1277. 90 Id. at 1276. 91 Id. at 1279-80; see also M A. CONST. art. I. For instance, PRWORA allows persons who are members of the Hmong or Highland Laotian tribe at the time that the tribe rendered assistance to United S tates . . . during the Vietnam era and American Indians born in Canada. 8 U.S .C. 1612(a)(2)(G), (a)(2)(k) (2006). However, the same benefits extended to these classes of aliens are not extended to similarly situated aliens from Germany, Colombia, or Kenya. See, e.g., Finch , 946 N.E.2d at 1279 (explaining that eligible aliens include very specific types of aliens while aliens from countries such as Germany, Colombia, or Kenya may not receive the same status). Thus, PRWORA employs impermissible classifications based on national origin: an inherently suspect class according to the Massachusetts Constitution. Finch, 946 N.E.2d at 1279; M A. CONST. art. I. (Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.).
89 92 Finch , 946 N.E.2d at 1276; Commonwealth v. King, 372 N.E.2d 196, 206 (Mass. 1977) (concluding that every classification listed in the Massachusetts Constitution is inherently suspect and therefore subject to strict scrutiny review). 93 88 See

Finch , 946 N.E.2d, at 1286 (Gants, J., dissenting). at 1288. 95 See id.
94 Id.

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financial assistance, in terms of state expenditures, to federally-eligible and ineligible individuals alike.96 If plaintiffs can demonstrate this situation, then strict scrutiny is used.97 According to Gants, the focus of the inquiry should be on state expenditures, rather than the total amount of funding available to participants in Commonwealth Care. 98

ANALYSIS
III. The Massachusetts Legislatures adoption of PRWORAs Eligibility Restrictions Furthered National Immigration Policy by Directly Effectuating Congressional Intent A. Commonwealth Care Should Be Considered a Federal-State Cooperative Welfare Program Because it is Functionally Indistinguishable from Medicaid The SJC relied on the distinction between a state-operated program and the joint federal-state program.99 The court asserted that the adoption of PRWORAs eligibility restrictions was not explicitly or implicitly authorized by the federal government because Commonwealth Care is a wholly funded state program.100 However, Commonwealth Cares operation is more akin to a joint federal-state cooperative than an entirely state-administered welfare benefit and thus should be guided by precedent analyzing such cooperative programs.101 The largest, and perhaps most comprehensive, welfare program in the United States is Medicare.102 Federal and state governments jointly fund Medicare.103 A state voluntarily establishes a Medicaid program , and upon

id. See Graham v. Richardson, 403 U.S . 365, 382 (1971) (concluding that S tate funded benefit programs must be available to citizens and aliens on the same terms).
97

96 See

946 N.E.2d at 1287-88 & n.10 (Gants, J., dissenting). 1274-75 & n.16 (explaining why the acceptance of Federal funds affects the standard of review). 100 Id. at 1280. 101 Contra Anna C. Tavis, Note, Healthcare for All: Ensuring States Comply with the Equal Protection Rights of Legal Immigrants, 51 B.C. L. REV . 1627, 1652-53 (2010).
99 Id. at 102 See T ERESA A. COUGHLIN ET AL ., MEDICAID S INCE 1980 at 8-9 (1994) (explaining the vast size and complex nature of Medicare).

98 Finch ,

See 42 U.S .C. 1396a (a)(1)-(17) (2006). Typical federal reimbursement for state administered Medicaid programs range between fifty and seventy percent of program costs. M ARK R. D ANIELS, M EDICAID REFORM AND THE A MERICAN S TATES 3 (1999). Therefore, inequalities exist in the national sense, because the level of coverage indiv iduals receive is largely dependent upon the state in which they reside. See COUGHLIN, supra note 102, at 69. (recognizing the criticism amongst commentators that Medicaid gives considerable leeway to

