                  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.
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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.
