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Alienage classifications and the denial of health care to DREAMers.


In the Affordable Care Act ("ACA"), passed in 2010, Congress provided that only "lawfully present" individuals could obtain insurance through the Marketplaces established under the Act. Congress left it to the Department of Health and Human Services ("HHS") to define who is "lawfully present." Initially, HHS included all individuals with deferred action status, which is an authorized period of stay but not a legal status. After President Obama announced a new policy of Deferred Action for Childhood Arrivals ("DACA") in June 2012, however, HHS amended its regulation specifically to exclude DACA recipients from the definition of "lawfully present." The revised regulation denied DREAMers--undocumented immigrants brought to the United States as children--access to affordable health care, while providing it to similarly situated individuals who had been granted deferred action through other means. This Article examines whether the exclusion of DREAMers from the ACA violates equal protection principles, highlighting critical inconsistencies and gaps in the case law on standards of review for alienage classifications. A circuit split exists about whether non-legal permanent residents are ever entitled to strict scrutiny, and the extent of the Executive's power over immigration remains unclear, as does the allocation of power within the executive branch. In addition, courts are divided about the standard of review that applies when states discriminate against noncitizens pursuant to a federal statute. All of these issues complicate the analysis and underscore the need to reevaluate an unraveling tiered approach to judicial review.
     A. Legislative History
     B. Impact of DA CA and DAP A Policies
     C. Health Care Options for DACA Recipients
     A. Discrimination by States
        1. Strict Scrutiny for Legal Permanent Residents
        2. Circuit Split for Non-Legal Permanent Residents
     B. Discrimination by the Federal Government
        1. Rational Basis Review and the Plenary Power
        2. Allocation of Power Between Congress and the
        3. Allocation of Power Within the Executive Branch
     C. Discrimination Pursuant to Federal-State Hybrids
        1. Decisions Applying Rational Basis Review
        2. Decisions Applying Strict Scrutiny
     D. Summary of Standards of Review
     A. Does Heightened Scrutiny Apply?
        1. Does HHS Lack Relevant Expertise?
        2. Was There an Express Mandate from Congress?
        3. Was There an Express Mandate from the President?
        4. Does Having Only Deferred Action Status Matter?
     B. Does the Exclusion Survive Rational Basis Review?
     C. Are States Engaging in Prohibited Discrimination?
     A. Alternative Approaches to Judicial Scrutiny
        1. Applying a Sliding-Scale Approach
        2. Answering Goldberg's Three Questions
     B. Avoiding Equal Protection Analysis Altogether
        1. Challenging HHS's Regulation Under the APA
        2. Challenging HHS's Regulation Under Chevron
        3. Why Equal Protection Still Matters


The application of equal protection principles to noncitizens remains one of the most perplexing areas of constitutional law. While courts have tried to articulate various principles to synthesize the case law in this area, inconsistencies and uncertainties remain pervasive. As one federal appellate court judge recently recognized, "What is remarkable is that seventy-five years after United States v. Carotene Products Co. announced the need for 'more exacting judicial scrutiny' for 'discrete and insular minorities,' ... we should be divided over the proper standard of review for classifications based on alienage." (1)

The general rule of thumb is that alienage-based classifications receive strict scrutiny when made by states, since alienage, like race, is a suspect classification, but rational basis review applies when such classifications are made by the federal government, due to its plenary power over immigration. The problem is that this approach is plagued with unresolved questions. In terms of discrimination by states, a circuit split exists about whether strict scrutiny applies only to legal permanent residents ("LPRs") or extends to noncitizens with other types of status, such as individuals with temporary work visas, asylum, withholding of removal, or parole. (2) In addition, courts are divided about what to do with "hybrid" statutes, where Congress gives states discretion to decide whether or not to discriminate against certain categories of noncitizens. Some courts have held that states have no real option to discriminate in this situation, while others have upheld discriminatory actions by states on the basis that they are following a federal direction.

Just as complicated are questions involving discrimination against noncitizens by the federal government. While the Supreme Court has repeatedly held that Congress and the President have plenary power over immigration, the allocation of power between the legislative and executive branches remains unclear. The lawsuit brought by twenty-six states challenging President Obama's executive actions on immigration highlights this issue. Even more confusing--and less theorized--is the scope of the plenary power within the executive branch. The Supreme Court has issued only one, opaque decision addressing alienage-based classifications by an executive agency that does not have direct responsibility over immigration. (3) In that case, the Court found the agency's classification unconstitutional but applied a due process analysis to address an equal protection issue. (4) Consequently, there is still an open question about what standard of scrutiny applies to alienage-based classifications by federal agencies whose expertise is not immigration.

An issue that calls attention to these gaps and tensions in equal protection jurisprudence is the exclusion of DREAMers from the Affordable Care Act ("ACA" or "Act"). The term "DREAMers" is used to describe undocumented individuals who came to the United States as children, went to school here, and consider themselves American. They are the group that would have benefited from the Development, Relief, and Education for Alien Minors ("DREAM") Act, legislation that Confess has introduced several times since 2001 but never passed into law. (5) They are also the group that has benefited from the policy of Deferred Action for Childhood Arrivals ("DACA"), introduced by the Department of Homeland Security ("DHS") in 2012, which has requirements resembling the DREAM Act, as it requires entering the United States before the age of sixteen, living here continuously for at least five years, satisfying certain educational requirements, and passing criminal background checks. Unlike the DREAM Act, however, DACA does not create a path to permanent residency or citizenship; it simply allows qualifying individuals to apply for deferred action.

Deferred action is a temporary period of authorized stay granted by DHS that allows someone to apply for employment authorization but does not confer a legal status. As DHS has explained, "Deferred action is a long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period of time." (6) It is "a form of prosecutorial discretion by which the Secretary deprioritizes an individual's case for humanitarian reasons, administrative convenience, or in the interest of the Department's overall enforcement mission. (7) For example, DHS typically grants deferred action status to certain classes of individuals, including, but not limited to: abused spouses and children of US citizens and permanent residents with approved self-petitions; immediate relatives of certain US citizens killed in combat; victims of crimes who have demonstrated prima facie eligibility for U or T visas; and important witnesses in investigations or prosecutions. (8) In addition to such classes, DHS has discretion to grant deferred action in any removal case where the individual is a low enforcement priority. (9) Even noncitizens who have already been ordered deported may be granted deferred action based on sympathetic facts if their removal is not a priority. DACA therefore represents just one of many ways to be granted deferred action.

