DOJ decision could strip ‘sanctuary’ cities of federal funding

The Office of Legal Counsel (OLC) at the U.S. Department of Justice (DOJ) issued an opinion Sept. 1 determining that a provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) requires all agencies in a state that receives federal funding for the Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI) to report any individual known to be in the U.S. unlawfully to federal authorities.

Section 404 of the PRWORA requires “states” to report “any person they know to be not lawfully present in the United States” to the U.S. Department of Homeland Security (DHS) to prevent abuse of taxpayer dollars in welfare programs , such as TANF or SSI.

The provision says, “It is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits,” and thus requires states receiving federal funds for TANF or SSI to “furnish” DHS “with the name and address of, and other identifying information on, any individual who the State knows is unlawfully in the United States.”

Previous advice from OLC held that “states” refers only to the agencies responsible for administering the TANF and SSI programs. The Sept. 1 opinion overturned that determination.

“We reached that view by disregarding PRWORA’s definition of ‘State’ and giving that term inconsistent meanings within the same statutory provision,” OLC wrote of the 1998 opinion in its new opinion. “[W]e conclude that our 1998 Opinion improperly narrowed the conditions that Congress attached to federal funding for certain federal benefits programs. We now withdraw it.”

The revised guidance, which is considered legally binding on the executive branch and its agencies, effectively empowers President Donald Trump and his administration to withhold federal funding from states that do not comply with federal immigration law or states that allow counties and cities within their borders to flout federal immigration law, otherwise known as “sanctuary” jurisdictions.

According to the Center for Immigration Studies (CIS), 15 states, 49 cities, and more than 150 counties have “sanctuary” policies in place , as of June 29. In most cases, “sanctuary” policies prohibit state or local law enforcement from investigating the immigration status of suspected illegal aliens and from cooperating with U.S. Immigration and Customs Enforcement (ICE).

CIS senior legal fellow George Fishman, who previously served as DHS general counsel and special counsel to the House Homeland Security Committee, told Zeale News that the 1998 OLC opinion was an effort by then-president Bill Clinton and his administration to “sabotage” the clear provisions in the PRWORA empowering federal immigration enforcement.

“This is definitely good news for federal immigration enforcement (especially as the federal government does not know the whereabouts of most of the millions of illegal aliens released into the U.S. by the Biden administration),” Fishman said. “However, its practical impact may be limited, as the federal government will have to demonstrate that a state government ‘knows’ that particular persons are illegal aliens in order to rescind funding.”

He also said he anticipates legal challenges against the requirements in Section 404 of the PRWORA. OLC even admitted in its opinion that the “broad authority” of Congress for placing conditions on receipt of federal funds does have some limits: Tthe conditions cannot be “impermissibly coercive” and “must relate to the federal interest in particular national projects or programs."

“Is the reporting requirement impermissibly coercive? Is it sufficiently related to the federal interest in the welfare program at issue, especially if it applies to the entire state government and not just the agency administering the program?” Fishman asked. “It may take the Supreme Court to resolve this one.”

Currently, all 50 states participate in TANF and SSI and receive federal funding from the U.S. Department of Health and Human Services (HHS) for those programs.