The U.S. Department of Justice said Wednesday that states participating in two major federal assistance programs are legally required to have all state agencies report certain individuals known to be unlawfully present in the United States to federal immigration authorities.
The interpretation comes in a new legal opinion from the Justice Department’s Office of Legal Counsel, or OLC, addressing reporting requirements tied to the Temporary Assistance for Needy Families program, commonly known as TANF, and Supplemental Security Income, or SSI.
According to the Justice Department, the Sept. 1 opinion concludes that when a state chooses to participate in TANF or SSI, the reporting obligation applies to the state government as a whole rather than only to the agencies directly administering those programs.
The department said the opinion reverses a narrower interpretation adopted by OLC during the Clinton administration in 1998.
Under that earlier interpretation, only the specific state agencies administering TANF or SSI were considered subject to federal statutory requirements to provide information concerning individuals known to be unlawfully present in the country.
The new opinion takes a broader reading of language Congress adopted as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. According to OLC, Congress’s use of the term “State” means that acceptance of federal TANF or SSI funding binds all component agencies of a participating state government.
“When a state chooses to participate in TANF, it accepts the obligation to report illegal aliens in the United States,” Assistant Attorney General T. Elliot Gaiser said in the Justice Department announcement.
Deputy Assistant Attorney General Joshua Craddock, who authored the opinion, said the department does not view the interpretation as creating a new statutory obligation.
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“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.”
Craddock also said failure to comply could result in consequences including the potential loss of program funding.
That statement represents the Justice Department’s interpretation of federal law and possible enforcement consequences. The OLC opinion itself is an executive-branch legal interpretation, not a ruling from a federal court.
The Justice Department said all 50 states, the District of Columbia and several U.S. territories currently participate in TANF and SSI. Federal TANF grants exceed $16.4 billion annually, according to the department.
The opinion could have implications well beyond state welfare departments because OLC’s interpretation extends the reporting requirement to other agencies within participating state governments when those agencies have information meeting the statutory standard.
The department described the requirement as applying to individuals whom state agencies “know” are not lawfully present. The DOJ announcement did not provide detailed examples Wednesday of how individual agencies would be expected to determine that status or how states would implement the broader reporting requirement across agencies.
The opinion will apply prospectively. DOJ said states will not face retroactive penalties for actions taken while relying on the 1998 interpretation.
Federal agencies may now use the new opinion when revising TANF and SSI grant agreements, compliance requirements and related procedures, according to the department.
The change marks the latest instance in which the Justice Department has reconsidered an earlier executive-branch interpretation of federal immigration law. Its practical impact will depend in part on how federal agencies implement the opinion and how state governments respond to the expanded interpretation of their reporting obligations.
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