Noncitizen Eligibility for Major Federal Public Assistance Programs: Legal Concepts

Noncitizen Eligibility For
Major Federal Public Assistance Programs:
Legal Concepts
Alison M. Smith
Legislative Attorney
American Law Division
Summary
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA) dramatically changed noncitizen eligibility for public assistance.¹ This act
prohibits many classes of noncitizens, legal and illegal aliens alike, from receiving
assistance. In addition, states have greater discretion in establishing eligibility for
receipt of public benefits. These changes in eligibility rules have required courts to
revisit prior case law and determine how principles that were expressed in the context
of earlier, simpler regulation of noncitizen benefits apply now. This report reviews the
holdings of the major pre-1996 cases, and examines how they are being applied in the
new regulatory environment. This report will be updated as events warrant.
General Standards. From a constitutional perspective, setting rules on providing
assistance to noncitizens implicates three sets of interests: (1) the plenary authority of the
federal government to regulate immigration, along with its authority to spend federal
funds for the general welfare; (2) state autonomy to regulate, and expend funds for, the
general welfare; and (3) the rights of noncitizens to be free from unlawful discrimination.
During the 1970s and early 1980s, the Supreme Court decided a series of cases on
governmental authority to discriminate against aliens in providing governmental benefits.
Collectively, these cases set out the following basic constitutional principles: state
governments generally cannot discriminate between aliens who are authorized to live here
indefinitely and U.S. citizens in setting eligibility requirements for state benefits; states
have broader but limited authority to discriminate against aliens who are here illegally;
and the federal government, by contrast, has wide discretion to discriminate both between
citizens and legal aliens and among various classes of legal aliens.

¹ P.L. 104-193. For basic background on the policies involved, see CRS Report RL33809,
Noncitizen Eligibility for Federal Public Assistance: Policy Overview and Trends, by Ruth Ellen
Wasem.

Graham v. Richardson.² In 1971, the Supreme Court declared state-imposed
welfare restrictions on legal immigrants unconstitutional, both because the state statutes^th³
violated the Equal Protection Clause of the 14 Amendment and because they
encroached upon the exclusive federal power to regulate immigration.
At issue in Graham was whether states could impose separate, additional conditions⁴
for legal aliens receiving state or federal assistance funds they administered. The Court
held that, under the Equal Protection Clause of the 14^th Amendment, they could not,⁵
absent compelling circumstances. According to the Court, aliens as a class are a prime
example of the type of “discrete and insular minority” that is due heightened judicial⁶
solicitude when states discriminate against them. Moreover, the Court rejected the
asserted state interests in preserving scarce fiscal resources for citizens as insufficiently⁷
compelling to justify the alienage classifications.
Equal protection aside, the Court further held that federal pre-eminence in regulating
aliens was an independent ground for finding the separate state-imposed rules⁸
unconstitutional. Under the then-existing law, Congress did not disqualify legal
immigrants from receiving federal assistance, nor did Congress attach any immigration
consequences to a legal alien’s receiving assistance due to conditions arising after the
alien’s arrival. Also, as now, legal resident aliens were allowed to move as freely within
the United States as citizens. Under these circumstances, the Court opined, an additional
burden placed by a state on welfare benefits for legal resident aliens impermissibly
encroached upon the exclusive federal power to regulate the conditions under which
aliens may remain in the United States.⁹
In a footnote to the Graham opinion, the Court stated that it had no occasion at that
time to decide whether Congress, in the exercise of the federal immigration and
naturalization power, could enact statutes imposing residency requirements on aliens as¹⁰
a condition of receiving federally funded benefits.

² 403 U.S. 365.
³ In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Court considered whether a noncitizen is a
person constitutionally guaranteed equal protection of the laws, in a challenge to San Francisco’s
discriminatory denial of permits to all Chinese laundry operators. The Court explained that the^th
14 Amendment’s provisions are universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal
protection of the laws is a pledge of the protection of equal laws. Id.
⁴ 403 U.S. 365.
⁵ Id.
⁶ Id. at 371-72.
⁷ Id.
⁸ Id. at 380.
⁹ Id.
¹⁰ Id. at 382 n.14.

