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July 24, 1997

JUAN THOMAS ABREU, et al., Plaintiffs, against JOHN J. CALLAHAN, et al., Defendants. THE CITY OF NEW YORK, et al., Plaintiffs, -against- THE UNITED STATES OF AMERICA, et al., Defendants.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 For many years, lawful resident aliens who were impoverished and either blind, disabled, or aged were entitled to receive Supplemental Security Income ("SSI") benefits and food stamps. Section 402 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter the "Welfare Reform Act"), *fn1" which was signed into law on August 22, 1996, disqualified many lawful resident aliens -- including those who already were in the United States and already receiving or eligible for SSI and food stamps -- from receiving those benefits.

 This case does not present the question whether Congress may provide that aliens who enter or become permanent residents of the United States on or after August 22, 1996 may not receive welfare benefits. Plaintiffs, however, contend that the application of Section 402 to persons who already were legal resident aliens on the date the Welfare Reform Act became law violates the Due Process Clause of the Fifth Amendment. They seek a preliminary injunction barring its enforcement against such persons. Defendants seek dismissal of the complaints.


 The Programs at Issue

 The SSI program provides subsistence-level income for the most disabled and financially needy members of our society. *fn2" The program was created in order to meet "the most basic needs" of impoverished aged, blind and disabled individuals. *fn3"

 In order to qualify for SSI benefits, one must be at least 65 years of age, have corrected visual acuity of 20/200 or less in the better eye or equivalent loss of vision, or be "unable to engage in any substantial gainful activity" by reason of a medically determinable impairment or combination of impairments lasting at least twelve months. *fn4" Moreover, eligibility is restricted to applicants with no more than $ 2,000 in resources and whose income (including any "deemed" income) is below the applicable SSI benefit level. *fn5"

 The Food Stamp Program was enacted in 1964 and is administered by the Department of Agriculture. Based on a congressional finding that "the limited food purchasing power of low-income households contributes to hunger and malnutrition among members of such households," *fn6" the program provides stamps that are used as scrip for the purchase of foodstuffs by eligible persons. *fn7" Eligibility is restricted to households with net incomes below the federal poverty level and resources below $ 2,000 or, if a household member is disabled or age 60 or older, below $ 3,000. *fn8" Any household that includes a recipient of SSI automatically is eligible for food stamps. *fn9"

 The Welfare Reform Act

 The Welfare Reform Act was a result of extensive legislative activity concerning revision of welfare benefit programs funded by the federal government. This activity took place against a background of increasing numbers of immigrants on the welfare rolls at even more sharply increasing costs. According to a General Accounting Office report issued in February 1995, the number of immigrants receiving SSI increased from 151,207 in 1983 to 683,178 in 1993. *fn10" The proportion of SSI recipients who were not citizens grew from 6 percent in 1986 to 12 percent in 1994. *fn11" The growth rate in non-citizen SSI cases, although it had tapered off from even higher earlier levels, remained almost double the rate of increase among citizens. *fn12" This increase in the noncitizen case load was compounded by the increase in the cost of benefits, which quadrupled overall between 1980 and 1996. *fn13"

 Section 402(a)(1) of the Welfare Reform Act provides, with certain exceptions, that "notwithstanding any other provision of law and except as provided in paragraph (2), an alien who is a qualified alien . . . is not eligible for" SSI or food stamps. *fn14" The term "qualified alien" includes permanent resident aliens. *fn15" The exceptions include permanent resident aliens who have "worked 40 qualifying quarters of coverage as defined under Title II of the Social Security Act" *fn16" and veterans and certain military personnel on active duty and their spouses and children. *fn17" The effect of the Act therefore is to disqualify many, but not all, permanent resident aliens from receiving SSI and food stamps. Those permanent resident aliens excepted from Section 402(a)(1), however, remain eligible for SSI and food stamps on the same basis as citizens.

 Section 402, as recently amended, directs the Commissioner of Social Security, by September 30, 1997, to redetermine the eligibility of aliens who were receiving SSI benefits as of August 22, 1996, and to terminate SSI benefits for those who do not satisfy the newly enacted statutory requirements. *fn18" For aliens who were not receiving benefits on August 22, 1996, Section 402 was effective immediately. In addition, the Social Security Administration ("SSA") takes the position that "aliens with claims and appeals of denied claims [as of August 22, 1996] are subject to the eligibility rules [of Section 402] for the entire period in the life of the application, including the months before August 1996." *fn19" The SSA thus intends to deny benefits for periods prior to August 22, 1996 to lawful permanent residents whose applications had not yet been granted even if they were qualified under the eligibility rules applicable during those periods.