The key question for purposes of access to affordable health care is whether individuals granted deferred action through DACA should be considered "lawfully present" in the United States. The ACA explicitly limits access to its health insurance Marketplaces and tax credits to individuals who are "lawfully present" but does not define this term. (10) Instead, Congress left it to the Department of Health and Human Services ("HHS") to define who is "lawfully present." (11) Initially, in 2010, HHS included all individuals with deferred action status in its definition of "lawfully present." (12) However, after President Obama announced DACA in June 2012, HHS changed its interpretation to exclude DACA recipients from the definition of "lawfully present," even though it continued to include all other individuals with deferred action status. (13) HHS's decision to treat some individuals with deferred action as "lawfully present" while excluding others with the exact same status raises a serious equal protection issue. Yet the standard of review that applies in this situation remains unclear.

In determining the proper standard of review for the disparate treatment of DACA recipients under the ACA, one must grapple with at least three unresolved questions. First, there is an open question about whether noncitizens with deferred action status are ever entitled to heightened scrutiny. Second, although HHS is part of the federal government, it is an agency that does not have direct responsibility over immigration, so there is a question about whether it is entitled to deference under the plenary power doctrine. Third, since states can choose whether to create their own Marketplaces under the ACA, a question arises whether choosing to do so involves engaging in prohibited discrimination, or whether such discrimination is permitted because the states are merely following a federal directive.

Part I of this Article provides background information about the exclusion of DACA recipients from the ACA, including the legislative history that led to this exclusion and its far-reaching consequences for DREAMers. Part II describes the overt discord and covert gaps in equal protection cases involving noncitizens, examining the issues that plague alienage-based classifications by both state and federal governments, as well as the controversy surrounding Congressional delegation of the power to discriminate to states. Part III then examines the relevance of these questions to HHS's decision to exclude DACA recipients from the ACA, exploring whether heightened scrutiny should apply in this situation and, if not, whether the differential treatment of DREAMers would survive even rational basis review. This Part also explores whether states that apply HHS's discriminatory regulation through their own Marketplaces are engaging in prohibited discrimination subject to strict scrutiny. Part IV offers a path through this quagmire by making explicit what has already occurred in practice: abandonment of a tiered approach to standards of review. This Part suggests adopting a more flexible, sliding-scale approach. Part IV also examines alternative modes of legal analysis as a way to avoid the equal protection conundrum, such as administrative law challenges to the exclusion of DACA recipients from the ACA, but contends that it is still essential to clarify how courts should review alienage-based classifications.

Nearly eight hundred thousand individuals have been granted deferred action through DACA thus far. (14) In November 2014, DHS announced an expansion of the DACA policy, as well as a new policy of Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"). (15) Together, these new policies could provide deferred action to up to 5.2 million people. (16) The policies have not yet been implemented, however, due to a lawsuit filed by twenty-six states that led to a preliminary injunction putting them on hold until the case is resolved. (17) HHS has not yet passed any regulations regarding the treatment of expanded DACA or DAPA recipients under the ACA, but it is expected to exclude them, just like original DACA recipients, if the policies survive. (18) The disparate treatment of different groups of individuals with deferred action is therefore a pressing issue that could affect millions of lives.


A. Legislative History

The Affordable Care Act became law in March 2010 after a highly contentious and divisive political process. The purpose of the Act is to increase the number of insured individuals and reduce the cost of health care. Under prior rules, health insurance companies could deny insurance based on a preexisting condition, charge more based on an applicant's gender or location, and cancel an insurance policy once an individual started using it. (19) The ACA prevents insurance companies from taking these actions. In addition to creating a federal "Marketplace" (also called an "Exchange") for consumers to purchase health insurance, the Act allows states to create their own health insurance Marketplaces. There are currently two types of state-based Marketplaces. In one kind, the state is responsible for performing all of the Marketplace functions, including receiving applications through its own website. In the other kind, which is called a "federally-supported" state-based Marketplace, the state performs all Marketplace functions, except that it relies on the federal government's IT platform, so consumers apply for coverage through Currently, twelve states and the District of Columbia have totally state-based Marketplaces, and four states have "federally-supported" state-based Marketplaces. In addition, seven states have "state-partnership" Marketplaces, where the state provides in-person consumer assistance, and HHS performs all other marketplace functions. The remaining twenty-seven states use the federal Marketplace, where HHS performs all functions. (20) Only insurance companies that agree to follow the Act's rules can sell insurance plans in these Marketplaces.

The Act also helps consumers pay for health insurance by providing two types of tax credits that are based on household income. First, the Act provides "premium tax credits" that help reduce the cost of health insurance premiums. (21) Second, the Act provides "cost-sharing reductions" that limit the cost of copayments, coinsurance, and deductibles. (22) These tax credits are available to households with incomes at or below 400 percent of the federal poverty level that buy private health insurance through a Marketplace and file federal tax returns. (23)

In order to be eligible for a health plan offered through a Marketplace under the Act or to claim either of the tax credits, an individual must be "a citizen or national of the United States or ... lawfully present in the United States." (24) Congress did not define "lawfully present" in the statute, but instead left it to the Department of Health and Human Services to do so as part of establishing a program that meets the requirements of the Act. (25) One of the Act's key provisions is that it prohibits the denial of health insurance or inflation of rates based on preexisting medical conditions. (26) Since this provision did not become effective until January 1, 2014, [section] 1101 of the Act directed HHS to establish a temporary high-risk health insurance program to provide immediate access to coverage for eligible noninsured individuals with preexisting conditions. Eligibility under this temporary program was similarly limited to US citizens, nationals, and individuals "lawfully present" in the country. (27)

