Tony Korab v. Patricia McManaman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONY KORAB; TOJIO CLANTON; No. 11-15132

KEBEN ENOCH, each individually

and on behalf of those persons D.C. No.

similarly situated, 1:10-cv-00483-

Plaintiff-Appellees, JMS-KSC

v.

OPINION

KENNETH FINK, in his official

capacity as State of Hawai‘i,

Department of Human Services,

Med-QUEST Division Administrator

and PATRICIA MCMANAMAN, in her

official capacity as Director of the

State of Hawai‘i, Department of

Human Services,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Hawai‘i

J. Michael Seabright, District Judge, Presiding

Argued and Submitted

September 18, 2012—San Francisco, California

Filed April 1, 2014

2 KORAB V. FINK

Before: M. Margaret McKeown, Richard R. Clifton, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Bybee;

Dissent by Judge Clifton

SUMMARY*

Civil Rights/Medicaid

The panel vacated the district court’s grant of a

preliminary injunction in a class action suit brought on behalf

of nonimmigrant aliens residing in Hawai’i under a Compact

of Free Association with the United States who alleged that

Hawai’i’s new health plan, Basic Health Hawai’i, violated the

Equal Protection Clause of the Fourteenth Amendment

because it provided them with less health coverage than what

Hawai’i provided to citizens and qualified aliens who were

eligible for federal reimbursements through Medicaid.

The panel noted that in enacting comprehensive welfare

reform in 1996, Congress rendered various groups of aliens

ineligible for federal benefits and also restricted states’ ability

to use their own funds to provide benefits to certain aliens.

See 8 U.S.C. § 1601 et seq. The panel held that Hawai’i has

no constitutional obligation to fill the gap left by Congress’s

withdrawal of federal funding under the cooperative-state-

federal Medicaid plan. The panel therefore vacated the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KORAB V. FINK 3

district court’s grant of a preliminary injunction preventing

Hawai’i from reducing state-paid health benefits for

nonimmigrant aliens residing in Hawaii under the Compact,

holding that Hawai’i was not obligated to backfill the loss of

federal funds with state funds and its decision not to do so

was subject to rational-basis review.

Concurring and concurring in the judgment, Judge Bybee

wrote separately to explain why the law of alienage remains

so unclear and how the court might better approach it. Judge

Bybee wrote that the equal protection principle announced in

Graham v. Richardson, 403 U.S. 365, 375 (1971), has proven

unsustainable. He would adopt a preemption analysis as the

appropriate analysis for evaluating alienage cases.

Dissenting, Judge Clifton wrote that the federal

government is permitted to discriminate against aliens in a

way that the state government is not and that established

precedent required the court to apply strict scrutiny to

Hawai’i’s exclusion of the plaintiff class from the Medicaid

programs.

COUNSEL

Lee Ann N.M. Brewer (argued) and John F. Molay, Deputy

Attorneys General, Honolulu, Hawai‘i for Defendant-

Appellant.

Paul D. Alston (argued), Zachary A. McNish, and J. Blaine

Rogers, Alston, Hunt, Floyd, & Ing, Honolulu, Hawai‘i;

Catherine Leilani Aubuchon and Margery S. Bronster,

Bronster Hoshibata, Honolulu, Hawai‘i; M. Victor

4 KORAB V. FINK

Geminiani, Lawyers for Equal Justice, Honolulu, Hawai‘i, for

Plaintiffs-Appellees.

Susan K. Serrano, Honolulu, Hawai‘i for Amici Curiae

Japanese American Citizens League–Honolulu Chapter,

National Association for the Advancement of Colored

People–Honolulu Branch, and Kokua Kalihi Valley

Comprehensive Family Services.

OPINION

McKEOWN, Circuit Judge:

This case presents yet another challenge to the complex

area of state-funded benefits for aliens. In enacting

comprehensive welfare reform in 1996, Congress rendered

various groups of aliens ineligible for federal benefits and

also restricted states’ ability to use their own funds to provide

benefits to certain aliens. See 8 U.S.C. § 1601 et seq. As a

condition of receiving federal funds, Congress required states

to limit eligibility for federal benefits, such as Medicaid, to

citizens and certain aliens. For state benefits, such as the

Hawai‘i health insurance program at issue here, Congress

essentially created three categories of eligibility. The first

category—full benefits—requires states to provide the same

benefits to particular groups of aliens, including certain legal

permanent residents, asylees, and refugees, as the state

provides to citizens. Id. § 1622(b). Recipients in this

category also benefit from federal funds. Id. § 1612(b)(2).

The second category—no benefits—prohibits states from

providing any benefits to certain aliens, such as those who are

in the United States without authorization. Id. § 1621(a).

The third category—discretionary benefits—authorizes states

KORAB V. FINK 5

to determine the eligibility for any state benefits of an alien

who is a qualified alien, a nonimmigrant, or a parolee. Id.

§ 1622(a).

Within the third category are nonimmigrant aliens

residing in Hawai‘i under a Compact of Free Association

with the United States, known as COFA Residents.1 Although

this group was not eligible for federal reimbursement under

the cooperative state-federal Medicaid plan, Hawai‘i initially

included them in the state health insurance plans at the same

level of coverage as individuals eligible for federal

reimbursement under Medicaid, and Hawai‘i assumed the full

cost of that coverage. Then, in the face of declining revenues,

in 2010 Hawai‘i dropped COFA Residents from its general

health insurance plans and created a new plan with more

limited coverage—Basic Health Hawai‘i—exclusively for

COFA Residents and legal permanent residents who have

lived in the United States for less than five years. Haw. Code

R. § 17-1722.3-1. Hawai‘i did not adopt a plan for other

aliens excluded from federal coverage under the third

category.

In this class action suit on behalf of adult, non-pregnant

COFA Residents, Tony Korab, Tojio Clanton, and Keben

Enoch (collectively “Korab”) claim that Basic Health Hawai‘i

violates the Equal Protection Clause of the Fourteenth

1

The Republic of the Marshall Islands, the Federated States of

Micronesia, and the Republic of Palau have each entered into a Compact

of Free Association (“COFA”) with the United States, which, among other

things, allows their citizens to enter the United States and establish

residence as a “nonimmigrant.” Compact of Free Association Act of 1985,

Pub. L. No. 99-239, 99 Stat. 1770 (1986), amended by Compact of Free

Association Amendments Act of 2003, Pub. L. No. 108-188, 117 Stat.

2720; see also 48 U.S.C. § 1901 (joint resolution approving the COFA).

6 KORAB V. FINK

Amendment because it provides less health coverage to

COFA Residents than the health coverage that Hawai‘i

provides to citizens and qualified aliens who are eligible for

federal reimbursements through Medicaid. Korab does not

challenge the constitutionality of the federal law excluding

COFA Residents from federal Medicaid reimbursements.

Rather, the claim is that the prior, more comprehensive level

of state coverage should be reinstated so that COFA

Residents are on equal footing with those covered by

Medicaid.

We are sympathetic to Korab’s argument but cannot

accept the rationale. The basic flaw in the proposition is that

Korab is excluded from the more comprehensive Medicaid

benefits, which include federal funds, as a consequence of

congressional action. Congress has plenary power to regulate

immigration and the conditions on which aliens remain in the

United States, and Congress has authorized states to do

exactly what Hawai‘i has done here—determine the

eligibility for, and terms of, state benefits for aliens in the

narrow third category, with regard to whom Congress

expressly gave states limited discretion. Hawai‘i has no

constitutional obligation to fill the gap left by Congress’s

withdrawal of federal funding for COFA Residents.

The district court thought otherwise. As Hawai‘i put it in

its brief, “the district court ruled that the [Hawai‘i]

Department [of Human Services] is constitutionally required

to set up a state-only funded program that completely ‘fills

the void’ created by the Federal Welfare Reform Act’s

discrimination against aliens.” We vacate the district court’s

grant of a preliminary injunction preventing Hawai‘i from

reducing state-paid health benefits for COFA Residents

because Hawai‘i is not obligated to backfill the loss of federal

KORAB V. FINK 7

funds with state funds and its decision not to do so is subject

to rational-basis review.

BACKGROUND

I. THE WELFARE REFORM ACT AND ALIENS

As part of welfare policy reforms enacted in 1996,

Congress passed the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996 (“the Welfare

Reform Act” or “the Act”). Pub. L. 104-193, 110 Stat. 2105

(1996). Title IV of the Welfare Reform Act restricts public

benefits for aliens, based on the rationale that aliens should

“not depend on public resources to meet their needs, but

rather rely on their own capabilities and the resources of their

families, their sponsors, and private organizations.” 8 U.S.C.

§ 1601(2)(A). Congress declared the reforms to be “a

compelling government interest” that is “in accordance with

national immigration policy.” Id. § 1601(5)–(6).

With regard to federal benefits,2 Congress created two

categories of aliens: “qualified aliens,” who may be eligible

for federal benefits, and all other aliens, who are ineligible for

federal benefits. Id. §§ 1611–13, 1641. “Qualified aliens”

are defined as legal permanent residents, asylees, refugees,

certain parolees, and aliens who fall within other limited

2

The Welfare Reform Act defines “[f]ederal public benefit” in relevant

part as “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.” Id.

§ 1611(c)(1)(B).

8 KORAB V. FINK

categories specified in the statute.3 Id. § 1641(b)–(c). The

Act renders aliens who are not qualified aliens ineligible for

all federal public benefits, with only limited exceptions, such

as the provision of emergency medical assistance. Id.

§ 1611(b).

With regard to state benefits,4 such as Basic Health

Hawai‘i, Congress further subdivided aliens into three

categories: one category of aliens who are eligible for any

state public benefits (particular qualified aliens, such as

refugees, asylees, certain legal permanent residents, veterans

and members of the military on active duty), id. § 1622(b); a

second category to whom states may not give any benefits at

all (aliens who are not qualified aliens, nonimmigrants, or

parolees), id. § 1621(a); and a third category for whom

Congress authorizes states to make their own eligibility

determinations (qualified aliens, nonimmigrants, and aliens

paroled into the United States for less than a year), id.

§ 1622(a). In articulating the immigration policy advanced

by the Welfare Reform Act, Congress emphasized that a state

that “follow[s] the Federal classification in determining the

3

With some exceptions, the Act requires qualified aliens to have been

present in the United States for at least five years before they are eligible

for any federally funded benefit. Id. § 1613(a)–(b).

4

The Welfare Reform Act defines “[s]tate or local public benefit” in

relevant part as “(A) 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 (B) 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.” Id. § 1621(c)(1).

KORAB V. FINK 9

eligibility of . . . aliens for public assistance shall be

considered to have chosen the least restrictive means

available for achieving the compelling governmental interest

of assuring that aliens be self-reliant in accordance with

national immigration policy.” Id. § 1601(7).

II. MEDICAID AND COFA RESIDENTS

Medicaid is a cooperative state-federal program in which

the federal government approves a state plan to fund medical

services for low-income residents and then reimburses a

significant portion of the state’s expenses in financing that

medical care. See Pub. L. No. 89-97, 79 Stat. 286, 343 (1965)

(codified as amended at 42 U.S.C. § 1396 et seq.); see also

Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502 (1990).

Participation by states is voluntary, but in order to receive

federal funds, participating states must comply both with the

statutory requirements of the Medicaid Act and with

regulations promulgated by the Secretary of Health and

Human Services. See Alaska Dep’t of Health & Soc. Servs.

v. Ctrs. for Medicare & Medicaid Servs., 424 F.3d 931, 935

(9th Cir. 2005). In 1993, Hawai‘i obtained a waiver from

compliance with some of the guidelines pursuant to § 1115 of

the Social Security Act so that it could create a privatized

managed care demonstration project that allows Hawai‘i to

contract with health-maintenance organizations (“HMOs”)

for the provision of state health insurance. AlohaCare v.

Hawai‘i Dep’t of Human Servs., 572 F.3d 740, 743 (9th Cir.

2009).

Before the Welfare Reform Act, COFA Residents were

eligible for federal Medicaid subsidies and received medical

services through Hawai‘i’s state-sponsored managed care

plans. The Welfare Reform Act changed the landscape

10 KORAB V. FINK

dramatically by rendering nonimmigrants and others

ineligible for federal public benefits. As nonimmigrants,

COFA Residents are thus ineligible for Medicaid.5 For

purposes of state benefits, however, nonimmigrants fall

within the category of aliens for whom states are authorized

to set their own eligibility criteria.

After Congress made nonimmigrants ineligible for federal

reimbursement through Medicaid, Hawai‘i initially continued

to provide the same medical benefits to COFA Residents as

before, but funded the shortfall exclusively through state

funds. The parties agree that COFA Residents received the

same benefits as citizens and qualified aliens, but quibble

over whether the benefits were technically provided under the

same plan.

Citing budget concerns, Hawai‘i in 2010 dropped COFA

Residents and qualified aliens who had resided in the United

States for less than five years from the existing managed care

plans. The state enrolled them instead in more limited

coverage provided by Basic Health Hawai‘i, a new state plan

created exclusively for these two groups. Haw. Code R.

5

The Immigration and Nationality Act defines “nonimmigrant” as any

alien who has been admitted pursuant to one of the various visas set out

in 8 U.S.C. § 1101(a)(15). With some exceptions, these visas generally

admit aliens only temporarily and for a specific purpose, such as tourist

visas, student visas, transit visas, or specialized work visas. COFA

Residents, however, are entitled to reside in the United States as

nonimmigrants indefinitely. Although there is no provision in 8 U.S.C.

§ 1101(a)(15) for COFA Residents, the Compact expressly provides for

their admission as “nonimmigrants,” without regard to the provisions of

the Immigration and Nationality Act relating to labor certification and

nonimmigrant visas. Compact of Free Association Act of 1985, Pub. L.

No. 99-239 § 141, 99 Stat. 1770, 1804.

