In the Matter of Mohamed Aliessa, &c., et al.,
Antonia Novello, &c.,
2001 NY Int. 59
On this appeal, we must decide whether Social Services Law § 122 violates the United States and New York Constitutions by denying Medicaid benefits funded solely by the State to plaintiffs based on their status as legal aliens. We conclude that it does.
Plaintiffs are 12 aliens who lawfully reside in New
Plaintiffs brought a class action in Supreme Court
seeking a declaration that Social Services Law § 122 violates
article XVII, sections 1 and 3 of the New York State Constitution
Three days later, the Appellate Division decided Alvarino v Wing (261 AD2d 255). In that case, resident aliens argued that Social Services Law § 95 unconstitutionally denied them food assistance. The court held that because the State enacted the statute in direct response to a Federal supplemental appropriations bill (Pub L 105-18), the challenged classification should be evaluated, for equal protection purposes, under a rational basis standard rather than the strict scrutiny standard Supreme Court had employed.
Supreme Court granted reargument in light of Alvarino
and vacated the portion of its decision that declared section 122
The Medicaid System
The Legislature established New York's Medicaid system in 1966 (L 1966, ch. 256), the year after Congress created the federally funded Medicaid program (see, Pub L 89-97, 79 U.S. Stat 344). Under this complex scheme, the Federal government and States share the cost of providing Medicaid to certain categories of needy individuals. The shared program provides benefits to the disabled, the blind, the elderly, children, pregnant women, single-parent families and parents of children where there is a deprivation factor in the household (see, 42 USC § 1396a[a]). To remain eligible for Federal matching funds, New York must conform its Medicaid program to evolving Federal standards (see, 42 USC § 1396a[b]; Social Services Law § 363-a).
If a State wants to extend Medicaid benefits to others, it is free to proceed at its own expense. New York has done so. It has provided non-federally subsidized Medicaid benefits to certain categories of individuals, including residents between the ages of 21 and 65 whose income and resources fall below a statutory "standard of need" and who are not otherwise entitled to federally subsidized Medicaid (see, Social Services Law § 366; 18 NYCRR 360-3.3[b]). Thus, New York State's Medicaid system has two components: one that is federally subsidized and one that the State funds entirely on its own.
New York had long provided State Medicaid to needy recipients without distinguishing between legal aliens and citizens. It ceased to do so, however, after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub L 104 110 U.S. Stat 2105 [codified in scattered sections of 8 and 42 USC])(PRWORA). Asserting that they have been unlawfully deprived of State Medicaid for which they would otherwise qualify, plaintiffs have brought this challenge.
The Personal Responsibility and Work
Opportunities Reconciliation Act of 1996
After extensive debate, Congress enacted PRWORA as a
comprehensive reform initiative designed to "end welfare as we
PRWORA touches on virtually all aspects of welfare.
In this case, however, we are concerned only with title IV of
PRWORA, which deals with aliens.
In its preamble to title IV, Congress stressed that its goals were to promote self-sufficiency -- an enduring principle of United States immigration law -- and to discourage aliens from immigrating here just to avail themselves of welfare or other public resources (see, 8 USC § 1601-). The lawmakers stated that meeting these goals was a "compelling government interest" (see, 8 USC § -).
By enacting title IV, Congress restricted alien eligibility for federally funded public assistance benefits (including Medicaid) and authorized States to follow suit with their own programs. Its restrictions govern eligibility for Federal and State retirement, welfare, health, disability, public or assisted housing, post-secondary education, food assistance and unemployment benefits, among others (see, 8 USC §§ 1611[c], 1621[c]). For purposes of this decision, however, we address solely its effect on Medicaid eligibility.
Under title IV, aliens are divided into two categories:
qualified aliens and non-qualified aliens (see, 8 USC § 1641).