On July 30, 2010, HHS issued an interim final regulation implementing [section] 1101 of the Act. (28) This regulation provides that an individual is eligible to enroll in the Pre-Existing Condition Insurance Plan ("PCIP") program if he or she is "a citizen or national of the United States or lawfully present in the United States." (29) HHS defined "lawfully present" in the interim final regulation at 45 C.F.R. [section] 152.2. This definition included, among many other categories, "[a]liens currently in deferred action status." (30) HHS subsequently passed regulations implementing the Affordable Insurance Exchanges and premium tax credits that cross-referenced this definition of "lawfully present." (31) Furthermore, the same definition of "lawfully present" was used to define eligibility for Medicaid and the Children's Health Insurance Program ("CHIP"), which provide free or low-cost comprehensive health insurance for children under the age of twenty-one, pregnant women, and certain low-income individuals, including seniors and persons with disabilities. (32)

Two years later, on June 15, 2012, President Obama announced a new policy called Deferred Action for Childhood Arrivals, which granted deferred action status to undocumented immigrants who had entered the United States as children, had lived here for at least five years, were below the age of thirty-one on that date, complied with certain educational requirements, and had not been convicted of certain crimes. A Memorandum issued by the Secretary of DHS that set forth these criteria described DACA as a form of prosecutorial discretion for young people who "lacked the intent to violate the law." It explained that immigration laws should not be "blindly enforced without consideration given to the individual circumstances of each case" and were not "designed to remove productive young people to countries where they may not have lived or even speak the language." (34) In addition, the Memorandum recognized that "many of these young people have already contributed to our country in significant ways." (35)

Shortly thereafter, on August 30, 2012, HHS published an interim final regulation that amended the definition of "lawfully present" in 45 C.F.R. [section] 152.2 to exclude DACA recipients. (36) While the revised regulation still included the general category of individuals in deferred action status, it carved out an exception specifically excluding individuals who had obtained deferred action status through DACA. (37) This change made DACA recipients ineligible for the PCIP, Affordable Insurance Exchanges, premium tax credits, and cost-sharing reductions, since all of these rely on the same definition of "lawfully present." (38) HHS explained that excluding DACA recipients from the PCIP would ensure that the interim final rule "does not inadvertently expand the scope of the DACA process." (39) According to HHS, it "would not be consistent with the reasons offered for adopting the DACA process to extend health insurance subsidies under the Affordable Care Act to these individuals." (40) HHS described DHS's reason for adopting DACA as ensuring that enforcement efforts focus on high-priority cases. (41)

HHS's revised definition of "lawfully present" also excluded DACA recipients from obtaining affordable health insurance under the state option available in Medicaid and CHIP. (42) The Children's Health Insurance Program Reauthorization Act of 2009 ("CHIPRA") gives states the option of providing Medicaid or CHIP to children and/or pregnant women who are "lawfully residing" in the United States and otherwise meet the criteria for these benefits. (43) The definition of "lawfully residing" tracks the definition of "lawfully present," with the additional requirement that the individual establish residence in the state where she is applying for benefits. (44) Thus, by excluding DACA recipients from the definition of "lawfully present," the interim final rule also excluded them from the definition of "lawfully residing" for purposes of eligibility for Medicaid and CHIP. Once again, the only explanation offered by HHS in the interim final rule was that "the reasons that DHS offered for adopting the DACA process do not pertain to eligibility for Medicaid or CHIP." (45) HHS stated this same reason in a letter issued to State Health Officials and Medicaid Directors on August 28, 2012. (46)

HHS made the amended interim final rule effective immediately, invoking a waiver of the usual notice and comment procedures for proposed rulemaking. The Administrative Procedure Act ("APA") provides an exception to notice and comment procedures where the agency finds good cause that those procedures would be impracticable, unnecessary, or contrary to the public interest. (47) Here, HHS found that waiting for public comments to issue the regulation would be contrary to the public interest because the PCIP program was enrolling eligible individuals, and HHS thought it important to "provide clarity with respect to eligibility for this new and unforeseen group of individuals as soon as possible, before anyone with deferred action under the DACA process applies to enroll in the PCIP program." (48) Based on the same rationale, HHS applied the good cause exception to waiting at least thirty days after publication in the Federal Register for a final rule to become effective (49) and made the final rule effective immediately. (50)

Although the regulation excluding DACA recipients was made effective immediately, HHS provided sixty days for public comments "on the implications of the amendment." (51) In response, HHS received over 250 comments from legal organizations, health care providers, nonprofits that work with immigrants, and others, which overwhelmingly opposed the change. (52) The main reasons given for opposition were that the exclusion of DACA recipients contradicted the purpose of the ACA, would lead to higher health insurance premiums for everyone, would increase health care costs, would send mixed messages to lawfully present immigrants, and would make arbitrary distinctions among individuals with the same legal status. Furthermore, at least one commentator, the Mexican-American Legal Defense and Education Fund, challenged HHS's reliance on the good cause exceptions to circumvent regular notice and comment procedures and make the regulation effective immediately. (54) In December 2012, Congresswoman Barbara Lee (D-CA), joined by eighty members of Congress, sent a letter to President Obama asking him to reinstate health care for DACA recipients. (55)

These calls for reform have not been successful. In fact, the Obama administration has taken pains to ensure that excluded categories of immigrants do not obtain insurance coverage under the Act. In September 2014, the administration announced that it had cut off the ACA coverage of about 115,000 immigrants who had failed to provide proof that they were lawfully present in the country. (56) Furthermore, in November 2014, when President Obama expanded the category of individuals eligible for DACA and created Deferred Action for undocumented immigrants who are the parents of US citizens or Lawful Permanent Residents, media reports indicated that these individuals would also be excluded from coverage under the ACA. (57) As discussed below, these exclusions leave hundreds of thousands--and potentially millions--of individuals who are lawfully living and working in the United States without any health insurance.