KORAB V. FINK 11

§ 17-1722.3-1. Benefits under Basic Health Hawai‘i are

limited with respect to physician visits, hospital days

and prescription drugs, and recipients do not qualify for

the state’s organ and tissue transplant program or its

insurance plans covering long-term care services. Id.

§ 17-1722.3-18–19.

III. PROCEEDINGS IN THE DISTRICT COURT

Korab, a dialysis patient who had been seeking a kidney

transplant, sued to stop the diminution in benefits. He alleged

that removing COFA Residents from the state’s

comprehensive insurance plans and enrolling them instead in

Basic Health Hawai‘i constituted discrimination based on

alienage in violation of the Equal Protection Clause of the

Constitution and in violation of the Americans with

Disabilities Act (“ADA”). Korab sought a preliminary

injunction based solely on the constitutional claim.

The district court reasoned that Congress’s power to pass

the alienage restrictions in the Welfare Reform Act flows

from the powers enumerated in the Naturalization Clause of

the Constitution, which authorizes Congress to “establish an

uniform Rule of Naturalization.” U.S. Const., art. I, § 8, cl.

4. The district court concluded that the Welfare Reform Act

is not sufficiently uniform because it grants states some

discretion with regard to the provision of state benefits to

aliens. Accordingly, the district court found that strict

scrutiny applied to Hawai‘i’s decision to treat COFA

Residents differently from citizens and qualified aliens. Strict

scrutiny requires the government to prove that any

classifications based on protected characteristics “‘are

narrowly tailored measures that further compelling

governmental interests.’” Johnson v. California, 543 U.S.

12 KORAB V. FINK

499, 505 (2005) (quoting Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 227 (1995)). Applying strict scrutiny, the

district court concluded that Hawai‘i had not identified any

valid state interest advanced by the removal of COFA

Residents from the existing state-funded benefit plan. The

district court denied Hawai‘i’s motion to dismiss and granted

a preliminary injunction blocking Hawai‘i from reducing

benefits for COFA Residents.

The preliminary injunction standard is well known: “A

plaintiff seeking a preliminary injunction must establish that

he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is

in the public interest.” Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008). Although we review the district

court’s grant of preliminary injunctive relief for an abuse of

discretion, Harris v. Bd. of Supervisors, 366 F.3d 754, 760

(9th Cir. 2004), a court would necessarily abuse that

discretion if it “‘based its ruling on an erroneous view of the

law or on a clearly erroneous assessment of the evidence,’”

Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998)

(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405

(1990)). This is another way of saying that “interpretation of

the underlying legal principles, however, is subject to de novo

review.” Sw. Voter Registration Educ. Project v. Shelley,

344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam).

ANALYSIS

The Equal Protection Clause of the Fourteenth

Amendment provides that “[n]o State shall . . . deny to any

person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1. Accordingly, states

KORAB V. FINK 13

must generally treat lawfully present aliens the same as

citizens, and state classifications based on alienage are

subject to strict scrutiny review. See In re Griffiths, 413 U.S.

717, 719–22 (1973). In contrast, federal statutes regulating

alien classifications are subject to the easier-to-satisfy

rational-basis review. See Hampton v. Mow Sun Wong,

426 U.S. 88, 103 (1976). This case presents a conundrum

that does not fit neatly within these broad rules. Although

Basic Health Hawai‘i is a state-funded program directed to a

certain class of aliens, it is part of a larger, federal statutory

scheme regulating benefits for aliens.

To understand the framework for resolving this case, it is

helpful to start with the two key Supreme Court cases on

benefits for aliens. In Graham v. Richardson, 403 U.S. 365,

367 (1971), the Supreme Court considered an equal

protection challenge to two state statutes that denied welfare

benefits to resident aliens. One statute imposed a residency

requirement to become eligible for benefits, and the other

statute excluded aliens from benefits altogether. Id. at

367–69. The Court emphasized that state classifications

based on alienage are inherently suspect and subject to strict

scrutiny, like classifications based on race or nationality. Id.

at 372. “Aliens as a class,” the Court determined, “are a

prime example of a ‘discrete and insular’ minority for whom

such heightened judicial solicitude is appropriate.” Id.

(quoting United States v. Carolene Prods. Co., 304 U.S. 144,

153 n.4 (1938)). In the light of this searching judicial review,

“a State’s desire to preserve limited welfare benefits for its

own citizens is inadequate to justify . . . making noncitizens

ineligible.” Id. at 374. The Court struck down both statutes

as violations of the Equal Protection Clause. Id. at 376.

Continuing to apply strict scrutiny to state laws

discriminating on the basis of alienage, the Court has

14 KORAB V. FINK

repeatedly struck down an array of state statutes denying

aliens equal access to licenses, employment, or state benefits.

See, e.g., Bernal v. Fainter, 467 U.S. 216, 217–18 (1984);

Nyquist v. Mauclet, 432 U.S. 1, 12 (1977); Examining Bd. of

Eng’rs, Architects, & Surveyors v. Flores de Otero, 426 U.S.

572, 601 (1976); Sugarman v. Dougall, 413 U.S. 634, 643

(1973).6

In the context of eligibility for the federal Medicare

program, in Mathews v. Diaz, 426 U.S. 67, 82 (1976), the

Court considered the constitutionality of congressional

distinctions on the basis of alienage. Because “the

responsibility for regulating the relationship between the

United States and our alien visitors has been committed to the

political branches of the Federal Government,” the Court

concluded that Congress may enact laws distinguishing

between citizens and aliens so long as those laws are

rationally related to a legitimate government interest. Id. at

81–82 (concluding that the Constitution “dictate[s] a narrow

standard of review of decisions made by the Congress or the

President in the area of immigration”); see also Hampton,

426 U.S. at 103 (holding that “[w]hen the Federal

Government asserts an overriding national interest as

justification for a discriminatory rule which would violate the

Equal Protection Clause if adopted by a State, due process

requires that there be a legitimate basis for presuming that the

rule was actually intended to serve that interest”).

6

One limited exception to the application of strict scrutiny to state

alienage classifications is the “political function” exception, which applies

rational-basis review to citizenship requirements that states enact for

elective and nonelective positions whose operations go to the heart of a

representative government. See Cabell v. Chavez-Salido, 454 U.S. 432,

437–41 (1982).

KORAB V. FINK 15

Although aliens are protected by the Due Process and

Equal Protection Clauses, this protection does not prevent

Congress from creating legitimate distinctions either between

citizens and aliens or among categories of aliens and

allocating benefits on that basis. Mathews, 426 U.S. at 78

(explaining that “a legitimate distinction between citizens and

aliens may justify attributes and benefits for one class not

accorded to the other”). The difference between state and

federal distinctions based on alienage is the difference

between the limits that the Fourteenth Amendment places on

discrimination by states and the power the Constitution grants

to the federal government over immigration. Id. at 84–85; see

also Nyquist, 432 U.S. at 7 n.8 (“Congress, as an aspect of its

broad power over immigration and naturalization, enjoys

rights to distinguish among aliens that are not shared by the

States.”). The Court in Mathews concluded that, given the

federal government’s extensive power over the terms of

immigrants’ residence, “it is unquestionably reasonable for

Congress to make an alien’s [benefit] eligibility depend on

both the character and the duration of his residence.”

426 U.S. at 82–83.

Recognizing that Graham and Mathews present pristine

examples of the bookends on the power to impose alien

classifications—a purely state law eligibility restriction in the

case of Graham and a federal statute without state

entanglements in the case of Mathews—it is fair to say that

Basic Health Hawai‘i presents a hybrid case, in which a state

is following a federal direction. This variation was

foreshadowed, however, by Graham. 403 U.S. at 381–82.

In its examination of Arizona’s residency requirement for

alien eligibility for welfare benefits, the Court in Graham

considered whether a federal statute prohibiting state

16 KORAB V. FINK

requirements based on the length of citizenship, but not

explicitly prohibiting requirements based on alienage, could

be “read so as to authorize discriminatory treatment of aliens

at the option of the States” and concluded that it did not. Id.

at 382. The Court addressed the issue of states following

congressional direction only elliptically, suggesting that a

federal law granting wide discretion to the states “to adopt

divergent laws on the subject of citizenship requirements . . .

would appear to contravene [the] explicit constitutional

requirement of uniformity” arising out of the Naturalization

Clause. Id. Expanding on the reference to the uniformity

requirement in Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982),

the Court explained: “if the Federal Government has by

uniform rule prescribed what it believes to be appropriate

standards for the treatment of an alien subclass, the States

may, of course, follow the federal direction.”

Korab does not challenge directly the validity of the

federal classifications in the Welfare Reform Act. Nor does

he dispute Hawai‘i’s selective classification within the

“discretionary benefits” category of the Act—COFA

Residents and qualified aliens present in the United States for

fewer than five years are eligible for Basic Health Hawai‘i;

all other nonimmigrants and parolees are ineligible under

Hawai‘i’s plan, even though they are included in the Act’s

“discretionary benefits” group. (This latter group is not part

of this suit.) Instead, Korab challenges the lack of parity in

benefits COFA Residents receive through Basic Health

Hawai‘i as compared to the benefits provided through

Medicaid. As part of this argument, Korab essentially brings

a backdoor challenge to the federal classifications, arguing

that the state cannot provide differing levels of benefits

through different programs because the uniformity

requirement of the Naturalization Clause prohibits Congress

KORAB V. FINK 17

from granting states any discretion in the immigration or

alienage contexts. We begin with the federal classifications

established by the Welfare Reform Act and then address the

appropriate level of constitutional scrutiny applicable to

Hawai‘i’s decision to exercise the discretion afforded it by

the Act.

I. THE FEDERAL CLASSIFICATIONS: A UNIFORM

NATIONAL POLICY

The Supreme Court has consistently held that the federal

government possesses extensive powers to regulate

immigration and the conditions under which aliens remain in

the United States. See Arizona v. United States, 132 S. Ct.

2492, 2498 (2012) (“This authority [to regulate immigration

and the status of aliens] rests, in part, on the National

Government’s constitutional power to ‘establish an uniform

Rule of Naturalization,’ U.S. Const., Art. I, § 8, cl. 4, and its

inherent power as sovereign to control and conduct relations

with foreign nations. . . .” (citations omitted)). The reference

to naturalization has been read broadly to mean federal

control over the status of aliens, not just criteria for

citizenship. Id. (“The Government of the United States has

broad, undoubted power over the subject of immigration and

the status of aliens.”); see also Takahashi v. Fish & Game

Comm’n, 334 U.S. 410, 419 (1948) (noting congressional

power under the Naturalization Clause to regulate the conduct

of aliens).

In the Welfare Reform Act, Congress announced a

“national policy with respect to welfare and immigration.”

8 U.S.C. § 1601. Congress determined that immigrant self-

sufficiency was an element of U.S. immigration policy and

that there was a compelling national interest in assuring both

18 KORAB V. FINK

“that aliens be self-reliant” and that the availability of public

benefits does not serve as an “incentive for illegal

immigration.” Id. § 1601(5)–(6). To accomplish these

objectives, the statute sets out a comprehensive set of

eligibility requirements governing aliens’ access to both

federal and state benefits. Federal benefits are, of course,

strictly circumscribed by designated categories. Even for

wholly state-funded benefits, the Act establishes three

categories that states must follow: one category of aliens to

whom states must provide all state benefits, a second category

of aliens for whom states must not provide any state benefits,

and a third category of aliens for whom Congress authorizes

states to determine eligibility for state benefits. Id.

§§ 1621–22. The limited discretion authorized for the third

category, which includes COFA Residents, does not

undermine the uniformity requirement of the Naturalization

Clause.

On the federal level, only the Tenth Circuit has

considered this issue. Soskin v. Reinertson, 353 F.3d 1242,

1256–57 (10th Cir. 2004). Like Hawai‘i, Colorado initially

chose to provide wholly state-funded health insurance

coverage to all aliens in the third category. Id. at 1246.

When Colorado did an about-face in 2003 and dropped this

coverage, Soskin sued, arguing that letting states determine

benefit eligibility was unconstitutional because it was not a

sufficiently uniform federal rule. Id.

Looking to the origin of the Naturalization Clause, the

Tenth Circuit concluded that “the uniformity requirement in

the Naturalization Clause is not undermined by the [Welfare

Reform Act’s] grant of discretion to the states with respect to

alien qualifications for Medicaid benefits.” Id. at 1257. The

uniformity requirement was a response to the tensions that

KORAB V. FINK 19

arose from the intersection of the Articles of Confederation’s

Comity Clause and the states’ divergent naturalization laws,

which allowed an alien ineligible for citizenship in one state

to move to another state, obtain citizenship, and return to the

original state as a citizen entitled to all of its privileges and

immunities. See Gibbons v. Ogden, 22 U.S. 1, 36 (1824); The

Federalist No. 42 (James Madison). The court in Soskin

determined that because “the choice by one state to grant or

deny . . . benefits to an alien does not require another state to

follow suit,” the purpose of the uniformity requirement is not

undermined by states’ discretion under the Welfare Reform

Act. 353 F.3d at 1257.

We agree. Considering the Welfare Reform Act as a

whole, it establishes a uniform federal structure for providing

welfare benefits to distinct classes of aliens. The entire

benefit scheme flows from these classifications, and a state’s

limited discretion to implement a plan for a specified

category of aliens does not defeat or undermine uniformity.

In arguing to the contrary, the dissent ignores that “a state’s

exercise of discretion can also effectuate national policy.” Id.

at 1255. As the Tenth Circuit explained in Soskin,

When a state . . . decides against optional

coverage [for certain noncitizens under the

Welfare Reform Act], it is addressing the

Congressional concern (not just a parochial

state concern) that “individual aliens not

burden the public benefits system.” 8 U.S.C.

§ 1601(4). This may be bad policy, but it is

Congressional policy; and we review it only

to determine whether it is rational.

