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ID:
AUG 07'97
3:13 No. 003 P.02
Aprel
Fortance
ejuu:
07 WED FAA 20: 225 3077
FANIGRATION 2 CLAIMS
- MEMBERS
MONTH MEMBERS
ONN CONVERS. JR_MICMIGAN
*(MRY) NTUR. ILLINOIS (NAMMAN
BARNET ISANS MASSACHUSETTS
ONE NUNDRED ПГТН CONGRESS
CHARGE COMMER. NEW TOME
TOWARD REAMAN. CALIFORNIA
... MICOLLUM FLORIDA
RICK BOUCHER. VIRGINIA
CTEAS PENNSYLVANIA
- come. MORTH CARCUMA
LAMARS 6MITH TEXAS
Congress of the United States
more
MOBERT RCOTT. VIRGINIA
MEDICAL wan. NORTH CARDLINA
Scmill,
30' INEGRIN CALMONIA
DALLEOL- CALIFORNIA
BOB SOUTH CAROLINA
thouse of Representations
SATILA DERSON CIG. TERAS
CHARLEST CANADE, ILEMIDA
MAXINE WATERY. CALIFORNIA
MARTIN T.MEEMAN. MARKACHUSETTS
100 00001
sieve surfe INTERNA
COMMITTEE ON THE JUDICIARY
MILIAM D DECAMONT MARRACRUSETTS
ans(s) HONOR
SOUNT each CALIFORNIA
STRUINA ROTHMAN JEASEY
10 BATAN! TENNESSEE
DEVERMANOT DWO
2130 HATHUMA MOUSE CFFICE BUILDING
400 DAEP. GEORGIA
WELIAMS. JENEIRS. TENNESSEE
accouses
WASHINGTON OC 20515-6216
(0-10) PEASE INDIANA
POSTEIN
MOONEY "
CHRISTOPHER 0 CANNOR uran
(202) 225-3951
MINDAITY STATE DIRECTOR
CHIEF -Crulnel COUNSEL
Affiliation
JOSE will
Elena
STATE COUNSES
July 29, 1997
CC
Cynshia Ken Appel
The Honorable Jance Reno
Attorney General
U.S. Department of Justice
Washington, D.C. 20530
Dear General Reno:
I was very dismayed and disappointed after having read the Office of Legal Counsel's
memorandum that was presented to me as justification for your interpretation of the term
"means-tested public benefit" as will bc used in future affidavits of support exccuted by sponsors
of intending immigrants.'
On July 11, Justice Department officials including Deputy Assistant Attorney General
Randolph D. Moss told me that the term would be interpreted as only applying to benefits
provided through mandatory spending programs, i.e., entitlement programs. I was later given the
memorandum, written by Mr. Moss and Acting Assistant Attorney General Dawn Johnsen, that I
understand was"adoried by this Administration as the basis for its definition of "means-tested
public benefit." I can only conclude that the Administration's analysis was constructed to fit a
predetermined result - that is, to minimize the scope of the term.
Section 551 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) requires that the new affidavit of support you are to draft is to be legally enforceable
against the sponsor by any entity "that provides any means-tested public benefit." By
interpreting this term to apply to only mandatory spending programs, you are relieving the
sponsor of all responsibility for benefits consumed by the sponsored immigrant that are provided
through discretionary programs. This is terrific blow not only to IIRIRA but to the American
taxpayer as well, made doubly powerful by the fact that the interpretation is unfounded.
The Administration justifies its conclusion solely because the definition of the term
"Federal means-tested public benefit" was removed from S. 1956, last year's Senate version of
welfare reform legislation, on the Senate floor on a "Byrd rule" point of order raised by Senator
:
Memorandum for Harriet S. Rabb General Counsel, Department of Health and Human
Services (Jan. 14, 1997)(hereinafter cited as "Memo").
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AUG 07'97
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2.
Exon.² The definition stated that:
[T]he term "Federal means-tested public benefit" means a public benefit (including cash,
medical, housing. and food assistance and social services) of the Federal Government in
which the eligibility of an individual. household, or family eligibility unit for benefits, or
the amount of such benefits, or both are determined on the basis of income, resources, or
financial need of the individual, household, or unit.³
The Byrd rule" allows a Senutor to raise a point of order against "extrancous" provisions
during Senate consideration of a reconciliation bill. The rule describes six types of extraneous
provisions. including provisions that do not produce a change in outlays or revenues and
provisions that are not within the jurisdiction of the committee that submitted them for inclusion
in the reconciliation measure.
Senator Exon objected to many provisions in his point of order. His rationale for
objecting to the definition of "Federal means-tested public benefit" was that "Aspects are not in
Finance Committee's jurisdiction." No Senator made a motion to waive the Byrd rule (which
would have required 00 voics) in this instance.
Ms. Johnsen a Ms. Moss conclude that the definition was struck because "it reached
discretionary spending programs" (having no direct budgetary impact, as mandatory entitlement
programs would).6 Therefore, the "legislative record provides strong evidence that the phrase
'federal means-tested public benefits,' as used in [PRWORA], should be construed to reach only
mandatory (and not discretionary) spending programs." Thus, the term "means-tested public
benefit" as it applies to the new affidavit of support should bc so construed, or so I was told on
July 11.
Not only is this argument wrong-headed, it is simply perplexing. Ms. Johnsen's and Mr.
I Cong. Rec. S3423 (July 22, 1996).
1 S. 1956, 104th Cong., 2d Sess. sec. 2403(c)(1) (1996).
4 2 U.S.C. sec. 644.
I Cong. Rec. S8424 (July 22, 1996).
6 Memo at 2. "The Parliamentarian upheld Senator Exon's Byrd rulc objection on the
grounds that the provision was outside the Finance Committee's jurisdiction and that, to the
extent the definition er compassed discretionary programs, its impact on the budget was 'merely
incidental. Id. At 6.
, Id At 7.
ID:
AUG 07'97
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IMMIGRATION a CLAIMS
3
Moss' memorandum presents the views of the Office of Legal Counsel "regarding a construction
of the scope of the phrase 'federal means tested public benefit[s]' contained in the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 However. the only term
relevant to the new affidavit of support is "means-tested public benefit", and this term, along
with all requirements for the new affidavit of support. is contained in section SSI of JIRIRA.'.
And IIRIRA was neve part of a reconciliation bill!
The interpretation of a term justified solely by the application of the Byrd rule to the
legislation the term is contained in does not transfer to a similar term in another piece of
legislation not subject to the Byrd rule in the first place. The memorandum provides no
justification at all for an interpretation of "means-tested public benefit" as contained in IIRIRA.
Even if we were to examine the meaning of the term "Federal means-tested public
benefit" as it exists in PRWORA, there is no legitimate rationale for concluding that it docs not
encompass benefits provided by discretionary programs simply because its definition was
"Byrded-out."
The Byrd rule 15 merely a procedural device, an internal Senate rule designed to protect
the Senate's deliberative process by excluding from consideration under expedited reconciliation
procedures extraneous provisions added by the House. It was never intended to play any role in
the executive branch's interpretation of a statute. This is not just my opinion, this is how the
Senate Parliamentarian's Office views the Byrd rule. By all means ask Senate Parliamentarian
Bob Dove (202-224-6:28) I wish Ms. Johnson and Mr. Moss would have done so before
writing their memoran:lum.
If the Administration's reliance on the Byrd rule for purposes of statutory interpretation
was improper, how then should we interpret "means-tested public benefit" or "Federal means-
tested public benefit"? The Supreme Court tells us that:
As in all cases involving statutory construction, "our starting point must be the language
employed
by
Congress,"
and we assume "that the legislative purpose is expressed by
the ordinary meaning of the words used."
Thus, "[a]bsent a clearly expressed
legislative intertion to the contrary, that language must ordinarily be regarded as
conclusive.""
a Id. at 1.
9 While PRWORA also contained provisions setting forth the requirements for a new
affidavit of support (ser:, 423), superseding requirements were contained in the later-enacted
IIRIRA.
"American Tobacco Co. Y. Patterson. 456 U.S. 63, 68 (1982) (citations omitted).
ID:
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DIMIGRATION 1. CLAIMS
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4
Consistent with this precedent, the language of PRWORA clearly indicates that the term
"Federal means-tested public benefit" includes benefits provided through discretionary programs,
and there is no "clearly expressed legislative intention to the contrary."
"Federal mean s-tested public benefit" is an undefined term in PRWORA. The Supreme
Court has held that when a term used in a statute is not defined in that statute, "we construe [thc]
term in accordance with its ordinary or natural meaning." Where would one find the ordinary
meaning of a term? "A dictionary is an appropriate source for gleaning that 'ordinary
meaning
Webster's Third New International Dictionary of the English Language Unabridged
defines "means test" is "any examination of the financial state of a person as a condition
precedent 10 receiving social insurance, public assistance benefits, or other payments from public
funds." The Random House Dictionary of the English Language defines "means test" as "any
investigation into the financial position of a person applying for aid from public funds."
There is no indication in these definitions that means-tested benefits are limited to those
provided by "mandatory" benefit programs. Ms. Johnsen and Mr. Moss argue that "the
proposition that combining plain terms necessarily results in an cqually plain phrase is not at all
sclf-evident." However, 1 find it inconceivable that "Federal means-tested public benefit"
could mean anything other than a Federal public benefit that is means-tested.
An additional indication of the proper definition of the term "Federal means-tested public
benefit" in section 403 of PRWORA is provided by the fact that the term is preceded by the word
"any." Webster's New World Dictionary defines "any" to mean "without limit" and "every".
The plain meaning of the phrase "any Federal means-tested public benefit" -- every Federal
means-tested public benefit without limit .. is directly at odds with the Administration's reading
of the phrase. "Any Federal means-tested public benefit" clearly canno: mean "a means-tested
benefit except if it is provided through a discretionary program".
The structure of PRWORA provides additional evidence that "Federal means-tested
public benefit" must b:: read to include benefits provided through discretionary programs.
Section 403 of PRWORA includes the term "Federal means-tested public benefit" in subsection
(a) and then sets out 3 list of exceptions in subsection (c)(2) .. the "limitation" as to the receipt of
Federal means-tested public benefits by "qualified". aliens in (a) does not apply to the
"[a]ssistance and benefits" listed in (c)(2).
"EDICY Meyer, 114 S.Ct. 996. 1001 (1994).
1: Koyo Sciko Co Ltd V U.S. 36 F.3d 1565, 1571 n.9 (Fed. Cir. 1994).
13 Memo at 9 (footnote and citation omitted).
ID:
AUG 07'97
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07 10 37 WED 05 11 FAX 202 225 3672
IMMIGRATION & CLAIMS
41000
S
Conspicuously absent from (c)(2)'s list of exceptions is "benefits provided under a
discretionary program." The Supreme Court has ruled that "[w]here Congress explicitly
enumerates certain exceptions to a general prohibition, additional exceptions are not to be
implied, in the absence of evidence of & contrary legislative intent."" Since, as will be shown
shortly. there was no contrary legislative intent. "Federal means-tested public benefit" in section
403(a) should not be read as containing an exception for "discretionary" benefits not found in
section 403(c)(2).
Also, the list o.: exceptions in subsection (c)(2) itself includes discretionary programs! As
Ms. Johnsen and Mr. Moss admit in their memorandum, 3 "textual argument" can be made that
"[t]he inclusion of some discretionary programs in this list of exceptions would be unnecessary
unless the term itself included such programs." But this is more than an "argument", it is a
cannon of statutory construction. As the Eleventh Circuit has stated, "[i]n a case of a true
statutory exception an exception exists only to exempt something which would otherwise be
covered." The statute is thus clear that the definition of "federal means-tested public benefits"
includes benefits provided through discretionary programs."
All there is left to do is to determine whether there was "clear congressional intent" that
would have us set aside the plain meaning of the statute.
As Ms. Johnsen and Mr. Moss admit in their memorandum, the conference committee's
report on PRWORA states that "[i]t is the intent of conferees that [the deleted] definition be
presumed to bc in place for purposes of this title."¹⁸ The deleted definition was the one quoted at
the beginning of this letter that made no distinction between "mandatory" and "discretionary"
benefits. So much for contrary legislative intent.
The memorandum states that "{w]e believe that this statement in the conferees' report
14 U.S. Y. Smith, 111 S.Ct. 1180. 1185 (1991).
13 Memo at 10.
16 Florida Gulf Coast Building and Construction Trades Council V. N.L.R.B., 796 F.2d
1328, 1341 (11th Cir. 1986).