103

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approval by the federal government, receives federal grants.104 Participating states then administer the program including the establishment of eligibility requirements, so long as those requirements do not fall below federal minimum standards. 105 Rather than a single homogen ous federal program, Medicaid is, in reality, a compilation of 51 uniquely different programs.106 While there is no direct federal statutory authorization for Commonwealth Care, and Massachusetts has a separate Medicaid program,107 the state still relies heavily on federal funds to administer Commonwealth Care.108 The Massachusetts government recognizes that Commonwealth Care is a federal-state cooperative.109 In fact, the Connector has a statutory duty to seek and receive any grant [of] funding from the feder al government in order to fund Commonwealth Care. 110 Pursuant to this duty, the Connector established a regulation which required the Secretary of Health and Human Services 111 to seek to obtain maximum federal reimbursement for all expenditures made under [t he] provisions of Commonwealth Care.112 In 2010, Commonwealth Care received $419.6 million of its $723 million budget from federal reimbursements. 113 This figure demonstrates that Commonwealth Cares funding is qualitatively similar to Medicaid because state Medicaid programs receive somewhere between fifty and seventy percent of their funding from the federal
states and produc es a high level of variance in coverage across the nation). 1396b (a)(1), (2). 1396c (authorizing the federal government to revoke the states ability to receive matching federal funds if the states Medicaid program falls below the minimum levels required in 42 U.S .C. 1396a). 106 COUGHLIN, supra note 102, at 8. 107 See generally Roy Weiner, Universal Health Insurance Under State Equal Protection Law, 23 W. NEW ENG. L. REV . 327, 359-63 (2002) (providing an overview of Mass Healththe Massachusetts Medicaid programand other government health insurance programs).
105 See 108 Federal reimbursement fo r Commonwealth Care participants amounted to approximately 61.59% of its operating budget for fiscal year 2010. Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262, 1267 (Mass. 2011). 109 See Health Reform Facts and Figures, M ASSACHUSETTS HEALTH CONNECTOR (Fall 2011), available at https://www.mahealthconnector.org/portal/binary/com.epicentric. contentmanagement.servlet.ContentDeliveryServlet/Health%2520Care%2520Reform/Facts%2 520and%2520Figures/Facts%2520and%2520Figures.pdf [hereinafter Facts and Figures]. 104 See

M ASS G EN. LAWS ch. 176Q, 3(c) (2010). M ASS. G EN. LAWS c h. 118E, 1 (2010 ) (The executive office for health and human services [is] the single state agency responsible for the administration of programs of medical assistance and medical benefits . . . .). 112 Commonwealth Health Insurance Connector Act, ch. 58, 112, 2006 Mass. Acts 177, 189. 113 Brief of the Commonwealth of Mass., Intervener-Appellee at 8, Finch , 946 N.E.2d 1262 (No. S JC-10748); Facts and Figures, supra note 109.
111

110

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government.114 Therefore, fiscally, Commonwealth Care is not simply a state program that the federal government is indifferent towards. Since Medicaid Programs receive rational basis review when they adopt PRWORAs eligibility requirements, Commonwealth Care should as well.115 Given the fiscal nature of Commonwealth Care, its autonomy from federal control does not defeat the proposition that it should be considered a federal-state cooperative.116 Medicaid gives states the ability to increase or decrease the level of coverage offered so long as those restrictions do not fall below the federal minimum standards. 117 In this situation, Commonwealth Care created r equirements that initially provided increased funding for aliens ineligible to receive federal funding. 118 Similar to a Medicaid program, the state then determined that offering an increased level of coverage for federally ineligible aliens was not economically feasible.119 This led the legislature to adopt PRWORAs eligibility requirements; however, at no time, did those standards fall below that required by federal law.120 Additionally, the federal government treats Commonwealth Care as a component of the state s Medicaid program for purposes of reimbursement.121 The treatment and cognizance the Massachusetts legislature displayed towards PRWORA, coupled with the creation of a supplemental program, illustrates that Commonwealth Care is functionally equivalent to a federal-state cooperative public benefit program, and should be analyzed under similar case law. 122 B. The SJC Has Applied Rational Basis Review to State Legislative Decisions Adopting PRWORAs Eligibility Requirements The SJC treated this case as one of first impression despite the fact that

note 103. See infra Part III.B. 116 If this proposition were accepted by the S JC, then Commonwealth Care could have been deemed an offshoot of Medicaid and its restrictions could have been viewed under a rational basis standard. See Matthews v. Diaz, 426 U.S . 67, 81 (1976) (asserting that Medicaid is federally administered and immigration restrictions within the program should be given review under a deferential standard).
115

114 D ANIELS , supra

See 42 U.S .C. 1396d(a); COUGHLIN, supra note 102. M ASS G EN. LAWS ch. 118H, 3 (2006). 119 S hor, supra note 2. 120 2010 Mass. Acts 686 (incorporating PRWORAs requirements which serve as the federal minimum that states must comply with when using federal funds) . 121 Brief of the Intervener-Appellee, Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262 (2011) (No. S JC-10748).
118 122

117

See infra Part III.B.

