On December 16, T. Elliot Gaiser, the assistant attorney general for the Department of Justice’s Office of Legal Counsel (OLC), issued a memorandum opinion that has, with a few masterful strokes of a pen, undone the Clinton White House’s sabotage of 1996’s historic welfare reform law.
That year, 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 “[c]urrent eligibility rules for public assistance … have proved wholly incapable of assuring that individual aliens not burden the public benefits system”. Congress thus designed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) to “strengthen[] the principle that immigrants come to America to work, not to collect welfare benefits”. Among its many reforms, PRWORA provided that while lawful permanent residents (LPRs) and other “qualified aliens” are eligible for federal welfare programs (“federal means-tested public benefit[s]”), eligibility generally begins only after five years as qualified aliens — “to send a clear signal that immigrants are expected to … not become dependent on public welfare benefits prior to obtaining citizenship”.
Unfortunately, PRWORA’s promise to the American taxpayer regarding immigration’s burden has gone largely unfulfilled. My colleagues Steven Camarota and Karen Zeigler 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, as compared to 35.9 percent for households headed by the native-born.
Why? The reason, to a significant degree, is because the Clinton White House tried to sooth a Democrat base angered by President Bill Clinton’s signing of PRWORA by decreeing that only “mandatory” — but not “discretionary” — federal means-tested benefit programs would be subject to the five-year waiting period. Mandatory benefits are doled out regardless of how much money Congress has appropriated, but discretionary benefits only until appropriated funds have been exhausted.
Why do I say “the Clinton White House”? The director of the Clinton White House’s Domestic Policy Council (DPC) and Elena Kagan (the now Supreme Court Justice who was then deputy assistant to the president for domestic policy and deputy director at the DPC) received an e-mail (preserved in the Clinton Presidential Library’s digital collection) stating that “[W]e are almost ready to issue a definition of the term ‘means tested benefit.’... Elena in her old role [along with others] worked at some length to come to the agreement that this term refers only to ‘mandatory’ spending programs.”
But, by its plain meaning, whether a benefit is means-tested does not depend on its being funded on a mandatory basis. Welfare benefits are “means-tested” if they are provided on the basis of income, resources, or financial need, regardless of how the American taxpayer pays for them. Despite this inconvenient truth, on January 14, 1997, Dawn Johnsen, acting assistant attorney general, and Randolph Moss, deputy assistant attorney general at OLC, issued an opinion (the Johnsen/Moss Opinion) blessing the Clinton White House’s misbegotten interpretation, concluding that it “constitutes a permissible and legally binding construction” of the statutory language. The e-mail to Kagan stated that “OLC has now issued a written opinion that this is a good definition.”
The Clinton administration’s modus operandi seems to have been to shrug and say it all depends on what the meaning of the term “federal means-tested public benefit” is. I guess it all flows from the top.
HHS then published a Federal Register notice announcing the interpretation, which resulted in only two of the welfare programs it administered being subject to the waiting period. The e-mail to Kagan exclaimed 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.”
Until this month, no succeeding administration had cleansed the pages of the Federal Register soiled by the Clinton administration. On September 16, I wrote in “Undoing Clinton’s Sabotage of Restrictions on Immigrant Welfare Use: Here’s What President Trump Can Do” that “Th[is] 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 ... needs to be fulfilled.” I spent much of the piece questioning the faulty reasoning of the Johnsen/Moss Opinion. I then urged President Trump to consider issuing an executive order directing that “means-tested public benefit” be defined in a manner so as to include both mandatory and discretionary welfare programs.
Assistant Attorney General Gaiser has done just that — making clear that federal means-tested public benefits include both mandatory and discretionary welfare programs. He issued his opinion in response to a September 15 memo from Emily Claire Mimnaugh, deputy general counsel at HHS, asking OLC to reconsider the Johnsen/Moss memo.
Gaiser stated in his opinion that, “In view of intervening precedent and our reassessment of the statutory text, we now withdraw our 1997 Opinion and confirm that PRWORA’s eligibility requirements for ‘Federal means-tested public benefit[s]’ apply to both mandatory and discretionary spending programs.”
Gaiser noted that, “Like the judiciary, we seek the ‘best meaning’ of the statutory text.” He concluded that the Johnsen/Moss opinion “hinged on an analytical framework that the Supreme Court has now rejected”, referring to the demise of “Chevron deference” in the wake of the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo that “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority ... . [C]ourts need not and … 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”.
Gaiser then explained that:
By its own terms, the [Johnsen/Moss] Opinion did not advance the best reading of PRWORA, but merely what it considered a “permissible” one urged by HHS. … [It] also relied almost exclusively on legislative history to reach the conclusion that PRWORA was ambiguous — an approach inconsistent with both Supreme Court instruction and our own precedent … . Refocusing on PRWORA’s text, however, reveals that the reading adopted in [the Johnsen/Moss] Opinion was not even a permissible one. We now retract that opinion and offer the best reading of the phrase “Federal means-tested public benefit.”
The methodology in [the Johnsen/Moss] Opinion is … difficult to square with principles of textualism and the Constitution’s vesting of legislative power in Congress.
[T]he Supreme Court’s decision in Loper Bright and the errors in statutory interpretation that we have identified are sufficient to warrant withdrawing [the Johnsen/Moss] Opinion.
I couldn’t have said it better myself. Assistant Attorney General Gaiser, the American taxpayer owes you a debt of gratitude (as does the Federal Register).