B. Impact of DACA and DAPA Policies

To date, nearly 1.4 million individuals eligible for the original DACA program have applied. (58) Approximately 1.2 million of these applications have been approved, and about sixty thousand remain pending. (59) Many recipients are now filing their renewal applications, since DACA began in 2012 and granted deferred action status for a period of two years. By the end of Fiscal Year 2015, US Citizenship and Immigration Services ("USCIS") had received nearly 400,000 renewal applications. (60) As a population, those who have applied for DACA are quite young and have strong ties to the United States. One-third of the applicants were between the ages of fifteen and eighteen, and another forty percent were between the ages of nineteen and twenty-three. (61) Furthermore, nearly three-quarters of the applicants have lived in the United States for at least ten years, and one-third arrived at age five or younger. (62)

In November 2014, the Department of Homeland Security announced an expanded DACA program, as well as a new program called Deferred Action for Parental Accountability. (63) If implemented, the expanded DACA program would make about 330,000 additional immigrants eligible for deferred action status by eliminating the requirement that applicants be under the age of thirty-one as of June 15, 2012, and requiring continuous residence in the United States since January 1, 2010, instead of June 15, 2007. (64) About one hundred thousand more people may become eligible for DACA over time by turning fifteen, which is the minimum age to apply, or by satisfying the education requirement (i.e., by enrolling in school or obtaining a high school diploma or GED). (65) In addition, an estimated 3.7 million immigrants would qualify for DAPA. (66) This figure includes 3.53 million parents of US citizens and 180,000 parents of legal permanent residents. (67) Together, the expanded DACA and DAPA programs could allow 5.2 million undocumented immigrants--half of the estimated undocumented population--to live and work lawfully in the United States.

Although the process of applying for deferred action under the expanded DACA program was expected to begin on February 18, 2015, a preliminary injunction issued by a federal district court judge in Texas and upheld by the Fifth Circuit has put the process on hold. The preliminary injunction is based on a lawsuit filed by twenty-six states challenging the DACA and DAP A programs as unlawful under the US Constitution's Take Care Clause and the Administrative Procedure Act. (68) In June 2016, an equally divided Supreme Court affirmed the Fifth Circuit's decision in a one-sentence per curiam decision. (69) The fate of these recent programs remains uncertain, since the appeal concerned only a preliminary injunction, and a final judgment in the case--which may ultimately be reviewed by a full complement of Justices--has not yet been issued. Regardless of what happens with the expanded DACA and DAPA programs, however, there has been no legal challenge to the original DACA program. Thus, regardless of the outcome of the recent lawsuit, the exclusion of DACA recipients from the ACA remains an important concern. Of course, if an appellate court upholds the expanded DACA and DAPA programs, then over five million people will be authorized to live and work in the United States but excluded from affordable health care under the ACA.

C. Health Care Options for DACA Recipients

In order to assess the impact of exclusion from the ACA, it is important to understand what other health care options are available to DACA recipients. One option is to obtain health insurance through an employer. Nothing prevents DACA recipients from obtaining health insurance in this way, since they can receive an employment authorization document that enables them to obtain a valid social security number. A significant fraction of DACA recipients, however, will not have access to employer-based health insurance, given the statistics for their age group and individuals of Hispanic race. (70) Even DACA recipients who are lucky enough to have employment-based insurance now may become uninsured in the future, as the availability of employer-based health insurance declines. (71)

Another option for those excluded from the ACA is to rely on the so-called "safety net" of health care providers, which includes a patchwork of public hospitals, community health centers, local health departments, rural clinics, special service providers, and private physicians who provide charity care. (72) There are several reasons why these safety net providers are unlikely to be able to meet the health needs of those excluded from the ACA. First, safety-net providers remain under enormous financial strain. (73) Many states faced with budget deficits have cut spending on Medicaid, which is the primary source of funding for safety-net providers. (74) At the same time, the demand for safety-net services has increased significantly over the past decade. (75) In addition, huge geographical variations exist in the strength of safety nets. (76)

The ACA will make health insurance available to some groups that previously relied on safety-net providers. (77) Yet an estimated 23 million people will remain uninsured, either because they are excluded from the mandate or because they decide to pay a penalty instead of purchasing insurance. (78) Safety-net providers are concerned about their ability to treat this large uninsured population, in part because they are losing funding through the Medicaid Disproportionate Share Hospital ("DSH") program, which began being phased out in 2014. (79) Safety-net providers worry that "[t]hey may lose more in DSH payments than they will gain in other revenue." (80) In addition, patients may turn to safety-net providers for services that are not covered by their insurance plans. (81)

Finally, DACA recipients excluded from the ACA could potentially obtain care in emergency rooms. Under the Emergency Medical Treatment and Labor Act ("EMTALA"), hospitals are required to provide emergency care regardless of immigration status or ability to pay. (82) However, emergency care in this country remains in a dismal state. For the past twenty years, the rate of emergency room visits has increased at twice the rate of growth of the US population. (83) In 2014, the American College of Emergency Physicians ("ACEP") gave a grade of "D+" to the overall environment in which the emergency care system operates. (84) ACEP reports that this near-failing grade "reflects trouble for a nation that has too few emergency departments to meet the needs of a growing, aging population, and of the increasing number of people now insured as a result of the Affordable Care Act." (85)

Although one of the selling points of the ACA was its potential to reduce emergency room visits, the opposite has actually happened. A 2014 survey shows that nearly half of emergency room physicians reported an increase in the number of patients since the ACA went into effect, and the vast majority (86 percent) expected the number to increase over the next three years. (86) One reason for this increase is that the millions of people who became eligible for Medicaid under the ACA cannot find physicians who will accept their insurance and therefore go to the emergency room for treatment instead. (87) Most emergency room physicians do not think their departments are equipped to handle this increase, and only one-third believe the ACA will have a positive long-term impact on access to emergency care. (88)

The obstacles to accessing both employment-based health insurance and safety-net providers, including emergency rooms, suggest that a substantial portion of DACA recipients will be unable to access any kind of affordable health care if kept out of the insurance programs under the ACA. Determining whether their exclusion from the ACA comports with the Equal Protection Clause is therefore a pressing legal issue.


