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| Hey kids -- what's your immigration status? |
20 state attorneys general (including DC’s) have sued the Dept. of Justice, Dept. of Health and Human Services, Dept. of Education and Dept. of Labor seeking to void a series of orders issued in mid-July that abruptly ended a host of social programs’ exemptions from a federal ban on serving broad categories of immigrants, both lawfully present and undocumented. The ban was established by the so-called Personal Responsibility and Work Opportunity Act (PRWORA), enacted in 1996.
The complaint documents that programs decreed this month to have suddenly lost their exemption from PRWORA’s limiting of benefit eligibility to citizens and “qualified aliens” have been excepted based on rules put in place as soon as PRWORA was enacted in 1996. Many exempted programs, such as the community health center, drug treatment, and Head Start programs, are premised on not checking beneficiaries’ immigration status, and some (e.g., the CHCs) are required by statute not to check immigration status.
The complaint argues that to require states suddenly to assess immigration status for these benefits and ban millions of undocumented and PRUCOL immigrants without advance notice and comment violates the Administrative Procedure Act (Count 1); to do so without an in-depth assessment of public policy outcomes required by the ADA is arbitrary and capricious (Count 2); and contrary to law, as the new interpretations “are directly contrary to decades of settled agency interpretation” (Count 3). It further alleges that the orders (including an overarching DOJ order denying exemption to any program not exempted by name in the PRWORA statute) violate the Constitution’s Spending Clause (Count 4) by failing to provide states with fair notice, imposing conditions that states could not have foreseen when accepting federal funding for excepted programs; and by impermissibly coercing states by imposing “new conditions on the receipt of funds for dozens of federal programs that comprise core components of the social safety net” — threatening federal funding “unless the state accepts a program that is ‘different in kind, not merely degree’ than the one the state previously agreed to join.”
My prior post, focused on the July 10 HHS notice, examined that notice’s sustained attack on the 1998 HHS notice that established core exemption categories — for state block grants, educational programs that are not directed at postsecondary education (as postsecondary programs are explicitly included in PRWORA’s immigrant ban), and programs that that are generally “targeted to communities or specified sectors of the population” as opposed to those “that mandate ineligibility for individuals, households or families that do not meet certain criteria, such as a specified income level or a specified age.” The complaint clarifies that these exemption categories are based on guidance “in place since the very day after PRWORA was enacted.”
On August 23, 1996, DOJ issued a notice specifying types programs and services exempt from PRWORA, identifying seven categories of programs exempt under the statute’s Life/Safety Exemption. Twenty-nine years later Attorney General Bondi’s sweeping July 11 order effectively voided these categories. The specs were in accord with the text of PRWORA, which placed the creation of exemptions within the attorney general’s “sole discretion” — the same discretion Bondi invoked in voiding them. The complaint argues, “It is farcical to suggest that, for 29 years, PRWORA has ‘unambiguously’ meant the opposite of what every federal agency has said it does.”
The exemption categories in the 1996 notice provide a basis for the healthcare-specific exemption categories and exempted programs set out in the 1998 HHS notice—the target of RFK Jr.’s sustained attack. They are as follows:
a) Crisis counseling and intervention programs; services and assistance relating to child protection, adult protective services, violence and abuse prevention, victims of domestic violence or other criminal activity; or treatment of mental illness or substance abuse;
b) Short-term shelter or housing assistance for the homeless, for victims of domestic violence, or for runaway, abused, or abandoned children;
c) Programs, services, or assistance to help individuals during periods of heat, cold, or other adverse weather conditions;
d) Soup kitchens, community food banks, senior nutrition programs such as meals on wheels, and other such community nutritional services for persons requiring special assistance;
e) Medical and public health services (including treatment and prevention of diseases and injuries) and mental health, disability, or substance abuse assistance necessary to protect life or safety;
f) Activities designed to protect the life or safety of workers, children and youths, or community residents; and g) Any other programs, services, or assistance necessary for the protection of life or safety.
