Victory for legal immigrants challenging their exclusion from Commonwealth Care -- Finch v. Commonwealth Health Insurance (Finch 1)
In a wonderful victory for legal immigrants, the Massachusetts Supreme Judicial Court ruled that the state law excluding legal immigrants ineligible for federal Medicaid reimbursement from the Commonwealth Care program is subject to strict scrutiny under the equal protection provisions of the Massachusetts Constitution. Congratulations to the plaintiffs and their lawyers – Health Law Advocates (Wendy Parmet & Lorianne Sainsbury Wong) & private co-counsel Lauren Barnes. The text of the decision is available here:
Finch v. Connector, 459 Mass. 655 (May 6, 2011)
This case was filed before a single judge of the state’s highest court challenging the exclusion of certain legal immigrants from Commonwealth Care as a violation of their rights to equal protection under the Massachusetts constitution. The single judge, Justice Cordy, asked the whole court to answer 4 legal questions to help him decide the case. On May 6, 2011 the court answered those questions. It held that the state law discriminating against legal aliens is subject to “strict scrutiny.” This means to be upheld the state action “ must be narrowly tailored to further a legitimate and compelling governmental interest and must be the least restrictive means available to vindicate that interest.” The case now goes back to J. Cordy.
What happens next?
The full court decided that the strict scrutiny standard should apply, but it remains for J. Cordy to apply that standard to the facts of the case. As a practical matter, determination of the legal standard comes very close to a decision in the case: for the plaintiffs bringing the lawsuit, rational basis is a near-certain loss and strict scrutiny a near-certain win. However, how long it will take to reach a final decision depends on what decisions the Connector and the state make about whether to fight it out to the bitter end or accept the near-certain outcome, and how quickly the plaintiffs and the court can push the case forward.
Meanwhile, the Governor’s and House budgets for FY12 assumed that certain legal immigrants would remain ineligible for Commonwealth Care and that the budget for the program would be $822 million. They also assumed that 19,000 people would remain in Bridge at a cost of $50 million for the year (Governor) or $25 million for 6 months (House). There are also an additional 20,000 legal immigrants who have been shut out of either Commonwealth care or Bridge. Were the state to accept the near-certain conclusion that it cannot lawfully exclude legal immigrants from Commonwealth Care, the program will need to accommodate about 30-40,000 new enrollees. The Senate Ways & Means budget is set for release next week—but they likely did not have enough lead time to account for the court decision.
The court’s decision
Courts apply two different standards to decide if a law violates equal protection depending on whether the law affects a “fundamental right” or singles out a “suspect” class of people or not. If it does, the law must meet a very high standard to be upheld –this is called strict scrutiny. Otherwise, the distinctions made by laws only need a rational basis to be upheld. The Mass. constitution includes equal protection provisions similar to the federal equal protection clause but it also specifically prohibits discrimination on the basis of sex, race, color, creed, or national origin. Past decisions of the court have held that laws that discriminate on the basis of one of these five categories must be given strict scrutiny.
The first question for the full court to answer, was whether “alienage” (not being a U.S. citizen) is a subset of “national origin.” Four of the five judges who decided the case agreed that national origin does not include alienage. (A fifth judge, J. Duffly disagreed and thought alienage is included under national origin). However, the court also rejected the argument made by the Connector that the five categories listed in the Constitution are the only “suspect” classes recognized by the Constitution : “If a class is not addressed by art. 106 it does not follow that strict scrutiny is inappropriate but merely that there is no express constitutional mandate that such scrutiny be applied.”
The Court interpreted the second question as asking whether there were any other provisions in the Constitution that would require strict scrutiny and dispense with the need for the court to decide if legal immigrants are a suspect class under the general contours of equal protection analysis. Because the plaintiffs bringing the lawsuit made no such claim, the court answered this question No.
The third question was whether the rational basis standard should apply to state laws that discriminate based on alienage.  The majority opinion answered this question, No. (J. Spina, Ireland, Duffly). This is the key ruling in the decision. All the judges agreed that when a state law distributing economic benefits (like subsidized insurance) discriminates against legal immigrants, and is not compelled by federal law, it is subject to strict scrutiny. All the judges agreed that nothing in federal law compelled the state of Massachusetts to exclude legal immigrants from Commonwealth Care. The majority of the court concluded that this meant the state law must be able to withstand strict scrutiny to be upheld. However, two of the judges thought an exception to strict scrutiny should be made where the state was spending an equal amount of state dollars and the unequal treatment was due to the federal government not paying an equal amount for legal immigrants. (J. Ganz and Cordy). 
Some highlights from the majority opinion:
- “Where the State is left with a range of options including discriminatory and nondiscriminatory policies, its selection amongst those options must be reviewed under the standards applicable to the State and not those applicable to Congress. Settled equal protection law therefore requires that [the state law] be reviewed under strict scrutiny.”
- “Aliens, standing by definition outside the body politic and yet subject to its laws, are a prototypical example of the ‘discrete and insular’ minority. ...In light of their particularly vulnerable status, it thus remains necessary to exercise heightened vigilance to ensure that the full panoply of constitutional protections are afforded to the Commonwealth’s resident aliens. We therefore decline to overturn the general rule applying strict scrutiny.”
- “...we are acutely aware of the financial difficulties presently facing the Commonwealth, the fiscal consequences of any subsequent judgment on the merits cannot be permitted to intrude on consideration of the case before us... ‘Minorities rely on the independence of the court to secure their constitutional rights against incursions of the majority, operating through the political branches of government.’”
1Given the prior answers, the fourth and final question did not require an answer.
2One important difference between the majority and minority view is in the way they characterize Commonwealth Care. The majority see it as a state program distributing a single benefit. See discussion in fn. 16. The minority sees it as a state supplement to a federal program like the state program in a 2002 case, Doe v. Commissioner of DTA, and requiring rational basis review for the same reasons as in that earlier case (J. Ganz was the trial judge in Doe, and J. Cordy wrote the majority opinion in Doe).