Broadly speaking, qualified aliens include aliens who are
lawfully admitted for permanent residence (generally green card
holders), granted asylum, designated refugees, paroled into the
United States for at least one year, having their deportation
withheld, granted conditional entry, Cuban and Haitian entrants
or victims of battering or extreme cruelty by a spouse or other
family member (see, 8 USC § 1641[b]-[c]). All other aliens,
PRWORA's Treatment of Aliens' Entitlement to Medicaid
Title IV renders non-qualified aliens ineligible for
Federal Medicaid (8 USC § 1611[a]). Qualified aliens are divided
into two subcategories. The first subcategory includes those who
were lawfully residing in the United States before August 22,
1996. Section 1612(b)(2) requires States to provide Federal
Medicaid to some, but not all, of this group.
subcategory includes those who entered the country on or after
August 22, 1996. This latter group is largely ineligible for
In addition to rendering PRUCOLs ineligible for Federal Medicaid, title IV renders them ineligible for State Medicaid as well (see, 8 USC § 1621[a], [c][B]). Section 1621(d), however, authorizes States to provide State Medicaid to PRUCOLs - - and indeed even to illegal aliens -- by enacting a new law (after August 22, 1996) "which affirmatively provides for such eligibility" (see, 8 USC § 1621[d]). As for qualified aliens, title IV does not require, but instead allows States to grant or deny them State Medicaid, subject to certain exceptions (see, 8 USC § 1622[a]).
Finally, notwithstanding all of these restrictions,
both non-qualified aliens and qualified aliens (during their
periods of ineligibility) may receive State and federally funded
New York's Response to PWRORA
In response to PRWORA, New York enacted Social Services Law § 122, terminating Medicaid for non-qualified aliens -- including PRUCOL plaintiffs (see, Social Services Law § 122[c]). New York did, however, maintain Medicaid for otherwise eligible PRUCOLs who, as of August 4, 1997, were receiving Medicaid and were diagnosed with AIDS or residing in certain licensed residential health care facilities (see, Social Services Law § 122[c]).
As for qualified aliens, section 122 provides Medicaid
to all otherwise eligible qualified aliens who entered the United
States before August 22, 1996 and continuously resided in the
United States until attaining qualified status (Social Services
Law § 122[b][i]). Those entering on or after August 22, 1996,
however, are no longer immediately eligible for State Medicaid,
but must now wait five years for coverage (see, Social Services
Law § 122[b][ii]).
This group includes the lawfully
admitted permanent resident plaintiffs. Finally, all plaintiffs
(both PRUCOLs and qualified aliens) may receive safety net
Plaintiffs argue that section 122 violates article XVII of the New York State Constitution and denies them equal protection under the United States and New York State Constitutions.
New York State Constitution, Article XVII
Plaintiffs contend that section 122 violates article XVII, § 1 of the State Constitution, which provides:
"The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature from time to time may determine" (NY Const, Art XVII, § 1 [emphasis added]).
As this provision demonstrates, care for the needy is not a matter of legislative grace; it is a constitutional mandate (see, Tucker v Toia, , 43 NY2d 1, 7; see also, Lovelace v Gross, , 80 NY2d 419, 424; Jiggetts v Grinker, , 75 NY2d 411, 416). Of course, New York is not required to meet every legitimate need of every needy person (see, Bernstein v Toia, , 43 NY2d 437, 448-449). Rather, the Legislature may determine who is "needy" and allocate the public dollar accordingly.
This Court, however, has interpreted article XVII, § 1
as prohibiting the Legislature from "refusing to aid those whom
it has classified as needy" (Tucker v Toia, 43 NY2d, at 8,
The State argues that the allocation scheme here does
not contravene Tucker. It contends that the Constitution affords
it discretion to set levels of benefits for the needy and, in the
exercise of that discretion, it has provided plaintiffs full
safety net assistance and emergency medical treatment. We agree
that article XVII, § 1 affords the State wide discretion in
defining who is needy and setting benefit levels. Indeed, in
Matter of Barie v Lavine (40 2 565, 566), this Court upheld a
Plaintiffs argue that section 122 does not merely set
levels of benefits for the needy, but deprives them of all
otherwise available ongoing medical care -- a species of aid
distinct from safety net assistance and emergency medical
treatment. They contend that ongoing medical care covers a full
spectrum of ailments, whereas emergency medical treatment becomes
necessary when their medical conditions reach crisis or
catastrophic levels. Plaintiffs and amici point out that
diabetics, for example, often require daily insulin doses and
blood glucose monitoring in order to stay alive, and that with
such care they can lead healthy, productive lives. They are,
however, denied this coverage. Treatment is unavailable until
the condition reaches emergency proportions, involving insulin
shock, renal failure and possibly amputation. Similarly,
asthmatics receive no coverage for inhalers and medications to
control their conditions. They receive no medical care until
they experience severe attacks that can lead to suffocation and
death. Contrasting it with emergency treatment, the Supreme
Court has characterized ongoing medical care as a "basic
necessity of life" (see, Memorial Hosp. v Maricopa County, 415 US 250, 260-261). "To allow a serious illness to go untreated until
it requires emergency hospitalization is to subject the sufferer
In this context, plaintiffs and amici argue that when such patients are treated in emergency settings, the hospitals are not permitted to release them without a discharge plan for necessary continuing health care services, citing Public Health Law § 2803(g). Because they cannot be readily discharged, many remain in hospital facilities. Those who are discharged experience a cycle of emergency, recovery, stabilization, deterioration and the onset of another emergency. All of this, plaintiffs and amici contend, could be avoided through ongoing medical treatment.
