Undoing Clinton’s Sabotage of Restrictions on Immigrant Welfare Use

Summary

• The historic Personal Responsibility and Work Opportunity Reconciliation Act of 1996 was designed to “strengthen[] the principle that immigrants come to America to work, not to collect welfare benefits”. It provided that while lawful permanent residents and other “qualified aliens” are eligible for federal welfare programs (“federal means-tested public benefit”), eligibility generally begins only after five years in the U.S. — “to send a clear signal that immigrants are expected to … not become dependent on public welfare benefits prior to obtaining citizenship”. And PRWORA and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provided that when U.S. citizens or lawful permanent residents sponsor relatives for green cards, the sponsored aliens are inadmissible unless the sponsors execute affidavits of support legally enforceable by any entity that provides any “means-tested public benefit”.
• Because these laws did not define “means-tested public benefit”/federal means-tested public benefit”, the Clinton administration largely neutered their protections for American taxpayers in the immigration system — essentially limiting the applicability of the five-year waiting period and the affidavit of support to only a few welfare programs.
• PRWORA had contained common-sense definitions — benefits determined on the basis of income, resources, or financial need are “means-tested”. But the definitions were struck on the Senate floor on a purely procedural basis. They applied to welfare programs funded on both a “mandatory” and a “discretionary” basis, the former doled out regardless of how much money Congress has appropriated, the latter only until appropriated funds have been exhausted. On the Senate floor, a senator raised a successful “Byrd rule” point of order, eventually explaining that since PRWORA was budget reconciliation legislation, the definitions violated the rule because discretionary programs were outside the Finance Committee’s jurisdiction and had a “merely incidental” impact on the budget. Yet, the Senate and House conference report — signed by the senator who raised the point of order — subsequently clearly stated that “It is the intent of conferees that this definition be presumed to be in place.”
• Democratic constituencies were angered by President Clinton’s signing of PRWORA into law. Clinton wrote in his signing statement that he had “strong objections to certain provisions, which I am determined to correct”, including that the Act “would deny Federal assistance to legal immigrants”.
• The Clinton administration then decided that only “mandatory” means-tested benefits programs would be covered by the waiting period and affidavit of support provisions. This despite the fact that the plain meaning of the terms demand definitions that do not differentiate between mandatory and discretionary programs. And even were the definitions still found to be ambiguous, then their “best reading”, consistent with the definitive evidence of legislative intent, demands such definitions.
• Over the past quarter century, no succeeding administration has revisited the Clinton administration’s legerdemain. The almost three-decade-long reign of the Clinton administration’s travesty of statutory interpretation needs to come to an end. The promise to the American taxpayer embodied in PRWORA and IIRIRA needs to be fulfilled.
• In President Trump’s first term, the White House apparently drafted an executive order directing DHS to define “means-tested public benefit” for purposes of the affidavit of support in a manner including both mandatory and discretionary welfare programs. I would urge that President Trump consider now issuing such an order for purposes of both the waiting period and the affidavit of support.
• Current Supreme Court Justice Elena Kagan during her stint in the Clinton White House played a major role in developing the administration’s stance. If the Supreme Court is ever called on to decide the meaning of “means-tested public benefit” and “federal means-tested public benefit”, Justice Kagan will need to recuse herself.

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1996 Welfare Reform Legislation

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) were two historic pieces of legislation designed in part to curtail aliens’ access to the federal government’s welfare programs.

PRWORA enshrined two core principles “concerning national policy with respect to welfare and immigration” in the Immigration and Nationality Act: 1) that aliens “not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations”; and 2) that “the availability of public benefits not constitute an incentive for immigration to the United States”. Congress bemoaned the fact that “[d]espite the principle of self-sufficiency, aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates” and that “Current eligibility rules for public assistance … have proved wholly incapable of assuring that individual aliens not burden the public benefits system.” And Congress stressed that “enact[ing] new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant” was “a compelling government interest”.

PRWORA’s conference report proclaimed “No More Welfare for Noncitizens”, and while the legislation did not actually go that far, the report contended that it “make[] sweeping reforms” to “strengthen[] the principle that immigrants come to America to work, not to collect welfare benefits”.

How did the drafters of PRWORA and IIRIRA seek to accomplish this goal?

Illegal and Other Non-“Qualified Aliens” and “Federal Public Benefits”

PRWORA provided that illegal aliens, aliens on temporary visas, and other aliens not defined as “qualified aliens” were ineligible for any “federal public benefit”, defined (with certain exceptions) as:

(A) any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and

(B) 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 an agency of the United States or by appropriated funds of the United States.

But as my colleague Elizabeth Jacobs has explained, the Trump administration’s Department of Health and Human Services (HHS) published a Federal Register notice on July 14 concluding that in 1998, HHS under the Clinton administration had “artificially and impermissibly constrain[ed] the[ statute’s] definition [of federal public benefit], and the scope of PRWORA’s effect, in at least four main ways”. HHS then “set forth the correct interpretation of the definition of ‘Federal public benefit[]’ [and] determined that the list of HHS programs set forth in … 1998 … needs to be updated”. HHS provided notice that it will consider 13 additional HHS programs as providing “federal public benefits” (and thus generally off-limits to non-qualified aliens), including the Title X Family Planning Program; Head Start; Community Services Block Grants; Substance Use Prevention, Treatment, and Recovery Services Block Grants; Community Mental Health Services Block Grants; Projects for Assistance in Transition from Homelessness Grants; and Certified Community Behavioral Health Clinics.

“Qualified” Aliens and “Means-Tested Public Benefit”

The term “federal means-tested public benefit” is integral to a number of provisions in PRWORA restricting the access of qualified aliens to federal welfare programs, of which I will discuss three.

First, as the conference report explained, PRWORA provided that “[m]ost welfare … ends for most non-citizens during their first 5 years in the United States” and that while “qualified aliens” are eligible for federal means-tested public benefits, eligibility only begins (with certain exceptions) after aliens have been in the U.S. for five years (with the status of qualified aliens).

