DOJ Office of Legal Counsel Expands States' Duty to Report Undocumented Immigrants Under Welfare Law

DOJ Office of Legal Counsel Expands States' Duty to Report Undocumented Immigrants Under Welfare Law

In a major executive consolidation of immigration enforcement power, the Department of Justice’s Office of Legal Counsel (OLC) issued a landmark legal opinion on September 1, 2026, declaring that any state participating in federal welfare programs must have all of its component agencies report undocumented immigrants to the federal government.

The opinion, authored by Deputy Assistant Attorney General Joshua J. Craddock and announced on September 2, 2026, interprets Section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). It specifically withdraws a 1998 Clinton-era OLC opinion that had restricted this reporting requirement only to the specific state agencies that directly administer Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI) benefits.

Under the new OLC interpretation, because Congress defined the term "State" broadly in the statute, the entire state government—including non-welfare component agencies such as departments of motor vehicles, public health departments, and state-funded universities—is now legally bound to share information with the Department of Homeland Security (DHS) regarding individuals they know to be not lawfully present in the United States.

Assistant Attorney General T. Elliot Gaiser of the OLC framed the opinion as a straightforward enforcement of congressional intent.

"Congress wrote this requirement plainly. When a state chooses to participate in TANF, it accepts the obligation to report illegal aliens in the United States. Tax dollars intended to help vulnerable Americans should not perversely encourage illegal entry into the United States, but rather should reinforce our laws and our borders."

Deputy Assistant Attorney General Craddock warned that states failing to comply with the expanded reporting requirements face severe administrative penalties, including the potential loss of federal funding.

"Our clarification does not impose new obligations on states. It simply restores the original meaning of the statute Congress enacted and ensures that DHS receives the information it is legally entitled to. States that accept TANF funding must abide by federal law, and failure to comply may lead to serious consequences, including loss of program funding."

Because all fifty states, the District of Columbia, and several U.S. territories currently participate in TANF and SSI—with federal TANF grants exceeding $16.4 billion annually—this opinion effectively leverages billions of dollars in federal funding to compel state-level cooperation with federal immigration enforcement¹. While the opinion applies prospectively, it provides federal agencies with the legal authority to rewrite future grant agreements to enforce the expanded reporting mandate, setting up an inevitable clash with sanctuary states and cities.