Mathews v. Diaz.¹¹ In 1976, the Court approved a congressionally-imposed five-
year residency requirement for alien participation in the Medicare Supplementary
Insurance (part B) program. In upholding the residency requirement, the Court declared
that it is “obvious that Congress has no constitutional duty to provide all aliens with the¹²
welfare benefits provided to citizens.” According to the Court, Congress may draw
distinctions among aliens in providing benefits so long as the distinctions are not “wholly¹³
irrational.”
The Mathews Court recognized that the judicial deference given to a discriminatory
federal welfare provision was at odds with Graham’s recent application of a close scrutiny¹⁴
standard to a discriminatory state welfare measure. Yet, the Mathews Court explained
that the equal protection analysis in the two cases “involves significantly different
considerations,” because the “Fourteenth Amendment’s limits on state powers are
substantially different from the constitutional provisions applicable to the federal power¹⁵
over immigration and naturalization.”
Plyler v. Doe.¹⁶ In 1982, the Supreme Court, in a 5-4 decision, held that it is
unconstitutional to deny illegal alien children residing in a state equal access to
elementary and secondary schools. The Court reached this conclusion even while
recognizing that “illegal aliens,” by virtue of their illegal presence here alone, are due
lesser constitutional protection than legal aliens are. Nevertheless, the Court looked at
then-current immigration enforcement policy and the consequences of depriving basic
education to children who had no control over their status, and found that the state’s
discrimination against illegal alien children could only be justified by “substantial state
interests,” a burden not met in the case before it. At the same time, the Court emphasized
the unusual confluence of circumstances in Plyler, and suggested state authority to
discriminate could be influenced by federal immigration policy.
Welfare Reform. In general, the rules on alien eligibility for government
assistance were relatively simple prior to 1996. Aliens who were permanently residing
in the United States under color of law were treated like citizens in qualifying for state
benefits and, for the most part, in qualifying for federal benefits. Illegal aliens, with some
exceptions, were disqualified under most major assistance programs, but the rules were
inconsistent or nonexistent with respect to a range of other assistance. This changed with
the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA).
The PRWORA broadly rewrote the alien eligibility rules for federal and state public
assistance. Though subject to many detailed exceptions, the new rules include a number

¹¹ 426 U.S. 67 (1976).
¹² Id. at 82.
¹³ Id.
¹⁴ Id. at 84.
¹⁵ Id. at 86-87.
¹⁶ 457 U.S. 202 (1982). For a discussion of the Plyler decision, see CRS Report 97-542, The
Right of Undocumented Alien Children to Basic Education: An Overview of Plyler v. Doe.

of basic standards. For example, aliens, including legal permanent resident aliens, do not
qualify for food stamps or supplemental security income (SSI).¹⁷ In addition, states may
determine which aliens qualify for Temporary Assistance For Needy Families (TANF) or
Medicaid.¹⁸ Moreover, legal immigrants are ineligible for federal means-based assistance
during their first five years here. States are also authorized to determine which aliens
qualify for state-funded benefits, including state cash assistance, so long as the standards
are not more restrictive than standards under comparable federal programs.¹⁹ Illegal
aliens are also denied federal benefits and may qualify for state benefits only under laws
passed by the states after PRWORA’s enactment.
The reach and interrelationship of these standards is unclear. What is clear, however,
is that PRWORA, by direct requirement or through authorization, potentially limits alien
access to state-funded benefits in ways that are arguably unconstitutional under Supreme
Court precedent, especially Graham v. Richardson.²⁰ On one hand, the Court’s precedent
recognizes the plenary power of Congress to regulate aliens, and emphasizes the inability
of the states to enact laws that conflict with congressional policy in this area.²¹ On the
other hand, precedent also holds that, under the fourteenth amendment, states may not
discriminate against legal permanent aliens absent a compelling state interest.²² The
PRWORA raises the issue of whether the new federal restrictions on aliens somehow
affect the equal protection test that has been applied to states under Graham.
In Graham, when the State of Arizona argued that Congress had implicitly
authorized the states to restrict Aid to Families with Dependent Children (AFDC) benefits
for legal immigrants, the Court responded: “Although the federal Government admittedly
has broad constitutional power to [regulate aliens]...Congress does not have the power to
authorize the individual States to violate the Equal Protection Clause.”²³ In other words,
the Court suggested that federal interests could not overcome the heightened protection
that legal immigrants, as a “suspect class,” are due vis a vis the exercise of state power.
This was the view taken by the New York Court of Appeals in Aliessa v. Novello²⁴ in
overturning a New York law that relied on a congressional authorization to the states in
PRWORA to deny certain legal aliens Medicaid. The court found that Title IV of the
PRWORA could not constitutionally authorize New York to determine for itself the
extent to which it will discriminate against legal aliens for state medicaid eligibility,
because they remained a “suspect class” that merited heightened protection for equal

¹⁷ See, e.g., 8 U.S.C. § 1611(a), 1612(a).
¹⁸ 8 U.S.C. § 1622(a).
¹⁹ 8 U.S.C. § 1622(a).
²⁰ 403 U.S. 365.
²¹ Mathews v. Diaz, 426 U.S. 67 (1976).
²² Graham v. Richardson, 403 U.S. 365 (1971).
²³ Id.
²⁴ 96 N.Y.2d 418 (N.Y. 2001); but see, Soskin v. Reinerton, 353 F.3d 1242 (10^th Cir. (Colo)
January 12, 2004)(disagreeing with Aliessa and instead applying “rational basis” review).