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it had already determined that rational basis review applied to the adoption of PRWORAs eligibility restrictions in a case on similar facts.123 Notwithstanding this precedent, the Court, through clever judicial interpretation, determined that Doe applies rational basis review to congressional actions that mandates how the states are to administer benefits.124 However, this case concerns a non-compulsory rule that the Commonwealth chose to adopt.125 The two cases, however, are similar on multiple levels: (1) the benefit program is jointly funded by federal and state resources; (2) the adoption of PRWORAs eligibility restrictions causes certain aliens to become ineligible; and (3) Massachusett s enacts a supplemental program designed to give some assistance, funded with only state monies, to those displaced by PRWORA. 126 The only difference between the two laws is that the program at issue in Doe involved its status as an officially joint funded federal-state cooperative, while this case deals with a de jure state program.127 Other state courts have held their legislatures adoption of PRWORAs eligibility requirements valid.128 In Guaman v. Velez , the New Jersey Superior Court ruled that the adoption of PRWORAs five -year eligibility restriction, while not mandated, mirrors federal objectives, corresponds to an identifiable congressional policy, and operate[s] harmoniously within the federal program.129 Like Commonwealth Bridge, the New Jersey statute allows the state to effectuate national policy through the adoption of federal eligibility requirements due to the strong relationship between the federal-state program and the wholly funded state program. 130 This correlation transforms the wholly funded state program into an offshoot of the jointly funded federal-state program, and therefore adoption of federal

See Doe v. Commr of Transitional Assistance, 773 N.E.2d 404, 414 -15 (Mass. 2002). Finch , 946 N.E.2d at 1274-75. 125 Id. at 1275. 126 Compare id. at 1265-67, with Doe, 773 N.E.2d at 406-07. In this case, Commonwealth Bridge does not deny aliens Equal Protection because the state is simply denying to spend state resources to make up for lost federal funding. The record does not show that the state is spending more state resources on citizens as opposed to aliens. Finch , 946 N.E.2d at 1286 (Gants, J., dissenting).
124

123

supra note 126 and accompanying text. v. Velez, 23 A.3d 451, 468 (N.J. Super. Ct. App. Div. 2011); Avila v. Biedess, 78 P.3d 280, 287 (Ariz. App. Ct. 2003) depublished by , 85 P.3d 474 (2004), cert. denied sub. nom., Kurti v. Biedess, 542 U.S . 942 (2004).
128 Guaman

127 See

Guaman, 23 A.3d, at 468 (quoting Plyler v. Doe, 457 U.S . 202, 226 (1982). Id. In this instance the jointly funded state program was a Medicaid program and plaintiffs were denied because they were not residents for more than five years. Id. Commonwealth Care is analogous to this situation despite the fact that officially it is not a federally authorized program because its funding mechanism functions similarly.
130

129

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policies is permissible.131 IV. The Practical Result of This Holding Nullifies and Contravenes Congressional Intent A. By Holding That Strict Scrutiny Applies to the Exclusion of Aliens From Commonwealth Care The SJC has Required the States to Remediate the Effects of PRWORA The SJC failed to consider that Commonwealth Care is a federal-state cooperative, and if they did, the state constitutional questions would be less relevant and existing precedent would lead to a different result. 132 In Soskin, the Tenth Circuit reviewed the incorporation of PRWORAs eligibility requirements into Colorados Medicaid program and concluded that rational basis review was appropriate. 133 The Soskin court noted that this case falls somewhere between the holdings in Matthews and Graham.134 Despite the discretion that states ret ain under PRWORAs provisions, their adoption of its policies can still effectuate Congressional policy. 135 When the Massachusetts legislature adopted the provisions of PRWORA, it operated within the permissible boundaries set by Congress.136 PRWORA permits states to provide coverage to unqualified aliens at their own expense.137 When a state chooses this option, they make [their] own assessment of whether [they] can bear the burden of providing [such] optional coverage.138 When the financial burden of

131 See id. at 469 (Here, the means selected by [the state]adopting the federal eligibility criteria for aliens bears a real and substantial relationship to PRWORA's compelling governmental interest of assuring that aliens be self-reliant in accordance with national immigration policy . . . .) (quoting N.J. S TAT. A NN. 30:4J-16 (West 2006)). 132 The plaintiff in this action originally filed suit alleging a federal Equal Protection violation, but once the case was removed to federal district court, the plaintiffs dropped their federal claims, perhaps recognizing their futility, and amended the complaint to include only state constitutional questions. See Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262, 1268 (Mass. 2011).