17 Ms. Johnsen and Mr. Moss explain away this problem by stating that "[t]he
categorization of particular programs as mandatory or discretionary is not at all obvious, and it is
likely that many, if not nost, members [of Congress] did not know precisely which programs fell
into which category." Memo at 11. This argument shows a deplorable contempt for Congress
that is unfortunately also exhibited elsewhere in the memorandum.
18 H. Conf. Rep. No. 104-725, 104th Cong., 2d Sess. 381 (1996), reprinted in 1996
U.S.C.C.A.N. 2649, 2770.
ID:
AUG 07'97
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IMMIGRATION A CLAIMS
6
cannot he taken as controlling." Even if we were to accept this argument that the conferees'
statement is not "controlling" (which I must object to as showing altogether too little respect for
Congress on the part of the Justice Department), the statement must still be agreed to trump other
proffered legislative history. It is a settled matter of statutory construction that. as the Seventh
Circuit states, a conference report "is the most persuasive evidence of congressional intent
besides the statute itself."20 Why? Because "the conference report represents the final statement
of terms agreed to by both houses
"21
There can surely bc no "clearly expressed legislative intent" that is contradicted by the
conference report itself! Thus, as the Supreme Court ruled, WE must return to the language of the
statute (even if other legislative history could be argued to provide some evidence of a contrary
meaning). As I have shown earlier. this language clearly indicates that "Federal means-tested
public benefit" must be read to include benefits provided through discretionary programs.
The other legislative history used by the Administration to support its interpretation of
the term "Federal means-tested public benefit" is contradicted and made impotent by the
language of the conference report. Even if it were not, this "other legislative history" is not
properly read as excluding "discretionary" benefits. For it is mercly a recitation of the events
surrounding Senator Exon's point of order involving the Byrd rule -- a procedural rule
inappropriate for statutory interpretation.
Even if Scnator Exon's utilization of the Byrd rule were relied upon for statutory
interpretation, it would not in this case indicate that "Federal means-tested public benefit" should
exclude "discretionary" benefits. If Senator Exon had wanted to limit the meaning of the term to
"mandatory" programs, he should have done one of two things.
One, when he raised his point of order on the basis of the Byrd rule, he should have
included the phrase "any Federal means-tested public benefit" itself² in the list of violations of
the Byrd rule that he sent to the Chair. Or, two, after raising his point of order to the definition,
he should have offered an amendment to PRWORA adding "a benefit provided through a
discretionary program" 10 the list of exceptions those "Federal means-tested public benefits" to
19 Memo at 11.
20 Resolution Inist Corporation V Gallagher, 10 F.3d 416, 421 (7th Cir. 1993). See also
Northwest Forest Resource V. Glickman. 82 F.3d 825, 835 (9th Cir. 1996); Austin Y. Owens-
Brockway Glass Container, Inc., 78 F.3d 875, 881 (4th Cir. 1996); RJR Nabisco, Inc. V. U.S.,
955 F.2d 1457, 1462 (1)th Cir. 1992).
21 Demby V. Schweiker. 671 F.2d 507. 510 (D.C Cir. 1981), quoted in Resolution Trust
Corporation at 421.
" The term was contained in section 2403(a) of S. 1956.
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/
which the restrictions on receipt by "qualified" aliens would not apply ?)
Senator Exon climinated 3 definition of "Federal means-tested public benefit", but he left
the underlying term alone. Since the underlying tenn had a clear meaning in standard English
a meaning that included benefits provided through discretionary programs - -- his actions did not
affect that meaning.
Additionally, vie cannot attribute Senator Exon's intent in raising his Byrd rule point of
order to the other members of the Senate Given that the underlying term had J clear meaning in
standard English, other Scnators would have assumed that this "ordinary" meaning would still
apply to the term. They could not know what Senator Exon was up to unless he informed them.
This, he did not do until August 1, when on the floor of the Senate he ascribed his intent in
offering his point of order to limiting the definition of "Federal means-tested public benefit" to
benefits provided through mandatory programs." At the time, the Senate was considering the
conference report to PRWORA - it had long since passed the versions of S. 1956 to which
Senator Exon raised his Byrd rule point of order.
Remember, when Senator Exon made his point of order (on July 22), he mercly indicated
that, as to the definition of "Federal means-tested public benefit", "Aspects are not in Finance
Committee's jurisdiction." How could any other Senator have known of Senator Exon's intent
when it mattered, when he or she could have offered B motion to waive the Byrd rule?
For the reasons set forth in this letter, I urge you in the strongest terms to reconsider your
interpretation of "Federal means-tested public benefit" as it will be utilized in affidavits of
support. The present Department of Justice interpretation is utterly lacking in merit and makes a
travesty of statutory interpretation. More importantly, it prevents from being fulfilled the
promise to the American taxpayer that was the Illegal Immigration and Immigrant Responsibility
Act of 1996.
Lamer Smith Sincerely,
Lamar Smith
"Chairman, Subcommittee on Immigration
and Claims
2) These exceptions were found at section 2403(c)(2) of S. 1956.
24 Cong. Rec. S0400 (August 1, 1996)(statement of Senator Exon). The claim is not
made until August 1 that the Senate Parliamentarian agreed that benefits provided through
discretionary programs violated the Byrd rule. Id. (statement of Senator Graham).
08/26/97 13:49 5202 690 6562
DHHS/ASPE/HSP
001
FAX TRANSMITTAL
DATE:
TO:
Diana Fortuna
FAX NUMBER 456-7431
VOICE NUMBER
FROM: David Nielsen
FAX NUMBER
VOICE NUMBER
NUMBER OF PAGES, INCLUDING COVER
Comments Attached are the HHS 2 SSA
F.R. Notices on "means-tested" benefits
08/26/97
13:49
202 690 6562
DHHS/ASPE/HSP
002
45256
Federal Register / Vol. 62, No. 165 / Tuesday, August 26, 1997 / Notices
processing the payment of health
with the requirements of the Securities
Dated: August 22, 1997.
insurance claims by performing data
Act of 1933 and the rules of the
Jennifer J. Johnson,
entry of customer provided information
Securities and Exchange Commission,
Deputy Secretary of the Board.
and information relating to the cost of
pursuant to § 225.28(b)(7) of the Board's
(FR Doc. 97-22867 Filed 8-22-97; 3:44 pm]
medical treatment, and by utilizing the
Regulation Y; and in providing
BILLING CODE 6210-01-P
customer's database to match
administrative and other services to
membership and provider information
investment companies, including open-
to facilitate payment between the
end investment companies ("mutual
DEPARTMENT OF HEALTH AND
provider and the insurer, and in
funds"). See Bankers Trust 83 Fed. Res.
HUMAN SERVICES
collection of financial and other data
Bull.
(Order dated July 21, 1997);
from hard copies and electronic images
Barclays PLC, 82 Fed. Res. Bull. 158
Office of the Secretary
of airline tickets that is provided to
(1996); Bank of Ireland, 82 Fed. Res.
customers for billing purposes, pursuant
Bull. 1129 (1996). BankAmerica would
Personal Responsibility and Work
to § 225.28(b)(14) of the Board's
engage in these activities in accordance
Opportunity Reconciliation Act of 1996
Regulation Y. See, Banc One
with the limitations and conditions
(PRWORA); Interpretation of "Federal
Corporation, 80 Fed. Res. Bull. 139
previously established by the Board by
Means-Tested Public Benefit"
(1994).
regulation or order, with certain
AGENCY: Office of the Secretary, HHS.
B. Federal Reserve Bank of San
exceptions relating to the proposed
Francisco (Pat Marshall, Manager of
ACTION: Notice with comment period.
provision of advisory and
Analytical Support, Consumer
administrative services to mutual funds
SUMMARY: This notice with comment
Regulation Group) 101 Market Street,
that are discussed in the notice.
period interprets the term "Federal
San Francisco, California 94105-1579:
BankAmerica also intends to acquire
means-tested public benefit[s]" as used
1. BankAmerica Corporation, San
certain offshore subsidiaries, companies
in Title IV of the Personal
Francisco, California; to acquire all of
engaged in providing services to Group
Responsibility and work Opportunity
the assets, and assume all of the
and RS & Co. and its affiliates, and
Reconciliation Act of 1996 (PRWORA),
liabilities of Robertson Stephens &
proprietary investments currently
Pub. L. 104-193, to include only
Company Group ("Group"), and
owned by Group and RS & Co. Inc.
mandatory spending programs of the
Robertson Stephen & Company, Inc.
("RS&Co., Inc."), and thereby engage
Board of Governors of the Federal Reserve
Federal Government in which eligibility
worldwide in underwriting and dealing
System. August 20, 1997.
for the programs' benefits, or the
in, to a limited extent, all types of debt
Jennifer J. Johnson,
amount of such benefits, or both, are
determined on the basis of income or
and equity securities other than
Deputy Secretary of the Board.
resources of the eligibility unit seeking
interests in open end investment
[FR Doc. 97-22601 Filed 8-25-97; 8:45 am)
the benefit. At HHS, the benefit
companies See J.P. Morgan & Co., Inc.,
BILLING CODE 6210-01-F
programs that fall within this definition
Citicorp and Security Pacific Corp., 75
(and are not explicitly excepted from
Fed. Res. Bull, 192 (1989); in
underwriting and dealing in obligations
FEDERAL RESERVE SYSTEM
the definition by Section 403(c)) are
Medicaid and Temporary Assistance for
of the United States, general obligations
Sunshine Act Meeting
Needy Families (TANF).
of states and their political subdivisions,
and other obligations that state members
DATES: Effective Date: This notice is
AGENCY HOLDING THE MEETING: Board of
banks of the Federal Reserve System
effective on August 26, 1997.
Governors of the Federal Reserve
may be authorized to underwrite and
COMMENT PERIOD: Written comments
deal in under 12 U.S.C. 24 and 335,
System.
will be considered if we receive them at
pursuant to § 225.28(b)(8) of the Board's
TIME AND DATE: 11:00 a.m., Tuesday,
the appropriate address, as provided in
Regulation Y; in acting as investment or
September 2, 1997.
the ADDRESSES section below, no later
financial advisor, pursuant to
than 5 p.m. on October 27, 1997.
PLACE: Marriner S. Eccles Federal
§ 225.28(b)(6) of the Board's Regulation
ADDRESSES: Mail comments (1 original
Reserve Board Building, C Street
Y; in providing securities brokerage
entrance between 20th and 21st Streets.
and 3 copies) to the following address:
services (including securities clearing
Division of Economic Support for
N.W., Washington, D.C. 20551.
and securities execution services on an
Families, Office of the Assistant
exchange), alone and in combination
STATUS: Closed.
Secretary for Planning and Evaluation,
with investment advisory services, and
MATTERS TO BE CONSIDERED:
Department of Health and Human
incidental activities (including related
1. Personnel actions (appointments,
Services, Room 404E, 200 Independence
securities credit activities and custodial
Ave., SW, Washington, DC 20201,
promotions, assignments.
services), pursuant to § 225.28(b)(7) of
Attention: David Nielsen.
reassignments, and salary actions)
the Board's Regulation Y; in buying and
involving individual Federal Reserve
FOR FURTHER INFORMATION CONTACT:
selling in the secondary market all types
System employees.
David Nielsen, (202) 690-7148.
of securities on the order of customers
Copies of comments may be inspected
as a riskless principal to the extent of
2. Any items carried forward from a
at the above address. Inquiries regarding
engaging in a transaction in which the
previously announced meeting.
how a particular program is affected by
company, after receiving an order to buy
CONTACT PERSON FOR MORE INFORMATION:
this notice should be submitted to
(or sell) a security from a customer.
Mr. Joseph R. Coyne, Assistant to the
DHHS program staff responsible for
purchases (or sells) the security for its
Board: (202) 452-3204. You may call
managing the program at either the
own account to offset a
(202) 452-3207, beginning at
appropriate Regional Office, or
contemporaneous sale to (or purchase
approximately 5 p.m. two business days
Headquarters in Washington, DC. The
from) the customer, pursuant to
before this meeting, for a recorded
above contact should be used only to
§ 225.28(b)(76) of the Board's Regulation
announcement of bank and bank
submit general comments regarding the
Y; in acting as agent for the private
holding company applications
policy interpretation contained in this
placement of securities in accordance
scheduled for the meeting.
notice.