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." (89) In 1886, the Supreme Court held that this provision applies "to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." (90) Nearly seventy years later, on the same day that it decided Brown v. Board of Education, the Court held that the Equal Protection Clause applies to the federal government through the Fifth Amendment Due Process Clause, since "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." (91) In the immigration context, however, the Court has held that the Constitution does impose a lesser duty on the federal government. (92) While alienage-based classifications by states are generally subject to strict scrutiny, federal classifications usually receive only rational basis review. (93) The deference given to the federal government stems from the plenary power doctrine, which ties the federal immigration power to foreign affairs and national security, issues largely immune from judicial review. (94)

With respect to both state and federal classifications, however, significant questions that bear on the appropriate standard of review remain unanswered to this day. Regarding state classifications, there is currently a circuit split about whether strict scrutiny is limited to legal permanent residents ("LPRs") or extends to others who are lawfully present. With respect to federal classifications, the division of immigration authority between Congress and the President remains unclear, as evidenced by the pending litigation challenging the legality of the DACA and DAPA policies. Furthermore, the allocation of immigration authority within the executive branch has remained largely unexamined by courts and scholars alike, yet is highly relevant to assessing alienage-based classifications made by executive agencies. Another layer of complexity emerges when federal and state programs are entangled; courts have sliced this type of "Gordian knot" in conflicting ways. (95) These lacunae in the legal landscape of alienage-based classifications are all relevant to analyzing whether the exclusion of DACA recipients from the ACA violates equal protection. This Part therefore addresses each of them in turn.

A. Discrimination by States

1. Strict Scrutiny for Legal Permanent Residents

Since the Supreme Court's 1971 decision in Graham v. Richardson, alienage-based classifications made by states are normally subject to strict scrutiny, which requires showing that the classification is necessary to achieve a compelling government interest. (96) In Graham, the Court examined two state statutes that denied welfare benefits to LPRs. (97) One statute made permanent residents ineligible for these benefits, while the other imposed a fifteen-year residency requirement for them to qualify. (98) For the first time, the Court found that "classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny," as "[a]liens as a class are a prime example of a 'discrete and insular' minority for whom such heightened judicial solicitude is appropriate." (99) Applying strict scrutiny, the Court struck down both statutes as violations of the Equal Protection Clause, explaining that "a State's desire to preserve limited welfare benefits for its own citizens is inadequate to justify ... making noncitizens ineligible." (100) Since Graham, the Court has repeatedly found that state laws treating citizens and noncitizens differently violate equal protection under strict scrutiny review.

State statutes that discriminate among noncitizens likewise are considered classifications based on alienage and subject to strict scrutiny. (102) In Nyquist v. Mauclet, the Supreme Court considered a New York statute that imposed alienage-based restrictions on eligibility for state financial assistance for higher education. (103) To qualify, a student had to be a US citizen, an LPR with a pending application for citizenship, an LPR who was not yet qualified to apply for citizenship but who pledged to apply as soon as possible, or someone paroled into the United States as a refugee. (104) The statute was challenged on equal protection grounds by two LPRs who did not wish to become US citizens. (105) In defending the constitutionality of the statute, the state argued that "the statute distinguished] only within the heterogeneous class of aliens and [did] not distinguish between citizens and aliens vel non." (106) According to the state, "[o]nly statutory classifications of the latter type ... warrant strict scrutiny." The Court rejected this argument, reasoning that the Arizona statute at issue in Graham "served to discriminate only within the class of aliens: Aliens who met the durational residency requirement were entitled to welfare benefits." In Nyquist, the Court stressed that "[t]he important points are that [the statute] is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class." Since both of the appellees in the case were LPRs, the Court did not specifically address the issue of whether a state statute that harmed only non-LPRs would be constitutional.

Nor has the Supreme Court addressed this issue in any subsequent cases. While the Supreme Court had an opportunity to clarify the standard of review for state laws that discriminate against individuals who have only temporary visas (as opposed to permanent residency) in Toll v. Moreno, it declined to do so. (110) There, the Court was asked to decide the constitutionality of a Maryland law that denied in-state tuition to individuals with G-4 visas, which are issued to the immediate family members of employees of international organizations. (111) The Court invalidated the law as preempted by Congress's detailed scheme for G-4 visa holders and therefore did not consider the equal protection issue. (112)

Consequently, although the Supreme Court has not distinguished among categories of lawfully present noncitizens in applying strict scrutiny to state laws, a circuit split has emerged on what standard of review applies to non-LPRs.

2. Circuit Split for Non-Legal Permanent Residents

The only distinction drawn by the Supreme Court in standards of scrutiny has been between individuals who are lawfully present and those who are undocumented. While the Court has applied strict scrutiny to the former, it indicated that rational basis review applies to the latter in Plyler v. Doe, which involved a Texas statute that prohibited undocumented children from attending public schools. (113) In Plyler, the Court found that undocumented children did not constitute a suspect class, reasoning that they fell outside of Graham's reach because "their presence in this country in violation of federal law is not a 'constitutional irrelevancy.'" (114)

Although the Court purported to apply rational basis review in Plyler, it struck down the Texas statute under a heightened level of scrutiny. (115) The Court explained:
   In determining the rationality of [the Texas statute], we may
   appropriately take into account its costs to the Nation and to the
   innocent children who are its victims. In light of these
   countervailing costs, the discrimination ... can hardly be
   considered rational unless it furthers some substantial goal of the
   State. (116)

The Court went on to find that the classification excluding undocumented children was unjustified by the State's interests in preserving resources, protecting itself against an influx of undocumented immigrants, providing high-quality education, or educating only those children likely to remain within its borders. (117) Since the classification did not further any substantial state interest, the Court concluded that denying "a discrete group of innocent children the free public education that it offers to other children" violated the Equal Protection Clause. (118)

