Construction of State Reporting Requirements in Section 404 of

the Personal Responsibility and Work Opportunity

Reconciliation Act

The better interpretation o f the state reporting requirem ents in section 404 of the Personal Responsibility and W ork O pportunity Reconciliation Act is that they apply only to those state agencies 

adm inistering the particular federally funded program in question, not to all state agencies in a 

State that receives funds under the program

August 18, 1998

M e m o r a n d u m O p i n i o n f o r t h e G e n e r a l C o u n s e l

I m m i g r a t io n a n d N a t u r a l i z a t i o n S e r v i c e

Your Office has sought our views on the interpretation of section 404 of the 

Persona] Responsibility and Work Opportunity Reconciliation Act of 1996 

(“ PRWORA” ), Pub. L. No. 104-193, 110 Stat. 2105, 2267 (1996).1 In general, 

covered “ States” are required to report to the Immigration and Naturalization 

Service (“ INS” ) identifying information concerning illegal aliens who receive 

benefits under the programs covered by the section. You have asked whether the 

administering federal agencies may adopt a “ narrow” construction, rather than 

a “ broad” one, of the meaning of the term “ State” within the reporting requirement of the section. We conclude that the “ narrow” construction is the better 

interpretation and should be adopted.

In general, section 404 of PRWORA, which is entitled “ Notification and 

Information Reporting,” requires state and federal agencies implementing certain 

federal benefits programs to report to the INS identifying information concerning 

aliens whom, they know to be illegally in the United States. Subsection 404(b) 

imposes such reporting requirements on States receiving grants for the Temporary 

Assistance for Needy Families (“ TANF” ) program, the successor to the Aid to 

Families With Dependent Children (“ AFDC” ) program.2 Subsection 404(c) 

requires such reporting from the Commissioner of the Social Security Administra1 See M emorandum for Christopher Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from 

David A Martin, General Counsel, Immigration and Naturalization Service, Re: Interpretation o f Section 404 o f

the Personal Responsibility and Work Opportunity Reconciliation Act o f 1996, Pub L No. 104—193 (Dec 31, 1996) 

(attaching M emorandum to Welfare Reform Task Force from Reporting/Tracking Working Group, Re- Scope o f

State Reporting Requirements Under Section 404 o f the Welfare Act (Dec 31, 1996) (“ Working Group Memorandum” )).

2 Specifically, subsection 404(b) amends Part 1V-A of the Social Security Act of 1935, ch 531, 49 Stat. 620, 

627 (1935) (codified as amended at 42 US.C. §§601-619 (1994 & Supp MI 1997), by adding a new section 4 1 1 A, 

to read as follows:

Sec. 411 A. State Required To Provide Certain Information

Each State to which a grant is made under section 403 shall, at least 4 times annually and upon request 

of the Immigration and Naturalization Service, furnish the Immigration and Naturalization Service with 

the name and address of, and other identifying information on, any individual who the State knows is 

unlawfully in the United States

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don (“ SSA” ) in connection with the Supplemental Security Income (“ SSI” ) program; of more relevance here, subsection (c) also requires the SSA, when making 

SSI agreements with the states, to “ ensure that each [such] agreement . . . provides that the State shall furnish such information . . . with respect to any individual who the State knows is unlawfully in the United States.” Subsection (d) 

requires such reporting from the Secretary of Housing and Urban Development 

(“ HUD” ) in connection with certain federally funded housing assistance programs; in addition, it requires HUD to include, in certain housing contracts with 

any “ public housing agency,” that such agency shall furnish such information.

The Working Group established to consider the legal and administrative consequences of PRWORA has considered two rival interpretations of the scope of 

section 404’s reporting requirements, with particular regard to the state reporting 

requirements in subsections (b) and (c).3 On the “ broad” view, the section 

requires states that receive TANF grants (or that enter into SSI contracts) to report 

information regarding aliens known by any state agency to be in the United States 

illegally.4 On the “ narrow” view, the reporting requirement is limited only to

those state agencies administering the particular federally funded program in

question (i.e., TANF in the case of subsection (b), SSI in the case of subsection 

(c)). The Working Group, with the concurrence of the Department of Health and 

Human Services,5 concludes that section 404 should be interpreted narrowly, i.e., 

that only the particular state agencies that themselves administer the federal programs covered by the provision are required to report the presence of aliens whom 

they know to be in the United States illegally.

I.

