Noncitizen Eligibility for Public Benefits: Legal Issues
Congressional research reportSep 9, 2013
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Noncitizen Eligibility for Public Benefits:
Legal Issues
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September 9, 2013
Congressional Research Service
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R43221
Noncitizen Eligibility for Public Benefits: Legal Issues
Summary
Whether and when noncitizens may receive particular types of government assistance can be
difficult to ascertain because of the various federal, state, and local laws governing their
eligibility for such assistance. The Personal Responsibility and Work Opportunity Reconciliation
Act (PRWORA) of 1996 was enacted to establish “national policy with respect to welfare and
immigration.” With certain exceptions, PRWORA bars aliens who are not “qualified aliens” from
receiving federal, state, or local “public benefits,” and also precludes qualified aliens from
receiving “federal means-tested public benefits” for five or more years after they enter the United
States in a qualified status. However, there are also a number of federal, state, and local measures
adopted prior to, or after, PRWORA, some of which make different provisions for noncitizens’
eligibility for particular benefits. The application of these measures can raise complicated issues
of constitutional law, statutory interpretation, and administrative law.
The constitutional guarantee of equal protection applies to all “persons” within the United States,
including aliens. Thus, measures governing eligibility for public benefits could be subject to legal
challenge if they treat aliens differently than citizens. Because of Congress’s plenary power over
immigration, federal measures that distinguish between aliens and citizens will generally be
upheld so long as they are rationally related to a legitimate government interest. State and local
measures, in contrast, are generally subject to some type of heightened scrutiny, the degree of
which can vary depending upon the benefit involved and the aliens’ status. However, state and
local measures that follow a “uniform rule” established by Congress could potentially receive the
same deferential review afforded to federal measures. Courts have reached differing conclusions
as to whether PRWORA establishes such a uniform rule. Courts have also disagreed as to whether
measures that treat lawful nonimmigrant aliens differently from citizens are subject to the same
level of scrutiny as those that distinguish between lawful immigrant aliens and citizens.
Questions can also arise as to whether particular state and local measures are preempted by
federal law. Some states and localities, concerned about the presence of unauthorized aliens
within their jurisdiction, have recently enacted measures which would define benefits or related
terms more broadly than PRWORA does, and further restrict aliens’ eligibility for them. Such
measures could potentially be challenged on preemption grounds because the Constitution grants
Congress the power to regulate immigration. State and local measures that purport to determine
the conditions upon which aliens may enter or remain in the United States are, per se, preempted.
Federal statutes can also preempt state and local measures by expressly prohibiting them,
containing conflicting requirements, or occupying the field.
Moreover, in the application of particular measures, there have been questions about whether
particular government programs, services, or types of assistance are benefits. For example,
although PRWORA includes certain types of assistance within its definitions of public benefit, it
also refers to “any other similar benefit.” Parties have litigated whether particular assistance
constitutes a benefit “similar” to those governed by PRWORA. They have also litigated whether
PRWORA bars aliens from receiving benefits whose provision entails the expenditure of
appropriated funds, even if the aliens themselves must pay a fee for the benefit; as well as what it
means for a state to “affirmatively provide” for eligibility. Similarly, because PRWORA does not
affirmatively define “federal means-tested public benefits,” there has been debate about the
degree of deference to be accorded to agency interpretations of this term as encompassing only
five mandatory spending programs (e.g., Medicaid), and no discretionary spending programs.
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Noncitizen Eligibility for Public Benefits: Legal Issues
Contents
Background ...................................................................................................................................... 2
Pre-PRWORA Enactments ........................................................................................................ 2
PRWORA .................................................................................................................................. 4
Post-PRWORA Enactments....................................................................................................... 7
Legal Issues ..................................................................................................................................... 9
Noncitizens’ Rights to Equal Protection .................................................................................... 9
Application to Federal Restrictions on Public Benefits .................................................... 10
Application as to State and Local Restrictions on Public Benefits ................................... 11
Whether PRWORA Provides a Uniform Rule for States and Localities ........................... 13
Level of Scrutiny Applied to State Measures Affecting Lawful Nonimmigrants ............. 15
Preemption of State and Local Measures ................................................................................ 18
Restrictions on Benefits as Regulations of Immigration ................................................... 19
Preemption by the INA or PRWORA................................................................................ 21
Defining “Benefits” and Related Terms .................................................................................. 22
“Public Benefits” for Purposes of PRWORA.................................................................... 23
“Affirmatively Providing” for Unauthorized Aliens’ Eligibility ....................................... 26
Agency Determinations Regarding Federal Means-Tested Public Benefits ..................... 27
Conclusion ..................................................................................................................................... 29
Contacts
Author Contact Information........................................................................................................... 29
Congressional Research Service
Noncitizen Eligibility for Public Benefits: Legal Issues
C
ongress’s interest in the receipt of government assistance by noncitizens dates back to at
least 1882, when the country’s first general immigration law excluded aliens who were
deemed “likely to become a public charge” after they came to the United States.1 The term
public charge has historically meant persons who are “primarily dependent upon the government
for subsistence,”2 and the 1882 measure effectively limited aliens’ receipt of government
assistance by barring aliens who were likely to substantially rely upon such assistance from
entering the United States. Since that time, Congress has returned periodically to the topic of
noncitizens’ eligibility for public benefits, sometimes restricting noncitizens’ eligibility for public
benefits and sometimes expanding it. Congressional interest has been particularly high in recent
years due to the sizable number of aliens who are unlawfully present in the United States (i.e.,
entered without inspection, or overstayed or otherwise violated the terms of their visas). Some
have suggested that noncitizens’ eligibility for public benefits is a “magnet” for unauthorized
immigration and ought to be further restricted.3 Others have sought to expand at least certain
aliens’ eligibility for public benefits on humanitarian or public interest grounds.4
Whether and when persons who are present in the United States, but not U.S. citizens or
nationals,5 may receive particular types of government assistance can be difficult to ascertain
because of the various federal, state, and local laws governing their eligibility for such assistance.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)6 was
enacted to establish “national policy with respect to welfare and immigration.”7 With certain
exceptions, PRWORA bars aliens who are not “qualified aliens” from receiving federal, state, or
local “public benefits,” and precludes qualified aliens from receiving federal “means-tested public
benefits” for 5 or more years after they enter the United States in a qualified status. However,
there are also a number of other federal, state, and local measures adopted prior to, or after, the
enactment of PRWORA, some of which make different provisions for noncitizens’ eligibility for
particular benefits. The applications of these measures can raise complicated issues of
constitutional law, statutory interpretation, and administrative law.
This report provides an overview of PRWORA and illustrative pre- and post-PRWORA
enactments regarding noncitizen eligibility for public benefits as background, before turning to a
discussion of the major legal issues raised by such measures. The discussion of enactments other
than PRWORA and the legal issues they raise is selective. The report does not attempt to identify
all legal measures that might affect noncitizens’ eligibility for particular benefits, or all legal
1
Act of Aug. 3, 1882, 22 Stat. 58. A little over 20 years later, Congress made aliens who had migrated to the United
States deportable if they became public charges within a period after entry. Act of Mar. 3, 1903, 32 Stat. 1213.
2
See, e.g., Dep’t of Justice, Immigration & Naturalization Serv., Field Guidance on Deportability and Inadmissibility
on Public Charge Grounds, 64 Fed. Reg. 28689 (May 26, 1999) (discussing prior usage of the term).
3
See, e.g., Paul Hammel, Prenatal Care a “Magnet” for Illegal Immigrants? Omaha World-Herald, Apr. 10, 2012,
available at http://www.omaha.com/article/20120410/NEWS01/704109923 (describing certain state officials’ views
that the availability of public benefits, in part, motivates unauthorized immigration).
4
See, e.g., Sharon Parrott & Robert Greenstein, Benefit Restrictions Beyond Those in Senate Immigration Bill Would
Jeopardize Legalization for Many and Risk Severe Hardships for Others, Center on Budget and Policy Priorities, June
14, 2013, available at http://www.cbpp.org/cms/?fa=view&id=3974.
5
As used in the Immigration and Nationality Act (INA), the term alien means any person who is not a citizen or
national of the United States. INA §101(a)(3), 8 U.S.C. §1101(a)(3).
6
P.L. 104-193, tit. IV, §§401-435, 110 Stat. 2261-2276 (Aug. 22, 1996) (generally codified, as amended, in 8 U.S.C.
§§1601-1646). PRWORA did not amend the INA, so citations to it reference only Title 8 of the United States Code.
7
8 U.S.C. §1601.
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issues that could potentially be raised. Rather, its focus is upon illustrative measures, and major
legal issues that have recurred.
The report also does not address legal issues that could potentially be raised by noncitizens’
receipt of public benefits, particularly whether the receipt of such benefits may result in aliens
being found to be inadmissible or deportable on public charge grounds. A separate report, CRS
Report R43220, Public Charge Grounds of Inadmissibility and Deportability: Legal Overview, by
(name redacted), discusses these issues. There are also several CRS reports addressing policy
issues related to noncitizens’ eligibility for public benefits.8
Background
PRWORA, as amended, establishes certain default rules regarding noncitizens’ eligibility for
federal, state, and local public benefits by creating various categories of aliens and benefits, and
prescribing when particular aliens may receive certain benefits. However, numerous measures
had been enacted prior to PRWORA, which PRWORA effectively nullified or modified. In
addition, Congress, states and, in some cases, localities have enacted additional measures postPRWORA that either expand, or restrict, noncitizens’ eligibility for particular benefits.
Pre-PRWORA Enactments
Prior to the enactment of PRWORA, there generally were no overarching rules regarding
noncitizens’ eligibility for public benefits. Rather, individual statutes generally governed
noncitizens’ eligibility for benefits provided pursuant to the statute, and often classified aliens in
terms of categories specific to the statute. For example, the Unemployment Compensation
Amendments of 1976 expressly prohibited the payment of unemployment insurance on the basis
of services performed by an alien unless the alien was (1) a lawful permanent resident (LPR)
when the services were performed; (2) “lawfully present” for purposes of performing the
services; or (3) residing in the United States “under color of law”9 when the services were
performed.10 Noncitizens not belonging to one of these three classes—most notably, aliens who
were unlawfully present or working in the United States when they provided the services upon
which compensation would be based—were barred from receiving unemployment insurance. The
Social Security Amendments of 1965 similarly provided that
8
See, e.g., CRS Report RL34500, Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues, by (name redac
ted); CRS Report RL33809,
Noncitizen Eligibility for Federal Public Assistance: Policy Overview and Trends, by
(name redacted). These and other CRS reports also provide information about affidavits of support and systems for
verifying noncitizens’ eligibility for public benefits, neither of which are within the scope of this report.
9
“Present in the United States under color of law” (PRUCOL) has been described as an “amorphous” and “elastic”
category, including any aliens within the United States with the knowledge and permission of immigration authorities,
whom the authorities do not contemplate deporting. See Berger v. Heckler, 771 F.2d 1556, 1575-76 (2d Cir. 1985).
Post-PRWORA, the PRUCOL category is generally no longer used in federal benefits or other statutes. However, some
states continue to use it when exercising their authority under PRWORA to provide benefits to certain aliens who are
not eligible for federal benefits under PRWORA. See, e.g., Tonashka v. Weinberg, 678 N.Y.S.2d 883 (1998).
10
P.L. 94-566, §314(a), 90 Stat. 2680 (Oct. 20, 1976) (codified, as amended, at 26 U.S.C. §3304(a)(14)(A)). However,
even prior to the 1976 amendments, denial of unemployment insurance compensation to unauthorized aliens was
sometimes upheld on the theory that such aliens were not eligible or available for work, and have no constitutional right
to work. See, e.g., Alonso v. State, 50 Cal. App. 3d 242 (1975).
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Every individual who (1) has attained the age of 65, and (2) (A) is a resident of the United
States, and is either (i) a citizen or an alien lawfully admitted for permanent residence who
has resided in the United States continuously during the 5 years immediately preceding the
month in which he applies for enrollment under this part ... is eligible to enroll in the
[Medicare Part B] insurance program.11
Here, the only noncitizens eligible for Medicare Part B were LPRs who had resided in the United
States “continuously” for the five years prior to applying for enrollment. All others were
excluded, including LPRs who had not yet resided in the United States for five years, or whose
total period of residence, while longer than five years, had not been “continuous.” In yet other
cases, the statute was silent as to noncitizens’ eligibility for benefits provided pursuant to the
statute (e.g., school lunch and nutrition, supplemental food program for women, infants, and
children (WIC), earned income credit), which was often taken to mean that noncitizens were not
barred from receiving such benefits.12
In a few cases, however, states, in particular, enacted measures that addressed noncitizens’
eligibility for public benefits more broadly. Perhaps the best known of these was California’s
Proposition 187, adopted by voters in 1994, and described by some commentators as the
“impetus” for PRWORA.13 Proposition 187 was intended to “prevent illegal aliens in the United
States from receiving benefits or public services in the State of California.”14 Among other things,
Proposition 187 barred the provision of “public social services” and “publicly-funded health care
services” to persons who were not U.S. citizens, LPRs, or “admitted lawfully for a temporary
period of time.”15 It also barred persons who were not citizens, LPRs, or “otherwise authorized
under federal law to be present in the United States” from admission to public elementary,
secondary, and postsecondary schools.16 However, these and other provisions of Proposition 187
were found to be preempted by federal law, or otherwise impermissible,17 and not enforced.
