IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. __________________
VALENTIN SOSKIN, BEI DEI HOWE, EVA ROSENTHAL, VATCHAGAN TATEVOSIAN, GINDA K. GELFAND, YAKOV GELFAND, DUBALE SHIBESHI, and SARIN PERLMAN, on their own Behalf and on Behalf of All others Similarly Situated,
Plaintiff,
vs.
KAREN REINERTSON, In her official capacity as Executive Director of the Colorado Department of Health Care Policy And Financing,
Defendant.
CLASS ACTION COMPLAINT FOR DECLARATORY AND EQUITABLE RELIEF

PRELIMINARY STATEMENT

1.

Plaintiffs bring this action on behalf of themselves and all others similarly situated

to challenge the provisions of Colorado Senate Bill 03-176 (“SB 03-176”) that terminate full-

scope Medicaid eligibility for lawfully present immigrants solely on the basis of their status as

non-citizens and to challenge defendant’s implementation of SB 03-176 without (a) determining

whether plaintiffs and the class members remain eligible for Medicaid even under the terms of

SB 03-176; and (b) providing plaintiffs and plaintiff class members timely and adequate pre-

termination notice and pre-termination administrative fair hearings. Under this new law,

Colorado plans to terminate Medicaid, effective April 1, 2003, for some 3500 legal immigrants

1

who are too poor to afford medical care, while continuing to provide Medicaid to other low-

income Colorado residents.

2.

For the first time in Colorado history, the state has acted to terminate, based on

their non-citizen status, the Medicaid eligibility of individuals who are eligible for this assistance

under federal law. By excluding lawful immigrants from Medicaid coverage, SB 03-176

establishes an invidious and unlawful classification between identically situated citizens and

lawful immigrants, in violation of the Equal Protection Clause of the United States Constitution.

3.

In its frantic haste to implement the new law, enacted on March 5, 2003, the State

plans to terminate the Medicaid of thousands of individuals without first following legally

required procedures to ensure that it does not erroneously terminate those who would still remain

eligible and provide timely and adequate notice of the proposed termination and opportunity for

a fair hearing. By terminating the Medicaid benefits of thousands of lawfully present immigrants

without: (1) determining whether they continue to be eligible for Medicaid even under the terms

of SB 03-176; (2) providing timely and adequate notice so that they may know what steps to take

to establish or maintain eligibility; and (3) providing the opportunity to request an administrative

hearing to demonstrate that the proposed reductions of eligibility ought not apply in their specific

cases, defendant violates the Medicaid Act and implementing regulations as well as the Due

Process clause of the United States Constitution.

4.

Plaintiffs seek a declaratory judgment that the provisions of SB 03-176 that

terminate full-scope Medicaid eligibility for lawful immigrants solely on the basis of their status

as non-citizens violates the Equal Protection and Due Process Clauses of the United States

Constitution; and that the challenged implementation policies and practices violate: (1) 42 U.S.C.

2

§ 1396a(a)(8) and 42 C.F.R. § 435. 930(b), which prohibit the termination of an individual’s

Medicaid benefits when that individual becomes ineligible for one category of Medicaid, without

first determining whether that individual is eligible for Medicaid even under the terms of SB 03-

176.; (2) 42 C.F.R. § 431.200 et seq., which requires the state agency or its delegate to provide

timely and adequate notice of its intent to discontinue Medicaid benefits; and (3) 42 U.S.C. §

1396a(a)(3) and 42 C.F.R. § 431.200, which require a state agency to grant an opportunity for an

administrative hearing to any individual who seeks to contest an agency action that denies

Medicaid services or eligibility.

5.

Plaintiffs seek, inter alia, preliminary and permanent injunctions enjoining

defendant from implementing the provisions of SB 03-176 that terminate full-scope Medicaid

eligibility for lawfully present immigrants solely on the basis of their status as non-citizens.

Plaintiffs further seek a preliminary injunction enjoining defendant from implementing SB 03-

176 until such time as defendant (1) determines whether plaintiffs and the plaintiff class

members may be eligible for Medicaid even under the terms of SB 03-176; (2) provides timely

and adequate notice so that plaintiffs and the plaintiff class members may know what steps to

take to establish or maintain Medicaid eligibility; and (3) provides the opportunity to request an

administrative hearing so that plaintiffs and the plaintiff class members might demonstrate that

the proposed reductions of eligibility ought not apply in their specific facts.

JURISDICTION AND VENUE

6.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and has authority to hear

this action pursuant to 42 U.S.C. § 1983.

7.

Venue is proper in this Court pursuant to 28 U.S.C. §1391(e).

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8.

Declaratory and anci1lary relief is authorized pursuant to 28 U.S.C. §§ 2201,

2202 and Rule 57 of the Federal Rules of Civil Procedure.

9.

Injunctive relief is authorized pursuant to Rule 65 of the Federal Rules of Civil

Procedure.

PARTIES

10.

Plaintiff Valentin Soskin resides in Denver, Colorado.

11.

Plaintiff Vatchagan Tatevosian resides in Denver, Colorado. .

12.

Plaintiff Dubale Shibeshi resides in Denver, Colorado.

13.

Plaintiff Ginda K. Gelfand resided in Denver, Colorado.

14.

Plaintiff Yakov A. Gelfand resides in Denver, Colorado

15.

Plaintiff Sarin Perlman resides in La Plata County, Colorado.

16.

Plaintiff Eva Rosenthal resides in El Paso County, Colorado 80909.

17.

Plaintiff Bie Die Howe resides in Denver, 80206.

18.

Defendant Karen Reinertson is Executive Director of the Colorado Department of

Health Care Policy and Financing (CHCPF), the single state agency designated to administer the

Colorado Medical Assistance Program under Title XIX of the Social Security Act and Colorado

statutes. As such she is responsible for general administration and supervision of the Colorado

Medicaid Program and for the implementation of all changes to the Medicaid Program mandated

by State law.

19.

Defendant administers the Medicaid Program through individual county agencies

in each, who operate under her direct supervision and control.

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CLASS ACTION ALLEGATIONS

20.

This is a class action brought by the plaintiffs, on their own behalf and on behalf

of all other persons similarly situated, pursuant to Rules 23(a) and (b) (2) of the Federal Rules of

Civil Procedure. The class is defined as follows:

All immigrants living in Colorado whose Medicaid will be terminated or whose application for Medicaid will be denied as a result of the enactment and/or implementation of SB03-176.

21.

Defendant’s implementation of SB 03-176 presents questions of law and fact

common to all plaintiffs and class members, including the constitutionality of SB 03-176 and the

legality of defendant’s policies and practices in terminating the Medicaid benefits of plaintiffs

and proposed plaintiff class members under the Medicaid Act, 42 U.S.C. § 1983, and the United

States Constitution.

22.

The named plaintiffs are members of the above-defined class. There are no

conflicts between the interests of the named plaintiffs and the class.

23.

Defendant has terminated or is about to terminate Medicaid benefits for nearly

3,500 lawfully present immigrants residing in Colorado. The proposed class is, therefore, so

numerous that joinder of all members would be impractical and impossible. Joinder is also

impractical because members of the class lack the knowledge and financial means to maintain

individual actions.

24.

Common issues of law and fact predominate over any individual questions, and

adjudication of the rights of the class is superior to other methods of adjudicating the

controversies concerning the defendant’s policy and practice of terminating Medicaid benefits to

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the class members. Adjudicating the issues through means other than a class action could risk

placing inconsistent obligations on the defendant, varying interpretations of the common rights

of the class members, and repetitive analysis and redress of a class-wide problem.

25.

The claims of the named plaintiffs are typical of the claims of the class in that

each is an immigrant whose Medicaid benefits has been or imminently will be terminated by

defendant because of the named plaintiffs’ alienage, pursuant to SB 03-176, or by operation of

the defendant’s implementation of SB 03-176.

26.

The named plaintiffs will fairly and adequately protect the interests of the class

they represent. They are represented by public interest law organizations and law firms

experienced in constitutional law, federal practice and procedure, class action litigation, and the

law governing immigration and Medicaid.

27.

The defendant and her agents, employees, and successors in office have acted and

will act on grounds generally applicable to the class that the plaintiffs represent, thereby making

appropriate injunctive or declaratory relief with respect to the class as a whole.

28.

The plaintiffs and the proposed plaintiff class are directly and beneficially

interested in the defendant’s performance of their mandatory duty to comply with the applicable

provisions of the United States Constitution and the Medicaid Act and its regulations. The

plaintiffs and the class members are directly and beneficially interested in and adversely affected

by the defendant's termination of Medicaid benefits, and the terminations imminently threaten

substantial and irreparable injury.

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STATUTORY AND REGULATORY FRAMEWORK

The Medicaid Act

General Applicability and Coverage

29.

Medicaid is a jointly funded state and federal program that provides medical

services to low-income persons pursuant to Title XIX of the Social Security Act, 42 U.S.C. §

1396 et seq. See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502 (1990). States are not

required to participate in Medicaid. When a state chooses to participate, it thereby receives

federal matching funds for its Medicaid program from the federal government. A state that

chooses to participate must comply with the requirements of the federal Medicaid Act and the

regulations governing state Medicaid programs promulgated by the U.S. Department of Health

and Human Services (HHS). See Schweiker v. Gray Panthers, 453 U.S. 34, 37 (1982).

30.

The federal Medicaid program requires a state to establish or designate a single

state agency that is responsible for administering or supervising the administration of the state’s

Medicaid program. 42 U.S.C. § 1396a (a)(5).

31.

Colorado has chosen to participate in the Medicaid program, and it accepts federal

matching funds for its program expenditures. C.R.S. 26-4-105. Colorado has designated

CHCPF as the single state agency that is responsible for administering and supervising the

administration of Colorado’s Medicaid program. Rulemaking authority for Medicaid is vested in

the Colorado Medical Services Board (MSB), a bi-partisan body created by statute and appointed

by the Governor with the consent of the Senate. C.R.S. 25.5-1-303.

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32.

As a condition of participating in the federal Medicaid program, a state must

submit to the federal Department of Health and Human Service (HHS), a state Medicaid plan

that fulfills the requirements of the Act. 42 U.S.C. § 1396a(a).

Redeterminations

33.

Pursuant to 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(b), States are

required to continue to furnish Medicaid regularly to all eligible individuals until they are found

to be ineligible.

Notice and Administrative Review

34. Applicants for and recipients of Medicaid have the right to an administrative

hearing whenever the state agency “takes action to suspend, terminate, or reduce” services or

eligibility. See 42 U.S.C. § 1396a (a)(3); 42 C.F.R. § 431.200 et seq.; see also 42 C.F.R. §

431.201.

35.

The state Medicaid agency’s fair hearing system “must meet the due process

standards set forth in Goldberg v. Kelly, 397 U.S. 254 (1970), and any additional standards

specified in this subpart.” 42 C.F.R. § 431.205.

36.

The state Medicaid agency must “issue and publicize its hearing procedures”

which “inform every applicant or recipient in writing – (1) Of his right to a hearing; (2) of the

method by which he may obtain a hearing; (3) That he may represent herself or use legal

counsel, a relative, a friend or other spokesman.” 42 C.F.R. § 431.206. The notice to recipients

must be provided ten days prior to the date of the adverse action. 42 C.F.R. § 431.211.

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The Prohibitions of SB 03-176

37.

For decades, Colorado like all other states provided federal Medicaid to lawful

permanent residents and most other lawfully present immigrants on the same basis as U.S.

citizens

38.

On August 22, 1996, President Clinton signed the Personal Responsibility and

Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105

(“PRWORA”) into law. Under PRWORA, federally supported Medicaid is available to

“qualified” immigrants who entered the U.S. before August 22, 1996. There is a “five-year bar”

on these services for “qualified” immigrants who entered the U.S. on or after August 22, 1996,

with some exceptions. Federal Medicaid is available for these immigrants once they have

completed the five-year bar.

39.

After the passage of PRWORA, Colorado continued to provide Medicaid benefits

to all immigrants who remained eligible for federal Medicaid participation.

40.

Colorado’s non-discriminatory approach ended abruptly on March 5, 2003 when

SB 03-176 was passed by the legislature and signed into law by Governor Bill Owens. The state

legislation terminated Medicaid eligibility for most qualified immigrants even though they

remain eligible under federal Medicaid law

41.

In particular, SB 03-176 terminates Medicaid coverage for most qualified

immigrants who entered the United States before August 22, 1996 who are currently receiving

Medicaid benefits, as well as most qualified immigrants who entered the U.S on or after that date

and have completed the federal five-year bar.

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42.

On March 14, 2003, the Colorado Medical Services Board adopted Emergency

Rules #MSB-03-02-11-A. The Emergency Rule implements SB03-176 by amending Colorado’s

Code of Regulations to delete Medicaid coverage for immigrants living in Colorado, based solely

on their status as non-citizens, subject to a few exceptions.

43.

PRWORA mandates eligibility for some “qualified” immigrants. 8 U.S.C. §

1612(b)(2). The federal statute requires states to provide full-scope Medicaid to: refugees,

asylees, persons granted withholding of deportation/removal, Cuban/Haitian entrants, during the

first seven years after the individual was granted the status, and to Amerasians during the first

five years after being admitted with this status. The federal statute also requires states to provide

full-scope Medicaid to lawful permanent residents who have worked for 40 quarters, or who can

be credited with 40 quarters of work; honorably discharged veterans; persons on active duty in

the Armed Forces of the United States; the spouse or unmarried dependent child of a veteran or

serviceperson; certain American Indians, and those individuals who are receiving Supplemental

Security Income benefits (in states, such as Colorado, that link Medicaid eligibility to SSI). 8 U.S.C.§ 1612 (b)(2).1

44.

Nothing in PRWORA compels or requires a state to deny full-scope Medicaid

benefits, as Colorado has done, to qualified immigrants who were in the U.S. on August 22,

1996, or who entered the U.S. on or after August 22, 1996 and have resided in the United States

in a qualified status for five or more years.

1In 2002, Congress established a new category of non-citizens, “victims of trafficking” who, while not listed among the “qualified” immigrants, are eligible for federal benefits at least to the same extent as refugees. The Victims of Trafficking and Violence Protection Act of 2000, Publ L. No. 106-386 § 107 (Oct. 28, 2000).
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FACTUAL ALLEGATIONS COMMON TO THE CLASS

45.

Before April 1, 2003, qualified immigrants who entered the U.S. before August

22, 1996 and those who entered the U.S. on or after that date and who have been in qualified

immigrant status for five or more years, along with other categories, were eligible for Medicaid

on the same terms and conditions as U.S. citizens residing in Colorado. According to the fiscal

note for SB 03-176, nearly 3,500 immigrants living in Colorado who meet this description

currently receive Medicaid benefits.

46.

On February 24, 2003, before SB 03-176 had even been approved by the

legislature, CHFCP issued Agency Letter HCPF 03-001. This letter provides information and

instructions to the county departments of human/social services regarding the agency’s plans for

implementing SB 03-176.

47.

According to HCPF 03-001, CHFCP distributed a computer-generated report to

all county Social Services Directors identifying those individuals with an alien registration

number recorded in the state agency’s computer system. Starting with the immigrants listed on

the computer-generated report, county agencies are directed to pull all associated case files and

check for verification of recipients’ status. If the case file includes current immigration

verification that verifies Medicaid ineligibility, the Agency Letter directs county technicians to

complete an ex parte determination and terminate the individual’s Medicaid coverage. It directs

the county officials to carry out this termination without first providing the client any opportunity

to provide additional information.

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48.

In order to determine if an immigrant has forty quarters of work history, Agency

Letter HCPF 03-001 directs counties to request a work history for the individual immigrant from

the State Verification and Exchange System.

49.

On information and belief, the State Verification and Exchange System does not

contain up-to-date work history data through March 2003. For purposes of determining whether

an individual has credit for 40 quarters of work under PRWORA, an individual may be credited

with quarters of work performed by his or her spouse or by his parents while the individual was a

minor. 8 U.S.C. § 1645 . Defendant’s Agency Letter does not require counties to inquire about

the work histories of the parents or spouses of those immigrants whose Medicaid eligibility is

being redetermined.

50.

HCPF 03-001 does not require counties to consult the work histories of the

parents or spouses of those immigrants appearing on the state’s computer-generated report, nor

does it provide an opportunity for recipients to provide information showing that they should be

credited for quarters of work not reflected in the system.

51.

According to HCPF 03-001, agencies are supposed to send “redetermination

packets” to all those immigrants “with an unknown immigration status.” The redetermination

form included in the packet fails to ask whether the immigrant has worked or can be credited

with forty quarters of work history. See HCPF 03-001, Appendix B.

52.

The redetermination form also asks recipients to verify their immigration status

by sending the Agency a copy of their “INS card.” As reflected on the list of acceptable

immigration documents distributed to HCPF to its eligibility offices, the documentation of an

individual’s immigration status may take the form of a stamp in a passport, a code on a form , a

12

court order, or a variety of other documents not properly described as a ‘card.’ This instruction

does not adequately communicate that the recipient should send a copy of the range of

documents that might serve as proof of his or her immigration status.

53.

Attachments to the Agency letter advise county offices regarding the documents

that may be presented as proof of immigration status. These instructions omit documents

showing membership in certain mandatory coverage categories, and fail to instruct county

offices to accept an INS lost document receipt.

54.

According to HCPF 03-001, if the redetermination packet is not returned to the

county agency within 10 business days, a state developed Notice of Medicaid Closure must be

sent to the immigrant along with a second redetermination form. See HCPF 03-001, Appendix

E. The notice does not provide the legally required detailed explanation of the reason for

termination. The form notice fails to provide information about the right to a fair hearing and the

circumstances under which Medicaid benefits will be continued pending the result of that

hearing.

55.

Pursuant to HCPF 03-001, Denver County sent several variations of notice to

members of the plaintiffs class to implement SB 03-176. The notices include some generic text

and one of several formulations of a reason for the termination, apparently based on whether the

agency concluded that a person was ineligible because she was (1) a legal permanent resident

without the 40 qualifying quarters of work history (“40 quarters notice”);(2) within the group of

immigrants limited to seven years of Medicaid (“7 year notice”); or (3) did not provide

verification of immigration status on the Redetermination form (“failure to verify”).

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56.

These notices do not contain an adequate explanation of proposed action and the

basis for the action. The notices fail to provide the immigration status information for the

individual that the agency relied on for its decision to terminate. Nor do the notices provide

sufficient and accurate information about eligibility categories to enable plaintiffs to determine

whether the agency’s decision is correct. For example, the “40 quarters notice” partially

describes one eligibility category - that of Lawful Permanent Resident (LPR) with 40 qualifying

quarters of work history. It refers to the 40 quarters test but does not say that CHCPF has

concluded that the recipient is a lawful permanent resident. The agency may have incorrectly

applied this category to someone with another status altogether, to an individual who qualifies by

virtue of being on active duty with U.S. Armed Forces, or to person who has become a

naturalized citizen.

57.

The notice does not inform an individual about other potential bases for

eligibility. It fails to clearly explain that Medicaid will be terminated. The title only explains

that some unspecified action will be taken, and the first sentence states that the action may first

sentence indicates that the action affects “cash assistance and/or medical benefits.” The “reason”

indicates that the person “no longer qualif[ies] for Medicaid” but this does not clearly explain to

a lay person that Medicaid will stop. The only reference to termination is buried further down in

the notice explaining, “Further Appeal of this Notice of Medicaid Closure may be directed to an

appropriate state or federal court.”

58.

The notices provide misleading and confusing information about fair hearing

rights. For example, the second sentence and the statement of the reverse side (“Your Right to

Appeal”) states that the individual can appeal if she disagrees with the decision. However, other

14

text in the “40 quarters notice” provides that the individual can request an administrative appeal

only if she or her parents or spouse have 40 quarters of work history. Similarly, the “7 year

notice” provides that the individual can request an administrative appeal “only if you believe that

you have been in the United States for less than 7 years.”) (emphasis in original).

59.

Plaintiff Vatchagan Tatevosian received a “Notice of Proposed Action” from

Denver County Department of Social Services with a March 19, 2003 mail date. In addition to

the boilerplate language which states, inter alia, that “[t]his action affects your cash assistance

and/or medical benefits”, the notice provides that the effective date of the proposed action is

March 31, 2003 and gives the following reason. “The household member(s) listed above lost

their Medicaid because a new state law changed the citizenship requirements for the program.

The person (s) listed above do not meet the new citizenship requirements. 8.100.53 10 CCR-

250510.” Among other defects, this notice fails to identify the immigration status for Mr.

Tatevosian that the agency used to find him ineligible, fails to provide any information about the

“new citizenship requirements” that would enable Mr. Tatevosian to test the accuracy of the

agency’s decision as applied to his situation.

60.

Plaintiff Sarin Perlman received an undated notice on March 21, 2003 from the La

Plata County Department of Social Services informing her that her Medicaid case would be

closed effective March 30, 2003. The reason given was: “The household member(s) listed above

lost their Medicaid because a new state law changed the citizenship requirements for the

program. The person(s) above did not provide the required verification of their immigration

status to complete the redetermination of eligibility. 8.100.7 and 8.10053A (10 CCR-2502-10).”

Among other defects, this notice fails to identify the immigration status used by the agency to

15

find Ms. Perlman ineligible, fails to provide information about the new eligibility categories so

that Ms. Perlman can test the accuracy of the agency’s decision, fails to inform her that she can

avoid termination by providing the requested verification or show good cause by the effective

date of the action (as provided by 8.100.7), and fails to provide any information whatsoever

about fair hearing rights.

61.

Defendant has denied or imminently will deny Medicaid benefits to plaintiffs and

members of the proposed plaintiff class pursuant to SB 03-176, on the basis of their status as

non-citizens or by operation of the Defendant’s unlawful practices and procedures.

FACTS OF INDIVIDUAL NAMED PLAINTIFFS

PLAINTIFF VALENTIN SOSKIN

62.

Plaintiff Valentin Soskin is a 71-year-old refuge from Belarus. He is a Lawful

Permanent Resident of the United States and has been on Medicaid since approximately 1994.

63.

Mr. Soskin has heart problems, including angina and arrhythmia. Two thirds of

his stomach has been removed for severe ulceration, and one of his kidneys has been removed

because of cancer believed to be the result of radiation exposure to he and his family from the

Chernobyl accident in the former Soviet Union.

64.

Mr. Soskin suffers from severe depression resulting from the early death of his

daughter from cancer. He has suicidal thoughts and takes antidepressant medication. Without

the medication he fears he will be suicidal again and need to be admitted to a mental institution.

He sees a psychotherapist.

16

65.

Mr. Soskin continues to suffer from arrhythmia, a condition that causes his heart

to stop beating at times. He needs heart bypass surgery but his health is too fragile for the

procedure.

66.

Mr. Soskin has hypertension and as a result suffered a stroke in December 2002,

that left him partially paralyzed on the left side. It also caused some speech loss and affected his

swallowing. Mr. Soskin was in a nursing home from December 5, 2002 until February 13, 2003

to recover from the stroke.

67.

Since his release from the nursing home, Mr. Soskin receives Home and

Community Based Services (HCBS) through Medicaid. An HCBS aide comes two hours a day

to clean the house, do laundry and shopping, and take Mr. Soskin out in a wheelchair. A skilled

aide comes three days a week and helps him bathe. A nurse visits to monitor his medication. He

has a pull cord for emergencies.

68.

Mr. Soskin’s income is $589 per month through the OAP program, and his wife

receives $589 a month through SSI and OAP. They have no other income. Their rent is $327

per month, and they pay $308 for a meal service. After paying these expenses, Mr. Soskin has

$271.50 a month left over. This amount is inadequate to pay for medications and HCBS services.

Mr. Soskin receives Medicare, but that does not pay for prescription drugs or long term care

services.

69.

Mr. Soskin’s wife cannot care for him. She has had five surgeries for breast

cancer during the past year, is on chemotherapy, is often weak, cannot eat, and feels terrible. Mr.

Soskin has no other family members who can help him.Without Medicaid, Mr. Soskin would

lose HCBS and would be at risk of losing his apartment, which he is able to maintain only

17

because he receives HCBS. He fears that without the medications covered by Medicaid, he will

suffer a heart attack, have another stroke and/or suffer from severe and potentially life-

threatening depression.

PLAINTIFF VATCHAGAN TATEVOSIAN

70.