In Lavine the work incentive requirement was an
appropriate mechanism for identifying need. Here, however, the
concept of need plays no part in the operation of section 122.
Indeed, the statute suffers from an infirmity comparable to the
one in Tucker and cannot be justified on the basis of a
distinction between qualified aliens and PRUCOLs on the one hand,
and citizens on the other. We conclude that section 122 violates
the letter and spirit of article XVII, § 1 by imposing on
plaintiffs an overly burdensome eligibility condition having
nothing to do with need, depriving them of an entire category of
otherwise available basic necessity benefits.
Plaintiffs argue that section 122 denies them equal protection under the United States and New York State Constitutions. The Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws" (US Const, 14th Amend, § 1). The New York State Constitution contains its own equal protection requirement (NY Const, art I, § 11). It is axiomatic that aliens are "persons" entitled to equal protection (see, Yick Wo v Hopkins, 118 US 356, 369 ["The fourteenth amendment to the constitution is not confined to the protection of citizens"]; see also, Mathews v Diaz, 426 US 67, 77; Takahashi v Fish and Game Commission, 334 US 410, 419-420).
In considering whether a State statute violates the
Equal Protection Clause, the Supreme Court applies different
levels of scrutiny to different types of classifications (see,
Clark v Jeter, 486 US 456, 461). The parties disagree as to the
level of scrutiny section 122 must withstand. Plaintiffs urge
this Court to apply strict scrutiny because section 122 creates
classifications based on alienage. The State argues that section
As a general rule, the Supreme Court has strictly
scrutinized State laws that create alienage classifications when
distributing economic benefits or regulating economic activity
(see, e.g., Bernal v Fainter, 467 US 216, 227-228 [invalidating a
Texas statute that required citizenship for notaries public];
Nyquist v Mauclet, 432 US 1, 7-12 [striking down a New York
statute that restricted eligibility for Regents college
scholarships based on alienage]; In re Griffiths, 413 US 717,
718-722 [invalidating a Connecticut statute that allowed only
citizens to qualify for the bar examination]; Graham
v Richardson, 403 US, at 370-376,
Heightened scrutiny is premised on the Supreme Court's
view of the political process. The Court generally accords
States broad discretion to create classifications in implementing
economic and social welfare policy (see, Dandridge v Williams,
397 US 471, 485). In these instances, the Court leaves it to the
political process to "bring about the repeal of undesirable
legislation" (see, United States v Carolene Products Co., 304 US 144, 152-153 n4). If a statute has "some 'reasonable basis,'"
the Court will sustain it even if the classification "'is not
made with mathematical nicety [or] results in some inequality'"
(Dandridge v Williams, 397 US, at 485,
In Graham v Richardson (403 US 365, 372,
The State does not attempt to justify section 122 under
a strict scrutiny standard.
Nor has it identified any
The Constitution empowers Congress to "establish [a]
uniform Rule of Naturalization" (US Const, art I, § 8, cl 4),
"regulate Commerce with foreign Nations" (US Const, art I, § 8,
cl 3), "declare war" (US Const, art I, § 8, cl 11) approve
treaties (US Const, art II, § 2, cl 2), and legislate over
foreign affairs (see, Toll v Moreno, 458 US 1, 10,
When allocating Federal welfare benefits, the
Constitution does not prohibit Congress from distinguishing
between aliens and citizens. In Mathews v Diaz (426 US 67, 69,
Relying on these cases, the State argues that section 122 does what title IV has authorized it to do with regard to Federal immigration policy. Plaintiffs contend, however, that the issue is not whether the State has followed the authorization. Rather, it is whether title IV can constitutionally authorize New York to determine for itself the extent to which it will discriminate against legal aliens for State Medicaid eligibility. Plaintiffs argue that it cannot, and we agree.