Some of these pre-PWRORA laws remain on the books, but their implementation has generally
been shaped by the subsequent enactment of PRWORA. As discussed below, PRWORA
“effectively invalidated all existing” federal, state, or local measures governing noncitizens’
eligibility for public benefits,18 replacing them with default rules that states, in particular, may opt
out of only in specified circumstances (e.g., by enacting a measure subsequent to PRWORA that
11
P.L. 89-97, §102(a), 79 Stat. 304 (July 30, 1965) (codified, as amended, at 42 U.S.C. §1395o) (emphasis added).
See, e.g., Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Conference Report to
Accompany H.R. 3734, H.R. Rpt. 104-725, 104th Cong., 2d Sess., July 30, 1996, at 379.
13
See, e.g., Kevin R. Johnson, et al., Understanding Immigration Law 137-38 (2009). Measures akin to PRWORA had,
however, been introduced in Congress prior to the adoption of Proposition 187. See, e.g., 141 Cong. Rec. S15548 (June
12, 1995) (statement of Mr. Exon) (“I have introduced th[e] measure either as a stand-alone bill or an amendment in
every Congress since 1989, long before measures like California’s proposition 187 arrived on the scene.”).
14
League of United Latin Am. Citizens [LULAC] v. Wilson, 908 F. Supp. 755, 787 (C.D. Cal. 1995).
15
Id. at 788-89.
16
Id. at 789-90.
17
Initially, the reviewing federal district court found that the provisions regarding public social services and publiclyfunded health care services were preempted by federal law because the state had imposed its own classifications on
aliens (e.g., “admitted lawfully for a temporary period of time”), and state officials determined which aliens were
deportable under federal law. Id. at 769. However, after PRWORA’s enactment, the court viewed these provisions as
preempted by PRWORA. LULAC v. Wilson, No. CV 94-7569 MRP, 1998 U.S. Dist. LEXIS 3418, at *43-*44 (C.D.
Cal., Mar. 13, 1998). Proposition 187’s provisions regarding primary and secondary education are discussed infra note
88 and accompanying text.
18
Kaider v. Hamos, 975 N.E.2d 667, 673 (Ill. App. 2012). See also infra notes 22-23 and accompanying text.
12
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“affirmatively provides” for unauthorized aliens’ eligibility). PRWORA has, thus, resulted in
unauthorized aliens being ineligible for various state services.19 The U.S. Department of
Education similarly modified its guidance regarding which noncitizens are eligible for federal
financial aid under the Higher Education Act after PRWORA’s enactment.20
PRWORA
Congress enacted PRWORA in 1996, in part, to bring a degree of uniformity to noncitizens’
eligibility for federal, state, and local public benefits.21 When enacting PRWORA, Congress
provided that the restrictions and conditions it imposed apply “[n]otwithstanding any other
provision of law,” except as otherwise provided in PRWORA.22 This language has been construed
to mean that PRWORA generally “invalidated” or rendered unenforceable preexisting federal,
state, and local measures, at least to the degree that these measures were inconsistent with
PRWORA.23 Then, in place of these varied measures—which often had their own ways of
describing both categories of noncitizens and particular types of benefits—PRWORA established
standardized taxonomies of aliens and benefits. It also prescribed general rules regarding when
particular aliens are eligible for specific benefits.
Under PRWORA, aliens are divided into two basic categories: qualified and not qualified.
PRWORA defines qualified alien to encompass: LPRs; aliens granted asylum; refugees; aliens
paroled into the United States for a period of at least one year; aliens whose deportation is being
withheld; aliens granted conditional entry; and Cuban and Haitian entrants.24 However, certain
aliens who have been subject to domestic violence are also treated as qualified aliens for purposes
19
Dep’t of Health v. Rodriguez, 5 So. 3d 22 (Fla. App. 2009) (finding that the services of the Florida Brain and Spinal
Cord Injury Program constitute state public benefits, and that the program was created prior to PRWORA and not
subsequently reenacted).
20
Amendments made to the Higher Education Act in 1986 permit persons “in the United States for other than a
temporary purpose with the intention of becoming a citizen or permanent resident” to receive federal financial aid. An
Act to Reauthorize and Revise the Higher Education Act of 1965, and For Other Purposes, P.L. 99-498, §407(a), 100
Stat. 1480 (Oct. 17, 1986) (codified, as amended, at 20 U.S.C. §1091(a)(5)). Currently, the U.S. Department of
Education construes this language to mean only noncitizens encompassed within PRWORA’s definition of qualified
alien. See U.S. Dep’t of Education, Federal Student Aid Handbook, 2013-2014, Vol. 2, at 1-24 to 1-27, Apr. 2013,
available at http://ifap.ed.gov/fsahandbook/attachments/1314FSAHbkVol2Ch2.pdf. However, prior to PRWORA’s
enactment, the Department had considered noncitizens granted temporary resident cards, or who had suspension of
deportation cases pending before Congress, eligible. U.S. Dep’t of Education, The Student Guide: Financial Aid from
the U.S. Department of Education: Grants, Loans, and Work Study, 1989-1990, at 71, quoted in CRS Report 89-435
EPW, Alien Eligibility Requirements for Major Federal Assistance Programs, by Joyce C. Vialet and (name redacted) (out
of print, available upon request).
21
See, e.g., H.Rept. 104-651 (1998), at 374 (“This legislation seeks to further streamline operation of this Nation’s
public assistance programs.”); 141 Cong. Rec. S15548 (June 12, 1995) (statement of Mr. Exon) (“We must initiate a
joint new State-Federal resolve—a new compact, if you will—to put an end to such abuses.”); 141 Cong. Rec. H8553
(Mar. 21, 1995) (statement of Mr. Riggs) (describing PRWORA as setting “a very clear standard for our country”).
22
See 8 U.S.C. §1611(a); 8 U.S.C. §1612(a)(1) & (b); 8 U.S.C. §1613(a); 8 U.S.C. §1621(a).
23
See, e.g., Pimentel v. Dreyfus, 670 F.3d 1096, 1101 (9th Cir. 2012) (“Upon enactment of the Welfare Reform Act,
however, Washington’s food stamp program automatically conformed to the new eligibility requirements concerning
aliens.”); Kaider, 975 N.E.2d at 673 (“In passing [PRWORA], Congress effectively invalidated all existing ... laws,
regulations, or executive orders that extended benefits [to aliens who were not qualified aliens for purposes of
PRWORA].’”); Doe v. Wilson, 67 Cal. Rptr. 2d 187, 190 (Cal. App. 1997) (upholding regulations terminating a state
program that benefitted unauthorized aliens because the program was “rendered immediately illegal by [PRWORA]”).
24
8 U.S.C. §1641(b)(1)-(7).
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of PRWORA.25 All other aliens are not qualified.26 This includes those who are unlawfully
present; have been granted temporary protected status, deferred enforced departure, or deferred
action; or are lawfully present in the United States on nonimmigrant visas.
PRWORA similarly categorizes benefits as: federal public benefits, federal means-tested public
benefits, and state and local public benefits.27 With certain exceptions, it defines federal and state
and local public benefits to mean the following:
any grant, contract, loan, professional license, or commercial license provided by [a
government] agency ... or by appropriated funds ...; and any retirement, welfare, health,
disability, public or assisted housing, postsecondary education, food assistance,
unemployment benefit, or any other similar benefit for which payments or assistance are
provided to an individual, household, or family eligibility unit by [a government] agency ...
or by appropriated funds.28
In contrast, federal means-tested public benefit is not affirmatively defined by PRWORA,
although certain benefits are expressly excluded from the application of this term (e.g., shortterm, non-cash, in-kind emergency disaster relief).29 Because this term is not defined, PRWORA
has generally been seen as granting federal agencies discretion to designate which public benefits
are federal means-tested ones. As is discussed below,30 the Office of Legal Counsel at the
Department of Justice has opined that agency interpretations of this term as encompassing only
Medicaid, food stamps, supplemental security income (SSI), Temporary Assistance to Needy
Families (TANF), and the State Child Health Insurance Program (SCHIP) are entitled to
deference.31 PRWORA itself does not address state means-tested public benefits, beyond
providing that affidavits of support provided by aliens’ sponsors may be enforceable by any state
or locality that provides “means-tested public benefit[s]” to the alien.32
25
See 8 U.S.C. §1641(c).
Noncitizens who are not qualified aliens could potentially receive certain public benefits, particularly pursuant to
federal or state measures enacted subsequent to PRWORA. See infra “Post-PRWORA Enactments.”
27
Benefits paid for with federal funds are generally treated as federal benefits, even if they are administered by state or
local governments. See, e.g., Pimentel, 670 F.3d at 1099 n.4 (Supplemental Nutrition Assistance Program (SNAP) is a
federal benefit, although provided through the States).
28
8 U.S.C. §1611(c)(1) (federal public benefits); 8 U.S.C. §1621(c)(1) (state and local public benefits). PRWORA
expressly excludes certain things from these definitions (e.g., professional or commercial licenses for nonimmigrants
whose visas are related to U.S. employment). See 8 U.S.C. §1611(c)(2)(A)-(C); 8 U.S.C. §1621(c)(2)-(3).
29
8 U.S.C. §1613(c)(2). Certain regulations implementing PRWORA do, however, define “means-tested public
benefits.” See 8 C.F.R. §213a.1 (defining the term, as used in the regulations pertaining to affidavits of support, to
mean “either a Federal means-tested public benefit, which is any public benefit funded in whole or in part by funds
provided by the Federal Government that the Federal agency administering the Federal funds has determined to be a
Federal means-tested public benefit under [PRWORA], or a State means-tested public benefit, which is any public
benefit for which no Federal funds are provided that a State, State agency, or political subdivision of a State has
determined to be a means-tested public benefit.”).
30
See “Agency Determinations Regarding Federal Means-Tested Public Benefits.”
31
See Dep’t of Justice, Office of Legal Counsel, Proposed Agency Interpretation of “Federal Means-Tested Public
Benefits” Under Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Jan. 14, 1997, available at
http://www.justice.gov/olc/meanstst10.htm. As amended, PRWORA also directly addresses many of the programs
recognized as federal means-tested public benefits by the agencies. See 8 U.S.C. §1612(a)(3) (SSI and food stamps); 8
U.S.C. §1612(b)(3)(A)-(C) (TANF, Medicaid, social services block grants).
32
8 U.S.C. §1183a. But see supra note 29 (federal regulation addressing “State means-tested public benefits”).
26
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PRWORA relies upon the taxonomies of aliens and benefits that it creates in prescribing specific
rules regarding which aliens are eligible for particular benefits. The “default” rules established by
PRWORA are arguably simple (although, particularly as amended, PRWORA provides for
numerous exceptions33). First, aliens who are not qualified aliens are generally barred from
receiving public benefits. Such aliens are not eligible for federal, state, or local public benefits
(means-tested or otherwise).34 However, states and localities may furnish public benefits to
unauthorized aliens if the state enacts legislation subsequent to PRWORA’s enactment that
“affirmatively provides” for their eligibility.35 Second, even aliens who are qualified aliens are
generally subject to significant restrictions on their eligibility for SSI, TANF, Medicaid, food
stamps, social services block grants, and other means-tested public benefits. Such aliens are
barred from receiving federal means-tested public benefits for five years after their entry into the
United States in a qualified status.36 In addition, certain qualified aliens are ineligible for SSI,
TANF, Medicaid, food stamps, and social services block grants unless they have worked, or can
be credited with, 40 qualifying quarters of work under the Social Security Act, and did not receive
any federal means-tested public benefits during that time.37 Moreover, in determining qualified
aliens’ eligibility for means-tested benefits, the income and resources of the aliens’ sponsor may
be attributed to the alien until the alien naturalizes or has worked 40 quarters.38
PRWORA’s “national policy with respect to welfare and immigration”39 is, however, subject to
numerous exceptions. Some of these exceptions are incorporated into PRWORA, as amended.40
Others, however, exist because PRWORA grants states the authority to make various
determinations affecting noncitizens’ eligibility for federal, state, and local public benefits.
Specifically, PRWORA permits (but does not require) states to
•
determine, with certain exceptions and subject to certain restrictions, the
eligibility of qualified aliens for TANF, social services block grants, and
Medicaid,41 and for state public benefits;42
•
limit aliens’ eligibility for “programs of general cash public assistance” furnished
by states or localities, provided that any such limitations are not more restrictive
than the limitations imposed under comparable federal programs;43
33
See infra note 40.
8 U.S.C. §1611(a) (“Notwithstanding any other provision of law and except as provided in subsection (b), an alien
who is not a qualified alien ... is not eligible for any Federal public benefit.”); 8 U.S.C. §1621(a) (“Notwithstanding any
other provision of law and except as provided in subsections (b) and (d), an alien who is not ... a qualified alien ... is not
eligible for any State or local public benefit.”).
35
8 U.S.C. §1621(d).
36
8 U.S.C. §1613(a).
37
8 U.S.C. §1612(a) & (b).
38
8 U.S.C. §1631.
39
8 U.S.C. §1601.
40
For example, among the benefits expressly exempted from PRWORA’s prohibitions upon the provision of federal,
state, or local public benefits to non-qualified aliens are: (1) assistance for the treatment of “emergency medical
conditions”; (2) short-term, non-cash, in-kind emergency disaster relief; (3) immunizations, and treatment of the
symptoms of communicable diseases; and (4) designated programs delivering in-kind services at the community level
that are necessary for the protection of life or safety, and are not means-tested. 8 U.S.C. §1611(b)(1)(A)-(E) (federal
public benefits); 8 U.S.C. §1621(b)(1)-(4) (state and local public benefits).
41
8 U.S.C. §1612(b)(1) (“[A] State is authorized to determine the eligibility of an alien who is a qualified alien ... for
any designated Federal program.”).