See id. at 1256. Id. at 1254; see supra Part I.A. 135 Finch , 946 N.E.2d at 1255. But see Tavis, supra note 101, at 1665 (arguing that state funded healthcare programs are not operating within the bounds of federal statutes and are an independent legislative judgment severable from the goals associated with federal classification).
134 136 See 8 U.S .C. 1622 (a) (2006) (Notwithstanding any other provision of law . . . a S tate is authorized to determine the eligibility for any S tate public benefits of an alien who is a qualified alien . . . .). 137 138

133

See id. Soskin, 353 F.3d at 1255.

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optional coverage becomes economically infeasible, and the state decides against over inclusive coverage, they are addressing national concerns namely that individual aliens [should] not burden the public benefits system.139 Ergo, if Massachusetts is operating a joint federal-state program,140 then its inclusion of the federal classification scheme is furthering a national policy.141 Even though differences in the level of coverage afforded to legal aliens will arise depending on the parti cular states legislative determinations, such divergence is acceptable when effectuating congressional policy and does not undermine uniformity within immigration policy.142 The SJC believed that by enacting PRWORA, Congress intended to shift the burden of supplying aliens with benefits from the Federal Government to the states.143 Such an interpretation would require Massachusetts to provide aliens with lost federal funds . This requirement circumvents Congress s policy that such persons should not receive federal funding until they have met the requirements of PRWORA. 144 As Justice Gants noted, this interpretation requires Massachusetts to replace lost federal funding with their own dollars.145 This assertion cannot be correct because the Courts formulation of PRWORA conflicts with Congresss statement of national policy.146 Congress sought to promote selfsufficiency amongst newly arriving aliens. 147 From this plain language, it is difficult to see that Congress intended for the states to shoulder the burden of supplying aliens with benefits they themselves were unwilling to provide.148 Rational basis is appropriate for this classification because the states are not require[d] to remediate the effects of PRWORA.149 When Congress enacted PRWORA, they unambiguously created a

See 1601(4). See supra Part III.A. 141 See e.g., 1622(a). 142 Cf. Martinez-Lopez v. Gonzales, 454 F.3d 500, 502 (5th Cir. 2006) (concluding that conviction of a felony within a state can still subject aliens to deportation under the aggravated felony rule even though such a conviction under federal law would be a misdemeanor and not subject the individual to deportation). 143 See Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262, 1276 n. 18 (Mass. 2011).
140 144 145

139

1601(7). Finch , 946 N.E.2d at 1285 n. 9 (Gants J., dissenting). 146 See 1601. 147 1601(7). 148 S oskin v. Reinertson, 353 F.3d 1242, 1255 (10th Cir. 2004). 149 Khrapunskiy v. Doar, 909 N.E.2d 70, 77 (N.Y. 2009).

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statutory scheme designed to give states discretion to implement policies that further national immigration policy. 150 When construing any statute, first courts should analyze the plain text to garner its meaning. 151 If a meaning can be garnered from the text, legislative intent prevails over other forms of statutory construction.152 PRWORA begins with a statement of national policy, which indicates that United States residents should be self- sufficient, and despite [that] principle . . . aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates.153 This statement of policy interplays with PRWORAs specific provision which grant states the power to proh ibit 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 . . . .154 Taking these sections together, the logical conclusion is that Congress sought to grant each state the power to enact laws that serve a specific state goal, such as utilizing PRWORA to retain the fiscal integrity of Commonwealth Care.155 The inclusion of the terms Federal, State, and local governments in PRWORAs statements of national policy 156 indicate Congress was cognizant of the fact that not all welfare benefits are distributed at the federal level, and that state legislatures should be invited to participate, and help effectuate national immigration policy.157 Massachusetts decided participation was proper considering the strained fiscal climate, and determined that aliens would not be provided with benefits that the federal government was unwilling to provide.158 Considering PROWRAs language, one can see that Congress would support this legislative decision because Massachusetts statutorily incorporated federal immigration policy and contributes to uniformity within immigration law.159 The Graham court was concerned that states would undermine uniformity if states could establish laws that diverged from congressional policies.160 They cautioned that divergent residency