08/26/97
13:51
202 690 6562
DHHS/ASPE/HSP
003
Federal Register / Vol. 62, No. 165 / Tuesday, August 26, 1997 / Notices
45257
SUPPLEMENTARY INFORMATION:
Rule objection in terms of limiting the
III. Comment Period and Effective Date
scope of the definition of "Federal
I. Background
Although HHS is soliciting public
means-tested public benefit" to
comment on this interpretation, we
Title IV of PRWORA contains several
mandatory spending programs, while
believe that it is necessary to apply this
references to the term "Federal means-
leaving discretionary programs
interpretation to HHS programs
tested public benefit[s]." The most
unaffected. See 142 Cong. Rec. at S9403
immediately. prior to receipt and
significant of these references are found
(daily ed. August 1, 1996) (statement of
consideration of any comments.
in Sections 403 and 421. Section 403
Senator Chafee); 142 Cong. Rec. at
PRWORA was enacted in August,
denies "Federal means-tested public
S9400 (statements of Senators Graham,
1996, and since that time HHS has
benefit[s]" to aliens who entered the
Kennedy and Exon). Therefore, to the
received numerous inquiries regarding
United States with a qualified alien
extent the definition of "Federal means-
the application of the term "Federal
status "on or after the date of the
tested public benefit" included benefits
means-tested public benefit."
enactment of this Act" for 5 years
provided by discretionary spending
Additional delay will cause unnecessary
beginning on the date of the aliens'
programs, it was subject to a Byrd Rule
or incorrect administrative actions by
entry into the United States. Section 421
provides that new sponsor-to-alien
objection.
agencies or entities that administer our
deeming rules apply to "any Federal
П. Interpretation
programs. We also believe it is possible
that due to confusion about the
means-tested public benefits program."
In the absence of a statutory definition
In light of the statutory language and
application of the term "Federal means-
of "Federal means-tested public
legislative history, HHS is defining
tested public benefit" people may have
'Federal means-tested public benefit" to
been denied critical benefits and
benefit", HHS is interpreting the term to
include only benefits provided by
apply only to benefits provided by
services who, according to the
means-tested, mandatory spending
Federal means-tested, mandatory
interpretation in this notice, are
programs.
spending programs, and not to any
otherwise eligible. Without prompt
Early versions of PRWORA contained
discretionary spending programs or to
issuance of this interpretation, state and
a definition of "Federal means-tested
any mandatory spending programs that
local governments and other public and
public benefit" that could have
are not means-tested. For purposes of
private benefit providers will remain
encompassed benefits provided by both
this Federal Register notice, a program
confused over how to implement the
discretionary spending programs and
is considered "means-tested" if
requirements of Title IV of PRWORA.
mandatory spending programs. (These
eligibility for the program's benefits, or
Finally, some states have indicated their
early versions provided that, with
the amount of such benefits, or both, are
intention to define the term "Federal
certain exceptions, "the term 'Federal
determined on the basis of income or
means-tested public benefit" on their
means-tested public benefit' meant a
resources of the eligibility unit seeking
own if Federal guidance is not
public benefit (including cash, medical,
the benefit.
forthcoming soon. Independent
housing, and food assistance and social
interpretations by states will only
services) of the Federal Government in
The following HHS programs are
compound the confusion on this issue
which the eligibility of an individual,
means-tested, mandatory spending
since there is no certainty that each state
household, or family eligibility unit for
programs: Medicaid, Temporary
will arrive at the same definition of the
benefits, or the amount of such benefits,
Assistance for Needy Families (TANF),
term. In sum, although we are providing
or both are determined on the basis of
Foster Care, Adoption Assistance, and
a 60-day period for public comment, as
income, resources, or financial need of
part of the Child Care Development
indicated at the beginning of this notice,
the individual, household, or unit." 142
Block Grant. Foster Care and Adoption
this interpretation is effective
Cong. Rec. S8481 (daily ed. July 22,
Assistance, however, are explicitly
immediately.
1996).) During debate over the bill in the
exempted from the term "Federal
Senate, a member of the Senate raised
means-tested public benefit" under
IV. Economic Impact
a point of order pursuant to the Byrd
Section 403(c)(2)(F). The Child Care
The Department has analyzed the
Rule, and the definition was struck. The
Development Block Grant program is
costs and benefits of this notice to
Senate Parliamentarian upheld the Byrd
unique in that it is funded from both
determine whether it has a substantial
Rule objection, the Senate did not
mandatory and discretionary parts of
economic effect on the economy as a
appeal the ruling, and PRWORA was
the budget. Since the funds are
whole, on states, or on small entities.
ultimately enacted without defining the
operationally commingled at the state
The purpose of this analysis was to
and local level, and since the mixed
term.
identify less burdensome or more
PRWORA was subject to Section 313
nature of the funding results in
beneficial alternatives and thereby to
of the Congressional Budget Act of 1974,
budgetary effects more closely akin to
influence the requirements imposed by
also known as the "Byrd Rule," because
those of a discretionary spending
the notice.
it was enacted as a budget reconciliation
program, we are treating Child Care as
PRWORA creates major economic
bill. Under the Byrd Rule, a Senator may
a discretionary spending program for
effects, a large portion of which results
raise a point of order to strike or prevent
purposes of interpreting "Federal
from changes in the law relating to
the incorporation of "extraneous"
means-tested public benefit. Therefore,
immigrants' eligibility for Federal
material. A provision in a reconciliation
the HHS programs that constitute
benefits. We estimated the 1997-2002
bill will be considered "extraneous"
"Federal means-tested public benefits"
Federal budget savings to Medicaid due
and subject to a point of order if, among
under PRWORA are Medicaid and
to the immigrant restrictions would be
other things, "it produces changes in
TANF.
$5.1 billion. There were no Federal
outlays or revenues which are merely
This interpretation pertains only to
budget savings estimated for TANF
incidental to the non-budgetary
HHS and its benefit programs. Other
because, as a block grant, its spending
components of the provision." 2 U.S.C.
Executive Branch agencies whose
levels were fixed regardless of caseload
644(b)(1)(D). The legislative history of
programs may be subject to PROWORA
size. These Medicaid budget effects are
PRWORA indicates that the Senate
will make independent determinations
essentially due to the eligibility
understood the significance of the Byrd
about the scope of the term.
restrictions contained in the statute.
08/26/97
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004
45258
Federal Register / Vol. 62, No. 165 / Tuesday, August 26, 1997 / Notices
This notice provides HHS'
Administrator, AHCPR, regarding the
requests, call the CDC Reports Clearance
interpretation as to whether any other
technical merit of the contract proposals
Office on (404) 639-7090. Send written
HHS programs are subject to the
submitted in response to a specific Request
comments to CDC. Desk Officer, Human
PRWORA requirements regarding
for Proposals regarding the AHCPR Health
Resources and Housing Branch, New
Insurance Plan Abstraction Data Base Project.
immigrants' eligibility for "Federal
Executive Office Building, Room 10235,
The purpose of this contract is to create a
means-tested" benefits, and thereby
data base of health insurance benefits
Washington, DC 20503. Written
serves to prevent confusion among
information. These data describe the health
comments should be received within 30
administering agencies, grantee
benefits included in health insurance policy
days of this notice.
agencies, benefit providers, and the
booklets that are collected as part of the
Proposed Projects
public. This interpretation has no effect
Medical Expenditure Panel Survey. In order
on overall spending levels for any
to develop a uniform set of benefits data,
1998 National Health Interview
discretionary-funded HHS programs.
policy booklets are read, reviewed for
Survey, Basic Module (0920-0214)-
Nor does this interpretation create
completeness, and information is abstracted
Revision-The annual National Health
into an electronic data base. To support this
burdens or mandates on states or small
Interview Survey (NHIS) is a basic
effort, the contract also provides support for
source of general statistics on the health
entities.
programming the required software and for
As a result of the PRWORA eligibility
of the U.S. population. Due to the
implementing a training component. The
restrictions, this notice is classified as
integration of health surveys in the
training-component is needed to instruct
economically "significant" under
personnel in a uniform set of standards to be
Department of Health and Human
Executive Order 12866's criterion of an
applied during the abstraction of information
Services, the NHIS also has become the
economic effect of more than $100
from health insurance policy booklets.
sampling frame and first stage of data
million. For the same reason, it is
Agenda: The Committee meeting will be
collection for other major surveys,
classified as a "major rule" for purposes
devoted entirely to the technical review and
including the Medical Expenditure
of Congressional review under 5 U.S.C.
evaluation of the contract proposals
Panel Survey, the National Survey of
submitted in response to the above
§ 801 et. seq., Subtitle E of the Small
Family Growth, and the National Health
referenced Request for Proposals. The
Business Regulatory Enforcement
and Nutrition Examination Survey. By
Administrator, AHCPR, has made a formal
Fairness Act of 1996 (Pub. L. 104-121).
linking to the NHIS, the analysis
determination that this meeting will not be
And, for the same reasons noted in
open to the public. This action is necessary
potential of these surveys increases. The
section III above, this notice is effective
to protect the free and full exchange of views
NHIS has long been used by
immediately under the exception
in the evaluation process and
government, university, and private
procedures of § 808 of that statute
safeguard confidential proprietary
researchers to evaluate both general
because we have determined for good
information. and personal information
health and specific issues. such as
concerning individuals associated with the
cancer, AIDS, and childhood
cause that delayed implementation is
impractical and contrary to the public
proposals that may be revealed during the
immunizations. Journalists use its data
meeting. This action is taken in accordance
to inform the general public. It will
interest.
with section 10(d) of the Federal Advisory
continue to be a leading source of data
Dated: August 21, 1997.
Committee Act, 5 U.S.C., Appendix 2, 5 USC
for the Congressionally-mandated
(b)(c)(6), 41 CFR Section 101-6.1023 and
Donna E. Shalala,
Department procurement regulations, 48 CFR
"Health US" and related publications,
Secretary.
section 315.604(d).
as well as the single most important
[FR Doc. 97-22683 Filed 8-25-97; 8:45 am]
Anyone wishing to obtain information
source of statistics to track progress
regarding this meeting should contact Jessica
toward the National Health Promotion
BILLING CODE 4150-04-M
Vistnes, Center for Cost and Financing
and Disease Prevention Objectives,
Studies, Agency for Health Care Policy and
"Healthy People 2000.'
Research. 2101 East Jefferson Street, Suite
Because of survey integration and
DEPARTMENT OF HEALTH AND
500, Rockville, Maryland 20852, 301/594-
changes in the health and health care of
HUMAN SERVICES
1406.
the U.S. population. demands on the
Dated: August 20, 1997.
NHIS have changed and increased.
Agency for Health Care Policy and
John M. Eisenberg,
leading to a major redesign of the
Research
Administrator.
annual core questionnaire, or Basic
Contract Review Meeting
(FR Doc. 97-22620 Filed 8-25-97; 8:45 am]
-Module, and a redesign of the data
BILLING CODE 4160-90-M
collection system from paper
In accordance with Section 10(a) of
questionnaires to computer assisted
the Federal Advisory Committee Act (5
personal interviews (CAPI). Those
U.S.C. Appendix 2), announcement is
DEPARTMENT OF HEALTH AND
redesigned elements were partially
made of the following technical review
HUMAN SERVICES
implemented in 1996 and fully
committee to meet during the month of
implemented in 1997. This clearance is
September 1997:
Centers for Disease Control and
for the second full year of data
Name: Committee on the Agency for
Prevention
collection using the Basic Module on
Health Care Policy and Research Health
CAPI, and for implementation of the
[30DAY-22-97]
Insurance Plan Abstraction Data Base Project.
first "Topical Module" (or supplement),
Date and Time: September 3. 1997, 10:00-
Agency Forms Undergoing Paperwork
which is on Health People 2000
12:00 p.m.
Reduction Act Review
Objectives. Ad hoc Topical Modules on
Place: Agency for Health Care Policy and
various health issues are provided for in
Research, 2101 East Jefferson Street, Suite
The Centers for Disease Control and
the redesigned NHIS. This data
500, Rockville. Md 20852.