20 KORAB V. FINK

353 F.3d at 1255. We are not in accord with the dissent’s

myopic view that the Welfare Reform Act establishes no

federal direction and conclude that Hawai‘i’s discretionary

decision to deny coverage to COFA Residents effectuates

Congress’s uniform national policy on the treatment of aliens

in the welfare context.

This reading of the uniformity requirement finds an

analog in the Supreme Court’s interpretation of the

Bankruptcy Clause, which similarly calls for uniformity. See

U.S. Const. art. I., § 8, cl. 4 (empowering Congress “[t]o

establish an uniform Rule of Naturalization, and uniform

Laws on the subject of Bankruptcies throughout the United

States”). In Hanover National Bank v. Moyses, 186 U.S. 181

(1902), the Court considered a challenge to the 1898

Bankruptcy Act on the ground that its incorporation of

divergent state laws failed to “establish uniform laws on the

subject of bankruptcies” and unconstitutionally “delegate[d]

certain legislative powers to the several states.” Id. at 183.

The Court held that the incorporation of state laws “is, in the

constitutional sense, uniform throughout the United States”

because the “general operation of the law is uniform although

it may result in certain particulars differently in different

states.” Id. at 190.

The principle that “uniformity does not require the

elimination of any differences among the States” has equal

traction here. Ry. Labor Execs.’ Ass’n v. Gibbons, 455 U.S.

457, 469 (1982). As in the bankruptcy context, although the

“particulars” are different in different states, the basic

operation of the Welfare Reform Act is uniform throughout

KORAB V. FINK 21

the United States.7 Stellwagen v. Clum, 245 U.S. 605, 613

(1918) (holding that bankruptcy law may be uniform and yet

“may recognize the laws of the state in certain particulars,

although such recognition may lead to different results in

different states”). The overarching national policy and

alienage classifications set out in the Welfare Reform Act

have repeatedly been upheld by the federal courts on rational-

basis review. See, e.g., Lewis v. Thompson, 252 F.3d 567,

582–84 (2d Cir. 2001) (upholding the alienage classifications

in the Welfare Reform Act); City of Chicago v. Shalala,

189 F.3d 598, 603–08 (7th Cir. 1999) (same); see also

Arizona, 132 S. Ct. at 2499 (“Federal law also authorizes

States to deny noncitizens a range of public benefits. . . .”).

II. THE STATE ACTION: HAWAI‘I FOLLOWS THE FEDERAL

POLICY AND DIRECTION

The logical corollary to the national policy that Congress

set out in the Welfare Reform Act is that, where the federal

program is constitutional, as it is here, states cannot be forced

7

In an effort to distinguish the Bankruptcy Clause from the

Naturalization Clause, the dissent argues that the Equal Protection Clause

places constitutional constraints on states that are not present in the

bankruptcy context. This argument misunderstands the analogy to the

Bankruptcy Clause. We reference the Bankruptcy Clause only to show

that uniformity is not undermined where states adopt different paths in

effectuating a larger federal scheme or policy. That the Naturalization

Clause is and has historically been subject to constitutional constraints not

applicable to the Bankruptcy Clause says nothing about the more relevant

question of whether uniformity is undermined by the existence of

differences among the states. In the context of both clauses, the answer

to that question is no, and the dissent offers no controlling authority to the

contrary. Like the Tenth Circuit in Soskin, we conclude that the discretion

afforded to states under the Welfare Reform Act does not undermine the

uniformity established under that statute. Soskin, 353 F.3d at 1257.

22 KORAB V. FINK

to replace the federal funding Congress has removed. See

Pimentel v. Dreyfus, 670 F.3d 1096, 1109 (9th Cir. 2012).

We considered a similar situation in Sudomir v. McMahon,

767 F.2d 1456, 1457 (9th Cir. 1985), where plaintiffs brought

an equal protection challenge to California’s determination

that a particular category of aliens was ineligible for benefits

under the federal statute instructing states in the application

of the cooperative federal-state Aid to Families with

Dependent Children program. As we said in Sudomir, “[i]t

would make no sense to say that Congress has plenary power

in the area of immigration and naturalization and then hold

that the Constitution impels the states to refrain from

adhering to the federal guidelines.” Id. at 1466.

Like the plaintiffs in Sudomir, Korab argues, and the

dissent agrees, that the state has a constitutional obligation to

make up for the federal benefits that Congress took away

from him. Putting this argument in practical funding terms,

states would be compelled to provide wholly state-funded

benefits equal to Medicaid to all aliens in the discretionary

third category, thus effectively rendering meaningless the

discretion Congress gave to the states in 8 U.S.C. § 1622(a).

See Sudomir, 767 F.2d at 1466 (“To so hold would amount to

compelling the states to adopt each and every more generous

classification which, on its face, is not irrational.”). As the

New York Court of Appeals put it in upholding a state

program that provided partial benefits to aliens who were

federally ineligible, the right to equal protection does not

“require the State to remediate the effects of [the Welfare

Reform Act].” Khrapunskiy v. Doar, 909 N.E.2d 70, 77

(N.Y. 2009); see also Finch v. Commonwealth Health Ins.

Connector Auth., 946 N.E.2d 1262, 1286 (Mass. 2011)

(Gants, J. concurring in part and dissenting in part) (“It is

inconsistent with Mathews to require the State to undo the

KORAB V. FINK 23

effect of Congress’s decision and replace the funds that

Congress, under its plenary power over aliens, determined it

would not provide.”).

Congress has drawn the relevant alienage classifications,

and Hawai‘i’s only action here is its decision regarding the

funding it will provide to aliens in the third, discretionary

category created by Congress—an expenditure decision.

Korab fails to offer any evidence that Hawai‘i, in making that

decision, has not closely “follow[ed] the federal direction”

and adhered to the requirements prescribed by Congress in its

provision of state benefits. Plyler, 457 U.S. at 219 n.19.

Notably, Korab has not even alleged that the state

expenditures for health insurance for aliens within the

discretionary category created by Congress are less than the

state expenditures for health insurance for others.8 Even

8

At this stage of the proceedings, we harbor serious doubts that Korab

has carried his initial burden to establish a claim of disparity vis-a-vis the

state’s actions. Under Medicaid, citizens and eligible aliens are covered

under a plan funded by both federal and state funds. By contrast, Basic

Health Hawai‘i is funded solely by the state. Here, however, Korab has

not claimed that COFA Residents are receiving less per capita state

funding than citizens or qualified aliens. Finch, 946 N.E.2d at 1288

(Gants, J., concurring in part and dissenting in part) (“[S]trict scrutiny is

the appropriate standard of review to evaluate a State’s alienage

classification only where the State’s per capita expenditures for the

plaintiff aliens are substantially less than the per capita amount contributed

by the State for similarly situated Commonwealth Care participants

. . . .”). Nor has Korab offered any evidence that the state’s average

expenditures on behalf of COFA Residents in Basic Health Hawai‘i are

less than the amount the state contributes for citizens and qualified aliens

eligible for Medicaid. On this record, Hawai‘i “does nothing more than

refuse to expend State monies to restore the Federal funds lost by

Congress’s constitutional exercise of its plenary power.” Id.; Hong Pham

v. Starkowski, 16 A.3d 635, 646 (Conn. 2011) (concluding that

Connecticut’s elimination of state-funded health insurance for aliens

24 KORAB V. FINK

assuming arguendo that Hawai‘i’s discretionary decision not

to provide optional coverage for COFA Residents constitutes

alienage-based discrimination, that decision, which is

indisputably authorized by the Welfare Reform Act, is subject

to rational-basis review. The posture of Korab’s

constitutional challenge—essentially a complaint about state

spending—coupled with the legitimacy of the federal

statutory framework, leads to this conclusion.

The dissent urges a contrary result, seizing upon the

Supreme Court’s statement in Graham that “Congress does

not have the power to authorize the individual States to

violate the Equal Protection Clause.” 403 U.S. at 382. We

acknowledge the rhetorical force of this proposition, but, like

the Tenth Circuit, conclude that the “proposition is almost

tautological.” Soskin, 353 F.3d at 1254. The constitutional

question before us is not whether Congress may authorize

Hawai‘i to violate the Equal Protection Clause but rather

“what constitutes such a violation when Congress has

(clearly) expressed its will regarding a matter relating to

aliens,”9 as Congress has done through the Welfare Reform

merely implemented the Act’s restrictions and did not create any alienage-

based classifications). Nevertheless, because we vacate the district court’s

grant of the preliminary injunction on the ground that rational basis, rather

than strict scrutiny, is the appropriate standard of scrutiny, we need not

resolve this evidentiary question at this stage.

9

The dissent claims that our reference to Congress’s clearly expressed

will demonstrates our “confusion as to whether this an equal protection or

a preemption case.” Dissent at 67 n.7. We are not confused. To

determine the applicable level of constitutional scrutiny in this equal

protection case, we ask whether Hawai‘i is following the federal direction,

see Plyer, 457 U.S. at 219 n.19, which in turn, demands consideration of

Congress’s intent in establishing a uniform federal policy through the

Welfare Reform Act, Soskin, 353 F.3d at 1254–56. That Congress’s will

KORAB V. FINK 25

Act. Id. Our determination that rational-basis review applies

to Hawai‘i’s conduct is consistent with Graham and the

Supreme Court’s equal protection cases because Hawai‘i is

merely following the federal direction set forth by Congress

under the Welfare Reform Act. See Plyer, 457 U.S. at 219

n.19. At bottom, the dissent reaches the wrong conclusion

because it asks the wrong question and invites a circuit split.10

Soskin, 353 F.3d at 1254–56.

Accordingly, we vacate the preliminary injunction and

remand to the district court for further proceedings consistent

with this opinion.11 See Doe v. Reed, 586 F.3d 671, 676 (9th

is also the touchstone of preemption analysis does not render it irrelevant

to the determination of the scrutiny required for our equal protection

inquiry. See Plyer, 457 U.S. at 219 n.19; Sudomir, 767 F.2d at 1466.

10

Beyond asking the wrong question, the dissent muddies its own

analysis by continually shifting the target of its constitutional inquiry. On

one hand, the dissent argues that “the state of Hawai‘i . . . is ultimately

responsible” for the “denial of equal benefits to COFA Residents,” Dissent

at 58, and that we must subject “Hawai‘i’s actions” to strict scrutiny,

Dissent at 59. On the other hand, the dissent acknowledges that Congress,

through the Welfare Reform Act, “was giving states broad discretion to

discriminate against aliens in the provision of welfare benefits” but

concludes that Congress lacked the constitutional power to do so. Dissent

at 68–69. So which is it? Does the dissent challenge the constitutionality

of Hawai‘i’s actions, Congress’s, or both? The dissent’s own mixing and

matching on this point underscores why Hawai‘i’s conduct should be

viewed as part and parcel of the federal welfare scheme, a scheme that is

not challenged by Korab and has been deemed constitutional. See, e.g.,

Lewis, 252 F.3d at 582–84; Shalala, 189 F.3d at 603–08.

11

Judge Bybee has written a thoughtful and compelling concurrence

urging the adoption of a preemption-based approach to alienage

classifications. However, as Judge Bybee acknowledges, this fresh

approach veers away from the controlling authority set forth in Graham

and Mathews and goes where no circuit has gone. Concurrence at 52–53.

26 KORAB V. FINK

Cir. 2009) (reversing preliminary injunction ruling where the

district court applied the incorrect level of scrutiny).

VACATED AND REMANDED.

BYBEE, Circuit Judge, concurring and concurring in the

judgment:

I concur in full in Judge McKeown’s thoughtful opinion

for the court. Her opinion captures the unsettled nature of the

current state of the law and offers a way through the morass

of conflicting approaches. I write separately to explain why

the law of alienage remains so unclear and how we might

better approach it.

The courts’ reaction to state implementation of the

Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 (“PRWORA”) demonstrates the

conundrum of our current Equal Protection doctrine as

applied to aliens. Compare Soskin v. Reinertson, 353 F.3d

1242, 1254 (10th Cir. 2004) (applying rational basis scrutiny

to Colorado’s PRWORA-based alien eligibility restrictions);

Khrapunskiy v. Doar, 909 N.E.2d 70, 76 (N.Y. 2009)

(holding that the Equal Protection Clause does not apply to

It is therefore unsurprising that neither party has addressed preemption on

appeal, and neither should we at this stage. Just as significantly, Judge

Bybee’s preemption analysis—that the Hawai‘i welfare program is not

expressly or impliedly preempted nor does it violate Congress’s dormant

immigration power—sidesteps the ultimate constitutional question raised

by Korab and briefed by both parties: namely, whether Hawai‘i’s action

violates the Equal Protection Clause.

KORAB V. FINK 27

New York’s PRWORA-based alien eligibility restrictions);

Hong Pham v. Starkowski, 16 A.3d 635, 661 (Conn. 2011)

(applying rational basis scrutiny to Connecticut’s PRWORA-

based alien eligibility restrictions); with Finch v.

Commonwealth Health Ins. Connector Auth., 946 N.E.2d

1262, 1279–80 (Mass. 2011) (applying strict scrutiny

to Massachusetts’ PRWORA-based alien eligibility

restrictions); Ehrlich v. Perez, 908 A.2d 1220, 1243–44 (Md.

2006) (applying strict scrutiny to Maryland’s PRWORA-

based alien eligibility restrictions); Aliessa ex rel. Fayad v.

Novello, 754 N.E.2d 1085, 1098 (N.Y. 2001) (applying strict

scrutiny to New York’s PRWORA-based alien eligibility

restrictions); see also Basiente v. Glickman, 242 F.3d 1137,

1143 (9th Cir. 2001) (applying rational basis scrutiny to

PRWORA-based restriction on aliens eligible for federal

benefits in the Commonwealth of the Northern Marianas).

