The Justice Department on Wednesday issued a legal opinion concluding that states are obligated to inform federal authorities about any migrants lacking permanent legal status who apply for welfare and other assistance programs designed for low-income families. The directive, released by the Office of Legal Counsel (OLC), overturns guidance from the Clinton administration that the department argued had "construed the reporting requirement much more narrowly." This marks the latest move by the Trump administration to leverage federal mechanisms to identify and target undocumented immigrants.
The opinion focuses on obligations states accept when they receive federal funding to administer the Temporary Assistance for Needy Families (TANF) and Supplemental Security Income (SSI) programs—both major safety net initiatives that also serve elderly and disabled Americans. Under the new interpretation, any state agency that becomes aware of an individual's unlawful presence must share that information with the Department of Homeland Security (DHS).
"The entire state government—including all component agencies—is bound by federal law to share information with DHS about individuals the state knows to be not lawfully present," the Justice Department stated in a press release announcing the opinion.
Notably, these federal programs are already restricted to U.S. citizens and lawful immigrants. States may use their own funds to extend benefits to newly arrived legal immigrants, but those without lawful status are categorically ineligible. Critics argue the new directive is less about enforcing eligibility rules and more about creating a climate of fear.
"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."
OLC provides legal guidance to the attorney general, and while its opinions are not binding like court rulings, they shape how the administration interprets and applies the law. Assistant Attorney General T. Elliot Gaiser, who heads the OLC, defended the new stance, saying, "Congress wrote this requirement plainly. 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 administration has repeatedly sought access to state databases and pushed to cross-reference federal records to locate undocumented migrants. These efforts have faced legal setbacks, with the Justice Department losing roughly 20 lawsuits seeking to compel states to share voter registration files. DHS has also pursued similar data-sharing agreements, part of a broader initiative to identify noncitizens allegedly registered to vote—though noncitizen voting in U.S. elections is exceedingly rare. The Brennan Center for Justice found just 30 instances of noncitizen voting out of 23.5 million ballots reviewed in the 2016 election, while the conservative Heritage Foundation documented only 24 cases over two decades from 2003 to 2023.
Immigration advocates warn that the new opinion could discourage eligible immigrants from seeking essential benefits for fear of jeopardizing their status or facing deportation. They also note that state agencies may lack the capacity to verify immigration status accurately, raising the risk of errors. Meanwhile, supporters of stricter enforcement argue that the measure ensures public resources are not diverted to those unlawfully present and reinforces the rule of law. The opinion adds another layer of tension between federal immigration policy and state-administered welfare systems, a conflict likely to play out in courts and state legislatures in the coming months.
As the administration continues its crackdown, legal challenges are expected. The OLC's interpretation could face scrutiny in federal court, where judges have previously blocked similar attempts to compel state cooperation. For now, states receiving TANF and SSI funds must decide whether to comply with the new directive or risk losing federal dollars—a high-stakes calculation for governors and state agencies navigating an increasingly polarized immigration landscape.