 The Impact of the Act

 The Individual Plaintiffs and the Alleged Class

 The individual plaintiffs, like all of those affected by the challenged aspect of this legislation, are aged, blind and/or totally disabled and extremely poor. Most were receiving SSI benefits and food stamps on August 22, 1996 and face termination of those benefits on September 30, 1997. *fn20" Those in the Abreu case seek to represent a class consisting of all lawful permanent residents in New York State, Connecticut and Vermont who (1) are or will be age 65 or older, blind, or disabled; (2) were residing in the United States on August 22, 1996, (3) either (i) were recipients of SSI on August 22, 1996, or (ii) are or will be applicants for SSI benefits, and (4) have been or will be disqualified from receiving SSI and food stamps by operation of Section 402. *fn21"

 The impact of this legislation on the individual plaintiffs and the class will be severe. The 1997 federal SSI benefit rate for one person is $ 484 per month. For SSI recipients living alone in New York State, this rate is increased by a New York State supplement to as much as $ 570, *fn22" still a figure far below the current poverty level of $ 657.50 per month. *fn23" According to a recent study, the average monthly rent of New York SSI recipients was $ 306. Thus, those who receive the total $ 570 benefit are left, on average, with $ 264 plus an average of $ 86 per month in food stamps to cover all of the other necessities of life. *fn24" Section 402 will deprive these individuals of SSI benefits and food stamps, thus leaving them with no income at all. If they succeed in qualifying for state public assistance benefits, the monthly incomes of those in New York City will drop to $ 352 per month, *fn25" leaving (after payment of rent) an average of $ 46 per month for food, transportation and all other needs. *fn26"

 Absent congressional action *fn27" or substantially increased state and local assistance, the practical consequences of Section 402 are likely to include evictions, homelessness, and inability to afford unreimbursed medical expenses. *fn28" Many members of the alleged class, and a number of the individual plaintiffs, have neither family nor sponsors to whom to turn. *fn29" Age and infirmity prevent a number of the individual plaintiffs and class members from becoming citizens and thus qualifying for benefits. There is no reason to suppose that the resources of private charitable institutions are sufficient to fill entirely the role previously filled by federal benefits.

 The City of New York

 Section 402 threatens the City of New York with serious consequences as well. According to data from the SSA, approximately 73,000 persons, almost 20 percent of the current SSI recipients in the City, are likely to be rendered ineligible for SSI and food stamps by this statute. *fn30" The City Office of Management and Budget ("OMB") estimates that in the fiscal year ended June 30, 1997, 2,000 applicants or prospective applicants who were in the country on August 22, 1996 would have qualified for SSI benefits and food stamps had Section 402 not gone into effect. *fn31"

 The financial burden that will be shifted to the City is substantial. Those who previously would have qualified for SSI may be eligible for public assistance benefits, such as home relief or aid to dependent children ("ADC"), funded in part by the City. *fn32" OMB estimates that the denial of SSI and food stamps to legal immigrants who were in the country before the date of the statute's passage will cost the City about $ 268 million in federal funds. *fn33" The cost to the City of providing home relief and ADC to eligible legal immigrants who were in this country prior to August 22, 1996 is estimated at $ 73 million for the fiscal year ended June 30, 1998. *fn34" Moreover, as home relief and ADC benefits are significantly lower than SSI benefits, legal aliens formerly eligible for SSI and food stamps are likely to experience increased poverty, which is likely to result in a variety of unquantifiable social costs for the City. *fn35"


 The complaints allege that Section 402 of the Welfare Reform Act is unconstitutional as applied to legal permanent resident aliens who resided in the United States before August 22, 1996 because it improperly discriminates between citizens and permanent resident aliens in violation of the Due Process Clause of the Fifth Amendment. Alternatively, they allege that the SSA's interpretation of Section 402 with respect to benefits for periods prior to August 22, 1996 is unlawful because (1) it applies the Welfare Reform Act retroactively in a manner contrary to settled law, and (2) the manner in which the SSA policy was promulgated did not comply with the notice and comment requirements of the Administrative Procedure Act. *fn36" Now before the Court are the government's motions to dismiss the complaints, the plaintiffs' motions for preliminary injunctions, and the motion of the Abreu plaintiffs to certify the alleged class pursuant to FED. R. CIV. P. 23.

 I. The Equal Protection Challenge

 A. The Level of Scrutiny

 The level of scrutiny applied to measures challenged on equal protection grounds often is dispositive. Measures which classify on the basis of race, for example, typically are assessed in terms of whether those measures are necessary to further a compelling governmental interest, *fn37" a standard that usually results in the invalidation of the measure under consideration. At the other extreme are enactments that involve, among other things, ordinary economic matters. In such cases, courts inquire as to whether the legislature rationally could have believed that the measure was an appropriate means to a legitimate end, *fn38" a standard so deferential to the legislature that statutes to which it is applied seldom are invalidated.