42
8 U.S.C. §1622(a).
34
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•
attribute the income and resources of the alien’s sponsor(s) to the alien when
determining aliens’ eligibility for state public benefits;44 and
•
provide state and local benefits to unauthorized aliens by enacting a measure
subsequent to PRWORA’s enactment that provides for such eligibility.45
As discussed later, these provisions, permitting a range of state actions, have played a significant
role in certain courts’ finding that PRWORA does not provide a “uniform rule” for states to
follow, such that challenged state measures enacted pursuant to it are reviewed more deferentially
than other state measures classifying persons on the basis of alienage.46
Post-PRWORA Enactments
PRWORA has been amended periodically since its enactment to further clarify Congress’s intent,
as well as to permit certain noncitizens who were ineligible for particular benefits under
PRWORA to receive such benefits. For example, the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) of 1996, enacted a little over a month after PRWORA, added a
provision apparently intended to deter states from using their authority under PRWORA to grant
in-state tuition to unauthorized aliens.47 This provision bars states from providing “postsecondary
education benefits” to unauthorized aliens based on the alien’s residence within the state unless
other citizens or nationals are eligible for such benefits, regardless of their state of residence.48
IIRIRA also made certain other amendments to PRWORA, including by providing that certain
victims of domestic violence are deemed qualified aliens for purposes of PRWORA.49 Other
measures enacted in 199750 and in 199851 similarly amended PRWORA to permit some aliens to
receive benefits they could not have received under PRWORA, as originally enacted.
Congress has also enacted legislation that addresses noncitizens’ eligibility for particular benefits
separate and apart from PRWORA, in many cases making noncitizens eligible for benefits that
(...continued)
43
8 U.S.C. §1624.
44
8 U.S.C. §1632. See also De Lemus v. Wagner, 2012 Cal. App. Unpub. LEXIS 6964 (Sept. 25, 2012) (upholding
state agency’s determination that father’s SSI benefits may be attributed to alien child when determining child’s
eligibility for a means-tested state benefits program).
45
8 U.S.C. §1621(d). But see infra notes 47-48 and accompanying text for certain limitations on this authority.
46
See infra notes 97 to 105 and accompanying text.
47
P.L. 104-208, Div. C, tit. V, subtit. A, §505, 110 Stat. 3009-672 (Sept. 30, 1996) (codified at 8 U.S.C. §1623);
Martinez v. Regents of the Univ. of Cal., 83 Cal. Rptr. 518, 530 n.15 (Cal. App. 2008) (state conceding that Section
505 of IIRIRA “narrowed” states’ authority under PRWORA), rev’d on other grounds, 241 P.3d 855 (Cal. 2010).
48
But see Martinez, 241 P.3d 855 at 1291-94 (finding that this provision does not bar states from providing in-state
tuition to unauthorized aliens upon other grounds, such as their having completed a certain number of years of
secondary school within the state).
49
P.L. 104-208, Div. C, tit. V, subtit. A, §501, 110 Stat. 3009-670 to 3009-671.
50
See, e.g., Balanced Budget Act of 1997, P.L. 105-33, §§5561, 5565, 111 Stat. 638-39 (Aug. 5, 1997) (exempting
certain benefits payable under the Social Security Act, Railroad Retirement Act, and Railroad Unemployment Act from
PRWORA’s restrictions upon the provision of federal public benefits to aliens who are not qualified aliens).
51
See, e.g., Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998, P.L. 105-306, §§2, 5(a),
112 Stat. 2926-27 (Oct. 28, 1998) (providing that the restriction on the provision of federal public benefits to aliens
who are not qualified aliens shall not apply to benefits under the SSI program, or under any other program that is based
on eligibility for the SSI program, for aliens who were receiving such benefits on the date of PRWORA’s enactment).
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would be denied to them under PRWORA’s default rules. For example, Section 214 of the
Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) grants states the
option to provide Medicaid and CHIP coverage to all children and pregnant women “who are
lawfully residing in the United States … and who are otherwise eligible for such assistance.”52
The phrase “lawfully residing in the United States” has been construed to include certain aliens
who are not qualified aliens for purposes of PRWORA, such as lawful nonimmigrants, as well as
those with temporary protected status, under deferred enforced departure, in deferred action
status, or whose visa petitions have been approved and have a pending application for adjustment
of status.53 The Patient Protection and Affordable Care Act (ACA) of 2010 similarly permits
persons who are “lawfully present” to participate in certain health care programs established
under the act.54 Lawfully present for purposes of ACA has generally been construed in the same
way as lawfully residing for purposes of CHIPRA (i.e., including those with temporary protected
status or under deferred enforced departure),55 although beneficiaries of Deferred Action for
Childhood Arrivals (DACA) have been viewed as ineligible for certain benefits under ACA.56
States, in particular, have also enacted a number of post-PRWORA measures addressing
noncitizens’ eligibility for public benefits. Some of these measures were expressly authorized by
PRWORA, and make aliens eligible for state and local benefits that they would otherwise be
denied.57 Others restrict qualified aliens’ eligibility for TANF, Medicaid, and social services block
grants, as permitted by PRWORA.58 In yet other cases, however, states and localities have
enacted measures that would define public benefit more broadly than PRWORA does, and seek to
bar unauthorized aliens, in particular, from receiving such benefits. For example, the City of
Farmers Branch, Texas, attempted to characterize residential occupancy licenses as “public
benefits” when barring persons from renting housing to unauthorized aliens.59 The State of
Georgia relied upon a similarly broad definition of public benefit—including adult education;
business, gaming, and professional licenses; registration of regulated businesses; state
52
P.L. 111-3, §214(a), 123 Stat. 56 (Feb. 4, 2009) (codified at 42 U.S.C. §1396b(v)(4)(A)-(B)).
Centers for Medicare & Medicaid Services, Medicaid and CHIP Coverage of “Lawfully Residing” Children and
Pregnant Women, July 1, 2010, available at http://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/
sho10006.pdf.
54
See, e.g., P.L. 111-148, §1101(d)(1), 124 Stat. 142 (Mar. 23, 2010) (temporary high risk health insurance pools for
uninsured individuals with preexisting conditions); id., at §1312(f)(3), 124 Stat. 184 (health care exchanges).
55
See, e.g., Dep’t of the Treasury, Health Insurance Premium Tax Credit: Final Regulations, 77 Fed. Reg. 30377,
30387 (May 23, 2012) (“Lawfully present has the same meaning as in 45 CFR 155.20.”). Section 155.20 of Title 45, in
turn, defines lawfully present as qualified aliens; nonimmigrants who have not violated the terms of their status; certain
aliens paroled into the United States; and aliens granted deferred action or deferred enforced departure, among others.
56
See, e.g., Dep’t of Health & Human Servs., Center for Medicaid & CHIP Servs., Individuals with Deferred Action
for Childhood Arrivals, Aug. 28, 2012, available at http://www.medicaid.gov/Federal-Policy-Guidance/downloads/
SHO-12-002.pdf.
57
See, e.g., Pimentel, 670 F.3d at 1101 (Washington statute extending food stamp benefits to aliens who lost their
eligibility for federal food stamps due to PRWORA); Ehrlich v. Perez, 908 A.2d 1220 (Md. 2006) (Maryland statute
providing comprehensive medical care and other health services to qualified aliens who had not been present in the
United States in that status for the requisite period of time to receive federal means-tested public benefits).
58
See, e.g., Wendy Zimmermann & Karen C. Tumlin, Patchwork Policies: State Assistance for Immigrants Under
Welfare Reform, The Urban Institute Occasional Paper No. 24, 1999, available at http://www.urban.org/publications/
309007.html (surveying the range of state actions shortly after PRWORA was enacted).
59
See, e.g., Villas at Parkside Partners v. City of Farmers Branch, 701 F. Supp. 2d 835, 856 (N.D. Tex. 2010) (“The
City’s attempt to characterize a residential occupancy license as a ‘public benefit’ for which it may require proof of
eligibility pursuant to 8 U.S.C. § 1625 does not validate its classification or avoid the conclusion that the Ordinance is a
regulation of immigration.”), aff’d, 2013 U.S. App. LEXIS 14953 (5th Cir., July 22, 2013).
53
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identification cards; and tax certificates required to conduct commercial businesses—when
proscribing the provision of public benefits to unauthorized aliens.60 More recently, Montana
voters adopted a referendum which prohibits the provision of “state services” to unauthorized
aliens, and defines this term to encompass cash payments, state licenses or permits, enrollment at
state public universities, and services for crime victims and persons with physical disabilities.61
Legal Issues
Construing and applying PRWORA and related measures to determine whether individual aliens
are eligible for particular benefits can raise a number of legal issues, including (1) the
constitutional rights of aliens; (2) whether federal law preempts state or local measures; and (3)
whether particular types of government assistance constitute benefits under particular definitions
of this term.62 In particular, questions regarding noncitizens’ rights to equal protection and
preemption are particularly likely to arise in facial challenges seeking to invalidate particular
measures. Questions regarding what constitutes a benefit, in contrast, tend to occur in challenges
to applications of particular measures.
Noncitizens’ Rights to Equal Protection
The constitutional guarantee of equal protection applies to all “persons” within the United States,
including aliens (regardless of their immigration status).63 Thus, measures governing eligibility
for public benefits could potentially be subject to legal challenges if they treat aliens differently
than citizens. The level of scrutiny applied by the courts in reviewing challenges to such measures
frequently determines whether the law is upheld, or struck down. With “rational basis review,”
the challenged measure will generally be upheld if it is a rational means of promoting a legitimate
government objective. The measure is “presumed constitutional,” and the persons challenging the
law have the burden of negating all possible rational justifications for the classification.64 In
contrast, with “strict scrutiny,” the challenged measure will be upheld only if the government can
60
GA. CODE ANN. §50-36-1(a)(4)(A)(i). This provision was among those challenged in Georgia Latino Alliance for
Human Rights v. Deal, No. 1:11-CV-1804, Complaint for Declaratory and Injunctive Relief (filed N.D. Ga., June 2,
2011). However, the courts do not appear to have addressed it in any published decision. See Ga. Latino Alliance for
Hum. Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011), aff’d, in part, by 691 F.3d 1250 (11th Cir. 2012).
61
See Montana Immigrant Justice Alliance v. Schweitzer, No. BDV-2012-1042, Complaint for Declaratory Judgment
and Injunctive Relief (filed Mont. 1st Judicial Dist. Ct., Dec. 7, 2012) (alleging that the measure is unconstitutional).
62
Specific measures, or applications thereof, could also raise other issues, including violations of state constitutions
and agencies’ failure to comply with their own regulations. See, e.g., M.K.B. v. Eggleston, 445 F. Supp. 2d 400
(S.D.N.Y. 2006) (New York Department of Health failed to give certain alien victims of domestic violence the
requisite notice of their eligibility for benefits); Tonashka v. Weinberg, 678 N.Y.S.2d 883 (1998) (alleged violation of
state constitutional provision mandating that aid, care, and support be provided to the needy).
63
See, e.g., Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Whatever his status under the immigration laws, an alien is
surely a ‘person’ in any ordinary sense of that term.”). But see Mathews v. Diaz, 426 U.S. 67, 78 (1972) (“The fact that
all persons, aliens and citizens alike, are protected by the [constitutional guarantee of Equal Protection] does not lead to
the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion
that all aliens must be placed in a single homogenous legal classification.”).
64
See, e.g., Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (“[T]he burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in
the record[, and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when
there is an imperfect fit between means and ends.”) (internal citations omitted).
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demonstrate that the measure is necessary to achieve a compelling interest, and has been narrowly
tailored to achieve that interest.65 Other “intermediate” degrees of scrutiny are also possible,
depending upon the persons and rights affected by the challenged measure.
Application to Federal Restrictions on Public Benefits
Because Congress’s plenary power over immigration permits it to enact measures as to aliens that
would be unconstitutional if applied to citizens,66 federal restrictions on noncitizens’ eligibility for
public benefits are subject to rational basis review, and have generally been upheld. For example,
in its 1976 decision in Mathews v. Diaz, the Supreme Court upheld a federal law that barred LPRs
who had not resided in the United States for five years from enrolling in Medicare Part B,
because it viewed the measure as a valid exercise of the federal government’s authority to
regulate the entry and residence of aliens, not as “irrational.”67 In particular, the Mathews Court
noted that Congress could have reasonably determined that the strength of the aliens’ ties to the
United States increases over their time here, and that “as the alien’s tie grows stronger, so does
the strength of his claim to an equal share of the munificence.”68 The Court further suggested that
Congress could have considered the “fiscal integrity” of the benefits program in drawing this
line.69 More recently, lower courts have upheld under rational basis review PRWORA’s
restrictions on the receipt of federal means-tested public benefits by qualified aliens who have not
resided in the United States in that status for the requisite period of time.70 In so doing, the courts
have rejected the argument that, as a welfare statute, PROWRA was not enacted pursuant to
Congress’s plenary power over immigration and, thus, should be subject to more stringent
review.71 Courts have further noted that, while a five-year bar on qualified aliens’ eligibility for
certain benefits is “arbitrary,” as the plaintiffs asserted, this does not invalidate the measure.72
65
See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326-27 (2003). PRWORA expressly notes that it is “a compelling
government interest” to “enact new rules for eligibility and sponsorship agreements in order to assure that aliens be
self-reliant in accordance with national immigration policy,” and “to remove the incentive for illegal immigration
provided by the availability of public benefits.” 8 U.S.C. §1601(5)-(6). PRWORA further provides that states that
follow federal classifications in determining noncitizens’ eligibility “shall be considered to have chosen the least
restrictive means available for achieving the compelling governmental interest in assuring that aliens be self-reliant in
accordance with national immigration policy.” 8 U.S.C. §1601(7). At least one court has, however, found that these
statements did not preclude invalidating a state measure purportedly enacted pursuant to PRWORA under strict
scrutiny. See infra note 105 and accompanying text.
