The Trump administration has issued a new legal interpretation mandating that state governments report information on undocumented immigrants, stating that federal aid could be suspended if they refuse. This is an all-out pressure measure aimed at involving state and local governments in immigration enforcement, and fierce legal battles are expected in the future.
According to an opinion released on the 1st by the Office of Legal Counsel (OLC) of the U.S. Department of Justice, states participating in federal financial aid programs for low-income individuals must report information on residents deemed to be undocumented immigrants to the federal government. As all U.S. states participate in these programs, effectively state governments nationwide are subject to this regulation. The Department of Justice interpreted that the obligation to report undocumented immigrants applies to all state government agencies receiving federal funds, particularly regarding Temporary Assistance for Needy Families (TANF), a program supporting low-income families, and Supplemental Security Income (SSI) for the elderly and disabled.
Previous administrations had determined that the reporting obligation applied only to state government agencies directly implementing the relevant federal welfare programs. However, through this opinion, the Department of Justice has significantly expanded the scope of the reporting obligation to all state governments receiving federal funds. In a statement, Deputy Attorney General T. Elliott Geiser stated, “Congress has clearly defined this requirement,” adding that “if a state government chooses to participate in TANF, it is accepting the obligation to report undocumented immigrants within the United States.” He further argued, “Taxes intended to help vulnerable Americans should not encourage illegal entry but should contribute to strengthening the law and borders.”
This opinion, drafted by Deputy Assistant Attorney General Joshua Craddock, is part of the Trump administration’s hardline immigration enforcement policy. This could serve as a legal basis to cut off federal funding to state governments that do not cooperate with the administration’s large-scale deportation operations.
However, past attempts by the federal government to compel cooperation from state and local governments have been repeatedly blocked by the courts. This opinion officially retracts the previous interpretation issued by the Office of Legal Counsel in 1998 during the Clinton administration. That opinion narrowly interpreted the obligation to report undocumented immigrants, limiting it only to agencies enforcing federal welfare programs. The new interpretation does not bring about immediate changes to immigration enforcement operations.
Other federal agencies must devise concrete plans for how to actually enforce this, and there is a high likelihood that new legal battles with state governments will erupt during this process. The Department of Justice stated that the new policy applies only to federal funds allocated in the future. This means it cannot be applied retroactively to existing agreements concluded based on the past legal interpretation. Deputy Assistant Secretary Craddock explained, “Because the parties to the agreement at the time had differing understandings regarding the state governments’ reporting obligations, the administration cannot retroactively change that agreement.” State governments further added that they may reconsider whether to continue participating in TANF or SSI programs in the future, taking this opinion into account.
It is unclear on what grounds state governments will “recognize” a specific resident as an undocumented immigrant. Controversy is also expected regarding who will determine immigration status and on what level of evidence or suspicion. In 2000, several federal agencies interpreted the circumstances under which state governments could determine an individual’s undocumented status in an extremely limited manner. They considered that a report could only be made if an official legal judgment had been made following review and verification by federal immigration authorities.
However, Deputy Assistant Secretary Craddock pointed out that this interpretation raised the standard for “recognition” too high compared to what is required by law. He explained that state governments could be considered to “know” the situation even if the Department of Homeland Security (DHS) notified them, the relevant agency possessed records showing undocumented status, or the individual themselves admitted to being undocumented.