The House Budget Committee’s report on H.R. 3734, the House basis for PRWORA, stated that “[t]he purpose” of the five year delay in eligibility “is to send a clear signal that immigrants are expected to uphold pledges that have been required under U.S. immigration law for generations that they will not become dependent on public welfare benefits prior to obtaining citizenship [as aliens can generally seek to naturalize after five years in lawful permanent residence (LPR) status].”

A “qualified alien” is an alien who is 1) an LPR; 2) granted asylum; 3) admitted as a refugee; 4) paroled into the U.S. for a period of at least one year; 5) having their deportation withheld from a country where they would more likely than not be persecuted; 6) a “Cuban and Haitian entrant” (generally speaking, any Cuban or Haitian national paroled into the U.S.); or 7) an alien who has been approved, or has a petition pending, for certain immigration benefits and has been battered or subject to extreme cruelty (or whose parent or child has been) by certain relatives.

Second, PRWORA (later amended by IIRIRA) provided that aliens sponsored for LPR status by U.S. citizen or LPR relatives were inadmissible unless the sponsors executed legally enforceable affidavits of support with respect to the sponsored aliens. By signing an affidavit, a sponsor agreed 1) “to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable”; 2) “that [the affidavit] is legally enforceable against the sponsor by the sponsored alien, the Federal Government, any State (or any political subdivision of such State), or by any other entity that provides any means-tested public benefit”; and 3) “to submit to the jurisdiction of any Federal or State court for the purpose of actions” for reimbursement. Further, “Upon notification that a sponsored alien has received any means-tested public benefit, the appropriate … entity … shall request reimbursement by the sponsor in an amount which is equal to the unreimbursed costs of such benefit.”

Third, PRWORA (later amended by IIRIRA), provided that:

[I]n determining the eligibility and the amount of benefits of an alien for any Federal means-tested public benefits program … the income and resources of the alien shall be deemed to include the … income and resources of any person who executed an affidavit of support … on behalf of such alien.

This is referred to as “deeming” or “attribution of income”.

But while PRWORA defined “federal public benefit”, it did not define “means-tested public benefit” or “federal means-tested public benefit”. This lack of statutory definitions allowed the Clinton administration to largely neuter PRWORA’s/IIRIRA’s limitations on qualified aliens’ access to federal welfare programs — essentially limiting the applicability of PRWORA’s/IIRIRA’s provisions keyed to such benefits to only a few welfare programs. Over the past quarter-century, no succeeding administration has revisited the Clinton administration’s legerdemain.

In the rest of this report, I explain why PRWORA did not define “means-tested public benefit” or “federal means-tested public benefit”, how the Clinton administration used the lack of definitions to gut PRWORA, and how the Trump administration can undo the damage.

The Byrd Rule

The House-passed bill (H.R. 3734) had defined “federal means-tested public benefit” to mean:

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.

It provided for a near-identical definition of “means-tested public benefit”, but also encompassed benefits of a state (or a political subdivision of a state). The bill that initially went to the Senate floor (S. 1956) contained identical definitions.

But as Dawn Johnsen, acting assistant attorney general, and Randolph Moss, deputy assistant attorney general, Office of Legal Counsel, wrote in a January 14, 1997, “Memorandum Opinion for the General Counsel Department of Health and Human Services” (Memorandum Opinion):

• [PROWRA] was brought to the floor of the Senate as a reconciliation bill, and as such was subject to the special rules that govern the reconciliation process set forth in section 313 of the [Congressional Budget Act of 1974] CBA.

• When the Senate bill reached the floor, Senator Exon [D-Neb.] invoked the Byrd rule to raise an omnibus point of order against a number of provisions … including the definition[s of ‘‘means-tested public benefit” and] federal means-tested public benefit.”

What is the Byrd rule? Johnsen and Moss explained in their Memorandum Opinion that:

• The Byrd rule was adopted in 1986, following years of struggle on the Senate floor over the inclusion of extraneous provisions in budget reconciliation legislation. Originally enacted as section 20001 of the Consolidated Omnibus Budget Reconciliation Act of 1985 … it was, in 1990, incorporated as section 313 of the [CBA].

• Section 313 serves to facilitate the expedited consideration of reconciliation legislation by providing a mechanism for restricting the content of such legislation to provisions that are material to the reconciliation process. … Over time, these subject matter restrictions have become known as the “Byrd rule,” after Senator Robert Byrd [D-W.Va.], their principal proponent. The basic purpose of the Byrd rule is twofold: to protect the effectiveness of the reconciliation process by excluding extraneous material that has no significant budgetary effect, and to preserve the deliberative character of the Senate by exempting from expedited consideration all legislative matters that should properly be debated under regular procedures.

Of course, the prime benefit of the reconciliation process is that, as the Bipartisan Policy Center explained, a reconciliation bill “receives expedited consideration in the Senate — no ability to delay or filibuster — through time limits on debate and, with a consent agreement, amendments”. Thus, “a reconciliation bill can avoid the Senate’s 60-vote filibuster threshold and provides lawmakers the chance to pass legislation with a simple majority vote.”

Sen. Byrd himself stated on the Senate floor on October 24, 1985, that:

[T]he Senate is a deliberative body, and the reconciliation process is not a deliberative process. Such an extraordinary process, if abused, could destroy the Senate’s deliberative nature. Senate committees are creatures of the Senate, and, as such, should not be in the position of dictating to the Senate … [b]y including mater[i]al not in their jurisdiction or matter which they choose not to report as separate legislation to avail themselves of the nondeliberative reconciliation process. Senate committees violate the compact which created both them and the reconciliation process.