 Plaintiffs' position, though variously stated, is that Section 402 must be subjected to heightened constitutional scrutiny because aliens are a "suspect class" or a "discrete and insular minority" which frequently has been victimized by discrimination and which is singularly unable to protect itself through the political process because by its very nature its members are not entitled to participate in the political life of the nation. Whether measured by this exacting standard or even by the far more deferential rational basis test, plaintiffs maintain that there is insufficient connection between Section 402 and any legitimate governmental purpose to satisfy the Constitution. The starting point of analysis, however, is the determination whether plaintiffs are correct in urging that Section 402 be subjected to heightened rather than rational basis scrutiny.

 It is important to recognize at the outset that the plaintiffs to some extent mischaracterize Section 402. Contrary to their assertion, the statute does not discriminate between citizens and permanent resident aliens, treating all members of each group alike and the two groups differently. Rather, Congress has continued the eligibility of permanent resident aliens who have worked 40 calendar quarters qualifying under the Social Security Act, as well as that of veterans and certain military personnel and their families, for SSI benefits and food stamps on the same basis as United States citizens. The disadvantaged group consists of permanent resident aliens who lack these qualifications. Thus, the pertinent question is whether the distinction between two groups of lawful permanent resident aliens -- those who do and who do not have the requisite work histories -- is constitutional.

 The most directly relevant case is the Supreme Court's decision in Mathews v. Diaz.39 In Mathews, the Court considered the constitutionality of a provision of the Social Security Act which conditioned the eligibility of aliens for participation in the Medicare Part B supplemental medical insurance program on continuous residence in the United States for five years and admission for permanent residence. The Court began its analysis by positing that aliens are not entitled to "all of the advantages of citizenship or, indeed, to . . . be placed in a single homogenous legal classification." *fn40" It recognized that Congress, "in the exercise of its broad power over naturalization and immigration, ... regularly makes rules that would be unacceptable if applied to citizens" and that a distinction by Congress between citizens and aliens "does not in itself imply that such disparate treatment is 'invidious.'" *fn41" Having done so, however, it focused directly on the fact that the legislation there at issue did not in fact distinguish between citizens and aliens. Rather, like Section 402 of the Welfare Reform Act, it classified aliens into two groups -- one eligible for a federal benefit program and one not. *fn42" It proceeded to note the special importance of broad deference to the political branches in matters affecting aliens, "since decisions in these matters may implicate our relations with foreign powers ..." *fn43" And an unanimous Court proceeded to uphold the challenged statute under a deferential standard of review, saying:

"Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. In this case, the appellees have challenged two requirements - first, that the alien be admitted as a permanent resident, and, second, that his residence by of a duration of at least five years. But if these requirements were eliminated, surely Congress would at least require that the alien's entry be lawful; even then, unless mere transients are to be held constitutionally entitled to benefits, some durational requirement would certainly be appropriate. 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.
* * *

 If, as defendants contend, Mathews controls here, Section 402 must be tested against a deferential standard rather than subjected to the heightened scrutiny for which plaintiffs argue. Plaintiffs understandably argue that Mathews is distinguishable. In order properly to evaluate this contention, it is helpful to place Mathews in the broader context of the constitutional treatment of immigration measures and alienage classifications.

 1. The Plenary Immigration Power

 The only reference to immigration and naturalization contained in the Constitution states: "The Congress shall have Power To . . . establish an uniform Rule of Naturalization. . ." *fn45" Nevertheless, the Supreme Court long has held that "over no conceivable subject is the legislative power of Congress more complete than it is over" immigration. *fn46"

 The genesis of this strain in our jurisprudence, which frequently is referred to as the plenary power doctrine, was The Chinese Exclusion Case (Chae Chan Ping v. United States).47 The Supreme Court there upheld a statute that prohibited Chinese laborers, who had left the country with certificates issued under prior legislation and permitting them to return to the United States, from reentering the country. The Court viewed the federal power to exclude aliens as inherent in sovereignty, as distinguished from having been granted by any specific provision of the Constitution. It reasoned that actions with respect to the admission and exclusion of aliens are analogous to such national security matters as the exercise of the war power and implicate foreign relations concerns. In consequence, the Court said that actions by the political branches of government with respect to the admission and exclusion of aliens "are conclusive on the judiciary." *fn48"