This meeting will be closed to the public
Prevention (CDC) publishes a list of
collection, planned for January-
information collection requests under
December 1998. will result in
Purpose: The Technical Review
Committee's charge is to provide, on behalf
review by the Office of Management and
publication of new national estimates of
of the Agency for Health Care Policy and
Budget (OMB) in compliance with the
health statistics. release of public use
Research (AHCPR) Contracts Review
Paperwork Reduction Act (44 U.S.C.
micro data files, and a sampling frame
Committee, recommendations to the
Chapter 35). To request a copy of these
for other integrated surveys. In
08/26/97
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005
45284
Federal Register / Vol. 62. No. 165 / Tuesday. August 26. 1997 / Notices
Sunshine Act. Pub. L. 94-409, that the
benefits" are supplemental security
which the eligibility of an individual.
Securities and Exchange Commission
income payments made under title XVI
household. or family eligibility unit for
will hold the following meeting during
of the Social Security Act. This notice
benefits. or the amount of such benefits.
the week of August 25. 1997.
pertains to the eligibility of aliens for
or both are determined on the basis of
A closed meeting will be held on
certain government benefits during their
income, resources, or financial need of
Thursday, August 28, 1997 at 10:00 a.m.
first 5 years of entry with a specified
the individual, household, or unit." 142
Commissioners, Counsel to the
immigrant status, to aliens who are
Cong. Rec. S8481 (daily ed. July 22,
Commissioners, the Secretary to the
lawfully admitted for permanent
1996).)
Commission. and recording secretaries
residence who can be credited with 40
PRWORA was subject to section 313
will attend the closed meeting. Certain
qualifying quarters of coverage. and to
of the Congressional Budget Act of 1974,
staff members who have an interest in
the operation of alien-sponsor deeming
also known as the "Byrd Rule." because
the matters may also be present.
rules.
it was enacted as a budget reconciliation
The General Counsel of the
FOR FURTHER INFORMATION CONTACT:
bill. Under the Byrd Rule, a Senator may
Commission, or his designee. has
Diane Blackman. Deputy Associate
raise a point of order to strike or prevent
certified that. in his opinion, one or
Commissioner, Office of Program
the incorporation of "extraneous"
more of the exemptions set forth in 5
Benefits Policy, Social Security
material. A provision in a reconciliation
U.S.C. 552b(c)(4), (8), (9)(A) and (10)
bill will be considered "extraneous"
Administration, 6401 Security
and 17 CFR 200.402(a)(4). (8), (9)(i) and
Boulevard. Baltimore, Maryland 21235.
and subject to a point of order if, among
(10), permit consideration of the
other things, "it produces changes in
410-965-3571.
scheduled matters at the closed meeting.
outlays or revenues which are merely
Commissioner Hunt, as duty officer,
SUPPLEMENTARY INFORMATION:
incidental to the non-budgetary
voted to consider the items listed for the
Section 403 of title IV of the
components of the provision." 2 U.S.C.
closed meeting in a closed session.
644(b)(1)(D). The legislative history of
PRWORA, enacted August 22, 1996,
The subject matter of the closed
PRWORA indicates that the Senate
provides that qualified aliens entering
meeting scheduled for Thursday,
the United States on or after the date of
understood the significance of the Byrd
August 28, 1997, at 10:00 a.m., will be:
Rule objection in terms of limiting the
enactment. are ineligible for "Federal
Institution and settlement of
means-tested public benefits" during
scope of the definition of "Federal
injunctive actions.
means-tested public benefit" to
the first 5 years they are qualified aliens,
Institution and settlement of
mandatory spending programs. while
unless they fall within certain specified
administrative proceedings of an
leaving discretionary programs
exceptions. In addition. sections 402
enforcement nature.
unaffected. See 142 Cong. Rec. at S9403
and 435 provide that aliens who are
At times, changes in Commission
(daily ed. August 1. 1996) (statement of
lawfully admitted for permanent
priorities require alterations in the
Senator Chafee); 142 Cong. Rec. at
residence are eligible for certain Federal
S9400 (statements of Senators Graham,
scheduling of meeting items. For further
benefits if they can be credited,
information and to ascertain what, if
Kennedy and Exon). Therefore, to the
individually and/or from a spouse or
extent the definition of "Federal means-
any. matters have been added, deleted
parent, with 40 qualifying quarters of
or postponed. please contact:
tested public benefit" included benefits
coverage. However, qualifying quarters
The Office of the Secretary at (202)
provided by discretionary spending
of coverage may not be credited for any
programs. it was potentially subject to a
942-7070.
quarter in which the individual received
Byrd Rule objection and thus stricken
Dated: August 21, 1997.
a "Federal means-tested public benefit"
from the legislation.
Margaret H. McFarland.
after December 31, 1996. Similarly,
During Senate debate on PRWORA, a
Deputy Secretary.
under section 412, aliens who are
point of order was raised pursuant to
[FR Doc. 97-22799 Filed 8-22-97: 1:00 p.m.]
lawfully admitted for permanent
the Byrd Rule. The Presiding Officer
residence are eligible for certain State
BILLING CODE 8010-01-M
sustained the point of order. and the
public benefits if they can be credited
ruling was not appealed. The definition
with 40 qualifying quarters of coverage
was stricken and PRWORA was
but only if they did not receive a
SOCIAL SECURITY ADMINISTRATION
ultimately enacted without the term
"Federal means-tested public benefit"
"Federal means-tested public benefit"
Personal Responsibility and Work
in that quarter after the foregoing date.
being defined. H.R. Conference Report
Opportunity Reconcillation Act of
Also, with respect to the operation of
No. 725. 104th Congress. 2nd session
1996: Federal Means-Tested Public
the alien-sponsor deeming rules
381-82 (1996).
Benefits Paid by the Social Security
described in section 421, receipt of
In light of the statutory language and
Administration
"Federal means-tested public benefits"
legislative history. "Federal means-
is a factor in determining the duration
tested public benefit" applies only to
AGENCY: Social Security Administration.
of the.deeming period.
benefits provided by Federal means-
ACTION: Notice of Benefits Paid by the
Prior to the enactment of PRWORA.
tested. mandatory spending programs.
Social Security Administration Meeting
early versions of the bill contained a
The purpose of this notice is to
the Definition of a "Federal Means-
definition of "Federal means-tested
announce which payments made by the
Tested Public Benefit".
public benefit" that could have
Social Security Administration
encompassed benefits provided by both
constitute a "Federal means-tested
SUMMARY: The Social Security
discretionary spending programs and
public benefit" as described above. The
Administration announces that. for
mandatory spending programs. (These
Social Security Administration
purposes of title IV of the Personal
early versions provided that, with
announces that. of the programs it
Responsibility and Work Opportunity
certain exceptions, "the term 'Federal
administers. only supplemental security
Reconciliation Act of 1996 (PRWORA),
means-tested public benefit' meant a
income benefits under title XVI of the
as amended, the only benefits paid by
public benefit (including cash. medical.
Social Security Act are "Federal means-
the Social Security Administration
housing, and food assistance and social
tested public benefits" for purposes of
which are "Federal means-tested public
services) of the Federal Government in
title IV of the Personal Responsibility
08/26/97
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Federal Register / Vol: 62, No. 165 / Tuesday, August 26. 1997 / Notices
45285
and Work Opportunity Reconciliation
addressed to Mr. Gary Fereno at (202)
Dated: August 14. 1997.
Act of 1996, as amended.
647-0200.
Russell A. La Mantia.
Dated: August 18. 1997.
Note: If you wish to attend please send a
Chairman, Shipping Coordinating Committee.
Glenna Donnelly,
fax to (202) 647-7407 not later than 24 hours
[FR Doc. 97-22582 Filed 8-25-97: 8:45 am)
Assistant Deputy Commissioner for Programs
before the scheduled meeting. On this fax.
BILLING CODE 4710-07-M
und Policy.
please include subject meeting. your name,
[FR Doc. 97-22697 Filed 8-25-97; 8:45 am}
social security number, company/
organization, and date of birth. One of the
DEPARTMENT OF STATE
BILLING CODE 4190-29-P
following valid photo identifications will be
required for admittance: U.S. driver's license
[Public Notice No. 2592]
with your picture on it, U.S. passport. U.S.
DEPARTMENT OF STATE
Government identification (company ID's are
Shipping Coordinating Committee,
no longer accepted by Diplomatic Security).
Subcommittee on Safety of Life at Sea
[Public Notice No. 2593)
Enter from the "C" Street Main Lobby.
and Associated Bodies, Working
United States International
Dated: August 15, 1997.
Group on Stability and Load Lines and
Telecommunications Advisory
Earl S. Barbely,
on Fishing Vessels Safety; Notice of
Committee (ITAC), Standardization
Meeting
Chairman, U.S. ITAC for
Sector (ITAC-T); Study Groups B and
Telecommunications Standardization.
The Working Group on Stability and
D and Citel Ad-Hoc; Meeting Notice
[FR Doc. 97-22583 Filed 8-25-97; 8:45 am]
Load Lines and on Fishing Vessels
The Department of State announces
BILLING CODE 4710-45-M
Safety of the Subcommittee on Safety of
that the United States International
Life at Sea will conduct an open
Telecommunications Advisory
meeting at 9 a.m. on Thursday,
DEPARTMENT OF STATE
Committee (ITAC), Telecommunications
September 18, 1997. in Room 6103, at
Standardization Sector (ITAC-T) Study
U.S. Coast Guard Headquarters, 2100
Groups B and D and CITEL AD-HOC
[Public Notice No. 2591]
Second Street, SW. Washington. DC
have scheduled meetings to develop
20593-0001. This meeting will discuss
United States positions and
Shipping Coordinating Committee
the upcoming 41st Session of the
contributions for upcoming ITU-T
International Maritime Organization
Subcommittee on Stability and Load
meetings dealing with standardization
(IMO) Legal Committee; Notice of
Lines and on Fishing Vessels Safety
activities of the International
Meeting
(SLF) and associated bodies of the
Telecommunications Union and
International Maritime Organization
preparatory activity for CITEL PCC-I
The U.S. Shipping Coordinating
(IMO) which will be held on January
and COM/CITEL. These meetings will
Committee (SHC) will conduct an open
26-30, 1998. at the IMO Headquarters in
take place at the Department of State, at
meeting at 10:00 a.m., on Wednesday,
London, England.
2201 C Street, NW., Washington, DC
October 1, 1997, in Room 2415 U.S.
Items of discussion will include the
beginning at 9:30 a.m. each day and are
Coast Guard Headquarters, 2100 Second
following:
scheduled to meet all day. The ITAC-
Street, S.W., Washington, D.C. The
T Study Groups B and D dealing
purpose of this meeting is to prepare for
a. Harmonization of damage stability
primarily with the upcoming meetings
the 76th session of the IMO Legal
provisions in the IMO:
of ITU-T Study Groups 7. 8. and 4 will
Committee. which will be held October
b. Progress of the Intersessional
meet September 23 in Room 1207, and
13-17, 1997, in London. regarding the
Correspondence Group on Load Lines
the preparatory activities for CITEL
provision of financial security for
issues;
meetings will follow in the same room.
seagoing vessels, compensation for
C. Technical revisions to the Code on
Study Groups B and D will meet on
pollution from ships' bunkers, a draft
Intact Stability;
November 4, 1997 in Room 1406 to
convention on wreck removal, the
continue preparations for ITU-T Study
carriage by sea of radioactive materials,
d. High Speed Craft Code revision:
Group 7 in December, 1997, and the
and other matters. This meeting will
e. Role of the human element, including
meeting of ITU-T Study Group in
also be a further opportunity for
shipboard loading and stability
January11 998. and the COM/CITEL
interested members of the public to
software; and
meeting scheduled for December 1-5,
express their views on whether the
f. Safety aspects of ships engaged in a
1997 in Montevideo, Uruguay. A more
United States should ratify the
ballast water exchange.
extensive agenda may be developed and
Hazardous and Noxious Substances
distributed by fax or electronic mail to
Convention, adopted in London in May,
Members of the public may attend
members prior to the announced
1996.
this meeting up to the seating capacity
meetings including the scheduling of
of the room. Interested persons may
appropriate Ad-Hoc meetings. Other
Members of the public are invited to
seek information by writing: Mr. Paul
matters within the purview of U.S.
attend the SHC meeting. up to the
Cojeen. U.S. Coast Guard Headquarters,
Study Group D as well as Ad-Hoc CITEL
seating capacity of the room. For further
Commandant (G-MSE-2), Room 1308,
preparations may be raised.
information. or to submit views
2100 Second Street, SW, Washington,
Members of the General Public may
concerning the subjects of discussion,
DC 20593-0001 or by calling (202) 267-
attend this meeting and join in the
write to either Captain Malcolm J.