66
See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 765-70 (1972).
67
Mathews, 426 U.S. at 85.
68
Id. at 80.
69
Id. at 83.
70
See, e.g., Lewis v. Thompson, 252 F.3d 567 (2d Cir. 2001) (Medicaid coverage for pregnant women); Aleman v.
Glickman, 217 F.3d 1191 (9th Cir. 2000) (food stamps); Alvarez v. Shalala, 189 F.3d 598 (7th Cir. 1999) (welfare
benefits); Rodriguez v. United States, 169 F.3d 1342 (11th Cir. 1999) (SSI and food stamps); City of Chicago v.
Shalala, 189 F.3d 598 (7th Cir. 1999) (SSI, food stamps, and other public benefits); Kiev v. Glickman, 991 F. Supp.
1090 (D. Minn. 1998) (food stamps); Abreu v. Callahan, 971 F. Supp. 799 (S.D.N.Y. 1997) (SSI and food stamps).
71
See, e.g., Alvarez, 189 F.3d at 604-05 (“Congress’ interest in regulating the relationship between our alien visitors
and the national government ought not to be defined in such narrow terms as to preclude application of the rational
basis test in a case such as the present one involving eligibility for government benefits.”); Rodriguez, 169 F.3d at 1349
(similar). The plaintiffs in these and related cases had also argued for strict or other heightened scrutiny on other
grounds, including on the grounds that PRWORA evidenced “animus” toward aliens, but these arguments also failed.
72
See, e.g., Rodriguez, 169 F.3d at 1348 (alleging that the “fourteen categories Congress defined in § 1612(a)(2) do not
distinguish among aliens on a principled basis”).
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Rather, “cutoff dates inevitably lead to persons ‘who have an almost equally strong claim to
favored treatment being placed on different sides of the [eligibility] line.’”73
Application as to State and Local Restrictions on Public Benefits
The situation as to state and local measures is more complicated, with the level of scrutiny
applied in challenges to such measures generally depending upon the persons and rights affected
by the measure. There is no fundamental right to receive public benefits.74 Rather, receipt of
benefits falls within the “area of economics and social welfare,”75 and classifications affecting
such interests, standing alone, are generally subject to rational basis review.76 However, courts
also give heightened scrutiny to measures involving “suspect classifications,” regardless of
whether a fundamental right is involved, and classifications based on alienage are suspect.77 Thus,
because states and localities lack the federal government’s plenary power over immigration,
certain state and local measures restricting noncitizens’ eligibility for public benefits—
particularly measures restricting LPR’s eligibility—have been subject to strict scrutiny. In its
1971 decision in Graham v. Richardson, for example, the Supreme Court struck down
Pennsylvania and Arizona laws that barred or limited receipt of state “general assistance”78 by
LPRs. In so doing, the Court expressly rejected the argument that states have a “special public
interest” in favoring their own citizens over aliens in the distribution of limited resources such as
welfare benefits.79 The Graham Court also emphasized that LPRs, like citizens, may live and
work in a state for many years, contributing to its economic growth.80
Courts have, however, declined to apply strict scrutiny to state measures that exclude aliens, even
long-term “permanent resident” aliens with significant ties to the United States, from employment
involving “political and governmental functions.” Instead, courts have applied rational basis
review to such measures on the grounds that states must have the power to “preserve the basis
conception of a political community” for a democracy to function.81 Certain states have recently
enacted measures that would define public benefits or state services in such a way as to
encompass employment with state or local governments,82 and denials of certain employment
73
Id. at 1352. See also City of Chicago v. Shalala, No. 97 C 4884, 1998 U.S. Dist. LEXIS 4463, at *38 (“In addition,
Congressional line drawing necessarily implies that people ... will be placed on either side of the line. ... This court is
not empowered to second-guess Congress’ decision on where to place that line.”).
74
See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985); Village of Belle Terre v. Boraas, 416
U.S. 1, 8 (1974). However, the denial of particular benefits, most notably publicly financed private and secondary
education, could be subject to heightened scrutiny. See infra notes 85-90 and accompanying text.
75
Dandridge v. Williams, 397 U.S. 471, 485 (1970).
76
403 U.S. 365, 371-72 (1971).
77
See, e.g., id. at 372; Nyquist v. Mauclet, 432 U.S. 1, 8 n.9 (1977) (“[C]lassifications based on alienage are inherently
suspect, and are therefore subject to strict scrutiny whether or not a fundamental right is impaired.”) (internal
quotations omitted).
78
Graham, 403 U.S. at 366-70.
79
Id. at 374-75.
80
Id. at 376.
81
Foley v. Connelie, 435 U.S. 291, 295-96 (1978) (quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973))
(upholding a New York law that barred noncitizens from becoming police officers).
82
See, e.g., Montana Immigrant Justice Alliance v. Bullock, No. BDV-2012-1042, Order on Petition for Preliminary
Injunction (Mont. 1st Judicial Dist. Ct., Mar. 26, 2013), at 2 (Montana referendum defining “state service” as including
“employment with a state agency”).
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pursuant to such measures could potentially be subject to more lenient review than denials of
other benefits.
Courts have also declined to view unauthorized aliens as a suspect classification on the grounds
that “their presence in this country in violation of federal law is not a ‘constitutional
irrelevancy.’”83 This means that state and local measures denying benefits to unauthorized aliens
are generally subject to more deferential review than measures denying benefits to LPRs, such as
the state laws at issue in Graham. However, state and local measures denying particularly
significant benefits to certain unauthorized aliens could potentially be subject to heightened
scrutiny.84 Most notably, in its 1982 decision in Plyler v. Doe, the Supreme Court struck down a
Texas statute which prohibited the use of state funds to provide elementary and secondary
educations to children who were not “legally admitted” to the United States on the grounds that
the statute did not further a “substantial” state goal.85 While noting that education did not
constitute a fundamental right, the Court distinguished it from other benefits, describing primary
and secondary education as of “supreme importance” in preserving a democratic system of
government.86 The Court further noted that denying public elementary and secondary educations
to unauthorized alien children would contribute to the formation of a permanent underclass,
which the Fourteenth Amendment was designed to prevent.87 Lower courts have reached similar
conclusions as to Proposition 187’s denial of public elementary and secondary educations to
unauthorized alien children,88 and certain Alabama requirements regarding verification of the
citizenship and immigration status of students enrolling in public elementary and secondary
schools.89
The Plyler Court also suggested, however, that state and local measures classifying persons on
the basis of alienage could potentially enjoy more deferential review if Congress has “by uniform
rule prescribed what it believes to be appropriate standards for the treatment of an alien
subclass.”90 Following PRWORA’s enactment, questions have arisen as to whether PRWORA
83
Plyler, 457 U.S. at 223.
The Supreme Court has stated that Plyler “has not been extended beyond its unique circumstances.” Kadrmas v,
Dickinson Pub. Sch., 487 U.S. 450, 459 (1998). However, some lower courts have recently recognized other benefits as
particularly significant for preemption purposes. See, e.g., Villas at Parkside Partners, 701 F. Supp. 2d at 855 (renters’
licenses).
85
Plyler, 457 U.S. at 205, 228-30. The Court specifically rejected the three goals proffered by the state: (1) protecting
itself from an influx of unauthorized aliens; (2) avoiding the special burdens imposed by unauthorized aliens on the
state’s ability to provide high quality public education; and (3) limiting the expenditure of state resources on
unauthorized children who are unlikely to remain in the state. But see Regents of the Univ. of Cal. v. Superior Court of
Los Angeles Cty., 225 Cal. App. 3d 972, 981 (1990) ((1) not subsidizing violations of federal law and (2) preferring to
educate the state’s own lawful residents recognized as legitimate state interests in denying eligibility for in-state tuition
at public institutions of higher education to unauthorized aliens).
86
Plyler, 457 U.S. at 221.
87
Id. at 222.
88
LULAC, 908 F. Supp. at 785.
89
Hispanic Interest Coalition of Ala. v. Gov. of Ala., 691 F.3d 1236, 1245 (11th Cir. 2012) (“Our duty ... is to analyze
whether [this provision of Alabama law] operates in such a way that it ‘significantly interferes with the exercise of’ the
right to an elementary public education as guaranteed by Plyler. ... We conclude that it does and, further, find that no
substantial state interest justifies the interference.”), cert. denied, Alabama v. United States, 133 S. Ct. 2022 (2013).
90
Plyler, 457 U.S. at 219 n.19. Other language in Plyler could, however, potentially be construed to mean that
Congress’s ability to authorize state and local classifications based on alienage is limited to unauthorized aliens. See,
e.g., id. at 226 (“In other contexts, undocumented status, coupled with some other articulable federal policy, might
enhance state authority with respect to the treatment of undocumented aliens.”) (emphases added).
84
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provides such a uniform rule, as discussed below.91 If it does, state and local measures that follow
this rule could potentially be subject to rational basis review, like federal measures, and thus more
likely to withstand legal challenges.92 Similarly, several courts and commentators have noted that
the Supreme Court precedents applying strict scrutiny to measures classifying persons on the
basis of alienage all arose from challenges brought by LPRs (i.e., lawful immigrants). Some have
suggested that classifications affecting lawful nonimmigrants (i.e., aliens lawfully permitted to
remain in the country on a temporary basis) might be subject to less stringent review, regardless
of whether PRWORA provides a uniform rule,93 as is also discussed below.
Whether PRWORA Provides a Uniform Rule for States and Localities
Courts have reached differing conclusions about whether PRWORA provides a uniform rule
regarding noncitizens’ eligibility for public benefits, like that contemplated in Plyler. Some
courts, including one federal appellate court, have suggested that it does. In its 2004 decision in
Soskin v. Reinertson, the U.S. Court of Appeals for the Tenth Circuit (“Tenth Circuit”)
characterized the state law in question—which repealed optional state-funded Medicaid coverage
for certain aliens—as “addressing the Congressional concern (not just a parochial state concern)
that ‘individual aliens not burden the public benefits system.’”94 The Tenth Circuit further noted
that, although PRWORA expressly authorizes states to make a number of determinations
affecting noncitizens’ eligibility for public benefits, it “does not give the states unfettered
discretion. Some coverage must be provided to aliens; some coverage is forbidden. State
discretion is limited to the remaining optional range of coverage.”95 Previously, in its 1999
decision in Cid v. South Dakota Department of Social Services, the Supreme Court of South
Dakota had reached a similar conclusion, finding that an administrative rule which terminated
certain noncitizens’ eligibility for benefits did not conflict with national policies regarding aliens,
and placed no burdens on aliens other than those contemplated by federal law.96
Other courts, in contrast, have found that PRWORA does not establish a uniform rule that permits
states to classify persons on the basis of alienage when providing public benefits. New York’s
highest state court reached this conclusion in its much-cited 2001 decision in Aliessa v. Novello.
There, the court applied strict scrutiny in reviewing a challenge to a state law that barred the
provision of state-funded Medicaid coverage to lawfully present aliens who were not qualified
91
The conference report on PRWORA, in particular, suggests that Members were aware of the possibility that
congressional action could potentially affect judicial scrutiny of state and local measures affecting certain noncitizens.
See Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Conference Report, supra note 12, at
382 (“[Plyler v. Doe] may imply ... that Congress may influence the eligibility of illegal aliens for State benefits.”).
92
However, even if PRWORA were seen as establishing a uniform rule, state or local measures that did not adopt this
rule could potentially still be strictly scrutinized. See, e.g., Kurti v. Maricopa Cty., 33 P.3d 499 (Ariz. 2001) (finding
that the state law in question was invalid, in part, because its treatment of certain aliens differed from PRWORA),
appeal after remand, Avila v. Biedess, 78 P.3d 280 (Ariz. App. 2003).
93
See, e.g., 1-6 IMMIGRATION LAW & PROCEDURE §6.07[1] (“[Graham’s] holding may to some extent be limited to
[LPRs].”); David A. Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of
Zadvydas v. Davis,” 2001 SUPREME COURT REVIEW 47, 86-87, 92-97, 107 (“I believe the categorical approach still
holds up and justifies a major distinction between LPRs and other aliens for constitutional purposes.”).
94
353 F.3d 1242, 1255 (10th Cir. 2004).
95
Id.
96
598 N.W.2d 887, 892 (S.D. 1999). The South Dakota Supreme Court further opined, that if strict scrutiny were
applied, the challenged rule “would pass such review,” because the state has a “compelling interest in implementing the
national immigration policy,” and the rule was the least restrictive means of achieving that interest. Id. at 892 n.10.
