Construction of State Reporting Requirements in Section 404 of
      the Personal Responsibility and Work Opportunity
                      Reconciliation Act

The better in terpretation o f the state reporting requirem ents in section 404 o f the Personal Responsi­
   bility and W ork O pportunity Reconciliation A ct is that they apply only to those state agencies
   adm in isterin g the particular federally funded program in question, not to all state agencies in a
   S tate that receives funds under the program

                                                                                                 A ugust 18, 1998


                       M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
                            I m m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e


   Your Office has sought our views on the interpretation of section 404 of the
Persona] Responsibility and W ork Opportunity Reconciliation Act of 1996
(“ PRW ORA” ), 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, o f the meaning o f the term “ State” within the reporting require­
ment 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 Administra-

   1See M emorandum for Christopher Schroeder, Acting Assistant Attorney General, Office o f Legal Counsel, from
David A M artin, General Counsel, Immigration and Naturalization Service, Re: Interpretation o f Section 404 o f
the Personal Responsibility and Work Opportunity Reconciliation A ct o f 1996, Pub L No. 104—193 (Dec 31, 1996)
(attaching M emorandum to W elfare Reform T ask Force from Reporting/Tracking Working Group, Re- Scope o f
State Reporting Requirements Under Section 4 0 4 o f the Welfare Act (Dec 31, 1996) ( “ Working Group Memo­
randum ” )).
   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. §§60 1 -6 1 9 (1994 & Supp MI 1997), by adding a new section 4 1 1A,
to read as follows:
    Sec. 411 A. State Required To Provide C ertain Information
       Each State to which a grant is made under section 403 shall, at least 4 times annually and upon request
    o f the Imm igration 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
    unlaw fully in the United States


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                          Construction o f State Reporting Requirements in Section 404
                   o f the Personal Responsibility and Work Opportunity Reconciliation Act

don (“ SSA” ) in connection with the Supplemental Security Income (“ SSI” ) pro­
gram; of more relevance here, subsection (c) also requires the SSA, when making
SSI agreements with the states, to “ ensure that each [such] agreement . . . pro­
vides that the State shall furnish such information . . . with respect to any indi­
vidual 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 pro­
grams; 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 con­
sequences o f 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 pro­
grams 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 enti­
ties,” 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 pro­
tean 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 .S C § 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 o f 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 o f Health and Human Services (Feb. 18, 1997)


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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] em ployed.” 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 man­
dates in section 404 redundant. Although state participation in the TANF program
(like state participation in the former AFDC program) is in a strict sense “ vol­
untary,” 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 pro­
vides for such reporting by state agencies under contracts relating to the SSI pro­
gram; 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 D istrict o f Columbia v. Carter, 409 U S. 418, 420 (1973) ( “ W hether the District o f Columbia
constitutes a ‘State or Territory’ within the meaning o f any particular statutory or constitutional provision depends
upon the character and aim o f the specific provision in volved” ); 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 o r possession’ within 5 U S.C § 5517” .).
   7 See N ational Bureau o f Standards—Services to State Institutions, 24 Op. A tt’y Gen. 667, 671 (1903) (term “ State
governm ents” within meaning o f statute entitling such entities to free services of National Bureau o f Standards
did not refer only to department having custody of state standards, but also to other agencies “ performing and
discharging wed-recognized functions o f 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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                        Construction o f State Reporting Requirements in Section 404
                 o f the Personal Responsibility and Work Opportunity Reconciliation Act

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 effec­
tively 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 “ presump­
tion 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

   UiSee also Gustafson v Alloyd Co , 513 U S 561, 568. 573 (1995), National M ut Ins Co v. Tidewater Transfer
C o , 337 U S at 587 (opinion o f 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
C om m ’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 o f the Bankruptcy Code, 11 U.S.C § 506(d), as “ an indivisible term of art defined by rcfercnce’’
to subsection (a) o f 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 PRW ORA (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 specifi­
cally provided, the term ‘State’ means the 50 States of the United States, the
District o f 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 agen­
cies.
   W e attribute a different purpose to the definition. But for the definitional ref­
erences 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 interpreta­
tion o f “ 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 o f the Conference Report on PRWORA, as well
as that o f 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 M ackey 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 M ut Ins. Co. v. Tidewater Transfer Co., 337 U S 582 (1949) a 1940 amendment to the Judiciary
Act o f 1789, which authorized federal courts to entertain diversity suits between citizens of states and citizens of
the D istnct o f Columbia, the latter class of citizens could not have been parties to such actions, since the Distnct
of C olum bia 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 o f Title VII of Civil Rights Act, which makes the
statute inapplicable to employment o f aliens “ outside any State," was intended to ensure that aliens in United States
possessions w ere not protected by Act)


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                   Construction o f State Reporting Requirements in Section 404
            o f the Personal Responsibility and Work Opportunity Reconciliation Act

          Agencies that administer SSI, housing assistance programs under
       the United States Housing Act of 1937, or block grants for tem­
       porary 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 Natu­
       ralization 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 “ appro­
priately 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 sup­
ports the “ narrow” construction.

                                                          RANDOLPH D. MOSS
                                                     Acting Assistant Attorney General
                                                          Office o f Legal Counsel

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