new topic: Does Graham v. Richardson survive

[Sanford Levinson]

I have, in my course on the Constitution and the Welfare State, recently
been teaching the "alienage cases."  I am struck by the following, from
Title IV of the Personal Responsiblity and Work Opportunity Reconciliation
Act of 1996m "Restricting Welfare and Public Benefits for Aliens":

(7) With respect to the State authority to make determinations concerning
the eligibility of qualified aliens for public benefits in this title, a
State that chooses to follow the Federal classification in determining the
eligibility of such aliens for public assistance [i.e., that aliens cannot
take advantage of "any Federal means-tested public benefit for a period of
5 years beginning on the date of the alien's entry"] shall be considered to
have chosen the least restricting means available for achieving the
compelling governmental interest of assisting the aliens be self-reliant in
accordance with national immigration policy."

Some questions:

1)  Does this in effect overrule Graham v. Richardson, which held, at least
in one section of the opinion, that the Equal Protection Clause barred
differentiating between citizens and aliens with regard to eligibility for
welfare benefits?

2)  If Boerne, Morrison, etc., are good law, why isn't this section of
Title IV flatly unconstitutional?

3)  We might, of course, redescribe Grham as a case of federal pre-emption,
and say that Congress had, as of 1971, not clearly indicated that states
were free to discriminate against aliens with regard to their welfare
programs.  But now the question becomes whether there are limits to
"conditioning entry" on the waiver of access to welfare-state programs.  I
assume that it would be unconstitutional, say, for Congress to say that no
public funds need be expended on providing an indigent alien with counsel
if he/she is arrested and charged with a criminal act punishable by a term
in jail.  If the analysis is that such aid is one of the few "affirmative
rights" demanded by the Constitution, while the welfare state is simply a
discretionary set of entitlements passed by a generous legislature, then
could Congress authorize states not to provide public education to aliens,
given that the Court has never held that such education is a fundamental
right.

4)  Why has the 1996 Act not been litigated on this point (or has it, and I
am, as is often the case, simply ignorant of the relevant cases)?  One
would think that my question is a fairly obvious one?  Are pro-alien
lawyers (for good reason) reluctant to litigate the issue because they
believe that the current majority of the Court would adopt the Chief's
reasoning in a bunch of alienage cases and overrule Graham and everything
else that suggests that aliens are subject to some degree of "special"
protection by the judiciary?

I assure that none of these questions is rhetorical.  I'm genuinely
confused about what I should be teaching my students these days.

sandy