Graham v Richardson (403 US 365,
Additional Supreme Court decisions reinforce Graham's
requirement for uniformity in immigration policy (see, Plyler
v Doe, 457 US, at 219 n19,
Finally, in Hampton v Mow Sun Wong (426 US 88, 104,
Title IV does not impose a uniform immigration rule for
States to follow. Indeed, it expressly authorizes States to
enact laws extending "any State or local benefit" even to those
aliens not lawfully present within the United States (8 USC
§ 1621[d]). The converse is also true and exacerbates the lack
In exercising its discretion under title IV, New York has chosen to continue Medicaid coverage for any PRUCOL who, as of August 4, 1997, was receiving Medicaid and was either diagnosed with AIDS or residing in certain licensed residential health care facilities. This demonstrates that New York -- along with every other State -- with Congressional permission is choosing its own policy with respect to health benefits for resident, indigent legal aliens. Thus, we address this case outside the context of a Congressional command for nationwide uniformity in the scope of Medicaid coverage for indigent aliens as a matter of federal immigration policy.
We conclude that section 122 is subject to -- and
cannot pass -- strict scrutiny, notwithstanding title IV's
authorization. Because title IV authorizes each State to extend
the ineligibility period for Federal Medicaid beyond the
mandatory five years (see, 8 USC § 1612)
and terminate Federal
Medicaid eligibility for certain refugees and asylees after seven
years (see, 8 USC § 1612[b], [A][i]), it is directly in the
teeth of Graham insofar as it allows the States to "adopt
divergent laws on the subject of citizenship requirements for
federally supported welfare programs" (see, 403 US, at 382,
Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this Opinion.
1 Federal law requires the Immigration and Naturalization Service (INS) to issue permanent resident cards (commonly known as green cards) to l awfully admitted permanent residents (see, 8 USC § 1304[d]).
2 As distinguished from illegal aliens subject to deportation, this designation is used to classify aliens of whom the INS is aware, but has no plans to deport (see generally, Polen, Salvaging a Safety Net: Modifying the Bar to Supplemental Security Income for Legal Aliens, 76 Wash U L Q 1455, 1455 n3 ). The classification appears in numerous statutes and regulations (see, e.g., 8 USC § 1254a[f]; 26 USC § 3304[a][A]; 20 CFR §§ 416.1618, 416.1619; 42 CFR § 435.408). When and whether a particular alien meets a given provision's definition has generated considerable litigation (compare Holley v Lavine, 553 F2d 845, 849 [2d Cir.], cert. denied 435 US 947, with Sudomir v McMahon, 767 F2d 1456, 1461 [9th Cir.]).
3 For purposes of this decision, we refer to federally subsidized Medicaid as "Federal Medicaid" and Medicaid entirely funded by the State and its localities as "State Medicaid." This litigation, and our holding, relate only to the latter category (compare, Lewis v Perales, __ F3d __, 2001 WL 540528 [2d Cir May 22, 2001] [dealing with claims by illegal aliens for prenatal care under Federal Medicaid]).
4 See generally, Recent Legislation: Welfare Reform -- Treatment of Legal Immigrants -- Congress Authorizes States to Deny Public Benefits to Noncitizens and Excludes Legal Immigrants from Federal Aid Programs, 110 Harv L Rev 1191 (1997); Hoke, Symposium, State Discretion Under New Federal Welfare Legislation: Illusion, Reality and a Federalism-Based Constitutional Challenge, 9 Stan L & Pol'y Rev 115 (1998); Developments in Policy: Welfare Reform, 16 Yale L & Pol'y Rev 221 (1997).