In 1991 Mr. Tatevosian immigrated to the United States from Uzbekistan and was

admitted as a parolee. He became a Lawful Permanent Resident in 1992.

71.

Mr. Tatevosian has received Medicaid since 1992. He received a “Notice of

Proposed Action” with a mail date of March 19, 2003, telling him that he will lose his Medicaid

benefits because a new state law changed the citizenship requirements for the program, and he

does not meet them.

72.

Mr. Tatevosian suffers from asthma, for which he must use oxygen at night. He

has diabetes, suffers some diabetes-related vision loss, and he has an “on fire” sensation in his

hands and feet. He has been hospitalized for diabetes at least eight times, the last time in 2002.

As a result of an accident six years ago, he lost the use of his right hand and has had five

operations to try to repair it. Mr. Tatevosian has a continuing need for surgery. He also takes

medication for high blood pressure and has some memory loss.

73.

Mr. Tatevosian receives $589 a month from the Old Age Pension program, and

his rent is $500 a month. He did receive $270 a month through the Home Care Allowance, but

just received a notice with a mailing date of March 17, 2003 informing him that the amount will

be reduced by 33%. He uses his Home Care Allowance to pay someone to help him bathe,

shop, clean the house, and perform other necessary tasks.

18

74.

As a recipient of an Old Age Pension Program benefit, Mr. Tatevosian might in

the future be eligible for a limited state-funded medical program with significantly reduced

benefits. However, neither the State nor the County have provided him with any information

about whether or when he would be eligible for this coverage. The benefits in this state-funded

program are limited and not equivalent to Medicaid, and the benefits in this program may be

reduced further. Mr. Tatevosian understands that it is very difficult to find a doctor who

participates in this limited state program. Since the state-funded program does not pay for long-

term care services, he will not be able to receive the long-term care that he needs.

75.

Mr. Tatevosian cannot afford to pay for doctors or other medical care. He has no

other income or family members who can help him. Mr. Tatevosian fears that if he loses

Medicaid and cannot get medications or visit his doctor, he will need to be hospitalized and will

die.

PLAINTIFF DUBALE SHIBESHI

76.

Dubale Shibeshi is 60 years old and resides in a long term care facility. He

immigrated to the United States from Ethiopia and is currently a lawful permanent

resident.

77.

Mr. Shibeshi receives Medicaid. He obtained a job working security at DIA. In

July 2002 Mr. Shibeshi had a stroke at work. Following rehabilitation he moved to a nursing

home where he has since remained.

78.

As a result of the stroke, Mr. Shibeshi is paralyzed on his left side. He cannot

walk, operate his wheelchair, cook or care for himself. He also has speech problems as a result of

the stroke. Since arriving at Briarwood Health Care Facility, Mr. Shibeshi has had surgery to

19

remove pre-cancerous stomach tumors, and was on a feeding tube until recently. He still has the

opening in his stomach in case the feeding tube needs to be replaced. Mr. Shibeshi takes about

eight to ten medications a day. He has high blood pressure and suffers from depression.

79.

On March 12, 2003, Mr. Shibeshi received a notice of eviction from his nursing

home him that he will have to leave because of SB 03-176, unless he can pay $8,420 a month.

80.

Medicaid has paid for Mr. Shibeshi’s care and he has no money or resources to

pay for his care.

81.

Mr. Shibeshi has no place to go if he is evicted from his nursing facility.

PLAINTIFF GINDA K. GELFAND

82.

Plaintiff Ginda K. Gelfand, immigrated to the United States as a refugee from

Belarus in 1994 and became a Lawful Permanent Resident in 1995. She and her husband left

Belarus because they are Jews and there was much anti-Semitism there. They also lived very

near Chernobyl, close enough to be evacuated after the accident, and the environmental

conditions were unbearable.

83.

Mrs. Gelfand has received Medicaid since her arrival in the United States. She

suffers from the following health problems. She had kidney cancer and her right kidney was

removed three years ago. A month later she had a heart attack and heart surgery. Then during

the summer of 2002, she became paralyzed from the waist down. She was hospitalized and then

sent to a nursing home to recover. She stayed in the nursing home for two months and then

returned home. She still has problems with numbness sometimes and when she is numb she

cannot use the lower part of her body.

20

84.

Mrs.Gelfand also has diabetes and hypertension. The muscles in her legs are

deteriorating as a result of a muscle disease, and she is not able to walk much at all. In addition,

her legs are swollen and she cannot put any weight on them. She also suffers from depression

for which she takes medication. She visits her doctor every month and her cardiologist every

two months.

85.

When Mrs. Gelfand returned home from the nursing home she began receiving

help at home. About two months ago, she became eligible for long term care and she now is on

the Home and Community Based Services (HCBS) program. Through that program someone

comes to help her four times a week for three hours at a time. The person helps with cooking,

bathes her, shops for groceries, cleans the house, and takes her for a walk.

86.

Mrs. Gelfand receives $589 a month from the Old Age Pension (OAP) Program.

Her husband is also on the OAP program and receives the same. They own a small one-bedroom

apartment for which they pay a total of $525 a month for mortgage and maintenance fees.

87.

Mrs. Gelfand understands that because she receives Old Age Pension program

benefits, she might at some time in the future be eligible for a limited state-funded medical

program with significantly reduced health benefits. However, neither the State nor the County

have provided any information to her concerning whether and when she would be eligible for the

limited state funded coverage. The benefits in the state funded program are equivalent to

Medicaid benefits and Mrs. Gelfand understands that they may be reduced further. She also

understands that it can be difficult to find a doctor who participates in this program.

88.

Mrs. Gelfand is very concerned that the stated funded program does not pay for

long-term care services. She needs the long term care services that she receives through HCBS.

21

Her husband is unable to provide the care she needs. Without HCBS she will not be able to take

care of herself. She does not have the money to pay for my medical care, medications, or HCBS

services. If she loses Medicaid, Mrs. Gelfand will be completely helpless.

PLAINTIFF YAKOV A. GELFAND

89.

Yakov A. Gelfand is the husband of Plaintiff Ginda K. Gelfand and immigrated to

the United States with her. He too is a Lawful Permanent Resident. Mr. Gelfand has been on

Medicaid since he arrived here. He needs medical treatment for a number of medical conditions.

He has chronic high blood pressure (for which he was hospitalized hospital four times in

Belarus). He had two heart bypass surgeries in 1997, and still takes heart medication. He also

has a condition that makes his face crooked, and his right eye is affected. He suffers from

depression and takes medication for that as well. He sees his primary care doctor once a month

and his cardiologist every six months.

90.

Mr. Gelfand receives $589 a month from the Old Age Pension (OAP) program.

They own a small one-bedroom apartment for which they pay a total of $525 a month for

mortgage and maintenance fees.

91.

Mr. Gelfand understands that because he receives Old Age Pension program

benefits, he might at some time in the future be eligible for a limited state-funded medical

program with significantly reduced health benefits. However, neither the State nor the County

have provided any information to him concerning whether and when he would be eligible for the

limited state funded coverage. The benefits in the state funded program are limited and not

equivalent to Medicaid, and Mr. Gelfand understands that the benefits in this program may be

reduced further. He also understands that it is very difficult to find a doctor who participates in

22

this limited state program. Because the stated funded program does not pay for long-term care

services, he will not be able to receive long-term care services if he needs them.

92.

Mr. Gelfand does not have the money to pay for his medical care or his

medications. If Mr. Gelfand loses Medicaid he will be completely helpless and probably will die.

He believes he would be in the same position as a person left without any food or water.

PLAINTIFF SARIN PERLMAN

93.

Plaintiff Sarin Perlman immigrated to the United States as a student from South

Africa in 1986. She became a Lawful Permanent Resident in 1993. She received an M.S. degree

in Special Education and worked here as an educational therapist as well as the director of a non-

profit clinic serving people with learning disabilities. She is disabled as a result of a closed head

brain injury she sustained in a motor vehicle accident on February 23, 1996. She is on SSDI; has

been on Medicaid since 1997. She receives Home and Community Based Services (“ HCBS”)

through Medicaid.

94.

Ms. Perlman received an undated notice of termination of Medicaid benefits from

La Plata County in the mail on Friday, March 21, 2003. The notice states that she is no longer

eligible for Medicaid under a new state law because of her immigration status and that her

benefits will terminate March 30, 2003. Immediately upon receiving the notice, Ms. Perlman

participated in a discussion with her La Plata County case worker asking if there was any

recourse.. The caseworker indicated that there was nothing that could be done because Ms.

Perlman had fewer than 40 work quarters prior to her disabling event. It Ms. Perlman’s

understanding that there was no appeal from this decision.

23

95.

Among the services that Medicaid currently provides for Ms. Perlman’s are

HCBS services, her Medicare Part A and B services, and her Telephone LifeLine.

96.

Ms. Perlman’s medical condition is such that she requires someone to be available

to her on a 24 hour basis. HCBS services are a critical component of her care plan. Ms. Perlman

has what is called symptomatic decompensation. She experiences very frequent seizure like

spasms which cause temporary full to partial paralysis and can cause her to stop breathing.

Initially after the accident she was having these episodes on a constant basis. She continues to

have these episodes as often as on a daily basis. This in addition to problems with balance

disorder and problems with cognitive function make it impossible for her to perform the basic

activities of daily living independently.

97.

HCBS provides Ms. Perlman with the following services. The caretakers

intervene when she has a spasm and help her when she needs oxygen. The spasms vary in

duration, intensity and frequency and without intervention can go on for many hours with

numerous cessations in breathing. HCBS also assists her with feeding, bathing, hygiene and

other activities of daily living.

98.

Ms. Perlman has no income beyond SSDI ($657 a month) and food stamps ($139

a month). She is unable to pay for the services HCBS currently provides.

99.

Ms. Perlman does not know what she will do if she loses her HCBS. She believes

she is facing her own mortality and for her the loss of benefits will be life threatening.

PLAINTIFF EVA ROSENTHAL

100.

Plaintiff Eva Rosenthal is 81 years old and lives in a nursing facility.

24

101.

Mrs. Rosenthal immigrated to the United States from Germany and became a

Lawful Permanent Resident in 1995. She began receiving Medicaid in June 2002 when she

entered a nursing home.

102.

Mrs. Rosenthal has Alzheimer’s disease and has lost her mental capacity and

experiences dementia. Mrs. Rosenthal’s condition is now so poor that she has been placed in the

locked, secured Alzheimer’s Unit of the nursing facility, a unit reserved for patients who, like

her, require additional care and confinement in order to prevent them from causing injury to

themselves. Mrs. Rosenthal lacks all safety awareness and will roam on her own unless she is

kept in a locked and secure environment. She is unable to cook, take medications, dress and

bathe without the assistance of the staff at the nursing home.

103.

Mrs. Rosenthal has been advised by her nursing facility that she will lose her

Medicaid benefits as a result of SB 03-176 and she will have to leave the Care Center.

104.

Mrs. Rosenthal has an income of $950 per month from a German pension. She

has no other sources of income. The cost to keep her in the Care Center is approximately $4,500

per month which is much more than she can afford.

105.

Forced relocation would be devastating to Mrs. Rosenthal. Her condition is now

such that even a brief change in scenery is incredibly disorienting and upsetting. If Mrs.

Rosenthal were forced to leave the nursing facility she has no other place to go where she can

receive the professional and secure care that she requires.

PLAINTIFF BIE DIE HOWE

106.

Plaintiff Bie Die Howe, 72 years old, resides in a nursing home. She is a Lawful

Permanent Resident who immigrated to the United States with her husband, Tse-Cheng Chang,

25

from Hong Kong, China in the early 1990's. Mr. Tse-Cheng Chang . He is presently

unemployed. He cannot speak English. .

107.

Mrs. Howe has been in a comatose state since about June of 2001 as a result of a

series of strokes, which were left unattended. She has been supported by Medicaid benefits at a

nursing facility since June of 2001. Mrs. Howe’s family has applied for Supplemental Social

Security Benefits for her, but she has not yet been approved for them. As an LPR who has been

here for more than five years and has credits for fewer than 40 work quarters, she will lose her

Medicaid benefits because of SB 03-176.

108.

The nursing facility served Mrs. Howe with a notice of eviction from the facility

in she is unable to pay $8,420.00 a month. She is without family resources to pay for her nursing

home needs. She has no other place to go and cannot care for herself. Her husband is unable to

care for her. She is unable to live without public support.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

109.

By denying or terminating Medicaid to plaintiffs solely on the basis of their

alienage, defendant deprives plaintiffs and members of the class they represent of the equal

protection of the law, in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment to the

United States Constitution.

SECOND CLAIM FOR RELIEF

110.

Defendant’s failure to review the eligibility of plaintiffs and members of the class

for other categories of Medicaid, prior to terminating their Medicaid benefits, pursuant to SB 03-

26

176, violates 42 U.S.C. § 1396a(a)(8) and implementing regulations, 42 C. F. R. § 435.930, as

well as the due process clause of the Fourteenth Amendment to the United States Constitution.

THIRD CLAIM FOR RELIEF

111.

Defendant’s failure to provide timely and adequate notice before terminating the

Medicaid benefits of plaintiffs and plaintiff class members violates 42 U.S.C. § 1396a(a)(3) and

implementing regulations, 42 C.F.R. § 431.200 et. seq. and the due process clause of the

Fourteenth Amendment to the United States Constitution.

FOURTH CLAIM FOR RELIEF

112.

Defendant’s failure to grant plaintiffs and plaintiff class members an opportunity

for a pre-termination administrative hearing violates 42 U.S.C. § 1396a(a)(3) and implementing

regulations, 42 C.F.R.§ 431.200 and the due process clause of the Fourteenth Amendment to the

United States Constitution.

REQUEST FOR RELIEF

WHEREFORE, plaintiffs respectfully request that this Court:

1. Certify the proposed class and order that this action be maintained as a class action pursuant to the Federal Rules of Civil Procedure 23;
2. Declare that the plaintiffs and the class they represent have been denied or are about to be denied or terminated from Medicaid benefits unlawfully, and through illegal practices and procedures in violation of the Equal Protection Clause of Fourteenth Amendment to the United States Constitution, 42 U.S.C. §1396a (a) (3) and (8) and implementing regulations, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

27

3. Enjoin preliminarily and then permanently the Defendant from; a. denying the Medicaid applications of plaintiffs and class members, terminating their Medicaid benefits, or failing to reinstate the Medicaid benefits of those whose benefits were already terminated, solely on the basis of their alienage; b. terminating or failing to reinstate the plaintiffs’ and class members’ Medicaid benefits, unless or until Defendant reviews and certifies their eligibility for other categories of Medicaid benefits, or as a member of one of the excepted categories; c. terminating or failing to reinstate the plaintiffs’ and class members’ Medicaid benefits, unless or until defendant issues timely and adequate notice of their intent to terminate Medicaid benefits; d. terminating or failing to reinstate the plaintiffs’ and class members’ Medicaid benefits, unless or until defendant notifies them of their right to request an administrative hearing to challenge the adverse action, and provide the opportunity for such hearing.
4. Notify those whose Medicaid benefits have been terminated as to how to obtain reinstatement of their benefits.
5. Award plaintiffs’ counsel reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988; and
6. Grant such other and further relief as may be just and proper. Dated: March 27, 2003
28

Respectfully submitted,
___________________ Gregory Piche’ Scott Barker Stephen Masciocchi HOLLAND & HART 555 17th St. #3200 Denver, CO 80201 303-295-8000 In cooperation with the American Civil Liberties Union Foundation of Colorado
Mark Silverstein American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 303-777-5482
Lucas Guttentag American Civil Liberties Union Immigrants' Rights Project 405 14th Street, Suite 300 Oakland CA 94612 Tel: 510-625-2010 ext. 202
Marc Cohan Mary R. Mannix Anne H. Pearson Rebecca L. Scharf Welfare Law Center, Inc. 275 Seventh Avenue, Suite 1205 New York, New York 10001 Tel. (212) 633-6967
Linton Joaquin Gabrielle Lessard National Immigration Law Center 3435 Wilshire Boulevard, Suite 2850
29

Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 Tanya Broder National Immigration Law Center 405 14th Street, Suite 1400 Oakland, CA 94612 Tel: (510) 663-8282 Fax: (510) 663-2028 Jane Perkins National Health Law Program 211 N. Columbia Street Chapel Hill, N.C. 27514 (919) 968-6308.
30

 
 260 F.Supp.2d 1055 (2003)
Valentin SOSKIN, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, and Sarin Perlman, on their own Behalf and on Behalf of
All Others Similarly Situated, Plaintiffs, v.
Karen REINERTSON, in Her Official Capacity as Executive Director of the Colorado Department of Health Care Policy and Financing, Defendant.
No. CIV.03 RB 529 BNB.
United States District Court, D. Colorado.
April 1, 2003.
1056 *1056 Mark Silverstein, Denver, CO, Gregory R. Piche, Holland & Hart, LLP, Denver, CO, for plaintiffs.
Ilene I. Wolf, Wheat Ridge, CO, Ann Hause, Denver, CO, for defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
BLACKBURN, District Judge.
This matter is before me on the plaintiffs' Motion for Temporary Restraining Order [#2], filed March 28, 2003. The defendants have filed a response to the motion. I have carefully reviewed the plaintiffs' motion and the defendant's response. I find that a hearing is not necessary.
This case involves a dispute over the termination of Medicaid benefits upon the implementation on April 1, 2003, of Colorado Senate Bill 03-176 (SB 03-176) as codified at § 26-4-301, C.R.S. (2003). The bill became effective on March 5, 2003. The bill will appeal Colorado's optional coverage of legal immigrants in the Medicaid program. That is, aliens who are part of a optional Medicaid group designated by 8 U.S.C. § 1612(b)(2) will no longer be eligible for Medicaid coverage upon implementation of SB 03-176. However, aliens who are part of a mandatory Medicaid group designated by 8 U.S.C. § 1612(b)(2) will continue to be eligible for Medicaid coverage upon implementation of SB 03-176.
In their complaint, the plaintiffs claim that upon the implementation of SB 03-176, the defendant will deny or terminate Medicaid benefits to plaintiffs solely on the basis of their alienage status in violation of their equal protection rights under 42 U.S.C. § 1983 and the Fourteenth Amendment of the United States Constitution. Plaintiffs claim that the defendant's failure to review the eligibility of plaintiffs and members of the class of other categories of Medicaid prior to terminating their Medicaid benefits violates 42 U.S.C. § 1396a(a)(8), implementing regulations 42 C.F.R. § 435.930, and the due process clause of the Fourteenth Amendment of the United States Constitution. Further, plaintiffs claim that the defendant's alleged failure to provide timely and adequate notice before terminating the Medicaid benefits of the plaintiffs and plaintiff class members violates 42 U.S.C. § 1396a (a)(3), implementing regulations 42 C.F.R. § 431.200 et. seq., and the due process clause of the Fourteenth 1057 Amendment of *1057 the United States Constitution. Finally, plaintiffs claim that defendant's alleged failure to grant plaintiffs and plaintiff class members an opportunity for a pre-termination administrative hearing violates 42 U.S.C. § 1396a(a)(3), implementing regulation 42 C.F.R. § 431.200 et. seq., and the due process clause of the Fourteenth Amendment of the United States Constitution.
A temporary restraining order is extraordinary relief. A party seeking a temporary restraining order must show as follows:
1. a substantial likelihood that the movant eventually will prevail on the merits;

2. that the movant will suffer irreparable injury unless the injunction issues;
3. that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and
4. that the temporary restraining order, if issued, would not be adverse to the public interest. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980).
A party seeking a temporary restraining order also must demonstrate clearly, with specific factual allegations, that immediate and irreparable injury will result absent a temporary restraining order. Fed. R. Civ. Pro. 65(b).
Having carefully reviewed the plaintiffs' motion and the defendant's response, I find that the four factors apposite to a temporary restraining order analysis weigh more heavily in favor of the plaintiffs. Plaintiffs, therefore, are entitled to the temporary restraining order they seek.
Conclusion
THEREFORE IT IS ORDERED as follows:
1. That the plaintiffs' Motion for Temporary Restraining Order [# 2], filed March 28, 2003, IS GRANTED with respect to plaintiffs' request for a temporary restraining order;
2. That effective forthwith defendant IS ENJOINED AND RSTRAINED from enforcing or implementing Colorado Senate Bill 03-176 (SB 03-176) as codified at § 26-4-301, C.R.S. (2003);
3. That the court SHALL CONDUCT a hearing on plaintiffs application for preliminary injunction on April 11, 2003, commencing at 2:30 p.m., reserving the remainder of the day if necessary with the time to be divided equally between the parties; and
4. That, inter alia, the parties SHALL BE PREPARED to submit further argument supported by relevant authority about whether the strict scrutiny, intermediate scrutiny, or rational basis test applies to plaintiffs' equal protection analysis.
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 257 F.Supp.2d 1320 (2003)
Valentin SOSKIN, et al., Plaintiffs, v.
Karen REINERTSON, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing, Defendant.
No. CIV. 03-RB-0529(BNB).
United States District Court, D. Colorado.
April 16, 2003.
1322 *1322 Mark Silverstein, Gregory R. Piche, Holland & Hart, LLP, Denver, CO, for Plaintiffs.
Ilene I. Wolf, Wheat Ridge, CO, Ann Hause, Attorney General's Office, Denver, CO, for Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND DISSOLVING TEMPORARY RESTRAINING ORDER
BLACKBURN, District Judge.
1323 This matter is before me on the plaintiffs' motion for preliminary injunction *1323 [# 2], filed March 28, 2003. Initially, the plaintiffs sought a temporary restraining order and preliminary injunction enjoining the implementation of Colorado Senate Bill 03-176, which terminates Medicaid benefits to more than 3,500 lawful alien recipients. In an order [# 9] entered April 1, 2003, I granted the plaintiffs' motion for a temporary restraining order. For the following reasons, I deny the of plaintiffs' motion for a preliminary injunction and dissolve the extant temporary restraining order.
I. FINDINGS OF FACT AND SUMMARY OF CLAIMS
A. Findings of Fact.
At issue is Colorado Senate Bill 03-176 ("SB 03-176"), which was signed into law on March 5, 2003, with an effective date of April 1, 2003. The law repealed the state's optional coverage of certain qualified legal aliens in the Medicaid program, under §§ 26-4-301(1)(l), 26-4-301(1)(m), 26-4-301(2), 26-4-301(3), C.R.S. (See Pl. Exh. A of Dec. of Piche). The Medical Services Board ("Board") is the arm of the Department of Health Care Policy and Financing ("Department") responsible for promulgating and implementing Medicaid rules and regulations. On March 14, 2003, the Board adopted MSB 03-02-11-A to facilitate implementation of SB 03-176.
SB 03-176 was enacted in response to the ingravescent fiscal exigency plaguing the State of Colorado. Over the last year the Department experienced first a four percent then another three percent cut in its budget. These budget cuts impacted client services, provider rates, and program administration and included the implementation of utilization controls to reduce medical costs. (See Trans. of Hear'g, 11:7-25, 12:12-17:16; see also Def. Hear'g Exh. B). Only when these reductions and strategies proved insufficient did the Colorado General Assembly opt to discontinue Medicaid benefits to the optional group of lawful aliens to which the plaintiffs belong.
Even then, Governor Bill Owens limited the impact of budget reductions on Medicaid by mandating other state agencies to take an additional six percent budget cut in November, 2002, while requiring the Department to take only a three percent cut. However, to achieve a balanced budget as required by the Colorado constitution, further cuts in the Medicaid program were required given that Medicaid consumes approximately twenty percent of the state's general fund.