2988.
discussions, subject to the instructions
Williams, Jr., or Lieutenant Commander
of the Chair. Admittance of public
Bruce P. Dalcher, U.S. Coast Guard (G-
Dated: August 14. 1997.
members will be limited to the seating
LMI), 2100 Second Street, S.W.,
Russell A. La Mantia,
available. In this regard. entrance to the
Washington, D.C. 20593, or by
Chairman, Shipping Coordinating Committee.
Department of State is controlled.
telephone (202) 267-1527, telefax (202)
[FR Doc. 97-22584 Filed 8-25-97; 8:45 am}
Questions regarding the meeting may be
267-4496.
BILLING CODE 4710-07-M
WR - means - tested benefits
Diana Fortuna
08/05/97 01:02:35 PM
Record Type:
Record
To:
Elena Kagan/OPD/EOP, Christopher C. Jennings/OPD/EOP, Jeanne Lambrew/OPD/EOP, Sarah A.
Bianchi/OMB/EOP
CC:
Cynthia A. Rice/OPD/EOP
Subject: Is the new child health program a means tested benefit?
The welfare law prevents legal immigrants who arrive after 8/96 from getting something called
means tested benefits. After a very long, tortured process, HHS is about to release its definition of
this term (although it has already given Lamar Smith and others on the Hill an advance peek). It
will place only a few programs off-limits to these new entrants - mostly programs that are already
off-limits because of other explicit provisions in the law (Medicaid, TANF, SSI, food stamps). Now,
however, it is dawning on all of us that we have this new child health program. I have heard that
HHS's definition would probably make this program inaccessible to new entrants. We and OMB are
asking HHS to take a few days to examine this question before releasing its definition. HHS is
more inclined not to wait.
Let me know if you want to be involved in this issue as we figure it out.
Diana -
We've wasted This lung
Let's figure it out first.
Elena
PHOTOCOPY
MISC. HANDWRITING
03/20/97
10:37
202 514 1724
DOJ-OAAG
MTB
002
U.S. Department of Justice
Office of the Associate Attorney General
Deputy Associate Attorney General
Washington. D.C. 20530
CC Smalligan
May 20, 1997
DetraBond
MEMORANDUM
TO:
Diana Fortuna
Domestic Policy Council
FROM:
Francis M. Allegra TWAA
Deputy Associate Attorney General
SUBJECT: Need for Resolution of Roll-out Issues Involving the Verification Guidelines
We have scheduled a meeting with the Attorney General for 4:15 P.M., on May 21,
1997, to brief her on the verification guidelines package. We anticipate that the verification
package will be complete as of that briefing and that OIRA will have also finished its review of
the package. Our hope is that the Attorney General will be able to sign off on the package at
the briefing or shortly thereafter. As previously planned, our intent is to release the package
after the Department of Health and Human Services releases its definition of "means-tested."
As things stands, there are several remaining issues concerning the process and timing
of the "roll out" of the verification guidelines:
Congressional Briefings. As you know, many of the individuals who attended our last
Welfare Working Group meeting at the OEOB believed that, prior to the release of the
verification guidelines, various agency representatives should conduct a briefing (or
briefings) on the Hill designed to familiarize some set of committee staff with the
contents of the document. My sense is that you did not necessarily agree with this
approach. We need to come to some resolution as to whether those briefings should go
forward and, if so, when and in what form. For the record, the Justice Department
believes that we should conduct some form of briefing to ensure that the package is
understood and that we maintain as good as possible relationships with the relevant
committees.
OK
Gearing up on Means-Tested A related issue with respect to the Congress involves
whether we should alert and prepare key legislators to support the Administration and
respond to the claims that likely will come from some quarters that the HHS definition
of "means tested" is inconsistent with the statute and Congressional intent. Again, this
was discussed at our last meeting, but I am unsure that any definite plans were made to
mount an anticipated counter-offensive on this issue.
- Irene
DOJ
05/20/97
10:37
202 514 1724
DOJ-OAAG
003
- 2 -
Briefings of Advocacy Groups. Another issue involves whether various agency
representatives should brief advocacy groups on the content of the verification guidelines.
Such briefings probably could occur either before or immediately after the release of the
verification guidelines.
Training of Benefit Granting Agencies. Yet another issue - which we may or may not
need to resolve at this point - -- involves how to train benefit-granting agencies on the use
of the verification guidelines. Our view is that training should occur after the agencies
have had a chance to absorb the guidelines, at a point where questions might arise.
Other agencies participating in the Welfare Working Group may have specific ideas as
to how this training might best be handled.
ok
We would like to have some resolution to these issues as soon as possible (with the
exception, perhaps, of the training issue), so as to develop a specific timetable for releasing the
verification guidelines. Please let me know how you would like to proceed (514-2987).
CC:
David Ogden
Randy Moss
05/08/97
14:49
002
ATTACHMENT 7
INTERIM GUIDANCE FEDERAL MEANS-TESTED PUBLIC BENEFITS
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the
"Act") provides that qualified aliens entering the U.S. on or after August 22, 1996, are ineligible
for federal means-tested public benefits during the first five years they are qualified aliens,
unless they fall within a specific exception. (Non-qualified aliens are ineligible for such benefits
regardless of when they entered the U.S.) All qualified aliens are eligible for federal means-
tested public benefits after the expiration of such five year period.
The Department of Health and Human Services, with the concurrence of other relevant
federal agencies, has interpreted the limitations on eligibility for federal means-tested public
benefits to apply only to mandatory spending programs. Mandatory spending programs are
programs for which budget authority is provided by entitlement authority, the Food Stamp Act,
or a law other than an appropriations law. Federal means-tested public benefits include such
programs as Medicaid, Food Stamps, SSI, and TANF.
The eligibility of qualified aliens for federal means-tested public benefits turns on the date
on which they entered the U.S., the number of years since they obtained qualified alien status,
their particular immigration status, and the specific benefits they are seeking.
1.
Determine the date on which the qualified alien entered the United States
by reviewing the documents evidencing his or her status or, if the
documents do not indicate the date of entry, by filing INS Form G-845
and Supplement along with a copy of the document with the local INS
office or [INS INSERT].
If the applicant entered the U.S. before August 22, 1996,
and has remained here until attaining qualified alien status,
he or she is eligible for all federal means-tested public
benefits for which he or she satisfies all programmatic
eligibility requirements, and you should not engage in any
further verification of immigration status.
If the applicant entered the U.S. on or after August 22,
1996, and is a qualified alien, determine if he or she is
eligible under Paragraphs 2 and 3 below.
2.
An applicant who entered the U.S. on or after August 22, 1996, and who
has attained qualified alien status is eligible for all federal means-tested
public benefits if five years have passed from the date the applicant
attained qualified alien status. Determine the date on which the applicant
attained qualified alien status by reviewing the documents evidencing his
or her status or, if the documents do not indicate the date of entry, by
filing INS Form G-845 and Supplement along with a copy of the
document with the local INS office.
05/08/97
14:49
003
3.
A qualified alien who entered the U.S. on or after August 22, 1996, is
ineligible for federal means-tested public benefits during the first five
years after he or she obtained qualified alien status unless the alien falls
within one of the following exceptions:
a.
Refugees, asylees and aliens whose deportation or removal has
been withheld -- see Attachment 5 to Interim Guidance for
definition and documentation; or
b.
Aliens lawfully residing in any state who are honorably discharged
veterans, or on non-training active duty in the U.S. Armed Forces,
or are the spouse or unmarried dependent child of such a veteran
or active duty personnel see Attachment 6 and Exhibit B thereto
to Interim Guidance for definition and documentation.
4.
Under the terms of the Act, the five-year ban does not apply to the
following benefits:
Medical assistance under Title XIX of the Social Security
Act (or any successor program to such Title) for care and
services that are necessary for, the, treatment of an
emergency medical condition (as defined in § 1903(v)(3) of
such Act) of the alien involved and are not related to an
organ transplant procedure, if the alien involved otherwise
meets the eligibility requirements for medical assistance
under the state plan approved under such Title (other than
the requirement of the receipt of aid or assistance under
Title IV of such Act, SSI benefits under Title XVI of such
Act, or a state supplementary payment);
Short-term, non-cash, in-kind emergency disaster relief;
Assistance or benefits under the National School Lunch
Act;
Assistance or benefits under the Child Nutrition Act of
1966;
Public health assistance (not including any assistance under
Title XIX of the Social Security Act) for immunizations
with respect to immunizable diseases and for testing and
treatment of symptoms of communicable diseases whether
or not such symptoms are caused by a communicable
disease;
2 -
05/08/97
V.I. 004
Payments for foster care and adoption assistance under
parts B and E of Title IV of the Social Security Act for a
parent or child who would, in the absence of the Act's
prohibition on payment of federal means-tested public
benefits to qualified aliens during the first five years after
entry into the U.S. with qualified alien status, be eligible
to have such payments made on the child's behalf under
such part, but only if the foster or adoptive parent(s) of
such child is a qualified alien;
Benefits covered by Attorney General Order No. 2049, 61
F.R. 45985 (Aug. 30, 1996), attached to Attachment 4 of
the Interim Guidance, re: government-funded community
programs, services or assistance that are necessary for
protection of life or safety;
Programs of student assistance under Titles IV, V, IX, and
X of the Higher Education Act of 1965, and Titles III, VII,
and VIII of the Public Health Service Act;
Means-tested programs under the Elementary and
Secondary Education Act of 1965;
Benefits under the Head Start Act;
Benefits under the Job Training Partnership Act; and
Refugee and entrant assistance activities authorized by Title
IV of the INA and section 501 of the Refugee Education
Assistance Act of 1980 for Cuban and Haitian entrants as
defined in § 501(e)(2) of the Refugee Education Assistance
Act of 1980.
3 -
5-09-1997 4:04PM
FROM
P.2
202 314 0044 P.02/02
MAY - 9 1997
PROPOSED DEFINITION OF MEANS-TESTED PUBLIC BENEFIT
FOR THE AFFIDAVIT OF SUPPORT REGULATION
"Means-tested public benefit means any public benefit determined to be a means-tested
public benefit by the Federal agency, State, State agency, or political subdivision of a
State which provides the funding for the public benefit, subject to the following
conditions: 1) if a benefit is funded in whole or in part by any funds provided by the
Federal Government, then the determination of whether that benefit is a means-tested
public benefit shall be made by the Federal agency administering the federal funds; 2) a
benefit shall not be considered a means-tested public benefit for purposes of enforcing an
affidavit of support executed pursuant to this part unless, prior to the date the affidavit of
support is executed, the determination that the benefit is a means tested public benefit is
published in the following manner: a) determinations made by a Federal agency must be
published in the Federal Register, and b) determinations made by a State, a State agency
or a political subdivision of a State must be published in an official publication of the
State or political subdivision of a State normally used by the State or political subdivision
to provide public of notice of laws, regulations, codes or other official acts; and 3) a
benefit is not a means-tested public benefit if the agency or entity administering the
benefit does not consider the income of an pplicant when determining eligibility for the
benefit or if it is a benefit described in section 22(b) or section 423(d) of Public Law
104-193.
Note: Section 423(d) of Public Law 104-193 (Welfire Reform) provides a list of
benefits for which reimbursement under the affidavit of support is not available.
While IIRIRA amended section 423(a) of P.L. 104.193, it did not amend or repeal
section 423(d). Section 422(b) provides a list of benefits to which the States may not
apply the provision --422(a)- that permits them to deem the income of an alien
applying for benefits to include the income of any person who has executed an
affidavit of support on his or her behalf. Sections 423(d) and 422(b) are parallel
provisions that cover the same types of Federal and State benefits.
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SERVICES
USA
Office of the Assistant Secretary
(
DEPARTMENT OF HEALTH & HUMAN SERVICES
for Legislation
i
Washington, D.C 20201
July 16, 1997
The Honorable Lamar Smith, Chairman
House Judiciary Subcommittee on Immigration
B-307B Rayburn House Office Building
Washington, D.C. 20515
Dear Chairman Smith:
As you requested. enclosed is a letter setting forth our interpretation of federal means-tested
public benefit. a legal analyses from the Department of Justice, and colloquies from the Senate
debate on the Personal Work and Responsibility and Opportunity Act.
We are continuing to work on the list of HHS discretionary means-tested public benefit programs
and will send that to you shortly.
Please contact me if you have any further questions 202-690-6786.
