Korab

dissenting:

The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. It is • settled law that alienage is a suspect class and that state laws that discriminate against aliens who are lawfully present in this country generally violate the Equal Protection Clause unless they can withstand strict scrutiny.

*599 In this case, the State of Hawaii discriminated against aliens from three Micronesian nations who were lawfully present in this country, based on the terms of Compacts of Free Association those nations entered with the United States (“COFA Residents”), by limiting the state-funded health benefits available to them. The state could provide to them the same benefits it provides to citizens. It had, in fact, provided the same benefits to COFA Residents for fourteen years, until budgetary woes motivated the state to try to save money, by exercising an option given to it by Congress.

But the state’s fiscal condition does not provide the compelling justification required under the Equal Protection Clause to justify unequal treatment of…

Opinion by Judge McKEOWN; Concurrence by Judge BYBEE; Dissent by Judge CLIFTON.

OPINION

This case presents yet another challenge to the complex area of state-funded benefits for aliens. In enacting comprehensive welfare reform in 1996, Congress rendered various groups of aliens ineligible for federal benefits and also restricted states’ ability to use their own funds to provide benefits to certain aliens. See 8 U.S.C. § 1601 et seq. As a condition of receiving federal funds, Congress required states to limit eligibility for federal benefits, such as Medicaid, to citizens and certain aliens. For state benefits, such as the Hawaii health insurance program at issue herd, Congress essentially created three categories of eligibility. The first category — full benefits — requires states to provide the same benefits to particular groups of aliens, including certain legal permanent residents, asylees, and refugees, as the state provides to citizens. ’ Id. § 1622(b). Recipients in this category also benefit from federal funds. Id. § 1612(b)(2). The second category — no benefits — prohibits states from providing any benefits to certain aliens, such as those who are in the United States…

concurring and concurring in the judgment:

I concur in full in Judge McKeown’s thoughtful opinion for the court. Her opinion captures the unsettled nature of the current state of the law and offers a way through the morass of conflicting approaches. I write separately to explain why the law of alienage remains so unclear and how we might better approach it.

The courts’ reaction to state implementation of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”) demonstrates the conundrum of our current Equal Protection doctrine as applied to aliens. Compare Soskin v. Reinertson, 353 F.3d 1242, 1254 (10th Cir.2004) (applying rational basis scrutiny to Colorado’s PRWORA-based alien eligibility restrictions); Khrapunskiy v. Doar, 12 N.Y.3d 478 , 881 N.Y.S.2d 377 , 909 N.E.2d 70, 76 (2009) (holding that the Equal Protection Clause does not apply to New York’s PRWORA-based alien eligibility restrictions); Hong Pham v. Starkowski 300 Conn. 412 , 16 A.3d 635, 661 (2011) (applying rational basis scrutiny to Con *585 necticut’s PRWORA-based alien eligibility-restrictions); with Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655 , 946 N.E.2d…