It is not surprising that courts might divide over the

application of equal protection rules to the PRWORA. Even

where courts agree on the standard of review, judges may

disagree over the application of the standard. See, e.g.,

Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013);

Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger,

539 U.S. 306 (2003); United States v. Virginia, 518 U.S. 515

(1996). What is remarkable is that seventy-five years after

United States v. Carolene Products Co. announced the need

for “more exacting judicial scrutiny” for “discrete and insular

minorities,” 304 U.S. 144, 153 n.4 (1938), and more than

forty years since Graham v. Richardson declared

classification based on alienage subject to strict scrutiny,

403 U.S. 365, 375 (1971), we should be divided over the

proper standard of review for classifications based on

alienage.

28 KORAB V. FINK

As discussed below, the Graham doctrine—while

ostensibly clear when issued—has been, in fact, riddled with

exceptions and caveats that make consistent judicial review

of alienage classifications difficult. In the years since

Graham was decided, the Supreme Court has applied

different levels of scrutiny depending on whether the state or

the federal government established the challenged restriction,

whether the restriction involved economic rights or the

democratic process of self-government (often stretching that

concept), whether the restriction involved undocumented

aliens, and whether the discriminatory classification was

created by Congress or an administrative agency. A review of

the history of alienage jurisprudence, with a particular review

of Graham—both what it said and how it has been applied

(and not applied) in the past forty years—suggests that it is

time to rethink the doctrine. As I explain below, I am

persuaded that an alternative approach based on preemption

analysis would bring welcome clarity to this area. Employing

preemption analysis instead of equal protection analysis in

alienage cases will not spare us hard cases, but it offers us a

mode of analysis that is more consistent with the

Constitution, our history, and the Court’s cases since

Graham.

I

For over a century, the Supreme Court has recognized that

aliens are “persons” entitled to the protection of the Fifth and

Fourteenth Amendments. See Wong Wing v. United States,

163 U.S. 228, 237 (1896); Yick Wo v. Hopkins, 118 U.S. 356,

369 (1886); see also Graham, 403 U.S. at 371 (“It has long

been settled . . . that the term ‘person’ in this context

encompasses lawfully admitted resident aliens . . . and

entitles both citizens and aliens to the equal protection of the

KORAB V. FINK 29

laws . . . .”). For the first half of the twentieth century, the

Court was generally deferential to state alienage restrictions,

so long as they did not interfere with “[t]he authority to

control immigration—to admit or exclude aliens—[which] is

vested solely in the Federal Government.” Truax v. Raich,

239 U.S. 33, 42 (1915) (declaring unconstitutional an Arizona

law requiring that employers with more than five employees

hire at least 80 percent native-born citizens since “deny[ing]

to aliens the opportunity of earning a livelihood when

lawfully admitted to the state would be tantamount to the

assertion of the right to deny them entrance and abode . . .”)

But where a state’s discriminatory classification related to a

public interest without a clear nexus to a field of federal

control, the Court often upheld the restriction. See Clarke v.

Deckebach, 274 U.S. 392, 396 (1927) (holding an Ohio law

banning alien ownership of pool halls constitutional as it did

not amount to “plainly irrational discrimination”); Crane v.

New York, 239 U.S. 195 (1915) (upholding statute

criminalizing the employment of aliens on public works

contracts); Terrace v. Thompson, 263 U.S. 197, 221 (1923)

(holding a Washington law banning alien ownership of land

constitutional because “[t]he quality and allegiance of those

who own, occupy and use the farm lands within [a State’s]

borders are matters of highest importance . . .”); Heim v.

McCall, 239 U.S. 175, 194 (1915) (upholding a prohibition of

employment of aliens on public works contracts constructing

New York City subway in light of “the special power of the

state over the subject-matter [government employment]”);

Patsone v. Pennsylvania, 232 U.S. 138 (1914) (holding

constitutional a law excluding aliens from hunting wild game

and noting that “a state may classify [aliens] with reference

to the evil to be prevented . . . if the class discriminated

against is or reasonably might be considered to define those

from whom the evil mainly is to be feared . . .”).

30 KORAB V. FINK

The Court’s approach to alienage restrictions began to

change after the Second World War, notably in Takahashi v.

Fish & Game Comm’n, 334 U.S. 410 (1948). In Takahashi,

a Japanese resident alien fisherman challenged a California

law barring aliens from obtaining commercial fishing

licenses. The Court struck down the law on preemption

grounds, but in the course of its discussion, it referred to the

civil rights law enforcing the Fourteenth Amendment:

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. . . . State laws which impose

discriminatory burdens upon the entrance or

residence of aliens lawfully within the United

States conflict with this constitutionally

derived federal power to regulate immigration

...

Id. at 419 (internal citation omitted). The Court then quoted

the Civil Rights Act of 1866, now codified at 42 U.S.C.

§ 1981:

All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence,

and to the full and equal benefits of all laws a

proceedings for the security of persons and

property as is enjoyed by white citizens . . .

KORAB V. FINK 31

Id. Finding that this section “extend[s] to aliens as well as to

citizens,” id. (footnote omitted), the Court declared that

Congress had adopted the Civil Rights Act “in the enactment

of a comprehensive legislative plan for the nation-wide

control and regulation of immigration and naturalization . . .”

Id. (emphasis added. Accordingly, California’s provision

conflicted with “a general policy” found in “[t]he Fourteenth

Amendment and the laws adopted under its authority” that

“all persons lawfully in this country shall abide ‘in any state’

on an equality of legal privileges with all citizens under non-

discriminatory laws.” Id. at 420. Without a “special public

interest,” California’s law had to yield to federal law. Id.

It was in light of this fluctuating doctrine that the Court

decided Graham in 1971.

II

The root of much of the current confusion over the courts’

treatment of alienage lies in Graham itself. Graham dealt

with restrictions on public benefits imposed by Arizona and

Pennsylvania. In Arizona, persons permanently and totally

disabled were not eligible for assistance under a federal

program in which Arizona participated if they were not

citizens of the United States or had resided in the U.S. for

fewer than fifteen years. 403 U.S. at 366–67. Pennsylvania

had a general assistance program, one not funded in any part

by the federal government, that limited participation to U.S.

citizens. Id. at 368. The Court proceeded on two distinct

analytic fronts: the Equal Protection Clause and federal

preemption based on the Supremacy Clause. First, it

addressed the state classifications under the Equal Protection

Clause of the Fourteenth Amendment. U.S. Const. amend.

XIV, § 1 (“No State shall . . . deny to any person within its

32 KORAB V. FINK

jurisdiction the equal protection of the laws.”). Although the

Court had mentioned the Fourteenth Amendment in

connection with state restrictions on aliens in previous cases,

the Court had never rested its judgment solely on the Equal

Protection Clause.1 In Graham, for the first time, the Court

established a level of scrutiny, holding that “classifications

based on alienage, like those based on nationality or race, are

inherently suspect and subject to close judicial scrutiny.”

403 U.S. at 372 (footnotes omitted). This meant that state

classifications based on alienage must fall unless the state can

show “a compelling state interest by the least restrictive

means available.” Bernal v. Fainter, 467 U.S. 216, 219

(1984). In Graham, Arizona’s and Pennsylvania’s “desire to

preserve limited welfare benefits for its own citizens [was]

inadequate to justify” the restrictions, 403 U.S. at 374, and “a

concern for fiscal integrity” was not compelling. Id. at 375.

With respect to Arizona, whose state plan—including its

alienage restriction—was previously approved by the

Secretary of Health, Education & Welfare, the Court

construed federal law not to authorize the restrictions because

“Congress does not have the power to authorize the

individual States to violate the Equal Protection Clause.” Id.

at 382.

Second, and alternatively, the Court in Graham found the

state laws preempted by federal law, thereby violating the

Supremacy Clause. U.S. Const. art.VI, § 2 (“This

Constitution, and the Laws of the United States which shall

be made in Pursuance thereof . . . shall be the supreme Law

1

Even in Yick Wo, where the Court first declared aliens to be “persons”

within the scope of the Fourteenth Amendment, the Court cited several

sources of authority, including the U.S. treaty with China, the Fourteenth

Amendment, and the Civil Rights Act of 1866. 118 U.S. at 368–69.

KORAB V. FINK 33

of the Land”). The Court found that the state restrictions on

alienage could not “withstand constitutional scrutiny”

because of “[t]he National Government[’s] . . . ‘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.’” Graham,

403 U.S. at 376–77 (quoting Takahashi, 334 U.S. at 419).

Describing Congress’s “comprehensive plan for the

regulation of immigration and naturalization,” including

aliens who become “public charges,” the Court found that

“Congress has not seen fit to impose any burden or restriction

on aliens who become indigent after their entry into the

United States.” Id. at 377. Accordingly, “State laws that

restrict the eligibility of aliens for welfare benefits merely

because of their alienage conflict with these overriding

national policies in an area constitutionally entrusted to the

Federal Government.” Id. at 378. As “the States ‘can neither

add to nor take from the conditions lawfully imposed by

Congress upon admission, naturalization and residence of

aliens in the United States or the several states,’” Arizona’s

and Pennsylvania’s “laws encroach[ing] upon exclusive

federal power . . . [were] constitutionally impermissible.” Id.

at 378 (quoting Takahashi, 334 U.S. at 419), 380.

Graham was a watershed case in equal protection analysis

because it placed classifications based on alienage in the

same category as classifications based on race, see Korematsu

v. United States, 323 U.S. 214, 216 (1944), and in a more

protected class than classifications based on gender or

illegitimacy, see Craig v. Boren, 429 U.S. 190, 197 (1976)

(gender); Clark v. Jeter, 486 U.S. 456, 461 (1988)

(illegitimacy). The implications of Graham were significant.

Under an important line of cases, the Graham rule would

34 KORAB V. FINK

have bound the federal government to the same degree as the

states. In Bolling v. Sharpe, 347 U.S. 497 (1954), decided the

same day as Brown v. Board of Education, 347 U.S. 483

(1954), the Court held that the same equal protection

principles applied to the federal government as applied to the

states. That proposition was not obvious, because the Equal

Protection Clause is found in the Fourteenth Amendment,

which by its terms applies to the states and grants Congress

the power to enforce it. U.S. Const. amend. XIV, §§ 1, 5. In

Bolling, however, the Court declared it “unthinkable that the

same Constitution would impose a lesser duty on the Federal

Government.” 347 U.S. at 500. Although the Court in Brown

held that state discrimination on the basis of race violated the

Equal Protection Clause of the Fourteenth Amendment, the

Court in Bolling held that federal discrimination on the basis

of race violated the equal protection component of the Due

Process Clause of the Fifth Amendment. Id. at 499; see also

Brown, 347 U.S. at 495 & n.12. Since Bolling, it has been

well established that the “Court’s approach to Fifth

Amendment equal protection claims has always been

precisely the same as to the equal protection claims under the

Fourteenth Amendment.” Weinberger v. Wiesenfeld,

420 U.S. 636, 638 n.2 (1975). See United States v. Windsor,

133 S. Ct. 2375, 2695 (2013) (“The liberty protected by the

Fifth Amendment’s Due Process Clause contains within it the

prohibition against denying to any person the equal protection

of the laws.”); United States v. Paradise, 480 U.S. 149, 166

n.16 (1987) (plurality opinion of Brennan, J.) (“[T]he reach

of the equal protection guarantee of the Fifth Amendment is

coextensive with that of the Fourteenth . . .”); Buckley v.

Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in

the Fifth Amendment area is the same as that under the

Fourteenth Amendment.”). But see Hampton v. Mow Sun

Wong, 426 U.S. 88, 100 (1976) (“Although both [the Fifth

KORAB V. FINK 35

and Fourteenth] Amendments require the same type of [equal

protection] analysis, . . . the two protections are not always

coextensive.”).

In the Court’s most extensive discussion to date of the

Bolling principle, the Court recounted that in Bolling

“the Court for the first time explicitly questioned the

existence of any difference between the obligations of the

Federal Government and the States to avoid racial

classifications.” Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 215 (1995). While “Bolling’s facts concerned

school desegregation, . . . its reasoning was not so limited.”

Id. The Court repeated “‘that the Constitution of the United

States, in its present form, forbids, so far as the civil and

political rights are concerned, discrimination by the General

Government, or by the States, against any citizen because of

his race.’” Id. at 216 (emphasis in original) (quoting Bolling,

347 U.S. at 499) (other citation and quotation marks omitted).

The Court also underscored that the equal protection

component of the Fifth Amendment is “an obligation

equivalent to that of the States.” Id.; see id. at 217 (“the equal

protection obligations imposed by the Fifth and the

Fourteenth Amendments [are] indistinguishable”). The only

exception might be “a few contrary suggestions appearing in

cases in which we found special deference to the political

branch of the Federal Government to be appropriate to detract

from this general rule.” Id. at 217–18 (citing Hampton,

426 U.S. at 88).

This last caveat was huge. It turns out that, in the area of

immigration and naturalization, the “unthinkable,” Bolling,

347 U.S. at 500, was exactly what the Court had been

thinking for more than one-hundred years. The obligations of

the federal government and the states with respect to aliens

36 KORAB V. FINK

were indeed “[]distinguishable,” Adarand, 515 U.S. at 217.

In a venerable line of cases, the Court had approved the

political branches’ control over the privileges that aliens

enjoy in the United States. See, e.g., Fiallo v. Bell, 430 U.S.

787, 792–96 (1977); Hines v. Davidowitz, 312 U.S. 52, 62–68

(1941); Fong Yue Ting v. United States, 149 U.S. 698,

711–14 (1893); Henderson v. Mayor of New York, 92 U.S.

259, 273–74 (1876); Chy Lung v. Freeman, 92 U.S. 275, 280

(1876). At the same time, the Court had established that the

states had some, but not unlimited, control over aliens’

privileges within the state. See Part I, supra.