Section 313 of the CBA is now found at 2 U.S.C. § 644 and provides that:

When the Senate is considering a reconciliation bill … upon a point of order being made by any Senator against material extraneous to the instructions to a committee which is contained in any title or provision of the bill … or offered as an amendment to the bill … and the point of order is sustained by the Chair, any part of said title or provision that contains material extraneous to the instructions to said Committee … shall be deemed stricken from the bill and may not be offered as an amendment from the floor.

With certain exceptions, a provision of a reconciliation bill is considered extraneous if:

• [it] does not produce a change in outlays or revenues[,]

• the net effect … is that the committee fails to achieve its reconciliation instructions[,]

• [it] is not in the jurisdiction of the committee with jurisdiction over said title or provision[,]

• it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision[,]

• it increases, or would increase, net outlays, or if it decreases, or would decrease, revenues during a fiscal year after the fiscal years covered by such reconciliation bill … and such increases or decreases are greater than outlay reductions or revenue increases resulting from other provisions in such title in such year[, or]

• it violates [2 U.S.C. §] 641(g) [by containing recommendations with respect to the old-age, survivors, and disability insurance program established under title II of the Social Security Act].

As Johnsen and Moss explained, “The Parliamentarian upheld Senator Exon’s Byrd rule objection on the grounds that the provision[s] w[ere] outside the Finance Committee’s jurisdiction [which only extended to mandatory programs] and that, to the extent the definition[s] encompassed discretionary programs, [their] impact on the budget was ‘merely incidental.’” They noted that “The ruling sustaining Senator Exon’s objection was not appealed by any other Senator,” and, thus, the definitions of “means-tested federal benefit” and “federal means-tested public benefit” were struck from the bill.

What is the difference between mandatory and discretionary programs? Johnsen and Moss explained that:

Rules determining eligibility for discretionary program benefits within a reconciliation bill have no direct effect on the budget. Rather, reducing the size of a discretionary program is accomplished by Congress reducing the appropriation for the program, which the proposed definition[s] of [means-tested public benefit” and] “federal means-tested public benefit” did not do. By contrast, so-called entitlement, or mandatory, programs, generally operate under indefinite appropriations; the size of the program is not determined based on a fixed appropriation, but rather on expenditures incurred for all eligible program participants. Thus expenditures under mandatory programs can be directly reduced by restricting eligibility and thereby reducing the number of people receiving benefits.

Byrd Droppings: The Clinton Administration’s Defining Away of the 1996 Restrictions on Legal Aliens’ Access to Federal Welfare

Johnsen and Moss wrote their Memorandum Opinion in order to evaluate the “Proposed Agency Interpretation of ‘Federal Means-Tested Public Benefit[s]’ Under [PRWORA]”, the interpretation being that the term applied only to mandatory (and not discretionary) spending programs. They concluded that the interpretation proffered by HHS and the Department of Housing and Urban Development, and concurred in or deferred to by the Departments of Agriculture, Education, Labor, and Veterans Affairs and the Social Security Administration, “constitutes a permissible and legally binding construction of the statute”.

Thus, on August 26, 1997, HHS published a Federal Register notice announcing that it would only consider mandatory means-tested spending programs as “federal means-tested benefit” programs, and that only two of its programs — Medicaid and Temporary Assistance for Needy Families (TANF) — qualified.

On what basis did Johnsen and Moss reach their conclusion? They explained that:

[T]hrough application of [the Byrd rule], a broad definition of the phrase … was struck from early versions of the bill that ultimately became [PRWORA] … because it reached discretionary spending programs, which, in this context, lay beyond the proper scope of the reconciliation process.

In light of this history, and the absence of a sufficiently clear indication that Congress intended, notwithstanding the CBA, to reach discretionary spending programs, we conclude that the meaning of the phrase … is, at the very least, ambiguous. We further conclude that the HHS/HUD proffered definition is a reasonable construction of the statute, that the agency interpretation is entitled to judicial deference, and that, accordingly, the proffered definition should govern.

They noted that:

The rationale of HHS and HUD for this approach is that “affected departments should hesitate to apply the term … broadly in a manner that would deny qualified aliens more benefits than Congress may have clearly intended.”… HHS and HUD assert … that “sound legal and policy considerations support a conclusion that the term is limited to means-tested mandatory spending programs.”

I daresay that the “sound legal and policy considerations” were simply that many officials at HHS (along with many Democrats) were upset with President Clinton’s signing of PRWORA into law and they wanted to undermine as many of its restrictions on federal welfare benefits, especially for aliens, as they possibly could.

On August 23, 1996, the day after Clinton signed the bill into law, Barbara Vobejda reported in the Washington Post that:

• [T]he divisions among Democrats over the legislation were readily apparent.

  Even as Clinton signed the measure, women’s groups and advocates for the poor protested along Pennsylvania Avenue, vowing to carry their dispute to the Democratic convention in Chicago next week.

• [President Clinton] labeled the measure “far from perfect,” criticizing provisions that reduce spending on food stamps and deny aid to many legal immigrants. But he offered an explanation why he was signing it. “We can change what is wrong,” Clinton said. “We should not have passed this historic opportunity to do what is right.”

• Clinton has vowed several times to revisit the food stamp and immigrant provisions in new legislation. And he is considering what can be done without congressional approval to ease impact of the bill.

Liberal groups did not buy Clinton’s promise, as Vobejda reported:

His promise to fix provisions in the bill he dislikes was met yesterday with derision from critics protesting in front of the White House.

“What crystal ball does he have that he knows he can fix it,” said Deborah Weinstein, an official at the Children’s Defense Fund. “What powerful constituency would be treated that way? If he knew there were problems, why did he sign it?”

Labor unions, religious groups and organizations representing women, minorities and immigrants, all of whom are key Democratic constituencies, have expressed outrage over Clinton’s decision to support the bill.

Patricia Ireland, president of the National Organization for Women, said the matter could haunt him politically. “While some of us may hold our noses and vote for President Clinton, many of us will refuse to lift a finger or contribute a penny toward his reelection,” she said.

