Constitutional Formalism Denies Aid to Legal Immigrants

JURIST Guest Columnist Robert Westley of the Tulane University Law School says that a recent Ninth Circuit decision upholding the Washington state's cut to a food aid program for legal immigrants is a prime example of how constitutional formalism justifies leaving some members of the political community without the basic necessities...

As for the black letter law, the US Court of Appeals for the Ninth Circuit most likely got it right in the case of Pimentel v. Dreyfus. The case concerned an immigrant mother of three children who relied in part on the state-administered federal food stamp program in Washington state to feed her family. Following the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, her eligibility for that form of assistance was eliminated due to her status as a non-qualifying legal immigrant. However, Pimentel remained eligible for food aid under a new program instituted by Washington state that covered those whose status as immigrants made them ineligible to receive further assistance under the federal program. In 2010, the state-based program under which Pimentel had been receiving benefits since 2005 was targeted for elimination due to budget concerns. In Pimentel v. Dreyfus the Ninth Circuit determined that Pimentel, and the class of persons she represented — a subcategory of legal immigrants — had no right to compel Washington state to continue providing the aid they had previously received.

The Ninth Circuit's analysis centered on the standard of review that should apply to the equal protection and due process claims in Pimentel's complaint, in order to determine whether the injunction issued by the district court was viable. The likelihood of success of these claims on the merits was seen to depend on the standard of review applied. This is where constitutional formalism enters the picture.

The Ninth Circuit found that the district court erred when it applied a strict scrutiny standard of review to Washington's repeal of its food aid program. Pimentel had been successful in convincing the district court that as a class representative of a subcategory of legal immigrants her case fit the category of state discrimination against aliens, which is typically subject to strict scrutiny, as seen in Graham v. Richardson. However, the Ninth Circuit concluded that there was no threshold showing of discrimination since (1) the entire state-based program had been repealed, and (2) the state-based program and the federal food stamp program were not comparable programs. In the words of the Ninth Circuit, "To state an equal protection claim of any stripe, whatever the level of scrutiny it invites, a plaintiff must show that the defendant treated the plaintiff differently from similarly situated individuals." By the magic of constitutional formalism, Pimentel and the class of persons she represented — approximately 3,491 households — were never discriminated against because none of them were eligible for federal food aid, and all had been excluded from receiving further aid from the state.

Moreover, the Ninth Circuit did not consider any alternative bases for Pimentel's claim of discrimination to be valid. She has no substantive rights as a poor person in need of food assistance in order to feed her family. Cf. Shapiro v. Thompson and Dandridge v. Williams. The Ninth Circuit made clear that it does not accept the validity of her procedural due process claim since it is apparently untethered to a cognizable property interest.

Whatever property interest she might have had in Washington's food assistance program was extinguished by the repeal of the program, and she conceded that she lacked any property interest in the federal food stamp program from which she was likewise excluded. Essentially, the Ninth Circuit made clear that Pimentel and her class were the temporary beneficiaries of the state's charity, without permanent rights to assistance in gaining access to the necessities of life, and lacking any standing to complain of discrimination when that assistance was withdrawn.

It is nevertheless inescapable that what the court's interpretation of the law permits is not merely an act of leveling down — elimination of a state benefit to all recipients within a defined class — but leveling down with a vengeance. This can be seen in the court's construction of the (former) beneficiary class as not comparable to other food aid recipients within the state of Washington. To the extent that Pimentel and the class of persons she represented are seen as sui generis, the Ninth Circuit believed that it is not possible to compare them to any other state food aid recipients, and therefore it is impossible for the state to discriminate against them in the policy choice of how or whether to distribute food aid at all. According to the court's analysis, these class members can only be compared to each other, but not to others outside of the class composed of a subcategory of legal immigrants who are not qualified to receive federal food assistance under the Personal Responsibility and Work Opportunity Reconciliation Act. As a unique class of individuals who cannot by definition be compared to others, no claim of discrimination against them is cognizable by the court.

The Ninth Circuit's decision in Pimentel is reminiscent of the Supreme Court's decision in Geduldig v. Aiello. In Geduldig, the Court rejected an attack on a California disability insurance program that excluded pregnancy-related disabilities from coverage. Under a rational basis review standard, rather than the heightened scrutiny appropriate to claims of gender discrimination, the Court held that the state's limitation on insurance coverage was justified by its legitimate interest in maintaining the self-supporting nature of its insurance program. Significantly, the Court concluded that Geduldig did not involve gender discrimination because the insurance program did not "exclude anyone from benefit eligibility because of gender but merely removes one physical condition — pregnancy — from the list of compensable disabilities." Writing for the Court, Justice Stewart went so far as to assert that the program's discrimination was not gender-based since it simply divides potential recipients into two groups — pregnant women and non-pregnant persons. In constructing the subcategory of pregnant women as sui generis and therefore not comparable to other insurance benefit recipients, the Court overlooked the fact that only women can become pregnant.

The Court's exercise in constitutional formalism in Geduldig v. Aiello was eventually repudiated in 1978 under the provisions of the Pregnancy Discrimination Act, which amended Title VII by defining the terms relating to discrimination "because of sex" or "on the basis of sex" to include discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." Unfortunately for the plaintiffs in Pimentel v. Dreyfus, however no legislative relief from judicial constitutional formalism seems likely in the near term while state and federal budgetary distress persists. In the meantime, Pimentel must serve as yet another signpost in the failed American social revolution, which sought to make access to the basic necessities of life a right for all members of our political community.

Robert Westley is the LOCHEF Professor of Legal Ethics & Professional Responsibility at Tulane University Law School. He has a PhD in philosophy from Yale University, and his dissertation topic was "Fourteenth Amendment Jurisprudence: Race and the Rights of Groups." In 1997, he chaired the Ninth Annual Critical Race Theory Workshop, a working meeting of young legal scholars addressing issues concerning communities of color. He is a former member of the Board of Governors of the Society of American Law Teachers.

Suggested citation: Robert Westley, Constitutional Formalism Denies Aid to Legal Immigrants, JURIST - Forum, Mar. 17, 2012, http://jurist.org/forum/2012/03/robert-westley-pimentel.php.



This article was prepared for publication by Zach Gordon, an assistant editor of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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