Thursday, October 12, 2006

Equal Protection Under State Law: Very Big Deal in America!

Today, the Maryland Court of Appeals issued an opinion in the case of Ehrlich v. Perez that illustrates that (i) in some cases, rights that we tend to think of as being rooted solely in the U.S. Constitution (in this case, the right to equal protection under law), can also find alternative bases for support in state constitutions and (ii) the Republican Party is doing its best to run headlong off of a demographic cliff.

At issue in the case was a preliminary injunction forcing the state of Maryland to provide medical assistance benefits to resident alien children and pregnant women who immigrated to the United States on or after August 22, 1996. A federal law, The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, generally know as the "Welfare Reform Act," was enacted in 1996. As described by the Court of Appeals:
The [Act] states: "An alien who is a qualified alien (as defined in section 1641 of this title) and who enters the United States on or after August 22, 1996, is not eligible for any Federal means-tested public benefit for a period of 5 years beginning on the date of the alien's entry into the United States with a status within the meaning of the term 'qualified alien.'" 8 U.S.C. §1613(a). Among the provisions of the W elfare Reform Act was the elimination of all benefits for illegal immigrants and other "non-qualified aliens," with a few limited exceptions such as emergency medical care. 8 U.S.C. § 1613. In doing so, Congress divided the two qualified alien categories into two subcategories: (1) qualified aliens who have resided in the U.S. since a time prior to August 22, 1996. . . .Some states were required to provide funding to the first subcategory of qualified aliens. . . . However, a period of five years residency in the U.S. was required for the second subcategory. . . . Congress then authorized the States to enact any law after August 22, 1996, should they choose to compensate this newly designated class of ineligible aliens, provided they use only State funds.
(Some internal citations omitted.)

In 1997, the Maryland General Assembly enacted Md. Ann. Code, Health-General Article §15-103(a)(2)(viii), which provided "comprehensive medical care and other health care services for all legal immigrant children under the age of 18 years and pregnant women who meet [Medicaid] eligibility standards and who arrived in the U.S. on or after August 22, 1996." In 2006, however, Governor Ehrlich cut funding coverage for this part of Medicaid in the budget that he submitted to the General Assembly. (In Maryland, the General Assembly cannot add or increase funding beyond what the Governor has proposed.)

The Circuit Court for Montgomery County issued a preliminary injunction ordering that the state (i) provide Medicaid coverage for all those within the ambit of §15-103(a)(2)(viii) and (ii) reimburse recipients for the benefits that had been denied to them before the date of the order. The injunction was based on the equal protection provisions of Maryland's constitution set forth in Article 24 of Maryland's Declaration of Rights.

On procedural grounds, the Court of Appeals rejected that part of the Circuit Court's order requiring reimbursement of past benefits. The vacation of that part of the order was based solely on the fact that the preliminary injunction remedy is designed to maintain the status quo. An an order that requires payment for benefits provided before the dispute came before the court is equivalent to a judgment in favor of the plaintiffs prior to a complete adjudication of the dispute. However, the Court upheld the injunction insofar as it requires that, while the litigation process is ongoing, the state must continue to provide benefits.

The holding of the case is narrow. If the federal statute had explicitly required that the states deny non-qualified aliens Medicaid benefits, the exclusion would likely have been upheld under the Supremacy Clause. Under those circumstances, the question would have become whether there was a rational basis to conclude that statute furthered the exercise of a particular federal power, namely the power to control immigration. However, because there was no federal mandate prohibiting the states from providing benefits, the more stringent "strict scrutiny" test was applied to determine whether the budgetary exclusion denied the plaintiffs their Equal Protection rights. And, by bottoming its opinion on a provision of the state constitution, the Court of Appeals precluded any Supreme Court review of the Equal Protection question. (Although, various other questions, e.g., a somewhat different "Supremacy Clause" issue raised by the state, could theoretically be appealed to the Supreme Court.)

The opinion comes a day after a story in the Baltimore Sun, Latinos' power in numbers-Naturalized citizens are becoming a political factor in Maryland that demands to be recognized, highlighting the growing political importance of Hispanic voters in Maryland. Those voters will presumably remember that Ehrlich's attempt to cut benefits to pregnant women and children was nothing more than a gratuitous slap at immigrants. As the opinion notes, this budget cut would only achieve "a cost savings of seven million dollars . . . of the four billion dollar budget appropriated for medical assistance health care costs generally."

I suspect that, in the short term, Republicans can mine anti-immigration sentiment to their electoral benefit. In the long run, however, the children and grandchildren of immigrants will remember the nativist enmity stirred up by Republican politicians. That will ultimately crush the party.

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