In March 1997, Peter Edelman, who had been assistant secretary for planning and evaluation at HHS, wrote in the Atlantic that he had “resigned … because of my profound disagreement with” PRWORA. He further stated that:

[T]he bill that President Clinton signed is not welfare reform. It does not promote work effectively, and it will hurt millions of poor children by the time it is fully implemented. What’s more, it bars hundreds of thousands of legal immigrants — including many who have worked in the United States for decades and paid a considerable amount in Social Security and income taxes — from receiving disability and old-age assistance and food stamps, and reduces food-stamp assistance for millions of children in working families.

President Clinton himself wrote in his signing statement that:

• I am proud to have signed this legislation. … I am doing so, however, with strong objections to certain provisions, which I am determined to correct.

• I am deeply disappointed that this legislation would deny Federal assistance to legal immigrants and their children, and give States the option of doing the same … . [They] … should not be penalized if they become disabled and require medical assistance through no fault of their own. Neither should they be deprived of food stamp assistance without proper procedures or due regard for individual circumstances. … I will take any possible executive actions to avoid inaccurate or inequitable decisions to cut off food stamp benefits.

• I am determined to work with the Congress in a bipartisan effort to correct the provisions of this legislation that go too far and have nothing to do with welfare reform. But, on balance, this bill is a real step forward for our country, for our values, and for people on welfare.

The Clinton administration decided to take the “any possible executive actions” approach rather than the “work with Congress” approach.

A memorandum by Sally Katzen, administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), for White House Chief of Staff Erskine Bowles, informed him that “It has-taken an interagency group (including OMB, DOJ, and DPC) several months to work through the issue of how to define ‘means-tested’ at both the Federal and State levels.” Diana Fortuna, associate director of the White House’s Domestic Policy Council (DPC), sent an e-mail to White House Domestic Policy Office officials stating that “[a]fter a very long, tortured process, HHS is about to release its definition” of federal means-tested public benefit. And she then stated that “It will place only a few programs off-limits to … new entrants — mostly programs that are already off-limits because of other explicit provisions in the law (Medicaid, TANF, SSI, food stamps).”

While I am not sure of its author, an e-mail was sent to Bruce Reed, director of the DPC, and Elena Kagan (yes, now Supreme Court justice, then deputy assistant to the president for domestic policy and deputy director of the DPC) stating:

You should know that we are almost ready to issue a definition of the term “means tested benefit.” The states and immigration advocates have been anxious to hear our interpretation of this term for months. … The agencies, DOJ’s Office of Legal Counsel, OMB, DPC, and Elena in her old role worked at some length to come to the agreement that this term refers only to “mandatory” spending programs, like Medicaid, food stamps, SSI, and TANF; and not many others. [The Department of Justice’s] DOJ’s OLC has now issued a written opinion that this is a good definition.

The e-mail then noted with relief that “Advocates will be very happy to hear this, since they feared a far more expansive definition that would have included all kinds of discretionary spending programs.”

U.S. Rep. Lamar Smith (R-Texas),¹ the Chairman of the House Judiciary Committee’s Subcommittee on Immigration and Claims, had sent a letter to Janet Reno, President Clinton’s attorney general stating that:

I was very dismayed and disappointed after having read the Office of Legal Counsel’s memorandum that was presented to me as justification for your interpretation of the term “means-tested public benefit” as will be used in future affidavits of support executed by sponsors of intending immigrants … .

I can only conclude that the Administration’s analysis was constructed to fit a predetermined result – that is, to minimize the scope of the term. … IIRIRA requires that the new affidavit of support you are to draft is to be legally enforceable against the sponsor by any entity “that provides any means-tested public benefit.” By interpreting this term to apply to only mandatory spending programs, you are relieving the sponsor of all responsibility for benefits consumed by the sponsored immigrant that are provided through discretionary programs. This is terrific blow not only to IIRIRA but to the American taxpayer as well, made doubly powerful by the fact that the interpretation is unfounded.

The Clinton administration was clearly concerned about Rep. Smith’s reaction, which Diana Fortuna referred to as “this nice letter to Reno” in an e-mail to Kagan.

Fortuna had sent an e-mail to Kagan letting her know that:

Means-tested is ready to go. But … DOJ feels very strongly that it should not send out major interpretations of the welfare law on immigration without first meeting and “consulting” with Rep. Lamar Smith. There is about .000005% chance that he would like our interpretation, tell us anything we don’t already know, or change our minds, but DOJ has been very firm on this. So we are waiting for this meeting to get scheduled and occur, and then to let a respectable number of days pass before taking our action.

The next day, Fortuna sent another e-mail to Kagan stating “Wow — progress on this since yesterday’s note to you — DOJ and HHS met with Lamar Smith today, and it went as well as could be expected.”²

Wasn’t it considerate of the Clinton administration to reach out to Rep. Smith in order to arrange a fake “consultation” with him for optics purposes and to then “let a respectable number of days pass” before publicly issuing its definition!

It appears that the Clinton administration had considered an even skinnier definition of “federal means-tested public benefit”, but did not go ahead with it because of fears of further antagonizing Rep. Smith. Diana Fortuna sent an e-mail to Kagan and other officials at the White House’s Office of Domestic Policy stating that:

People have been looking into this question of whether we should reconsider our (tentative) definition of means tested benefits, such that it would exclude the new child health program. Everyone has concluded or will probably conclude soon that we should give up on this. Apparently, there is some legal argument that you could exclude the new program, on the grounds that capped entitlements should be excluded. However, our opponents might argue that this clouds our big argument (the colloquy when the Byrd Rule knocked out a definition last year made an important mandatory/discretionary distinction).

Fortuna then explained that, “Also, even if this logic were acceptable to OLC, the same logic would also let TANF off the hook — and the only means tested programs we have defined in the entire government are SSI, food stamps, Medicaid, TANF, and probably now this new child health program.” And that would be bad because “Taking TANF off the list too would risk making Lamar Smith even madder than he is, such that he would mount a more serious legislative effort to get a much meaner definition into the law.”

