           Discrimination Among Classes of Legal Aliens in
                   the Provision of Welfare Benefits

Proposed legislation authorizing the states to discrim inate am ong classes of legal aliens in the
   provision o f w elfare benefits is within Congress' power, and state statutes passed pursuant to it
   would likely be held constitutional.

As a general matter. C ongress could legislate to prevent states from providing welfare benefits to
  certain classes of aliens in order to effectuate a national policy on im m igration. W hile there
   appears to be no basis for Congress’ preem pting provisions in state constitutions which m andated
   the paym ent o f welfare to all aliens, regardless o f their legal status, neither does any state
  constitution appear to contain such a m andatory provision.

                                                                               August 10, 1982

                     MEMORANDUM OPINION FOR THE
                  ASSOCIATE DEPUTY ATTORNEY GENERAL

   This responds to your request for advice whether certain language proposed
for inclusion in S. 2222, 97th Cong., 2d Sess. (1982), a bill to amend the
immigration laws, would be both constitutional and sufficient to overcome
provisions in the constitutions of five states— California, Florida, Illinois, New
York, and Texas—requiring that welfare benefits be given to citizens and legal
aliens alike. The proposed language would authorize states to deny federal
benefits to aliens legalized under the amnesty provisions of the bill. For reasons
stated hereafter, we believe that Congress may, by statute, authorize the states to
decide that they will not provide defined types of welfare benefits to designated
classes of aliens legally in this country. We have, however, been unable to
discover any state constitutional provisions that would affirmatively prevent state
legislatures from making a decision to withdraw welfare benefits from that same
class of aliens. The language will permit the states to discriminate in their statutes
against this particular class of aliens.
   Two states— California and New York—have statutes that explicitly provide
that assistance is available to any “resident” who is either a citizen or an alien who
has not been determined to be an illegal alien. Cal. Welfare and Institutions Code
§ 11104 (West 1980); N.Y. Social Services Law § 209(l)(a)(iv) (McKinney
1976). Illinois makes aid available to any “resident,” 23 111. Ann. Stat. § 6-1.1
(Smith-Hurd Supp. 1982), while Florida provides assistance to those who are
“needy” and are residing in Florida with an intention to remain, Fla. Stat.
§ 409.185(l)(c). Given the Supreme Court’s ruling in Graham v. Richardson,

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 403 U.S. 365 (1971), it would not be surprising if most states, not just these five,
 provided welfare benefits to all residents, whether they were citizens or lawful
 aliens.
    We believe that proposed § 301 (a)(2)(D), which would authorize states to deny
 benefits to the newly created class of aliens, is permissible. Although Graham,
supra, struck down state statutes that discriminated against aliens in the distribu­
tion of welfare benefits, that ruling was based on the statutes’ encroachment on an
area of federal power— i.e., control of immigration— in a manner that was
“inconsistent with federal policy.” 403 U.S. at 380. The Supreme Court has
stated, however, that if a state law regulating aliens is consistent with federal
policy, or was clearly intended to be allowed by federal policy, it will not
generally be struck down as violative of the federal Constitution. See D e Canas v.
Bica, 424 U.S. 351 (1976) (California statute forbidding employment of illegal
aliens). Cf. Toll v. M oreno, 458 U .S. 1 (1982) (Congress intended certain aliens
to have affirmative benefits that state policy undercut); Plyler v. Doe, 457 U.S.
202 (1982) (state could not act where there was no congressional intent to deprive
children of illegal aliens of a public school education). Proposed § 301(a)(2)(D)
makes explicit a national policy to deprive this new class of certain benefits and
authorizes the states, if they wish, to follow suit with regard to similar benefits.
We believe that the Supreme Court would uphold a state statute, passed after
enactment of § 301(a)(2)(D), that deprived this particular class of aliens of
benefits under the programs identified pursuant to § 301(a)(2)(C).
    We have not found any provision explicitly mandating payment of general
assistance to persons, regardless of their legal status, in the constitutions of the
states mentioned above. New York’s constitution does state that “The aid, care
and support of the needy are public concerns,” but it leaves to the state legislature
the definition of needy and the method of meeting this affirmative duty. N.Y.
Const, art. 17, § 1. The only other reference to the issue in the constitutions
noted above is in the Texas constitution which authorizes, but does not require,
the state legislature to provide for “needy” aged, disabled, or blind persons or
dependent children. Tex. Const, art. 3, § 51-a. Thus, the assumption upon
which part of your inquiry is based appears to be in error.
    We are not aware of the basis upon which Congress might premise federal
legislation designed to preempt contrary state constitutions and permit state
legislatures to discriminate against aliens. The fact that Congress could constitu­
tionally legislate directly to prevent all states from providing such benefits does
not establish, in our view, that Congress could override state constitutional
provisions that limit the power of state legislatures to make such a decision
themselves. In the absence of an understanding of the particular basis upon which
Congress would enact such a law, we cannot opine upon the constitutionality of
any such provision.

                                                   L a r r y L . SiMMi>
                                          Deputy Assistant Attorney General
                                              Office cf Legal Counsel

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