From the outset, the Graham rule, simpliciter, was

unsupportable. See Adarand, 515 U.S. at 217–18

(acknowledging that the equal protection component of the

Fifth Amendment is coextensive with that of the Fourteenth

Amendment except with respect to some of the alien cases);

United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990)

(“[Our decisions] expressly accord[] differing protection to

aliens than to citizens, based on our conclusion that the

particular provision in question were not intended to extend

to aliens in the same degree as to citizens.”); David P. Currie,

The Constitution in the Supreme Court: The Second Century,

1888–1986, at 500 (1990) (Graham “carried this line of

authority to the extreme of declaring alienage as suspect a

classification as race—a characterization so implausible that

it would soon have to be revised.”) (footnote omitted).

At the first opportunity, the Court declined to impose the

equal protection component of the Fifth Amendment on the

federal government. Indeed, the Graham rule, as a mode of

equal protection analysis, has never been fully applied to the

federal government since Graham. Just five years after

Graham, in Mathews v. Diaz, the Court phrased the issue as

KORAB V. FINK 37

“whether Congress may 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.” 426 U.S. 67,

69 (1976). The Court did not begin with Graham and equal

protection analysis. Rather, it divided the alienage question

into two parts: May Congress discriminate between citizens

and aliens? And may Congress discriminate between different

groups of aliens? As to the first question, the Court had little

difficulty finding that “[i]n the exercise of its broad power

over naturalization and immigration, Congress regularly

makes rules that would be unacceptable if applied to

citizens. . . . The fact that an Act of Congress treats aliens

differently from citizens does not in itself imply that such

disparate treatment is ‘invidious.’” Id. at 79–80. The Court

made no acknowledgment of Graham or Bolling. With

respect to the second question, and again without even

mentioning Graham or Bolling, the Court reasoned that since

it was

obvious that Congress has no constitutional

duty to provide all aliens with the welfare

benefits provided to citizens, the party

challenging the constitutionality of the

particular line Congress has drawn has the

burden of advancing principled reasoning that

will at once invalidate that line and yet

tolerate a different line separating some aliens

from others.

Id. at 82 (emphasis added). In the end, the Court declined to

“substitute [its] judgment for that of Congress in deciding

which aliens shall be eligible to participate in the

supplementary insurance program on the same conditions as

38 KORAB V. FINK

citizens.” Id. at 84. Only then did the Court consider

Graham, which it had no difficulty distinguishing “because

it concerns the relationship between aliens and the States

rather than between aliens and the Federal Government. . . .

Classification [of aliens] by the Federal Government is a

routine and normally legitimate part of its business.” Id. at

84–85.

The same day, the Court decided Hampton v. Mow Sun

Wong, 426 U.S. at 88. In Hampton, lawful permanent

residents were denied federal employment by the Civil

Service Commission because they were not U.S. citizens.

This time, however, the Court began with an equal protection

analysis consistent with Graham. Citing Sugarman v.

Dougall, 413 U.S. 634 (1973), and In re Griffiths, 413 U.S.

717 (1973), two cases in which the Court had applied

Graham’s equal protection analysis to strike down state

restrictions on alien employment, the Court similarly struck

the federal restrictions on the employment of non-citizens.

The Court linked Graham and Bolling, but to distinguish

them: “Although both [the Fifth and Fourteenth]

Amendments require the same type of analysis . . . the two

protections are not always coextensive.” Hampton, 426 U.S.

at 100.2 The Court observed that Sugarman dictated that the

2

The only other reference I can locate in which the Court refers to both

Bolling and Graham was later in the same Term in Examining Board of

Engineers, Architects, and Surveyors v. Flores de Otero, where the Court

struck down a Puerto Rico law restricting civil engineers to U.S. citizens.

426 U.S. 572 (1976). One of the questions was the constitutional status

of Puerto Rico. For the Court’s purposes, Puerto Rico’s status did not

matter: “If the Fourteenth Amendment is applicable, the Equal Protection

Clause nullifies the statutory exclusion. If, on the other hand, it is the

Fifth Amendment and its Due Process Clause that apply, the statute’s

KORAB V. FINK 39

Court strike the restriction on federal employment of aliens

unless there was an “overriding national interest[],” id. at 101,

proof of which would have to come from Congress or the

President, and not just from the Civil Service Commission, id.

103, 105, 116.

What is odd about the juxtaposition of these two cases is

the way in which the Court followed on the one hand, and

virtually ignored on the other, the equal protection principles

it had previously announced. In Hampton, the Court

followed equal protection principles, finding that the federal

employment restrictions were presumptively invalid under

Sugarman unless there was a compelling governmental

interest and the rules “were expressly mandated by the

Congress or the President . . . .” Id. at 103. When the Court

couldn’t find such an interest mandated by the elected

branches, the law fell. It would have been easy enough in

Mathews for the Court to have analyzed the restrictions on

federal benefits under equal protection, but the Court made

Graham an afterthought. Had it started with Graham, the

Court would have considered the statutory restrictions on

aliens receiving federal benefits presumptively invalid and

then asked whether there was a compelling governmental

interest. See Gerald M. Rosberg, The Protection of Aliens

from Discriminatory Treatment by the National Government,

1977 Sup. Ct. Rev. 275, 294 (“The existence of these special

federal interests may explain why the federal government can

demonstrate a compelling need for a particular classification

even though a state could not. But it does not in an obvious

way explain why the burden of justification on the federal

government should be different from the burden on a state.”).

discrimination is so egregious that it falls with the rule of [Bolling v.

Sharpe].” Id. at 601.

40 KORAB V. FINK

Given the Court’s statements in Hampton, and given its

analysis of the national interest in naturalization and

immigration, the Court might well have honored Congress’s

preferences, even under strict scrutiny. But see Hampton,

426 U.S. at 117 (Brennan, J., concurring) (joining the

majority opinion “with the understanding that there are

reserved the equal protection questions that would be raised

by congressional or Presidential enactment of a bar on

employment of aliens by the Federal Government”). Instead,

the Court largely ignored the equal protection component of

the Fifth Amendment and left us scratching our heads over

two entirely separate modes of analysis of challenges to

federal restrictions on alienage.3

The Bolling equivalence principle aside, the Court has

also qualified Graham as applied to the states. The Court has

tended to affirm state classifications regarding political or

democratic rights afforded to aliens and has tended to

invalidate those classifications that limited the distribution of

economic benefits or regulated commercial opportunities,

altering the level of scrutiny on an almost case-by-case basis.

Following Graham, the Court has applied strict scrutiny to

some state restrictions on aliens—see, e.g., Bernal, 467 U.S.

at 216 (holding unconstitutional a Texas law prohibiting

3

Compare Erwin Chemerinsky, Constitutional Law: Principles and

Policies § 9.5.3 at 744 (3d ed. 2002) (“the Court’s decisions can be

criticized for so openly manipulating the level of scrutiny. The Court

could have used strict scrutiny . . . .”) with David F. Levi, Note, The Equal

Treatment of Aliens: Preemption or Equal Protection?, 31 Stan. L. Rev.

1069, 1091 (1979) (“The Supreme Court’s creation in Graham v.

Richardson of a suspect classification of alienage has not been a

successful experiment. . . . [T]he equal treatment of resident aliens by the

states is required by preemption rather than by the equal protection

clause.”).

KORAB V. FINK 41

aliens from becoming notaries); Nyquist v. Mauclet, 432 U.S.

1 (1977) (holding unconstitutional a New York law barring

resident aliens from state assistance for higher education); In

re Griffiths, 413 U.S. at 717 (holding unconstitutional a

Connecticut law barring aliens from becoming lawyers);

Sugarman, 413 U.S. at 634 (holding unconstitutional a New

York City law making aliens ineligible for city

employment)—but not to others. In one case it applied a

form of intermediate scrutiny. See Plyler v. Doe, 457 U.S.

202 (1982) (holding unconstitutional a law requiring alien

schoolchildren to pay for education that was free to citizens).

In still other cases, the Court has applied rational basis

scrutiny instead. See, e.g., Cabell v. Chavez-Salido, 454 U.S.

432 (1982) (holding constitutional a California law requiring

probation officers to be citizens); Ambach v. Norwick,

441 U.S. 68 (1979) (holding constitutional a New York law

requiring public schoolteachers to be citizens); Foley v.

Connelie, 435 U.S. 291 (1978) (holding constitutional a New

York law limiting appointment to state police force to

citizens). And in still other cases, the Court has largely

ignored the Equal Protection Clause altogether. See Toll v.

Moreno, 458 U.S. 1 (1982) (holding that the University of

Maryland’s policy barring domiciled aliens and their

dependents from acquiring in-state tuition violated the

supremacy clause); Elkins v. Moreno, 435 U.S. 647 (1978)

(holding that whether resident aliens can become

domiciliaries of Maryland is a matter of state law the federal

courts should leave to state courts as a matter of comity);

DeCanas v. Bica, 424 U.S. 351 (1976) (holding that a

California law prohibiting an employer from knowingly

employing an illegal alien was not unconstitutional as a

regulation of immigration or as being preempted under the

Supremacy Clause).

42 KORAB V. FINK

The curious point for my purposes is not so much whether

the Court upheld or struck down the state restrictions in the

face of an equal protection challenge, but that the Court did

not apply a consistent standard of review.4 It would be one

thing if the Court, consistently applying strict scrutiny,

upheld some state restrictions while striking others. It is an

entirely different matter when the Court doesn’t apply

consistently its standard of review. With all due respect for

the difficulty of these questions, the Court’s indecision over

the equal protection standard of review gives these cases the

appearance that the standard has been manipulated to

accommodate the Court’s intuition over the result in the

particular case. And its case law makes lower court review of

alienage restrictions all the more difficult.

III

This brief history should make us rethink whether

Graham’s equal protection analysis alone can explain the

Court’s cases. Obviously, I believe that it cannot. But I do

believe that Graham’s preemption analysis, not its equal

protection analysis, has significant explanatory power here.

A preemption analysis is more securely anchored in the

Constitution itself. There can be little question that “[t]he

4

As the Majority notes, Maj. Op. 25 n.10, the Dissent suggests both that

Hawai‘i’s denial of equal benefits to COFA residents is subject to strict

scrutiny, Dissent at 59, and that Congress has given the states “broad

discretion to discriminate against aliens in the provision of welfare

benefits,” Dissent at 68–69, all of which underscores the difficulty of

applying a uniform standard of review in cases involving alienage,

especially when they involve the intersection of federal schemes and state

schemes that have—at least in the abstract—been afforded differing levels

of scrutiny.

KORAB V. FINK 43

Government of the United States has broad . . . power over

the subject of immigration and the status of aliens.” Arizona

v. United States, 132 S. Ct. 2492, 2498 (2012). The

constitutional sources for that power are both textual and

structural. Most obviously, Article I grants Congress express

authority to “establish an uniform Rule of Naturalization.”

U.S. Const. art. I, § 8, cl. 4. In addition, the authority of the

political branches to determine the terms on which aliens may

immigrate to the United States, whether to visit, study, work,

marry, or remain, rests on an undefined amalgamation of

powers vested in Congress and the President. Those powers

include the Foreign Commerce Clause, id. art. I, § 8, cl. 3

(“Congress shall have Power . . . to regulate Commerce with

foreign Nations”), and the foreign affairs powers derived

from the President’s authority “to make Treaties” and

“appoint Ambassadors, other public Ministers and Consuls,”

id. art. II, § 2, cl. 2, and to “receive Ambassadors and other

public Ministers,” id. art. II, § 3. See Toll, 458 U.S. at 10.

The Court has also relied on the “inherent power [of the

United States] as sovereign to control and conduct relations

with foreign nations,” Arizona, 132 S. Ct. at 2498, including

concepts core to “the conduct of foreign relations, the war

power, and the maintenance of republican form of

government,” Harisiades v. Shaughnessy, 342 U.S. 580,

588–89 (1952). See also United States v. Valenzuela-Bernal,

458 U.S. 858, 864 (1982) (“The power to regulate

immigration—an attribute of sovereignty essential to the

preservation of any nation—has been entrusted by the

Constitution to the political branches of the Federal

Government.”); Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206, 210 (1953) (“[T]he power to expel or exclude

aliens [is] a fundamental sovereign attribute exercised by the

Government’s political departments largely immune from

judicial control”). In sum, the Court has said, “‘over no

44 KORAB V. FINK

conceivable subject is the legislative power of Congress more

complete than it is over’ the admission of aliens.” Fiallo,

430 U.S. at 792 (quoting Oceanic Navigation Co. v.

Stranahan, 214 U.S. 320, 339 (1909)).

The Court has frequently employed preemption as its

mode of analyzing state restrictions based on alienage. In

general, there are three ways Congress may preempt a law

through legislation. See Arizona, 132 S. Ct. at 2500–01.

First, because Congress possesses plenary authority over

immigration and naturalization, Congress may expressly

preempt certain laws. See, e.g., Chamber of Commerce v.

Whiting, 131 S. Ct. 1968 (2011) (discussing 8 U.S.C.

§ 1324a(h)(2), which forbids “any State or local law imposing

civil or criminal sanctions . . . upon those who employ . . .

unauthorized aliens”). Second, where state laws actually

conflict with federal laws, the state laws must yield. Arizona,

132 S. Ct. at 2502 (holding that a law making failure to

comply with federal alien-registration requirements a state

misdemeanor was preempted). Third, even where Congress

has not expressly preempted state laws, but “has enacted a

complete scheme of regulation . . . , states cannot,

inconsistently with the purpose of Congress, conflict or

interfere with, curtail or complement, the federal law, or

enforce additional or auxiliary regulations.” Hines, 312 U.S.

at 66. This is so-called field preemption.5 See, e.g., Toll,

5

The distinction between actual conflict preemption and field

preemption is not always clear. See, e.g., Arizona, 132 S. Ct. at 2502

(finding that “the Federal Government has occupied the field of alien

registration” but then concluding that “[p]ermitting [Arizona] to impose

its own penalties for the federal offense here would conflict with the

careful framework Congress adopted”). See also Hines, 312 U.S. at 67

(noting that expressions such as “conflicting” or “occupying the field” do

KORAB V. FINK 45

458 U.S. at 17 (holding that the Immigration and Nationality

Act was a comprehensive regulation of domiciled, non-

immigrant G-4 visa holders and that it preempted Maryland’s

refusal to grant such persons in-state tuition); Hines, 312 U.S.

at 74 (holding that the Alien Registration Act of 1940

preempted Pennsylvania’s alien registration requirements).