B. Procedural history and statement of claims.
In response to plaintiffs' motion for temporary restraining order, this court issued a temporary restraining order on April 1, 2003, temporarily enjoining and restraining the defendant from implementing or enforcing SB 03-176. The plaintiffs' request for preliminary injunction is now before the court. On April 11, 2003, I conducted a hearing on plaintiffs' application for preliminary injunction. I received evidence in the form of testimony, declarations, and exhibits.
In support of their request for preliminary injunction, the plaintiffs claim that once SB 03-176 becomes effective, it will result in the termination of Medicaid benefits to roughly 3,500 current Medicaid recipients who, plaintiffs claim, will be denied vital medical services in violation of the United States Constitution and federal law. Plaintiffs assert that Colorado's proposed termination of Medicaid benefits to this group of legal aliens is in direct violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment and federal Medicaid law. (Mem. in Supp. of ¶'s Mtn for TRO, p. 3).
1324 The defendant responds that federal Medicaid law requires the Department to *1324 provide services to mandatory categorically needy individuals, but allows the State of Colorado the option to choose whether to provide services to optional categorically needy individuals. 42 U.S.C. § 1396(a)(10)(A)(i) & (ii). The defendant argues that SB 03-176 merely eliminates coverage for those optional categorically needy individuals.
Further, the defendant argues that the pretermination notice and process provided to recipients affected by SB 03-176 is sufficient. Under the Medicaid program as administered by the state, the county departments of social services ("the counties") make initial eligibility determinations. § 26-4-106(l)(a), C.R.S. The counties act and operate under the supervision of the Colorado Department of Human Services, with whom the Department has a Memorandum of Understanding governing the counties' responsibilities in determining Medicaid eligibility. In anticipation of the enactment of SB 03-176 the Department instructed the counties to review their case files and available computerized information to identify those individuals who would be affected by SB 03-176.
The Department instructed the counties to issue termination notices to aliens who were covered by the optional program prior to the effective date of SB 03-176. Aliens who were part of a mandatory Medicaid group designated by 8 U.S.C. § 1612(b)(2) remained eligible and unaffected. For any recipient for whom the county had insufficient information to determine residency status, the Department instructed the counties to send a questionnaire to the recipient requiring a response within ten (10) days, failing which the Department instructed the counties to terminate Medicaid benefits for the non-responding recipient. The plaintiffs argue that the notice provided was insufficient and untimely as a matter of constitutional and federal law.
II. GENERAL STRUCTURE OF JOINT FEDERAL/STATE MEDICAID PROGRAM
Created by Congress in 1965, Medicaid is a complex, reticulated federal welfare program jointly funded by Congress and participating states providing medical assistance to the poor, the disabled, and other needy individuals. 42 U.S.C. § 1396. States are not required to participate in the Medicaid program. However, if a state chooses to participate, it must meet minimum federal requirements to receive federal matching funds.
Colorado elected to participate in the Medicaid program by adopting the Colorado Medical Assistance Act, part 1 of Article 4 of Title 26, C.R.S. The Department is the single state agency designated to administer the Medicaid program in Colorado. § 26-4-104(1), C.R.S. The Department has express authority to administer the Colorado Medicaid program so that it complies with the myriad federal requirements to receive federal matching funds. § 26-4-105, C.R.S.
Federal law dictates that participating states provide services for all categorically needy individuals through its Medicaid program. 42 U.S.C. § 1396a(a)(10)(A)(i); 42 C.F.R. 435.100 et. seq. In addition to this "mandatory" population, federal law allows states to choose to cover an additional "optional" population. 42 U.S.C. § 1396a(a)

(10)(A)(ii); 42 C.F.R. § 435.200 et. seq. With the enactment of SB 03-176, Colorado exercised the option created by Congress to cover only the mandatory population. § 26-4-201 & 301, C.R.S.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA") implemented the federal classifications of legal immigrants which states operating designated federal programs must follow. 8 1325 U.S.C. § 1601 et. seq. Medicaid is defined as a designated *1325 federal benefit program. 8 U.S.C. § 1612(b)(3) (C). Federal law requires states to cover certain "qualified aliens." 8 U.S.C. § 1612(b)(2). If the individual is not a qualified alien, then a state may choose not to provide any benefits to the individual through the federal program. 8 U.S.C. § 1611(a). Through the implementation of SB 03-176, Colorado provides Medicaid services only for the mandatory qualified aliens specified in federal law. § 26-4-201(2), C.R.S.
The federal statutory scheme further provides that "a state is authorized to determine the eligibility of an alien who is a qualified alien for any designated Federal program." 8 U.S.C. § 1612(b)(1). PRWORA enumerates certain groups of qualified aliens that must be covered. These groups are identified in the exceptions set forth in 8 U.S.C. § 1612(b)(2). A state also has the option to extend benefits to all other qualified aliens. Prior to the enactment of SB 03-176, Colorado provided Medicaid coverage to the optional qualified aliens allowed by federal law. §§ 26-4-301(1)a) & (m), 26-4-301(2) & (3). Colorado had chosen also to operate a state-only funded prenatal program under § 26-4-301(4), C.R.S. However, the Colorado Legislature has eliminated this program in its entirety. According to the defendant, in SB 03-176 Colorado exercised the option Congress expressly created and authorized in PRWORA to exclude Medicaid benefits to qualified aliens who do not belong to one of the mandatory groups for which coverage is mandated by 8 U.S.C. § 1612(b)(2). The Colorado Legislature enacted SB 03-176 to reduce further spending in the state's current fiscal year ending on June 30, 2003.
In this case, plaintiffs ask the court to enter a preliminary injunction enjoining the implementation of SB 03-176 and the termination of Medicaid benefits to plaintiffs.
III. RULE 65 FACTORS
A preliminary injunction constitutes extraordinary relief. A party seeking a preliminary injunction must show: 1) that there exists a substantial likelihood that the movant will prevail on the merits; 2) that the movant will suffer irreparable injury unless the injunction issues; 3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and 4) that the injunction would not be adverse to the public interest. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980). I conclude that the plaintiffs have not sustained their burden to circumstantiate preponderantly the four key factors that comprise the sine qua non for a preliminary injunction under FED. R. CIV. P. 65.
A. Substantial Likelihood of Success on the Merits.
1. Plaintiffs' equal protection argument.
Whether the plaintiffs are likely to succeed on the merits of their equal protection claim is driven by the level of scrutiny applied to plaintiffs' claim. If strict scrutiny is required, then the plaintiffs are likely to prevail. However, if only a rational basis is required, then the defendant is likely to prevail. Thus, given the circumstances unique to this case, the level of scrutiny is essentially dispositive of not only this issue specifically, but the litigation generally. I have considered the reasons stated, arguments advanced, and authorities cited by the parties. I find defendant's arguments to be cogent. Thus, I conclude that rational basis, not strict scrutiny, is apposite.
This case tests the purview of the authority of the Colorado General Assembly to budget and appropriate the 1326 state funds necessary to operate all state programs, including Medicaid. The federal Medicaid *1326 statutory
scheme provides that "a state is authorized to determine the eligibility of an alien who is a qualified alien for any designated Federal program." 8 U.S.C. § 1612(b)(1). PRWORA prescribes certain groups of qualified aliens for which coverage is mandatory. These mandatory groups are identified in the exceptions set forth in 8 U.S.C. § 1612(b)(2). The provisions of PRWORA have been challenged, and federal courts have upheld the classifications

determined by Congress applying a rational basis review. See Kiev v. Glickman, 991 F.Supp. 1090 (D.Minn.1998) ; Abreu v. Callahan, 971 F.Supp. 799 (S.D.N.Y.1997). See also Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (applying rational basis test to alienage classifications made by federal government).
Unlike the classifications at issue in Plyler v. Doe, the classifications established by PRWORA leave little discretion to the states. 458 U.S. 1131, 103 S.Ct. 14, 73 L.Ed.2d 1401 (1982). Further, the facts at issue here are distinguishable from those in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (applying strict scrutiny analysis to Arizona's implementation of a 15 year residency requirement not found in federal law, and pertaining to a state-only funded portion of the Pennsylvania General Assistance Program) and Aliessa v. Novello, 96 N.Y.2d 418, 730 N.Y.S.2d 1, 754 N.E.2d 1085 (2001) (applying strict scrutiny analysis to a state-only benefits program which applied PRWORA alienage classifications to determine eligibility). The program at issue here is not a state-only funded program as in Graham and Aliessa. Contrastingly, SB 03-176 represents the decision of the Colorado General Assembly to exercise a limited option created by Congress affecting a federal-state jointly funded component of Medicaid. Colorado's exercise of this Congressionally created option does not threaten to proliferate divergent eligibility requirements throughout the participating states. Thus, the constitutional requirement of uniformity is not implicated by SB 03-176.
In PRWORA, Congress clearly delineated who was eligible for federally funded benefits programs by designating particular groups of aliens as either qualified or non-qualified and, if qualified, as either mandatory or optional. Under federal law, Colorado has the option to extend benefits to all other qualified aliens. In SB 03-176 Colorado exercised the option Congress authorized in PRWORA to exclude Medicaid benefits to qualified aliens who do not belong to one of the mandatory groups enumerated in 8 U.S.C. § 1612(b)(2). Thus, SB 03-176 ostensibly complies with PRWORA. In these circumstances constitutional review of Colorado's exercise of this limited option entails a rational basis analysis.
Indeed, it makes little sense to apply the rational basis standard to a Congressional exercise of its power to regulate immigration and naturalization, and then apply strict scrutiny when states attempt to exercise an option created by Congress in that same federal-state scheme. With respect to Medicaid, the federal government specifically prescribes program parameters that the states must follow to receive matching federal funds. The federal law provides the sole basis for state action. In fact, if a state does not carefully conform to these federal mandates, the state risks losing federal financial participation. In these circumstances, a limited state action authorized under the Medicaid program, a program heavily regulated by and partially funded by the federal government, should receive the same rational basis review as would the federal statutory scheme. Subjecting the state's exercise of this federally created coverage option to strict scrutiny extirpates the original deference shown 1327 to *1327 Congress. Therefore, rational basis review applies.
A statute survives rational basis review if there is a rational relationship between the disparity of treatment and some legitimate governmental purposes. Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The statute must be upheld on equal protection grounds if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Preserving fiscal integrity is a legitimate, rational basis for any disparate treatment resulting from the operation of a statute. Edwards v. Valdez, 789 F.2d 1477, 1483 (10th Cir.1986) (holding that ease of administration and preservation of the fiscal integrity of an unemployment program are legitimate government concerns).
The Colorado Legislature enacted SB 03-176 to eschew financial exsanguination. SB 03-176 represents a rational exercise of Colorado's plenary authority to govern state spending and to determine what government services can be provided consistent with the fiscal integrity constitutionally commanded in Colorado. I find and conclude that Colorado's focus on and concern for fiscal considerations is rational given the exigent and cyclopean proportions of Colorado's present and prospective fiscal crisis. Accordingly, it is probable that the defendant, will prevail on the equal protection claim. Therefore, plaintiffs have failed to demonstrate a likelihood of success on the merits as to their equal protection claim.

2. Plaintiffs' claim based on sufficiency of notice and process.
I further find and conclude the plaintiffs are unable to demonstrate preponderantly a likelihood of success on the merits as to their claim alleging systemic insufficiency of the termination notice and process provided to those optional Medicaid recipients affected by SB 03-176. The plaintiffs claim these alleged insufficiencies violate their rights under the due process clause and Medicaid statutes and their implementing regulations. The evidence adduced at the hearing demonstrated the organized, comprehensive, and proactive manner the Department employed to anticipate and implement SB 03-176 consistent with extant federal and state law and regulations. Defendant's witness Diana Maiden, Director of Client Services for the Department, testified credibly and cogently about the copious efforts of the Department vis-a-vis the counties to effectuate implementation of SB 03-176 consistent with the process due affected recipients.
Prior to the enactment of SB 03-176, the Department sent two letters to directors of the county departments of social services in the 64 counties across the state. The first letter informed the directors that SB 03-176 was progressing through the legislature. The second letter indicated that the legislation had been passed by the General Assembly but had not been signed by the Governor. This second letter also included data from the client oriented information network ("COIN") detailing the eligibility of aliens within each county.
The Department then sent a third, more detailed letter to the counties communicating the changes in Medicaid law and policy necessitated by SB 03-176. (Trans., 61:5-25; 62:1-22). Roughly five days after this third letter was sent, the Department held a state-wide conference call in which over 40 county departments of social services participated. During that call the Department reviewed the agency letter with the counties in considerable detail. The Department made clear to each county that no Medicaid benefits affecting the population of recipients addressed in SB 03-176 were to be terminated before the signing of the bill. (Trans., 63:5-24).
1328 *1328 Once the bill was signed into law on March 5, 2003, the Department notified the counties, instructed them to provide notice to affected recipients, and provided information about how to assess clients, how to determine whether an alien could continue as Medicaid eligible, how to provide notices to each client, and how to calculate the forty working quarters attributable to each client which could affect an alien's continuing coverage. (Trans., 64:2-13). The Department directed the counties to provide all individuals adversely affected by SB 03-176 with at least ten days notice prior to the termination of benefits. (Trans., 72:19-24). If counties provided insufficient notice to a particular individual, the Department instructed the county not to terminate benefits until the individual was provided with sufficient notice.
Certainly, there may be isolated anecdotal episodes of untimely notices sent to particular individuals. However, this does not vitiate the fact that systemically the Department did all that it was required to do under due process to provide timely and sufficient notice to aliens potentially affected by SB 03-176.
For the reasons stated, arguments advanced, and authorities cited by defendant, I find and conclude that the combined efforts of the Department and the county departments of social services easily pass muster under the Due Process clause and the applicable statutes and regulations. Therefore, I find and conclude that the plaintiffs are unable to establish a likelihood of success on the merits as to their claim that the termination notice and process provided by the defendant violates their due process rights or the applicable statutes and regulations.
B. Irreparable injury.
The plaintiffs argue that they will suffer irreparable injury absent prophylactic injunctive relief because, absent Medicaid coverage, the plaintiffs could not afford to pay the costs of their medical treatment, including, inter alia, nursing home and long-term care. The plaintiffs argue that defendant "disingenuously argues" that plaintiffs can be reimbursed for their out-of-pocket medical expenses. According to the plaintiffs, they lack the means to incur those expenses out of pocket, and thus, will be unable to receive necessary care.
Specifically, plaintiffs claim that Medicaid is critical to the health and well being of plaintiffs and the members of plaintiffs putative class. In many instances, plaintiffs claim that Medicaid will make the difference between life and

death. See Dec. of Noskova ¶¶ 9, 12; Dec. of Soskin, ¶¶ 5-6, 19; Dec. of Perlman, ¶¶ 7-9, 12; Dec. of PalkoSchraa, ¶¶ 2-3. Plaintiffs clam that they require Medicaid to pay for crucial medical care, including chemotherapy, (see Dec. of Noskova, ¶ 6), nursing home care (see Dec. of Carrillo, ¶¶ 1; Chang, ¶ 4; Rosenthal, ¶ 2; and Shibeshi, ¶ 2), home care, (see Dec. of Soskin, ¶¶ 10-11; Dec. of Noskova, ¶ 9; and Dec. of G. Gelfand, ¶¶ 6, 10), surgical care, (see Dec. of Noskova, ¶¶ 6, 8), and life-sustaining prescription medications (see Dec. of Carrillo, ¶ 5; Dec. of Tatevosian, ¶ 6; Dec. of G. Gelfand, ¶ 7; and Dec. of Y. Gelfand, ¶ 4). Plaintiffs argue that, without Medicaid, none of the plaintiffs will be able to pay for these services.
Defendant claims that plaintiffs' only support for the contention of irreparable injury is contained in signed declarations that this court admitted into evidence. Defendant claims that the declarations contain conclusions, not evidence, regarding the harm to be suffered by the plaintiffs. Further, defendant argues that other mitigating 1329 resources may still be available to these plaintiffs, such as medical assistance through the Health and *1329 Medical Care Program for Old Age Pension, Colorado Indigent Care Program, or the Health and Medical Care Program. Further, Senate Bill 03-266 ("SB 03-266") will continue Medicaid coverage for those optional legal immigrants receiving Medicaid benefits in nursing facilities. Thus, defendant argues that it is unlikely that plaintiffs who are institutionalized will lose their Medicaid eligibility.
I find and conclude that this factor weighs more heavily in favor of the plaintiffs. Even a temporary suspension of coverage would result in irreparable injury to many of the plaintiffs.
C. Threatened injury to plaintiffs versus threatened injury to defendant.
To warrant a preliminary injunction, the plaintiffs must show also that the threatened injury to them outweighs the prospective damage to defendant. The plaintiffs argue that the balance of hardships tips decidedly in their favor. If the requested relief is not granted, the plaintiffs claim that they will suffer irreparable harm. Any financial harm to be suffered by the state in providing Medicaid benefits, the plaintiffs argue, cannot compare to the irreparable and potentially life-threatening harm suffered by the plaintiffs if they are denied Medicaid coverage.
On balance, I conclude that the plaintiffs have shown preponderantly that the threatened personal injuries they face outweighs the likely financial injury defendant would suffer.
D. Public interest.
Finally, to justify a preliminary injunction, the plaintiffs must demonstrate that the preliminary injunction is not adverse to the public interest. The plaintiffs argue that the public interest would be served by requiring the state to comply with constitutional requirements of equal protection and due process prior to implementing any changes to Medicaid. The plaintiffs argue that the state's budgetary concerns cannot excuse violations of federal statutory or constitutional requirements.
Defendant responds that in light of Colorado's escalating fiscal crisis, the issuance of a preliminary injunction would have an immediate adverse impact on the public interest. First, defendant argues, requiring Colorado to provide Medicaid services to all qualified aliens renders meaningless the mandatory and optional categorization of aliens under the PRWORA. The defendant argues that if a state elects to provide ostensibly optional coverage and then can be required to maintain that coverage, the state would be reluctant to ever provide services to optional populations. Second, the defendant argues that this case involves the allocation of public resources. Should the court issue a preliminary injunction, the state would have to cut or eliminate other programs to achieve the balanced budget required by the Colorado Constitution. The defendant argues that the allocation of state resources and concomitant budget-cutting are inherently and properly legislative in nature. Thus, the Colorado General Assembly, as opposed to this court, has plenary authority to determine how best to allocate decrescent financial resources.

On balance, I conclude that the plaintiffs have not shown preponderantly that the public's interest would be better served by the issuance of a preliminary injunction. Therefore, I find that this factor weighs more heavily in favor of the defendant.
E. Conclusion.
After careful consideration, individually and cumulatively, of the four factors comprising the sine qua non to the 1330 issuance of a preliminary injunction, I conclude that the two most critical of the four *1330 factors discussed
above, i.e., success on the merits and effects on public interest, weigh strongly against the plaintiffs and renders moribund the preliminary injunction they seek. Therefore, the motion is denied.
IV. ORDERS.
THEREFORE IT IS ORDERED as follows: 1. That the plaintiffs' March 28, 2003, motion [# 2] seeking a preliminary injunction IS DENIED; and 2. That effective forthwith the extant temporary restraining order [# 9] issued by this court on April 1, 2003, IS DISSOLVED, RESCINDED, AND ANNULLED.
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SuppressAnsRpt, TERMED

U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:03-cv-00529-PSF

Soskin, et al v. Reinertson Assigned to: Judge Phillip S. Figa Demand: $0 Cause: 28:1132 E.R.I.S.A.
Plaintiff Valentin Soskin on their own behalf and on behalf of all others similarly situated

Date Filed: 03/27/2003 Date Terminated: 03/14/2005 Jury Demand: None Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question
represented by Gregory R. Piche Holland & Hart, LLP-Denver P.O. Box 8749 555 17th Street #3200 Denver, CO 80201-8749 303-295-8000 Fax: 295-8261 Email: gpiche@hollandhart.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Cohan Welfare Law Center 275 Seventh Avenue #1205 New York, NY 10001-6708 212-633-6967 Fax: 633-6371 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein American Civil Liberties Union-CO 400 Corona Street Denver, CO 80218 303-777-5482 Fax: 303-777-1773 Email: msilver2@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Bei Dei Howe on their own behalf and on behalf of all others similarly situated
Plaintiff Eva Rosenthal on their own behalf and on behalf of all others similarly situated
Plaintiff Vatchagan Tatevosian on their own behalf and on behalf of all others similarly situated
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represented by Gregory R. Piche (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Cohan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory R. Piche (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Cohan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory R. Piche (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Cohan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) LEAD ATTORNEY
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Plaintiff Ginda K. Gelfand on their own behalf and on behalf of all others similarly situated
Plaintiff Yakov Gelfand on their own behalf and on behalf of all others similarly situated
Plaintiff Dubale Shibeshi on their own behalf and on behalf of all others similarly situated
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ATTORNEY TO BE NOTICED

represented by Gregory R. Piche (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Cohan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Gregory R. Piche (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Cohan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Gregory R. Piche (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Cohan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address)

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Plaintiff Sarin Perlman on their own behalf and on behalf of all others similarly situated
V. Defendant Karen Reinertson in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing
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LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory R. Piche (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc Cohan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann Hause Attorney General's Office-CO Department of Law Department of Law 1525 Sherman Street, 5th Floor DC Box 20 Denver, CO 80203 303-866-4500 TERMINATED: 06/24/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Baudino Holton Colorado Attorney General's OfficeDepartment of Law 1525 Sherman Street 5th Floor Denver, CO 80203 303-866-5660 Fax: 303-866-5671 Email: anne.holton@state.co.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Ilene Wolf Moore Colorado Attorney General's OfficeDepartment of Law 1525 Sherman Street 5th Floor Denver, CO 80203 303-866-5275 Email: ilene.wolfmoore@state.co.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Dianne Herron Colorado Attorney General's Office-Tort Litigation Tort Litigation Section 1525 Sherman Street, 5th Floor Denver, CO 80203 303-866-6163 Fax: 866-5443 Email: pat.herron@state.co.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

03/27/2003 03/27/2003 03/28/2003 03/28/2003
03/28/2003
03/28/2003 03/28/2003 03/31/2003

1 Class Action COMPLAINT for declaratory and equitable relief (Summons(es) issued) (bpm) (Entered: 03/28/2003)
FILING FEE PAID: on 3/27/03 in the amount of $ 150, receipt # 242319. (bpm) (Entered: 03/28/2003)
2 MOTION by plaintifs for temporary restraining order re: medicaid benefits , and for preliminary injunction (lam) (Entered: 03/28/2003)
3 Memorandum (BRIEF) by plaintiffs in support of motion for temporary restraining order [2-1] and preliminary equitable relief [2-2] (lam) (Entered: 03/28/2003)
4 DECLARATION of Gregory R. Piche by plaintiffs in support of motion for temporary restraining order [2-1], preliminary injunction [2-2] and certification (lam) (Entered: 03/28/2003)
5 Information (NOTICE) by plaintiffs for TRO [2-1] (lam) (Entered: 03/28/2003)
6 MOTION by plaintiffs to certify as class action with incorporated legal authority (lam) (Entered: 03/28/2003)
7 RESPONSE by defendant Karen Reinertson to motion for temporary restraining

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03/31/2003 04/01/2003
04/01/2003 04/08/2003 04/09/2003 04/09/2003 04/09/2003 04/09/2003 04/10/2003
04/14/2003 04/14/2003 04/14/2003

order re: medicaid benefits [2-1], motion for preliminary injunction [2-2] (lam) (Entered: 04/01/2003)
8 Supplemental Information to Admission to the Bar of the Court (ATTORNEY APPEARANCE for defendant Karen Reinertson) by Ilene I. Wolf Moore (lam) (Entered: 04/01/2003)
9 ORDER by Judge Robert E. Blackburn: granting plas' motion for temporary restraining order [2-1]; that effective forthwith dft is enjoined and restrained from enforcing or implementing Colorado Senate Bill 03-176 (SB 03-176) as codified at section 26-4-301,C.R.S.(2003); that the court shall conduct a hearing on pla's application for preliminary injunction [2-2] 2:30 4/11/03; and that, inter alia, the parties shall be prepared to submit further argument supported by relevant authority about whether the strict scrutiny, intermediate scrutiny, or rational basis test applies to plas' equal protection analysis (cc: all counsel) ; entry date : 4/1/03 (lam) Modified on 04/01/2003 (Entered: 04/01/2003)
10 WAIVER AND ACCEPTANCE OF SERVICE by defendant Karen Reinertson signed on 3/28/03 by Ann Marie Hause, Esq. (lam) (Entered: 04/02/2003)
12 MINUTE ORDER : by Judge Robert E. Blackburn resetting hearing on preliminary injunction [2-2] to 1:30 4/10/03 (cc: all counsel) ; entry date : 4/9/03 (lam) (Entered: 04/09/2003)
11 RESPONSE by defendant Karen Reinertson to motion for preliminary injunction [2-2] (lam) (Entered: 04/09/2003)
13 Supplemental BRIEF filed by plaintiffs on strict scrutiny in review of invidious discrimination by state re: [2-2] (lam) (Entered: 04/10/2003)
14 MOTION by plaintiffs to file brief exceeding page limit re: motion for prel injunction (lam) (Entered: 04/10/2003)
Tendered reply memorandum submitted by plaintiffs re: motion to file brief exceeding page limit re: motion for prelim injunction [14-1] (lam) (Entered: 04/10/2003)
15 COURTROOM MINUTES (Preliminary Injunction Hearing) by Judge Robert E. Blackburn: taking under advisement on 4/10/03 the motion for preliminary injunction [2-2]; parties to file closing argument briefs by 4/14/03 (attached are dft's witness and exhibit lists) ; entry date : 4/11/03 Court Reporter: Suzanne Claar (lam) (Entered: 04/11/2003)
16 MINUTE ORDER : by Judge Robert E. Blackburn granting motion to file brief exceeding page limit re: motion for prel injunction [14-1] (cc: all counsel) ; entry date : 4/15/03 (lam) (Entered: 04/15/2003)
17 REPLY Memorandum of Law by plaintiffs in support of motion for preliminary injunction [2-2] (lam) (Entered: 04/15/2003)
18 Post-Hearing Argument (BRIEF) filed by plaintiff in support of plas' motion for