Some federal appellate courts have gone further by restricting the application of strict scrutiny to state laws that discriminate against LPRs. Conflicting interpretations of Supreme Court precedents have resulted in a circuit split about whether strict scrutiny applies to nonimmigrants, a technical term for individuals who have temporary visas, not permanent residency. Nonimmigrant visas are granted for specific purposes and limited periods of time. (119) The Fifth and Sixth Circuits have held that rational basis review applies to nonimmigrants, whereas the Second Circuit has held that strict scrutiny applies to all lawfully present noncitizens. (120) The Ninth Circuit has also implicitly found that strict scrutiny applies to nonimmigrants. (121)

In LeClerc v. Webb, the Fifth Circuit applied rational basis review to a Louisiana Supreme Court rule that required applicants for admission to the Louisiana State Bar to be citizens or LPRs. (122) The court construed Supreme Court decisions such as Graham as justifying strict scrutiny based on two conditions specific to LPRs: (1) their similarity to citizens in their economic, social, and civic conditions; and (2) their inability to exert political power, despite this similarity. (123) The court then distinguished nonimmigrants on the basis that they are not "entrenched" in society like LPRs, their lack of political power is "tied to their temporary connection to this country," and "the numerous variations among nonimmigrant aliens' admission status make it inaccurate to describe them as a class that is 'discrete' or 'insular.'" (124) The court therefore rejected arguments that nonimmigrants constitute a suspect or quasi-suspect class and applied only rational basis review. (125) Judge Higginbotham, who dissented from the court's denial of a petition for rehearing en banc, cautioned that "judicially crafting a subset of aliens, scaled by how it perceives the aliens' proximity to citizenship.... is a bold step not sanctioned by Supreme Court precedent." (126)

In a 2011 decision, Van Staden v. St. Martin, the Fifth Circuit relied on LeClerc in applying rational basis review to uphold a Louisiana rule restricting nursing licenses to permanent residents and citizens. (127) In that case, the appellant was a citizen of South Africa who had lived in the United States since 2001 and was a licensed practical nurse in Texas. (128) When she moved to Louisiana in 2007, she was denied a nursing license based solely on her immigration status, although that status authorized her to work as a nurse in the United States. (129) Van Staden applied for permanent resident status, but the Fifth Circuit found that a pending application was not enough to trigger strict scrutiny. (130) The court held that "LeClerc draws a clean line between permanent resident aliens and nonimmigrant aliens," and that LPR applicants like Van Staden "fall into the latter category, even if close to the former." (131)

The Sixth Circuit followed in the Fifth Circuit's footsteps in applying rational basis review to a Tennessee law that required proof of US citizenship or permanent resident status to obtain a driver's license. (132) The Sixth Circuit distinguished Nyquist, where the Supreme Court had applied strict scrutiny to a New York law that denied state financial assistance for higher education to nonimmigrants as well as LPRs, primarily on the basis that both of the plaintiffs in that case were LPRs. (133) The court then adopted the Fifth Circuit's reasoning in LeClerc, distinguishing nonimmigrants from LPRs on the basis that they "are admitted to the United States only for the duration of their authorized status, are not permitted to serve in the U.S. military, are subject to strict employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits." (134) In his dissenting opinion, Judge Gilman advocated "taking the Supreme Court at its word when it reaffirmed in Graham that 'classifications based on alienage ... are inherently suspect and subject to close judicial scrutiny.'" (135)

The Second Circuit has completely rejected the Fifth and Sixth Circuit's analysis. (136) In Dandamudi v. Tisch, the Second Circuit explained that the Supreme Court had never used proximity to citizenship as a test for determining whether a given group of noncitizens should be considered a suspect class entitled to strict scrutiny. (137) Furthermore, the Second Circuit found that "the Supreme Court recognizes aliens generally as a discrete and insular minority without significant political clout." (138) The court also reasoned that even if the appropriate level of scrutiny did depend on the noncitizens' proximity to citizenship, it would still apply strict scrutiny because nonimmigrants pay taxes, are sometimes allowed to have the intent of remaining permanently in the United States, and were authorized by the federal government to work in the very occupation from which New York was excluding them. (139) The court noted that nonimmigrants often remain in the United States for many years and frequently become LPRs. (140) Finally, the Second Circuit found that applying rational basis review to nonimmigrants would create absurd results, since the Supreme Court had applied heightened rational basis review to undocumented children in Plyler. (141)

While the Ninth Circuit has not explicitly addressed this issue like the Second Circuit, it has implicitly indicated that strict scrutiny would apply to nonimmigrants subjected to discriminatory state laws. In Korab v. Fink, the court considered whether nonimmigrants residing in Hawaii under a Compact of Free Association with the United States ("COFA residents") could be excluded from state-funded health care benefits pursuant to the Welfare Reform Act of 1996. (142) The focus of the court in that case was whether to categorize the discrimination as state or federal, since that would dictate the standard of review. (143) At no point did the court suggest that the nonimmigrant status of the COFA residents triggered rational basis review. If that were the case, the court could have resolved the case without analyzing a complex, hybrid statute. (144)

A lacuna in the law remains not only regarding the standard of review for nonimmigrants, but also for individuals who are authorized to be in the country but do not have a legal status. This group includes, among others, noncitizens with deferred action status or temporary protected status, individuals who have been paroled into the United States or who have pending applications for various forms of relief (such as asylum and cancellation of removal), and noncitizens granted withholding of removal or protection under the Convention Against Torture based on a risk of persecution or torture in their home countries. All of these individuals are lawfully present in the United States, as they have authorization to be here for at least a temporary period of time, do not accrue "unlawful presence," and are eligible to apply for work authorization. (145) For some of these categories, the individual may be authorized to remain in the United States even after a deportation order is issued. For example, when a noncitizen is granted withholding of removal or protection under the Convention Against Torture, a deportation order is issued, but the deportation is withheld indefinitely. Similarly, individuals who are ordered deported but obtain a stay of removal may be granted deferred action status for a temporary period.