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aliens for purposes of PRWORA, as well as to qualified aliens who had not resided in the United
States for five years.97 The court did so because it did not view PRWORA’s provisions regarding
aliens’ eligibility for public benefits as reflecting “a uniform national policy.”98 Rather, according
to the Aliessa court,
[PRWORA] expressly authorizes States to enact laws extending “any State or local public
benefit” even to those aliens not lawfully present within the United States ... The converse is
also true and exacerbates the lack of uniformity: ... subject to certain exceptions, States are
authorized to withhold State Medicaid from even those qualified aliens who are eligible for
Federal Medicaid under PRWORA. Thus, in administering their own programs, the States
are free to discriminate in either direction—producing not uniformity, but potentially wide
variation based on localized or idiosyncratic concepts of largesse, economics and politics.99
Maryland’s highest court took a similar view in its 2006 decision in Ehrlich v. Perez.100 There, the
court applied strict scrutiny in invaliding a state budget measure that did not appropriate funds for
the State Medical Assistance Program for resident alien children and pregnant women who
immigrated to the United States on or after PRWORA’s enactment, but funded the same benefits
for citizens and resident aliens who arrived before that date.101 The state argued that this was
permissible, because Congress had prescribed “a uniform rule for the treatment of an alien subclass in regard to the provision of medical benefits.”102 The court, however, disagreed, finding
that PRWORA did not prescribe a uniform rule.103 The court further suggested that it was not
inclined to view as compelling the alleged government interests that PRWORA recognized as
such (i.e., enacting new rules for eligibility and sponsorship agreements in order to assure that
aliens are self-reliant in accordance with national immigration policy, and removing the incentive
for illegal immigration provided by the availability of public benefits).104 It also suggested that,
even if PRWORA had prescribed a uniform rule, state measures that classify persons on the basis
of alienage would remain subject to strict scrutiny because Congress cannot authorize the states to
violate the constitutional guarantee of Equal Protection.105
97
754 N.E.2d 1085 (N.Y. 2001).
Id. at 1098.
99
Id.
100
908 A.2d 1220 (Md. 2006).
101
Id. at 1223-24.
102
Id. at 1231.
103
Id. at 1241. See also Hong Pham v. Starkowski, No. HHDCV095034410S, 2009 Conn. Super. LEXIS 3470, at *50
(Conn. Super., Dec. 18, 2009) (“[PRWORA] simply does not provide the states with any sort of consistent guidance or
clear limits as to what they can and cannot do.”), rev’d on other grounds, 16 A.3d 635 (Conn. 2011); Finch v.
Commonwealth Health Insurance Connector Auth., 946 N.E.2d 1262, 1277 (Mass. 2011) (“PRWORA ... does not
require that states apply Federal eligibility requirements but instead merely declares that Federal policy will not be
thwarted if states decide to discriminate against qualified aliens.”), appeal after remand on other grounds, 959 N.E.2d
970 (Mass. 2012); Korab v. McManaman, 805 F. Supp. 2d 1027, 1035 (D. Haw. 2011) (“Because ... PRWORA gave
states a choice in determining what benefits to provide certain groups of aliens, ... PRWORA did not create a uniform
rule for states to follow.”).
104
Ehrlich, 908 A.2d at 1244 n.23. Cf. Hong Pham, Conn. Super. LEXIS 3470, at *52 (government cost savings not a
compelling interest for purposes of strict scrutiny), rev’d on other grounds, 16 A.3d 635 (Conn. 2011).
105
Ehrlich, 908 A.2d at 1239 (quoting Shapiro v. Thompson, 394 U.S. 618, 641 (1969) (finding that state laws that
denied public benefits to persons who had not resided in the jurisdiction for at least one year infringed upon the
fundamental right to travel, and suggesting that, even if Congress had approved a one-year waiting period, the state
legislation could still be found to infringe constitutional rights because “Congress may not authorize the States to
violate the Equal Protection Clause”), and Saenz v. Roe, 526 U.S. 489, 509 (1999) (similar)). See also Korab, 805 F.
(continued...)
98
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It is important to note, however, that the structure of the programs in question, as well as the
framing of the issues by the litigants, can substantially affect the outcome in such cases. Several
courts have, for example, recently suggested that the repeal of state programs that had benefited
qualified aliens who were ineligible for federal means-tested public benefits because they had not
been present in the United States in a qualified status for the requisite period of time are not
subject to strict scrutiny, so long as (1) the beneficiaries of the state program are exclusively
aliens, and (2) the only comparable programs benefitting citizens are federal ones. The U.S. Court
of Appeals for the Ninth Circuit (Ninth Circuit), for example, found that the noncitizens
challenging the repeal of a Washington law failed to raise an equal protection claim, since they
had failed to show that the state had “treated the plaintiff[s] differently from similarly situated
individuals.”106 Because there were no similarly situated individuals, the Ninth Circuit rejected
plaintiffs’ Equal Protection challenge without subjecting the repeal measure to either strict
scrutiny or rational basis review.107
Other courts, however, have applied rational basis review in upholding similar measures,
sometimes on the grounds that rational basis review should govern state measures that repeal (as
opposed to create) programs that benefited only aliens.108 In other cases, the court has suggested
that rational basis review is appropriate so long as the measure only distinguishes between classes
of aliens, and does not distinguish between aliens and citizens.109
Level of Scrutiny Applied to State Measures Affecting Lawful Nonimmigrants
Questions have also been raised recently regarding the level of scrutiny to be applied to state and
local measures denying lawful nonimmigrants drivers or occupational licenses, which constitute
benefits under certain definitions of this term. Many of the Supreme Court and other cases
discussed previously, scrutinizing state and local benefits measures, involved LPRs (i.e., lawful
immigrants, many of whom reside and work in the United States for extended periods of time).
Far fewer challenges have involved aliens lawfully admitted to the United States as
nonimmigrants (such as guestworkers), and two federal courts of appeals expressly noted the lack
of Supreme Court precedent applying strict scrutiny to measures affecting nonimmigrants in
finding that such measures are subject to a lower level of scrutiny than that given to measures
affecting LPRs.
(...continued)
Supp. 2d at 1037 (similar).
106
Pimentel v. Dreyfus, 670 F.3d 1096 (9th Cir. 2012). See also Hong Pham, 16 A.3d at 435 (no classification based on
alienage and no violation of Equal Protection where the benefit that was denied to aliens as the result of a statute’s
repeal was not made available to citizens); Khrapunskiy v. Doar, 909 N.E. 70, 76 (N.Y. 2009) (“Because the State did
not create a program of benefits which excluded plaintiffs, levels of scrutiny are inapplicable and there is no basis for
an equal protection challenge.”).
107
Pimentel, 670 F.3d at 1106-10.
108
See, e.g., Soskin v. Reinertson, 353 F.3d 1242 (10th Cir. 2004) (applying rational basis review); Bruns v. Mayhew,
No. 1:12-CV-00131-JAW, 2013 U.S. Dist. LEXIS 35322, at *18 (D. Me. Mar. 14, 2013) (“Several federal and state
courts have concluded that a state’s elimination of a state-created and state-funded benefit program for noncitizens
ineligible for federal benefits does not violate the Equal Protection Clause.”) (collecting cases).
109
See, e.g., Doe, 773 N.E.2d at 411; Soskin, 353 F.3d at 1256. The Supreme Court has rejected the argument that
certain measures “only” distinguished between classes of aliens and, as such, were subject to less stringent review. See
Nyquist v. Mauclet, 432 U.S. 1, 8-9 (1977) (striking down a New York law that barred certain resident aliens from
obtaining state financial assistance for higher education). However, the challenged measure in this case provided
benefits to citizens and certain LPRs which were denied to other LPRs.
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In its 2005 decision in LeClerc v. Webb, the U.S. Court of Appeals for the Fifth Circuit (Fifth
Circuit) upheld a Louisiana law that prohibited lawful nonimmigrants from sitting for the state
bar exam, in part, because it viewed “rational basis review ... [as] the appropriate standard for
evaluating state law classifications affecting nonimmigrant aliens.”110 In so doing, the Fifth
Circuit distinguished an earlier case, In re Griffiths, wherein the Supreme Court invalidated a
Connecticut law that conditioned bar admission on U.S. citizenship, on the grounds that the
plaintiffs in Griffiths were LPRs,111 and the Supreme Court “ha[s] never applied strict scrutiny
review to a state law affecting ... other alienage classifications.”112 In particular, the Fifth Circuit
found that LPRs are distinguishable from lawful nonimmigrants because LPRs are unable to
“exert political power in their own interest given their status as virtual citizens,” while lawful
nonimmigrants’ lack of legal capacity is “tied to their temporary connection to this country.”113
The Fifth Circuit also found that, while LPRs can be said to be “similarly situated” to citizens in
their economic, social and civic conditions, lawful nonimmigrants are not.114 The Fifth Circuit
noted, among other things, that lawful nonimmigrants may not serve in the U.S. military, are
subject to strict restrictions on employment, and incur different tax treatment than citizens and
LPRs.115 The Fifth Circuit relied upon similar reasoning in its 2011 decision in Van Staden v. St.
Martin, upholding a Louisiana law that barred lawful nonimmigrants from obtaining practical
nursing licenses.116
The U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) reached a similar conclusion in its
2007 decision in League of United Latin American Citizens [LULAC] v. Bredesen.117 There, in
upholding a Tennessee law that permitted lawful nonimmigrants to obtain only “certificates for
driving,” not driver’s licenses, the Sixth Circuit observed that “lawful permanent residents are the
only subclass of aliens who have been treated as a suspect class.”118 Like the Fifth Circuit, the
Sixth Circuit noted that the Supreme Court had never applied strict scrutiny to a state or local
measure affecting aliens who were not LPRs, and found that lawful nonimmigrants differ from
LPRs in ways which suggest that the traditional rationale for applying strict scrutiny to measures
affecting LPRs (i.e., their similarity to citizens) might not apply to measures affecting lawful
nonimmigrants.119 The Sixth Circuit further found that the Tennessee law withstood rational basis
110
419 F.3d 405, 420 (5th Cir. 2005).
Id. at 415.
112
Id. at 416. As the Fifth Circuit noted here, the Supreme Court has never applied strict scrutiny to a case involving
aliens who are not LPRs, instead either foregoing Equal Protection analysis, or applying modified rational basis review.
See Toll v. Moreno, 458 U.S. 1 (1982) (foregoing Equal Protection analysis in a case involving lawful nonimmigrant
aliens); De Canas v. Bica, 424 U.S. 351 (1976) (foregoing Equal Protection analysis in a case involving unauthorized
aliens); Plyler v. Doe, 457 U.S. 202 (1982) (applying modified rational basis review in a case involving unauthorized
aliens).
113
LeClerc, 419 F.3d at 417. See also id. at 417-18 (further suggesting that “the numerous variations among
nonimmigrant aliens’ admission status make it inaccurate to describe them as a class that is ‘discrete’ or ‘insular,’” and
thus a suspect classification for Equal Protection purposes).
114
Id. at 418.
115
Id. at 418-19. The Fifth Circuit then went on to uphold the Louisiana law under rational basis review, finding that
the state had a substantial interest in regulating the practice of those it admits to the bar, and that the challenged
restriction bears a rational relationship to this interest by assuring clients that attorneys licensed by the Louisiana bar
will provide “continuity and accountability in legal representation”). Id. at 421.
116
664 F.3d 56 (5th Cir. 2011), cert. denied, 113 S. Ct. 110 (Oct. 1, 2012).
117
500 F.3d 523 (6th Cir. 2007).
118
Id. at 533.
119
Id. at 533-35.
111
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review since it “was designed to serve homeland security interests by indicating to third parties
that the State of Tennessee does not vouch for the identity of the person holding a certificate for
driving while at the same time allowing the holder of the certificate to validly operate a motor
vehicle in Tennessee,” and the plaintiffs had failed to show why these restrictions are not
rationally related to a legitimate government interest.120
Most recently, however, the U.S. Court of Appeals for the Second Circuit (Second Circuit)
reached the opposite conclusion in its 2012 decision in Dandamudi v. Tisch, applying strict
scrutiny to strike down a New York law that permits only U.S. citizens and LPRs to become
licensed pharmacists.121 The Second Circuit reached this conclusion, in part, because it viewed
Supreme Court precedent as recognizing only two circumstances in which state and local
classifications based on alienage are not subject to strict scrutiny: namely, (1) when a state
excludes aliens from political and governmental functions; and (2) when a state denies certain
benefits to unauthorized aliens.122 It thus declined to recognize a third exception for measures
involving aliens who are not LPRs, although it acknowledged that the Supreme Court had “never
explicitly applied strict scrutiny review to a statute discriminating against nonimmigrant
aliens.”123 The Second Circuit also rejected the reasoning applied by the Fifth and Sixth Circuits,
particularly their grounds for distinguishing lawful nonimmigrants from LPRs.124 According to
the Second Circuit, lawful nonimmigrants are, in practice, no different than LPRs in that they
often live and work in the United States for extended periods of time.125 Relatedly, the Second
Circuit noted that the purported “transience” of nonimmigrant aliens does not provide a
compelling justification for barring nonimmigrants from obtaining pharmacist licenses and
practicing in the state, since “[c]itizenship and Legal Permanent Residency carry no guarantee
that a citizen or LPR professional will remain in New York ..., have funds available in the event
of malpractice, or have the necessary skill to perform the task at hand.” 126
While these decisions all focus upon licenses, they could have potentially significant implications
for state and local measures regarding noncitizens’ eligibility for public benefits more
generally.127 Certain states, in particular, have adopted definitions of public benefits or related
terms that would encompass drivers’ licenses or occupational and professional licenses.128
120
Id. at 536-37.
686 F.3d 66 (2d Cir. 2012).
122
Id. at 73-74. See supra notes 81-83 and accompanying text.
123
686 F.3d at 73-74. As the Second Circuit noted, all the cases where the Court applied strict scrutiny in striking down
state measures involved challenges brought by LPRs. See Nyquist, 432 U.S. at 7 (New York law requiring immigrants
to pledge to become citizens before they could receive financial aid); Examining Bd. of Eng’rs, Archs. & Surveyors v.
Flores de Otero, 426 U.S. 572, 601-06 (1976) (Puerto Rican law denying licenses to immigrant engineers); Sugarman
v. Dougall, 413 U.S. 634, 642-43 (1973) (New York statute prohibiting immigrants from working in the civil service);
In re Griffiths, 413 U.S. 717, 721-22 (1973) (Connecticut statute barring immigrants from sitting for the bar).