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04/14/2003 04/14/2003 04/16/2003
04/16/2003 04/16/2003 04/16/2003 04/17/2003 04/17/2003 04/17/2003 04/18/2003 04/18/2003
04/24/2003 04/25/2003 04/25/2003

preliminary injunction [2-2] (lam) (Entered: 04/15/2003)
19 DECLARATION of Robert Goodwin, counsel for Timur Reznik (lam) (Entered: 04/15/2003)
28 BRIEF FILED by defendant Karen Reinertson motion for preliminary injunction [2-2] (lam) (Entered: 04/22/2003)
20 ORDER by Judge Robert E. Blackburn: denying plas' motion seeking a preliminary injunction [2-2]; that effective fortwith the extant restraining order issued 4/1/04 is dissolved, rescinded and annulled [9-1] (cc: all counsel) ; entry date : 4/16/03 (lam) (Entered: 04/16/2003)
21 MOTION by plaintiffs to stay pending appeal (pap) (Entered: 04/17/2003)
22 NOTICE OF APPEAL by plaintiffs re: order of 4/16/03 [20-1] ; Notice of transcript order form due 4/28/03; Notice mailed to all counsel on 4/17/03 (msn) (Entered: 04/17/2003)
$100.00 fee and $5.00 fee paid. Receipt No 242809. re: appeal [22-1] (msn) (Entered: 04/17/2003)
23 Unopposed MOTION by defendant Karen Reinertson to extend time in which to file response to motion for class certification extended to: 04/25/03 (bpm) (Entered: 04/18/2003)
24 ANSWER by defendant to class action complaint for declaratory and equitable relief [1-1] (bpm) (Entered: 04/18/2003)
25 TRANSCRIPT of Hearing on Motion for Prel Inj on 4/10/03 before Judge Blackburn ( pages: 1-108) Prepared By: Suzanne Claar (certified copy) (gms) (Entered: 04/18/2003)
26 NOTIFICATION by Circuit Court of assignment of Case No. [22-1] 03-1162 (msn) (Entered: 04/21/2003)
27 ORDER by Judge Robert E. Blackburn granting dft's unopposed motion to extend time in which to file response to motion for class certification 04/25/03 [23-1], regarding [6-1] (cc: all counsel) ; entry date : 4/21/03 (lam) (Entered: 04/21/2003)
29 NOTICE OF TRANSCRIPT ORDER FORM filed by plaintiffs/appellants; TOF filed states...the necessary transcript is already on file. re: appeal [22-1] (msn) (Entered: 04/25/2003)
30 LETTER (Re: [22-1] ) to USCA and all counsel advising that the record is now complete...TOF filed states the necessary transcript is already on file. (msn) (Entered: 04/25/2003)
31 RESPONSE by defendant Karen Reinertson to motion to certify as class action [6-1] (lam) (Entered: 04/28/2003)

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04/25/2003 04/28/2003 04/29/2003 04/30/2003 10/29/2003 11/13/2003 05/26/2004 06/02/2004
06/24/2004 02/11/2005 02/16/2005 02/18/2005

32 ATTORNEY APPEARANCE for plaintiffs by Mark Silverstein (lam) (Entered: 04/28/2003)
33 Copy of ORDER from Court of Appeals [22-1] granting plaintiff's/appellant's Emergency Motion for Injunction Pending Appeal. A short-term injunction will be granted pending appeal and will not be conditioned on the posting of a bond. (msn) (Entered: 04/30/2003)
34 RESPONSE by defendant Karen Reinertson to plas' motion to stay pending appeal [21-1] (lam) (Entered: 04/30/2003)
35 ORDER by Judge Robert E. Blackburn denying as moot Plaintiff's motion to stay pending appeal [21-1] (cc: all counsel) ; entry date : 5/1/03 (msn) (Entered: 05/01/2003)
36 MINUTE ORDER : by Judge Robert E. Blackburn Case reassigned to Judge Phillip S. Figa (cc: all counsel) ; entry date : 10/29/03 (lam) (Entered: 10/29/2003)
37 EXHIBIT Notebook "Original" by defendant Karen Reinertson to minutes [151] Preliminary Injunction Proceeding 4/10/03 (pap) (Entered: 11/14/2003)
38 Copy of ORDER from Court of Appeals [22-1]; appellant's peition for rehearing is denied and the petition for rehearing en banc is also denied (msn) (Entered: 05/27/2004)
39 MANDATE from the Court of Appeals; CA # 03-1162; Dt issued 6/2/04; JUDGMENT filed 1/12/04 affirming in part and reversing in part the decision of the District Court [Appeal [22-1]; USCA's injunction pending appeal is vacated and USDC's denial of plaintiff's motion for a preliminary injunction is affirmed except the district court's entry of a preliminary injunction prohibiting defendant from terminating benefits to any member of the class for failure to return redetermination forms unless the member has been given notice of the right to request a pre-termination hearing is reversed and remanded. (msn) (Entered: 06/03/2004)
40 Notice of Withdrawal and ATTORNEY SUBSTITUTION: terminating attorney Ann Hause for Karen Reinertson and substituting attorney Anne Baudino Holton (dlb) (Entered: 06/25/2004)
41 ORDER, Set Hearings: Status Conference set for 2/22/2005 11:30 AM in Courtroom A 602 before Judge Phillip S. Figa.. Signed by Judge Phillip S. Figa on 2/11/05. (erv, ) (Entered: 02/15/2005)
42 MOTION to Continue 2/22/05 Status Conference by Plaintiffs.(pap, ) (Entered: 02/18/2005)
43 ORDER granting [42] Motion to Continue Status Conference. Status conf reset to 3/14/05 at 8:30 a.m. Signed by Judge Phillip S. Figa on 2/17/05. (gms, ) (Entered: 02/22/2005)

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03/07/2005 03/14/2005
03/14/2005
04/13/2005 04/13/2005 04/26/2005 04/26/2005 04/28/2005 05/31/2005 05/31/2005 06/02/2005 06/24/2005 08/03/2005

44 STATUS REPORT by the Colorado Dept of Health Care Policy and Financing (erv, ) (Entered: 03/09/2005)
45 Minute Entry for proceedings held before Judge Phillip S. Figa : Status Conference held on 3/14/2005 re [6] MOTION by plaintiffs to certify as class action with incorporated legal authority is DENIED AS MOOT. By Stipulation of the parties, this civil action is DISMISSED with prejudice subject to the right of plas' counsel to file mtn for attys' fees within 30 days. (Court Reporter Darlene Martinez.) (dlb, ) (Entered: 03/16/2005)
46 ORDER DISMISSING CASE pursuant to By Stipulation of the parties, this civil action is DISMISSED with prejudice on the basis of mootness. Each party shall bear own costs. Any motion for attys fees or other ancillary relief be filed by 4/30/05. Signed by Judge Phillip S. Figa on 3/14/05. (dlb, ) (Entered: 03/16/2005)
47 Plaintiff's MOTION for Attorney Fees.(dlb, ) (Entered: 04/14/2005)
48 DECLARATION of Marc Cohan in support of [47] Plaintiff's Application (MOTION) for Attorney Fees. (dlb, ) (Entered: 04/14/2005)
49 NOTICE of Appearance by Patricia Dianne Herron on behalf of Karen Reinertson (dlb, ) (Entered: 04/27/2005)
50 Dft's MOTION for Extension of Time to File Response to5/27/05 [47] Plaintiff's MOTION for Attorney Fees. (dlb, ) (Entered: 04/28/2005)
51 ORDER granting Defendant's Unopposed [50] Motion for Extension of Time to File Response/Reply re [47] MOTION for Attorney Fees . Signed by Judge Phillip S. Figa on 4/28/05. (lam, ) (Entered: 05/02/2005)
52 Dft's Second MOTION for Extension of Time to File Response to [47] Plaintiff's MOTION for Attorney Fees. (dlb, ) (Entered: 06/01/2005)
53 Dft's Amended Second MOTION for Extension of Time to File Response to [47] Plaintiff's MOTION for Attorney Fees. (dlb, ) (Entered: 06/01/2005)
54 ORDER granting [53] Motion for Extension of Time to File Response to [47] Plaintiffs' MOTION for Attorney Fees to 6/27/05. Signed by Judge Phillip S. Figa on 6/2/05. (lam, ) (Entered: 06/06/2005)
55 ORDER to Vacate Deadline Dates and Set Date for Dismissal Papers no later than 8/8/2005.Signed by Judge Phillip S. Figa on 6/24/05. (lam, ) (Entered: 06/27/2005)
56 Unopposed MOTION For Extension of Time to File Dismissal Documents With The Court by Defendant Karen Reinertson. (Attachments: # 1 Proposed Order (PDF Only) Order Granting Defendant's Motion for Extension of Time Within Which to File Dismissal Documents With The Court)(Herron, Patricia) (Entered: 08/03/2005)

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08/04/2005

57 ORDER granting 56 Motion for Extension of Time to File Dismissal Documents to 9/7/05 . Signed by Judge Phillip S. Figa on 8/4/05. (gms, ) (Entered: 08/05/2005)

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 Docket Sheet for 03-1162

06/25/2007 07:06 PM

General Docket
United States Court of Appeals for the 10th Circuit
Current cases: None

Docket as of December 23, 2004 3:03 pm

Page 1

Proceedings include all events. 03-1162 Soskin, et al v. Reinertson

VALENTIN SOSKIN Plaintiff - Appellant

Gregory R. Piche [COR LD NTC ret] Scott S. Barker [COR NTC ret] Holland & Hart P.O. Box 8749 Denver, CO 80201-8749 303/295-8000

Mark Silverstein [COR NTC ret] A.C.L.U. Foundation of Colorado 400 Corona St. Denver, CO 80218

Stephen Masciocchi [COR NTC ret] Holland & Hart 555 17th Street Suite 3200 Denver, CO 80202

Lucas Guttentag [COR NTC ret] American Civil Liberties Union Immigrants' Rights Project 405 14th St. #300 Oakland, CA 94612 510/625-2010 x 202

Marc Cohan [COR NTC ret] Mary R. Mannix [COR NTC ret] Anne H. Pearson

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Docket Sheet for 03-1162

[COR NTC ret] Rebecca L. Scharf [COR NTC ret] Welfare Law Center, Inc. 275 Seventh Ave. #1205 New York, NY 10001 212/633-6967

Linton Joaquin [COR NTC ret] Gabrielle Lessard [COR NTC ret] National Immigration Law Center 3435 Wilshire Blvd. #2850 Los Angeles, CA 90010 213/639-3900

Docket as of December 23, 2004 3:03 pm

Page 2

Proceedings include all events. 03-1162 Soskin, et al v. Reinertson

BEI DEI HOWE Plaintiff - Appellant

Tanya Broder [COR NTC ret] National Immigration Law Center 405 14th St. #1400 Oakland, CA 94612 510/663-8282
Jane Perkins [COR NTC ret] National Health Law Program 211 N. Columbia St. Chapel Hill, NC 27514 919/968-6308
Gregory R. Piche (See above)
[COR LD NTC ret] Scott S. Barker (See above)
[COR NTC ret]
Mark Silverstein (See above)
[COR NTC ret]
Stephen Masciocchi

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Docket Sheet for 03-1162

(See above)

[COR NTC ret]

Lucas Guttentag (See above)

[COR NTC ret]

Marc Cohan (See above)

[COR NTC ret] Mary R. Mannix (See above)

[COR NTC ret] Anne H. Pearson (See above)

[COR NTC ret] Rebecca L. Scharf (See above)

[COR NTC ret]

Linton Joaquin (See above)

[COR NTC ret] Gabrielle Lessard (See above)

[COR NTC ret]

Docket as of December 23, 2004 3:03 pm

Page 3

Proceedings include all events. 03-1162 Soskin, et al v. Reinertson

EVA ROSENTHAL Plaintiff - Appellant

Tanya Broder (See above)
[COR NTC ret]
Jane Perkins (See above)
[COR NTC ret]
Gregory R. Piche (See above)
[COR LD NTC ret]

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Docket Sheet for 03-1162

Scott S. Barker (See above)
[COR NTC ret]
Mark Silverstein (See above)
[COR NTC ret]
Stephen Masciocchi (See above)
[COR NTC ret]
Lucas Guttentag (See above)
[COR NTC ret]
Marc Cohan (See above)
[COR NTC ret] Mary R. Mannix (See above)
[COR NTC ret] Anne H. Pearson (See above)
[COR NTC ret] Rebecca L. Scharf (See above)
[COR NTC ret]
Linton Joaquin (See above)
[COR NTC ret] Gabrielle Lessard (See above)
[COR NTC ret]
Tanya Broder (See above)
[COR NTC ret]
Jane Perkins (See above)

Docket as of December 23, 2004 3:03 pm

Page 4

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Proceedings include all events.

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Docket Sheet for 03-1162

Proceedings include all events. 03-1162 Soskin, et al v. Reinertson

[COR NTC ret]

VATCHAGAN TATEVOSIAN Plaintiff - Appellant

Gregory R. Piche (See above)

[COR LD NTC ret] Scott S. Barker (See above)

[COR NTC ret]

Mark Silverstein (See above)

[COR NTC ret]

Stephen Masciocchi (See above)

[COR NTC ret]

Lucas Guttentag (See above)

[COR NTC ret]

Marc Cohan (See above)

[COR NTC ret] Mary R. Mannix (See above)

[COR NTC ret] Anne H. Pearson (See above)

[COR NTC ret] Rebecca L. Scharf (See above)

[COR NTC ret]

Linton Joaquin (See above)

[COR NTC ret] Gabrielle Lessard (See above)

[COR NTC ret]

Tanya Broder
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Docket Sheet for 03-1162
GINDA K. GELFAND Plaintiff - Appellant

Tanya Broder (See above)
[COR NTC ret]
Jane Perkins (See above)
[COR NTC ret]
Gregory R. Piche (See above)
[COR LD NTC ret] Scott S. Barker (See above)

Docket as of December 23, 2004 3:03 pm

Page 5

Proceedings include all events. 03-1162 Soskin, et al v. Reinertson
[COR NTC ret]
Mark Silverstein (See above)
[COR NTC ret]
Stephen Masciocchi (See above)
[COR NTC ret]
Lucas Guttentag (See above)
[COR NTC ret]
Marc Cohan (See above)
[COR NTC ret] Mary R. Mannix (See above)
[COR NTC ret] Anne H. Pearson (See above)
[COR NTC ret] Rebecca L. Scharf (See above)
[COR NTC ret]
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[COR NTC ret]

Linton Joaquin (See above)

[COR NTC ret] Gabrielle Lessard (See above)

[COR NTC ret]

Tanya Broder (See above)

[COR NTC ret]

Jane Perkins (See above)

[COR NTC ret]

YAKOV GELFAND Plaintiff - Appellant

Gregory R. Piche (See above)

[COR LD NTC ret] Scott S. Barker (See above)

[COR NTC ret]

Mark Silverstein (See above)

[COR NTC ret]

Stephen Masciocchi

Docket as of December 23, 2004 3:03 pm

Page 6

Proceedings include all events. 03-1162 Soskin, et al v. Reinertson
(See above)
[COR NTC ret]
Lucas Guttentag (See above)
[COR NTC ret]
Marc Cohan (See above)
[COR NTC ret]
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Docket Sheet for 03-1162
DUBALE SHIBESHI Plaintiff - Appellant

Mary R. Mannix (See above)
[COR NTC ret] Anne H. Pearson (See above)
[COR NTC ret] Rebecca L. Scharf (See above)
[COR NTC ret]
Linton Joaquin (See above)
[COR NTC ret] Gabrielle Lessard (See above)
[COR NTC ret]
Tanya Broder (See above)
[COR NTC ret]
Jane Perkins (See above)
[COR NTC ret]
Gregory R. Piche (See above)
[COR LD NTC ret] Scott S. Barker (See above)
[COR NTC ret]
Mark Silverstein (See above)
[COR NTC ret]
Stephen Masciocchi (See above)
[COR NTC ret]
Lucas Guttentag (See above)
[COR NTC ret]

Docket as of December 23, 2004 3:03 pm
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Docket Sheet for 03-1162
Docket as of December 23, 2004 3:03 pm

Page 7

Proceedings include all events. 03-1162 Soskin, et al v. Reinertson

Marc Cohan (See above)

[COR NTC ret] Mary R. Mannix (See above)

[COR NTC ret] Anne H. Pearson (See above)

[COR NTC ret] Rebecca L. Scharf (See above)

[COR NTC ret]

Linton Joaquin (See above)

[COR NTC ret] Gabrielle Lessard (See above)

[COR NTC ret]

Tanya Broder (See above)

[COR NTC ret]

Jane Perkins (See above)

[COR NTC ret]

SARIN PERLMAN, on their own behalf and on behalf of all

Gregory R. Piche (See above)

others similarly situated Plaintiff - Appellant

[COR LD NTC ret] Scott S. Barker (See above)

[COR NTC ret]

Mark Silverstein (See above)

[COR NTC ret]

Stephen Masciocchi
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Docket Sheet for 03-1162

Stephen Masciocchi (See above)

[COR NTC ret]

Lucas Guttentag (See above)

[COR NTC ret]

Marc Cohan (See above)

[COR NTC ret] Mary R. Mannix (See above)

[COR NTC ret] Anne H. Pearson

Docket as of December 23, 2004 3:03 pm

Page 8

Proceedings include all events. 03-1162 Soskin, et al v. Reinertson
(See above)
[COR NTC ret] Rebecca L. Scharf (See above)
[COR NTC ret]
Linton Joaquin (See above)
[COR NTC ret] Gabrielle Lessard (See above)
[COR NTC ret]
Tanya Broder (See above)
[COR NTC ret]
Jane Perkins (See above)
[COR NTC ret]

v.

KAREN REINERTSON, in her

Renny Fagan

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Docket Sheet for 03-1162
KAREN REINERTSON, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing
Defendant - Appellee

Renny Fagan [COR NTC ret] Colorado Attorney General's Office Criminal Appeals 1525 Sherman 5th Floor Denver, CO 80203
Ann M. Hause [COR LD NTC ret] Colorado Department of Law 1525 Sherman St. Denver, CO 80203 303/866-5449

06/25/2007 07:06 PM

Docket as of December 23, 2004 3:03 pm

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Proceedings include all events. 03-1162 Soskin, et al v. Reinertson

VALENTIN SOSKIN; BEI DEI HOWE; EVA ROSENTHAL; VATCHAGAN TATEVOSIAN; GINDA K. GELFAND; YAKOV GELFAND; DUBALE SHIBESHI; SARIN PERLMAN, on their own behalf and on behalf of all others similarly situated,

Plaintiffs - Appellants,

v.

No. 03-1162

KAREN REINERTSON, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing,

Defendant - Appellee.

__________________________

UNITED STATES OF AMERICA,

Intervenor.

Docket as of December 23, 2004 3:03 pm

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Proceedings include all events. 03-1162 Soskin, et al v. Reinertson

4/18/03

[1604870] Civil case docketed. Preliminary record filed. DATE RECEIVED: 4/17/03. Transcript order form due 4/28/03

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Docket Sheet for 03-1162

06/25/2007 07:06 PM
for Charlotte Hoard pursuant to R.42.1. Docketing statement due 4/28/03 for Sarin Perlman, Dubale Shibeshi, Yakov Gelfand, Ginda K. Gelfand, Vatchagan Tatevosian, Eva Rosenthal, Bei Dei Howe and Valentin Soskin. Notice of appearance due 4/28/03 Karen Reinertson, Sarin Perlman, Dubale Shibeshi, Yakov Gelfand, Ginda K. Gelfand, Vatchagan Tatevosian, Eva Rosenthal, Bei Dei Howe and Valentin Soskin. (klp)

4/22/03

[1606126] Notice filed that the necessary transcript is already on file in district court. Notice due that record is complete 4/30/03 for Robert E. Blackburn. (gah)

4/22/03

[1606136] Deficient docketing statement filed (no attachments). Corrected docketing statement due 5/2/03 for appellants. (gah)

4/22/03

[1606565] Notice of appearance filed by Ann M. Hause and Ilene I. Wolf as attorneys for Karen Reinertson. CERT. OF INTERESTED PARTIES (y/n): n. (das)

4/24/03

[1606653] Appellant's motion filed by Appellants Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, and Sarin Perlman for injunction on appeal. [03-1162] Original and 3 copies. c/s: y (afw)

4/25/03

[1606963] Appellant's for motion for injunction submitted to court. (afw)

4/25/03

[1607155] Order filed by Judges Hartz and O'Brien granting appellant's motion for injunction pending appeal [1606653-1] and expediting case. This matter is set for oral argument the week of May 5, 2003. Parties' briefs shall be received by the court on or before 5:00 pm on 4/30/03. No extensions of time will be granted. Appellants' brief due 4/30/03 for Sarin Perlman, Dubale Shibeshi, Yakov Gelfand, Ginda K. Gelfand, Vatchagan Tatevosian, Eva Rosenthal, Bei Dei Howe, and Valentin Soskin. Appellee's brief due 4/30/03 for Karen Reinertson. Parties served by mail. (gah)

4/28/03

[1607399] Hearing set for May, 2003 Session, at Denver, Colorado. (ss)

4/28/03

[1607527] Notice of appearance filed by Mark Silverstein as attorney for Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, Sarin Perlman. CERT. OF

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INTERESTED PARTIES (y/n): n (jet)

06/25/2007 07:06 PM

Docket as of December 23, 2004 3:03 pm

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Proceedings include all events. 03-1162 Soskin, et al v. Reinertson

4/28/03

[1607680] Notice of appearance filed by Renny Fagan as attorney for Karen Reinertson. CERT. OF INTERESTED PARTIES (y/n): n (jet)

4/28/03

[1607739] Filed notice record is complete 4/25/03. (gah)

4/28/03

[1607770] Docketing statement filed by Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, and Sarin Perlman. Original and 4 copies. c/s: y. (gah)

4/28/03

[1608230] Notice of appearance filed by Renny Fagan as attorney for Karen Reinertson. CERT. OF INTERESTED PARTIES (y/n): n (jet)

4/30/03

[1608286] Appellee's brief filed by Karen Reinertson. Original and 7 copies. c/s: y. Served on 4/30/03. Oral Argument? yes. Appendix filed. Original and one copy. Appendix Pages: 123. (CD-ROM copy of brief/appendix also filed- 2 copies). (gah)

4/30/03

[1608395] Appellant's Unopposed Motion to Expand Time Allowed for Oral Argument filed and submitted to panel. (ss)

4/30/03

[1608809] Appellants brief filed by Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, Sarin Perlman and submitted to court. Original and 7 copies. c/s: y. Oral Argument? y. Appendix filed. Original and 1 appendix copy. Appendix Pages: 476. (klp)

5/2/03

[1608746] Order filed by Judges Kelly, Henry, Hartz - The court grants appellant's motion for additional argument time, In Part, the parties shall have up to 20 minutes per side for oral argument on Weds., May 7, 2003. Parties served by mail. (ss)

5/2/03

[1609295] Appendix (Corrected) filed by Appellants Valentin

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5/2/03

06/25/2007 07:06 PM
[1609295] Appendix (Corrected) filed by Appellants Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi and Sarin Perlman. Original and 1 copy. Appendix pages: 476 c/s: y. (klp)

5/2/03

[1609298] Certificate of service of appendix filed by Appellants. (klp)

5/7/03

[1610128] Notice of appearance filed by Linton Joaquin, Lucas Guttentag as attorneys for Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, Sarin Perlman. CERT. OF INTERESTED PARTIES (y/n): n (jet)

Docket as of December 23, 2004 3:03 pm

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5/7/03

[1610135] Notice of appearance filed by Rebecca L. Scharf, Marc Cohan as attorneys for Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, Sarin Perlman. CERT. OF INTERESTED PARTIES (y/n): n (jet)

5/7/03

[1610148] Case argued by Lucas Guttentag and Marc Cohan for appellants; and Renny Fagan for appellee; Submitted to Judges Kelly, Henry, Hartz. (ss)

5/29/03

[1615878] Notice of appearance filed by Eric D. Miller and Thomas M. Bondy as attorneys for United States. CERT. OF INTERESTED PARTIES (y/n): n. (klp)

5/29/03

[1615880] Intervenor's brief filed by United States. Original and 7 copies. c/s: y. Served on 5/28/03. (klp)

5/29/03

[1615884] Intervenor's brief filed by United States submitted to court. ​ (klp)

6/6/03

[1618249] Appellants' Brief in Response to Brief for the United States as Intervenor received from Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi and Sarin Perlman, but not filed. Original and 7 copies. c/s: y. (klp)

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6/9/03

[1618254] Appellants' Brief in Response to Brief for the

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06/25/2007 07:06 PM

6/9/03 6/13/03 6/13/03 6/16/03 6/17/03 6/19/03

[1618254] Appellants' Brief in Response to Brief for the United States as Intervenor submitted to court. (klp)
[1620082] Appellee's motion to strike or in the alternative motion for leave to file a response to appellants' brief in response to brief for the United States as intervenor filed by Karen Reinertson. Original and 3 copies. c/s: y. (jal)
[1620108] Brief in support of appellee's motion to strike ........ filed by Appellee Karen Reinertson. Original and 7 copies. c/s: y. (jal)
[1620111] Motion to strike or in the alternative motion for leave to file a response to appellant's brief in response to brief for the United States as intervenor and the brief in support submitted to court. (jal)
[1620888] Appellants' response to appellee's motion to strike filed and submitted to court. Original and 3 copies. c/s: y. (gah)
[1621388] Order filed by Judges Kelly, Henry and Hartz construing appellants' brief in response to brief for the U.S. as intervenor as a motion to file the brief and granting as construed. Clerk directed to file the brief. (Brief was filed in as of the date received.) Parties served by mail. (klp)

Docket as of December 23, 2004 3:03 pm

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6/19/03

[1621404] Appellants' brief in response to brief for the United States as Intervenor filed by Appellants Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi and Sarin Perlman. Original and 7 copies. c/s: y. Oral Argument? n. (See order of 6/19/03 permitting this brief to be filed.)

