The Justice Department’s Office of Legal Counsel has withdrawn a 1998 opinion that had narrowed which state agencies must report people known to be unlawfully present in the United States to federal immigration authorities.
The original requirement dates to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), signed by President Bill Clinton. Section 404 of that law requires federal agencies administering certain benefit programs to inform the Department of Homeland Security of any person they know is not lawfully present. It also requires participating states to make the same report.
In 1998, OLC issued an opinion narrowing the definition of “State” under section 404 to mean only the specific state agencies that administer federally funded programs such as Temporary Assistance for Needy Families, the Supplemental Nutrition Assistance Program, or Electronic Benefits Transfer — rather than the state as a whole, including all of its component agencies.
The new OLC opinion reverses that interpretation. It states that the 1998 opinion “narrowly construed the term ‘State’ as used in section 404 to refer only to the ‘state agencies administering the particular federally funded program,’ rather than all component agencies within the State,” and that this earlier reading was reached “by disregarding PRWORA’s definition of ‘State’ and giving that term inconsistent meanings within the same statutory provision.”
Under the revised reading, “State,” as used in section 404, “includes all component agencies, not only the state agency administering a covered federal benefits program.” The opinion says this conclusion “follows from PRWORA’s express statutory definition of ‘State’ and accords with well-established interpretive canons,” and finds “ample support in statutory context and structure.” OLC concluded that “the mandatory reporting obligations in section 404(b) and (c) apply to all component agencies within a ‘State’ and withdraw our contrary 1998 Opinion as inconsistent with PRWORA’s unambiguous commands.”
The practical effect is that state agencies beyond those directly administering welfare programs could now fall under the same obligation to report individuals known to be in the country illegally to the Department of Homeland Security.
PRWORA itself was a bipartisan welfare overhaul enacted with Clinton’s signature in 1996, and the reporting requirement was part of the original statute’s effort to keep ineligible noncitizens from receiving federal benefits.
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