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Finch v. Commonwealth Health InsuranceConnector Authority: State Legislative

Determinations and the PersonalResponsibility and Work Opportunity

Reconciliation Act

MATTHEW GRAZIO*

ABSTRACT

In 2006 Massachusetts enacted the pioneering public benefit programCommonwealth Care. As a result, over 97% of Massachusetts residents

enjoy health insurancethe highest rate of insurance in the nation.

However, increasing costs for consumers and budget shortfalls threatenedthe viability of the program. In response, the Massachusetts legislature

instituted a reduction in coverage for legal aliens unable to receive

matching federal funds. The Massachusetts Legislature incorporated thefederal welfare eligibility requirements of the Personal Responsibility and

Work Opportunity Reconciliation Act into the Commonwealth Care

scheme and created a supplemental care program for those who losteligibility in Commonwealth Care, funded solely with state monies. In

reviewing the eligibility restrict ion, the Supreme Judicial Court ruled that

incorporation of federal eligibility requirements required strict judicialscrutiny review. However, if Congress passed the same legislation, this

eligibility restriction would be reviewed under rational basis. This

Comment explores the Massachusetts legislatures policy concerningCommonwealth Care and state and federal precedent confronting state

legislative decisions concerning the incorporation of federal eligibility

requirements into state health care schemes. This Comment attempts toreconcile the divergent precedent and come to a different conclusion than

the Supreme Judicial Court.

* Candidate for Juris Doc tor, New England Law | Boston (2013). B.A. Political Sc ie nce ,

magna cum laude, American University (2010). I would like to thank the members of volumes

46 and 47 of the New England Law Review for their thoughtful editing and comments throughout the writing process.


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1048 New England Law Review v. 47 | 1047

INTRODUCTION

n 2006, Massachusetts enacted the pioneering public benefit program

Commonwealth Care.1

As a result over 97% of Massachusetts residentsenjoy health insurancethe highest rate of insurance in the nation.2 But

this laudable figure is undermined by both increasing costs faced by

consumers3and budget shortfalls that threaten the continued viability of

the program.4 In response to that strained budget and increasedenrollment, the Massachusetts legislature instituted a reduction in

coverage for certain individuals; legal aliens unable to receive matching

federal funds lost their Commonwealth Care eligibility.5 FollowingCongresss lead, the Massachusetts Legislature chose to incorporat e federal

welfare eligibility requirements into the Commonwealth Care scheme. 6

Simultaneously, it created a supplemental care program for those who losteligibility in Commonwealth Care, and funded it solely with state monies. 7

A class of resident aliens denied enrollment in Commonwealth Care

challenged statute, and the suit eventually reached the Supreme JudicialCourt (SJC) in Finch v. Commonwealth Health Insurance Connector

Authority, where the Court ruled that incorporation of federal eligibil ity

requirements required the application of str ict judicial scrutiny .8 However,if Congress passed the same legislation, this eligibility restrict ion would be

subject to rational basis review because of their strong interest in

controlling national immigration policy.9

This Comment will argue that the SJC incorrectly concluded thatMassachusetts decision to adopt the Personal Responsibility and Work

1

MASS GEN.LAWSANN.ch. 118H, 1 (West 2008).2Glen S hor et al., Exec. Office of Fin. & Admin.,Health Care Reform,GOVERNORS BUDGET FY2011: Health Care Reform, http://www.mass.gov/bb/h1/fy11h1/exec_11/ hbudbrief17.htm (last

visited Aug. 27, 2013) .3S ee Charles Wallace, Is Health C are Reform Working in Ma ssachusetts, DAILYFINANCE.COM

(Jan. 25, 2011),http://www.dailyfinance.com/2011/01/25/health-care-law-repeal (c iting experts

who determined that Massachusetts healthcare premiums have risen 5.9% more than the

national average from 2006 to 2008).4 See Kay Lazar, State Cuts its Health Coverage by $115m: Board to Slow Enrollment in

Commonwealth Care, BOS.GLOBE,June 24 , 2009, at A1.

5Id .; see infra Part II.A.62009 Mass. Acts, 695 [hereinafter 2009 Mass. Acts]. This law expired after fiscal y ear 2010

but was renewed without change, for the subsequent fiscal ye ar. 2010 Mass. Ac ts, 686

[hereinafter 2010 Mass. Acts]. Since both sections are the same, all references to 2010 Mass.

Acts refer to both Acts.72010 Mass. Ac ts, supra note 6, at 136(b); see infra Part II.A.8Seeinfra Part II.9See infra Part I.A.1.

I
http://www.mass.gov/bb/h1/fy11h1/exec_11/hbudbrief17.htmhttp://c/Users/Matt/Documents/Law%20Review/Case%20Comment/dailyfinance.comhttp://c/Users/Matt/Documents/Law%20Review/Case%20Comment/dailyfinance.comhttp://c/Users/Matt/Documents/Law%20Review/Case%20Comment/dailyfinance.comhttp://c/Users/Matt/Documents/Law%20Review/Case%20Comment/dailyfinance.comhttp://www.dailyfinance.com/2011/01/25/health-care-law-repeal/http://www.dailyfinance.com/2011/01/25/health-care-law-repeal/http://c/Users/Matt/Documents/Law%20Review/Case%20Comment/dailyfinance.comhttp://www.mass.gov/bb/h1/fy11h1/exec_11/hbudbrief17.htm


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2013 Finch v. Commonwealth Health Insurance 1049

Opportunity Reconciliation Act of 1996s (PRWORA) eligibilityrestrict ions into Commonwealth Care was subject to str ict scrutiny review

because the program is a jointly funded state and federal endeavor . This

argument asserts that the SJCs conclusion was based on a hollow viewingof Commonwealth Care and its funding mechanisms; forced the state to

replace federal funding for ineligible aliens in direct contravention of

congressional intent; and ignored the budgetary consequences now facingthe Massachusetts Legislature. While this Comment is confined to the SJCs

decision in Finch, its analysis is applicab le to any state public assistance

program receiving matching federal funding.

Part I will trace the divergent Equal Protection jurisprudence thatoccurs when courts confront federal laws restricting an aliens access to

public benefits. This includes a discussion of PRWORA and the

controversial and confounding effect it has had in state and federal courts.Part II will discuss the positions of both the majority and dissent in Finch v.

Commonwealth Health Insurance Connector Authority.

10

Part III.A will arguethat Commonwealth Cares funding is analogous to a federal -statecooperative public benefit program and should legally be treated as such.

Part III.B will use this presupposition to show that the Massachusetts

legislatures adoption of PRWORAs eligibility restrictions is entitled torat ional basis review under existing precedent. Par t IV.A will show how

Massachusetts has effectuated congressional intent and Commonwealth

Care operates harmoniously within the federal system, contribut ing to thecreation of a uniform national immigration policy. Part IV.B concludes

with a discussion of the pract ical effects of holding this legislative decision

subject t o heightened judicial scrutiny.