124
686 F.3d at 76-79.
125
Id. at 78.
126
Id. at 79.
127
Lawful nonimmigrants are not included within PWRORA’s definition of qualified alien. However, PRWORA
would appear to permit (although not require) states and localities to provide public benefits to lawful nonimmigrants.
See 8 U.S.C. §1621(a). As a practical matter, however, generally applicable requirements limiting benefits to state
residents could potentially serve to bar many lawful nonimmigrants in the United States for short periods of time from
receiving benefits. See, e.g., Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Conference
Report, supra note 12, at 384 ; Doe v. Comm’r of Transitional Assistance, 773 N.E. 2d 404 (Mass. 2002) (upholding a
state law requiring noncitizens to have resided in the state for six months before receiving certain benefits).
128
See, e.g., GA. CODE ANN. §50-36-1(a)(4)(A)(i); Montana Immigrant Justice Alliance v. Bullock, No. BDV-2012(continued...)
121
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However, PRWORA expressly exempts professional and commercial licenses for nonimmigrants
whose visas are related to employment in the United States from its definition of public
benefits,129 which would appear to limit the ability of states and localities to assert that they are
complying with a “uniform rule” established by the federal government when restricting
nonimmigrants’ ability to obtain occupational and professional licenses.130 To the contrary, an
argument could potentially be made that, to the degree that the state or locality purports to deny
an occupational or professional license to an alien whom the federal government admitted to
work in a particular field, the state or local measure is preempted by federal law.131 In fact, the
Second Circuit indicated that it viewed the New York law as “stand[ing] as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.” 132 However, its
holding in Dandamudi was not based on preemption since some plaintiffs had “TN status”
created pursuant to the North American Free Trade Agreement (NAFTA), and only the federal
government may bring suit challenging state laws inconsistent with NAFTA.133
Preemption of State and Local Measures
State and local measures concerning noncitizens’ eligibility for public benefits can raise questions
of preemption, because the Supremacy Clause of the U.S. Constitution establishes that federal
law, treaties, and the Constitution itself are “the supreme Law of the Land, ... any Thing in the
Constitution or Laws of any state to the Contrary notwithstanding.”134 In particular, the
Constitution entrusts Congress with the power to regulate immigration.135 This means that state or
local measures that purport to regulate immigration—by determining which aliens may enter or
remain in the United States, or the terms of their continued presence—are, per se, preempted,
regardless of whether Congress has legislated on the matter.136 Other measures, which affect
aliens, but do not constitute regulation of immigration, could also be found to be preempted,
(...continued)
1042, Order on Petition, supra note 82, at 2.
129
8 U.S.C. §1611(c)(2)(A) (federal public benefits); 8 U.S.C. §1621(c)(2)(A) (state and local public benefits).
130
See supra notes 94 to 109 and accompanying text.
131
See infra “Preemption of State and Local Measures.”
132
Dandamudi, 686 F.3d at 80. But see LeClerc, 419 F.3d 423-26 (finding that a Louisiana law barring lawful
nonimmigrants from obtaining law licenses was not preempted, in part, because H-1B visas permit non-licensed
employment). The Sixth Circuit did not directly address the question of preemption in its decision in LULAC, although
its statements there suggest it probably would not have looked favorably on such a claim. See LULAC, 500 F.3d at 533
(“[T]he classification drawn by Tennessee law ... is in no way inconsistent with federal law, but rather mirrors it.”).
133
Dandamudi, 686 F.3d at 81 (citing and discussing 19 U.S.C. §3312(b)(2)).
134
U.S. Const., art. VI, cl. 2.
135
Courts have located the source of this power in various provisions of the Constitution, and in the inherent power of
sovereign nations to control the terms upon which noncitizens may enter and remain within their borders. See, e.g.,
Nat’l Fed’n of Indep. Bus. v. Sebelius,—U.S.—, 132 S. Ct. 2566, 2600 (2012) (Congress’s powers under the
Commerce Clause); Arizona v. United States,—U.S.—132 S. Ct. 2492, 2498 (2012) (power to establish a uniform rule
of naturalization); Nishimara Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international
law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid
the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may
see fit to prescribe.”); Henderson v. Mayor of New York, 92 U.S. 259 (1876) (power to regulate interstate commerce);
Chy Lung v. Freeman, 92 U.S. 275 (1875) (power to regulate the admission of noncitizens); The Passenger Cases, 48
U.S. 283 (1849) (power to regulate foreign commerce).
136
See, e.g., De Canas, 424 U.S. at 355 (also noting that preemption by this constitutional power occurs regardless of
whether the power is “latent,” or has been “exercised”).
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depending upon the scope of any congressional enactments. Specifically, federal statutes may
preempt state and local measures in one of three ways: (1) the statute expressly indicates its
preemptive intent (express preemption); (2) a court concludes that Congress intended to occupy
the regulatory field, thereby implicitly precluding state or local action in that area (field
preemption); or (3) state or local action directly conflicts with or otherwise frustrates the purpose
of the federal scheme (conflict preemption).137 Preemption claims have recently been raised in
response to state and local measures that would define benefits broadly and bar the provision of
benefits to unauthorized aliens.
Restrictions on Benefits as Regulations of Immigration
The Supreme Court distinguished between impermissible regulations of immigration, and
permissible measures affecting aliens, in its 1976 decision in De Canas v. Bica. There, in
reversing and remanding a state court decision finding that a California law which prohibited the
knowing employment of unauthorized aliens was preempted, the Court noted that
the fact that aliens are the subject of a state statute does not render it a regulation of
immigration, which is essentially a determination of who should or should not be admitted
into the country, and the conditions under which a legal entrant may remain. ... In this case,
California has sought to strengthen its economy by adopting federal standards in imposing
criminal sanctions against state employers who knowingly employ aliens who have no
federal right to employment within the country; even if such local regulation has some purely
speculative and indirect impact on immigration, it does not thereby become a constitutionally
proscribed regulation of immigration.138
Subsequent decisions have generally followed De Canas, striking down state and local measures
that are seen as determining who should be admitted to the country, or the conditions under which
entrants may remain, and reviewing other measures affecting aliens within the context of
congressional enactments, as discussed below. However, courts have reached differing
conclusions as to what types of measures are to be seen as determining who may be admitted to
the country or the conditions under which they may remain.
In several cases, state or local measures that would deny benefits to certain noncitizens have been
found to be preempted regulations of immigration because they would create their own categories
for classifying aliens, or would involve state and local officials in determining aliens’ status. For
example, the provisions of California’s Proposition 187 restricting noncitizens’ eligibility for
“public social services” and “publicly-funded health care services,” discussed previously, were
initially struck down on these grounds.139 In particular, the reviewing court noted that, by
137
See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000); English v. Gen. Elec. Co., 496 U.S. 72,
78-79 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248-49 (1984); Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 203-04 (1983). The delineation between these categories, particularly
between field and conflict preemption, is not rigid. See English, 462 U.S. at 79 n.5 (“By referring to these three
categories, we should not be taken to mean that they are rigidly distinct. Indeed, field pre-emption may be understood
as a species of conflict pre-emption: A state law that falls within a pre-empted field conflicts with Congress’ intent
(either express or plainly implied) to exclude state regulation.”); Crosby, 530 U.S. at 373 n.6.
138
424 U.S. 351, 355-56 (1976). It should be noted that, after De Canas was decided, the Immigration and Nationality
Act (INA) was amended to impose sanctions on persons who employ unauthorized aliens. See generally CRS Report
R41991, State and Local Restrictions on Employing Unauthorized Aliens, by (name redacted).
139
Subsequently, after PRWORA was enacted, the provisions were found to be preempted by PRWORA. See LULAC,
1998 U.S. Dist. LEXIS 3418, at *43-*44.
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categorizing persons as citizens, LPRs, or “admitted lawfully for a temporary period of time,”
Proposition 187 “created its own scheme setting forth who is, and who is not, entitled to be in the
United States” that “is not in any way tied to federal standards.”140 According to the court, the
creation of this independent scheme constituted a regulation of immigration because it was
tantamount to determining which aliens may enter and the conditions on which they may remain.
The court similarly viewed Proposition 187’s requirement that state officials “make independent
determinations as to whether a person is deportable under federal law” as a regulation of
immigration, since it, too, would have involved the state in determining who may be admitted to
and remain in the country.141 Subsequent state or local measures have similarly been found to be
preempted because they created their own classifications of aliens and/or authorized state or local
officials to determine aliens’ status, including an Alabama law that prohibited various categories
of aliens from attending public post-secondary institutions of higher education,142 and a Montana
law that barred “illegal aliens” from receiving state services.143
There is less agreement as to whether measures that would deny benefits to noncitizens, but do
not involve state or local classifications or determinations of aliens’ status, are regulations of
immigration. Some courts have suggested that they are on the grounds that aliens are effectively
excluded from jurisdictions where they cannot obtain necessary benefits.144 Other courts,
however, have held that the denial of benefits can only be said to have a “purely speculative and
indirect impact on immigration,” and thus does not constitute a regulation of immigration under
De Canas.145 Yet other courts have found that, while the denial of benefits, in itself, is generally
not a regulation of immigration, the denial of benefits that significantly affect noncitizens’ ability
to obtain housing within the jurisdiction should be viewed as such.146 One federal district court,
140
LULAC, 908 F. Supp. at 769-72. In particular, the court noted that federal “standards for who is and is not
deportable are entirely different” from those contemplated by Proposition 187, even if “lawfully admitted” is construed
to mean those who are lawfully present in the United States, not those who entered lawfully. See id. at 772-73.
141
Id. at 773.
142
Hispanic Interest Coalition, 691 F.3d at 1242-42 (noting that the district court had found this provision preempted
because it was “understood to define lawful presence as requiring lawful permanent residence or a nonimmigrant visa,”
but finding that there was no basis for enjoining its enforcement at present since the legislature had deleted this
language). See also United States v. Alabama, 691 F.3d 1269, 1298 (11th Cir. 2011) (finding that an Alabama law that
called for withholding business, commercial, and professional licenses from aliens who are “not lawfully present” was
permissible, pursuant to PRWORA, but that as-applied challenges could arise if “not lawfully present” were construed
in a manner inconsistent with federal immigration law).
143
Order on Petition for Preliminary Injunction, see supra note 62 (finding that the definition of “unauthorized alien”
used in the referendum encompassed aliens who had entered unlawfully, but whose current presence was lawful).
144
See, e.g., Kurti, 33 P.3d 499 (“[B]ecause Arizona’s statutes discourage entry into or continued residence in Arizona,
they conflict with the ‘constitutionally derived federal power to regulate immigration’ and may be invalidated on
federal preemption grounds.”). Some support for this view can be found in Graham v. Richardson, where the Supreme
Court noted that “State laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage
conflict with ... overriding national policies in an area constitutionally entrusted to the Federal Government.” 403 U.S.
at 378. However, Graham could potentially be distinguished from subsequent state and local measures denying benefits
to unauthorized aliens, in particular, since Graham involved state measures that restricted benefits to LPRs, and was
decided prior to PRWORA. See id. at 377 (expressly noting that “Congress has not seen fit to impose any burden or
restriction on aliens who become indigent after their entry to the United States).
145
See, e.g., LULAC, 908 F. Supp. at 771 (“To the extent that state actors deny benefits to persons based on
determinations by federal authorities that those individuals are deportable pursuant to federal law, benefits denial is not
a direct regulation of immigration, but rather, has only the possible indirect effect of deterring ‘illegal’ aliens from
coming to California or causing them to leave.”).
146
Villas at Parkside Partners, 701 F. Supp. 2d at 855 (noting that such measures “directly impact immigration”),
aff’d, 2013 U.S. App. LEXIS 14953 (5th Cir., July 22, 2013).
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for example, found that, while the local ordinance in question was “grounded in federal
immigration classifications ..., ... it use[d] those classifications for purposes not authorized or
contemplated by federal law” when attempting to deny residential occupancy licenses to aliens
who were not lawfully present.147
Preemption by the INA or PRWORA
Measures that are not per se preempted as regulations of immigration can also be challenged on
the grounds that they are expressly or impliedly preempted by federal statute. The outcome in
such cases can vary considerably, depending upon the terms of the state or local measure, and the
provisions of the federal statute that allegedly preempts it. However, certain issues have been
litigated with some frequency, and often addressed in similar fashion by the courts. For example,
the provisions of the Immigration and Nationality Act (INA) barring the employment of
unauthorized aliens have generally not been seen as preempting such aliens’ eligibility for public
benefits and, particularly, their recovery of workers’ compensation.148 Similarly, the INA’s
provisions regarding alien harboring have not been seen as preempting state and local measures
(enacted pursuant to PRWORA) providing benefits to unauthorized aliens.149 Nor has the INA’s
provisions regarding nonimmigrant visas (particularly student visas) been seen as preempting
state measures that would permit unauthorized aliens who have completed a certain number of
years of secondary education within the state from obtaining in-state tuition.150
Courts have disagreed as to whether PRWORA constitutes a comprehensive scheme such that it
could be said to have occupied the regulatory field concerning noncitizen eligibility for benefits,
precluding States and localities from establishing their own eligibility standards. Some courts
have suggested that it does, noting,
The intention of Congress to occupy the field of regulation of government benefits to aliens
is declared throughout Title IV of [PRWORA]. Whatever the level of government extending
the benefits and whatever the source of the funding for the benefits—federal, state or local—
they are all included within the expansive reach of [PRWORA]. The ... law includes:
statements of national policy regarding the denial of public benefits to illegal immigrants ...;
rules regarding immigrant eligibility for federal, state and local benefits, including
definitions of the benefits covered ...; a description of state legislative options in the area of
immigrant eligibility for state or local benefits ...; and a system for verifying immigration
status to determine eligibility for benefits and services. Together, these provisions both
demarcate a field of comprehensive federal regulation within which states may not legislate,
and define federal objectives with which states may not interfere.151
147
701 F. Supp. 2d at 855. The district court specifically distinguished residential occupancy licenses from other types
of benefits or assistance, whose denial has been found not to constitute a regulation of immigration in some cases. Id.