The Office of Legal Counsel’s Memorandum Opinion and the Meaning of “Federal Means-Tested Public Benefit”

As an initial matter, Johnsen and Moss wrote in their Memorandum Opinion that:

In evaluating the construction proposed by HHS and HUD, we are guided by the Supreme Court’s landmark [1984] opinion, Chevron U.S.A. v. Natural Resources Defense Council, Inc. … which explains the proper approach for reviewing the construction of statutes by the agencies that administer them. … If congressional meaning, as discerned through “traditional tools of statutory construction,” … is clear, then no further inquiry is necessary, for the “unambiguously expressed intent of Congress” must control. … If the statute is silent or ambiguous with respect to the issue posed, then … the questions become whether Congress has implicitly or explicitly delegated to the agency the authority to resolve the ambiguity and, if so, whether “the agency’s answer is based on a permissible construction of the statute.”

I should note that “Chevron deference” is no longer a consideration, following the Supreme Court’s decision last year in Loper Bright Enterprises v. Raimondo that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority. … [C]ourts need not and under the [Administrative Procedure Act] may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Rather, as the Court concluded, even ambiguous statutes “have a single, best meaning”, and “in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity”.

Johnsen and Moss set forth the basis of their statutory interpretation, writing that:

[I]t is well-established that a provision in one act of Congress should be read in conjunction with other relevant statutory provisions and not in isolation. See [the Supreme Court’s 1989 decision in] Jett v. Dallas Indep. School Dist. …

The general rule that the meaning of particular statutory provisions should be determined with reference to the broader legislative landscape provides significant guidance here. As reconciliation legislation, [PRWORA] must be interpreted in the context of both the [CBA] … and congressional actions taken pursuant to that statutory regime.

They then purported to apply the principle:

Th[e] legislative record provides strong evidence that the phrase “federal means-tested public benefit,” as used in [PRWORA], should be construed to reach only mandatory (and not discretionary) spending programs. In keeping with section 313, a Byrd rule objection was made and sustained, a definition was dropped from the bill in response to the objection, and the House acceded to the Senate version of the bill in light of the Byrd rule objection. To ignore these events in determining the meaning of the phrase … would be to disregard the purpose and language of section 313 itself, which serves to facilitate the budgeting process by providing a mechanism by which the scope of reconciliation legislation may be contained.

Johnsen and Moss admitted that “Several aspects of the text and legislative history … when viewed in isolation, arguably support a broad interpretation of ‘federal means-tested public benefit’ that would include discretionary programs.” But they concluded that:

Ultimately, however, we find little evidence that Congress, in passing the final version of the bill, intended to reintroduce the very definition that had been struck through the operation of … the CBA. What evidence does exist is at best ambiguous, and thus, in our view, does not foreclose HHS and HUD … from construing [PRWORA] in the manner that they propose.

Little evidence? What about PRWORA’s conference report, which stated as to the definitions of “means-tested public benefit” and “federal means-tested public benefit” that though “[t]he definition … was deleted due to the Byrd rule”, “It is the intent of conferees that this definition be presumed to be in place.” (Emphasis added.)

You can’t get more compelling evidence of congressional intent than such a statement from all of PRWORA’s conferees, Senate and House, Democrat and Republican. As Lamar Smith wrote in his letter to Attorney General Reno:

[T]he conferees’ statement … must … be agreed to trump other proffered legislative history. It is a settled matter of statutory construction that, as the Seventh Circuit states [in its 1993 decision in Resolution Trust Corp. v. Gallagher], a conference report “is the most persuasive evidence of congressional intent besides the statute itself.” Why? Because “the conference report represents the final statement of terms agreed to by both houses….” [quoting Gallagher, which was quoting the D.C. Circuit’s 1981 decision in Demby v. Schweiker, which stated that “Because the conference report represents the final statement of terms agreed to by both houses, next to the statute itself it is the most persuasive evidence of congressional intent.”] There can surely be no “clearly expressed legislative intent” that is contradicted by the conference report itself.

Thus, what evidence of congressional intent does exist is not the least ambiguous and indeed should have foreclosed HHS and HUD from construing PRWORA in the manner that they did.

Johnsen and Moss argued that:

• [T]his statement in the conferees’ report cannot be taken as controlling”, as “[a] conference committee cannot essentially overrule [the House and Senate’s deletion of a definition] by including contrary language in its report.

• [A] Byrd rule objection can be raised only against legislative language, not against explanatory statements in the conference report[. Thus,] allowing a conference report statement to act as the equivalent of legislative language effectively abolishes the statutory mechanism established to ensure the integrity of the Byrd rule process.

But let us look at the Senate conferees:

from the Committee on the Budget, Mr. Domenici, Mr. Nickles, Mr. Gramm, Mr. Exon, and Mr. Hollings; from the Committee on Agriculture, Nutrition and Forestry, Mr. Lugar, Mr. Helms, Mr. Cochran, Mr. Santorum, Mr. Leahy, Mr. Heflin, and Mr. Harkin; from the Committee on Finance, Mr. Roth, Mr. Chafee, Mr. Grassley, Mr. Hatch, Mr. Simpson, Mr. Moynihan, Mr. Bradley, Mr. Pryor, and Mr. Rockefeller; from the Committee on Labor and Human Resources, Mrs. Kassebaum and Mr. Dodd[.]

Sen. Exon was a member of the conference committee. He himself signed the conference report stating that “[i]t is the intent of conferees that this definition be presumed to be in place”!

Johnsen and Moss Wrote further wrote that “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” (Citing the Supreme Court’s 1987 decision in INS v. Cardoza Fonseca.) That is indeed a compelling principle of statutory construction, but it is totally inapplicable here as Congress never replaced the stricken definitions with alternate ones. Had Congress inserted new definitions into PRWORA limiting the terms’ applicability to mandatory welfare programs, I would be the first to agree that discretionary programs were not included. But Congress did no such thing.