I. Background

A. Equal Protection Analysis Concerning Aliens: Federal Plenary

Authority and the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996

1. Development of Federal Equal Protection Analysis

Regarding Classifications Based on Alienage

The U.S. Supreme Court has recognized that the political branches of

the federal government possess the responsibility for regulating therelationship between the United States and our alien visitors . . . .11

Congresss decisions regarding national immigration policy are the source

of this deferential treatment of laws that draw distinctions between citizens

10Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262 (Mass. 2011).11Matthews v. Diaz, 426 U.S. 67, 81 (1976).


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and aliens.12 Judicial deference to congressional decisions is importantwhen aliens allege the federal government violated their Equal Protection

rights because the federal governments stake in immigration regulation

requires only a rat ional basis for a discriminatory legislative decision.13

The Supreme Court established the standard for federal alienageclassifications almost thirty years ago in Matthews v. Diaz, and its

precedential value remains controlling.14In that case the Court addressed

the constitutionality of a provision of the Social Security Act.15 It allowedcitizens to enroll in a specific segment of Medicare while denying

enrollment to aliens who had not been admitted for permanent residence

and had not actually resided in the U.S. for more than five years. 16Thoughthe Court recognized that aliens, like citizens, are protected from the

deprivation of life, liberty, or property without due process of law, it

nevertheless ruled that such protection does not mean that aliens areentitled to all the benefits afforded to citizens.17The Court also noted that

alienage, as a legal classificat ion, contains several subclasses representing awide-ranging variety of ties to this country.18Due to the possibility ofchanges in the American economic and political arenas, Congress is

granted deference to determine which alien residents are eligible for

receipt of public benefits.19Following from this analysis, t he Court adopteda rational basis standard of review for federal classifications based on

alienage.20

12 USCONST.,art. 1, 8, c l. 4 (Congress shall have [the] Power . . . [t]o establish a uniformrule of Naturalization . . . .). When Congress promulgates a uniform rule it cannot be

succ essfully questioned on the ground that it is not uniform . . . merely bec ause its operation

or working may be wholly different in one state from another. Darling v. Be rry, 13 F. 659, 667(C.C.D. Iowa 1882); see also Gerald L. Neuman, Aliens as Outlaws: Government Services,

Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV . 1425, 1426(1995) (asserting that co urts will defer to the legislature because they have difficulty

distinguishing between policy designed to regulate the entry o f aliens to the U.S. and policy

regulating aliens once they reside within U.S. territory).13See Matthews, 426 U.S . at 77-80.14See id.at 81.15See id. at 69.16Id. 17 Id. at 78.18Id. at 78-79 & n.1319Mathews, 426 U.S. at 81. For instance, the federal government is required to asses

international se curity, international co mity, the level of alleg iance aliens have to the U.S. , and

various other considerations that state legislatures do not face. See id.at 80. Therefore,

Congress is permitted to determine when duration of residency, as well as other factors, isrelevant in distributing welfare benefits. Id. at 78.

20Seeid.at 78.


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On the same day that Matthews was decided, the Court confronted asimilar issue in Hampton v. Mow Sun Wonga federal hiring policy that

prohibited aliens from obtaining certain civil service jobs. 21 The Court

concluded that despite the federal governments heightened nationalinterest in immigration, the Civil Service Commission was not the proper

body to pass such a rest rictive rule.22The asserted interests in national

policy might be legitimate if posited by Congress or the President, but theCivil Service Commission had no sufficient justification explaining how the

restrictive policy provided the Commission itself with a direct benefit. 23

The Court also took issue with the Commissions limited and specificfunction, as well as the ab sence of a just ification in support of the policy.24

The Court stated that [t]he only concern of the [Commission] is the

promotion of an efficient federal service.25Thus, an important inquiry inan equal protection analysis will concern whether the actor promulgating

the law or regulation, tailors t he regulation to meet a specific institutional

interest.26

2. The Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 and Permissib le Federal PolicyRestr icting Aliens From Certain Benefits

Twenty years after the Supreme Cour ts endorsement of a rationalbasis standard for law s classifying persons based on alienage, Congress

enacted PRWORA.27Congress stated that the immigration policy of the

U.S. required a showing of self-sufficiency, and [d]espite the principle ofself-sufficiency, aliens h[ad] been applying for and receiving public

benefits from Federal, State, and local governments at increasing rates.28

This concern prompted Congress t o restrict the eligibility of immigrants for

certain federally-funded welfare programsconditioning their receipt onboth qualifying status and duration of residency.29 All non-qualified

21Hampton v. Mow Sun Wong, 426 U.S. 88, 90 (1976).22Id. at 116.23 Id. at 116-17; Dan T. Coenen, The Rehnquist Court, Substantive Due Process, and

Semisubstantive Constitutional Review, 75 S .CAL.L.REV . 1281, 1370-71 (2002).24SeeHampton, 426 U.S . at 116-17.25Id. at 114.26See Coenen, supra note 23, at 1370-71.27Pe rsonal Responsibility and Work Opportunity Rec onciliation Act of 1996, Pub. L. No .

104-193, 400-51, 110 Stat. 2105, 2260-77 (codified in scattered sections 7, 8, 21, 25, and 42

U.S.C.).28 8 U.S.C. 1601(1)-(3) (2006).29 See id. at 1611-15; Tricia A. Bozek, Comment, Immigrants, Health Care, and the

Constitution: Medica id Cuts in Maryland Suggest tha t Legal Immigra nts Do Not Deserve the Equal


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afforded to a state law when it adopts PRWORAs classification scheme isnot valid simply because Congress says so; rather, the states concurrent

power to classify based on alienage is given the same type of deference that

the federal government enjoys in their exercise of plenary authority .37

Thissection is not a congressional usurpation of state judicial authority; it

merely fosters a uniform immigration policy and allows states to decide

when such a classification is necessary to promote unique state goals. 38

B. Equal Protection and State Laws Which Draw Distinctions Based on

Alienage

Unlike their federal counterparts, st ate law s discriminating based on

alienage are generally subject to strict judicial scrutiny. 39 Graham v.Richardson, the leading opinion, struck down tw o state law s that

conditioned the receipt of public benefits on citizenship status and

duration of residency.40The Court reasoned that aliens, as a class, are a

prime example of a discrete and insular minority for whom . . .heightened judicial solicitude is appropriate.41 Underscoring this

reasoning was the fact that Congress holds the authority to regulateimmigration and the stat e laws at issue conflicted with an express national

policy.42 Because a fifteen-year residency requirement created tension

between Congresss authority to regulate aliens and the terms in whichthey enter the country, Arizona in effect created a discriminatory burden

upon aliens w ho w ere lawfully admitted to the U.S.43The Court concluded

that such a requirement discourage[s] entry into or continued residency inthe State, and therefore impacts national immigration policy.44

Accordingly, when state laws create a dissonance with federal policies and

impose auxiliary burdens upon resident aliens, the laws are subject to

strict scrutiny.45

The application of rat ional basis review would result in a

deleg ate its authority and e nable the states to adopt divergent policies concerning aliens andpublic benefits).