protection purposes.²⁵ The court also noted that an authorization to the states to
discriminate did not appear to promote an overarching federal immigration policy because
it allows for uneven treatment of similarly situated aliens among the states.²⁶ As such, the
court opined that Title IV could not give the challenged statute “special insulation from
strict scrutiny review.”²⁷ Thus, the challenged statute “must be evaluated as any other
State statute that classifies based on alienage.”
State courts have reached differing conclusions as to the constitutionality of state
classifications of alienage made pursuant to a federal authorization. For example, in Kurti
v. Maricopa County,²⁸ the Arizona Court of Appeals reviewed a state statute that denied
state health care for indigents to all aliens who arrived after PRWORA’s enactment. The
court principally referenced two provisions of PRWORA in overturning the statute on
equal protection grounds. Section 403 provides that aliens arriving after PRWORA’s
enactment are ineligible for certain federal means-tested health benefits, including
Medicaid, for five years after entry.²⁹ The second section, 412, generally authorizes states
to determine the eligibility of aliens for state benefits.³⁰ The court first dismissed the
state’s argument that it tracked federal standards, finding that the Arizona statue extended
ineligibility beyond five years after entry. The court then held that the authority given to
states under section 412 could not sustain Arizona’s restrictions, especially where state
law goes beyond comparable federal restrictions. In the court’s opinion, the equal
protection analysis in Graham v. Richardson applied, and the statute could not pass “strict
scrutiny.”
In Alvarino v. Wing,³¹ an intermediate New York court dealt with an issue of state
laws that affirmatively sought to restore some benefits to some aliens who lost assistance
because of PRWORA. PRWORA generally made aliens ineligible for food stamps, a
federally-funded program Congress later authorized the states to provide state-funded
food assistance to aliens who lost eligibility for food stamps because of PRWORA. New
York then passed a law to give state food assistance to some, but not all, aliens who had
lost food stamps. Under a “rational basis” analysis, the court found this affirmative grant
of assistance to a limited class constitutional. The court concluded that New York was
not obligated to assist either all or none of the affected aliens, finding that due to the
“explicit Congressional approval permitting the states to provide food aid benefits to the
persons who lost benefits,” alienage could not be considered a suspect classification.³²

²⁵ Id. at 434-35.
²⁶ Id. at 435.
²⁷ Id.
²⁸ 33 P.3d 499 (Ariz. Ct. App. 2001).
²⁹ 8 U.S.C. § 1613(a)
³⁰ 8 U.S.C. § 1622.
³¹ 261 A.D.2d 255 (N.Y. App. Div., May 20, 1999); see also, Aleman v. Glickman, 217 F.3d

1191, 1197 (9^th Cir. 2000).

³² Id.

A similar result was reached through somewhat different reasoning by a
Massachusetts court in Doe v. McIntire,³³ a case that examined a Massachusetts statute
that gave state assistance to certain aliens who were ineligible for comparable federal
assistance because of PRWORA. Eligibility for this state assistance was limited to aliens
who resided in the state for at least six months. Essentially the court held that, while state
laws broadly discriminating between citizens and aliens under a congressional
authorization had to be justified under the heightened “strict scrutiny test,” the statute
before it was subject to a lesser standard because it was limited to a grant of assistance to
aliens only. Applying the more lenient standard, the court concluded that the distinctions
drawn in the law were rational.
The foregoing cases address congressional authorizations to states to set alien
eligibility rules, with courts looking more favorably on affirmative exercises of authority
to provide benefits to those who are otherwise ineligible than on exercises of authority to
cut off assistance. As mentioned above, however, Congress also has mandated that
certain aliens not receive various types of federal and state assistance. Among the legal
issues related to these mandates is whether they impose constitutionally impermissible
classifications on individuals not directly subject to the mandates.
The issue of the indirect reach of a mandated denial of assistance was before the
Second Circuit Court of Appeals in the case of Lewis v. Thompson.³⁴ Under PRWORA,
Congress mandated that illegal alien women be ineligible for prenatal care under
Medicaid. Congress also enacted a provision that automatically provides Medicaid
coverage at birth to children born of Medicaid-eligible mothers, but imposes a waiting
period on covering children born of mothers who are not Medicaid-eligible.³⁵ Under both
the Constitution and federal statute, children born in the U.S. of illegal alien mothers are
U.S. citizens at birth, and a dispute arose as to whether Congress could differentiate
among U.S. citizen children on the basis of their mothers’ immigration status.
In addressing this issue, the court dismissed the argument that children of all
Medicaid-ineligible mothers rather than alienage was the relevant classification.³⁶ The
court considered what should be the proper standard of review for a federal statute that
discriminates on the basis of the immigration status of an individual’s parent. Relying
on Plyler, the court found that an intermediate level of scrutiny analysis was appropriate.
The court found that the circumstances at issue were analogous to the ones presented in
Plyler inasmuch as children were penalized for their parent’s illegal conduct, resulting
in significant and enduring adverse consequences to the children. The court focused on
this aspect of the Plyler decision while not explicitly addressing the intermediate level of
scrutiny or the pertinent governmental interests. As such, the court found that citizen
children of undocumented mothers must be accorded automatic eligibility on terms as
favorable as those available to the children of citizen mothers.³⁷

³³ 773 N.E.2d 404 (Mass. 2002).
³⁴ 252 F.3d 567 (2d Cir. 2001).
³⁵ 42 U.S.C. § 1396a(e)(4) and 42 C.F.R. §§ 435.117, 435.301(b)(1)(iii).
³⁶ 252 F.3d 567, 588.
³⁷ Id.