To be fair, Johnsen and Moss also argued that:

[E]ven apart from the operation of section 313, it is a 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.”[quoting the Ninth Circuit’s 1991 decision in In re Town & Country Home Nursing Servs., Inc.]. … That canon surely applies with particular force in a context such as this, in which the deletion occurs by reason of an independent congressional statute that governs the nation’s budgeting process.

Actually, it applies with particularly little force in this context. As Rep. Smith wrote in his letter to Attorney General Reno:

The Byrd rule is merely a procedural device, an internal Senate rule designed to protect the Senate’s deliberative process by excluding from consideration under expedited reconciliation procedures extraneous provisions added by the House. It was never intended to play any role in the executive branch’s interpretation of a statute. This is not just my opinion. This is how the Senate Parliamentarian’s Office views the Byrd rule. By all means ask Senate Parliamentarian Bob Dove. … I wish Ms. Johnsen and Mr. Moss would have done so before writing their memorandum.

This conclusion is not just Rep. Smith’s and the Senate Parliamentarian’s Office’s view, it is also the conclusion of the Third Circuit Court of Appeals. In its 1995 decision in Elizabeth Blackwell Health Ctr. for Women v. Knoll, the court considered an appeal of a district court decision in which the district court had concluded that:

The fact that the [House of Representatives’] ultimate rejection [of a provision requiring victims of rape or incest to report the crime to the police prior to seeking publicly funded abortions] may have occurred on a procedural vote — the argument was that the reporting requirements were substantive and therefore should not be included in an appropriations measure — does not detract from the persuasiveness of the legislative history as a clear indication of Congressional intent to eliminate the requirements under discussion.³

The Third Circuit rejected the district court’s reasoning, finding that “Congress’ rejection of the reporting requirements … was expressly based on procedural considerations” and concluding that “A rejection on procedural grounds provides no basis for any inference regarding Congress’ views about the substantive provisions of the legislation.”

Johnsen and Moss unconvincingly contended that:

[In Knoll, t]he procedural objection raised to the reporting provision was based upon a House rule of parliamentary procedure that prohibited attempts to “legislate” on an appropriations bill … . Th[is] basis … bore no relationship to the substantive interpretation appellees urged. In contrast, here the definition proffered by HHS … is based upon a budgetary distinction between mandatory and discretionary programs, precisely the same basis upon which Senator Exon’s Byrd rule objection was made.

To the contrary, in neither case was the rejection of legislative language based on public policy considerations. Sen. Exon’s point of order expressed no disagreement with the merits of a waiting period on qualified aliens’ eligibility for discretionary federal means-tested public benefits, or on the applicability of affidavits of support to such programs. In Knoll, the House by rejecting the reporting requirements expressed no disagreement with the merits of such a requirement.

Further, senators had no reason to know when Sen. Exon raised his point of order that he was objecting to the definitions because they encompassed discretionary programs. Lamar Smith wrote in his letter to Attorney General Reno that “when Senator Exon made his point of order … he merely indicated that, as to the definition of ‘Federal means-tested public benefit’, ‘Aspects are not in Finance Committee’s jurisdiction.’”

Thus, as Rep. Smith argued:

[We] cannot [even] attribute Senator Exon’s intent [to exclude discretionary programs] in raising his Byrd rule point of order to the other members of the Senate … . They could not know what Senator Exon was up to unless he informed them. This he did not do until August 1, when on the floor of the Senate he ascribed his intent in offering his point of order [the prior month] limiting the definition … to benefits provided through mandatory programs. At the time, the Senate was considering the conference report to PRWORA — it had long since passed the version of S. 1956 [which the Senate incorporated into H.R. 3734] to which Senator Exon raised his Byrd rule point of order.

Johnsen and Moss wrote that PRWORA did “define the related phrase ‘federal public benefit’ broadly, and in a manner that appears to draw no distinction between mandatory and discretionary programs” and they admitted that “It could be argued that these two phrases [federal public benefit and means-tested] combine to produce a phrase that is sufficiently plain to make clear that, in enacting the bill, Congress effectively overruled the prior Byrd rule deletions.” But they contended to the contrary that:

Although not entirely without force, we find this argument inconclusive. First, even assuming that the phrases “federal public benefit” and “means-tested” are free of ambiguity, the proposition that combining plain terms necessarily results in an equally plain phrase is not at all self-evident. [citing as an example the Supreme Court’s 1996 decision in Smiley v. Citibank] It is not clear, therefore, that, even ignoring the deletion of the broad definition pursuant to the CBA, the bill’s final language is so free from ambiguity as to be deemed plain.

But the Supreme Court in Smiley was merely making the point that “A word often takes on a more narrow connotation when it is expressly opposed to another word: ‘car,’ for example, has a broader meaning by itself than it does in a passage speaking of ‘cars and taxis.’” That is hardly the case here.

As Rep. Smith stated in his letter to Attorney General Reno, “I find it inconceivable that ‘Federal means-tested public benefit’ could mean anything other than a Federal public benefit that is means-tested.” As the Supreme Court has ruled, “[i]n the absence of … a definition, we construe a statutory term in accordance with its ordinary or natural meaning” (FDIC v. Meyer (1994)), except if it is a “legal term of art” (FAA v. Cooper (2012)).

Johnsen and Moss also attempted to take on the inconvenient facts that “the list of exceptions to ‘federal means-tested public benefit’ programs” in PRWORA itself includes “some discretionary programs”, and even that:

[T]he final version of [PRWORA] included exceptions for two discretionary programs that did not appear in the Senate version of [PRWORA] from which the broad definition … had been deleted. Specifically, the Head Start and Job Training programs were only included in the House’s final list of exempted programs, and not the Senate’s, even though they do appear in the final version.