(“[R]egulation that conditions the ability to enter private contract for shelter on federal immigration status is of a
fundamentally different nature than the sorts of restrictions on employment or public benefits that have been found not
to be preempted regulations of immigration.”).
148
See, e.g., Dowling v. Slotnik, 712 A.2d 396, 403 (Conn. 1998) (finding that requiring employers to pay workers’
compensation is not a state or local “sanction” of the sort expressly prohibited by Section 274a of the INA, and that
providing workers’ compensation does not stand as an obstacle to removing the “employment magnet” for such aliens).
149
Kaider, 975 N.E.2d at 678.
150
Day v. Sebelius, 376 F. Supp. 2d 1022, 1028, 1033 (D. Kan. 2005).
151
LULAC, 1998 U.S. Dist. LEXIS 3418, at *17. See also Equal Access Educ. v. Merten, 103 F. Supp. 2d 585, 603
(E.D. Va.) (“[I]t does appear that Congress has preempted the field of determining alien eligibility for certain public
(continued...)
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Other courts, however, have noted the range of discretion that PRWORA left to the state, and
found that PRWORA does not constitute a “comprehensive scheme,” or “purport to offer a
definitive approach to the problem that Congress perceived.”152 Such courts have generally
emphasized that PWRORA expressly authorizes states to enact measures making unauthorized
aliens eligible for state and local benefits. In such courts’ view, the fact that Congress has granted
this authority to the states—with “no ... limits on the duration, extent, or quantity of state or local
benefits” that may be provided—precludes a finding that Congress has impliedly preempted the
field.153 Courts have generally also relied upon similar logic in rejecting the argument that state
and local measures providing benefits to unauthorized aliens are preempted because they conflict
with the stated congressional policy that “aliens within the Nation’s borders not depend on public
resources to meet their needs.”154
Defining “Benefits” and Related Terms
What constitutes a benefit for purposes of particular federal, state, and local statutes can raise
issues of statutory interpretation and administrative law. Statutes generally cannot address all
potential circumstances wherein questions might arise about whether individual aliens are entitled
to specific benefits. Thus, courts frequently must construe various statutes addressing noncitizens’
eligibility for public benefits in the course of applying them in particular cases and controversies.
In many cases, the court does this by relying upon the “plain meaning” rule. This rule calls for
courts to look to the statutory text, as opposed to legislative history, when the meaning is clear.155
In other cases, the court may consult the legislative history of the statute in an attempt to
determine lawmakers’ intent; or resort to other canons of statutory construction.156 In yet other
cases, the executive agency tasked with implementing the statute has, formally or informally,
interpreted the statute in the course of administering it, and the court must determine what degree
of deference, if any, is to be accorded to the agency’s interpretation. Courts generally grant the
greatest deference to agency interpretations that were adopted by an agency through notice-andcomment rulemaking,157 although interpretations adopted through other means may also be
granted some deference.158
(...continued)
benefits, including even state benefits,” with PRWORA, but finding that PRWORA had not preempted the field of
post-secondary education).
152
Alabama, 691 F.3d at 1300.
153
Kaider, 975 N.E.2d at 678; Martinez, 241 P.3d at 855.
154
Kaider, 975 N.E.2d at 678.
155
See, e.g., Darby v. Cisneros, 509 U.S. 137, 147 (1993) (“Recourse to the legislative history of §10(c) is unnecessary
in light of the plain meaning of the statutory text.”); USA Choice Internet Servs., LLC v. United States, 522 F.3d 1332,
1336 (Fed. Cir. 2008) (“In construing a statute, we begin with the literal text, giving it its plain meaning.”).
156
See generally CRS Report 97-589, Statutory Interpretation: General Principles and Recent Trends, by (name red
acted).
157
See Chevron U.S.A. v. Natural Resources Def. Council, 467 U.S. 837 (1984).
158
See Skidmore v. Swift & Co., 323 U.S. 134 (1944) (holding that, while rulings, interpretations, and opinions of the
Administrator under the Fair Labor Standards Act are not binding upon the courts, they are entitled to deference based
upon their “power to persuade”); Reno v. Koray, 515 U.S. 50, 61 (1995) (internal Bureau of Prisons guideline
interpreting the phrase “official detention” is entitled to deference where it constitutes a permissible construction of the
statute).
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Three questions, in particular, have recurred as to noncitizens’ eligibility for public benefits: (1)
what constitutes a public benefit for purposes of PRWORA; (2) what does it mean for a state law
to “affirmatively provide” for unauthorized aliens’ eligibility for public benefits; and (3) what
constitutes a federal means-tested public benefit for purposes of PRWORA. These three questions
are the focus of the discussion below. However, it is important to note that PRWORA and other
measures affecting noncitizens’ eligibility for public benefits have also raised related questions
(e.g., what it means for an alien to have entered the United States in a qualified status, what
constitutes an emergency medical condition, etc.), that are outside the scope of this report.159 It
should also be noted that identical terms can be construed differently in different provisions of
law.160 Relatedly, courts in different jurisdictions could potentially construe the same statute
differently.
“Public Benefits” for Purposes of PRWORA
As previously noted, PRWORA encompasses various types of government assistance within its
definitions of public benefits, including grants, contracts, loans, and professional or commercial
licenses, as well as retirement, welfare, health, disability, public or assisted housing,
postsecondary education, food assistance, and unemployment benefits.161 However, it also refers
to “other similar benefit[s],”162 raising questions about whether particular types of assistance
constitute federal, state, or local public benefits for purposes of PRWORA. Some have argued
that this term be construed narrowly, as encompassing only cash payments provided directly to
the alien.163 Others have proposed that the term be construed broadly, to encompass every
function that government instrumentalities perform for persons within their jurisdictions.164
Courts have, to date, generally declined to adopt either of these views, instead viewing “other
similar benefit[s]” as services that “assist people with economic hardship,”165 and could
potentially “create [an] incentive for illegal immigration.”166
In County of Alameda v. Agustin, for example, the California Court of Appeals rejected the
argument that “child collection support services” and the issuance of a court order requiring child
support payments constituted state and local public benefits and, thus, could not be provided to an
159
See, e.g., Greenery Rehabilitation Group, Inc. v. Hammon, 150 F.3d 226 (2d Cir. 1998) (emergency medical
condition); Szewczyk v. Dep’t of Social Servs., 881 A.2d 259 (Conn. 2005) (same); Andrianova v. Ind. Family &
Social Servs. Admin., 799 N.E.2d 5 (Ind. App. 2003) (“continuous physical presence).
160
Megrabian v. Saenz, 30 Cal. Rptr. 262 (Cal. App. 2005) (finding that a state agency’s interpretation of the phrase
“entered the United States,” when used in a California statute, to mean the date one attained one’s current immigration
status was permissible, notwithstanding the fact that the Social Security Administration has construed this term, when
used in certain federal statutes, to mean physical entry). See also Riggs v. Riggs, 622 N.W. 2d 861, 866-67 (Neb. 2001)
(finding that the earned income tax credit (EITC) is a means-tested public assistance benefit for purposes of Nebraska
child support law). Federal agencies have not recognized the EITC as a federal means-tested public benefit for purposes
of PRWORA. See infra “Agency Determinations Regarding Federal Means-Tested Public Benefits.”
161
8 U.S.C. §1611(c)(1) (federal public benefits); 8 U.S.C. §1621(c)(1) (state and local public benefits).
162
Id.
163
See, e.g., Martinez, 83 Cal. Rptr. at 531 (rejecting the state’s argument that “benefit” has the same meaning in
Sections 1622 and 1623 of Title 8 of the United States Code, and encompasses only cash assistance; and finding that
in-state tuition is a benefit for purposes of PRWORA since it is a calculable amount), rev’d on other grounds, 241 P.3d
855 (Cal. 2010).
164
See cases cited, infra, notes 175 to 179 and accompanying text.
165
Rajeh v. Steel City Corp., 813 N.E.2d 697, 707 (Ohio App. 2004).
166
2007 Cal. App. Unpub. LEXIS 7665, at *10 (1st App. Dist., Div. One, Sept. 24, 2007).
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unauthorized alien in the absence of a state law that expressly provided for noncitizens’
eligibility.167 While the court’s primary rationale for reaching this conclusion was that child
support payments were made from private funds, it noted the county’s role in obtaining these
funds,168 but found this role permissible given the purposes of PRWORA and the types of benefits
encompassed within its definition of state and local public benefits. According to the court,
PRWORA was intended to “reduce the incentive for illegal immigration by denying publicly
financed social welfare benefits to aliens not residing legally in the United States.” 169 The court
also noted that all the benefits listed in PRWORA are “direct income support payments” or
“services intended to meet the daily needs of disadvantaged persons,” and are “continuing or
potentially continuing benefits, intended to provide ongoing public support for the recipients for
as long as required.” 170 It viewed the child collection support services as “quite different” from
the benefits listed in PRWORA because such services do not “foster[] dependence on public
support.” 171 Rather, according to the court, such services are intended to help recipients support
themselves, and terminate with the award of child support. Thus, the court concluded that,
because child collection support services “provide no continuing public assistance to recipients”
and “create little or no incentive for illegal immigration,” they are not state and local public
benefits for purposes of PRWORA.172 The court further noted that, “when properly provided,
child support collection services return to the local agency considerably more funds than they
cost.” 173
Other decisions by various state courts have expressly or apparently relied upon similar logic in
finding that workers’ compensation;174 benefits payable from a state fund for compensating
victims of hit-and-run accidents and uninsured motorists;175 admission to or enrollment at public
institutions of higher education (but not in-state tuition);176 residential occupancy licenses for
renters;177 payment of prevailing wages;178 funding of an entity that provides services to day
laborers;179 and death benefits under federal employees’ group life insurance policies180 do not
167
Id. at *8-*10. See infra “Affirmatively Providing” for Unauthorized Aliens’ Eligibility.”
2007 Cal. App. Unpub. LEXIS 7665, at *8.
169
Id. at *9.
170
Id.
171
Id. The court did not directly address the question of whether the award of child support by the court constituted a
public benefit. However, lawsuits to enforce private rights have traditionally not been viewed as public benefits. See,
e.g., Cano v. Mallory Mgmt., 760 N.Y.S.2d 816 (2003).
172
2007 Cal. App. Unpub. LEXIS 7665, at *10.
173
Id.
174
Rajeh, 813 N.E.2d at 707; Dowling, 712 A.2d at 412 n.17. But see Dowling, 712 A.2d at 414 (McDonald, J.,
dissenting) (provision of workers’ compensation benefits would constitute “an incentive for illegal immigrants to enter
or remain in th[e] country”).
175
Caballero v. Martinez, 897 A.2d 1026 (N.J. 2006) (noting that the fund was administered by a private, non-profit
entity, is not funded by state appropriations, and its benefits are not similar to the “need-based benefits” listed in
PRWORA). The court further noted that an alien’s ability to recover from the fund if he or she is injured in an accident
involving an uninsured or hit-and-run driver would not create incentives for unauthorized immigration.
176
Equal Access Educ., 305 F. Supp. 2d at 605. But see Sanchez v. Hall, No.5:10-CT-3027-D, 2011 U.S. Dist. LEXIS
145542 (E.D.N.C., Dec. 19, 2011) (suggesting that enrollment in state-funded post-secondary education, in itself, could
potentially constitute a public benefit for purposes of PRWORA).
177
Villas at Parkside Partners, 701 F. Supp. 2d at 856.
178
City Plan Dev., Inc. v. Office of the Labor Comm’r, 117 P.3d 182, 190 (Nev. 2005).
179
Garcia v. Dicterow, No. G039824, 2008 Cal. App. Unpub. LEXIS 9611, at *25 (Fourth App. Dist., Div. Three, Nov.
26, 2008).
168
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constitute public benefits for purposes of PRWORA. However, in-state tuition181 and certain
health programs182 have been found by some reviewing state courts to be public benefits.
More recently, similar questions have arisen as to what it means for professional licenses to be
provided by a government agency or with appropriated funds. In particular, in challenging
petitions from unauthorized aliens seeking admission to the California and Florida bars, the
federal government and other parties have suggested that PRWORA generally bars unauthorized
aliens from receiving law licenses unless the state legislature has adopted a statute that
“affirmatively provides” for their eligibility.183 According to this view, state high courts, which
generally regulate admission to the state bar, are state agencies because they are part of the state’s
judicial branch.184 Similarly, according to this view, law licenses are provided by appropriated
funds since state high courts rely, in part, on appropriated funds to finance their operations.185
Others, however, have argued that state courts are not state “agencies,” as that term is
conventionally understood, and that bar applicants pay fees for their licenses.186 It remains to be
seen what the courts will decide, or whether administrative agencies or the courts will adopt an
equally broad view of what it means for other (non-license) benefits to be provided by a
government agency, or by appropriated funds.187
(...continued)
180
Herrera v. Metropolitan Life Insurance Co., No. 11 Civ. 1901 (LAK), 2011 U.S. Dist. LEXIS 145409 (S.D.N.Y.,
Dec. 19, 2011) (finding that such benefits were not public benefits for purposes of PRWORA because they were
available only to government employees, not to the “public at large”). The court also viewed the benefit in question as
one belonging to the government employee, which she then gave to her unauthorized alien spouse. See also Ruiz v.