Sincerely,
Sh
rsse
Irene B. Bueno
Deputy Assistant Secretary for Legislation
(Congressional Liaison)
Enclosures
:
DEPARTMENT OF HEALTH AND HUMAN SERVICES
OFFICE OF THE SECRETARY
WASHINGTON DC. 20201
THE GENERAL COUNSEL
November 22, 1996
TO: J. Davitt McAteer, General Counsel
Department of Labor
Copies of this letter are being sent
simultaneously to:
Arthur Fried, General Counsel
Social Security Administration
James S. Gilliland, General Counsel
Department of Agriculture
Mary Lou Keener, General Counsel
Department of Veterans Affairs
Judith A. Winston, General Counsel
Department of Education
Harriet S. Rabb
DEPARTMENT OF HEALTH & HUMAN SERVICES
Office of the Secretary
The General Counsel
Washington, D.C. 20201
November 21, 1996
The Honorable J. Davitt McAteer
Solicitor
U.S. Department of Labor
200 Constitution Avenue, NW
Room S2002
Washington, DC 20210
Dear Mr. McAteer:
Enclosed is an interpretation of the term "Federal means-tested
public benefit, " as that term is used in sections 403 and 421 of
the Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (PRWORA). The interpretation seems to us an
appropriate reading of this undefined aspect of the statute. In
addition, this reading of the term best balances our Departments'
other statutory obligations with Congressional goals embodied in
PRWORA.
Your Department may have programs that provide "Federal means-
tested public benefits. Please let us know if the enclosed
interpretation of that term is one in which you concur.
In summary, the interpretation explained in the memo is as
follows: Section 403 of PRWORA denies qualified aliens who enter
the United States on or after August 22, 1996, "any Federal
means-tested public benefit" (with specified exceptions) for five
years after entry. In addition, section 421 applies new
immigrant deeming rules for all "Federal means-tested public
benefit" programs. The legislation, however, does not define the
term "Federal means-tested public benefit." A proposed
definition of the term was deleted from the bill as a result of a
Byrd Rule objection. For the reasons described in more detail in
the enclosed memorandum, the term "Federal means-tested public
benefit" program as used in PRWORA should be interpreted to
exclude discretionary programs.
Please contact Harriet Rabb at your earliest convenience but in
any event, no later than Wednesday, November 27, to let us know
if you concur with the enclosed interpretation. If you have any
The Honorable J. Davitt McAteer - Page 2
questions about the analysis set forth in this opinion, please
contact Harriet Rabb (202-690-7741) or her Deputy, Anna Durand
(202-690-6318).
Sincerely,
Larriet S.Rubb
Harriet S. Rabb
General Counsel
U.S. Department of Health and
Human Services
Aclson Nelsoh A. Diaz Why
General Counsel
U.S. Department of Housing
and Urban Development
Enclosure
DEFINITION OF "FEDERAL MEANS-TESTED PUBLIC BENEFIT"
The following is a legal analysis of the meaning of the term
"Federal means-tested public benefit" as used in Title IV of the
Personal Responsibility and Work Opportunity Reconciliation Act
of 1996, Pub. L. No. 104-193 (PRWORA). Both the statutory
language and legislative history are unclear on the meaning of
this term, and, therefore, the statute is susceptible to various
interpretations. As explained below, however, sound legal and
policy considerations support a conclusion that the term is
limited to means-tested mandatory spending programs.
Section 4.03 of PRWORA denies qualified aliens' who entered the
United States after the its enactment "any Federal means-tested
public benefit" (with specified exceptions) for five years after
entry. Also, the new deeming rules in section 421 of PRWORA
apply to "any Federal means-tested public benefits" program as
provided in section 403. Although the statute does not define
the term "Federal means-tested public benefit," the legislative
history proffers a definition and clarifies the effect of the
five-year eligibility ban on future immigrants and the new
deeming rules.
The legislative history of PRWORA indicates that a definition of
the term "Federal means-tested public benefit" was eliminated
from the bill in compliance with the Byrd Rule. 142 Cong. Rec.
S.9400, 9403 (daily ed. Aug. 1, 1996). The conference report
sets forth the definition of "Federal means-tested public
benefit" that was stricken from the bill:
a public benefit (including cash, medical, housing, and food
assistance and social services) of the Federal Government in
which the eligibility of an individual, household, or family
eligibility unit for benefits, or the amount of such
benefits, or both are determined on the basis of income,
resources, CY financial need of the individual, household,
or unit.
The conference report states that "[i]t is the intent of the
conferees that this definition be presumed to be in place for
purposes of this title." In addition, portions of the Senate
debate in the Congressional Record on August 1 suggest that some
Senators viewed the reach of Section 403 as covering a variety of
means-tested programs. See e.c., id. at S9377 (statement of Sen.
1 "Qualified alien" is defined in section 431 of PRWORA to
include: (1) aliens lawfully admitted for permanent residence;
(2) asylees; (3) refugees; (4) parolees; (5) aliens whose
deportation is being withheld under section 243 (d) of the
Immigration and Nationality Act (INA); and (6) aliens granted
conditional entry pursuant to section 203 (a) (7) of the INA as in
effect prior to April 1, 1980.
Dodd (bars legal immigrants' access to "most Federal programs",
citing Mayor Guiliani) ) i id. at S9395 (statement of Sen. Inouye,
"all Federal means-tested programs") This definition, however,
was struck by the Byrd Rule. Thus, to accept the definition
contained in the conference report and the other remarks cited in
this paragraph at face value would be to ignore the Byrd Rule and
its application to this situation. Moreover, the conference
report, the application of the Byrd Rule, and the legislative
history may be given harmonious effect by interpreting "Federal
means-tested programs" as described below.
Congress adopted the Byrd Rule, codified as Section 313 of the
Congressional Budget Act, 2 U.S.C. § 644, "to address growing
concerns that it was being forced to consider nonbudgetary (and
potentially controversial) matters under the expedited
reconciliation procedures rather than under its regular
procedures. S. Rep. No. 103-297, 103rd Cong., 2nd Sess. (1994).
It thus protects the reconciliation process by allowing the
Senate to strike, by raising a point of order, certain
"extraneous provisions. " The Byrd Rule may be waived by a three-
fifths vote in the Senate.
A provision will be considered "extraneous" if, among other
criteria, it does not produce a change in outlays or revenues or
it produces changes in outlays or revenues that are merely
incidental to the nonbudgetary components of the provision. In
the case of sections 403 and 421, the Senate invoked the Byrd
Rule on the grounds that the definition would have included non-
mandatory spending programs, i.e., programs that would not change
outlays or revenues. The Parliamentarian upheld the Byrd Rule,
the definition was deleted, and no attempt was made to waive it.
Senator Chafee stated on the Senate floor the significance of
striking the definition:
According to the Parliamentarian, that inclusion caused
the definition to violate Section 313 (b) (1) (D) of the
Byrd Rule, which prevents reconciliation legislation
from extending its scope to items that provide merely
incidental deficit reduction, that is, discretionary
programs.
Therefore, when the bill was considered in conference,
I understand that there was an intentional effort to
ensure this provision complied with the Byrd Rule by
omitting the definition of that particular term.
In other words, then, the term "Federal means-tested
public benefit"
dces not refer to discretionary
programs. I would assume that programs such as funding
for community health centers, as well as the maternal
and child health block grant, would not be impacted.
- 2 -
142 Cong. Rec. S9, (daily ed. August 1, 1996) See also 142
Cong. Rec. at S9400 (" [I]t is clear that this bill should not be
used to make changes in discretionary programs, and those who
look to interpret the action of the Congress should take this
into account. (statement of Sen. Exon) (emphasis added) ) See
id. at S9400 (statement of Senators Graham, Kennedy, and Exon),
S9403 (statement of Senators Graham and Chafee) 2 If one focuses
on this language in the Senate debate alone, it appears that the
Senate was directly admonishing the administering departments to
confine the reach of Section 403 to mandatory programs and to
avoid any changes in the eligibility provisions of discretionary
programs.
In order to accommodate both the language in the conference
report and the effect of the Byrd Rule objection, the term
"Federal means-tested public benefit" should be interpreted to
include (1) only those Federal mandatory spending programs of the
Federal Government in which (2) the eligibility of an individual,
household, or family eligibility unit for benefits, or the amount
of such benefits, or both are determined on the basis of income,
resources, or financial need of the individual, household, or
unit.
While this seems to be the best accommodation of the various
pieces of legislative history, other objections to this
interpretation are possible. For example, the "exceptions" in
Section 403 (c) (2) suggest that "Federal means-tested public
benefit" may encompass discretionary programs because some
programs that are discretionary programs (because their funding
levels are determined by appropriations) are included in the
excepted list (programs under the Elementary and Secondary
Education and Head Start, for example). It could be argued that
these exceptions would be unnecessary if the term was confined to
mandatory programs. On the other hand, read literally, Section
403 (c) (2) does not state that the programs listed there are
Federal means-tested public benefits; rather, this section merely
clarifies that certain types of Federal assistance or benefits
are not subject to the five-year ban. Moreover, it is likely
that no one thought to conform the exceptions in section
403 (c) (2) to the narrowed definition of "Federal means-tested
public benefit" programs after the Byrd Rule was invoked.
2 The exchange between Senators Graham and Kennedy is
particularly focused. "SENATOR GRAHAM
[W] ould the Senator
agree that, when the Senate struck those sections as violating
the Byrd rule, the Senate's intent was to prevent the denial of
services [under]
the maternal and child health block grant,
social services block grant, community health centers and migrant
health centers?
SENATOR KENNEDY: Yes." 142 Cong. Rec.
S9400 (daily ed. Aug. 1, 1996).
- 3 -
Even if we were to conclude that we could not find the
interpretation set forth above to be a complete explanation of
the statutory language and legislative history, the affected
departments should hesitate to apply the term "Federal means-
tested public benefit" broadly in a manner that would deny
qualified aliens more benefits than Congress may have clearly
intended. The denial of benefits under these circumstances
should be on a firmer basis than the ambiguous statutory language
and legislative history surrounding this issue.³
Given the foregoing analysis, we recommend that, for purposes of
this legislation, the term "Federal means-tested public benefit"
programs should be interpreted to include only those Federal
mandatory spending programs of the Federal Government in which
eligibility for benefits, or the amount of such benefits, or both
are determined on the basis of income, resources, or financial
need of the individual, household, or family unit.
3 See Carter V. Derwinski, 987 F.2d 611, 615 (9th Cir. 1993)
(courts may insist on a clear statement of congressional
intention before interpreting a statute "in a way that
compromises especially weighty values. ").
- 4 -
U.S. Department of Justice
this
Office of Legal Counsel
Office or the
Washington. DC. 20530
Assistant Attorney General
January 14, 1997
MEMORANDUM FOR HARRIET S. RABB
GENERAL COUNSEL
DEPARTMENT OF HEALTH AND HUMAN SERVICES
From:
Dawn Johnsen
Acting Assistant Attorney General
Randolph D. Moss RDY
Deputy Assistant Attorney General
Re:
Applicability of Limitations on Availability of "Federal Means-Tested Public
Benefits" under the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996
You have requested the views of the Office of Legal Counsel regarding a
construction. profrered by the Departments of Health and Human Services ("HHS") and
Housing and Urban Development ("HUD"), of the scope of the phrase "federal means-tested
public benefit[s]" contained in the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 ("PRA" or "Act").' In particular, HHS and HUD have
concluded that this phrase is best construed to apply only to mandatory (and not
discretionary) spending programs.³ Both departments have determined that this construction
of the PRA "best balances [their] other statutory obligations with Congressional goals
embodied in the [PRA]."² We further understand that the Departments of Agriculture.
1 Pub. L No. 104-193. :10 Stat. 2105 (1996).
? See Letter to Christopher H. Schroeder. Acting Assistant Attorney General. Office of Legal Counsel. from
Harrier S. Rabb. General Counsei. Department of Health and Human Services (Dec. 13. 1996) ("Rabb
Request").
,
See, e.K., Letter 10 Artbur Fried. General Coursel. Social Security Administration. from Harriet S. Rabb.
General Counsei. Department of Health and Human Services. and Nelson A. Diaz. General Counsel.
Department of Housing and Urban Development Nov. 21. 1996) ("Rabb/Diaz Letter").
Education, Labor and Veterans Affairs and the Social Security Administration all concur in.
or defer to, the HHS and HUD profered interpretation of the PRA.