Johnson and Moss admitted that the obvious conclusion was that the inclusion of these discretionary programs in the list of exceptions “would be unnecessary unless the term itself included such programs”! As Rep. Smith stated in his letter, “As the Eleventh Circuit has stated, … [i]n a case of a true statutory exception … an exception exists only to exempt something which would otherwise be covered.”

But Johnsen and Moss argued that:

[T]he list of exceptions … is quite plausibly understood as an inconsistency resulting from the proper operation of the Byrd rule itself. The remedy provided in section 313 is a blunt instrument offering a basis for striking extraneous material in a reconciliation bill, but no mechanism for re-drafting remaining legislative provisions to conform them to the legislation as revised by application of the Byrd rule. Indeed, there was no careful mark-up of the bill following the deletion of the definition … where inconsistent provisions might have been brought into conformity.

But Sen. Exon could have brought provisions into conformity — assuming they were inconsistent — simply by offering an amendment to the original bill. As Rep. Smith wrote, “If Senator Exon had wanted to limit the meaning of the term to ‘mandatory’ programs … after raising his point of order to the definition, he should have offered an amendment to PRWORA adding ‘a benefit provided through a discretionary program’ to the list of exceptions.”

Then Johnsen and Moss had the audacity to state that:

[I]t is unlikely that members of Congress would have seen the list of exceptions as obviously inconsistent with [PRWORA] as revised by application of the Byrd rule. The categorization of particular programs as mandatory or discretionary is not at all obvious, and it is likely that many, if not most, members did not know precisely which programs fell into which category.

As Rep. Smith stated in his letter to Attorney General Reno, “This argument shows a deplorable contempt for Congress that is unfortunately exhibited elsewhere in the memorandum.” But, in any event, should not Sen. Exon himself, or the Finance Committee staff, have known?

Johnsen and Moss then threw out the possibility that “the list of exceptions can be seen as Congress’s attempt to safeguard certain programs from any definitional skirmishes and ensure their exception”. So, according to Johnsen and Moss, what we should take from all this is that the Senate was adamant that discretionary program not be included in reconciliation bills, lest the Senate’s fundamental character be destroyed, but that senators had no idea what discretionary programs were!

Lastly, Johnsen and Moss opined that “[T]he inclusion in the final bill of two additional discretionary programs seems to us a most oblique means for Congress to reinsert a definition … that had previously been struck.” I agree that the inclusion of the additional programs does not indicate that Congress was reinserting discretionary programs back into PRWORA — because Congress had never thought that they had gone away!

But what about the Senate colloquy that Diana Fortuna had referred to that “made an important mandatory/discretionary distinction”? As Johnsen and Moss admitted, a colloquy would be “an insubstantial grounding for legislative intent if standing alone”. In any event, they related the colloquy as follows:

[I]n the debate over the conference report on the Senate floor … Senator Graham [R-S.C.] engaged Senator Kennedy [D-Mass.] in the following colloquy.

Mr. Graham … [W]ould the Senator agree that when the Senate struck these sections as violating the Byrd rule, the Senate’s intent was to prevent the denial of services in appropriated [discretionary] programs such as those that provide services to victims of domestic violence and child abuse, the maternal and child health block grant, social services block grant, community health centers and migrant health centers? …

Mr. Kennedy. Yes. Under the Byrd rule, the budget reconciliation process cannot be used to change discretionary spending programs. Only mandatory spending is affected … .

Senator Graham subsequently asked Senator Exon, who was one of the Senate conferees on the bill, whether “the version of the bill recommended in this conference report is consistent with this understanding.”… Senator Exon confirmed that it was. Later during the debate, Senator Graham raised this issue again with another conferee, Senator Chafee [R-R.I.]:

Mr. Graham: I wonder if my colleague could address one point on this bill. I notice that the term … was defined in previous versions of the bill. However, in this conference report, no definition is provided.

Mr. Chafee . . [W]hen the bill was considered in conference, I understand that there was an intentional effort to ensure this provision complied with [the] Byrd rule by omitting the definition of that particular term.

In other words, then, the term … if it is to be in compliance with the Byrd rule— does not refer to discretionary programs.

Let me ask this question most respectfully — Why did Sens. Exon and Chafee sign the conference report that stated twice that “[i]t is the intent of conferees that this definition be presumed to be in place”?

Lastly, § 509 of IIRIRA provided that “the Comptroller General shall submit … a report on the extent to which means-tested public benefits are being paid or provided to aliens who are not qualified aliens … in order to provide such benefits to individuals who are United States citizens or qualified aliens”. Would Johnsen and Moss have us believe that here, too, the term was not meant to include discretionary benefits, even though IIRIRA did not go through the reconciliation process?

The Clinton administration’s stance generated a number of ironies. First, Sen. Byrd himself stated on the Senate floor on May 2, 1996, in regards to S. 1664 (the Senate foundation for IIRIRA), that “[T]his bill places new restrictions — much-needed restrictions — on the use of welfare by immigrants…. By making noncitizens ineligible for Federal means-tested programs, and by ‘deeming’ a sponsor’s income attributable to an immigrant, the American taxpayer will no longer be financially responsible for new arrivals.” If only Sen. Byrd knew!

Second, the Immigration and Nationality Act provides that “[a]ny alien who … is likely at any time to become a public charge is inadmissible” and that the government “may … consider any affidavit of support … for purposes” of making a public charge likelihood determination, and the current public charge rule provides that “DHS will favorably consider an Affidavit of Support … in making a public charge inadmissibility determination”. To the extent affidavits actually protected American taxpayers with regard to both mandatory and discretionary means-tested public benefit programs (as Congress intended), this would actually bolster sponsored aliens’ ability to overcome the public charge ground of inadmissibility.

President Trump

In President Trump’s first term, an executive order was apparently drafted that would have required the secretary of Homeland Security to propose a rule defining “means-tested public benefits” for purposes of the affidavit of support.