37Chang, supra note 36, at 367.38Seeid.at 369-70.39E.g.,Graham v. Richardson, 403 U.S. 365, 371-72 (1971).40403 U.S . 365, 374 (1971); Harold Hongju Koh, Equality with a Human Face: Justice Blackmun

and the Equa l Protection of Aliens, 8 HAMLINE L.REV. 51, 59 (1985) (discussing the significance of

Graham); Jennifer Huffman, Note,Justice Rehnquist and Alienage a s a Suspect Cla ssification, 7GEO.IMMIGR.L.J. 845, 847 (1993) (discussing the importance of Graham).

41Graham, 403 U.S . at 371 (c itations omitted).

42Id. at 376-77.43Id. 44 Id. at 379.45Id. (c iting Truax v. Raich, 239 U.S. 33 , 42 (1915)).


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multitude regime of divergent state statutes which obfuscate, rather thaneffectuate, the implementation of congressional policy.46Additionally, the

state statutes at issue did not rely upon an affirmative authorization or

congressional mandate.47

Apart from the general application of strict scrutiny, state and federalcourts alike have faced the issue of whether a state may condition an

aliens receipt of public benefits on congressional classifications.48Despite

the seemingly irrefutable rule annunciated in Graham, courts have takendifferent approaches when addressing issues of state classifications which

mirror federal law.49 In Soskin v. Reinerston, the Tenth Circuit was faced

with a challenge to a Colorado law that conditioned the receipt of Medicaidbenefits on PRWORAs eligibility requirements.50 The Colorado legislatur e

did not initially adopt the provisions of PRWORA, thereby granting full

benefits to aliens who did not federally qualify for funding. 51However, inresponse to budget shortfalls, the legislature in 2003 decided to incorporate

PRWORAs classifications into the states conditions for Medicaid funds.52

The Tenth Circuit concluded that while the Colorado law appeared tocontravene the teachings of Graham, in actuality, Colorado garnered its

authority to classify aliens from Congresses express authority to pass such

laws.53 The court stated: [U]niformity . . . is not undermined by thePRWORA's grant of discretion to the states with respect to alien

qualifications for Medicaid benefits.54 The court chose to review

Colorados eligibility requirements under rationalbasis review becauseCongress did not fully delegate its authority to regulate immigration

conditions to the state.55 Congress simply manifested its intent to permit

46Id. at 482.47Graham, 403 U.S. at 380 -81. The federal statutes authorized the approval or disapproval

of state plans that propose eligibility res trictions on aliens. Id.(citing 42 U.S.C. 1352(b)). This

ambiguity, the court feared, wo uld authorize divergent state policie s and co nflict with federal

power to create uniformity within the area of immigration. Seeid.at 382.48Id. at 366 ; Soskin v. Reinertson, 353 F.3d 1242, 1248 (10th Cir. 2004) ; Aliessa v . Nove llo,

754 N.E.2d 1085, 1094 (N.Y. 2001).

49Seeinfra note 64.50353 F.3d at 1244-45.51Id. at 1246.52Id. 53Id. at 1251; Michael Shaplan, Soskin v. Reinertson: An Ana lysis of the Tenth Circuits Decision

to Permit the State of Colorado to Withhold Medicaid From Aliens Pursuant to the Personal

Responsibility and Work Opportunity Reconciliation Act, 2SETON HALL CIR.REV .339,349-50(2005).

54Soskin, 353 F.3d at 1257.55See id.at 1255-56.


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states to operate within the precepts of PRWORA.56 When states choose tocomply w ith this congressional policy, they ar e effectuating national policy

and determining whether the financial burdens of providing optional

benefits are too high.57

This determination is a national concern, eventhough it implicates parochial interests.58

However, not all courts reach the same conclusion. The New YorkCourt of Appeals deemed a similar New York law unconstitutional by

utilizing a strict scrutiny standard.59 In Aliessa v. Novello, the courtinterpreted a state law that incorporated PRWORAs eligibility provisions

and resulted in the denial of Medicaid benefits to certain aliens. 60 Drawing

on the Graham holding, the court concluded that Congress cannot devolveits power to draw classifications based on alienage and permit the states to

violate the Equal Protection clause.61If states are permitted to promulgate

different rules regarding alien status and the receipt of federally supportedwelfare benefits, then divergent policies from state to state would emerge

and contradict Congresss authority to establish uniform rules fornationalization.62

The conflict between these two cases is b ut a microcosm of the currentdebate.63 Some courts hold that states which adopt federal policies

effectuate the national immigrat ion standards set forth in PRWOA, while

others find such devolution unconstitutional, ruling that state laws creatingdiscriminatory classifications based on alienage should face strict

scrutiny.64

56 See id. at 1257; see also Shaplan, supra note 53, at 349.57Soskin,353 F.3d at 1255.

58Id. 59 Aliessa v. Novello, 754 N.E.2d 1085, 1098 (N.Y. 2001).60Id. at 1088.61Id. at 1098.62Id. at 1095-96; seeHartley, supra note 34, at 112, 115.63See generally Hartley, supra note 34, at 110 -15,150(providing an overview of the ac ademic

debate and discussing the level of scrutiny a state should receive when they adopt a lawCongress attempted to devo lve) .

64 ComparePimentel v. Dreyfus, 670 F.3d 1096, 1106 (9th Cir. 2012) (holding that no equal

protection violation occurred when Washington defunded its state food assistance program

thereby leaving aliens not meeting PRWORAs eligibility requirements without federal or state aid), Soskin v. Reinertson, 353 F.3d 1242, 1246 ( 10th Cir. 2004), Hong Pham v.

Starkowski, 16 A.3d 635, 662-63 (Conn. 2011) (c oncluding that the state law, which provides

assistance to individuals displaced by PRWORAs eligibility requirements, doe s not require

the state to use their o wn funds to provide the displaced individuals with equal coverage);

Kharpunsky v. Doar, 909 N.E.2d 70, 77 (N.Y. 2009) ([T]he right to equal protection does not

require the S tate to create a new public assistance prog ram in order to guarantee equaloutcomes under wholly separate and distinct public benefit prog rams. Nor does it require the


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II. Finch v. Commonwealth Health Insurance Connector Authority

A. Facts

In 2006, with the stated purpose of reducing uninsurance in the[C]ommonw ealth, the Massachusetts Legislature enacted Commonwealth

Care.65 The program is administered by the Commonwealth HealthInsurance Connector Authority (Connecter).66 In its capacity as

administrator, the Connecter is responsible for facilita[ting] the

availability, choice and adoption of private health insurance plans toeligible individuals . . . .67Funding for Commonwealth Care comes from

both state and federal sources.68Massachusetts created the Commonwealth

Care Trust Fund to receive funding from various taxes, employercontributions, and individual mandate penalties.69 Federal funds come

from Medicaid expenditures, and the federal government treats

Commonwealth Care as a component of the Massachusetts Medicaid

State to remediate the effec ts of PRWORA.), Doe v. Co mmr of Transitional Assistance, 773

N.E.2d 404, 414-15 (Mass. 2002) (asserting that a supplemental program designed to

ameliorate the effects of PRWORA does not invidiously discriminate against aliens and

places no additional burdens on aliens beyond those contemplated by [PRWORA]),

Guaman v. V elez, 23 A.2d 451, 468 (N.J. S uper. Ct. App. Div. 2011) (holding a rational basis

test should apply to a New Jersey law which adopted PRWORAs five year residency

requirement in relation to the New Jersey Medicaid program), andAvila v. Biedess, 78 P.3d

280 , 282 (Ariz. App. Ct. 2003), depublished by,85 P.3d 474 (2004), cert. denied sub. nom.,Kurti v.