(klp)

6/26/03

[1622938] Appellants' supplemental authority filed by Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale

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Shibeshi, Sarin Perlman and submitted to court. Original and 7 copies. c/s: y. (jal)

1/12/04

[1677183] Order filed by Judges Kelly, Henry, and Hartz (as contained in the court's opiion) vacating court order that granting injunction pending appeal [1607155-2]. (gah)

1/12/04

[1677184] Terminated on the Merits after Oral Hearing; Affirmed (in part), Reversed (in part), and Remanded; Written, Signed, Published. Kelly; Henry, dissenting; Hartz, authoring judge. Parties served by mail on 1/12/04. (gah)

1/23/04

[1680481] Appellants' unopposed motion for clarificaiton, or in the alternative, for extension of time to file petition for rehearing. Original and 3 copies. c/s: y. (klp)

1/26/04

[1680548] Appellants' motion for clarification or in the alternative for extension of time to file petition for rehearing submitted to court. (klp)

1/27/04

[1681151] Order filed by Judges Kelly, Henry, and Hartz regarding appellants' unopposed motion for clarification or in the alternative motion to extend time to file petition for rehearing. Any petition for rehearing is due 2/25/04. Parties served by mail. (klp)

2/25/04

[1688902] Petition for rehearing in banc filed by Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, and Sarin Perlman. Original and 18 copies. c/s: y. (klp)

2/26/04

[1688903] Document [1688902-1] Petition for rehearing in banc filed by Appellants Valentin Soskin, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, Sarin Perlman submitted to panel. (klp)

3/1/04

[1689684] Order filed by Judges Kelly, Henry, and Hartz appellee shall file a response to appellants' petition for rehearing en banc within ten days of the date of this order. Response due 3/15/04 for Karen Reinertson. Parties served by mail. (gah)

Docket as of December 23, 2004 3:03 pm

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3/8/04

[1691758] Appellee's motion to to extend time to file response to petition for rehearing en banc until 3/19/04 filed by Karen Reinertson and submitted to court. (gah)

06/25/2007 07:06 PM

3/12/04

[1692895] Order filed by Judges Kelly, Henry, and Hartz granting appellee's motion to extend time to file response [1691758-1]. Response due 3/19/04 for Karen Reinertson. Parties served by mail. (gah)

3/15/04

[1693557] Appellee's motion to to extend time to file response to petition for rehearing en banc until 3/26/04 filed by Karen Reinertson and submitted to court. (gah)

3/15/04

[1693660] Notice of appearance filed by Roger Craig Green as attorney for United States. CERT. OF INTERESTED PARTIES (y/n): n. (gah)

3/15/04

[1693679] Response filed by United States to petition for rehearing en banc and submitted to court. Original and 18 copies. c/s: y. (gah)

3/17/04

[1694127] Order filed by Judges Kelly, Henry, and Hartz granting appellee's motion to extend time to file response [1693557-1]. Response due 3/26/04 for Karen Reinertson. Parties served by mail. (gah)

3/26/04

[1696731] Appellee's response filed by Karen Reinertson to petition for rehearing in banc. Original and 18 copies. c/s: y. (klp)

3/29/04

[1696732] Appellee's response filed by Karen Reinertson document [1696731-1] submitted to court. (klp)

3/29/04

[1696988] Notice of Withdrawal received from Karen Reinertson, but not filed. (The notice was not signed by withdrawing counsel.) Original and 3 copies. c/s: y. (klp)

3/30/04

[1697382] Amended notice of withdrawal filed by Ilene Wolf Moore (for Karen Reinertson). Original and 3 copies. c/s: y. (klp)

5/25/04

[1711556] Order filed by Judges Kelly, Henry and Hartz denying appellants' petition for rehearing en banc. Judges Seymour, Henry, Lucero and Murphy would grant rehearing en

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Docket Sheet for 03-1162

banc [1688902-1]. (jal)

06/25/2007 07:06 PM

6/2/04

[1713314] Mandate issued. Mandate receipt due 7/2/04. (jal)

6/4/04

[1714529] Mandate receipt filed. (jaz)

9/1/04

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 353 F.3d 1242 (2004)
Valentin SOSKIN, Bei Dei Howe, Eva Rosenthal, Vatchagan Tatevosian, Ginda K. Gelfand, Yakov Gelfand, Dubale Shibeshi, Sarin Perlman, on their own behalf and on behalf of all
others similarly situated, Plaintiffs-Appellants, v.
Karen REINERTSON, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing, Defendant-Appellee. United States of America, Intervenor.
No. 03-1162.
United States Court of Appeals, Tenth Circuit.
January 12, 2004.
1243 *1243 Lucas Guttentag, American Civil Liberties Union, Immigrants' Rights Project, Oakland, CA; Marc Cohan, Welfare Law Center, Inc., New York, N.Y. (Mary R. Mannix, Anne H. Pearson, and Rebecca L. Scharf, Welfare Law Center, Inc., New York, NY; Mark Silverstein, American Civil Liberties Union Foundation of Colorado, Denver, CO; Gregory Piché, Scott Barker and Stephen Masciocchi, Holland & Hart LLP, Denver, CO; Linton Joaquin and Gabrielle Lessard, National Immigration Law Center, Los Angeles, California; Tanya Broder, National Immigration
1244 Law Center, Oakland, CA; Jane Perkins, National *1244 Health Law Program, Chapel Hill, NC, with them on the briefs), for Plaintiffs-Appellants.
Terence P. (Renny) Fagan, Deputy Attorney General (Ken Salazar, Attorney General, Ann Hause, First Assistant Attorney General, and Ilene I. Wolf Moore, Assistant Attorney General, with him on the briefs), Denver, CO, for Defendant-Appellee.
Robert D. McCallum, Jr., Assistant Attorney General; John W. Suthers, United States Attorney, Denver, Colorado; Thomas M. Bondy and Eric D. Miller, Attorneys, Appellate Staff Civil Division, United States Department of Justice, Washington, D.C., on the brief for Intervenor.
Before KELLY, HENRY, and HARTZ, Circuit Judges.
HARTZ, Circuit Judge.
Plaintiffs represent a class of legal aliens who will lose their Medicaid benefits when last year's Colorado Senate Bill 03-176 (SB 03-176) takes effect. They contend that the eligibility requirements of SB 03-176 violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and that the state's procedures for terminating benefits violate Medicaid law and the Due Process Clause of the Fourteenth Amendment. The district court denied Plaintiffs' motion for a preliminary injunction against implementation of SB 03-176. We granted an injunction pending resolution of this appeal. We now reject Plaintiffs' contentions except that we agree that the state's procedures violate the Medicaid Act in denying some members of the class a right to a hearing. Accordingly, we vacate our injunction, and we affirm in part and reverse in part the district court's denial of a preliminary injunction.
I. BACKGROUND
A. Medicaid
Prior to the enactment of SB 03-176, which was signed into law on March 5, 2003, and scheduled to take effect on April 1, 2003, Colorado provided optional Medicaid coverage to all legal aliens eligible under federal law to

receive such coverage. The new statute would repeal optional Medicaid coverage, terminating Medicaid benefits to approximately 3,500 aliens residing in Colorado.
Medicaid is a joint state and federal medical assistance program for the poor, disabled, and others in need. 42 U.S.C. § 1396 et seq. It provides coverage for such medical services as inpatient and out-patient hospital care, physicians' services, prescriptions, home health care services, and nursing home care. Id. §§ 1396a(a)(10)(A), 1396d(a)(1)-(5), (17) & (20). Although states are not required to participate in Medicaid, if a state does elect to participate, it must comply with the minimum requirements of the federal Medicaid Act in order to receive federal matching funds. See Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). States implement their Medicaid programs in accordance with comprehensive written plans that must be submitted to and approved by the Secretary of the United States Department of Health and Human Services. See 42 U.S.C. § 1396. Colorado has opted to participate in the Medicaid program, and has designated the Department of Health Care Policy and Financing (the Colorado Department), currently headed by Defendant Karen Reinertson (sued here in her official capacity), as the single state agency responsible for administering Medicaid. See Colo.Rev.Stat. § 26-4-104(1).
Federal law requires participating states to provide full Medicaid services to all individuals designated as 1245 categorically *1245 needy. 42 U.S.C. § 1396a(a)(10)(A)(i). States have discretion to provide full Medicaid
coverage to additional "optional" segments of the population. Id. § 1396a(a)(10)(A)(ii). Emergency care must be provided to all individuals in need of such services. 8 U.S.C. § 1611(b)(1)(A).
In 1996 Medicaid law changed significantly. The federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub.L. No. 104-193, 110 Stat. 2105 (1996) (often referred to as the Welfare Reform Act), was enacted. Explaining the purpose of the provisions with respect to aliens, the Act states:
The Congress makes the following statements concerning national policy with respect to welfare and immigration:
(1) Self-sufficiency has been a basic principle of United States immigration law since this country's earliest immigration statutes.
(2) It continues to be the immigration policy of the United States that 0907
(A) aliens within the Nation's borders 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, and
(B) the availability of public benefits not constitute an incentive for immigration to the United States.
(3) Despite the principle of self-sufficiency, aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates.
(4) Current eligibility rules for public assistance and unenforceable financial support agreements have proved wholly incapable of assuring that individual aliens not burden the public benefits system.
(5) It is a compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant in accordance with national immigration policy.
(6) It is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits.
(7) With respect to the State authority to make determinations concerning the eligibility of qualified aliens for public benefits in this chapter, a State that chooses to follow the Federal classification in determining the eligibility of such 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.
8 U.S.C. § 1601(1)-(7).
The PRWORA imposes several limitations on the availability of Medicaid benefits to aliens. 8 U.S.C. § 1601 et seq; id. § 1612(b)(3)(C). Prior to the PRWORA, Medicaid benefits were mandated for otherwise qualified aliens who were lawfully admitted for permanent residence or otherwise permanently residing in the United States. See 42 C.F.R. § 435.406(a) (1990). Now, the PRWORA requires states to provide Medicaid coverage only to "qualified aliens," which it defines as lawful permanent residents, refugees, aliens granted asylum, and certain other specified categories of lawfully present aliens. 8 U.S.C. § 1612(b); id. § 1641(b). The PRWORA also provides that most of these qualified aliens are ineligible for Medicaid benefits until they have lived in the United States for at least five years. Id. § 1613. But the five-year requirement does not apply to certain qualified aliens, such as lawful permanent residents who have worked in the United States for 40 qualifying quarters, veterans, 1246 and active-duty members of the military. Id. § 1612(b)(2). Nor does *1246 the requirement apply to qualified aliens who entered the United States prior to August 22, 1996. Id. § 1613(a).
The PRWORA does, however, allow states to provide optional Medicaid coverage to legal aliens not included within Congress's definition of "qualified aliens." Id. § 1612(b). In essence, states may redefine "qualified aliens" to cover additional legal aliens, so long as they do not cover those aliens explicitly excluded by the PRWORA (e.g., most aliens who have not lived in the United States for five years). Id.
Initially Colorado opted to provide coverage beyond that mandated by the PRWORA. In 1997 Colorado responded to the PRWORA by enacting legislation that maintained the optional Medicaid coverage it had previously provided to all lawfully present aliens who were otherwise eligible. See 1997 Colo. Sess. Laws 1257-58. But Colorado policy changed in March of 2003. Faced with an enormous budget shortfall, the state looked to its Medicaid program for savings. The Colorado legislature passed and the governor signed SB 03-176, which removed the optional Medicaid coverage Colorado had been providing to legal aliens. SB 03-176 § 1. After SB 03-176 takes effect, only those aliens that Congress defined in the PRWORA as "qualified aliens" will be eligible for Medicaid in Colorado. SB 03-176 § 2; Colo. Rev.Stat. § 26-4-201(2)(a)-(b). The state estimates that it will save $5.9 million annually by eliminating optional alien coverage.
B. Coverage Termination Procedures
In Colorado the county departments of social services make the initial Medicaid eligibility determinations. Colo.Rev.Stat. § 26-4-106(1)(a). Accordingly, in anticipation of enactment of SB 03-176, the Colorado Department notified the state's 64 counties of the impending Medicaid eligibility changes and instructed them on procedures to use in effectuating those changes.
First, the Department sent the counties two letters, informing them that SB 03-176 was moving through the legislative process and that the Department would keep them informed as the legislation progressed. Then, after the legislation was passed by the legislature but before it was signed by the Governor, the Department sent a third, more-detailed letter. The letter, labeled HCFP 03-001, set forth an eligibility redetermination process providing for county officials to ascertain whether individuals whose Medicaid eligibility was eliminated by SB 03-176 could qualify under a different eligibility category.
Five days after the HCFP 03-001 letter was sent to the counties, a statewide conference call was conducted to discuss the letter. Forty counties participated in the conference call. Once the governor signed the bill, the Colorado Department notified the counties and instructed them to provide notice to affected recipients. The counties were directed to provide at least 10 days' notice prior to termination of benefits for all individuals losing coverage as a result of SB 03-176.

C. Procedural History
On March 27, 2003, Plaintiffs filed this class-action lawsuit to enjoin the implementation of SB 03-176. Class members include legal aliens who rely on Medicaid to cover important medical services, including chemotherapy, nursing home care, home health care, surgical care, and life-sustaining prescription drug coverage. Without Medicaid, Plaintiffs claim, they will be unable to afford these necessary services and will suffer serious injuries and irreparable harm. Plaintiffs contend that in some cases the loss of medical care could be life threatening.
1247 *1247 Plaintiffs' suit seeks a judgment declaring that SB 03-176's eligibility requirements violate the Equal Protection Clause of the Fourteenth Amendment because they discriminate against legal aliens, and that Defendant's procedures for terminating benefits are inadequate under Medicaid law and the Due Process Clause of the Fourteenth Amendment. Plaintiffs also seek an injunction permanently enjoining termination of benefits under SB 03-176.
The district court granted Plaintiffs' request for a temporary restraining order, but it later denied their motion for a preliminary injunction and lifted the temporary restraining order. Plaintiffs then moved this court for an injunction pending appeal. We granted that motion and expedited the appeal. See Soskin v. Reinertson, No. 03-1162 (10th Cir. Apr. 25, 2003) (order granting injunction pending appeal). After oral argument we notified the Attorney General of the United States, in accordance with Fed.R.App.P. 44, that this case called into question the constitutionality of an Act of Congress, 8 U.S.C. § 1612(b) (which authorizes states to reduce Medicaid coverage to aliens). The United States filed a brief in support of the constitutionality of the statute.
II. DISCUSSION
We have jurisdiction under 28 U.S.C. § 1292. We
review[] a district court's grant or denial of a preliminary injunction for an abuse of discretion. A district court abuses its discretion where it commits a legal error or relies on clearly erroneous factual findings, or where there is no rational basis in the evidence for its ruling. We examine the district court's underlying factual findings for clear error, and its legal determinations de novo.
Davis v. Mineta, 302 F.3d 1104, 1110-11 (10th Cir.2002) (internal citations and quotation marks omitted). For Plaintiffs to be entitled to a preliminary injunction, they must show:
(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) [that] the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) [that] the injunction, if issued, will not adversely affect the public interest. If [Plaintiffs] can establish that the latter three requirements tip strongly in [their] favor, the test is modified, and [Plaintiffs] may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.
Id. at 1111 (internal citations and quotation marks omitted).
A. Equal Protection Claim
The Fourteenth Amendment to the United States Constitution declares that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause "keeps governmental decision makers from treating differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Plaintiffs allege that SB 03-176 violates the Equal Protection Clause because it improperly discriminates between citizens and legal aliens. They argue that such discrimination is subject to strict scrutiny, so the statute can be upheld only if it "advance[s] a compelling state

interest by the least restrictive means available." Bernal v. Fainter, 467 U.S. 216, 219, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984).
1248 *1248 Defendant disputes that strict scrutiny is the appropriate standard for reviewing the statute. She contends that Congress used its plenary immigration powers to enact the PRWORA, and because Colorado was acting in accordance with the PRWORA when it enacted SB 03-176, the more deferential rational-basis test applies. The statute satisfies that test, she argues, because it is rationally related to a legitimate state interest. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (under rational-basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.").
The parties appear to agree that SB 03-176 would not survive strict scrutiny but would satisfy the rational-basis test. Thus, the constitutionality of SB 03-176 depends on the level of scrutiny to which the law is subject. We turn to Supreme Court precedent for guidance.
1. Graham v. Richardson
Plaintiffs rely heavily on Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), which resolved a consolidated appeal involving two cases arising out of different statutory schemes: one from Arizona and one from Pennsylvania. Id. at 366-70, 91 S.Ct. 1848. The Arizona statute limited alien eligibility for benefits under federally funded programs for persons who were disabled, in need of old-age assistance, or blind. Id. at 367, 91 S.Ct. 1848. The state limitation on eligibility for the programs provided: "No person shall be entitled to general assistance who does not meet and maintain the following requirements: 1. Is a citizen of the United States, or has resided in the United States a total of fifteen years." Id. (internal quotation marks omitted). The Pennsylvania statute concerned a welfare program that was not federally funded. It limited state benefits to those Pennsylvania residents who either were citizens of the United States or had filed a declaration of intention to become a citizen. Id. at 368, 91 S.Ct. 1848.
The Court observed that "the Arizona and Pennsylvania statutes in question create two classes of needy persons, indistinguishable except with respect to whether they are or are not citizens of this country." Id. at 371, 91 S.Ct. 1848. Regarding the Arizona statute, the Court wrote that "[o]therwise qualified United States citizens living in Arizona are entitled to federally funded categorical assistance benefits without regard to length of national residency, but aliens must have lived in this country for 15 years in order to qualify for aid." Id. As for Pennsylvania, the Court said, "United States citizens living in Pennsylvania, unable to meet the requirements for federally funded benefits, may be eligible for state-supported general assistance, but resident aliens as a class are precluded from that assistance." Id.
The Court first rejected the states' argument that they could favor United States citizens over aliens in the distribution of welfare benefits. While the Court recognized that "[u]nder traditional equal protection principles, a State retains broad discretion to classify so long as its classification has a reasonable basis," id., it was well established "that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny." Id. at 372, 91 S.Ct. 1848 (footnotes omitted). "Aliens as a class," the Court wrote, "are a prime example of a discrete and insular minority for whom such heightened judicial solicitude is appropriate." Id. (internal quotation marks and citation omitted).
The Court then concluded that the Arizona and Pennsylvania laws could not withstand strict scrutiny. Id. at 376, 1249 91 *1249 S.Ct. 1848. It rejected the states' fiscal motive: "[J]ustification of limiting expenses is particularly
inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces.... [A]liens may live within a state for many years, work in the state and contribute to the economic growth of the state." Id. (internal quotation marks omitted). Thus, the Court concluded, "a state statute that denies welfare benefits to resident aliens and one that denies them to aliens who have not resided in the United States for a specified number of years violate the Equal Protection Clause." Id.
In addition, and significantly for present purposes, the Court rejected Arizona's argument that its durational residency requirement for aliens was authorized by a federal statute. Id. at 380-82, 91 S.Ct. 1848. The statute, 42

U.S.C. § 1352(b) (1971), stated: "The Secretary shall approve any plan which fulfills the conditions specified in subsection (a) of this section, except that he shall not approve any plan which imposes, as a condition of eligibility for aid to the permanently and totally disabled under the plan 0907 ... (2) Any citizenship requirement which excludes any citizen of the United States." Id. at 380, 91 S.Ct. 1848 (internal quotation marks omitted). Arizona argued that the statutory language implicitly authorized citizenship requirements that excluded non-citizens.
The Court observed that "[o]n its face, the statute does not affirmatively authorize, much less command, the States to adopt durational residency requirements or other eligibility restrictions applicable to aliens." Id. at 381, 91 S.Ct. 1848. It then traced the language in question to the Social Security Act of 1935, when the language apparently was included to prevent treating naturalized citizens differently from native-born citizens. Id. at 381, 91 S.Ct. 1848. The Court noted that the statute may have reflected Congressional understanding of the law as it stood in 1935, before Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948), had established the equal-protection rights of aliens. Graham, 403 U.S. at 382, 91 S.Ct. 1848. Now, however, significant constitutional concerns would be raised by discrimination against aliens. The Court wrote:
[W]ere [the federal statute] to be read so as to authorize discriminatory treatment of aliens at the option of the States, Takahashi demonstrates that serious constitutional questions are presented. 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.
Id. Moreover, the Court said that "[u]nder Art. I, § 8, cl. 4, of the Constitution, Congress' power is to `establish an uniform Rule of Naturalization,'" id. (emphasis added), and that a "congressional enactment construed so as to permit state legislatures to adopt divergent laws on the subject of citizenship requirements for federally supported welfare programs would appear to contravene this explicit constitutional requirement of uniformity." Id. These constitutional concerns, the Court declared, argued against interpreting the statutory language to authorize state discrimination against aliens. "Since statutes should be construed whenever possible so as to uphold their constitutionality, we conclude that [the statute] does not authorize the Arizona 15-year national residency requirement." Id. at 382-83, 91 S.Ct. 1848 (internal quotation marks and citation omitted).
1250 *1250 A footnote to the quoted passage noted that the Court had "no occasion to decide whether Congress, in the exercise of the immigration and naturalization power, could itself enact a statute imposing on aliens a uniform nationwide residency requirement as a condition of federally funded welfare benefits." Id. at 382 n. 14, 91 S.Ct. 1848. As we will discuss below, that issue was resolved in Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976).
In the years immediately following Graham, the Supreme Court reemphasized the central holding of the case: that state laws creating citizen-alien classifications must meet strict scrutiny. See, e.g., Bernal, 467 U.S. at 219-20, 104 S.Ct. 2312 (citizenship requirement for state notaries public is subject to strict scrutiny); Examining Bd. v. Flores de Otero, 426 U.S. 572, 601-02, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) (same for state civil engineering licenses); In re Griffiths, 413 U.S. 717, 721, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) (same for admission to state bar); Sugarman v. Dougall, 413 U.S. 634, 642, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973) (same for state civil service jobs). In particular, in Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), the Court held that a state could not circumvent Graham by contending that it was merely distinguishing among aliens, as opposed to discriminating against aliens vis-à-vis citizens. Reviewing a statute restricting certain aliens' access to state-funded tuition assistance, the Court rejected the state's argument that strict scrutiny should not apply because the classification "distinguishe[d] only within the heterogeneous class of aliens and d[id] not distinguish between citizens and aliens vel non." Id. at 8, 97 S.Ct. 2120 (internal quotation marks omitted). The Court wrote:
Graham v. Richardson ... undermines [the state's] position. In that case, the Court considered an Arizona statute that imposed a durational residency requirement for welfare benefits on aliens but not on citizens. Like the New York statute challenged here, the Arizona statute served to discriminate only within the class of aliens: Aliens who met the durational residency requirement were entitled to welfare benefits. The Court nonetheless subjected the statute to strict scrutiny and

held it unconstitutional. The important points are that [the tuition assistance restriction] 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.
Id. at 8-9, 97 S.Ct. 2120.