In deciding between the two interpretations, we must, of course, begin with 

“ ‘the language [of the statute] itself.’ ” Ardestani v. INS, 502 U.S. 129, 135

(1991) (citation omitted). Although the Working Group finds that “ [i]ntuitively, 

the term ‘State’ would seem to comprehend any of the state’s subordinate entities,” it nonetheless concludes that there is “ some ambiguity in the statute,” 

Working Group Memorandum at 2. We agree.

To begin with, we think that ambiguity is built into a term as general and protean as “ State.” “ [T]he word ‘state’ . . . can contain many meanings.” National

3 Because the relevant reporting requirement in subsection (d) relates to “ public housing agencies,” not to 

“ States,” it does not pose any comparable interpretative problem.

4 States that participate in certain other federal programs must collect information regarding immigration status. 

See 42 U.SC § 1320b-7(d)(l)(A) (1994) (requiring state income and eligibility verification systems to include 

information “ stating whether the individual [beneficiary] is a citizen or national of the United States, and, if that 

individual is not a citizen or national of the United States, that the individual is in a satisfactory immigration status” ) 

This information-gathering requirement pertains to the programs enumerated in § 1320b-7(b), including the medicaid, 

unemployment compensation, and the food stamp programs. In the course of gathering the covered information, 

a State may discover that an individual is not lawfully present in the United States.

5 Letter for Randolph Moss. Deputy Assistant Attorney General, Office of Legal Counsel, from Harriet S Rabb, 

General Counsel, Department of Health and Human Services (Feb. 18, 1997)

Construction o f State Reporting Requirements in Section 404

o f the Personal Responsibility and Work Opportunity Reconciliation Act

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Opinions of the Office o f Legal Counsel m Volume 22

Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 587 (1949) (opinion of 

Jackson, J.).6 To be sure, the term “ State” often includes state agencies other 

than the particular agency that administers the program most relevant to the statute 

in which the term appears.7 But our Office has also opined that the term “ State” 

may be construed in light of the “ overall legislative objective” of the statute 

in which it appears.8 The construction of the term “ State” will therefore often 

require “ not only . . . consideration of the word[] [itself], but . . . as well, the 

context, the purposes of the law, and the circumstances under which the word[] 

[was] employed.” Puerto Rico v. Shell Co. (P.R.), 302 U.S. at 258.

Such considerations of context, structure and purpose confirm that the broad 

interpretation of “ State” in subsections 404(b) and (c) is open to question. For 

example, a broad reading of subsection (b) would make the other reporting mandates in section 404 redundant. Although state participation in the TANF program 

(like state participation in the former AFDC program) is in a strict sense “ voluntary,” 9 all the States, as a practical matter, can be expected to participate in 

TANF. It would follow, under the broad view, that “ every state agency in the 

United States discovering an alien to be in the country unlawfully would have 

to furnish identifying information to the Service pursuant to subsection (b).” 

Working Group Memorandum at 4. However, subsection 404(c) separately provides for such reporting by state agencies under contracts relating to the SSI program; and subsection 404(d) requires public housing agencies—which might be 

counted as “ state” agencies—to furnish such information under their contracts 

with HUD. The broad reading would seem to make these reporting requirements 

superfluous.

Moreover, PRWORA attaches reporting requirements to some federal programs 

administered by the states, but not to others. Thus, while section 404 attaches 

reporting requirements to state receipt of funds under the TANF, SSI and HUD 

programs, it does not attach them to funding under the Food Stamps or child 

care programs. These textual differences in the reporting obligations of the various 

state grantees “ suggest that Congress intended to require reporting only by state

6 See also id. at 623 (Rutledge, J., concurring) (“ Key words like ‘state,’ ‘citizen,’ and ‘person’ do not always 

and invariably mean the same th in g ” ). Similar ambiguities lurk in general terms such as “ territory,” Puerto Rico

v Shell Co. (P R ), 302 U.S. 253, 258 (1937), and “ possession,” Vertmlya-Brown Co v. Connell, 335 U S 377, 

386 (1948). See also District o f Columbia v. Carter, 409 U S. 418, 420 (1973) (“ Whether the District of Columbia 

constitutes a ‘State or Territory’ within the meaning of any particular statutory or constitutional provision depends 

upon the character and aim of the specific provision involved” ); Romero v United States, 38 F.3d 1204, 1208 

(Fed Cir. 1994) (“ [Tjhe plain language of the statute does not immediately tell us whether Puerto Rico may be 

considered a ‘State or territory or possession’ within 5 U S.C § 5517” .).