As explained more fully below, we believe that the proffered interpretation is a
permissible construction of the statute. The PRA was enacted as a budget reconciliation bill.
and. accordingly, must be construed agains! the backdrop of the Congressional Budget Act of
1974 ("CBA").' Under the CBA, budget reconciliation legislation is subject to expedited
procedures in both the Senate and the House. To counterbalance these expedited procedures.
the CBA permits a member of the Senate to raise a point of order against any material
included in the legislation that is extraneous to the budget reconciliation process. Here,
through application of this procedure. a broad definition of the phrase "federal means-tested
public benefit" was struck from early versions of the bill that ultimately became the PRA.
Significantly, the broad definition was struck because it reached discretionary spending
programs. which, in this context, lay be; ond the proper scope of the reconciliation process.
In light of this history, and the absence of a sufficiently clear indication that Congress
intended. norwithstanding the CBA, to reach discretionary spending programs, we conclude
that the meaning of the phrase "federal means-tested public benefit" is, at the very least,
ambiguous. We further conclude that the HHS. HUD proffered definition is a reasonable
construction of the statute. that the agency interpretation is entitled to judicial deference, and
that, accordingly. the profered definition should govern.
DISCUSSION
Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of
1996. 110 Stat. at 2260, imposes various restrictions on aliens' eligibility for public benefits
in the United States. A number of provisions in title IV establish restrictions with respect to
aliens' receipt of "federal means-tested public benefit[s]." These restrictions fall into three
general categories: (1) provisions that deny "federal mcans-tested public benefit[s]" to
qualified aliens for the first five years after their entry into the United States:6 (2) provisions
that require certain groups of aliens who seek federal and state public benefits to prove that
they can be credited with 40 qualifying quarrers of work under title П of the Social Security
Act ("SSA") and have not received any "federal means-tested public benefit" during any of
4 Rabb Request at :. Since receiving your letter of December 13. 1996. we have received oral advice from
your office that the Social Security Administration concurs in the profered definition
:
Pub. L. No. 93-344. 88 Stat 297 (1974) Judined 15 amended in scattered sections of 2 U.S.C.).
: See § 403(a) & (C).
those quarters: and (3) provisions that establish and define sponsor-to-alien deeming rules to
be applied to aliens seeking "federal means-tested public benefit[s]."
The PRA contains no statutory definition of the phrase "federal means-tested public
benefit." HHS and HUD, however, have concluded that the restrictions on federal means-
tested public benefits contained in title IV should apply only to mandatory spending
programs, i.e. programs for which funding is not subject to a definite appropriation." Under
this construction of the Act, for example. newly arrived qualified aliens would be ineligible
for benefits under mandatory programs for the first five years after their arrival in this
country, but they would remain eligible for benefits under discretionary spending programs.
The rationale of HHS and HUD for this approach is that "affected departments should
hesitate to apply the term 'federal means-tested public benefit' broadly in a manner that
would deny qualified aliens more benefits than Congress may have clearly intended."
Rabb/Diaz Letter, attachment at 4. HHS and HUD assert that "this reading of the term best
balances our Departments' other statutory obligations with Congressional goals embodied in
[the PRA]," Rabb/Diaz Letter at 1, and that "sound legal and policy considerations support a
conclusion that the term is limited to means-tested mandatory spending programs."
Rabb/Diaz Letter, attachment at 1.
In evaluating the construction proposed by HHS and HUD, we are guided by the
Supreme Court's landmark opinion, Chevron U.S.A. V. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), which explains the proper approach for reviewing the
construction of statutes by the agencies that administer them. The first step in the Chevron
analysis is to determine "whether Congress has directly spoken to the precise question at
issue." 467 U.S. at 842. If congressional meaning, as discerned through "traditional tools
of statutory construction." id. at 843 n.9, :S clear, then no further inquiry is necessary, for
the "unambigeously expressed intent of Congress" must control. Id. at 843. See also United
States V. Alaska, 503 U.S. 569. 575 (1992). If the statute is silent or ambiguous with
respect to the issue posed, then, under the second step in the Chevron analysis, the questions
become whether Congress has implicitly or explicitly delegated to the agency the authority to
resolve the ambiguity and, if so. whether "the agency's answer is based on a permissible
construction of the statute." Chevron, 467 U.S. at 843. See also Alaska, 503 U.S. at 575.
, See §§ 402(a)(2)(B)(i)(if), 412(b)(2)(B)(ii). 435.
$ See § 421(a). (b)(2)(B), (c). (d).
P. While we have not been provided with a comprehensive list of which programs would be subject to these
title IV restrictions under the HHS/HUD interpretation. we understand that Medicaid. food stamps,
Supplemental Security Income SSI and Temporary Assistance for Needy Families ("TANF") are included
within the mandatory category.
3
I. Chevron Step I
The starting point in determining whether "Congress had an intention on the precise
question at issue." Chevron, 467 U.S. at 843 n.9. is. of course, the language of the statute
itself. See Kaiser Aluminum V, Bonjomo, 494 U.S. 827, 835 (1990): Consumer Product
Safety Comm'n V. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Ordinarily, if the terms
of the statute are plain, they control and that is the end of the matter. See Chevron, 467
U.S. at 843; Holly Farms Corp. V. NLRB, 116 S. Ct. 1396, 1401 (1996).
At the same time, it is well-established that a provision in one Act of Congress should
be read in conjunction with other relevant statutory provisions and not in isolation. See Jett
V. Daiias Indep. School Disi. 491 U.S. 701, 712-13, 722-36 (1989); id. at 738-39 (Scalia,
J., concurring in part and concurring in the judgment); see also Gustafson V. Alloyd Co.,
115 S. Ct. 1061. 1067 (1995). Thus, courts regularly construe statutory language in light of
both other provisions of the same law and relevant provisions from other laws. See. e.g.:
Quackenbush V. Allstate Ins. Co., 116 S. Ct. 1712, 1718 (1996); Sullivan V, Everhart, 494
U.S. 83, 92 (1990): cf. Sullivan V. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J.,
concurring) (meaning of later enacted statute may affect interpretation of "previously enacted
statute, since statutes in pari materia should be interpreted harmoniously"). The fact that
different statutory provisions may employ similar terms in varying contexts, for example,
may give insight as to the meaning of the term in the particular context that is under review.
See Medtronic, Inc. V. Lohr, 116 S. Ct. 2240, 2251-52 (1996) (plurality opinion).
Similarly, the possibility that the adoption of a seemingly plain statutory meaning may cause
a direct conflict with a different statitory provision. even if in a different law, may trigger
application of the presumption against repeals by implication. See Wart V. Alaska, 451 U.S.
259, 266 (1981): FAA V. Robertson, 422 U.S. 255, 263 (1975); Silver V. New York Stock
Exchange, 373 U.S. 341. 357 (1963). Moreover. courts commonly rely upon a general
interpretive statute, the Dictionary Act, 1 U.S.C. $ 1. in construing specific statutory
language that. but for the otherwise-codified definitional provision, might suggest a different
meaning See Rowland v California Men's Colony, 506 U.S. 194, 199-200, 209-10 (1993);
id. at 212-13. 222 (Thomas. J.. dissenting); Wilson V. Omaha Indian Tribe, 442 U.S. 653,
666 (1979); United States V. A & P Trucking Co., 358 U.S. 121, 123 (1958).
The general rule that the meaning of particular statutory provisions should be
determined with reference to the broader legislative landscape provides significant guidance
here. As reconciliation legislation, the PRA must be interpreted in the context of both the
Congressional Budget Act of 1974. which establishes general rules that govern the enactment
of budget reconciliation measures. and congressional actions taken pursuant to that statutory
regume. Just as courts. when considering a term that has been defined in the Dictionary Act.
read that term in light of the Dictionary Act definition, so too, here, the rules set forth in the
CBA provide important guidance in discerning the meaning of the relevant provisions of the
PRA.
4
A.
The PRA was brought to the floor of the Senate as a reconciliation bill, and as such
was subject to the special rules that govern the reconciliation process set forth in section 313
of the CBA. See 2 U.S.C. § 644; Robert Keith & Edward Davis, The Senate's "Byrd Rule"
Against Extraneous Matter in Reconciliation Measures 1-2 (Congressional Research Service
1995). Section 313 serves to facilitate the expedited consideration of reconciliation
legislation by providing a mechanism for restricting the content of such legislation to
provisions that are material to the reconciliation process. See Allen Schick, The Federal
Budget: Politics, Policy, Process 82-86 (1995). Over time, these subject matter restrictions
have become known as the "Byrd rule." after Senator Robert Byrd of West Virginia, their
principal proponent. The basic purpose of the Byrd rule is twofold: to protect the
effectiveness of the reconciliation process by excluding extraneous material that has no
significant budgetary effect, and to preserve the deliberative character of the Senate by
exampting from expedited consideration all legislative matters that should properly be
debated under regular procedures.¹⁰
Section 313 establishes the general framework that governs the nation's budgeting
process and shapes the content of the legislation that Congress enacts through the
reconciliation process. Indeed, the Byrd rule has been deemed sufficiently important to the
fashioning of the nation's budget that it is not merely an internal rule of Senate procedure
but, as we have noted. a statute duly passed by both houses of Congress and signed by the
President. The meaning of a particular provision of reconciliation legislation, therefore, such
as the phrase "federal means-tested public benefit" in the PRA. must be construed in light of
congressional actions taken pursuant to the CBA.
10 The Byrd rule was adopted in :986. following ears of struggle DO the Senate floor over the inclusion of
extrancous provisions in budget reconciliation legislation. Originally enacted as section 20001 of the
Consolidated Omnibus Budget Reconciliation Act of 1985. Pub. L. No. 99-272. 101 20001, 100 Stat. 82. 390-91
(1986). it was. in 1990, incorporated as section 313 of the Congressional Budget Act of 1974. See Budget
Enforcement Act of 1990, enacted as Title XIII of Omnibus Budget Reconciliation Act of 1990. Pub. L. No.
101-508. $ 13214(b)(1). 104 Stat. 1388. 1388-622 1990) As Senator Byrd explained in introducing the
amendment that ultimately bore his name:
Mr. President. the Senate is a deliberative body. and the reconciliation process is not a
deliberative process.
Such an extraordinary process. if abused. could destroy the Senate's
deliberative nature. Senate committees are creatures of the Senate. and. as such, should not be
in the position of dictating to the Senate as 19 being done here. By including mater[i]al not in
their jurisdiction or marter which they choose not to report as separate legislation to avail
themselves of the nondeliberative reconciliation process. Senate committees violate the compact
which created both them and the reconciliation process
131 Cooz. Rec. 28,968 (1985).
5 -
Specifically, the CBA provides:
When the Senate is considering a reconciliation bill or a reconciliation
resolution
upon a point of order being made by any Senator against
material extraneous to the instructions 10 a committee which is contained in
any title or provision of the bill or resolution or offered as an amendment to
the bill or resolution, and the point of order is sustained by the Chair, any part
of said title or provision that contains material extraneous to the instructions to
said Committee as defined in subsection (b) of this section shall be deemed
stricken from the bill and may not be offered as an amendment from the floor.
Pub. L. No. 93-344. title III. § 313 (codified at ? U.S.C. § 644(a)). Section 313(b)(1)
outlines six categories of "extraneous" provisions. the most significant of which, for purposes
of this analysis, is (b)(1)(D). which states that a provision shall be considered extraneous "if
it produces changes in outlays or revenues which are merely incidental to the non-budgetary
components of the provision." 2 U.S.C. $ 644(b)(1)(D). The rule. as set forth in section
313, is enforced by a Senator raising a point of order against some provision or provisions of
the bill. on the ground that that provision deals with subject matters extraneous to the
legislation.
The PRA's original definition of "federal means-tested public benefit," contained in
both the Senate and House bills. encompassed an expansive range of benefit and assistance
programs and did not distinguish between those that were mandatory and those that were
discretionary. When the Senate bill reached the floor. Senater Exon invoked the Byrd rule to
raise an omnibus point of order against a number of provisions of the legislation, including
the definition of "federal means-tested public benefit." 142 Cong. Rec. S8423-24 (daily ed.
July 22. 1996). His objection to this provision was based upon section 313(b)(1)(C) of the
CBA. i.e. the provision was not within the Finance Committee's jurisdiction. Id. at S8424.