2. Mathews v. Diaz

In Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), the Court answered the question left open in Graham, holding that the federal government could impose a uniform residency requirement as a condition of receiving federal benefits. Mathews considered a federal law granting Medicare benefits to certain resident citizens 65 years of age and older, but denying eligibility to comparable aliens unless they had been admitted for permanent residence and had resided in the United States for at least five years. Id. at 70, 96 S.Ct. 1883.

The Court explained why Congress's broad constitutional powers over naturalization and immigration give it authority to treat aliens differently from citizens:

1251

The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a *1251 host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country.

In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens and the reservation of the power to deport have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry. The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is "invidious."

In particular, the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens....

....

For reasons long recognized as valid, 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. Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary....

... In short, it is unquestionably reasonable for Congress to make an alien's eligibility depend on both the character and the duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind.

Id. at 78-83, 96 S.Ct. 1883 (footnotes omitted) (emphasis added).

Mathews also distinguished Graham, recognizing that its "equal protection analysis ... involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government." Id. at 84-85, 96 S.Ct. 1883. It explained that

[i]nsofar 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. Both

groups are noncitizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business.
Id. at 85, 96 S.Ct. 1883.
3. Lower Courts
Neither Graham nor Mathews determines the result in this case. Unlike Graham, here we have specific Congressional authorization for the state's action, the PRWORA. Unlike Mathews, here we have a stateadministered program, and the potential for states to adopt coverage restrictions with respect to aliens that are not mandated by federal law.
The fact of state administration in itself is not a distinction from Mathews that has impressed the circuits that have 1252 addressed the matter. Following Mathews, several circuits have applied rational-basis review *1252 to uphold
federal statutes restricting state-administered welfare benefits to legal aliens. See, e.g., Lewis v. Thompson, 252 F.3d 567, 582 (2d Cir.2001) (upholding under rational-basis review PRWORA restrictions on alien eligibility for state-administered pre-natal Medicaid benefits); City of Chicago v. Shalala, 189 F.3d 598, 603-05 (7th Cir.1999) (same for supplemental security income (SSI) and food stamps); Aleman v. Glickman, 217 F.3d 1191, 1197 (9th Cir.2000) (same for food stamps); Rodriguez v. United States, 169 F.3d 1342, 1346-50 (11th Cir.1999) (same for SSI and food stamps).
The potential for states to adopt coverage restrictions for aliens that are not federally mandated is, however, more problematic. The difficulty is illustrated by opinions addressing non-mandated state restrictions 0907one each from the high courts of New York and Massachusetts. We discuss each in turn.
In Aliessa v. Novello, 96 N.Y.2d 418, 730 N.Y.S.2d 1, 754 N.E.2d 1085 (2001), the New York Court of Appeals reviewed state alien classifications that were authorized by the PRWORA. Relying on Graham, it concluded that the classification scheme must be subjected to strict scrutiny. New York's Medicaid system had two components0907one was funded jointly by the state and federal governments, and one was solely state-funded. Id., 730 N.Y.S.2d 1, 754 N.E.2d at 1089. Aliessa reviewed only the state-funded portion of the program. Id., 730 N.Y.S.2d 1, 754 N.E.2d at 1089, n. 3.
As it does with regard to jointly funded Medicaid programs, the PRWORA gives states flexibility to grant or deny aliens state-only Medicaid, so long as they adhere to certain requirements. Id., 730 N.Y.S.2d 1, 754 N.E.2d at 1091. In response to the PRWORA, the New York legislature enacted a law that terminated state-only Medicaid coverage for many aliens. Id., 730 N.Y.S.2d 1, 754 N.E.2d at 1091-92. Aliens who lost coverage brought suit, arguing that the new state law violated the state constitution and the Equal Protection Clause of the United States Constitution. Id., 730 N.Y.S.2d 1, 754 N.E.2d at 1092.
The parties' equal protection arguments in Aliessa mirrored those of the parties in this case: the plaintiffs argued that the state law discriminated based on alienage and that strict scrutiny should apply, and the state argued that it was acting with Congress's permission and that rational-basis review was appropriate. The court agreed with the plaintiffs, concluding that strict scrutiny applied and that the state law could not withstand it.
The court relied on the language in Graham that "a Federal statute authorizing `discriminatory treatment of aliens at the option of the States' would present `serious constitutional questions,'" and that a "congressional enactment construed so as to permit state legislatures to adopt divergent laws on the subject of citizenship requirements for federally supported welfare programs would appear to contravene [the] explicit constitutional requirement of uniformity." Id., 730 N.Y.S.2d 1, 754 N.E.2d at 1097 (quoting Graham, 403 U.S. at 382, 91 S.Ct. 1848) (emphasis in Aliessa). The court reasoned:
[The federal statute] does not impose a uniform immigration rule for States to follow. Indeed, it expressly authorizes States to enact laws extending "any State or local public benefit" even to

1253

those aliens not lawfully present within the United States. The converse is also true and exacerbates the lack of uniformity: [the federal statute] provides that, subject to certain exceptions, States are authorized to withhold State Medicaid from even those qualified aliens who are eligible for Federal Medicaid under PRWORA. Thus, in administering their *1253 own programs, the States are free to discriminate in either direction0907producing not uniformity, but potentially wide variation based on localized or idiosyncratic concepts of largesse, economics and politics. Considering that Congress has conferred upon the States such broad discretionary power to grant or deny aliens State Medicaid, we are unable to conclude that [the federal law] reflects a uniform national policy. If the rule were uniform, each State would carry out the same policy under the mandate of Congress0907the only body with authority to set immigration policy.

... New York0907along with every other State0907with Congressional permission is choosing its own policy with respect to health benefits for resident, indigent legal aliens. Thus, we address this case outside the context of a Congressional command for nationwide uniformity in the scope of Medicaid coverage for indigent aliens as a matter of federal immigration policy.

Id., 730 N.Y.S.2d 1, 754 N.E.2d at 1098 (internal citations omitted). The New York court concluded that strict scrutiny was the appropriate standard by which to assess the New York statute, and held that the statute failed the test. It wrote:

We conclude that [the state law] is subject to ... strict scrutiny, notwithstanding [the federal statute's] authorization.... [The federal law] is directly in the teeth of Graham insofar as it allows the States to "adopt divergent laws on the subject of citizenship requirements for federally supported welfare programs." Moreover, [the federal statute] goes significantly beyond what the Graham Court declared constitutionally questionable. In the name of national immigration policy, it impermissibly authorizes each State to decide whether to disqualify many otherwise eligible aliens from State Medicaid. [The New York statute] is a product of this authorization. In light of Graham and its progeny, [the federal statute] can give [the New York statute] no special insulation from strict scrutiny review. Thus, [the New York statute] must be evaluated as any other State statute that classifies based on alienage.

Id., 730 N.Y.S.2d 1, 754 N.E.2d at 1098 (footnotes and internal citations omitted); see Kurti v. Maricopa Cty., 201 Ariz. 165, 33 P.3d 499, 505 (App.2001) (applying strict scrutiny to optional coverage of aliens for public health benefits).

The Massachusetts Supreme Judicial Court addressed similar issues in Doe v. Comm'r of Transitional Assistance, 437 Mass. 521, 773 N.E.2d 404 (2002), but reached a different result. It concluded that state-made intra-alien classifications are subject only to rational-basis review. Doe involved a state-only supplementalbenefits program that was enacted to provide coverage to certain aliens who, based on the PRWORA, were going to lose the joint state-federal benefits they had previously received. Id. at 407. But the benefits provided by the supplemental program were restricted to aliens who had resided in Massachusetts for at least six months. Id. at 407-08.

The plaintiffs in Doe argued that the six-month residency requirement violated the Equal Protection Clause because it imposed the requirement on some legal aliens, but not on other legal aliens and citizens. Here again, the dispute hinged on whether strict scrutiny or rational-basis review applied.

The court first emphasized that the benefits provided by the program went only to aliens (not citizens), meaning that the six-month residency requirement did not discriminate between citizens and aliens, but rather only 1254 amongst aliens. Then, after reviewing Graham, Mathews, and other *1254 relevant law, the court turned to the standard of review:

We conclude that the appropriate standard of review in these circumstances depends on the nature of the classification that creates the distinction between subgroups of aliens. If that classification were a suspect one such as race, gender, or national origin, we would apply a strict scrutiny analysis. Where, as here, that classification is Massachusetts residency, the proper

standard of review is rational basis. We reach this conclusion because we find that the operative classification for equal protection purposes in the setting of this case is not alienage, but residency.
Id. at 414 (internal citation omitted). (We note, however, that the court may have applied rational-basis review only because it viewed the distinction between aliens and citizens under the Massachusetts statute as not invidious to aliens. The court wrote:
In concluding that a rational basis standard of review applies, we have also considered the context in which the supplemental program was enacted; its purpose and the clearly noninvidious intent behind its promulgation; the effect of its implementation on mitigating the harm to qualified alien families that might otherwise be without substantial assistance for five years under the requirements of the welfare reform act; and the potential harm to those same families if the Legislature could only choose to create an all-or-nothing program as a remedy to their disqualification from federally funded programs.
Id.)
4. Analysis
The Supreme Court precedents establish two propositions. First, states on their own cannot treat aliens differently from citizens without a compelling justification. See Graham, 403 U.S. at 371-72, 376, 91 S.Ct. 1848. Second, the federal government can treat aliens differently from citizens so long as the difference in treatment has a rational basis. See Mathews, 426 U.S. at 78-83, 96 S.Ct. 1883. This case fits somewhere in between. Plaintiffs claim that its location is clear, because Graham said that "Congress does not have the power to authorize the individual States to violate the Equal Protection Clause." 403 U.S. at 382, 91 S.Ct. 1848. But we think the issue is more nuanced than the quoted proposition indicates.
We do not read Graham as being as categorical as Plaintiffs claim it is regarding the effect of Congressional authorization of state discrimination against aliens. If the Court had definitively decided that the distinctions made in Arizona law would be unconstitutional regardless of Congressional authorization, there would have been no cause for the Court to examine the legislative history of the federal statute that Arizona relied upon. See Graham, 403 U.S. at 382, 91 S.Ct. 1848. Nor would the Court have needed to rely on a rule of construction 0907construing the statute to avoid constitutional concerns 0907 to resolve the case before it. See id. As we read Graham, the Court was, in essence, insisting on a clear expression of Congressional intent to permit states to discriminate against aliens before it would tackle the constitutional issue. See id.
We recognize that Graham said that "Congress does not have the power to authorize the individual States to violate the Equal Protection Clause." Id. But that proposition is almost tautological. The question is not whether Congress can authorize such a constitutional violation. The question is what constitutes such a violation when Congress has (clearly) expressed its will regarding a matter relating to aliens. After all, Congress has extensive 1255 powers with respect to aliens derived *1255 from specific constitutional provisions as well as from the inherent powers of a sovereign nation. See, e.g., Chae Chan Ping v. United States, 130 U.S. 581, 609, 9 S.Ct. 623, 32 L.Ed. 1068 (1889) (stating that Congress's immigration power is "an incident of sovereignty"); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 96 L.Ed. 586 (1952) ("[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.").
When Congress exercises these powers to legislate with regard to aliens, the proper standard of judicial review is rational-basis review. That is the lesson of Mathews. Although Mathews involved Medicare, a program administered and funded by the federal government, while the PRWORA involves a program administered and partially funded by the states, that difference, as noted above, is immaterial in assessing the constitutionality of the federal legislation itself. See Lewis, 252 F.3d at 582; City of Chicago, 189 F.3d at 603-05; Aleman, 217 F.3d at 1197; Rodriguez, 169 F.3d at 1346-50.

There is, however, one significant difference between the federal law at issue here and the one at issue in Mathews. The present law gives the states a measure of discretion. Some benefits for aliens are required, some are prohibited. In between, the states are permitted to be more restrictive (or, depending on one's point of view, more generous). Relying on Graham, one could say, as Plaintiffs do, that when a state elects not to provide aliens with the maximum benefits permitted by federal law, it is discriminating against aliens and the federal government's imprimatur for such discrimination cannot reduce the level of scrutiny to which the state's choice is subjected under the Equal Protection Clause. This is the view adopted by the New York Court of Appeals in Aliessa.
We do not share that view. The reason for applying rational-basis review to federal law regarding aliens is that such laws reflect national policy that Congress has the constitutional power to enact. Once Congress has expressed that policy, the courts must be deferential. See Mathews, 426 U.S. at 78-83, 96 S.Ct. 1883. What Plaintiffs fail to consider is that a state's exercise of discretion can also effectuate national policy. Recall that the PRWORA does not give the states unfettered discretion. Some coverage must be provided to aliens; some coverage is forbidden. State discretion is limited to the remaining optional range of coverage. In exercising that discretion each state is to make its own assessment of whether it can bear the burden of providing any optional coverage. When a state determines that the burden is too high and decides against optional coverage, 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.
One way of regarding the impact of Congressional policy is to view the PRWORA in a way suggested by the analysis of the Massachusetts Supreme Judicial Court in Doe. What Congress has done in the PRWORA is, in essence, create two welfare programs, one for citizens and one for aliens. Within the aliens-only program, states have the option of including more or fewer aliens. The decision to have separate programs for aliens and citizens is a Congressional choice, subject only to rational-basis review. See Mathews. A state's exercise of the option to 1256 include fewer aliens in its aliens-only program, then, should not be treated as discrimination *1256 against aliens as compared to citizens. That aspect of the discrimination is Congress's doing by 0907 creating one program for citizens and a separate one for aliens. Rather, what the state is doing is discriminating within the aliens-only program against one class of aliens as compared to other classes of aliens. Cf. Mathews, 426 U.S. at 80, 96 S.Ct. 1883 ("The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens allowing benefits to some aliens but not to others is permissible."). This discrimination among subclassifications of aliens is not based on a suspect classification (such as alienage). The discrimination, rather, is based on nonsuspect classifications such as work history or military service. We follow the Massachusetts Supreme Judicial Court's Doe decision in applying rational-basis review to such distinctions. See 773 N.E.2d at 414.
Furthermore, we reject the argument that the PRWORA's authorization to the states to provide or deny Medicaid benefits to certain aliens runs afoul of the uniformity requirement of the Constitution's Naturalization Clause. This argument rests largely on dictum in Graham. Graham considered whether Arizona's durational residency requirement for aliens was authorized by a federal statute. The Court ruled that the statute did not confer such authority. In reaching that conclusion the Court relied in part on the proposition that such statutory authorization would be of questionable constitutionality. The Court wrote:
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 programs would appear to contravene this explicit constitutional requirement of uniformity. Since "statutes should be construed whenever possible so as to uphold their constitutionality," we conclude that [the federal statute] does not authorize the Arizona 15-year national residency requirement.
403 U.S. at 382-83, 91 S.Ct. 1848 (emphasis added; footnote and internal citation omitted).
It is now our task to determine whether this appearance of unconstitutionality is real. To begin with, we note that Congressional power over aliens derives from more than just the Naturalization Clause. Other sources of

Congressional authority include "its plenary authority with respect to foreign relations and international commerce, and ... the inherent power of a sovereign to close its borders." Plyler v. Doe, 457 U.S. 202, 225, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (Equal Protection Clause is violated by state law authorizing local school districts to deny enrollment to children not legally admitted into the United States).
Indeed, it is not at all clear how the authority "[t]o establish an uniform Rule of Naturalization" is being exercised when Congress restricts welfare benefits to aliens on grounds that have no direct relationship to the naturalization process. Whether the alien is seeking naturalization is not a consideration under the PRWORA. We find it significant that Mathews made no explicit mention of the Naturalization Clause in upholding Congressional authority to establish a residency requirement for aliens to obtain Medicare benefits. Of course, if Congressional authority for the PRWORA's provisions regarding aliens does not rest on the Naturalization Clause, the limits on the exercise of power under that clause do not necessarily apply; the uniformity requirement is imposed only on a "Rule of Naturalization."
1257 *1257 Moreover, the purpose of the uniformity requirement in the Naturalization Clause is not undermined by the PRWORA's grant of discretion to the states with respect to alien qualifications for Medicaid benefits. The uniformity requirement was a response to the widely divergent practices among the states under the Articles of Confederation with respect to the requirements to become a naturalized citizen. One state would have a lenient rule, another a very strict rule; yet the Articles required the strict state to treat as a full citizen anyone admitted to citizenship by the lenient state. See Michael Hertz, Limits to the Naturalization Power, 64 Geo. L.J. 1007, 1009-17 (1976); Judith Schenck Koffler, The Bankruptcy Clause and Exemption Laws: A Reexamination of the Doctrine of Geographic Uniformity, 58 N.Y.U.L.Rev. 22, 85-87 (1983). Here, the choice by one state to grant or deny Medicaid benefits to an alien does not require another state to follow suit. We also note that there is reason to believe that at least some Founders did not believe that the Immigration Clause in itself precluded individual states from adopting more lenient standards for naturalization. See U.S. Term Limits Inc., v. Thornton, 514 U.S. 779, 873 n. 13, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (Thomas, J., dissenting).
One final point needs to be addressed. Plaintiffs argue that the language of 8 U.S.C. § 1601(7) illustrates that Congress intended strict scrutiny to apply to state laws that alter legal aliens' eligibility for jointly funded benefit programs. That section states:
With respect to the State authority to make determinations concerning the eligibility of qualified aliens for public benefits in this chapter, a State that chooses to follow the Federal classification in determining the eligibility of such 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. We think Plaintiffs read too much into this provision. For Congress to say that its statute would survive strict scrutiny is a far cry from Congress's stating that the statute should be subject to such scrutiny. We find no reason to believe that Congress wanted to impose on its statute a standard of review more stringent than what the Constitution requires.
5. Appropriateness of Injunctive Relief
Our analysis of Plaintiffs' equal-protection claim enables us to short-circuit the factor-weighing process for determining whether to grant injunctive relief. The merits issue on this appeal is a pure matter of law. No material facts are disputed. When we determine that a claim lacks merit, we can hardly find an abuse of discretion in denying injunctive relief. To grant relief in that circumstance would be to ignore the demands of the law and express our personal policy views regarding the importance of the interests of the parties and the public.
B. Alleged Procedural Violations
Plaintiffs contend that the procedures used by the Colorado Department in implementing SB 03-176 have three defects: (1) prior to terminating affected Medicaid recipients the Department failed to perform a "full eligibility

redetermination" to assess whether the recipients qualified for Medicaid under any other eligibility categories; (2) the state improperly denied certain of the affected recipients an opportunity for a hearing (sometimes referred to as an appeal) to contest the county termination decision before it takes effect; and (3) the state failed to provide 1258 timely and adequate notice to the affected recipients *1258 prior to terminating coverage. Plaintiffs claim that each of these deficiencies violates the Medicaid Act, and that the second and third also violate the Due Process Clause of the Fourteenth Amendment. They seek injunctive relief forbidding implementation of SB 03-176 until the procedural deficiencies are corrected.
The district court concluded that Plaintiffs had not shown a substantial likelihood of success with respect to the merits of their procedural claims. After reviewing the Department's procedures, the court observed that "[t]he evidence adduced at the hearing demonstrated the organized, comprehensive, and proactive manner the Department employed to anticipate and implement SB 03-176 consistent with extant federal and state law and regulations." Soskin v. Reinertson, 257 F.Supp.2d 1320, 1327 (D.Colo.2003). It stated that "the Department notified the counties [of SB 03-176], instructed them to provide notice to affected recipients, and provided information about how to assess clients, how to determine whether an alien could continue as Medicaid eligible, how to provide notice to each client, and how to calculate the forty working quarters attributable to each client which could affect an alien's continuing coverage." Id. at 1328. According to the court, "[S]ystemically the Department did all that it was required to do under due process to provide timely and sufficient notice to aliens potentially affected by SB 03-176." Id.
We address Plaintiffs' three contentions in turn.
1. Redetermination Process
a. System Established by Department
The purpose of the redetermination process is to ascertain whether individuals who lose their status under one eligibility category may qualify under a different eligibility category. After SB 03-176 passed the legislature but before it was signed by the Governor, the Department sent a letter to the counties outlining redetermination procedures. The letter began by describing which legal aliens would be adversely affected by the new law, and which would still be eligible for coverage. It noted that legal permanent residents with 40 quarters of work history would remain eligible, as would honorably discharged veterans and their immediate family members, active duty military personnel and their family members, and certain other specified groups (such as Canadian-born Indians with at least 50% American Indian blood).
The letter then set forth what it described as "the steps necessary to implement [SB 03-176] and stay in compliance with Medicaid eligibility rules." Aplt.App. at 125. The counties were instructed first to compile a list of all Medicaid clients whose status would need to be redetermined as a result of SB 03-176. The Department assisted the counties by attaching to each letter a county-specific report identifying the Medicaid clients whom the Department's database recorded as having alien registration numbers.
Once the county had compiled the redetermination list, it was to pull the files of everyone on the list and check them for "immigration verification." (The parties have not explained what is entailed in an "immigration verification," nor have we found an explicit explanation in the record, although it appears to encompass obtaining data relating to all qualification categories for aliens, including work history and military service.) If the file included immigration verification from within the preceding three months indicating that the individual met current eligibility requirements, coverage for that person would be maintained. If, however, the file indicated that the 1259 individual did not meet the new Medicaid eligibility requirements, the *1259 county was to perform an ex parte redetermination. The letter cryptically stated that "[t]hese individuals can be discontinued without requesting additional verification from the client." Aplt.App. at 126. The letter does not describe the procedures to follow in performing such an ex parte review.
Because legal permanent residents with 40 creditable work quarters would be eligible for continued Medicaid coverage, the Department's letter instructed the counties to use the state's work-history database to "[i]dentify

legal permanent residents with 40 quarters of work history." Id. The letter did not specifically instruct the counties to inquire into the work history of an individual's spouse during marriage or of a parent while the individual was under 18. See 8 U.S.C. § 1645 (including such work history in calculation of individual's eligibility). But an attachment to the letter defined "40 Qualifying Quarters" as including those of parents and spouses:

A qualifying quarter means a quarter of coverage as defined under title II of the Social Security Act, which is worked by the alien, and/or

0905 All the qualifying quarters worked by the spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased, and

0905 All of the qualifying quarters worked by a parent of such alien while the alien was under age 18....

Aplt.App. at 37-38. It appears that those who had 40 verifiable quarters of work history would be removed from the list of aliens to be considered for termination, and that those who did not have the necessary quarters would remain on the list (although neither the letter nor record are altogether clear on this point).