7 See National Bureau o f Standards—Services to State Institutions, 24 Op. Att’y Gen. 667, 671 (1903) (term “ State 

governments” within meaning of statute entitling such entities to free services of National Bureau of Standards 

did not refer only to department having custody of state standards, but also to other agencies “ performing and 

discharging wed-recognized functions of the State government,” such as stale universities)

8 Recovery o f Interest on Advance Payments to State Grantees and Subgrantees, 6 Op O.L.C 127, 132 (1982).

9 See Batterton v. Francis, 432 U S. 416, 420 (1977) (AFDC program is a “ cooperative venture[] of the Federal

Government and the States” ); Rosado v Wyman, 397 U S 397, 408 (1970) (state participation in AFDC program 

“ is basically voluntary” ).

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agencies implementing the specific programs referred to in section 404.” Working 

Group Memorandum at 3.

Furthermore, section 434 of PRWORA, 110 Stat. at 2275, authorizes state and 

local governments, “ [notwithstanding any other provision of Federal, State, or 

local law,” to report information regarding an alien’s immigration status, “ lawful 

or unlawful,” to the INS. On the broad reading, this provision also seems largely 

redundant. Congress would not have permitted the states under section 434 to 

report the immigration status of illegal aliens if, under section 404, it was effectively mandating that they report such information.

Finally, the Court has held that “ Congress, when exercising its spending power, 

can impose no burden upon the States unless it does so unambiguously.” Hendrick

Hudson Dist. Bd. o f Educ. v. Rowley, 458 U.S. 176, 190 n .ll (1982). Here, a 

“ broad” reading of the section would impose an extraordinary new obligation 

on the States, cutting across a range of state programs from drivers’ licenses to 

the public schools. We think that if Congress had genuinely intended all state 

agencies, as opposed to the administering state agencies, to be subject to the 

reporting requirements of section 404, it could, and would, have made its intention 

more explicit.

Against these arguments, it might be said that the term “ State” appears twice 

in subsection 404(b); that under normal rules of statutory construction it must 

therefore have a unitary meaning; that in its first occurrence— “ State to which 

a grant is made under section 403” —it plainly refers to a “ State” in the broad 

sense; and that the second occurrence of the term— “ individual who the state 

knows is unlawfully in the United States” —must therefore have the same broad 

meaning. Even assuming, arguendo, that the term “ state” is first used in the 

broad sense, we do not accept the suggested conclusion. While it is “ the normal 

rule of statutory construction that identical words used in different parts of the 

same act are intended to have the same meaning,” Sullivan v. Stroop, 496 U.S. 

478, 484 (1990) (citations and internal quotation marks omitted),10 that “ presumption is defeasible.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 

292 (1993) (Souter, J., concurring in the judgment in part and dissenting in part).11 

Here, the presumption conflicts with other normal rules of construction, including 

the presumption that Congress-does not legislate uselessly, and that all parts of

Construction o f State Reporting Requirements in Section 404

o f the Personal Responsibility and Work Opportunity Reconciliation Act

UiSee also Gustafson v Alloyd Co , 513 U S 561, 568. 573 (1995), National Mut Ins Co v. Tidewater Transfer

C o , 337 U S at 587 (opinion of Jackson. J ) (“ While the word (‘state’J is one which can contain many meanings, 

such inconsistency in a single instrument is to he implied only where the context clearly requires it ’’); BFP v. 

Resolution Trust Corp ,511 U.S 531, 557 (1994) (Souter, J . dissenting)

11 See also Helvermg v Stockholms Enskilda Bank, 293 U.S 84, 86-87 (1934), Morse v Republican Party o f

Va , 517 U S 186, 247 n.4 (1996) (Scalia, J , dissenting) So, for example, in United States v Sheffield Bd o f

Comm’rs, 435 U.S 110, 127 (1978), the Court noted that “ the term ‘State’ does not have this lunitary] meaning 

throughout the [Voting Rights] Act ” More recently, the Court declined to read the term “ allowed securcU claim’’ 

in one subsection of the Bankruptcy Code, 11 U.S.C § 506(d), as “ an indivisible term of art defined by rcfercnce’’ 

to subsection (a) of the same provision See Dewsnup v Timm, 502 U S. 410, 415 (1992), id at 422 (Scalia, J , 

dissenting)

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Opinions o f the Office o f Legal Counsel in Volume 22

a statute should be given effect if possible.12 Hence, the second occurrence of 

the term “ state” in subsection 404(b) may have'a narrower meaning than it bears 

in its first occurrence.

