DOJ opinion urges states to report migrants lacking permanent legal status

The Justice Department on Wednesday concluded that states must alert the federal government to any migrants without permanent legal status who are seeking access to welfare and other programs for low-income families.

The opinion from the department’s Office of Legal Counsel (OLC) rescinds Clinton-era guidance that it said “construed the reporting requirement much more narrowly” and is yet another effort by the Trump administration to use various levers of the government to root out immigrants.

The opinion addresses obligations states face by accepting funding to run the Temporary Assistance for Needy Families (TANF) and Supplemental Security Income programs, which are massive safety net programs that also help older adults and disabled Americans.

“The entire state government — including all component agencies — is bound by federal law to share information with DHS [the Department of Homeland Security] about individuals the state knows to be not lawfully present,” the Justice Department wrote in a press release announcing the new opinion.

The welfare programs listed by the Justice Department are already only open to U.S. citizens and lawful immigrants. States can use their own funds to augment their program to assist more newly arrived legal immigrants. But the programs are completely off-limits to those without lawful status.

“I wouldn’t say this is about people who lack immigration status given that it’s the federal government, and not states, that determines whether someone is lawfully or unlawfully present,” said Jorge Loweree, a managing director at the American Immigration Council.

“This is about instilling fear and creating chaos, likely starving people in the process.”

The OLC provides legal advice to the attorney general, and while its opinions are not binding like a judicial order, they inform the government’s approach.

“Congress wrote this requirement plainly,” said Assistant Attorney General T. Elliot Gaiser, head of the OLC, in a statement.

“When a state chooses to participate in TANF, it accepts the obligation to report illegal aliens in the United States. Tax dollars intended to help vulnerable Americans should not perversely encourage illegal entry into the United States, but rather should reinforce our laws and our borders.”

The Trump administration has made various efforts to access state databases and has pushed to link different federal records, both with the hopes of finding migrants without lawful status.

The Justice Department has lost roughly 20 suits seeking to compel states to share their voter registration files, with the DHS also seeking the rolls after kicking off an effort to find noncitizens they allege have registered to vote.

Noncitizen voting in U.S. elections is incredibly rare.

The left-leaning Brennan Center for Justice found 30 instances of noncitizen voting out of 23.5 million votes as it reviewed the 2016 election. Meanwhile, the conservative Heritage Foundation found just 24 instances of noncitizen voting between 2003 and 2023.