So far, only the Ninth Circuit has had the opportunity to consider what standard of review applies to these categories of noncitizens with "less" than nonimmigrant status. In a recent case, the court considered the constitutionality of an Arizona statute that prohibited DACA recipients from using their work permits as evidence of their lawful presence in the United States, while allowing similarly situated individuals with pending applications for cancellation of removal and adjustment of status to do so. (146) In reversing the denial of a preliminary injunction, the court found that the equal protection claim would likely succeed. (147) However, it did not decide if the standard of review is strict scrutiny or rational basis or something in between, because it found that Arizona's law would not even survive the rational basis test. (148) Thus, courts have yet to weigh in on the proper standard of review for equal protection claims involving noncitizens with deferred action status or other types of authorized periods of stay that do not amount to a visa of any kind.

B. Discrimination by the Federal Government

1. Rational Basis Review and the Plenary Power

Although alienage-based classifications are subject to strict scrutiny when made by states, at least if they affect LPRs, such classifications receive great deference when made by the federal government due to the plenary power doctrine. (149) The Court has held that Congress possesses plenary power over immigration based on its constitutional authority to establish a "Uniform Rule of Naturalization" and "regulate Commerce with foreign Nations." (150) While the plenary power doctrine was initially articulated in a case upholding the exclusion of Chinese laborers from the United States, the Court has found that it extends far beyond the admission and exclusion of immigrants, giving Congress power over almost all aspects of noncitizens' lives. (151) During the early part of the twentieth century, the Supreme Court discussed the plenary power only in relation to Congress. (152) Subsequent decisions, however, have explicitly extended the plenary power to the President, based on the President's inherent authority over foreign affairs, which derives from the authority "to make Treaties," to "appoint Ambassadors, other public Ministers, and Consuls," and to "receive Ambassadors and other public Ministers." (153) The Court has also found that the power to exclude noncitizens is inherent to national sovereignty. (154)

While the plenary power is quite broad, it does not render government action completely immune from judicial review. The Supreme Court has acknowledged its limits in cases dating back at least one hundred years. (155) In Knauff, the Court recognized that judicial review remains available for constitutional and statutory claims. (156) The Court's language in Kleindienst v. Mandel, which involved the Attorney General's discretionary decision to deny a waiver of inadmissibility, further found that the Executive did not have "unfettered discretion." (157) There, the Court reviewed the decision to ensure that there was a "facially legitimate and bona fide" reason for the agency's exercise of discretion. (158)

In Mathews v. Diaz, decided a few years later, the Court explicitly applied rational basis review to alienage-based classifications by the federal government. (159) Diaz upheld distinctions based on alienage in the federal Medicare statute, which required legal permanent residents, but not citizens, to satisfy a five-year residency requirement to qualify for certain benefits. (160) Due to the "narrow standard of review of decisions made by the Congress or the President in the area of immigration," the Court found that Congress is allowed to enact laws that treat citizens and noncitizens differently, as long as those laws are rationally related to a legitimate government purpose. (161) Accordingly, the Court found it "unquestionably reasonable for Congress to make an alien's [benefit] eligibility depend on both the character and the duration of his residence." (162) Since Diaz, federal appellate courts have repeatedly upheld alienage classifications in federal statutes pertaining to benefits under rational basis review. (163) Only in a handful of cases have courts invalidated federal government action pertaining to immigration as irrational. (164)

2. Allocation of Power Between Congress and the President

Although the plenary power applies to both Congress and the President, the precise allocation of power between the legislative and executive branches remains far from clear. (165) Despite the development of a detailed Immigration and Nationality Act ("INA"), Presidents have exercised significant control over immigration. (166) Primarily, the Executive exercises power over immigration through prosecutorial discretion regarding whom to deport, which means that the President's power is "almost entirely at the back end of the system." (167)

President Obama, through the Secretary of DHS, presented the expanded DACA and DAPA policies as an exercise of such prosecutorial discretion on a large scale. (168) Cases such as Heckler v. Chaney indicate that an agency's decision about whether to exercise its enforcement authority, or to exercise it in a particular way, is largely immune from judicial review. (169) Yet a lawsuit brought by twenty-six states is currently challenging the President's authority to implement expanded DACA and DAPA. (170) The states counter Chaney with Youngstown, where Justice Jackson famously set forth a three-part framework for analyzing deference to executive power. (171) Under that framework, "[w]hen the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb." (172)

The district court judge who issued a temporary preliminary injunction in February 2015 halting the expanded DACA and DAPA policies agreed with the states that Chaney did not govern. (173) The court found that Chaney applies to agency inaction, but that DAPA constitutes affirmative agency action. (174) Specifically, the court found that DAPA "awards legal presence ... as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel." (175) In addition, the district court in Texas found that there was no specific statute authorizing expanded DACA and DAPA, noting that the President announced it was Congress's failure to pass a law that had prompted him to "change the law." (176) In fact, the court found that expanded DACA and DAPA "contradict[] Congress' statutory goals." (177) In stating that "the discretion given to the DHS Secretary is not unlimited," (178) the decision calls into question the precise reach of the President's supposedly plenary power over immigration and where the line between executive and legislative power should be drawn.

The Fifth Circuit agreed with this reasoning, finding that "[d]eferred action ... is much more than non-enforcement," and that the expanded DACA and DAPA policies exceeded the discretionary authority given to DHS. (179) The court found that the Secretary of DHS's interpretation of the INA's provisions "would allow him to grant lawful presence and work authorization to any illegal alien in the United States--an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility." (180) The court further explained that "[e]ven with 'special deference' to the Secretary, the IN A flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization." (181) According to the court, broad grants of authority in the INA "cannot reasonably be construed as assigning decisions of vast economic and political significance, such as DAP A, to an agency." (182) The detailed dissenting opinion by Judge King challenged this reasoning, concluding that deferred action is a presumptively unreviewable brand of prosecutorial discretion. (183) This case highlights deeply contested areas in the allocation of immigration power between Congress and the executive branch that will eventually need to be resolved by a full complement of the Supreme Court. (184)

3. Allocation of Power Within the Executive Branch

Not only is the allocation of immigration authority between the two political branches of government unclear, but so is the allocation of that power within the executive branch, which remains largely unexplored by courts and scholars alike. There is no doubt that alienage-based classifications made by the executive agency with direct responsibility over immigration, the Department of Homeland Security, would receive only rational basis review. But what if Congress delegates the authority to make alienage-based classifications to another agency that has no immigration expertise, such as the Department of Agriculture, the Social Security Administration, or the Department of Transportation?