The county officials were then to complete a redetermination of Medicaid eligibility for all who remained on their lists after these initial reviews. The letter directed county officials to send redetermination packets to all aliens who had an unknown immigration status. The Department provided a redetermination form to include in the packet. The form told potentially affected individuals of the impending Medicaid eligibility changes for legal immigrants. It stated:

Due to a new state law, Medicaid eligibility must be redetermined for legal immigrants. Our records show that the following people in your household are legal immigrants. They must have their Medicaid redetermined. Please send us a copy of each person's current INS card. Also, answer all 5 questions below for each person. If you do not provide the requested information within 10 days from the date listed above, the following people will lose their Medicaid.

Aplt.App. at 132. The five questions for each listed member of the household were: (1) "[What is your] [s]ocial security number, if available[?]" (2) "Is this person a U.S. citizen?" (3) "Country of origin?" (4) "Is this person on active duty in the U.S. Armed Forces or a spouse, surviving spouse or child of one?" and (5) "Is this person a veteran, survivor of a veteran, or a dependent of a veteran?" Id.

If the redetermination packet was not returned within 10 business days, the Department directed the counties to send a "Notice of Medicaid Closure" form, along with a second redetermination form. The sample notice form, which apparently was to be used only in cases in which affected recipients did not timely return their redetermination forms, stated:

1260

*1260 Notice of Medicaid Closure

[Name, Address, and Date]

This notice is to tell you that Medicaid has been Closed effective March 30, 2003 for the following family member(s) of your household:

[NAME]

The household member(s) listed above lost their Medicaid because a new state law changed the citizenship requirements for the program. The person(s) listed above did not provide the required verification of their immigration status to complete the redetermination of eligibility. 8.100.7 and 8.100.53 A (10CCR-2505-10)

If you have any questions about this letter, please contact Medicaid Customer Service at (303) 866-3513 or 1-800-221-3943.

This statement certifies that health coverage has been provided to the following client(s) through Colorado Medicaid in accordance with the Health Insurance Portability and Accountability Act.

[Client Name] [Coverage Dates]
Aplt.App. at 136. If still no response was received after the second redetermination packet and Medicaid closure form were sent, the counties were to terminate the individual's Medicaid coverage. The letter did not direct what form of notice to use for such terminations.
Five days after the Department mailed its letter to the counties, there was a conference call with state and county Medicaid officials to discuss the letter and the implementation process. Forty counties participated in the call. The record does not provide details of what was discussed.
b. Adequacy of the Department's Process
Plaintiffs assert that the redetermination procedures described above fail to satisfy the requirements set forth in the Medicaid Act and its implementing regulations, because they do not provide for a full redetermination of eligibility of aliens excluded by SB 03-176. They contend that (1) the Department employee in charge of Medicaid conceded at the evidentiary hearing that she did not conduct "full redeterminations of eligibility" prior to terminating coverage; and (2) the Department failed to direct the counties to determine whether recipients affected by SB 03-176 are eligible for coverage under any other eligibility category. In particular, they assert that the Department failed to require counties to request work histories of spouses or parents to determine whether they had quarters of work that could be credited to the affected individual.
To support their claim of a full-redetermination requirement, Plaintiffs rely on a statute, a regulation, and a few judicial opinions. The statute is 42 U.S.C. § 1396a(a)(8), which states: "A State plan for medical assistance must ... provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." The regulation is 42 C.F.R. § 435.930(b), which states: "The [state] agency must ... [c]ontinue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible." Plaintiffs then point out that several courts have held that this federal statute and regulation (or their earlier versions) together require an ex parte redetermination process before termination of a Medicaid recipient. See Crippen v. Kheder, 741 F.2d 102, 104-07 (6th Cir.1984); Mass. Ass'n of Older Ams. v. Sharp, 700 F.2d 749, 751-54 (1st Cir.1983); Stenson v. Blum, 476 F.Supp. 1331, 1339-42 (S.D.N.Y.1979); Olson v. Reagen, No. 85-101-A, 1985 WL 123, at *3, 1985 U.S. Dist. Lexis 20823, at *7-8 (N.D. Iowa Apr. 11, 1985).
1261 *1261 Assuming, without deciding, that we would follow those decisions, we observe that none of the decisions (or the laws they rely on) speak to the scope of the redetermination review that would be required here, such as what records should be obtained and how they should be analyzed. In Sharp, for example, eligibility would have been immediately apparent. See 700 F.2d at 751-54. The plaintiffs in Sharp had been eligible for Medicaid as recipients of Aid to Families with Dependent Children (AFDC), but they lost their AFDC eligibility as a result of a change in the law that required including stepparent income in determining AFDC eligibility. Id. at 751. Medicaid rules were unchanged, however, so stepparent income was irrelevant to their Medicaid eligibility. Id. at 753-54. The statute, regulation, and case law cited by Plaintiffs do not support the proposition that the Department's extensive redetermination process was inadequate.
In addition, Plaintiffs make a passing reference to a letter (not included in the record) to the state Medicaid directors from the Director of the Center for Medicare and Medicaid Services, the United States Department of Health and Human Services division that administers Medicaid and promulgates implementing regulations. That letter discusses the redetermination process. But Plaintiffs offer no argument why this letter has the force of law.
In any event, Plaintiffs have not produced substantial evidence that the Department's redetermination process is inadequate. First, we disagree with Plaintiffs' assertion that Defendant has conceded that the Department failed to require "full redetermination[s] of eligibility." Plaintiffs rely on an isolated remark at the district court evidentiary hearing by Diana Maiden, the Department employee in charge of Medicaid services, the same witness who discussed in detail how the Department conducted the elaborate redetermination process discussed above. True, Ms. Maiden said, "[W]e were not asking for a full re-determination on all aspects of eligibility." Aplt.App. at 436. It

appears, however, that she meant only that the counties were not required to review eligibility requirements that apply to all Medicaid recipients, but were required only to look at factors applicable to aliens. As noted in Defendant's brief, "[C]itizenship is a prerequisite to all other eligibility categories with the exception of Supplemental Security Income ("SSI") and IV-E Foster Care recipients, [so] a full redetermination is unnecessary." Aple. Br. at 20-21. Ms. Maiden certainly was not saying that counties had no obligation to assess alternative bases of eligibility for those whose existing eligibility was to be eliminated by SB 03-176.
Also, although Plaintiffs have offered (minimal) evidence that one of the named Plaintiffs may in fact remain eligible for Medicaid benefits even if SB 03-176 is lawful, they have not provided evidence that the information establishing eligibility could have been acquired through ex parte procedures, so we have no reason to doubt the adequacy of the state's ex parte review. And even if an error was made, Plaintiffs have not shown that the error was systematic, rather that being the isolated error of a single worker. Moreover, it appears that lapses in the ex parte review would ordinarily be correctable through information requested from recipients in the redetermination process conducted before termination of benefits. (We note in particular that, as we read the record, Plaintiffs erred in saying that county officials were not instructed to obtain relevant work histories of spouses and parents.)
1262 *1262 c. Propriety of Relief Requested
Plaintiffs have not shown a substantial likelihood of success on the merits of their challenge to the Department's redetermination process. They also have failed to show a threat of irreparable injury. As we explain below, any person subject to termination of benefits under SB 03-176 is entitled to a hearing before termination. Errors in the redetermination process can be exposed at the hearing.
Given the absence of irreparable injury and the failure to show a substantial likelihood of success on the merits, the district court did not abuse its discretion in denying injunctive relief on this ground, regardless of how one evaluates the remaining two factors relating to the propriety of such relief.
2. Right to Hearing
We next turn to Plaintiffs' argument that the Department improperly deprived certain recipients of their right to appeal the county's decision through a pre-termination hearing. Plaintiffs complain that those individuals who failed to return their redetermination forms had their eligibility terminated without appeal rights. This is improper, Plaintiffs argue, because the Medicaid Act and Due Process Clause provide recipients a right to a hearing whenever the state takes action to deny services or eligibility. Because we determine that Plaintiffs' claim succeeds under the Medicaid Act, we need not address constitutional due process.
We start with a brief review of the relevant facts. As part of the redetermination process, the Department instructed counties to send packets to affected individuals, seeking information that would allow the counties to ascertain continued eligibility. If the first packet was not returned within 10 days, a second packet, along with a Notice of Medicaid Closure form, was sent. If the county received no response to the second packet, it was to terminate coverage. As Plaintiffs point out, Department employee Ms. Maiden testified that those individuals who failed to respond to two redetermination packets were terminated without appeal rights (though she did indicate that those recipients could reapply for Medicaid and have their eligibility reinstated if they came forward with adequate documentation).
Turning now to the governing law, the Medicaid Act, 42 U.S.C. § 1396a(a)(3), states that a state agency must "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the [state] plan is denied or is not acted upon with reasonable promptness." Additionally, one of the implementing regulations, 42 C.F.R. § 431.220, directly addresses when hearings are required; it states:
When a hearing is required.
(a) The State agency must grant an opportunity for a hearing to the following:

(1) Any applicant who requests it because his claim for services is denied or is not acted upon with reasonable promptness.
(2) Any recipient who requests it because he or she believes the agency has taken an action erroneously.
....
(b) The agency need not grant a hearing if the sole issue is a Federal or State law requiring an automatic change adversely affecting some or all recipients.
42 C.F.R. § 431.220 (emphasis added). If a hearing is requested, the affected individual maintains eligibility pending the outcome of the hearing. 42 C.F.R. § 431.231; Volume 8, Colorado Medicaid Manual § 8.057.5. Thus, the hearing contemplated by the regulations is in effect a pre-termination hearing.
1263 *1263 Defendant relies on the exception created by § 431.220(b) to argue that the Department was not required to provide hearings to individuals whose eligibility was eliminated by SB 03-176. Because Plaintiffs contest only Defendant's failure to provide a hearing to those individuals who were terminated based on their failure to return the redetermination forms, we limit our analysis to that issue.
We do not agree that § 431.220(b) applies here. In our view a law imposing an automatic change in benefits is not "the sole issue." Affected individuals who did not timely return their redetermination forms could contest several factual matters. For example, they could assert that they did return the form but that the county lost it or failed to process it; or they could argue that they never received either of the two redetermination forms the county allegedly mailed. They might also be able to argue that they are eligible based on an alternative eligibility category090740 quarters of work, veteran status, etc. The potential for these various factual disputes makes inapplicable the hearing exception provided by § 431.220(b).
Such potential factual disputes renders Defendant's reliance on Benton v. Rhodes, 586 F.2d 1 (6th Cir.1978), misplaced. Benton involved a new state policy that categorically terminated certain types of supplies and services0907over-the-counter drugs, medical supplies, non-emergency ambulatory coverage, dental services, speech therapy, etc. 0907 that were provided to all Medicaid recipients. Id. at 2. The court held that no hearings were required because the sole issue was legal, not dependent upon the factual circumstances of individual recipients. See id. at 3-4. There was no factual scenario in which people would otherwise qualify for the supplies and services that the state law discontinued. See id.
Because § 431.220(b) is inapplicable, the other provisions of § 431.220 remain effective. Specifically, "[t]he State agency must grant an opportunity for a hearing to ... (2) Any recipient who requests it because he or she believes the agency has taken an action erroneously." 42 C.F.R. § 431.220. No such hearing rights were recognized by the Department for those individuals who failed to return their redetermination forms. Accordingly, we conclude that Plaintiffs have shown a substantial likelihood of success on the merits of this issue. The other factors clearly weigh in favor of Plaintiffs. We therefore reverse in part the district court's denial of a preliminary injunction. Defendant should be preliminarily enjoined from denying a request for an appeal by one whose benefits are to be terminated for failure to return a redetermination form.
3. Sufficiency of Notice
Plaintiffs' final argument is that the notice forms used by the Department to terminate eligibility are facially invalid because "they fail to provide an adequate statement of appeal rights or an explanation of the basis for the termination sufficient to enable recipients to identify themselves as having been terminated erroneously." Aplt. Br. at 48. They contend that such information is required by the Medicaid Act and regulations, as well as by the Due Process Clause.

The Medicaid Act's implementing regulations set forth requirements for notice related to the right to appeal and the reasons for termination. Addressing appeal rights, 42 C.F.R. § 431.206 states that "[a]t the time of any action affecting [a recipient's] claim," id. § 431.206(c),

(b) The agency must ... inform every applicant or recipient in writing 0907

(1) Of his right to a hearing;

1264

*1264 (2) Of the method by which he may obtain a hearing; and

(3) That he may represent himself or use legal counsel, a relative, a friend, or other spokesman.

42 C.F.R. § 431.206. Furthermore, 42 C.F.R. § 431.210 states that the notice must contain 0907

(a) A statement of what action the State ... intends to take;

(b) The reasons for the intended action;

(c) The specific regulations that support, or the change in Federal or State law that requires, the action;

(d) An explanation of 0907

(1) The individual's right to request an evidentiary hearing if one is available, or a State agency hearing; or

(2) In cases of an action based on a change in law, the circumstances under which a hearing will be granted; and

(e) An explanation of the circumstances under which Medicaid is continued if a hearing is requested.

42 C.F.R. § 431.210.

The constitutional right to due process may also impose notice requirements. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (when public welfare benefits are terminated, due process "principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination").

Plaintiffs' brief alleges that inadequate notice was provided by each of seven different forms of notice used to implement SB 03-1760907the Notice of Medicaid Closure Form quoted above and six others. We share Plaintiffs' concern about the adequacy of notice provided by the forms. The notice of appeal rights on certain forms appears to be inaccurate. Also, there is room for improvement in some of the language explaining why benefits are being terminated. Nevertheless, the factual record is so deficient that the district court did not abuse its discretion in failing to find a likelihood of success on the merits. The briefs do not explain, and the record before us does not reveal, critical information regarding the notices, such as: (1) Which notice went to what people? (2) Under what circumstances was the notice sent? (3) What other information, if any, had previously been provided to the recipients? (4) Were notices other than the seven challenged by Plaintiffs sent to persons to be terminated? This information is essential to an assessment of whether language in a notice is likely to be misleading to those who actually receive it.

This same lack of information also makes it impossible to determine who, if anyone, is likely to suffer injury in the absence of better notice. It would be inappropriate to issue an injunction with respect to all alien Medicaid recipients if only a fraction are receiving improper notice.

In the absence of an adequate showing of either a likelihood of success or irreparable injury, the district court did not abuse its discretion in denying injunctive relief. The sole exception relates to notice to those who were terminated for failure to return the redetermination forms. Defendant admits that those persons were not notified of the right to request a hearing. We therefore REVERSE the district court's denial of a preliminary injunction

requiring that such persons be advised of the right to request a pre-termination hearing. Moreover, we express the hope that Defendant will review all notices so that it can revise and resend (or instruct the counties to resend) notice to those of the 3,500 affected persons who may have received inadequate notice.
III. CONCLUSION
1265 We VACATE our injunction pending appeal and AFFIRM the district court's denial *1265 of Plaintiffs' motion for a preliminary injunction, except that we REVERSE in part and REMAND to the district court for entry of a preliminary injunction prohibiting Defendant from terminating benefits to any member of the class for failure to return redetermination forms unless the member has been given notice of the right to request a pre-termination hearing.
HENRY, J., dissenting.
I. Introduction
Although America is very much a nation of immigrants, portions of its history are replete with instances of discriminatory policies and practices against aliens. "Whether it is founded on economic protectionism, xenophobia, or other motivations, aliens frequently have been denied benefits and privileges accorded to citizens." ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 9.5.1 at 738 (2d ed.2002). Even the judiciary, charged under the Constitution with the protection of rights, does not have a pure historical record. See, e.g., Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); see also William H. Rehnquist, The Supreme Court: How it Was, How it Is 313 (1987) ("But a governmental order classifying people solely on the basis of race without any inquiry into disloyalty in a particular case undoubtedly strains the bounds of the Constitution even in time of war."). Fortunately, the Supreme Court clearly reversed that trend in Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), holding that strict scrutiny is appropriate to safeguard the constitutional rights of aliens.[1]
In the case at bar, the majority has advanced a deft methodology, but it disregards the Supreme Court's mandate that we apply strict scrutiny to a state's classification of persons on the basis of United States citizenship for the purposes of distribution of economic benefits. Colorado's program undisputedly discriminates between subclasses of legal aliens and classifies a group of legal aliens as ineligible for benefits. The majority holds that, under Graham and its progeny, if the federal government expresses a policy that gives the states the option to provide coverage for legal aliens, then we apply rational review to the state's actions. In refusing to apply strict scrutiny to Colorado's classification of legal immigrants as ineligible for Medicaid coverage, the majority compromises this court's equal protection jurisprudence, as Colorado S.B. 03-176 compromises the rights of legal, tax-paying, and military-serving aliens.
II. The General Rule
1266 In Graham, the Supreme Court reiterated that the Fourteenth Amendment mandates *1266 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, 91 S.Ct. 1848 (footnotes omitted). The protections of the Fourteenth Amendment have long-applied to non-citizens; indeed, its "provisions are universal in their application[] to all persons within the territorial jurisdiction[] without regard to any difference or race, or color, or of nationality." Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
We have long recognized that "[a]liens as a class are a prime example of a discrete and insular minority for whom such heightened judicial solicitude is appropriate." Graham, 403 U.S. at 372, 91 S.Ct. 1848 (internal quotation marks and citation omitted); see United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). As the late Professor John Hart Ely, one of America's most distinguished constitutional scholars observed, the "Equal Protection Clause is properly read to extend unusually strenuous

protection to aliens." John Hart Ely, Democracy and Distrust 194 n. 51 (1980). In fact, Professor Ely also argued that the Privileges and Immunities Clause could, and perhaps should, be read to apply to aliens. See id. at 24-25.
The unbiased treatment of legal aliens0907the "strangers at thy gates" 0907 is more than simply a long-standing tradition from which U.S. citizens have benefitted: it is a bedrock principle of the development of law-based nations and cultures throughout history. Recent policy initiatives underscore our nation's abidance to the tenet of nondiscrimination based on national origin. See, e.g., Exec. Order No. 13,166 (delineating parameters for the provision of meaningful access to federal programs for persons of limited English proficiency to assure compliance with Title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations).
The recognition of aliens as a discrete and insular minority partially stems from the preclusion of aliens from voting. Aliens are thus unable to protect themselves through the normal democratic process. See Toll v. Moreno, 458 U.S. 1, 21, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982) (Blackmun, J., concurring) ("[T]he Court always has recognized that aliens may be denied use of the mechanisms of self-government, and all of the alienage cases have been decided against the backdrop of that principle.").
Justice Blackmun, concurring in Toll v. Moreno, gave a compelling explanation of the Court's consistent treatment of the discrete class of aliens:
If anything, the fact that aliens constitutionally may be 0907 and generally are 0907 formally and completely barred from participating in the process of self-government makes particularly profound the need for searching judicial review of classifications grounded on alienage. I might add that the Court explicitly has endorsed this seemingly self-evident proposition: in Hampton v. Mow Sun Wong, 426 U.S. 88 [96 S.Ct. 1895, 48 L.Ed.2d 495] (1976), after noting that "[s]ome of [an alien's] disadvantages stem directly from the Constitution itself," the Court declared that "[t]he legitimacy of the delineation of the affected class [of aliens] buttresses the conclusion that it is a discrete and insular minority ... and, of course, is consistent with the premise that the class is one whose members suffer special disabilities." Id. at 102, n. 22 [96 S.Ct. 1895, 48 L.Ed.2d 495].
Toll, 458 U.S. at 23-24, 102 S.Ct. 2977 (Blackmun, J., concurring) (emphasis supplied).
1267 *1267 Similarly, then-Associate Justice Rehnquist explained:
It is clear, therefore, that the reason alienage classifications receive heightened judicial scrutiny is because aliens, qua aliens, are a "discrete and insular" minority. Presumptively, such a minority group, ... is one identifiable by a status over which the members are powerless. And it is no doubt true that all aliens are, at some time, members of a discrete and insular minority in that they are identified by a status which they are powerless to change until eligible to become citizens of this country.
Nyquist v. Mauclet, 432 U.S. 1, 17-19, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977) (Rehnquist, J., dissenting) (internal quotation marks and citations omitted).
Because of the relatively powerless status aliens maintain in our society, laws that create classifications based on alienage are presumptively invalid, and the classification will be found to be constitutional only if the state can demonstrate that the law is the least restrictive means to achieve a compelling state interest. In re Griffiths, 413 U.S. 717, 721-22, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) ("In order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary ... to the accomplishment of its purpose or the safeguarding of its interest.") (internal footnotes and quotation marks omitted).[2] As Justice Blackmun made clear, by labeling aliens as a discrete and insular minority, the Court reiterated its "considered conclusion that for most legislative purposes there simply are no meaningful differences between resident aliens and citizens, so that aliens and citizens are persons similarly circumstanced who must be treated alike." Toll, 458 U.S. at 20, 102 S.Ct. 2977 (Blackmun, J., concurring) (internal quotation marks omitted). With this considered conclusion in mind, we turn to its application to Colorado's statute.

A. The Twin Holdings of Graham v. Richardson
It is well-recognized that Graham established two distinct constitutional hurdles for state legislation discriminating 1268 against *1268 legal immigrants: (a) Part II of the opinion, which mandates that state legislation must satisfy strict
scrutiny, 403 U.S. at 372, 91 S.Ct. 1848 ("Aliens as a class are a prime example of a `discrete and insular' minority for whom such heightened judicial solicitude is appropriate.") (internal citations omitted); and (b) Part III of the opinion, which holds that state legislation must not encroach upon exclusive federal power, id. at 380, 91 S.Ct. 1848 ("Since such laws encroach upon exclusive federal power, they are constitutionally impermissible."). See also Toll, 458 U.S. at 30, 102 S.Ct. 2977 (O'Connor, J., concurring) (recognizing the encroachment of federal power as an "alternative ground" for striking the state statute). The twin holdings of the Court are also apparent from the Court's vote: the Court unanimously held that state legislation cannot encroach upon exclusive federal power. Justice Harlan did not join the Court's equal protection ruling (Part II of the opinion).
1. Strict scrutiny
In Graham, the Court considered a Pennsylvania law that made noncitizens ineligible to receive public assistance and an Arizona statute that imposed a durational residency requirement for welfare benefits on aliens but not on citizens. Like Colorado's S.B. 03-176, the Arizona statute served to discriminate only within the class of aliens: "Aliens who met the durational residency requirement were entitled to welfare benefits." Nyquist, 432 U.S. at 8-9, 97 S.Ct. 2120 (discussing Graham). The Court nonetheless subjected the statutes to strict scrutiny and both statutes were held unconstitutional. Graham, 403 U.S. at 372, 91 S.Ct. 1848.
2. Encroachment of federal power
"As an alternative ground, the [Graham] Court also declared the law invalid as an encroachment on federal power." Toll, 458 U.S. at 30, 102 S.Ct. 2977 (O'Connor, J., concurring). The plaintiffs do not challenge that the federal preemption holding of Part III of the Graham opinion is not at issue here. Colorado is not imposing "auxiliary burdens upon the entrance or residence of aliens," because it is acting pursuant to federal authorization in 8 U.S.C. § 1612(b). Graham, 403 U.S. at 379, 91 S.Ct. 1848; accord DeCanas v. Bica, 424 U.S. 351, 358 n. 6, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976) (discussing preemption and noting that "state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress"). As such, we should focus on the strict scrutiny holding in Part II of Graham.
B. Strict Scrutiny Post-Graham
As the majority notes, since Graham, "the Court has experienced no noticeable discomfort in applying strict scrutiny to alienage classifications." Toll, 458 U.S. at 22, 102 S.Ct. 2977 (Blackmun, J., concurring); see Maj. op. at 1250; see, e.g., Examining Bd. v. Flores de Otero, 426 U.S. 572, 601-02, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) (applying strict scrutiny for limitations on state civil engineering licenses and noting that the Court had "establish [ed] that state classifications based on alienage are subject to strict judicial scrutiny") (internal quotation marks omitted); Sugarman v. Dougall, 413 U.S. 634, 642, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973) (holding that the exclusion of aliens from civil service jobs denied them equal protection and that a "flat ban on the employment of aliens in positions that have little, if any relation to a State's legitimate interest, cannot withstand scrutiny under the Fourteenth Amendment"); In re Griffiths, 413 U.S. at 721, 93 S.Ct. 2851 (applying strict scrutiny to a state law 1269 that excluded aliens from being licensed as attorneys); see also Cabell *1269 v. Chavez-Salido, 454 U.S. 432, 438, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982) ("[C]itizenship is not a relevant ground for the distribution of economic benefits.").
In Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), the Supreme Court upheld as constitutional the amendments to the Social Security Act that conditioned an alien's eligibility for Medicare

benefits on the alien's continuous residence in the United States for five years and admission for permanent residence. In doing so, the Supreme Court recognized that
the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government. Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary.
426 U.S. at 81, 96 S.Ct. 1883. Mathews also distinguished Graham, recognizing that its "equal protection analysis ... involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government." Id. at 84-85, 96 S.Ct. 1883. The Court explained that
[i]nsofar 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. Both groups are noncitizens as far as the State's interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business.
Id. at 85, 96 S.Ct. 1883 (emphasis supplied). The Court thus articulated the "distinction between alienage classifications imposed by the federal government and those created by state and local governments." Chemerinsky, supra, § 9.5.4. The federal government, rather than the states or the judiciary, regulates the condition of entry and residence of aliens. Mathews, 426 U.S. at 85, 96 S.Ct. 1883. Thus, whereas the federal government might "routine[ly] and normally" create divisions between citizens and aliens as a "legitimate part of its business," a similar division a by a state "has no apparent justification." Id. 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," id. at 81, 96 S.Ct. 1883, the Supreme Court afforded the statute a deferential standard of review. Id. at 82, 96 S.Ct. 1883. The Court thus upheld the federal program because it was not "wholly irrational" and served the "legitimate" purpose of securing the fiscal integrity of the Medicaid program at issue. Id. at 83, 85, 96 S.Ct. 1883.
Particularly relevant here, as the majority notes, is that in the following year, the Court applied Graham's strict scrutiny analysis to invalidate a New York law that limited financial aid for higher education to citizens, those who had applied for citizenship, and those who declared an intent to apply when they became eligible. Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). In explaining the rationale of Mathews, the Court also noted that, "classifications by a State that are based on alienage are inherently suspect and subject to close 1270 judicial scrutiny." Id. *1270 at 7, 97 S.Ct. 2120 (emphasis supplied) (internal quotation marks omitted). "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." Id. at 7 n. 8, 97 S.Ct. 2120. The Court also emphasized the inherent discriminatory intent of the statute, noting that the law "is directed at aliens and ... only aliens are harmed by it." Id. at 9, 97 S.Ct. 2120.
III. Application of Graham by the Majority
Given this background of the Court's consistent application of strict scrutiny to a state statute that discriminates between citizens and resident aliens, we turn to the majority's analysis. The majority first recognizes that a "central holding" of Graham is that "state laws creating citizenalien classifications must meet strict scrutiny." Maj. op. at 1250. But the majority soon reverses and declares that Graham does not apply because "we have specific Congressional authorization for the state's action, the PRWORA." Id. at 1251-52. As a result, the majority appears to have conflated the twin holdings of Graham, which has resulted in a misapplication of Graham's central tenet.