Even where Congress has not legislated specifically, the

Court has enforced a kind of “dormant immigration”6

analysis. The principle of “dormant” legislative authority

was first recognized in a commerce case, Cooley v. Bd. of

Wardens: “Whatever subjects of this power are in their nature

national, or admit only of one uniform system, or plan of

regulation, may justly be said to be of such a nature as to

require exclusive legislation by Congress.” 53 U.S. (12

How.) 299, 319 (1852). Since that time, the Court has

defended Congress’s power to legislate exclusively on

matters requiring a national or uniform rule, irrespective of

whether Congress has in fact adopted such a rule. The Court

has invoked the same principle in the context of immigration.

In Henderson v. Mayor of the City of New York, it struck New

York and Louisiana provisions that taxed passengers arriving

from overseas. 92 U.S. at 259. Citing Cooley, the Court

wrote that taxing arriving aliens imposed a burden on

Congress’s powers under the Foreign Commerce Clause and

on our “international relations”:

not provide “an infallible constitutional test or an exclusive constitutional

yardstick”).

6

See Erin F. Delaney, Note, In the Shadow of Article I: Applying a

Dormant Commerce Clause Analysis to State Laws Regulating Aliens, 82

N.Y.U. L. Rev. 1821 (2007); Karl Manheim, State Immigration Laws and

Federal Supremacy, 22 Hastings Const. L.Q. 939, 958 (1995) (referring

to the “Dormant Immigration Clause”).

46 KORAB V. FINK

A regulation which imposes onerous, perhaps

impossible, conditions on those engaged in

active commerce with foreign nations, must of

necessity be national in its character. It is

more than this; for it may properly be called

international. It belongs to that class of laws

which concern the exterior relation of this

whole nation with other nations and

governments.

Id. at 273. Accordingly, “[t]he laws which govern the right

to land passengers in the United States from other countries”

“may be and ought to be, the subject of uniform system or

plan.” Id. See Hines, 312 U.S. at 66–67; Chy Lung, 92 U.S.

at 280 (“The passage of laws which concern the admission of

citizens and subjects of foreign nations to our shores belongs

to Congress, and not to the States. . . . If it be otherwise, a

single State can, at her pleasure, embroil us in disastrous

quarrels with other nations.”). But see DeCanas, 424 U.S. at

354–55 (“[T]he Court has never held that every state

enactment which in any way deals with aliens is a regulation

of immigration and thus per se pre-empted by this

constitutional power, whether latent or exercised. . . . [T]he

fact that aliens are the subject of a state statute does not

render it a regulation of immigration . . .”).

The Court has recently enforced Congress’s dormant

powers where, even though state law does not actually

conflict with federal law, it is inconsistent with a national rule

or scheme. See Arizona, 132 S. Ct. at 2504–05 (observing

that Congress’s “comprehensive framework does not impose

federal criminal sanctions on [aliens who seek or engage in

unauthorized work]” and that Arizona’s law imposing

criminal penalties on unauthorized alien employees

KORAB V. FINK 47

“conflict[s with] the method of enforcement” because

“Congress [must have] decided it would be inappropriate to

impose criminal penalties on aliens who seek or engage in

unauthorized employment”).

In some, even comprehensive, legislative schemes,

Congress has expressly authorized states to regulate certain

aspects of an alien’s privileges within the state. The Court

recently approved state laws that relied on such authorization.

In Chamber of Commerce v. Whiting, Congress expressly

preempted “‘any State or local law imposing civil or criminal

sanctions (other than through licensing and similar laws)

upon those who employ . . . unauthorized aliens.’” 131 S. Ct.

at 1968 (quoting 8 U.S.C. § 1324(h)(2) (emphasis added)).

In effect, the parenthetical was express congressional non-

preemption. In response, Arizona adopted the Legal Arizona

Workers Act in which it provided that employers who

knowingly or intentionally employed unauthorized aliens

could have their business licenses suspended or revoked. The

Court rejected a claim that Arizona’s law was either expressly

or impliedly preempted by federal law. With respect to

express preemption, the Court held that federal law

“expressly preempts some state powers dealing with the

employment of unauthorized aliens and it expressly preserves

others. We hold that Arizona’s licensing law falls well within

the confines of the authority Congress chose to leave to the

States.” Id. at 1981. With respect to the claim of implied

preemption, the Court observed that “[g]iven that Congress

specifically preserved such authority for the States, it stands

to reason that Congress did not intend to prevent the States

from using appropriate tools to exercise that authority.” Id.

(plurality opinion). The Court noted that Arizona’s “tools”

mirrored the federal provisions, including “us[ing] the

Federal Government’s own definition of ‘unauthorized alien,’

48 KORAB V. FINK

. . . rel[ying] solely on the Federal Government’s own

determination of who is an unauthorized alien, and

requir[ing] Arizona employers to use the Federal

Government’s own system for checking employee status.”

Id. at 1987.

All of which is to suggest that preemption analysis, not

equal protection, is the better approach, for preemption

analysis can be applied more consistently to alienage cases,

with more predictable outcomes for parties and courts.

IV

The choice between a pure preemption analysis and a

pure equal protection analysis yields very different results in

this case.

A

In my view, and consistent with the majority opinion,

Hawai‘i’s health insurance program at issue in this case is not

expressly preempted by any federal law. Neither does it

actually conflict with any federal law, nor does it obstruct in

any way the congressional scheme. Hawai‘i’s law most

resembles the law at issue in Chamber of Commerce: Hawai‘i

has responded to a congressional authorization, and it has

mirrored federal law to make its law consistent with the

federal scheme.

As the majority opinion explains, Congress has

established three categories of aliens for purposes of federal

and state benefits. Maj. Op. at 7–9; see Pimentel v. Dreyfus,

670 F.3d 1096, 1100–01 (9th Cir. 2012). One group of

aliens—including permanent resident aliens, refugees and

KORAB V. FINK 49

asylees, and aliens who are serving or have served in

the Armed Forces of the United States—“shall be eligible

for any State public benefits.” 8 U.S.C. § 1622(b). A second

group of aliens—including those aliens here without

authorization—are “not eligible for any State or local public

benefit,” unless the state adopted a law “after August 22,

1996, . . . affirmatively provid[ing] for such eligibility.” Id.

§ 1621(a), (d). Finally, the third group includes all other

aliens. For this group, “a State is authorized to determine the

eligibility for any State public benefits.” Id. § 1622(a). The

plaintiffs in this case, who are nonimmigrant aliens admitted

under the Compact of Free Association with the United

States,7 fall into this third category.

Section 1622(a), as plainly as words can express it,

authorizes states to decide whether to make that class of

aliens eligible for state benefits. It is, as in Chamber of

7

See Compact of Free Association, reprinted at 48 U.S.C. § 1901 note.

A citizen of the Marshall Islands or the Federated States of Micronesia

may “establish residence as a nonimmigrant in the United States and its

territories and possessions.” Compact § 141(a). The Compact further

specifies:

The right of such persons to establish habitual residence

in a territory or possession of the United States may,

however, be subjected to nondiscriminatory limitations

provided for:

(1) in statutes or regulations of the Unities States; or

(2) in those statutes or regulations of the territory or

possession concerned which are authorized by the laws

of the United States.

Compact § 141(b).

50 KORAB V. FINK

Commerce, express non-preemption. See Chamber of

Commerce, 131 S. Ct. at 1981. As in Chamber of Commerce,

Hawai‘i “uses the Federal Government’s own definition of

[‘qualified alien’], [and] relies solely on the Federal

Government’s own determination of who is a[] ‘[qualified

alien’].” Id. at 1987. By definition, Hawai‘i’s act is

authorized by Congress and, accordingly, is not preempted.

Id. (plurality opinion). Hawai‘i has “‘neither added[ed] to

nor take[n] from the conditions lawfully imposed by

Congress.’” Graham, 403 U.S. at 378 (quoting Takahashi,

334 U.S. at 419). Acting consistent with Congress’s scheme,

and at its invitation, Hawai‘i’s law cannot “encroach upon

exclusive federal power.” Id. at 380.

Nor does Hawai‘i’s scheme violate Congress’s dormant

immigration powers. There is no reason for federal courts to

intervene here to defend Congress’s power over immigration

and naturalization. Congress drew the lines clearly: there are

classes of aliens who may come to the United States and must

be treated on the same basis as if they were citizens; there are

other classes of aliens—those who have not come to our

shores lawfully—who may not receive such benefits, even if

the states were otherwise disposed to afford them our

largesse. Finally, there is the third class of aliens—including

those entering the United States lawfully under COFA—for

whom Congress has determined that the states need not treat

them as citizens, but may do so at the state’s discretion.

Where Congress has made such a determination, the courts

should only second-guess that judgment if Congress itself has

overstepped its constitutional authority. I do not believe there

is any basis for that theory.

KORAB V. FINK 51

B

If we follow a pure equal protection model, it is unlikely

that Hawai‘i’s scheme can muster constitutional scrutiny.

Following Graham, Hawai‘i’s law discriminates between

citizens and aliens, and, for that reason (as the district court

correctly pointed out), Hawai‘i must satisfy strict scrutiny.

Hawai‘i will have to show that it has a compelling state

interest in treating resident aliens differently from citizens,

and even if it can show such an interest, it will have to prove

that it has narrowly tailored its program. Hawai‘i can likely

offer two interests. First, it adopted its law because of

budgetary reasons. This has never been thought to be a

sufficient reason to justify discrimination that is subject to

increased judicial scrutiny. See Mem’l Hosp. v. Maricopa

Cnty., 415 U.S. 250, 263 (1974) (“[A] State may not protect

the public fisc by drawing an invidious distinction between

classes of its citizens”); Graham, 403 U.S. at 375 (“[A]

concern for fiscal integrity is not compelling.”); Shapiro v.

Thompson, 394 U.S. 618, 633 (1969) (“a State has a valid

interest in preserving the fiscal integrity of its programs. . . .

But a State may not accomplish such a purpose by invidious

distinctions between classes of its citizens.”); see also Legal

Servs. Corp. v. Velazquez, 531 U.S. 533, 547–49 (2001).

Second, Hawai‘i can point to PRWORA itself and Congress’s

declaration that a state that “follow[s] the Federal

classification in determining the eligibility of . . . aliens for

public assistance shall be considered to have chosen the least

restrictive means available for achieving the compelling

government interest of assuring that aliens be self-reliant in

accordance with national immigration policy.” 8 U.S.C.

§ 1601(7). Despite the appeal of Congress’s finding, this is

not likely a sufficient justification. In Graham, the Court

made clear that “Congress does not have the power to

52 KORAB V. FINK

authorize the individual States to violate the Equal Protection

Clause.” 403 U.S. at 382. More importantly, the Court has

previously held that, whatever reasons the federal government

may offer for its own discrimination policy, the states cannot

rely on that same justification. The states must supply their

own sovereign reasons and cannot cite the reasons of a

coordinate government. See City of Richmond v. J.A. Croson

Co., 488 U.S. 469, 504 (1989) (“Congress has made national

findings that there has been societal discrimination in a host

of fields. If all a state or local government need do is find a

congressional report on the subject to enact a set-aside

program, the constraints of the Equal Protection Clause will,

in effect, have been rendered a nullity.”). In sum, if we

looked exclusively to equal protection principles, I think it is

likely that Hawai‘i’s law would fall.

V

The equal protection principle announced in Graham has

proven unsustainable. In the end, I think that preemption

analysis will prove more consistent with the text and structure

of the Constitution, the Court’s pre-Graham cases, and even

with the history of the Fourteenth Amendment itself.8 Were

8

Nothing I have said here should diminish in any way the fact that

aliens are “persons” entitled to the protection of the Due Process and

Equal Protection Clauses of the Fourteenth Amendment and the Due

Process Clause—including its equal protection component—of the Fifth

Amendment. See Takahashi, 334 U.S. at 410; Truax, 239 U.S. at 33. But

the tension evident in the Court’s post-Graham cases is a consequence of

the Court’s efforts to reconcile the Equal Protection Clause with a

recognition that there are common law and constitutional distinctions

between the rights of citizens and the rights of aliens visiting or residing

in the United States.

KORAB V. FINK 53

it within my power, I would adopt preemption analysis as the

appropriate analysis for evaluating the alienage cases.

Because I am bound by Graham and the cases that follow it,

I join Judge McKeown’s opinion for the court.

The Fourteenth Amendment, of course, took account of these

differences in the Privileges and Immunities Clause, which provided that

the “privileges or immunities of citizens of the United States” could not

be abridged, and in the Due Process and Equal Protection Clauses, which

applied to “any person.” The current confusion is due in no small part to

the Court’s disastrous decision in The Slaughter-House Cases, 83 U.S.