 Scholars have criticized the plenary power doctrine widely, *fn49" but the Court repeatedly has applied it to preclude or sharply limit judicial review of congressional actions with respect to the admission and exclusion of aliens. *fn50" It arguably has expanded the doctrine beyond actions directly controlling the crossing of our national borders by aliens to actions affecting immigration only more remotely if it all. *fn51" The Court, moreover, has continued to ascribe undiminished validity to the doctrine. *fn52" Nevertheless, the Court over time has expanded the permissible scope of review incrementally. *fn53" While the standard applied in recent years has been phrased in slightly different terms and in any case remains deferential, *fn54" the Court's most recent formulation is that congressional action pursuant to the plenary power is subject to rational basis review. *fn55" And while the government maintains that the controlling standard in plenary power cases is the "wholly irrational" formulation articulated in Mathews v. Diaz, the government acknowledged at oral argument that there is no substantive difference between that standard and conventional rational basis review. *fn56" In consequence, Section 402(a)(1) must pass muster under the rational basis standard or its substantial equivalent even if it is viewed as an exercise of the plenary immigration power.

 To be sure, the fact that rational basis is the appropriate standard of review of exercises of the plenary immigration power does not necessarily dispose of the issue presented here. It may be argued that any action affecting the treatment of aliens admitted to this country may affect immigration or, for that matter, touch on foreign relations concerns. Hence, it is arguable that all such actions are within the plenary power. Yet it is far from evident that the foundation laid in The Chinese Exclusion Case and buttressed by the Court's subsequent plenary power cases supports such an imposing edifice. The Court, for example, repeatedly has held that aliens are entitled to some constitutional protections, holdings which demonstrate that the Court has not regarded all congressional judgments affecting aliens as "conclusive on the judiciary." *fn57" And the government acknowledged at oral argument that actions implicating fundamental substantive rights would warrant more searching judicial scrutiny. *fn58"

 Were there a material difference between the degree to which plenary power measures are subject to judicial review and the level of scrutiny applied to other classifications of aliens, delineation of the precise sphere of the plenary power doctrine would be indispensable. It appears, however, that there is not.

 Government distinctions among those subject to its power evoke a core value of our nation, the premise that our public institutions "must govern impartially." *fn59" This value is most prominent in the Equal Protection Clause of the Fourteenth Amendment, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." *fn60" It informs also the Due Process Clause of the Fifth Amendment, which has been held to impose restraints on the federal government comparable to those imposed on the states by the Equal Protection Clause. *fn61" Yet the differences in the language of these constitutional provisions, as well as the differing roles of the national and state governments in our federal system, result in different treatment of actions by federal and state government, respectively, which differentiate (i) between aliens and citizens and (ii) among groups of aliens.

 Were the distinction drawn by Section 402 a feature of state legislation, the case would be governed by Graham v. Richardson,62 much of the language of which at first blush appears equally applicable here. The Supreme Court there struck down state statutes that conditioned receipt of welfare benefits upon the recipient's possession of United States citizenship or upon his or her residence in this country for a specified number of years. The Court began by noting that the Equal Protection Clause speaks of "persons," thus affording protection to citizens and aliens alike. *fn63" It referred to aliens as "a prime example of a 'discrete and insular' minority . . . for whom . . . heightened judicial solicitude is appropriate." *fn64" And it concluded that the statutes at issue did not serve interests sufficiently compelling to justify the distinction they drew, given the heightened standard of review. *fn65" But the Court went on to adduce "an additional reason why the . . . statutes . . . do not withstand constitutional scrutiny . . ." *fn66" Noting that the admission of aliens, their naturalization, and the regulation of their conduct prior to naturalization are within the exclusive powers of the federal government, the Court held also that the statutes at issue "encroach upon exclusive federal power [and] are constitutionally impermissible." *fn67"

 Graham thus suggested what the Supreme Court later made explicit in Hampton I -- "the Equal Protection and Due Process Clauses are not always coextensive. Not only does the language of the two Amendments differ, but more importantly, there may be overriding national interests which justify selective federal legislation that would be unacceptable for an individual State." *fn68" Graham and other cases dealing with state classifications based on alienage therefore have little bearing here.

 Viewed against this background, Mathews v. Diaz comes sharply into focus. The case stands for the proposition that the level of judicial scrutiny of federal classifications involving alienage is far more deferential than that applied to the states. *fn69" This difference is rooted in part in the difference in the language of the constitutional provisions applicable to the federal and state governments, respectively. It is grounded also in the national interest in regulating the circumstances in which aliens are permitted to reside in the United States, an interest which derives from uniquely federal foreign relations and war power concerns *fn70" and which finds no counterpart at the state level.

 This is confirmed by the great weight of authority in the lower federal courts including a decision in our own Circuit. In United States v. Duggan,71 for example, the Second Circuit applied the rational basis test to uphold against an equal protection challenge provisions of the Foreign Intelligence Surveillance Act *fn72" that distinguished between citizens and aliens. *fn73" The Duggan Court based its holding on the deference the Supreme Court in ...

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