A. The Majority's Misapplication of Graham
As indicated above, Graham held first, that we must subject a state's classifications based on alienage to "close judicial scrutiny." 403 U.S. at 372, 91 S.Ct. 1848. The Court went on to hold that "[a]n additional reason" a state statute might not "withstand constitutional scrutiny emerges from the area of federal-state relations," citing conflict with "overriding national policies" where the federal government has occupied the field with its "superior authority." Id. at 376-78, 91 S.Ct. 1848 (emphasis supplied). As mentioned above, the plaintiffs do not argue that the statute violates the preemption prong of Graham. Plaintiffs' arguments stem from the discrete strict scrutiny holding of Graham.
The majority correctly concludes that Mathews does not apply, because "[u]nlike Mathews, here we have a stateadministered program." Maj. op. at 1251-52 (emphasis supplied). While holding that a rational basis test applies to federal policy regarding an alien's eligibility for welfare programs, the Court recognized that a similar "division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification." Mathews, 426 U.S. at 85, 96 S.Ct. 1883. As the majority indicates, the circuit cases applying rational basis to a federal statutory classification of aliens, as administered by a state, routinely recognize that "the strict scrutiny standard does apply to Fourteenth Amendment equal protection challenges to a state's classification of aliens." Rodriguez v. United States, 169 F.3d 1342, 1347 (11th Cir.1999) (citing Graham); Aleman v. Glickman, 217 F.3d 1191, 1199 n. 5 (9th Cir.2000) (recognizing that Mathews noted "equal protection analysis ... involves significantly different considerations [when] it concerns the relationship between aliens and the States rather than between aliens and the Federal Government") (quoting Mathews, 426 U.S. at 84-85, 96 S.Ct. 1883) (alterations in original); City of Chicago v. Shalala, 189 F.3d 598, 605 (7th Cir.1999) ("`The States enjoy no power with respect to the classification of aliens.'") (quoting Plyler, 457 U.S. at 225, 102 S.Ct. 2382); see also Lewis v. Thompson, 252 F.3d 567, 583 (2d Cir.2001) (plaintiffs do not contest that rational basis scrutiny applies to federal classification of eligibility for welfare benefits to the extent that they are asserting harm to themselves).
1271 *1271 B. The Majority's Reading of the State Courts' Application of Graham
Turning to the state courts that have applied restrictions and classifications based on alienage, the majority presents Aliessa v. Novello, 96 N.Y.2d 418, 730 N.Y.S.2d 1, 754 N.E.2d 1085 (2001), and Doe v. Comm'r of Transitional Assistance, 437 Mass. 521, 773 N.E.2d 404 (2002), as adopting contending approaches: Aliessa applied strict scrutiny to a state's termination of state Medicaid coverage for many qualified aliens, while Doe applied a rational basis analysis to "state-made intra-alien classifications." Maj. op. at 1253. In fact, a closer reading of the cases reveals that the New York State Court of Appeals and the Massachusetts Supreme Court decisions are not incongruous, but are in fact, complementary and represent a consistent application of the Supreme Court's jurisprudence in the wake of Graham.
1. Aliessa
The New York State legislature enacted Social Service Law § 122, which terminated Medicaid for various nonqualified aliens and placed a five-year residency requirement for eligibility for state Medicaid benefits. This latter group included lawfully admitted permanent residents.
As the majority opinion points out, "[t]he parties' equal protection arguments in Aliessa mirrored those of the parties in this case: the plaintiffs argued that the state law discriminated based on alienage and that strict scrutiny should apply, and the state argued that it was acting with Congress's permission and that rational-basis review was appropriate." Maj. op. at 1252-53. The New York Court of Appeals presented a convincing rejection of the New York statute at issue:

We conclude that section 122 is subject to 0907 and cannot pass 0907 strict scrutiny, notwithstanding title IV's authorization. Because title IV authorizes each State to extend the ineligibility period for Federal Medicaid beyond the mandatory five years and terminate Federal Medicaid eligibility for certain refugees and asylees after seven years ..., it is directly in the teeth of Graham insofar as it allows the States to "adopt divergent laws on the subject of citizenship requirements for federally supported welfare programs."... Moreover, title IV goes significantly beyond what the Graham Court declared constitutionally questionable. In the name of national immigration policy, it impermissibly authorizes each State to decide whether to disqualify many otherwise eligible aliens from State Medicaid. Section 122 is a product of this authorization. In light of Graham and its progeny, title IV can give section 122 no special insulation from strict scrutiny review. Thus, section 122 must be evaluated as any other State statute that classifies based on alienage. We hold that section 122 violates the Equal Protection Clauses of the United States and New York State Constitutions insofar as it denies State Medicaid to otherwise eligible PRUCOLs and lawfully admitted permanent residents based on their status as aliens.
Aliessa, 730 N.Y.S.2d 1, 754 N.E.2d at 1098-99 (internal citation omitted) (emphasis supplied); see Maj. op. at 1252-54.
2. Doe
In Doe, the Massachusetts Supreme Court applied rational basis analysis to a supplemental benefits program that imposed a residency requirement on qualified aliens applying for benefits. A key difference in the Massachusetts Supreme Court's analysis, noted in the majority opinion only by a parenthetical, is that the 1272 program affected in Massachusetts was a *1272 supplemental benefits program that was open to only aliens and designed to benefit only aliens; that is, the program was enacted by the state legislature to supplement federal benefits that had been taken away from Massachusetts aliens by Congress. See Doe, 773 N.E.2d at 411 ("It is undisputed that the Massachusetts Legislature was not required to establish the supplemental benefits program. It is also undisputed that the supplemental program provides no benefits to citizens, and that the only persons eligible for benefits are qualified aliens.").
The court held it axiomatic that the supplemental program crafted to restore benefits to aliens could not discriminate against aliens and in favor of citizens. Id. ("[W]e are left to determine what standard of review to apply to a State law that does not discriminate between citizens and aliens."). Thus, noting the "critical differences" between the New York and Massachusetts statutes, 773 N.E.2d at 412, and heeding the admonitions of Nyquist that strict scrutiny applies to a statute that "discriminate[s] only within the class of aliens," 432 U.S. at 8, 97 S.Ct. 2120, the Massachusetts Supreme Court determined that Aliessa's strict scrutiny review could not apply. See Doe, 773 N.E.2d at 412 (distinguishing Nyquist: Unlike the New York statute at issue there, "the Massachusetts statute establishes a program open only to aliens, imposes a residency requirement on all who are qualified to apply for its benefits, and does not harm aliens by barring them from the benefits of the program."); id. at 413 (distinguishing Aliessa: "Unlike the supplemental program created [by the Massachusetts Legislature], the amended New York State Medicaid program presented ... the very paradigm so definitively addressed in Graham."). It is this distinction between the Colorado and Massachusetts statutes that mandates we view S.B. 03-176 through the lens of strict scrutiny. Thus, the Massachusetts court did not reach a decision inconsistent with Aliessa; in fact, the court cited Aliessa with approval and carefully distinguished its holding. Id. at 413.
IV. Other Arguments Presented by the Defendant
The defendant vehemently resists the application of strict scrutiny to S.B. 03-176 and professes three additional or alternative reasons to apply rational basis examination: (1) Colorado's need to protect its fiscal integrity; (2) S.B. 03-176 reallocates federal, not state benefits; and (3) PRWORA actually authorized the enactment of S.B. 03-176. None of these arguments is persuasive.

A. Fiscal Integrity

First, the defendant cites Colorado's vital economic interest in promulgating S.B. 03-176, arguing that the measure is necessary to balance the $850 million budget deficit. The State estimates that it will save $5.9 million (or 0.67% of the total $869 million in the State's budget deficit) annually by eliminating medical coverage to legal aliens.

In applying a rational basis test to the pro-alien statute at issue in Doe, the Massachusetts Supreme Court clearly considered the purpose and the "clearly noninvidious intent behind [the program's] promulgation" when it applied the rational basis test. See Maj. op. at 1254 (quoting Doe, 773 N.E.2d at 414) (emphasis supplied). Here, we only have the self-professed state interest of fiscal integrity, which has been squarely rejected by the United States Supreme Court:

1273

[A] State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish *1273 such a purpose by invidious distinctions between classes of its citizens. The saving of welfare costs cannot justify an otherwise invidious classification.

Graham, 403 U.S. at 374-75, 91 S.Ct. 1848 (internal quotation marks omitted) (emphasis supplied). The impact upon the State is "not very significant in comparison to the irreparable harm that would be caused" to those denied coverage. Kansas Hosp. Ass'n v. Whiteman, 835 F.Supp. 1548, 1553 (D.Kan.1993). Furthermore, "[t]he state is in a much better position to absorb the budgetary impact of delayed implementation of the amendment as compared to individual plaintiffs." Id.[3] Colorado's suggestion that the preservation of its fiscal integrity, through a projected savings of $5.9 million, warrants the upholding of S.B. 03-176 is not sustainable.

B. S.B. 03-176 Reallocates Federal, not State Benefits

Second, the defendant's argument that S.B. 03-176 is essentially a reallocation of federal, not state, benefits does not insulate its discriminatory program from strict scrutiny review. The defendant emphasizes Congress's reading of Graham's holding as one curtailing the states from "deny[ing] legal permanent residents State-funded assistance." Aple's Br. at 14 (quoting H.R. Conf. Rep. No. 104-725 (1996), U.S.Code Cong. & Admin.News 1996 p. 2105) (emphasis supplied). In addition, the district court denied a preliminary injunction largely because "[t]he program at issue here is not a state-only funded program as in Graham and Aliessa." 257 F.Supp.2d at 1326. S.B. 03-176 impacts a "jointly funded component of Medicaid." Id.
However, Graham's strict scrutiny analysis was in no way limited to state-funded programs. See Graham, 403 U.S. at 367, 91 S.Ct. 1848 (noting that the Arizona state program was "supported in part by federal grants-in-aid and administered by the States under federal guidelines"); id. at 368, 91 S.Ct. 1848 (noting that Pennsylvania's general assistance program was "not federally supported"); id. at 376, 91 S.Ct. 1848 (striking down both statutes for failure to satisfy strict scrutiny); see also Nyquist, 432 U.S. at 3 n. 2, 97 S.Ct. 2120 (applying strict scrutiny to loan program in question which was "largely subsidized by the Federal Government"). Thus, the defendant's reliance on the statute's misreading of Supreme Court case law is unpersuasive.
1274 *1274 In a similar vein, the defendant maintains that Congress has devolved its plenary powers to determine alien eligibility for welfare benefits, by "allowing states to choose to extend benefits to other subgroups [of aliens] when administering federal programs." Aple's Br. at 14. As noted above, plaintiffs concede that PRWORA grants the states the power to act under § 1612(b). As such, this analysis only applies to Part III of Graham, not to Graham's strict scrutiny analysis in Part II of the opinion.
"The authority to control immigration 0907 to admit or exclude aliens 0907 is vested solely in the Federal government." Truax v. Raich, 239 U.S. 33, 42, 36 S.Ct. 7, 60 L.Ed. 131 (1915); see also The Federalist No. 32, at 201 (Alexander Hamilton) (Jacob E. Cook, ed., 1961) (noting that the federal government had exclusive jurisdiction

where the Constitution granted Congress the power to make uniform laws, and "[t]his must necessarily be exclusive; because if each State had power to prescribe a DISTINCT rule, there could be no UNIFORM rule"). To permit a comprehensive Congressional devolution of its exclusive powers would be tantamount to saying "that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the states as chose to offer hospitality." Truax, 239 U.S. at 42, 36 S.Ct. 7. To allow such divergence and discrimination in the welfare rights arena would be to ignore the "crucial role ... such benefits play in providing the poor with `means to obtain essential food, clothing, housing, and medical care.'" Nyquist, 432 U.S. at 13, 97 S.Ct. 2120 (Burger, C.J., dissenting) (quoting Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); id. ("Welfare benefits [are] essential to sustain life for aliens [eligible for such benefits.]")). See also Plyler, 457 U.S. at 219 n. 19, 102 S.Ct. 2382 ("[I]f 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.") (citing DeCanas, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43) (preemption case focusing on supremacy clause and the INA)).
As the New York Court of Appeals noted, "[i]f the rule were uniform, each State would carry out the same policy under the mandate of Congress." Aliessa, 730 N.Y.S.2d 1, 754 N.E.2d at 1098 (emphasis supplied); see Wendy Zimmermann and Karen C. Tumlin, Patchwork Policies: State Assistance for Immigrants Under Welfare Reform (The Urban Institute 1999), available at http://www.urban.org/url.cfm?ID=309007. To apply PRWORA as the defendants interpret it, Congress is advocating "potentially wide variation based on localized or idiosyncratic concepts of largesse, economics and politics," which only "exacerbates the lack of uniformity." Aliessa, 730 N.Y.S.2d 1, 754 N.E.2d at 1098. Moreover, the United States concedes that PRWORA promotes such variations noting that it "represents a compromise on a difficult public policy question because it enables some States to be relatively generous without imposing an unacceptably heavy burden on other States." U.S. Br. at 17 (emphasis supplied). To allow a patchwork of state policies to prop up this admitted compromise does not support Colorado's construction of PRWORA. Indeed, the government's candid and proper admission that Congress could not decide on a federal policy but achieved a "compromise" clearly reveals no uniform policy was adopted.
C. PRWORA Authorized the Enactment of S.B. 03-176
1275 Third, the defendant argues that Title IV of PRWORA authorized Colorado's enactment *1275 of S.B. 03-176. To apply separate standards of review to states that act pursuant to PRWORA would lead to "an absurd construction of PRWORA." Aple's Br. at 11. The benefits Congress delineated as "optional" become "mandatory." Id.
The Supreme Court rejected a similar argument put forth by Arizona in Graham. In Part IV of its opinion, the Court considered, and rejected, Arizona's argument that the durational requirement was actually authorized by federal law. The Court stated that "[o]n its face, the statute does not affirmatively authorize, much less command, the States to adopt durational residency requirements or other eligibility restrictions applicable to aliens." 403 U.S. at 381, 91 S.Ct. 1848.
Under this theory, there would be few if any limits to a state's ability to discriminate against legal immigrants once given the "option." In Graham, the Court considered the legislative history of the Congressional acts at issue, and rejected this theory. The Court noted that to the extent Congress sought to "authorize discriminatory treatment of aliens at the option of the States ... serious constitutional questions are presented." Graham, 403 U.S. at 382, 91 S.Ct. 1848 (emphasis supplied).
In addition, Congress itself anticipated that state laws that alter legal aliens' eligibility for jointly funded benefit programs enacted pursuant to § 1607 would be subject to strict scrutiny. Section 8 U.S.C. § 1601(7) states:
With respect to the State authority to make determinations concerning the eligibility of qualified aliens for public benefits in this chapter, a State that chooses to follow the Federal classification in determining the eligibility of such 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. Congress clearly anticipated that state statutes would be challenged, and hoped that in explaining Graham and enunciating that such state policies would satisfy Graham's strict scrutiny, the state programs might survive strict scrutiny.[4]See H.R.REP. No. 104-651, at 1445-46. But in our constitutional structure it is for the courts to "say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and, "[a]lthough the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they 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." Graham, 403 U.S. at 382, 91 S.Ct. 1848 (emphasis supplied). As a result, S.B. 03-176 would be still subject to strict scrutiny.
V. Conclusion
"Resident aliens are obligated to pay their full share of the taxes that support the assistance programs [at issue.]" Nyquist, 432 U.S. at 12, 97 S.Ct. 2120. The Court's "previous decisions have emphasized that immigrant aliens 1276 have been *1276 lawfully admitted to this country for permanent residence and share many of the normal burdens of citizenship, such as the duty to pay taxes and to serve in the Armed Forces." Toll, 458 U.S. at 44, 102 S.Ct. 2977 (Rehnquist, J., dissenting) (citing Nyquist, 432 U.S. at 12, 97 S.Ct. 2120; Hampton, 426 U.S. at 107 n. 30, 96 S.Ct. 1895; Sugarman, 413 U.S. at 645, 93 S.Ct. 2842; Graham, 403 U.S. at 376, 91 S.Ct. 1848).
"[T]he denial of benefits cannot be justified on the grounds that immigrants are an especially poorly motivated group that is unlikely to achieve economic self-sufficiency." Kaestner, supra, at 4. We cannot forget that the laws that work to the disadvantage of those under represented in the political process are subject to a "more searching judicial inquiry" than the inquiry that the majority applies. Carolene Prods. Co., 304 U.S. at 152 n. 4, 58 S.Ct. 778. If Congress wants to pass a uniform policy under its plenary immigration powers, it is certainly free to do so. But our "constitutional law appropriately exists," as Dean Ely so ably stated, "for those situations where representative government cannot be trusted, not those where we know it can." ELY, supra at 183. The Constitution protects minorities, which we all are, in one way or another.
Accordingly, I dissent.[5]
[1] This history is certainly counter-intuitive for a nation populated not just at the outset, but through its history, by recurrent waves of immigration. For example "early twentieth-century restrictionists viewed Italians and Eastern Europeans (especially Jews) as outside their `race.'" Hiroshi Motomura, Whose Alien Nation?: Two Models of Constitutional Immigration Law, 94 Mich. L.Rev.1927, 1931 (1996). This is particularly morally ironic, noting that Jewish law is one of the major foundations for modern equal protection doctrine. See Richard Elliott Friedman, Commentary on the Torah 385 (2001) ("And if an alien will reside with you in your land, you shall not persecute him. The alien who resides with you shall be to you like a citizen of yours, and you shall love him as yourself, because you were aliens in the land of Egypt. I am the YWWH, your God." (trans. of Leviticus 19:33-34)) (emphasis supplied). "Earlier and in like manner, many who sought to preserve American `racial purity' in the midnineteenth century did not consider the Irish to belong to the same race as Anglo Saxon Protestant immigrants." Motomura, supra, at 1931.
[2] Although strict scrutiny review is the general rule when states create classifications based on alienage, the Supreme Court has created two discrete and specific exceptions. The Court recognizes a self-government exception that applies when a state creates a law excluding aliens from participation in its democratic political institutions. Only rational basis review is used under this exception. Thus, a "State, in the course of defining its political community, may, in appropriate circumstances, limit the participation of noncitizens in the States' political and governmental functions." Toll, 458 U.S. at 12 n. 17, 102 S.Ct. 2977 (citing Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982); Ambach v. Norwick, 441 U.S. 68, 72-75, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979); Foley v. Connelie, 435 U.S. 291, 295-96, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978); Sugarman v. Dougall, 413 U.S. 634, 646-49, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973)).
Second, the Supreme Court has recognized an exception to the application of strict scrutiny in one case concerning undocumented or illegal aliens. In Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786

(1982), the Supreme Court applied an intermediate level of scrutiny and declared unconstitutional a Texas law that provided free public education for children of citizens and lawfully admitted aliens, but required undocumented aliens to pay for schooling for their children. The Court held that strict scrutiny was inapplicable because illegal aliens cannot be treated as a suspect class. Id. at 223, 102 S.Ct. 2382. However, the Court applied more than rational basis review, emphasizing the innocence of the children involved and the importance that such children receive an education. Id. at 223-24, 102 S.Ct. 2382. Here, of course, we are dealing with legal aliens, who pay taxes and are eligible to serve in the military.
[3] Apart from the legal problems this statute faces, it is not completely clear that it would pass a rational basis test. As noted, the aliens affected by S.B. 03-176 include those who pay taxes 0907 just like all other law-abiding Coloradans 0907 and those legal aliens who serve in the military. Furthermore, there is no indication that immigrants will require more public assistance that similarly situated natives. See Robert Kaestner, "Should Immigrants Be Singled Out?" 15 POL'Y F. 1 (2002). In fact, recent studies have indicated that "immigrants are more likely than similarly situated natives to achieve economic self-sufficiency," irrespective of public benefits. Id. at 3. "[I]mmigrants are not a group in need of unusually strong incentives to become economically self-sufficient." Id. The denial of benefits will not necessarily reduce the composition or number of immigrants locating in any particular state. Id.
Colorado's enactment of S.B. 03-176 was largely based on reallocating public resources in an effort to achieve a balanced budget, Aple's Br. at 28, and this decision appears to have no compelling rationale, apart from "antiimmigrant sentiment." Kaestner, supra, at 3. Noting that rational basis tests require more rationality than they used to, it is not clear to me on this record that the statute meets rationality. I do not reach this, however, because the proper test is strict scrutiny, and it is clear that "level of scrutiny is essentially dispositive of [this] litigation." 257 F.Supp.2d at 1325.
[4] As indicative of the true workings of the Colorado statute, I also emphasize the language of the Notice of Medicaid Closure form that was to be sent to recipients that did not return the redetermination packet. See Maj. op. at 1260. The Notice states that
The household member(s) listed above lost their Medicaid because a new state law changed the citizenship requirements for the program.
Aplt's App. at 136 (emphasis supplied). Question (2) of the redetermination packet asked "Is this person a U.S. citizen?" Id. at 132. Clearly, the State recognizes that the entirety of the class is affected.
[5] Because I would reverse the district court's denial of a preliminary injunction to the plaintiffs, I do not separately address the procedural violations alleged by plaintiffs. To the extent that the majority reverses the district court's denial of a preliminary injunction for purposes of redetermination, I agree with this holding.
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