Biedess, 542 U.S. 942 (2004) (ruling that Arizonas state -funded portion of a health insurance

premium program did not violate equal protection by imposing PRWORAs five year

residency requirement for aliens as a condition of elig ibility), with Aliessa, 754 N.E.2d at 1098,

Ehrlich v. Perez, 908 A.2d 1220, 1233 (Md. 2006) (concluding that PRWORA does not proscribea uniform rule that states may choose to comply with, and thus strict scrutiny applies to

state action viewed as discriminating against aliens and sub classes of aliens), Korab v.Mc Manaman, 805 F.Supp.2d 1027, 1037 (D. Haw. 2011) (ordering that strict sc rutiny review

applied to aliens challenge that a supplemental, state -funded, health insurance program

discriminated based o n alienage ).65 Commonwealth Care Health Insurance Program, ch. 58, 45 2006 Mass. Ac ts 113, 113

(codified as amended at MASS.GEN.LAWSch. 118h, 2 (2006)).

66 SeeBrief of Defendants at 2, Finch v. Commonwealth Health Ins. Connector Auth., 946

N.E.2d 1262 (M ass. 2011) (No. S JC-10748).67MASS.GEN.LAWSc h. 176Q, (2)(a) (2010).68Finch v. Commonwealth Health Ins. Connec tor Auth., 946 N.E.2d 1262, 1266-67 (Mass.

2011).69Id. The penalty is assessed through the residents tax return. Ch. 58, 12, 2006 Mass. Acts

at 94-95. If the resident is statutorily required to obtain insurance , but fails to do so o r indicate

they have creditable c overage on their return, the resident loses their tax c redit. Id. ;see also

Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation, 49WM.&MARY L.REV .229,239-44(2007).


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Program for purposes of calculating federal reimbursement. 70

The Legislature initially permitted all residents, assuming theyqualified, to participate in Commonwealth Care.71 This included aliens

who were not eligible for federal funding under PRWORA. 72 Absentfederal reimbursement, the Commonwealth assumed one hundred percent of the costs of providing Commonwealth Care subsidies to federally

ineligible aliens.73 Federal reimbursement provided approximately

50%and 62%of expenditures in 2009 and 2010 respectively.74

On August 7 , 2009, the legislature changed the eligibility r equirementsfor Commonwealth Care to conform with PRWORAs eligibility

restrictions.75 Consequently, Commonwealth care dropped 29,000

individuals from coverage and denied enrollment to 14,000 more.76 Toremedy these large-scale denials, the legislature created a new program

Commonwealth Care Bridge (Commonwealth Bridge).77 Commonwealth

Bridge provided a form of insurance for individuals previously covered by

Commonwealth Care, who subsequently lost eligibility based on the newrequirements.78 The plaintiffs in this case were resident aliens denied

acceptance into Commonwealth Care due to the new eligibilityrequirements.79

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

71Ch. 58, 45, 2006 Mass. Acts at 114; Finch, 946 N.E.2d at 1267.72 Finch, 946 N.E.2d at 1267.73Id.74Id. 75

Id. The relev ant sec tion provides:(a) Notwithstanding any ge neral or special law to the contrary and exce pt

as provided in subsection (b) or (c), an eligible individual pursuant to

section 3 of chapter 118H of the General Laws shall not include a person

who is not eligible to receive federally-funded benefits under sections401, 402 or 403 of the Personal Responsibility and Work Opportunity

Reco nciliation Act of 1996 , Pub. L. No. 104193, as amended, for fiscal

year 2011.

2010 Mass. Acts 686.

76Brief of the Commonwealth of Mass., Intervener-Appellee at 8-9, Finch, 946 N.E.2d 1262

(No. SJC-10748).77Finch, 946 N.E.2d at 1267-68.78Id. 79Seeid. at 1268 n.5. Additionally, some plaintiffs are eligible for neither program. Those

include federally-ineligible aliens who have resided in Massachusetts for less than six months;

they are restricted from accessing Commonwealth Care due to their federal status, and are

denied enrollment in Commonwealth Bridge based on the six month residency requirement.Id. ; see alsoMASS.GEN.LAWSch. 118H, 3(a)(1),(2) (explaining the residency requirement for


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B. Courts Opinion

The majority opinion began by determining whether alienage is a

suspect class under the Massachusetts Constitution.80The Court concludedthat the guarantee of equality under the law for all persons regardless of

sex, race, color, creed, or national origin81 did not extend to aliens.82The

Court found that in 1976when the legislature amended Article I toinclude sex as a suspect classification deserving of strict scrutiny the

voters expressed their knowledge of equal protection jurisprudence and

extended the scope of heretofore recognized suspect classifications.83 TheCourt held that the omission of alienage as one of these suspect classes

was not driven by ignorance or mistake [but] rather . . . [was the voters]

conscious choice.84 Thus, the Court declined to include alienageclassifications as suspect according to the provisions of the Massachusetts

constitution.85

The Court ruled that the legislatures decision to adopt PRWORAs

eligibility requirements does not mandate a rat ional basis review simplybecause they are an expression of federal policy.86 The Court distinguished

this decision from a closely analogous case: Doe v. Commissioner of

Transitional Assistance.87 Doe held that the Massachusetts legislature can

resident aliens to be eligible for health benefits). This six month residency restriction is in

harmony with Commonwealth Cares goals because this ensures that enrollees have not

move d into the [C]o mmonwealth for the so le purpose of sec uring health insurance . MASS.GEN.LAWSch. 118H (1) (2006).

80Finch, 946 N.E.2d at 1268-69.81MA.CONST.art. I.

82Finch, 946 N.E.2d at 1272.83 Id. (noting the incorporation of gender to equal protection jurisprudence). 84Id. 85 Id. at 1272. The plaintiffs did not argue that any other provision of the Massachusetts

constitution dictates that alienage is a suspec t class for purposes of equal protection analysis,

and therefore the court considered the claim waived. Id. at 1273.86 Id. at 1276-77.87 See id.at 1274-76 (citing Doe v . Commr of Transitional Ass istance, 773 N.E.2d 404 (Mass.