The 1996 notice content was left essentially unchanged in a 2001 final order, according to the complaint. A core point in the suit is that exemption categories have been settled law for almost 30 years, as subsequent guidance essentially followed form from 1996. The first paragraphs portray a kind of administrative equivalent to the DOGE meat ax applied to federal funds and agency departments:
federal agencies consistently informed States that PRWORA did not require them to check papers before allowing individuals to access other, vital community programs—many of which have always been open to all. The hungry have never needed to produce government identification to enter a soup kitchen or food bank; parents have never needed to produce their children’s citizenship or immigration records before enrolling them in Head Start; those suffering from substance abuse disorders have never needed to bring their passports to a rehabilitation clinic; people facing homelessness or domestic violence have never needed proof of immigration status to walk into a shelter…
The Department of Justice (DOJ) revoked exemptions that had been in place since the very day after PRWORA was enacted, suddenly demanding that States screen individuals for lawful status before allowing them to access domestic violence shelters, senior nutrition programs, crisis counseling centers, soup kitchens, and myriad other services…
Chaos has predictably followed. Almost overnight, States and their subgrantees faced the threat of enforcement if they could not dramatically restructure crucial components of their social safety nets to comply with Defendants’ new dictates (p. 2).
The complaint ends with four counts alleging specific wrongs, followed by a “prayer for relief” to rectify those wrongs. As the narrative precedes the counts, below are select core allegations in the narrative, which I’ve ventured to ascribe to the four counts where it seems plausible. I’ve left the complaint’s paragraph numbering in place.
Violation of the Constitution’s Spending Clause (Count IV):
10. The Constitution itself …forbids Defendants’ effort to reimagine PRWORA. Plaintiff States accepted federal funding for dozens of programs against the backdrop of Defendants’ settled interpretation of this statute. The Spending Clause does not permit Defendants to dramatically change that bargain and “surpris[e]” the States with “post acceptance,” “retroactive” conditions in the middle of their grant terms. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 25 (1981). Nor may Defendants coerce states into restricting critical community programs—particularly in areas of traditional state power like public health and safety—or else face the loss of billions of dollars in federal funding.
Violation of the ADA - Contrary to Law, e.g., for Violation of PRWORA text (Count III:
While PRWORA exempts nonprofits from verifying immigration status (as acknowledged in the HHS order):
144. None of the PRWORA Notices clarify what obligation, if any, States have to verify for programs operated by nonprofits, except the ED PRWORA Notice, which provides that States must do so for “all relevant programs.” 90 Fed. Reg. at 30,900. States are thus at risk of enforcement not only for their own programs, but also for an undefined set of nonprofit-run programs which themselves have no verification requirement
Violation of the ADA with “arbitrary and capricious” regulation (Count II):
98. With the exception of Head Start and (arguably) one other program, the Notice offers no explanation as to why it added any of these programs to the list [of new non-exempted programs], and it expressly refuses to consider any reliance interests in its longstanding interpretation or the negative impacts of its novel interpretation on public health.
Violation of the ADA’s notice and comment requirement (applies to substantive, “legislative” rules): Count I:
139. The HHS, ED, and DOL PRWORA Notices went into immediate effect when they were issued between July 10 and July 14 of 2025. States had no notice that they were going to have to comply immediately with the Notices and no time to establish the processes necessary for compliance, even if they believed the new obligations were lawful. As a result, Plaintiffs’ programs faced the risk of enforcement action from Defendants as soon as those Notices were issued.
Unworkable, harmful to states and programs (“arbitrary and capricious?”):
144. None of the PRWORA Notices clarify what obligation, if any, States have to verify for programs operated by nonprofits, except the ED PRWORA Notice, which provides that States must do so for “all relevant programs.” 90 Fed. Reg. at 30,900. States are thus at risk of enforcement not only for their own programs, but also for an undefined set of nonprofit-run programs which themselves have no verification requirement.
150. It is likely that for some programs, the costs of compliance will be so high as to lead to the programs’ closure. Many Head Start programs are small entities that operate on razor-thin margins and are likely to close if facing a significant administrative burden.
156. Further, some of Plaintiff States’ programs that are affected by the Notice are fundamentally incompatible with immigration status verification. For those programs, the Notices will not just reduce, but fully eliminate, their ability to meet their core purpose.
163. Further, the DOJ Notice poses additional harms by removing the safe harbor for state agencies and service providers to legally provide services necessary for the protection of life or safety without consideration of the recipient’s immigration status, creating ambiguity in the law that will deter both providers and recipients of services from participating in life-saving programs.3
To my non-lawyer’s eye, the complaint effectively indicts the stunningly cruel, capricious, counterproductive and ultimately unconstitutional nature of the four orders that effectively void 29 years of PRWORA administration. I suspect that the first courts to hear the case will agree. But the MAGA-fied Supreme Court majority may not. And troublingly, PRWORA does place exemptions under the Attorney General’s “sole discretion” — though even the Gingrich-era Republicans who wrote the law probably couldn’t imagine an AG as cruel and corrupt as Bondi. How far does that “discretion” extend?
Photo by Gary Cook
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