Robinson, 892 F. Supp. 2d 1321 (S.D. Fla. 2012) (in-state tuition is a benefit to the student, and PRWORA thus does
not bar the provision of in-state tuition to students who are U.S. citizens, but whose parents are unauthorized aliens).
181
Martinez, 83 Cal. Rptr. at 533, rev’d on other grounds, 242 P.3d 855 (Cal. 2010).
182
See, e.g., Soskin v. Reinertson, 353 F.3d 1242 (10th Cir. 2004); Dep’t of Health v. Rodriguez, 5 So. 3d 22 (Fla. App.
2009). In the latter case, in particular, the alien asserted that the program fell within PRWORA’s exemptions permitting
states to provide services for the treatment of emergency medical conditions and certain community based programs to
unauthorized aliens. However, the court disagreed.
183
See, e.g., In re Sergio C. Garcia on Admission, Bar Misc. 4186, Application and Proposed Brief for Amicus Curiae
the United States of America (filed Cal., Aug. 3, 2012); In re Sergio C. Garcia on Admission: Amicus Curiae Brief in
Opposition to Admission (filed Cal., July 23, 2012).
184
Brief for Amicus Curiae the United States of America, supra note 170, at 9 (suggesting that the term “agency,” as
used in PRWORA, could be construed to “cover any instrumentality of the State” since PRWORA does not define this
term, and the plain meaning of “agency” includes “a person or thing through which power is exerted or an end is
achieved: INSTRUMENTALITY, MEANS”) (internal quotations omitted); Amicus Curiae Brief in Opposition to
Admission, supra note 170, at 9-12 (similar).
185
Brief for Amicus Curiae the United States of America, supra note 170, at 9 (“It is ... undisputed that this Court [i.e.,
the California Supreme Court] and its officers are funded through appropriations”).
186
See, e.g., In re Sergio C. Garcia on Admission, Bar Misc. 4186, Opening Brief of Applicant (filed Cal., June 18,
2012).
187
Both “prongs” of PRWORA’s definition of public benefits—the one addressing grants, contracts, and licenses, and
the one addressing other benefits—refer to benefits “provided ... by appropriated funds.” However, the fact that
appropriated funds serve, in any way, to finance the provision of assistance that, some would say, falls within the
second prong has historically not necessarily resulted in such assistance being found a public benefit. See supra notes
174 to 179 and accompanying text.
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“Affirmatively Providing” for Unauthorized Aliens’ Eligibility
Because PRWORA bars states and localities from providing benefits to unauthorized aliens unless
the state has enacted a measure that “affirmatively provides” for such eligibility,188 questions have
also been raised about what it means to affirmatively provide for unauthorized aliens’ eligibility.
Some have asserted that a measure must expressly reference Section 411(d) of PRWORA (8
U.S.C. §1621(d)), and clearly specify that unauthorized aliens will be eligible, in order to
affirmatively provide for such aliens’ eligibility. This view is generally based on the conference
report accompanying PRWORA, which states that “[o]nly the affirmative enactment of a law by a
... legislature and signed by the Governor after the date of enactment of this Act, that references
this provision, will meet the requirements of this section.”189 However, as enacted, PRWORA
does not require that states refer to either Section 411, or to the aliens being unauthorized, and
reviewing courts generally have found that there are no such requirements. In reaching this
conclusion, the courts have noted that Congress has elsewhere required states to reference
specific provisions of federal law when enacting particular measures, and PRWORA does not do
this.190 Thus, they concluded, Congress is presumed not to have intended to impose such a
requirement with PRWORA. Courts have also found that nothing in PRWORA requires states to
include in any measures making unauthorized aliens eligible for public benefits language that
“clearly put[s] the public on notice that tax dollars are being used to benefit illegal aliens.”191
However, one court has suggested that a state could not be said to have “affirmatively provided”
for unauthorized aliens’ eligibility if it were to “confer[] a benefit generally without specifying
that its beneficiaries may include undocumented aliens.”192 This court further found that resorting
to the conference report and PRWORA’s legislative history in construing “affirmatively provides”
is inappropriate, since the plain meaning is clear.193
Courts have also found that state legislatures may, consistent with Section 411 of PRWORA,
delegate to administrative agencies or local governments the authority to determine whether
unauthorized aliens are eligible for particular benefits.194 At least one court has indicated that it
views the judicial branch as similarly entitled to provide for unauthorized aliens’ eligibility for
any “benefits” within the court’s power to grant.195 However, PRWORA does refer to measures
being “enacted,”196 and certain parties challenging unauthorized aliens’ eligibility for law licenses
have asserted that, while courts could be said to “adopt” rules, they do not “enact” legislation.197
188
See 8 U.S.C. §1621(a) & (d).
Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Conference Report, supra note 12, at
383 (emphasis added).
190
Martinez, 241 P.3d at 1296 (“Congress has shown it knows how to require a state specifically to reference a federal
law when it wishes to do so, because it has done just that numerous times.”); Kaider, 975 N.E.2d at 674 (similar).
191
Martinez, 83 Cal. Rptr. at 544, rev’d, 241 P.3d at 1296; Kaider, 975 N.E.2d at 674.
192
Martinez, 241 P.3d at 1296.
193
Id. at 1295. See also Kaider, 975 N.E.2d at 672.
194
Kaider, 975 N.E.2d at 678. In other words, while PRWORA states that legislation must be enacted that
“affirmatively provides” for unauthorized aliens’ eligibility for public benefits, it does not preclude the delegation of
certain authority from the legislative branch to the executive branch, or from a state government to local governments.
195
Cano v. Mallory Mgmt., 760 N.Y.S.2d 816 (2003) (even if ability to sue for negligence were a state and local public
benefit for purposes of PRWORA, the court could extend such benefits to unauthorized aliens).
196
8 U.S.C. §1621(d).
197
Amicus Curiae Brief in Opposition to Admission, supra note 183, at 15.
189
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Agency Determinations Regarding Federal Means-Tested Public Benefits
Some have questioned the degree of deference to be accorded to federal agency determinations
regarding federal means-tested public benefits and, specifically, whether benefit programs other
than the five historically recognized by the federal government ought to be included. As noted
previously, PRWORA does not affirmatively define federal means-tested public benefits. Rather,
it excludes certain benefits (e.g., some emergency disaster relief) from the application of the
general bar upon the receipt of such benefits by qualified aliens during their first five years after
entering the United States in a qualified status.198 Executive agencies have determined that federal
means-tested public benefits means SSI, TANF, Medicaid, food stamps, and the state Child
Health Insurance Program (SCHIP).199
As introduced in the House and Senate, PRWORA would have defined federal means-tested
public benefits to mean the following:
a public benefit (including cash, medical, housing, and food assistance and social services) of
the Federal Government in which the eligibility of an individual, household, or family
eligibility unit for benefits, or the amount of such benefits, or both are determined on the
basis of income, resources, or financial need of the individual, household, or unit.200
However, this definition was stricken from the bill passed by the Senate because PRWORA was
brought to the floor as a reconciliation bill and, as such, was subject to procedural rules allowing
challenges to extraneous provisions. As used here, extraneous provisions included provisions that
“produced changes in outlays or revenues which are merely incidental to the non-budgetary
components of the provision.” The proposed definition of federal means-tested public benefits
was deemed to be extraneous because it “reached discretionary spending programs, which, in this
context, lay beyond the proper scope of the reconciliation process.”201 However, the conference
report accompanying the language that was ultimately enacted as PRWORA includes a statement
that the conferees intended the term federal means-tested public benefit to be construed in light of
the definition given in the bill as introduced.202
Following PRWORA’s enactment, the Departments of Health and Human Services and Housing
and Urban Development proposed regulations, which other agencies either concurred in or
198
See supra note 29 and accompanying text.
See Social Security Admin., Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Federal
Means-Tested Public Benefits Paid by the Social Security Administration, 62 Fed. Reg. 45284, 45284-85 (Aug. 26,
2007) (“The Social Security Administration announces that, of the programs it administers, only supplemental security
income benefits under title XVI of the Social Security Act are ‘Federal means-tested public benefits’ for purposes of
title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as amended.”); Dep’t of
Health & Human Services, Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA);
Interpretation of “Federal Means-Tested Public Benefit,” 62 Fed. Reg. 45256 (Aug. 26, 1997) (“[T]he HHS programs
that constitute ‘Federal means-tested public benefits’ under PRWORA are Medicaid and TANF.”); Dep’t of Ag., Food
Stamp Program: Noncitizen Eligibility, and Certification Provisions of P.L. 104-193, as Amended by Public Laws 104208, 105-33 and 105-185, 65 Fed. Reg. 10856, 10876 (Feb. 29, 2000) (“[F]ood stamps are a ‘Federal means-tested
public benefit’ under section 403.”).
200
Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Conference Report, supra note 12, at
381-82.
201
See Proposed Agency Interpretation of “Federal Means-Tested Public Benefits,” supra note 31.
202
Personal Responsibility and Work Opportunity Reconciliation Act of 1996: Conference Report, supra note 12, at
382.
199
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deferred to, that construed federal means-tested public benefits as encompassing only mandatory
spending programs, not discretionary ones.203 The Office of Legal Counsel (OLC) at the
Department of Justice subsequently expressed its view that these regulations are entitled to
deference, since the statutory text is ambiguous, and the agency’s construction is a reasonable
one.204 OLC acknowledged that “[s]everal aspects of the text and legislative history of
[PRWORA], when viewed in isolation,” could potentially be said to “support a broad[er]
interpretation of ‘federal means-tested public benefit’ that would include discretionary
programs.”205 However, OLC found that these factors carried less weight than Congress’s
ultimate decision not to incorporate a definition of federal means-tested public benefits that
encompassed discretionary spending programs in the text of PRWORA as enacted.206 In so
finding, OLC cited the “well-settled canon of interpretation that ‘where the final version of a
statute deletes language contained in an earlier draft, [it may be presumed] that the earlier draft is
inconsistent with ultimate congressional intentions.”207 It also pointed to several provisions that
had been struck from the Senate-passed version of PRWORA on the grounds that they were
extraneous, and subsequently been reintroduced by the conference committee.208 The definition of
federal means-tested public benefits was not one of these. OLC further suggested that PRWORA
ought to be construed in light of the rules governing reconciliation that shaped its enactment,
which foreclosed consideration, in that context, of provisions affecting discretionary spending.209
Following the OLC’s opinion, individual agencies promulgated additional regulations identifying
specific mandatory spending programs that they administered as providing federal means-tested
public benefits.210
No court appears to have addressed the permissibility of these agency interpretations. However,
as noted in OLC’s opinion, any party seeking a broader (or narrower) application of the term
federal means-tested public benefit in the courts could face significant legal barriers, since
PRWORA does not define this term, and the agencies tasked with implementing the statute have
done so by notice-and-comment rulemaking. Where Congress has not addressed the “precise
question at issue,” courts generally defer to “reasonable” agency interpretations.211 On the other
hand, it should be noted that the fact that federal agencies have historically interpreted the phrase
federal means-tested public benefit to mean five specific mandatory spending programs would
not necessarily preclude them from interpreting the phrase differently in the future.212
203
See U.S. Dep’t of Health & Human Services, Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA); Interpretation of “Federal Means-Tested Public Benefit,” 62 Fed. Reg. 45256 (Aug. 26, 1997). The
Office of Legal Counsel’s opinion addressed the permissibility of these regulations before they were promulgated.
204
See Proposed Agency Interpretation of “Federal Means-Tested Public Benefits,” supra note 31.
205
Id. (noting particularly the dictionary definition of means-tested; the conference report language previously noted;
and the inclusion of some discretionary programs in the listing of programs expressly excluded from the application of
PRWORA’s restrictions on the provision of federal means-tested public benefits to qualified aliens).
206
Id.
207
Id.
208
Id.
209
Id.
210
See sources cited, supra, note 199.
211
See Chevron, 467 U.S. at 843.
212
Chevron, 467 U.S. at 863-64 (“The fact that the agency has from time to time changed its interpretation of the term
‘source’ does not ... lead us to conclude that no deference should be accorded the agency’s interpretation of the statute.
An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed
rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Moreover, the
fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition
(continued...)
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Conclusion
As the foregoing discussion illustrates, noncitizen eligibility for public benefits can raise
complicated legal issues in part because of the various federal, state, and local statutes regarding
such eligibility, and in part because the construction and application of these statutes can raise
questions of constitutional law, statutory interpretation, and administrative law. The situation does
not seem likely to change in the near future. In fact, Congress has recently considered a number
of changes to noncitizens’ eligibility for public benefits, some intended to expand, and other to
restrict, such eligibility.213 Issues related to noncitizens’ eligibility are also being litigated in the
courts, with different jurisdictions coming to sometimes different conclusions on the same
question (e.g., the standard of review applicable to measures affecting nonimmigrant aliens).
Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
(...continued)
itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute.”).
213
See, e.g., Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, as passed by the
Senate, §2103(f) (eligibility of certain aliens legalizing their status for specified assistance under the Higher Education
Act); Sessions25-(ERN13165), available at http://www.judiciary.senate.gov/legislation/immigration/amendments.cfm
(proposing to prohibit aliens from becoming registered provisional immigrants if the alien is deemed likely to receive
“State means-tested assistance,” among other things).
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