2002)). In Doe, plaintiffs bec ame ineligible for a jo intly funded federal-state program, when

Massachusetts adopted PRWORAs five year residency requirement. Doe, 773 N.E.2d at 406-

08. In response, Massachusetts voluntarily established a supplemental program whichprovided essentially the same amount of aid for those who qualified, the difference being that

all funds came from state coffers and enrollees needed to satisfy a six month residency

requirement prior to eligibility. Id. at 407. The SJC determined that the states adoption of

PRWORAs eligibility requirements and the enactment of a supplemental program warranted

rational basis review because the classification was one of residency not alienage; the

legislatures intent was clearly non-invidious; and its effect mitigate[ed] the harm toqualified alien families that might otherwise be without . . . assistance for five years under


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escape strict scrutiny review for discriminatory alienage classificationswhen they adopt compatible federal policies regarding aliens and their

eligibility for public benefits.88 However, in this situation, the majority

viewed the adoption of PRWORAs eligibility requirements asnoncompulsory.89 It found that Commonwealth Care is a wholly funded

state program and that Congress is indifferent to the use of State funds in

providing public benefits to aliens, so long as federal funds are not usedto subsidize federally-ineligible aliens healthcare.90 The Court reviewed the

specifics of PRWORAs classifications and determined that they import

impermissible discriminations b ased on national origina violation of theMassachusetts Constitution.91 Accordingly, the legislatures adoption of

PRWORAs classifications must be subject to st rict scrutiny. 92

In dissent, Justice Gants took issue with the majoritys viewnot thataliens are entitled to equal protection under the law but that in this casethe Commonwealth is constitutionally required to [replace the lost

Federal funds] with State funds.93

Justice Gants concluded that the statesdecision to exclude is entitled rational basis review, unless the plaintiffscan establish that the state is expending substantially less per capita in

State monies for medical care for federally ineligible aliens than for

similarly situated Commonwealth Care participants.94Thus, the dissentemployed a rebuttable presumption that the states imposition of federal

classifications in Commonwealth Care is initially entitled to rational basis

review.95Plaintiffs would have to show that the state is not providing equal

PRWORA. Id. at 414.

88 See id.at 409.89Finch, 946 N.E.2d at 1277.

90 Id. at 1276.91 Id. at 1279-80; see alsoMA.CONST.art. I. For instance, PRWORA allows perso ns who are

members of the Hmong or Highland Laotian tribe at the time that the tribe rendered

assistance to United States . . . during the V ietnam era and Americ an Indians born inCanada. 8 U.S.C. 1612(a)(2)(G), (a)(2)(k) (2006). However, the same benefits extended to

these c lasses of aliens are not extended to similarly situated aliens from Germany, Colo mbia,

or Kenya. See, e.g., Finch, 946 N.E.2d at 1279 (explaining that eligible aliens include ve ryspec ific types of aliens while aliens from co untries such as Germany, Colombia, o r Kenya may

not rec eive the same s tatus). Thus, PRWORA employs impermissible classifications based o n

national origin: an inherently suspect class according to the Massachusetts Constitution. Finch,

946 N.E.2d at 1279; MA.CONST.art. I. (Equality under the law shall not be denied or abridged

bec ause of se x, race, colo r, creed or national origin.).92Finch, 946 N.E.2d at 1276 ; Co mmonwealth v. King, 372 N.E.2d 196, 206 (Mass. 1977)

(concluding that every classification listed in the Massachusetts Constitution is inherently

suspect and therefore subject to strict scrutiny review).93Finch, 946 N.E.2d, at 1286 (Gants, J., dissenting) .94 Id. at 1288.95Seeid.


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financial assistance, in terms of state expenditures, to federally-eligible andineligible individuals alike.96 If plaintiffs can demonstrate this situation,

then strict scrutiny is used.97 According to Gants, the focus of the inquiry

should be on state expenditures, rather than the tota l amount of fundingavailable to part icipants in Commonwealth Care.98

ANALYSIS

III. The Massachusetts Legislatures adoption of PRWORAs EligibilityRestrictions Furthered National Immigration Policy by Directly

Effectuating Congressional Intent

A. Commonwealth Care Should Be Considered a Federal-State

Cooperative Welfare Program Because it is Functionally

Indistinguishable from Medicaid

The SJC relied on the distinction between a state-operated programand the joint federal-state program.99The court asserted that the adoptionof PRWORAs eligibility restrictions was not explicitly or implicitly

authorized by the federal government because Commonwealth Care is a

wholly funded state program.100 However, Commonwealth Caresoperat ion is more akin to a joint federal-state cooperative than an entirely

state-administered welfare benefit and thus should be guided by pr ecedent

analyzing such cooperat ive programs.101

The largest, and perhaps most comprehensive, welfare program in theUnited States is Medicare.102 Federal and state governments j ointly fundMedicare.103A state voluntarily establishes a Medicaid program , and upon

96 See id.97See Graham v. Richardson, 403 U.S. 365, 382 (1971) (concluding that State funded benefit

programs must be available to c itizens and aliens on the same terms).98 Finch, 946 N.E.2d at 1287-88 & n.10 (Gants, J., dissenting) .99 Id. at 1274-75 & n.16 (explaining why the acceptance of Federal funds affects the standard

of review).100 Id. at 1280.101 Contra Anna C. Tavis, Note, Healthcare for All: Ensuring States Comply with the Equal

Protection Rights of Legal Immigrants, 51 B.C. L.REV .1627,1652-53(2010).

102 SeeTERESA A.COUGHLIN ET AL.,MEDICAID S INCE 1980at8-9(1994)(explaining the vast

size and complex nature of Medicare). 103 See 42 U.S.C. 1396a (a)(1)-(17) (2006). Typical federal reimbursement for state

administered Medicaid programs range between fifty and seve nty perc ent o f program costs.

MARK R. DANIELS, MEDICAID REFORM AND THE AMERICAN STATES 3 (1999). Therefore,

inequalities exist in the national sense, because the level of coverage individuals receive is

large ly dependent upon the state in which they reside. See COUGHLIN, supra note 102 , at 69.(rec ognizing the c riticism amongst commentators that Medicaid give s considerable leeway to


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approval by the federal government, receives federal grants.104Participating states then administer the program including the

establishment of eligibility requirements, so long as those requirements do

not fall below federal minimum standards.105

Rather than a singlehomogenous federal program, Medicaid is,in reality, a compilation of 51

uniquely different programs.106

While there is no direct federal statutory authorization forCommonwealth Care, and Massachusetts has a separate Medicaidprogram,107 the state still relies heavily on federal funds to administer

Commonwealth Care.108 The Massachusetts government recognizes that

Commonwealth Care is a federal-state cooperat ive.109In fact, the Connectorhas a statutory duty to seek and receive any grant [of] funding from the

federal government in order to fund Commonwealth Care.110 Pursuant to

this duty, the Connector established a regulation which required theSecretary of Health and Human Services 111 to seek to obtain maximum

federal reimbursement for all expenditures made under [the] provisionsof Commonwealth Care.112 In 2010, Commonwealth Care received $419.6million of its $723 million budget from federal reimbursements. 113 This

figure demonstrates that Commonwealth Cares funding is qualitatively

similar to Medicaid because state Medicaid programs receive somewherebetween fifty and seventy percent of their funding from the federal

states and produces a high level of variance in coverage across the nation).