supra notes 133-35 and accompanying text. v. Mt. Hood S tages, Inc., 437 U.S . 322, 330 (1978). 152 Johns-Manville Corp. v. United S tates, 855 F.2d 1556, 1559 (5th Cir. 1988) (citing Natl R.R. Passenger Corp. v. Natl Assn of R.R. Passengers, 414 U.S . 453, 458 (1974)).
151 Greyhound Corp. 153 154

150 See

8 U.S .C. 1601(3) (2006) (emphasis added). Id. at 1624(a). 155 See Chang, supra note 36, at 367. 156 1601(3). 157 See 1624(a). 158 S hor et. al., supra note 2. 159 See supra notes 150-55 and accompanying text. 160 See Graham v. Richardson, 403 U.S . 365, 382 (1971).

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requirements would promote an influx of aliens in states that have hospitable welfare policies while discouraging residence in states with restrictive ones.161 Assuming that a strict scrutiny review would render Commonwealth Cares eligibility requirements invalid, the SJC has created just the situation contemplated by the Graham court.162 Because Massachusetts will be required to replace lost federal funding, aliens will have a pecuniary reason to reside within the Commonwealth. 163 States that do not have state health insurance programs and only have a Medicaid program, will be permitted to adopt PRWORAs eligibility requirements; thus requiring aliens to reside within the United States for five years before they become eligible for Medicaid premium assistance. 164 Therefore, Massachusetts is a more hospitable place to reside if you are an alien denied federal funding due to PRWORA; you can pack up shop, move to Massachusetts, and receive federal benefits at the states expenseyou would otherwise be ineligible for if residing in Kansas or Maine or California, etc.165 But by adopting PRWORA, Massachusetts has harmonized federal immigration law and state law, fostering a uniform national immigration law and effectuating congressional intent. 166 B. The SJC Obviated the Possibility of Temporary and Practical Budgetary Solutions for Commonwealth Care. The first incarnation of Commonwealth Careproviding aliens with benefits regardless of their eligibility to receive federal funding represents Massachusetts generosity and commitment to providing universal access to healthcare.167 This version of Commonwealth Care was possible because the state decided to subsume the costs for aliens who could not receive matching federal dollars. 168 In fact, one federallyineligible alien enrolled in Commonwealth Care cost Massachusetts twice as much as enrolling one federally -eligible person.169 However, strict scrutiny review of the modification to Commonwealth Cares eligibility

id. at 378-80. See id. at 366, 376; Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262, 1274, 1276 n.18 (Mass. 2011).
162

161 See

See Finch , 946 N.E.2d at 1285 n.9 (Gants J., dissenting). S oskin v. Reinertson, 353 F.3d 1242, 1246 (10th Cir. 2004) (permitting state adoption of PRWORAs eligibility requirements into its Medicaid program). 165 See Finch , 946 N.E.2d at 1267; supra note 144 and accompanying text. 166 See supra Part IV.A. 167 See M ASS G EN. L AWS ch. 118h, 1, 3 (2006) (granting eligibility to Commonwealth Care with no mention of duration of residency or PRWORA); Finch , 946 N.E.2d at 1267.
164 168 169

163

Finch , 946 N.E.2d at 1267. Id.

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requirements, will likely result in its invalidation, forcing the state to include aliens who cannot receive federal reimbursement. 170 The ramifications of ruling that strict scrutiny review must apply when a state adopts PRWORAs eligibility requirements is not confined to the esoteric world of scholarly debate or even the practical world of Equal Protection litigation.171 Rather, the consequences will reach the citizens of Massachusetts. Massachusetts, like the rest of the country, has experienced worsening economic conditions.172 This general economic downturn has resulted specifically in high rates of unemployment. 173 Consequently, the newly unemployed find themselves w ithout employer-sponsored health insurance plans, and they must turn to state-sponsored programs, like Commonwealth Care to plug their gap in coverage. 174 Therefore, Massachusetts can expect increased enrollment in Commonwealth Care. 175 Additionally, Massachusetts is constitutionally required to retain a balanced budget.176 Due to this provision, the state, in the face of extreme fiscal challenges accompanying the national economic downturn, amended Commonwealth Cares eligibility requirements. 177 The Legislature sought to conserve scarce fiscal resources in the face of potentially little room to absorb additional enrollment in Commonwealth Care.178 But the SJC did not account for these financial realities, and the state will need to look to other alternatives to salvage its budget.179