The only Supreme Court case that addresses this issue has been rightly described as "opaque." (185) In Hampton v. Mow Sun Wong, which was decided the same day as Mathews v. Diaz, the Court considered the constitutionality of a regulation issued by the US Civil Service Commission that excluded all persons except US citizens and natives of American Samoa from employment in most positions of federal service. (186) One thing that Mow Sun Wong made clear is that the powers Congress and the President have over immigration do not mean that any federal entity automatically evades judicial scrutiny in creating classifications based on alienage. The Court expressly rejected the argument that "the federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens." (187)

The Court explained 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." (188) In determining whether an agency's regulation was intended to serve an overriding national interest, the Court set forth two alternative tests: (1) whether the agency had direct responsibility over immigration; and (2) whether the agency had an express mandate from Congress or the President. (189)

First, the Court examined whether the agency that promulgated the rule had "direct responsibility for fostering or protecting" the overriding national interest. (190) The Court found that the Civil Service Commission had "no responsibility for foreign affairs, for treaty negotiations, for establishing immigration quotas or conditions of entry, or for naturalization policies." (191) The Court stressed that it was "not willing to presume that the Chairman of the Civil Services Commission ... was deliberately fostering an interest so far removed from his normal responsibilities." (192) Upon examining the interests that supposedly supported the regulation excluding noncitizens from federal employment, the Court found that all except one (administrative convenience) were "not matters which are properly the business of the Commission." (193) The Court then rejected administrative convenience as a justification for the regulation, applying what appears to be a due process balancing test to conclude that "the public interest in avoiding the wholesale deprivation of employment opportunities caused by the Commission's indiscriminate policy" outweighed this "hypothetical justification." (194)

The second test used by the Court to determine if the regulation was intended to serve an overriding national interest involved analyzing whether the regulation was "expressly mandated by the Congress or the President." (195) Congress had delegated to the President the power to "prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service." (196) The President, in turn, had issued an Executive Order directing the Civil Service Commission to "establish standards with respect to citizenship." (197) Pursuant to this authority, the Civil Service Commission had promulgated the regulation barring noncitizens from federal employment. (198)

The Court did not find Congress's general delegation of authority sufficient to justify the regulation and, after searching the Appropriations Acts, found no evidence of "either Congressional approval or disapproval of the specific Commission rule." (199) Turning next to the President's Executive Order, the Court explained that even if this Order allowed the Commission to require citizenship for all federal positions, "the decision to impose the requirement was made by the Commission rather than the President." (200) In other words, the President's Executive Order did not expressly mandate the Commission's rule, as evidenced by the Commission's ability to either retain or modify the citizenship requirement without further authorization from the President or Congress. (201)

The Court's findings that the Civil Service Commission had no direct responsibility over immigration-related national interests, and that neither Congress nor the President had expressly mandated the exclusion of noncitizens from federal employment, both played a critical role in the holding that the regulation was invalid. (202) A third factor that contributed to the Court's decision was the fact that the regulation raised a constitutional question. It is because the regulation "deprive [d] a discrete class of persons of an interest in liberty on a wholesale basis" that the Court found that "some judicial scrutiny" was required. (203) Although the Court never specified what level of scrutiny was appropriate, its decision to strike down the regulation indicates a heightened standard of review. (204) To be clear, the Court did not find that the Civil Service Commission had exceeded its delegated authority in promulgating the regulation. (205) Rather, the Court found that the agency's regulation would not be given the deferential review that federal classifications involving alienage normally receive. (206)

The reasoning in Mow Sun Wong resonates with the Supreme Court's 2015 decision in King v. Burwell, which involved a challenge to an IRS regulation that authorized tax credits for purchases on both state and federal health insurance exchanges established under the ACA. (207) There, the petitioners argued that the ACA only authorized tax credits for health insurance purchased through state exchanges. (208) In an unusual step, the Court decided not to apply Chevron deference but to interpret the statutory language itself, reasoning that tax credits are one of the ACA's key reforms, and "had Congress wished to assign that question to an agency, it surely would have done so expressly." (209) The Court found it "especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort." (210) Even without the specter of the constitutional issues that existed in Mow Sun Wong, the Court was skeptical that Congress would allow an agency to make an important decision in an area where it lacked relevant expertise.

Similarly, in Gonzales v. Oregon, a case about physician-assisted suicide, the Court was wary of the Attorney General's "claimed authority to determine appropriate medical standards." (211) The Court reasoned:
   Because historical familiarity and policymaking expertise account
   in the first instance for the presumption that Congress delegates
   interpretive lawmaking power to the agency rather than to the
   reviewing court, we presume here that Congress intended to invest
   interpretive power in the administrative actor in the best position
   to develop these attributes. (212)

Any deference that the Court normally would have given to the Department of Justice's interpretation was "tempered by the Attorney General's lack of expertise in this area and the apparent absence of any consultation with anyone outside the Department of Justice who might aid in a reasoned judgment." (213)

The decisions in Mow Sun Wong, King, and Gonzales all demonstrate the Court's reluctance to defer to an agency's interpretation of an ambiguous statutory provision if the subject is outside the agency's area of expertise. (214) When constitutional issues are at stake, the need for expertise is especially important. While Wong has not had many progeny, it remains good law and indicates that executive agencies are not always equivalent in their authority to create alienage-based classifications. (215)
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Title Annotation:Abstract through II. Scrutinizing Standards of Review for Alienage Classifications B. Discrimination by the Federal Government, p. 1271-1306
Author:Marouf, Fatma
Publication:Washington University Law Review
Date:Jul 1, 2016
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