104 See 1396b (a)(1), (2).105 See 1396c (authorizing the federal government to revoke the states ability to rec eive

matching federal funds if the states Medicaid program falls below the minimum levels

required in 42 U.S.C. 1396a).106

COUGHLIN,supra note 102, at 8.107 See generallyRoy Weiner, Universal Health Insurance Under State Equal Protection La w, 23

W. NEW ENG. L. REV . 327, 359-63 (2002) (providing an overview of Mass Healththe

Massachusetts Medicaid programand other gove rnment health insurance programs).108 Federal reimbursement for Commonwealth Care participants amounted to

approximately 61.59% of its operating budget for fiscal year 2010. Finch v. Commonwealth

Health Ins. Connector Auth., 946 N.E.2d 1262, 1267 (Mass. 2011) .109 See Health Reform Facts and Figures, MASSACHUSETTSHEALTH CONNECTOR (Fall2011),

available at https://www.mahealthconnector.org/portal/binary/com.epicentric.

contentmanagement.servlet.ContentDeliveryServlet/Health%2520Care%2520Reform/Facts%2

520and%2520Figures/Facts%2520and%2520Figures.pdf [hereinafter Facts and Figures].110MASS GEN.LAWSch. 176Q, 3(c) (2010).111MASS.GEN.LAWSch. 118E, 1 (2010) (The executive office for health and human

services [is] the single state agency responsible for the administration of programs o f medical

assistance and medical benefits . . . .).112Commonwealth Health Insurance Connector Act, ch. 58, 112, 2006 Mass. Acts 177, 189.113Brief of the Commonwealth of Mass. , Intervener-Appellee at 8, Finch, 946 N.E.2d 1262

(No. SJC-10748); Facts and Figures,supra note 109.


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government.114 Therefore, fiscally, Commonwealth Care is not simply astate program that the federal government is indifferent towards. Since

Medicaid Programs receive rational basis review when they adopt

PRWORAs eligibility requirements, Commonwealth Care should aswell.115

Given the fiscal nature of Commonwealth Care, its autonomy fromfederal control does not defeat the proposition that it should be considered

a federal-st ate cooperat ive.116Medicaid gives states the ability to increase ordecrease the level of coverage offered so long as those restrictions do not

fall below the federal minimum standards.117 In this situation,

Commonwealth Care created requirements that initially providedincreased funding for aliens ineligible to receive federal funding.118 Similar

to a Medicaid program, the state then determined that offering an

increased level of coverage for federally ineligible aliens was noteconomically feasible.119 This led the legislature to adopt PRWORAs

eligibility requirements; however, at no time, did those standards fallbelow that required by federal law.120Additionally, the federal governmenttreats Commonwealth Care as a component of the states Medicaid

program for purposes of reimbursement.121The treatment and cognizance

the Massachusetts legislature displayed towards PRWORA, coupled withthe creation of a supplemental program, illustrates that Commonwealth

Care is functionally equivalent to a federal-state cooperative public benefit

program, and should be analyzed under similar case law.122

B. The SJC Has Applied Rational Basis Review to State Legislative

Decisions Adopting PRWORAs Eligibility Requirements

The SJC treated this case as one of first impression despite the fact that

114 DANIELS,supra note 1 03.115See infra Part III.B.116If this proposition were accepted by the SJC, then Commonwealth Care could have been

deemed an offshoo t of Medicaid and its restrictions c ould have been viewed under a rational

basis standard. See Matthews v. Diaz, 426 U.S. 67, 81 (1976) (asserting that Medicaid is

federally administered and immigration restrictions within the program should be given

review under a deferential standard).

117See42 U.S.C. 1396d(a); COUGHLIN,supra note 102.118MASS GEN.LAWSc h. 118H, 3 (2006).119S hor, supra note 2.1202010 Mass. Acts 686 (incorporating PRWORAsrequirements which serve as the federal

minimum that states must comply with when using federal funds).121Brief of the Intervener-Appellee, Finch v. Commonwealth Health Ins. Connec tor Auth.,

946 N.E.2d 1262 (2011) (No. SJC-10748).

122See infra Part III.B.


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it had already determined that rational basis review applied to theadoption of PRWORAs eligibility restrictions in a case on similar facts.123

Notwithstanding this precedent, the Court, through clever judicial

interpretation, determined that Doe applies rational basis review tocongressional actions that mandates how the states are to administer

benefits.124 However, this case concerns a non-compulsory rule that the

Commonwealth chose to adopt.125 The tw o cases, however, are similar onmultiple levels: (1) the benefit program is jointly funded by federal and

state resources; (2) the adoption of PRWORAs eligibility restr ictions causes

certain aliens to become ineligible; and (3) Massachusetts enacts asupplemental program designed to give some assistance, funded with only

state monies, to those displaced by PRWORA.126 The only difference

between the two law s is that the program at issue in Doeinvolved its statusas an officially joint funded federal-state cooperative, while this case deals

with a de jurestate program.127

Other state courts have held their legislaturesadoption of PRWORAseligibility requirements valid.128 In Guaman v. Velez, the New Jersey

Superior Court ruled that the adoption of PRWORAs five-year eligibility

restr iction, while not mandated, mirrors federal objectives, corresponds toan identifiable congressional policy, and operate[s] harmoniously within

the federal program.129 Like Commonwealth Bridge, the New Jersey

statute allows the state to effectuate nat ional policy through the adoptionof federal eligibility requirements due to the strong relationship between

the federal-state program and the wholly funded state program. 130 This

correlation transforms the wholly funded state program into an offshoot ofthe jointly funded federal-state program, and therefore adoption of federal

123See Doe v. Commr of Transitional Assistance, 773 N.E.2d 404, 414 -15 (Mass. 2002).124Finch, 946 N.E.2d at 1274-75.125Id. at 1275.126 Compare id.at 1265-67, with Doe, 773 N.E.2d at 406-07. In this case , Co mmonwealth

Bridge does not deny aliens Equal Protection because the state is simply denying to spend

state reso urces to make up for lost federal funding. The rec ord does not show that the state isspending more state resources on citizens as opposed to aliens. Finch, 946 N.E.2d at 1286

(Gants, J., dissenting).

127 See supra note126and accompanying text.128 Guaman v . Velez, 23 A.3d 451, 468 (N.J. Super. Ct. App. Div. 2011); Avila v. Biedess, 78

P.3d 280, 287 (Ariz. App. Ct. 2003) depublished by,85 P.3d 474 (2004), cert. denied sub. nom.,Kurti v. Biedess, 542 U.S. 942 (2004).

129Guaman, 23 A.3d, at 468 (quoting Plyler v. Doe, 457 U.S. 202, 226 (1982).130 Id. In this instance the jointly funded state program was a Medicaid program and

plaintiffs were denied because they were not residents for more than five years. Id.

Commonwealth Care is analogous to this situation despite the fact that officially it is not afederally authorized program because its funding mechanism functions similarly.