170 Commonwealth v. Weston W., 913 N.E.2d 832, 842 (Mass. 2009) (To pass the strict scrutiny standard, the ordinance must be narrowly tailored to further a legitimate and compelling governmental interest and be the least restrictive means available to vindicate that interest.); see Graham v. Richardson, 403 U.S. 365, 380 (1971) (holding that fiscal concerns are not a compelling government interest for state laws concerning alienage classifications). 171 See infra notes 174-80 and accompanying text. 172 S TEPHANIE A NTHONY ET AL ., CTR. FOR HEALTH L AW AND E CON., UNIV . OF M ASS . M ED. S CH., THE M ASSHEALTH WAIVER: 2009-2011 . . . AND BEYOND 24 (2009), available at http://www.massmedicaid.org/~/media/MMPI/Files/MassHealth%20Waiver%202009%20to%2 02011%20and%20Beyond.pdf. 173 Megan Woolhouse, State Lost More Jobs in Sept.: But Unemployment Rate Declines Slightly , BOS. G LOBE , Oct. 21, 2011, at B5, available at P ROQ UEST D OC. ID. 899291188. 174 A NTHONY ET AL ., supra note 172, at 24; S TAN D ORN ET AL ., T HE URBAN INST., M EDICAID, S CHIP AND ECONOMIC D OWNTURN: P OLICY CHALLENGES AND P OLICY RESPONSES 8 (2008), available at http://www.kff.org/medicaid/upload/7770.pdf. 175 See A NTHONY ET AL ., supra note 172, at 24. 176 M A. CONST. art. LXIII 2; New Eng. Div. of Am. Cancer Socy v. Commr of Admin., 769 N.E.2d 1248, 1257 (Mass. 2002). 177 S hor 178

et al., supra note 2. A NTHONY ET AL ., supra note 172, at 24. 179 See D ORN ET AL ., supra note 174, at 13-14 (noting challenges state legislatures might face

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The result is a fiscally strapped legislature, forced to trim their budgets in order to provide federally ineligible aliens with more state resources then they spend on the federally eligible citizens. 180 The state must spend more on federally ineligible aliens than they do for enrollees who receive federal funding.181 This holding forecloses the option that the legislature sought to conserve resources until they were fiscally in a position to restore full benefits once the economy rose and unemployment dropped.182 This legislative determination might appear inequitable, but [t]he task of classifying persons for medical benefits . . . inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line.183

CONCLUSION
The Massachusetts legislature concluded that the best way to face a budgetary shortfall, and still maintain its groundbreaking universal healthcare plan, was to implement federal eligibility requirements and limit the coverage provided to certain legal aliens. This decision should be entitled to rational basis review considering the nature of the funding mechanisms employed by Commonwealth Care. This functional distinction ameliorates the effects of Grahams draconian holding and would assure state legislatures that compliance with uniform national policies will not doom their laws to invalidity. Additionally, state courts have confronted and upheld laws similar to this case including, and most importantly, th e SJC. Thus, when courts are confronted with a states denial of public benefits to federally ineligible aliens, they should analyze the funding mechanisms to determine if the case is governed by Graham, and warrants application of strict scrutiny , or if the program does not invoke Graham and should receive rational basis review. In tough economic times, states must make difficult choices in allocating their resources. When a state chooses to effectuate congressional intent, courts should review the program only to determine if a rational justification exists. Otherwise, courts may prevent state legislatures from retaining balanced budgets and entire healthcare programs could face fiscal insolvency.

when confronting the economic downturn).

180 181

See supra Part IV.A. See supra notes 168-69 and accompanying text. 182 See supra notes 175-77 and accompanying text. 183 Matthews v. Diaz, 426 U.S . 67, 83 (1976).