(16 Wall.) 36 (1873). In that case, as Justice Field pointed out, the Court

effectively read the Privileges or Immunities Clause out of the Fourteenth

Amendment, rendering the Clause a “vain and idle enactment, which

accomplished nothing, and most unnecessarily excited Congress and the

people on its passage.” Id. at 96 (Field, J., dissenting). Understandably,

to compensate, the Court later invigorated the Equal Protection and Due

Process Clauses, which had narrower purposes, but applied more broadly

to all “persons.” See McDonald v. City of Chicago, 130 S. Ct. 3020,

3029–31 (2010). The Court’s treatment of aliens under the Equal

Protection Clause has been, in large measure, both counter-textual and

counter-historical. See David P. Currie, The Constitution in the Supreme

Court: The First Hundred Years, 1789–1888, at 342–50, 387 & n.133

(1985); John Harrison, Reconstructing the Privileges or Immunities

Clause, 101 Yale L.J. 1385, 1390, 1442–47 (1992); Earl M. Maltz, The

Constitution and Nonracial Discrimination: Alienage, Sex, and the

Framers’ Ideal of Equality, 7 Const. Comment 251, 257–65 (1990).

54 KORAB V. FINK

CLIFTON, Circuit Judge, dissenting:

The Equal Protection Clause of the Fourteenth

Amendment provides that “[n]o State shall . . . deny to any

person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1. It is settled law that

alienage is a suspect class and that state laws that

discriminate against aliens who are lawfully present in this

country generally violate the Equal Protection Clause unless

they can withstand strict scrutiny.1

In this case, the State of Hawai‘i discriminated against

aliens from three Micronesian nations who were lawfully

present in this country, based on the terms of Compacts of

Free Association those nations entered with the United States

(“COFA Residents”), by limiting the state-funded health

benefits available to them. The state could provide to them

the same benefits it provides to citizens. It had, in fact,

provided the same benefits to COFA Residents for fourteen

years, until budgetary woes motivated the state to try to save

money, by exercising an option given to it by Congress.

1

See Graham v. Richardson, 403 U.S. 365, 371–72 (1971); see also

Bernal v. Painter, 467 U.S. 216, 219 (1984); Nyquist v. Mauclet, 432 U.S.

1, 7 (1977); Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de

Otero, 426 U.S. 572, 602 (1976); In re Griffiths, 413 U.S. 717, 721

(1973); Sugarman v. Dougall, 413 U.S. 634, 642 (1973); cf. Takahashi v.

Fish & Game Comm’n, 334 U.S. 410, 420 (1948) (applying equal

protection principles to discrimination against aliens and striking down

state ban on aliens’ commercial fishing). There are two exceptions to the

application of strict scrutiny not relevant to this case. See Toll v. Moreno,

458 U.S. 1, 12 n.17 (1982) (outlining the self-government exception);

Plyler v. Doe, 457 U.S. 202, 223–24 (1982) (holding that discrimination

against illegal aliens is subject only to intermediate scrutiny).

KORAB V. FINK 55

But the state’s fiscal condition does not provide the

compelling justification required under the Equal Protection

Clause to justify unequal treatment of aliens. The option

given to the states by Congress to decide whether to treat

aliens differently was illusory, under established Supreme

Court precedent. Congress has broad power, based on its

authority over immigration and foreign relations, to decide

whether to treat aliens differently than citizens, but Congress

does not have the power to assign that discretion to states. As

explained by the Supreme Court, “Congress does not have the

power to authorize the individual States to violate the Equal

Protection Clause.” Graham v. Richardson, 403 U.S. 365,

382 (1971). When the State of Hawai‘i exercised the option

given to it by Congress, it discriminated against aliens

without a compelling justification. In my view, that violated

the Equal Protection Clause. I respectfully dissent.

I. Disparity in Expenditure of State Funds

The majority opinion most obviously goes astray when it

suggests that Plaintiffs have failed to establish a claim of

disparity because they have not claimed that Hawai‘i’s per

capita expenditures of state funds differ as between citizens

and COFA Residents. Maj. Op. at 23 & n.8. The majority

thus appears to require that, in order to establish a claim of

disparate treatment, a class alleging discrimination under the

Equal Protection Clause must demonstrate that the state is

expending less funds, on a per capita basis, than it is spending

on the rest of the population. In effect, the majority requires

Plaintiffs to allege (and eventually, I presume, to prove) that

they have been shortchanged on a per capita basis. Because

Plaintiffs have not so alleged, the majority harbors serious

doubts that Plaintiffs have made out a claim of an equal

56 KORAB V. FINK

protection violation by the state. That approach is wrong in

two separate ways.

First, it treats Medicaid as if it consisted of two separate

programs, one federal and one state, because the program is

partially funded by the federal government. But that is not

how Medicaid actually works. In Hawai‘i, as in most states,

there is a single plan, administered by the state. The federal

government reimburses the state for a significant portion of

the cost, and the plan must comply with federal requirements,

but it is a state plan. The majority opinion’s own description

of the program, at 5, confirms as much. Beneficiaries are not

covered by two separate federal and state plans, but rather by

one single plan administered by the state.

Second, and more importantly, the approach suggested by

the majority opinion runs afoul of bedrock equal protection

doctrine dating back at least to Brown v. Board of Education,

347 U.S. 483 (1954). The majority opinion would allow a

state to treat a class of aliens differently as long as the state’s

financial outlay for Plaintiffs and other members of the

suspect class is the same, on a per capita basis, as the state’s

expenditures for the rest of the population. But that does not

change the fact that Hawai‘i has treated aliens differently by

placing COFA Residents in a program with reduced benefits.

That action constitutes disparate treatment in violation of the

Equal Protection Clause. The disparate treatment is not

immunized because the per capita expenditures might be the

same. “Separate but equal” is not permitted.

The approach of the majority opinion could justify a state

reducing benefits provided to members of a particular group

on the ground that providing benefits to that group is more

expensive than providing the same benefits to the general

KORAB V. FINK 57

population. For example, a state could reduce chemotherapy

and radiation therapy benefits for African Americans and

justify this discrimination by citing African Americans’

increased susceptibility to various types of cancer.2 That state

could argue that, despite the reduced benefits available to any

single individual, its average per capita expenditures for

African Americans were not less than the expenditures for the

rest of the population.

Such a “separate but equal” approach runs counter to the

dictates of Brown v. Board of Education. “The point of the

equal protection guarantee is not to ensure that facially

discriminatory laws yield roughly equivalent outcomes . . . .

Rather, the right to equal protection recognizes that the act of

classification is itself invidious and is thus constitutionally

acceptable only where it meets an exacting test.” Finch v.

Commonwealth Health Ins. Connector Auth., 946 N.E.2d

1262, 1278 (Mass. 2011).

I don’t really think the majority opinion is trying to return

to the era of separate but equal. Although it denies the

existence of a claim of disparity vis-a-vis state action, the

majority opinion nevertheless proceeds to assume arguendo

the existence of such a claim and subjects Hawai‘i’s actions

to review under the Equal Protection Clause, albeit based on

a rational basis standard. See Maj. Op. at 23–24. If there

really were no disparity attributable to the State of Hawai‘i,

as the majority argues, the Equal Protection Clause would

simply be inapplicable, and no further judicial review would

be required. By discussing the equal protection framework

2

See, e.g., Cancer and African Americans, U.S. Dep’t of Health &

Human Servs. Office of Minority Health, http://minorityhealth.hhs.gov/

templates/content.aspx?ID=2826 (last updated Sept. 11, 2013).

58 KORAB V. FINK

established by Graham v. Richardson, 403 U.S. 365 (1971),

and Mathews v. Diaz, 426 U.S. 67 (1976), and applying

rational basis review to uphold Hawai‘i’s discriminatory

health welfare programs, the majority tacitly acknowledges

that a claim for discrimination based on disparate treatment

does not require proof of disparate per capita expenditure of

funds. But it shouldn’t even start down that road.

II. Hawai‘i’s Decision to Reduce Benefits for COFA

Residents

The main thrust of the majority opinion, as I understand

it, is that Hawai‘i’s actions are subject only to rational basis

review under the Equal Protection Clause, rather than strict

scrutiny, because those actions were authorized by Congress.

Here again, the majority fails to heed well established

Supreme Court precedent.

We must decide this case under the equal protection

framework established by the Supreme Court in Graham and

Mathews. The equal protection holdings in those cases are

clear, and the majority opinion ably summarizes them, at

13–17. In brief, Graham requires that we review state

discrimination against aliens under strict scrutiny, while

Mathews requires that we review federal discrimination

against aliens under rational basis review, because of the

federal government’s broad powers in the area of immigration

and foreign relations. The question this case thus turns on is

whether the denial of equal benefits to COFA Residents is

ultimately the responsibility of the state or of Congress.

I conclude that it is the State of Hawai‘i that is ultimately

responsible. The majority reaches a different conclusion,

permitting it to uphold Hawai‘i’s program under rational

KORAB V. FINK 59

basis review, by obscuring the role states play within the

statutory framework established by Congress.

The majority repeatedly emphasizes that Hawai‘i is

following the federal direction and that states are given only

limited discretion to decide which aliens to provide benefits

to under the Welfare Reform Act. But there is no federal

direction regarding how to treat COFA Residents and others

within what the majority describes as the Welfare Reform

Act’s third category of aliens. The statute gives states

discretion to decide whether or not to provide health benefits

to persons within that category.3 See 8 U.S.C. §§ 1621–1622;

Maj. Op. at 7–9.

In making the decision not to provide equal benefits to

COFA Residents, Hawai‘i has necessarily made a distinction

on the basis of alienage: a similarly situated citizen is eligible

to receive more benefits. Because Hawai‘i has classified

COFA Residents on the basis of alienage, the Equal

Protection Clause requires that we strictly scrutinize

Hawai‘i’s actions to ensure that they are “narrowly tailored

measures that further compelling governmental interests.”

Johnson v. California, 543 U.S. 499, 505 (2005) (quoting

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227

(1995)).

3

In fact, the statute gives discretion regarding how to treat aliens within

the second category as well, notwithstanding the majority’s description of

that category as that of “aliens for whom states must not provide any state

benefits,” Maj. Op. at 18 (emphases added). The Welfare Reform Act

allows states to provide benefits to this category of aliens “through the

enactment of a State law after August 22, 1996, which affirmatively

provides for [those aliens’] eligibility.” 8 U.S.C. § 1621(d).

60 KORAB V. FINK

That federal discrimination against aliens would be

subject only to rational basis review is irrelevant. We are

presented with a case not of federal discrimination, but one

of state discrimination. It is undisputed that COFA Residents

are not eligible for federal benefits and that Hawai‘i thus

cannot obtain federal reimbursements for expenses incurred

to cover COFA Residents under Hawai‘i’s Medicaid

programs.4 See 8 U.S.C. §§ 1611, 1641. But it is also

undisputed that Hawai‘i remains free to cover COFA

Residents under its Medicaid programs, so long as it uses

only state funds—something Hawai‘i did for fourteen years,

from the time of the enactment of the Welfare Reform Act in

1996 until 2010. See id. §§ 1621–22. In 2010, based on

COFA Residents’ status as aliens, Hawai‘i cut them off from

its Medicaid programs and placed them in the reduced-

benefits BHH program.5 See Haw. Admin. Rules (HAR)

§§ 17-1714-28, 17-1722.3-7. Hawai‘i’s actions thus classify

on the basis of alienage and are subject to strict scrutiny.

In effect, through the Welfare Reform Act, I think

Congress has given states a lit firecracker, at risk of

exploding when a state exercised its discretion to discriminate

on the basis of alienage. It was Hawai‘i’s decision not to

4

“Medicaid programs” refers to the managed care programs Hawai‘i has

operated since 1993, pursuant to a waiver approved by the federal

government under section 1115 of the Social Security Act. These

programs include QUEST, QUEST-Net, QUEST Adult Coverage

Expansion, and QUEST Expanded Access.

5

Because the BHH program has a capped enrollment, HAR § 17-

1722.3-10, and more COFA Residents were moved from the Medicaid

programs to BHH than would normally be allowed under the cap, new

COFA Residents moving to Hawai‘i after 2010 may not be covered under

any state medical welfare program.

KORAB V. FINK 61

cover COFA Residents under its Medicaid programs that

effected the discrimination in this case. “Insofar as state

welfare policy is concerned, there is little, if any, basis for

treating persons who are citizens of another State differently

from persons who are citizens of another country.” Mathews,

426 U.S. at 85 (footnote omitted). “The States enjoy no

power with respect to the classification of aliens. This power

is ‘committed to the political branches of the Federal

Government.’” Plyler, 457 U.S. at 225 (citation omitted)

(quoting Mathews, 426 U.S. at 81). And, as I will discuss

below, this is not a power the federal government can

delegate to the states.

III. A Tale of Three Clauses: Equal Protection,

Preemption, and the Immigration and

Naturalization Power

The principles just articulated lead me to the majority’s

final reason for upholding Hawai‘i’s discriminatory actions:

its conflation of the Supreme Court’s equal protection

holdings in Graham and Mathews with the distinct

preemption holding in Graham. As explained above, in the

equal protection arena, Graham stands for the proposition

that strict scrutiny applies to state laws classifying on the

basis of alienage, and Mathews stands for the proposition that

rational basis review applies to similar federal laws. As a case

interpreting the Supremacy Clause, Graham is part of the line

of cases that establishes federal supremacy in the area of

immigration and naturalization, as the concurrence by Judge

Bybee explains, at 20–27. See Graham, 403 U.S. at 376–80;

see also, e.g., Arizona v. United States, 132 S. Ct. 2492,

2498–501 (2012) (outlining the preemption principles

applicable in the area of immigration and naturalization).

62 KORAB V. FINK

In this case, no one argues that Hawai‘i’s actions are

preempted by the Welfare Reform Act. Preemption doctrine

has no bearing on the outcome here. Congress has authorized

Hawai‘i to exclude COFA Residents from the state Medicaid

programs, see 8 U.S.C. § 1622, so there is no conflict

between the state’s action and the Welfare Reform Act.

The crux of the question is not whether Hawai‘i has

adhered to the requirements prescribed by Congress in the

Welfare Reform Act—it has, and no one argues that it has

not—but rather whether Hawai‘i could constitutionally take

the action it took “as part and parcel of the federal welfare

scheme.” Maj. Op. at 25 n.10. I submit that we should answer

this question in the negative, following precedent from both

the Supreme Court and our own court.