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policies is permissible.131

IV. The Practical Result of This Holding Nullifies and Contravenes

Congressional Intent

A. By Holding That Strict Scrutiny Applies to the Exclusion of Aliens

From Commonwealth Care The SJC has Required the States toRemediate the Effects of PRWORA

The SJC failed to consider that Commonwealth Care is a federal-statecooperative, and if they did, the state constitutional questions would be

less relevant and existing precedent would lead to a different result.132In

Soskin, the Tenth Circuit reviewed the incorporation of PRWORAs eligibility requirements into Colorados Medicaid program and concluded

that rational basis review was appropriate.133The Soskincourt noted that

this case falls somewhere between the holdings in Matthewsand Graham.134

Despite the discretion that states retain under PRWORAs provisions, theiradoption of its policies can st ill effectuate Congressional policy.135

When the Massachusetts legislature adopted the provisions ofPRWORA, it operated within the permissible boundaries set byCongress.136 PRWORA permits states to provide coverage to unqualified

aliens at their own expense.137 When a state chooses this option, they

make [their] own assessment of whether [they] can bear the burden ofproviding [such] optional coverage.138 When the financial burden of

131 Seeid.at 469 (Here, the means selected by [the state]adopting the federal eligibility

criteria for aliensbears a real and substantial relationship to PRWORA's compelling

governmental interest of assuring that aliens be self-reliant in accordance with nationalimmigration policy . . . .) (quoting N.J. S TAT.ANN.30:4J-16 (West 2006)).

132 The plaintiff in this action originally filed suit alleging a federal Equal Protection

vio lation, but once the c ase was removed to federal district c ourt, the plaintiffs dropped their

federal claims, perhaps recognizing their futility, and amended the complaint to include onlystate constitutional questions. See Finch v. Commonwealth Health Ins. Co nnec tor Auth., 946

N.E.2d 1262, 1268 (Mass. 2011).

133See id. at 1256.134Id. at 1254; seesupra Part I.A.135Finch,946 N.E.2dat 1255. But seeTavis, supra note 1 01, at 1665 (arguing that state funded

healthcare programs are not operating within the bounds of federal statutes and are anindependent legislative judgment severable from the goals associated with federal

classification).

136See 8 U.S.C. 1622 (a) (2006) (Notwithstanding any o ther prov ision o f law . . . a State is

authorized to determine the eligibility for any State public benefits of an alien who is aqualified alien . . . .).

137See id.138Soskin, 353 F.3d at 1255.


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optional coverage becomes economically infeasible, and the state decidesagainst over inclusive coverage, they are addressing national concerns

namely that individual aliens [should] not burden the public benefits

system.139

Ergo, if Massachusetts is operating a joint federal-state program,140then its inclusion of the federal classification scheme is furthering a

national policy.141Even though differences in the level of coverage afforded

to legal aliens will arise depending on the parti cular states legislativedeterminations, such divergence is acceptable when effectuating

congressional policy and does not undermine uniformity within

immigration policy.142

The SJC believed that by enacting PRWORA, Congress intended toshift the burden of supplying aliens with benefits from the Federal

Government to the states.143 Such an interpretation would require

Massachusetts to pr ovide aliens w ith lost federal funds. This requirement

circumvents Congressspolicy that such persons should not receive federalfunding until they have met the requirements of PRWORA.144 As Justice

Gants noted, this interpretation requires Massachusetts to replace lostfederal funding with their own dollars.145This assertion cannot be correct

because the Courts formulation of PRWORA conflicts with Congresss

statement of national policy.146 Congress sought to promote self-sufficiency amongst newly arriving aliens.147From this plain language, it

is difficult to see that Congress intended for the states to shoulder the

burden of supplying aliens with benefits they themselves were unwillingto provide.148Rational basis is appropriate for this classification because the

states are not require[d] to remediate the effects of PRWORA.149

When Congress enacted PRWORA, they unambiguously created a

139See 1601(4).140Seesupra Part III.A.141See e.g., 1622(a).142Cf. Martinez-Lopez v. Gonzales, 454 F.3d 500, 502 (5th Cir. 2006) (concluding that

conviction of a felony within a state can still subject aliens to deportation under the

aggravated felony rule even though such a conviction under federal law would be a

misdemeanor and not subject the individual to deportation).143See Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d 1262, 1276 n. 18

(Mass. 2011).144 1601(7).145Finch, 946 N.E.2d at 1285 n. 9 (Gants J., dissenting).

146See 1601.147 1601(7).148Soskin v. Reinertson, 353 F.3d 1242, 1255 (10th Cir. 2004).149Khrapunskiy v. Doar, 909 N.E.2d 70, 77 (N.Y. 2009).


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statutory scheme designed to give states discretion to implement policiesthat further national immigration policy.150 When construing anystatute,

first courts should analyze the plain text to garner its meaning.151 If a

meaning can be garnered from the text, legislative intent prevails overother forms of statutory construction.152 PRWORA begins with a

statement of national policy, which indicates that United States residents

should be self-sufficient, and despite[that] principle . . . aliens have beenapplying for and receiving public benefits from Federal, State, and local

governments at increasing rates.153This statement of policy interplays with

PRWORAs specific provision which grant states the power to prohibit orotherwise limit or restrict the eligibility of aliens or classes of aliens for

programs of general cash public assistance furnished under the law of the

State . . . .154Taking these sections together, the logical conclusion is thatCongress sought to grant each state the power to enact laws that serve a

specific state goal, such as utilizing PRWORA t o retain the fiscal integrity of

Commonwealth Care.155

The inclusion of the terms Federal, State, and local governments inPRWORAs statements of national policy156 indicate Congress was

cognizant of the fact that not all welfare benefits are distributed at the

federal level, and that state legislatures should be invited to participate,and help effectuate national immigration policy.157 Massachusetts decided

participation was proper considering the strained fiscal climate, and

determined that aliens would not be provided w ith benefits that the federalgovernment w as unwilling to provide.158

Considering PROWRAs language, one can see that Congress wouldsupport this legislative decision because Massachusetts statutorily

incorporated federal immigration policy and contributes to uniformitywithin immigration law.159 The Graham court was concerned that states

would undermine uniformity if states could establish laws that diverged

from congressional policies.160 They cautioned that divergent residency

150 See supra notes 133-35 and accompanying text.151 Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978).152Johns-Manville Corp. v. United States, 855 F.2d 1556, 1559 (5th Cir. 1988) (citing Natl

R.R. Passenger Corp. v. Natl Assn of R.R. Passengers, 414 U.S. 453, 458 (1974)). 1538 U.S.C. 1601(3) (2006) (emphasis added).154Id. at 1624(a).155See Chang, supra note 36, at 367.156 1601(3).

157See 1624(a).158S hor et. al., supra note 2.159See supra notes 150-55 and accompanying text.160 See Graham v. Richardson, 40 3 U.S. 365, 382 (1971).