5 Title IV is codified beginning at section 1601, title 8, United States Code. Title I of PRWORA provides block grants to States for temporary assistance to needy families. Congress designed these grants to reduce out-of-wedlock pregnancies and promote job preparation, work, marriage and two-parent families. Title II modifies eligibility requirements for Supplemental Security Income benefits for, among others, fugitive felons, probation and parole violators, prisoners and persons found to have fraudulently misrepresented their residences. Title III streamlines child support collection procedures, requiring uniformity throughout the States. Title V mandates a national study of children at risk of abuse or neglect. Title VI provides block grants to States to develop localized child care programs that promote parental choice and independence from public assistance. Titles VII and VIII make changes to the National School Lunch Act and the Food Stamp Act. Finally, title IX implements a variety of initiatives that, among other provisions, authorize States to test welfare recipients for controlled substances, require public housing agencies to provide certain information to law enforcement agencies and encourage the use of electronic benefit transfer systems.
6 Illegal aliens and certain others -- with whom we are not here concerned -- are also non-qualified aliens (see, 8 USC § 1641).
7 For example, section 1612(b)(2)(A)(i) requires States to provide Federal Medicaid to certain refugees and asylees for seven years. Thereafter, States have authority to determine eligibility (see, USC § 1612[b]). Title IV also requires States to provide Federal Medicaid to other qualified aliens, including lawfully admitted permanent residents who worked or can be credited with 40 qualifying quarters under the Social Security Act and legally residing veterans and active duty members of the United States Armed Forces (and their dependants) (see, 8 USC § 1612[b][B]-[F]).
8 Refugees, asylees, Cuban and Haitian entrants, veterans and their dependants, active duty soldiers in the United States Armed Forces and their dependants, and certain other qualified aliens are exempt from this restriction (see, USC § 1613[b]).
9 Section 1621(d) refers to "State authority to provide for eligibility of illegal aliens." Inasmuch as only PRUCOLS are before us, we need not decide the full scope of this provision. The statute obviously authorizes the State to provide State Medicaid to PRUCOLs.
10 States must, for example, provide State Medicaid to otherwise eligible refugees, asylees, and Cuban and Haitian entrants, among others (see, 8 USC § 1622[b]).
11 The five-year waiting period does not apply to, among others, refugees, asylees and veterans (see, Social Services Law § 122[a]).
12 In light of this determination, we do not address
plaintiffs' argument under article XVII, § 3. In addition, we
note the State's argument that it enacted section 122 in response
to title IV. We recognize that Federal law in the area of
immigration is preemptive (see, Toll v Moreno, 458 US 1, 10;
DeCanas v Bica, 424 US 351, 354; Graham v Richardson, 403 US 365,
378; cf. Minino v Perales, , 79 NY2d 883, 885). In view of our
holding in part III.B,
13 In Plyler v Doe (457 US 202, 223,
14 The State notes only that under title IV, a State choosing "to follow the Federal classification in determining the eligibility of [qualified] 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" (see, 8 USC § 1601). Given our system of separation of powers, a lawmaking body may not legislatively declare that a statute meets constitutional criteria (see, Board of Trustees of the University of Alabama v Garret, 121 S Ct 955, 963, __ US __; City of Boerne v Flores, 521 US 507, 519).
15 Congress has power to exclude aliens (see, Chan Ping
v United States, 130 US 581, 603) and may "order the deportation
of aliens whose presence in the country it deems hurtful" (see,
Bugajewitz v Adams, 228 US 585, 592).
16 The Supreme Court has cautioned, however, that State
"regulation not congressionally sanctioned that discriminates
against aliens lawfully admitted to the country is impermissible
if it imposes additional burdens not contemplated by Congress"
(De Canas v Bica, 424 US, at 358 n6,
17 The Constitution empowers Congress to "establish [a] uniform Rule of Naturalization" (US Const, art I, § 8, cl 4 [emphasis added]). The framers of the Constitution did not include the word "uniform" by accident. It was an imperative design. James Madison decried the disorder that resulted from the operation of the Privileges and Immunities Clause of the Articles of Confederation when each State had its own criteria for citizenship (see, Federalist LXII, see also, II Story, Commentaries on the Constitution of the United States, § 1103, at p 41 ). Although we are not dealing with the Privileges and Immunities Clause of the United States Constitution, the concern for uniformity is similarly present here.
18 New York has declined this invitation (see, Social Services Law §§ 122[b][ii] [adopting the five-year ineligibility period]).
19 To be sure, title IV provides States with some uniform directives (see, e.g., 8 USC §§ 1613[a],[b]; 1621[b]; 1622[b]). These directives, however, do not cure the infirmity before us.