Graham stated that:

Although the Federal Government admittedly

has broad constitutional power to determine

what aliens shall be admitted to the United

States, the period they may remain, and the

terms and conditions of their naturalization,

Congress does not have the power to

authorize the individual States to violate the

Equal Protection Clause. Shapiro v.

Thompson, 394 U.S., at 641, 89 S. Ct., at

1335. Under Art. I, § 8, cl. 4, of the

Constitution, Congress’ power is to ‘establish

an uniform Rule of Naturalization.’ A

congressional enactment construed so as to

permit state legislatures to adopt divergent

laws on the subject of citizenship

requirements for federally supported welfare

KORAB V. FINK 63

programs would appear to contravene this

explicit constitutional requirement of

uniformity.

403 U.S. at 382; see also Saenz v. Roe, 526 U.S. 489, 508

(1999) (“Congress has no affirmative power to authorize the

States to violate the Fourteenth Amendment and is implicitly

prohibited from passing legislation that purports to validate

any such violation.”).

We previously relied on this passage in holding that a

federal statute that requires states to grant benefits to citizens

and certain aliens while also requiring states to deny benefits

to other aliens did not authorize the states to violate the Equal

Protection Clause, because “Congress ha[d] enacted a

uniform policy regarding the eligibility of [certain aliens] for

welfare benefits.” Sudomir v. McMahon, 767 F.2d 1456,1466

(9th Cir. 1985). As such, we stated that “[t]his makes

inapplicable the suggestion in Graham v. Richardson that

Shapiro may require the invalidation of congressional

enactments permitting states to adopt divergent laws

regarding the eligibility of aliens for federally supported

welfare programs.” Id. at 1466–67 (citation omitted).

Both the Supreme Court and this court recognize that

uniformity is required for any congressional enactment

regulating immigration and the status of aliens, because

Congress’s power over immigration and naturalization

matters derives from the Naturalization Clause, which grants

Congress the power “[t]o establish an uniform Rule of

Naturalization.” U.S. Const. art. I, § 8, cl. 4. The majority

opinion makes an effort to argue that the uniformity

requirement is inapplicable here because the original

motivations for the Naturalization Clause centered around

64 KORAB V. FINK

avoiding a scenario that had plagued the Articles of

Confederation, whereby a naturalization decision made by

one state with respect to aliens within its territory was

binding on other states. Maj. Op. at 18–19 (citing Soskin v.

Reinertson, 353 F.3d 1242, 1257 (10th Cir. 2004)). However,

the majority also appears to recognize that, whatever the

original intent of the Naturalization Clause’s uniformity

requirement may have been, it applies to this case. See id.

The majority minimizes the significance of the divergent

Medicaid eligibility requirements allowed through the

discretion the Welfare Reform Act gives to the states. See id.

at 19 (“The limited discretion authorized . . . does not

undermine the uniformity requirement of the Naturalization

Clause.”); id. at 20 (“[A] state’s limited discretion to

implement a plan . . . does not defeat or undermine

uniformity.”). In reaching this conclusion, the majority relies

on the Supreme Court’s reading of the Bankruptcy Clause’s

uniformity requirement. See id. at 21–22.

Unfortunately, the majority’s analogy to the Bankruptcy

Clause does not fit. The analogy fails to recognize the

crucially important counterweight the Equal Protection

Clause provides against the constitutional grant of power—a

counterweight present in this case but absent from the

bankruptcy arena.

The grants of power in Article I with respect to

naturalization and bankruptcy are very similar. Indeed, the

Naturalization Clause and the Bankruptcy Clause are listed

together in a single clause within Article I, section 8, which

grants Congress the power “[t]o establish an uniform Rule of

Naturalization, and uniform Laws on the subject of

Bankruptcies throughout the United States.” U.S. Const. art.

KORAB V. FINK 65

I, § 8, cl. 4. It is also true that the Supreme Court has

interpreted the uniformity requirement in the Bankruptcy

Clause to allow for the incorporation of divergent state laws

within the Bankruptcy Act. See Maj. Op. at 20 (citing, among

others, Hanover National Bank v. Moyses, 186 U.S. 181

(1902)).

The Naturalization Clause and the Bankruptcy Clause are

simply grants of power to Congress, however. They do not

require Congress to pass federal naturalization and

bankruptcy laws. The first federal naturalization law, Act of

Mar. 26, 1790, ch. 3, 1 Stat. 103, was passed right away, by

the First Congress, likely to avoid the serious difficulties

presented by the states’ divergent laws on the subject under

the Articles of Confederation. The first federal bankruptcy

law was not passed for more than a decade, until 1800, Act of

Apr. 4, 1800, ch. 19, 2 Stat. 19.

That the majority relies so heavily on the constitutional

grants of power contained in Article I is thus particularly

problematic. If there were no federal bankruptcy law (as was

the case for the first eleven years of our nation’s

Constitution), it is clear that the states could adopt their own

bankruptcy laws, crafting their creditor-debtor relationships

as they wished, advantaging some creditors and debtors over

others, so long as the states’ laws were rational.

Not so for immigration and naturalization. It would not be

the case that, if there were no federal immigration and

naturalization laws dealing with the United States’ relations

with aliens, the states would be free to craft their own laws,

advantaging citizens and some aliens over other aliens. The

Equal Protection Clause would prevent them from doing so,

66 KORAB V. FINK

given the strict scrutiny applied to distinctions by states

between aliens and citizens under Graham.

It is this crucial interaction between the Article I grant of

power and the Equal Protection Clause that the majority

opinion neglects, which leads it to its unpersuasive

conclusion that the discretion given to the states by the

Welfare Reform Act does not undermine uniformity. That

conclusion rests on the separate preemption doctrine that is

not part of this case and does not come to grips with the

dictates of the Equal Protection Clause.

Consider the following hypothetical. Congress passes and

the President signs a new law, the Alien Discrimination Act.

In it, Congress authorizes states to classify aliens in any

manner that is not wholly irrational. To justify the Act,

Congress articulates a uniform policy of devolving more

traditionally state police powers to the states.6 As a

preemption matter, this Act would remove any obstacles to

state legislation on the subject. But could the states then

discriminate against aliens subject only to rational basis

review under the Equal Protection Clause? The answer must

surely be “no,” if we are to heed Graham’s statement that

“Congress does not have the power to authorize the

individual States to violate the Equal Protection Clause.”

403 U.S. at 382. Strict scrutiny must still apply in this

hypothetical. The majority opinion, at 24, describes that

statement in Graham as “almost tautological” and proceeds

to treat it as if it were not there, taking the view that as long

6

This uniform federal policy would follow the principle of “New

Federalism,” a principle which also underlies the Welfare Reform Act.

See, e.g., Steven D. Schwinn, Toward a More Expansive Welfare

Devolution Debate, 9 Lewis & Clark L. Rev. 311, 312–13 (2005).

KORAB V. FINK 67

as Congress clearly expresses its will, it can authorize

individual states to discriminate against aliens.7 Though I may

have sympathy for the position of the State of Hawai‘i, see

below at 70–71, I would not so freely disregard the Supreme

Court’s explicit pronouncements.

The “limited” nature of the discretion to discriminate the

states are given under the Welfare Reform Act is irrelevant:

the Act still authorizes states to discriminate against some

aliens in the provision of some welfare benefits, and thus

authorizes them to violate the Equal Protection Clause.

Therefore, in this case as in the hypothetical above, strict

scrutiny must apply.

My conclusion does not detract from Sudomir’s

requirement that states cannot be compelled to replace federal

funding where the federal statute requires states to

discriminate against aliens. 767 F.2d at 1466. In such cases,

the states are merely “follow[ing] the federal direction.”

Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982).

In this case, though, there is no federal direction for states

to follow. The ultimate decision is left up to each state.

Congress articulated what the majority argues are uniform

7

The majority opinion also states that I am asking the wrong question,

but its own language underscores its confusion as to whether this is an

equal protection or a preemption case. The majority would have me ask

“not whether Congress may authorize Hawai‘i to violate the Equal

Protection Clause but rather ‘what constitutes such a violation when

Congress has (clearly) expressed its will regarding a matter relating to

aliens.’” Maj. Op. at 24 (quoting Soskin, 353 F.3d at 1254). I know of no

equal protection doctrine that turns on whether “Congress has (clearly)

expressed its will.” That is instead the language of preemption analysis.

See, e.g., Wyeth v. Levine, 129 S. Ct. 1187, 1194–95 (2009).

68 KORAB V. FINK

policies in the Welfare Reform Act, including a policy “to

assure that aliens be self-reliant in accordance with national

immigration policy,” 8 U.S.C. § 1601(5), and “to remove the

incentive for illegal immigration provided by the availability

of public benefits,” id. § 1601(6). Those policies would

presumably support a flat prohibition on providing benefits to

aliens or to a specified group of aliens. Congress did not enact

a prohibition, though. The decision as to how a given group

of aliens is to be treated is simply left to each state. In light of

the broad discretion it gives to the states, the Act simply does

not provide a federal direction with regard to COFA

Residents and others in the third category of aliens. It does

not require or forbid the states to do anything.

Although the majority opinion argues, at 15, that Hawai‘i

followed a federal direction by shunting COFA Residents into

the BHH program, it could also be said that Hawai‘i followed

a federal direction during the fourteen years when it included

COFA Residents in its Medicaid programs. A federal

“direction” that points in two opposite ways is not a direction.

We have already recognized as much. See Pimentel v.

Dreyfus, 670 F.3d 1096, 1109 (9th Cir. 2012) (per curiam)

(“[T]he Welfare Reform Act did not establish a uniform rule

with respect to state welfare programs. . . .”); see also, e.g.,

Ehrlich v. Perez, 908 A.2d 1220, 1240–41 (Md. 2006)

(holding that the Welfare Reform Act’s “laissez

faire . . . approach to granting discretionary authority to the

States in deciding whether to continue State-funded medical

benefits” for certain aliens does not amount to a “single,

uniform, and articulated directive”).

In the Welfare Reform Act, Congress itself recognized

that, far from providing a uniform federal direction, it was

giving states broad discretion to discriminate against aliens in

KORAB V. FINK 69

the provision of welfare benefits. This recognition comes

through in Congress’s statement of policy emphasizing that

the states exercising their discretion to determine some

aliens’ eligibility for welfare benefits “shall be considered to

have chosen the least restrictive means available for

achieving the compelling governmental interest of assuring

that aliens be self-reliant in accordance with national

immigration policy.” 8 U.S.C. § 1601(7). But Congress does

not have the power to give states discretion to discriminate.

IV. Conclusion

Though the majority opinion asserts that I am inviting a

circuit split, I note that it is the majority opinion that is

contrary to the opinions of a majority of courts that have

considered this question. Only one other circuit has spoken,

in Soskin v. Reinertson, 353 F.3d 1242 (10th Cir. 2004), and

that is the only decision consistent with the majority opinion.

For the reasons discussed above, as well as for the reasons

Judge Henry articulated in his dissent, I believe that Soskin

was wrongly decided, under current Supreme Court

precedent. See Soskin, 353 F.3d at 1265 (Henry, J.,

dissenting). Against Soskin lie three decisions of the high

courts of Maryland, Massachusetts, and New York. Ehrlich

v. Perez, 908 A.2d 1220 (Md. 2006); Finch v. Commonwealth

Health Ins. Connector Auth., 946 N.E.2d 1262 (Mass. 2011);

Aliessa ex rel. Fayad v. Novello, 754 N.E.2d 1085 (N.Y.

2001). All three decisions applied strict scrutiny under the

Equal Protection Clause to strike down state statutes that

purported to exclude certain aliens from Medicaid because

they were aliens. See Ehrlich, 908 A.2d at 1243; Finch,

70 KORAB V. FINK

946 N.E.2d at 1280;8 Aliessa, 754 N.E.2d at 1098. The

majority opinion’s application of equal protection rational

basis review to state action thus stands against the weight of

authority.

Even though in my view Plaintiffs should prevail, I

acknowledge there is something paradoxical and more than

a little unfair in my conclusion that the State of Hawai‘i has

discriminated against COFA Residents. The state responded

to an option given to it by Congress, albeit an option that I

don’t think Congress had the power to give. Hawai‘i provided

full Medicaid benefits to COFA Residents for many years,

entirely out of its own treasury, because the federal

government declined to bear any part of that cost. Rather than

terminate benefits completely in 2010, Hawai‘i offered the

BHH program to COFA Residents, again from its own

pocket. The right of COFA Residents to come to Hawai‘i in

the first place derives from the Compacts of Free Association

that were negotiated and entered into by the federal

government. That a disproportionate share of COFA

Residents, from Pacific island nations, come to Hawai‘i as

compared to the other forty-nine states is hardly a surprise,

given basic geography. The decision by the state not to keep

paying the full expense of Medicaid benefits for those aliens

is not really a surprise, either. In a larger sense, it is the

8

Although Finch speaks in terms of the Massachusetts Constitution’s

right to equal protection, the Massachusetts Supreme Judicial Court has

interpreted that state provision to be coextensive with the federal Equal

Protection Clause in matters concerning aliens. See, e.g., Doe v. Comm’r

of Transitional Assistance, 773 N.E.2d 404, 408 (Mass. 2002).

Accordingly, Finch’s analysis relies heavily on United States Supreme

Court decisions interpreting the Equal Protection Clause. See 946 N.E.2d

at 1273–80.

KORAB V. FINK 71

federal government, not the State of Hawai‘i, that should be

deemed responsible.

But the federal government is permitted to discriminate

against aliens in a way that the state government is not.

Because established precedent should require us to apply

strict scrutiny to Hawai‘i’s exclusion of COFA Residents

from the Medicaid programs, and no one seriously contends

that Hawai‘i’s actions can withstand such strict scrutiny, I

respectfully dissent.