It might also be argued that the relevant occurrence of “ State” in subsection 

404(b) is unambiguous because the term “ State” is defined under PRWORA’s 

amendments for Part IV -A of the Social Security Act (where subsection 404(b) 

is to appear as section 411 A). That definition is set forth in subsection 103(a) 

of PRWORA (to become in relevant part section 419(5) of the Social Security 

Act). 110 Stat. at 2160. The definition states that, “ [e]xcept as otherwise specifically provided, the term ‘State’ means the 50 States of the United States, the 

District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin 

Islands, Guam, and American Samoa.” Id. Arguably, this definition establishes 

two things: first, that the term “ State” must be given a single, unitary meaning 

throughout Part IV-A, unless the statute itself specifies otherwise; second, that 

the term “ State” has a referent broader than the TANF-administering state agencies.

We attribute a different purpose to the definition. But for the definitional references to the District of Columbia, Puerto Rico, the Virgin Islands, Guam and 

American Samoa, Part IV-A might not be held to apply to those entities.13 The 

definition thus does not tell for or against either the broad or the narrow interpretation of “ State.” It signifies merely that, whether “ state” includes all subordinate 

state agencies or only those that administer TANF, the same is to be true with 

respect to the District of Columbia (and the other non-“ state” governments).

Accordingly, we believe that there is sufficient ambiguity in section 404’s use 

of the term “ State” to justify recourse to the provision’s legislative history. We 

consider that history below.

II.

We believe that the language of the Conference Report on PRWORA, as well 

as that of the House and Senate Reports, supports the narrower interpretation. 

The Conference Report reads in relevant part as follows (H.R. Conf. Rep. No. 

104-725, at 382 (1996), 1996 U.S.C.C.A.N. 2183, 2770):

House bill

i2See Mackey v Lanier Collection Agency & Serv., 486 U S 825, 837 & n i l (1988), Fidelity Fed Sav. &

Loan A rs’n v de la Cuesta, 458 U S. 141, 163 (1982); Reiter v. Sonotone Corp , 442 U S 330, 339 (1979)

x?,See National Mut Ins. Co. v. Tidewater Transfer Co., 337 U S 582 (1949) a 1940 amendment to the Judiciary 

Act of 1789, which authorized federal courts to entertain diversity suits between citizens of states and citizens of 

the Distnct o f Columbia, the latter class of citizens could not have been parties to such actions, since the Distnct 

of Columbia was not a “ state” under pre-1940 statute), cf. EEOC v Arabian Am Oil C o, 499 U.S 244, 254 

(1991) (noting the argument that the alien exemption provision of Title VII of Civil Rights Act, which makes the 

statute inapplicable to employment of aliens “ outside any State," was intended to ensure that aliens in United States 

possessions were not protected by Act)

208
Agencies that administer SSI, housing assistance programs under 

the United States Housing Act of 1937, or block grants for temporary assistance for needy families (the successor program to 

AFDC) are required to furnish information about aliens they know 

to be unlawfully in the United States to the Immigration and Naturalization Service (INS) at least four times annually and upon INS 

request.

Senate amendment

Similar to House bill.

Conference agreement

The conference agreement follows the House bill and the 

Senate amendment.

The House Report adds, as a reason for the change in the law, that “ [a]s public 

benefits are a magnet for illegal aliens to come to and stay in the U.S., welfare 

agencies should assist INS in its mandate to identify and remove illegal aliens 

from the country.” H.R. Rep. No. 104-651, at 1445 (1996), reprinted in 1996 

U.S.C.C.A.N. 2183, 2770. The Senate Committee Print also includes this sentence. 

Staff of Senate Comm, on the Budget, 104th Cong., Committee Recommendations 

as Submitted to the Budget Committee on the Budget Pursuant to H.R. Con. Res. 

178, at 219 (Comm. Print 1996).

In light of these statements, we concur that "the legislative history supports 

the narrow view.” Working Group Memorandum at 5.

III.

We conclude that the “ narrow” interpretation of the scope of section 404 is 

the better view of the section, and therefore that the various federal agencies 

administering the grants and contracts covered by section 404 should adopt that 

interpretation. Having found that the statutory text is ambiguous, we “ appropriately may refer to [the] statute’s legislative history to resolve [any] ambiguity.” 

Toibb v. Radlojf, 501 U.S. 157, 162 (1991); see also Oklahoma v. New Mexico, 

501 U.S. 221, 237 (1991). As discussed above, the legislative history clearly supports the “ narrow” construction.

RANDOLPH D. MOSS 

Acting Assistant Attorney General

Office o f Legal Counsel

Construction o f State Reporting Requirements in Section 404

o f the Personal Responsibility and Work Opportunity Reconciliation Act

209