On January 25, 2017, days after President Trump was sworn in, Matthew Yglesias and Dara Lind reported for Vox that:

Vox was given six documents that purported to be draft executive orders [EO] under consideration by the Trump administration. The source noted that “all of these documents are still going through formal review” in the Executive Office of the President and “have not yet been cleared by [DOJ or OLC].”

One of the documents that Vox released was a January 23 Memo and Accompanying Draft EO written by Andrew Bremberg, director of the DPC, to President Trump. The memo, titled “Executive Order on Protecting Taxpayer Resources by Ensuring Our Immigration Laws Promote Accountability and Responsibility”, stated that “Our country’s immigration laws are designed to protect American taxpayers and promote immigrant self-sufficiency. Yet, households headed by aliens (legal and illegal) are much more likely than households headed by native-born citizens to use federal means-tested public benefits.”

This is indeed true. PRWORA bemoaned the fact that “[d]espite the principle of self-sufficiency, aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates” and that “[c]urrent eligibility rules for public assistance … have proved wholly incapable of assuring that individual aliens not burden the public benefits system”. Yet, my colleagues Steven Camarota and Karen Zeigler have estimated that in 2022 — a quarter-century after PRWORA’s enactment — 52.5 percent of households headed by legal immigrants who had not naturalized (mostly LPRs) received welfare benefits (not including the Earned Income Tax Credit) as compared to 35.9 percent for households headed by the native-born.

Bremberg added that “Our immigration laws must be enforced in a manner that achieves the goal of protecting our taxpayers and promoting self-sufficiency.” The proposed EO provided in part that:

[The Secretary of Homeland Security shall] propose … a rule that defines “means-tested public benefits” [for purposes of the affidavit of support] for purposes of Federal programs, and that require[s] reimbursement from sponsors of aliens who have signed affidavits of support … to include all Federal programs for which eligibility for benefits, or the amount of such benefits, are determined in any way on the basis of income, resources, or financial need.

Ah, the deleted definition!

The draft also directed the director of OMB to provide within a year a report detailing, among other things “how much the Federal Government could realize in savings by ensuring that aliens receive … Federal means-tested public benefits … only as allowed by PRWORA and ensuring that executive departments and agencies that provide [such] benefits to sponsored immigrants obtain reimbursement from the immigrants’ sponsors”. And it directed that every six months thereafter, the director provide a report detailing “the extent of the Federal Government’s success in ensuring that aliens receive … Federal means-tested public benefits … only as allowed by PRWORA and in obtaining reimbursement from the sponsors”.

The draft would have required that the Council of Economic Advisers provide yearly reports on, among other things, the “cost to American taxpayers of providing means-tested public benefits in that fiscal year to households headed by illegal aliens” and the “number of non-citizens receiving means-tested public benefits in such fiscal year”.

And it would have required that:

[F]ollowing the issuance of the proposed rule [defining “means-tested public benefit”, the heads of all executive departments and agencies shall] propose … a rule, consistent with such proposed [definitional] rule, that lists all Federal benefits within their authority for which eligibility or amount is determined on the basis of income, resources, or financial need as “Federal means-tested public benefits” for purposes of determining the eligibility of aliens for those benefits under PRWORA.

While President Trump never signed such an EO, his April 10, 2018, EO 13828, “Reducing Poverty in America by Promoting Opportunity and Economic Mobility”, might have hinted at it when it directed agencies to “adopt policies to ensure that only eligible persons receive benefits and enforce all relevant laws providing that aliens who are not otherwise qualified and eligible may not receive benefits”.

Conclusion

I do not know why the proposed EO was not signed. Possibly, it was because of concerns that administratively adopting definitions of “means-tested public benefit”/“federal means-tested public benefit” identical or similar to those struck by the Byrd rule point of order would not survive a court challenge. If so, I would certainly urge that President Trump now consider issuing such an EO for purposes of the waiting period, affidavits of support, and deeming. As I have argued, the plain meaning of the statutory terms demand definitions that do not differentiate between mandatory and discretionary means-tested public benefit programs. And even were the definitions still found to be ambiguous, then their “best reading”, consistent with the conference report (the definitive evidence of legislative intent), demands such definitions.

Rep. Smith concluded his letter to Attorney General Reno by stating:

I urge you in the strongest terms to reconsider your interpretation of “Federal means-tested public benefit” as it will be utilized in affidavits of support. The present Department of Justice interpretation is utterly lacking in merit and makes a travesty of statutory interpretation. More importantly, it prevents from being fulfilled the promise to the American taxpayer that was [IIRIRA].

Rep. Smith was right. The almost three-decade-long reign of the Clinton administration’s travesty of statutory interpretation needs to end. The promise to the American taxpayer embodied in PRWORA and IIRIRA needs to be fulfilled.

Let me state one more thing. Current Supreme Court Justice Elena Kagan during her stint in President Clinton’s White House had a major role in developing the mandatory program-only interpretation of “federal means-tested public benefit”. As I noted earlier, an e-mail contained in the Clinton Presidential Library stated that “Elena in her old role worked at some length to come to the agreement that this term refers only to ‘mandatory’ spending programs.” And another e-mail was sent to Laura Emmett, who worked in the Executive Office of the President, stating that “Elena [Kagan] was going to talk to Bruce [Reed] about a disagreement between DOJ and HHS on how to proceed on the definition of means-tested benefits. Can you ask her if she has any advice for us on how to proceed on this?” If the Supreme Court is ever called on to decide the issue of the meaning of “means-tested public benefit”/“federal means-tested public benefit”, Justice Kagan will need to recuse herself.

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End Notes

¹ I was working for Chairman Smith at the time as a subcommittee counsel.

² I believe I attended the meeting.

³ Elizabeth Blackwell Health Ctr. for Woman v. Knoll, 1994 U.S. Dist. LEXIS 13295.