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requirements would promote an influx of aliens in states that havehospitable welfare policies while discouraging residence in states with

restrictive ones.161 Assuming that a strict scrutiny review would render

Commonwealth Cares eligibility requirements invalid, the SJC has createdjust the situat ion contemplat ed by the Graham court.162 Because

Massachusetts will be required to replace lost federal funding, aliens will

have a pecuniary reason to reside within the Commonwealth.163States thatdo not have state health insurance programs and only have a Medicaid

program, will be permitted to adopt PRWORAs eligibility requirements;

thus requiring aliens to reside within the United States for five years beforethey become eligible for Medicaid premium assistance.164 Therefore,

Massachusetts is a more hospitable place to reside if you are an alien

denied federal funding due to PRWORA; you can pack up shop, move toMassachusetts, and receive federal benefitsat the states expenseyou

would otherwise be ineligible for if residing in Kansas or Maine or

California, etc.165

But by adopting PRWORA, Massachusetts hasharmonized federal immigration law and state law, fostering a uniform

national immigrat ion law and effectuating congressional intent.166

B. The SJC Obviated the Possibility of Temporary and PracticalBudgetary Solutions for Commonwealth Care.

The first incarnation of Commonwealth Careproviding aliens with

benefits regardless of their eligibility to receive federal funding

represents Massachusetts generosity and commitment to providinguniversal access to healthcare.167This version of Commonwealth Care was

possible because the state decided to subsume the costs for aliens who

could not receive matching federal dollars.168 In fact, one federally-

ineligible alien enrolled in Commonwealth Care cost Massachusetts twiceas much as enrolling one federally-eligible person.169 However, strict

scrutiny review of the modification to Commonwealth Cares eligibility

161 See id.at 378-80.162See id. at 366, 376; Finch v. Commonwealth Health Ins. Connector Auth., 946 N.E.2d

1262, 1274, 1276 n.18 (Mass. 2011).

163See Finch, 946 N.E.2d at 1285 n.9 (G ants J., dissenting) .164S oskin v. Reinertson, 353 F.3d 1242, 1246 (10th Cir. 2004) (permitting state adoption o f

PRWORAs e ligibility requirements into its Medicaid program).165See Finch, 946 N.E.2d at 1267; supra note 144 and accompanying text.166See supra Part IV.A.

167See MASS GEN.LAWSch. 118h, 1, 3 (2006) (granting e ligibility to Commonwealth Carewith no mention of duration of residency or PRWORA); Finch, 946 N.E.2d at 1267.

168Finch, 946 N.E.2d at 1267.169Id.


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requirements, will likely result in its invalidation, forcing the state toinclude aliens who cannot receive federal reimbursement.170

The ramifications of ruling that strict scrutiny review must apply

when a state adopts PRWORAs eligibility requirements is not confined tothe esoteric world of scholarly debate or even the practical world of EqualProtection litigation.171Rather, the consequences will reach the citizens of

Massachusetts. Massachusetts, like the rest of the country, has experienced

worsening economic conditions.172 This general economic downturn hasresulted specifically in high rates of unemployment. 173Consequently, the

newly unemployed find themselves without employer-sponsored health

insurance plans, and they must turn to state-sponsored programs, likeCommonwealth Care to plug their gap in coverage.174 Therefore,

Massachusetts can expect increased enrollment in Commonwealth Care. 175

Additionally, Massachusetts is constitutionally required to retain abalanced budget.176Due to this provision, the state, in the face of extreme

fiscal challenges accompanying the national economic downturn,amended Commonwealth Cares eligibility requirements.177 The

Legislature sought to conserve scarce fiscal resources in the face ofpotentially little room to absorb additional enrollment in

Commonwealth Care.178 But the SJC did not account for these financial

realities, and the state will need to look to other alternatives to sa lvage itsbudget.179

170Co mmonwealth v. Weston W., 913 N.E.2d 832, 842 (M ass. 2009) (To pass the s trictscrutiny standard, the ordinance must be narrowly tailored to further a legitimate andcompelling governmental interest and be the least restrictive means available to vindicate that

interest.); seeGraham v. Richardson, 403 U.S. 365, 380 (1971) (holding that fiscal concerns are

not a compelling government interest for state laws concerning alienage classifications).171See infra notes 174-80 and accompanying text.172STEPHANIE ANTHONY ET AL., CTR.FOR HEALTH LAW AND ECON.,UNIV.OF MASS.MED.

SCH., THE MASSHEALTH WAIVER: 2009-2011 . . . AND BEYOND 24 (2009), available at

http://www.massmedicaid.org/~/media/MMPI/Files/MassHealth%20Waiver%202009%20to%2

02011%20and%20Beyond.pdf.173 Megan Woolhouse, State Lost More Jobs in Sept.: But Unemployment Rate Declines Slightly,

BOS.GLOBE, Oc t. 21, 2011, at B5, available atPROQUEST DOC.ID.899291188.174ANTHONY ET AL.,supra note172, at 24; S TAN DORN ET AL.,THE URBAN INST.,MEDICAID,

SCHIPAND ECONOMIC DOWNTURN:POLICY CHALLENGES AND POLICY RESPONSES8(2008),

ava ilable at http://www.kff.org/medicaid/upload/7770 .pdf.175 See ANTHONY ET AL.,supra note 172, at 24.176MA.CONST.art. LXIII 2; New Eng. Div. of Am. Cancer Socy v. Commr of Admin., 769

N.E.2d 1248, 1257 (Mass. 2002).177 Shor et al., supra note 2.178ANTHONY ET AL.,supra note 172, at 24.179 See DORN ET AL.,supra note174, at 13-14 (noting challenges state legislatures might face


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The result is a fiscally strapped legislature, forced to trim their b udgetsin order to provide federally ineligible aliens with more state resources

then they spend on the federally eligible citizens. 180The state must spend

more on federally ineligible aliens than they do for enrollees who receivefederal funding.181 This holding forecloses the option that the legislature

sought to conserve resources until they were fiscally in a position to r estore

full benefits once the economy rose and unemployment dropped.182 Thislegislative determination might appear inequitable, but [t]he task of

classifying persons for medical benefits . . . inevitably requires that some

persons who have an almost equally strong claim to favored treatment beplaced on different sides of the line.183

CONCLUSION

The Massachusetts legislature concluded that the best way to face abudgetary shor tfall, and still maintain its groundbr eaking universal

healthcare plan, was to implement federal eligibility requirements and

limit the coverage provided to certain legal aliens. This decision should beentitled to rational basis review considering the nature of the funding

mechanisms employed by Commonwealth Care. This functional

distinction ameliorates the effects of Grahams draconian holding andwould assure state legislatures that compliance with uniform national

policies will not doom their laws to invalidity. Additionally, state courts

have confronted and upheld laws similar to this caseincluding, and mostimportantly, the SJC. Thus, when courts are confronted with a states

denial of public benefits to federally ineligible aliens, they should analyze

the funding mechanisms to determine if the case is governed by Graham,and warrants application of strict scrutiny, or if the program does not

invoke Grahamand should receive rational basis review. In tough economictimes, states must make difficult choices in allocat ing their resources. Whena state chooses to effectuate congressional intent, courts should review the

program only to determine if a rational justification exists. Otherwise,

courts may prevent state legislatures from retaining balanced budgets andentire healthcare programs could face fiscal insolvency.

when confronting the economic downturn).

180See supra Part IV.A.181See supra notes 168-69 and accompanying text.182See supra notes 175-77 and accompanying text.183Matthews v. Diaz, 426 U.S. 67, 83 (1976).