Immigrant Policy Project
State and Local Coalition on Immigration
America’s Newcomers
Mending the Safety Net for Immigrants
By
Ann Morse
Jeremy Meadows
Kirsten Rasmussen
Sherri Steisel
Executive Summary
Federal Overview
State Options and State Decisions
Legal Issues
This report is a compilation of work produced by the Immigrant Policy Project of the State and Local Coalition on Immigration. It reviews the federal welfare reform debates, summarizes the changes in the new law, and details the significant change in immigrants' access to federal, state and local entitlements. It also outlines states' choices and their legislative responses in 1997 to the new federal law. Finally, the report examines federal and state constitutional questions raised by the law.
Federal Overview
In 1996, the federal welfare law transformed the federal entitlement (Aid to Families with Dependent Children) into a capped block grant to states, ending the individual entitlement to assistance. It required recipients to work within two years of receiving benefits, meet work participation requirements of at least 20 hours per week, and limited them to five years of aid. The compromise legislation included increased childcare funding, a contingency fund, preservation of child welfare entitlements, and preservation of state legislative authority to appropriate the new block grants.
The law also cut $24 billion in benefits to legal immigrants and refugees. In general, the welfare law:
- Distinguishes between "qualified" and "not qualified" immigrants;
- Distinguishes between those who entered before and after enactment (August 22, 1996);
- Emphasizes work (10 years of work qualifies an immigrant for benefits);
- Requires reliance on sponsors before reliance on public assistance (and makes the affidavit of support legally enforceable); and
- Establishes options for states to provide or limit public benefits to immigrants.
In 1997, nearly $12 billion in benefits was restored by permitting many immigrants to retain their old age and disability benefits (Supplemental Security Income). However, states are still faced with many difficult choices about whether and how to provide cash, medical or nutritional benefits for vulnerable immigrant populations who are now denied access to federal benefits.
States must also consider how immigrant and refugee families will be served under the new time limits and work requirements of welfare reform. The work participation rates have caused most states to generally move from an education strategy to a work first approach in welfare reform. This approach may not meet refugees' needs for mental health treatment and English language training. States that have immigrant and refugee populations must consider the long-term needs of these families, because their ability to attain self-sufficiency through work will directly affect a state's ability to meet federal work participation rates. States may create separate state programs to provide special services for unique populations. They can also use funds from the federal welfare-to-work grant, created to assist welfare recipients who will have the most difficulty making the transition into employment.
State Options and State Decisions
States faced a number of decisions on immigrant eligibility: whether to provide Temporary Assistance for Needy Families (TANF) and Medicaid to immigrants residing in the state before the welfare law's enactment; whether to provide TANF and Medicaid assistance, with state funds, to immigrants who arrived after the law's enactment or to those no longer qualified for assistance; and whether and how they could afford to provide replacement funds for lost federal Supplemental Security Income (SSI) and food stamps to needy immigrants. The federal law also sought to provide states with new authority regarding the provision of state- and local-funded benefits to immigrants, and state and local policymakers had to decide whether and how to exercise this new authority. A checklist is provided of the decisions state policymakers face under the federal welfare law. (For state legislation implementing welfare reform see StateServ.)
SSI and Food Stamps
TANF and Medicaid
Legal Issues
The 1996 federal welfare law raised several federal and state constitutional issues related to the denial of public benefits on the basis of lawful alienage. The new law creates extensive cuts to and restrictions on immigrants’ access to federal benefits, and seeks to grant new authority to states to restrict access to state public benefits. Although constitutional precedent had allowed the federal government to discriminate on the basis of lawful alienage, it also had clearly prohibited the states from doing so.
In Graham vs. Richardson (1971), a unanimous Supreme Court struck down state laws in Pennsylvania and Arizona that denied legal immigrants’ access to state welfare programs because they violated the 14th Amendment of the U.S. Constitution (the equal protection clause) and because they infringed on the federal government’s plenary power over immigration policy. Under the court’s analysis of equal protection, states may not classify people for government benefits based on a "suspect" classification (such as alienage, race or ethnicity). The state faces the burden of proving that its legislation on a suspect classification is justified by a compelling governmental interest. In Graham, the Court held that a state’s interest in reducing welfare spending was not sufficient to justify the classification.
In Mathews vs. Diaz (1976), the suit challenged the constitutionality of a federal statute that limited eligibility for Medicare benefits (the buy-in to Medicare Part B) to citizens and resident aliens with five years of residence in the United States. The Court ruled that federal power over immigration law is broad enough to permit the federal government to make distinctions between citizens and aliens and among various groups of aliens. However, the Court said that states do not have a legitimate basis for treating citizens and legal immigrants differently.
Lawsuits either have been or are expected to be filed challenging the immigrant provisions of the federal welfare law, mainly in six areas of the U.S. Constitution: equal protection, due process, plenary power of Congress over immigration policy, federalism issues under the 10th Amendment and the Guarantee Clause, and the right to interstate travel. Constitutional challenges are also likely to be brought at the state level. As many as 22 state constitutions provide some obligation to assist poor residents–not citizens–of the state. A review is provided of the main federal constitutional issues, some state constitutional issues and decisions, and recent lawsuits challenging the immigrant provisions of the 1996 welfare law.
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Of the TANF plans submitted to the U.S. Department of Health and Human Services, only Alabama has chosen to deny TANF to all immigrants. Earlier state plans from Kentucky, West Virginia, Louisiana and Wyoming indicated that TANF benefits would be denied, but all four states have since changed or clarified their plans to provide TANF to qualified immigrants. Although post-enactment immigrants may not receive federal TANF money for five years, some states decided to provide state-funded TANF benefits. Several states also established residency requirements in their TANF programs. The Health Care Financing Administration (HCFA) of HHS informed states that if they intend to deny Medicaid to qualified aliens residing in the United States prior to August 22, 1996, they must file a state plan amendment. For HCFA requirements for State Medicaid Directors. According to HCFA, two states–Louisiana and Wyoming–have filed such amendments. West Virginia initially filed an amendment, but later decided to provide medical assistance to qualified aliens.. The first bars to become effective were the SSI and food stamp bars. Before the federal restoration of SSI, states considered and often put in place one of three options to provide an SSI-replacement cash benefit for immigrants: access to or expansion of the state’s general assistance program, access to or expansion of the state’s SSI-supplement or disability benefit program, or creation of a new program. In regard to food stamps, 13 states have chosen to provide state-funded food assistance to some or all legal immigrants who will lose federal food stamp eligibility due to the welfare reform law, either by purchasing federal food stamps or developing state food benefits. (These states are: California, Colorado, Florida, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New York, Rhode Island, Texas, and Washington.) Many states also appropriated additional funds for emergency food assistance. |