The Justice Department is requiring every state that accepts federal welfare funds to report illegal aliens to DHS or risk losing billions in annual TANF and SSI money, reversing a nearly 30-year-old interpretation.
The Justice Department has issued a sweeping legal opinion requiring every state that accepts federal welfare money to report illegal aliens known to be within its borders to the Department of Homeland Security, or risk losing billions of dollars in annual funding. The Sept. 1 opinion from the Office of Legal Counsel reverses a Clinton-era interpretation that had governed the reporting requirement for nearly three decades.
The ruling applies to all 50 states, the District of Columbia, and U.S. territories that participate in the Temporary Assistance for Needy Families (TANF) and Supplemental Security Income (SSI) programs. Federal TANF grants alone exceed $16.4 billion per year, giving the enforcement push serious financial teeth.
The new opinion interprets the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the landmark welfare reform law signed by President Bill Clinton. The Justice Department argues that when a state accepts federal TANF or SSI funds, the entire state government -- including every component agency -- is bound by federal law to share information with DHS about individuals the state knows to be unlawfully present.
That reading withdraws a 1998 Office of Legal Counsel opinion that confined the reporting duty to the specific state agency administering the federal program in question. Deputy Assistant Attorney General Joshua Craddock, who authored the new opinion, wrote that the earlier interpretation was based on flawed legal reasoning.
We are forced to conclude that our prior opinion erred in its analysis and result, Craddock wrote. He also rejected the argument that decades of congressional silence amounted to endorsement of the narrower reading, noting that the fact that subsequent congresses have not affirmatively corrected the 1998 opinion does not alter the plain meaning of the statute.
Assistant Attorney General T. Elliot Gaiser, who leads the Office of Legal Counsel, framed the clarification as a matter of basic fairness to American taxpayers. Congress wrote this requirement plainly, Gaiser said in a statement. When a state chooses to participate in TANF, it accepts the obligation to report illegal aliens in the United States.
Tax dollars intended to help vulnerable Americans should not perversely encourage illegal entry into the United States, but rather should reinforce our laws and our borders, Gaiser added.
Administration officials stressed that the opinion imposes no new burden on states that were already following the law. Our clarification does not impose new obligations on states, Craddock said. It simply restores the original meaning of the statute Congress enacted and ensures that DHS receives the information it is legally entitled to.
The opinion also tightens the standard for when a state can claim ignorance of an illegal alien's status. A 2000 federal regulation had required a formal legal finding, confirmed by immigration authorities, before the reporting obligation kicked in. Craddock said that bar was set far too high.
An agency cannot avoid the obligation by deliberately refusing to consider readily available information or by insisting on a formal adjudication that the statute nowhere requires, he wrote in a footnote. In plain terms, states cannot bury their heads in the sand, decline to check records they already hold, and then claim they knew nothing.
The new policy applies prospectively only. Craddock wrote that it cannot retroactively alter agreements made under the prior interpretation, since the parties to those agreements had different understandings of states' reporting obligations. States that object to the requirement, he noted, remain free to withdraw from the programs entirely -- a choice that would cost them billions.
The opinion is the latest move in the Trump administration's broader push to compel state cooperation with federal immigration enforcement, and it sets up a likely legal showdown. Earlier efforts to force states' hands have drawn court challenges, and attorneys general in several large states are already reviewing whether to sue over the new guidance.
Supporters of the opinion argue it simply enforces what Congress wrote in 1996 and closes a loophole that let sanctuary jurisdictions shield illegal aliens while pocketing federal welfare dollars. Opponents are expected to argue that the reading stretches the statute and commandeers state agencies in violation of federalism principles.
For now, every state that takes TANF or SSI money is on notice: report illegal aliens known to be present, or risk losing the funds. With midterm elections two months away and immigration at the top of the national agenda, the fight over this opinion is only beginning.
The Justice Department is requiring every state that accepts federal welfare funds to report illegal aliens to DHS or risk losing billions in annual TANF and SSI money, reversing a nearly 30-year-old interpretation.
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