The Parliamentarian upheld Senator Exon's Byrd rule objection on the grounds that
the provision was outside the Finance Committee's jurisdiction and that. to the extent the
definition encompassed discretionary programs. its impact on the budget was "merely
incidental."i Rules determining eligibility for discretionary program benefits within a
11 The Parliamentanan upheld the objection on the basis of both sections 313(b)(1)(C) (not within Finance
Committee's jurisdiction) and 313(b)(1)(D) (probibitica against policy changes with "merely incidencal"
budgetary impact). See 142 Cong. Rec. 59400 (daily ed. Aug. 1. 1996) (statement of Senator Graham during
consideration of conference report on H.R. 3734). see 3130 id. at S9403 (statement of Senator Chafee).
Although Senator Exon's specific objection to the definition. as itemized in his list. was jurisdictional only. be
raised that objection in an omnibus pount of order based generally upon section 313(b)(1), which permitted the
Parliamentarian to consider any basis under (b)(1) for upholding the objection. in any event. in this case it
ultimately makes no difference to the analysis whether Senator Exon's objection was sustained on jurisdictional
grounds nione or on both grounas because any jurisdictional objection under section 313 is based upon the fact
that the Senate committee considering a reconciliation bill would only have jurisdiction over mandatory
programs. See Schick. The Federal Budget 83 (1995) (under current practice, "reconciliation instructions are
6 -
reconciliation bill have no direct effect on the budget. Rather, reducing the size of a
discretionary program is accomplished by Congress reducing the appropriation for the
program, which the proposed definition of "federal means-tested public benefit" did not do.
By contrast, so-called entitlement, or mandatory. programs, generally operate under
indefinite appropriations; the size of the program is not determined based on a fixed
appropriation, but rather on expenditures incurred for all eligible program participants. Thus
expenditures under mandatory programs can be directly reduced by restricting eligibility and
thereby reducing the number of people receiving benefits.
The ruling sustaining Senator Exon's objection was not appealed by any other
Senator. As a result, the definition of "federal means-tested public benefit" was struck from
the Senate bill. Moreover, the House acceded to the Senate deletion and agreed to remove
its own expansive definition of the term "federal means-tested public benefit" in conference.
The conference committee acknowledged the deletion of the definition under the Byrd rule.
142 Cong. Rec. H8927 (daily ed. July 30, 1996).
-
This legislative record provides strong evidence that the phrase "federal means-tested
public benefits," as used in the PRA. should be construed 10 reach only mandatory (and not
discretionary) spending programs. In keeping with section 313, a Byrd rule objection was
made and sustained. a definition was dropped from the bill in response to the objection, and
the House acceded to the Senate version of the bill in light of the Byrd rule objection. To
ignore these events in determining the meaning of the phrase "federal means-tested public
benefit" would be to disregard the purpose and language of section 313 itself, which serves
to facilitate the budgeting process by providing a mechanism by which the scope of
reconciliation legislation may be contained.
given only to committees that have junsdiction over revenues or direct (mandatory) spending programs").
Thus. the underlying reasoning for objections under (b)(1)(C) and (b): is the same.
Some language in one appellate decision night be read to suggest that courts should distinguish between
procedural and substantive legislative monvations in inferring congressional intent. See Elizabeth Blackwell
Health C:r. for Women v. Knull, 61 F.3d 170. 180 (3d Cir 1995), cert. denied. 116 S. Ct. 816 (1996). The
appellees in Elizabeth Blackwell Health Center argued 'hat Congress. by using a rule of House parliamentary
procedure to eliminate a provision in the 1994 Hyde Amendment requiring victims of rape or incest to report
the crime to the police prior to seeking publicly funded abortions. intended to prohibit state statutes imposing
such reporting requirements. The Third Circuit rejected that argument stating that. "{a]t most. the rejection [of
the provision] is a sign that Congress did not wish to mandate reporting requirements on the states." and that
Congress' rejection. of mandatory reporting requirement "on procedural grounds provides no basis for any
inference regarding Congress' views about the substantive provisions of the legislation." 61 F.3d at 180
Unlike here. the procedural objection made in Elizabeth Blackwell Health Center did not in any way suggest
that Congress intended the specific interpretation offered in that case. The precedural objection raised to the
reporting provision was based upon a House rule of parliamentary procedure that prchibited attempts to
"legislate" on an appropriations bill. Id. at 174. The basis for this objection bore no relationship to the
substantive interpretation appeliees urged. In contrast. here the definition proffered by HHS and HUD is based
upon a budgetary distinction between mandatory and discretionary programs. precisely the same basis upon
which Senator Exon's Byrd rule objection was made
7
B.
Several aspects of the text and legislative history of the PRA, when viewed in
isolation. arguably support a bread interpretation of "federal means-tested public benefit" that
would include discretionary programs. Ultimately, however, we find little evidence that
Congress. in passing the final version of the bill, intended to reintroduce the very definition
that had been struck through the operation of section 313 of the CBA. What evidence does
exist is at best ambiguous, and thus, in our view, does not foreclose HHS and HUD, two of
the agencies charged with administering the Act, from construing the PRA in the manner that
they propose.
As previously noted. the PRA. as enacted, contains no definition of the phrase
"federal means-tested public benefit." Had Congress intended for this phrase to include
discretionary spending programs, over the sustained objection of a member of the Senate, it
could have reinserted the deleted definition or similar language in the final version. Indeed,
the conference committee did reintroduce a number of other provisions that also had been
struck from the Senate bill through Senator Exon's omnibus Byrd rule objection. and
Congress ultimately voted to retain these provisions in the final version of the PRA. See
§ 816 (caretaker exemption; originally § 1126 of S. 1956); § 838 (expedited coupon service;
originally § 1148 of S. 1956); § 850 (waiver authority: originally § 1159 of S. 1956);
§ 729(d) (WIC program/drug abuse: originally $ 1259(d)(1) of S. 1956); § 912 (abstinence
education; originally § 2909 of S. 1956); compare with S. 1956 (July 16, 1996 and July 24.
1996 versions). The decision of the conference not to reintroduce the deleted definition of
"federal means-tested public benefit" leaves the PRA without the most obvious textual
guidance that Congress might have provided had it wished to adopt the previously stricken
definition.
The PRA does. however, define the related phrase "federal public benefit" broadly,
and in a manner that appears to draw no distinction between mandatory and discretionary
programs." The phrase "means tested." moreover, though not defined in the statute, is
defined in the dictionary." It could be argued that these two phrases combine to produce a
: Section 401(c)(1) defines "federal public benefit" as:
(A) any grant. contract. loan. professional license. or commercial license provided by an
agency of the United States or by appropriated funds of the United States; and
(B) any retirement. welfare, health. disability. public cr assisted housing, postsecondary
education. food assistance. unempicyment benefit. or any other similar benefit for which
payments or assistance are provided 10 an individual. household, or family eligibility unit by an
agency of the United States or by appropriated funds of the United States.
:4 The dictionary defines "means test as "any examination of the financial state of a person as a condition
precedent to receiving social insurance. public assistance benefits, or other payments from public funds."
Webster's Third New International Dictionary 1399 (3d ed. 1986). See also Random House Dictionary of the
English Language 1192 (21 ed. 1987) ("means rest" is "an investigation into the financial position of a person
- 8 - -
phrase that is sufficiently plain to make clear that. in enacting the bill, Congress effectively
overruled the prior Byrd rule deletions.
Although not entirely without force, we find this argument inconclusive. First, even
assuming that the phrases "federal public benefit" and "means-tested" are free of ambiguity,
the proposition that combining plain terms necessarily results in an equally plain phrase is not
at all self-evident. 15 See. e.g.. Smiley V, Citibank, 116 S. Ct. 1730, 1736 (1996). It is not
clear, therefore, that, even ignoring the deletion of the broad definition pursuant to the CBA,
the bill's final language is so free from ambiguity as to be deemed plain.
More important, as we have explained. the PRA was enacted as reconciliation
legislation, and thus can be understood only in light of the special rules that Congress set
forth in the CBA and the congressional action taken pursuant to those rules. Therefore, the
critical question is not whether the phrase "federal means-tested public benefit" is plain when
read in isolation, but rather whether the phrase reveals that Congress intended to incorporate
the definition that the Senate had deleted, with the House's acquiescence, as a consequence
of its compliance with the budgetary rules established by section 313. The PRA's definition
of "federal public benefit" does not reveal such an intention. That same definition was
already in the bill at the time Senator Exon raised his point of order objecting to the
definition of "federal means-tested public benefit." Its inclusion in the final bill, therefore.
cannot reasonably be viewed as a rejoinder to Senator Exon's objection.
applying for and from public funds") Despite this definition, precisely what constitutes & "means test" in the
context of federal programs that distribute benefits on the basis of need is not clear. Some federal programs
look w both an applicant's income and his or her resources to determine eligibility. See, e.g., Medicaid
program. 42 U.S.C. §§ 1396-1396v: Supplemental Security Income program, 42 U.S.C. §§ 1381-1381a: Food
Stamp program. 7 U.S.C. 15 2011-2032. Others look only to income without any inquiry into resources. See,
e.g., National School Lunch program. 42 U.S.C. 18 1751-1769b: Women. Infants & Children program. 42
U.S.C. § 1786. Still others presume need OD the basis of area of residence, enrollment in another welfare
program. or some other factor. See, e.g., Indian health services. 42 C.F.R. § 36.12 (eligibility based upon
area of residence): Commodity Supplemental Food Program. 7 U.S.C. $ 612c note (eligibility based upon
enrollment in another government benefit program for low-income persons); Chapter 1 migrant education
program. 20 U.S.C. I 6398 (presumption of need for migrant children).
is An unrelated provision of the PRA itself hirts at the ambiguity of the phrase "federal means-tested public
benefit." Section 911 of the PRA ensures that individuals whose benefits have been reduced because of an act
of fraud by the individual may not receive increased benefits under "any other means-tested welfare or public
assistance program for which Federal funds are appropriated" as a result of such reduction. The provision then
defines the phrase "means-tested welfare or public assistance program for which Federal funds are appropriated"
to include "the food stamp program
any program of public or assisted housing under title I of the United
States Housing Act of 1937
and any state program funded under part A of litle IV of the Social Security
Act. The provision does not state whether these programs are intended to be exhaustive or exemplary, but, in
any event. the fact that Congress concluded that it was necessary to provide a definition of some sort suggests
that Congress did not believe that the meaning of the defined phrase was plain.
9 -
Moreover, even apart from the operation of section 313, it is a well-settled canon of
interpretation that "where the final version of a statute deletes language contained in an
carlier draft, [it may be presumed] that the earlier draft is inconsistent with ultimate
congressional intentions." In re Town & Country Home Nursing Servs., Inc., 963 F.2d
1146, 1153 (9th Cir. 1991); see also Russello V. United States, 464 U.S. 16, 23-24 (1983);
Gulf Oil Corp. V, Copp Paving Co., 419 U.S. 186, 200 (1974) (Congress' deletion of
provision "strongly militates against a judgment that Congress intended a result that it
expressly declined to enact"); of. INS V. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987)
("'Few principles of statutory construction are more compelling than the proposition that
Congress does not intend sub silentio to enact statutory language that it has earlier discarded
in favor of other language.'") (citations omitted). That canon surely applies with particular
force in a context such as this, in which the deletion occurs by reason of an independent
congressional statute that governs the nation's budgeting process.
A second textual argument that could be made in support of a broader definition
arises from the list of exceptions to "federal means-tested public benefit" programs in section
403(c)(2) of the PRA. The inclusion of some discretionary programs in this list of
exceptions would be unnecessary unless the term itself included such programs. As an initial
matter, we note that the logic of this argument proves too much, particularly in light of other
drafting flaws that appear in the Act. The same provision that excepts certain discretionary
programs from the limitation on eligibility for "federal means-tested public benefits," for
example, also excepts certain programs specified by the Attorney General that are not
conditioned on "the individual recipient's income or resources." § 403(c)(2)(G). The view
that Congress would not have excepted a program that was not otherwise covered would
erroneously suggest that "means-tested" must be a more expansive term than the phrase
"condition[ed]
on the individual recipient's income or resources."
More to the point, the List of exceptions included in section 403(c)(2) is quite
plausibly understood as an inconsistency resulting from the proper operation of the Byrd rule
itself. The remedy provided in section 313 is a blunt instrument offering a basis for striking
extraneous material in a reconciliation bill. but no mechanism for re-drafting remaining
legislative provisions to conform them to the legislation as revised by application of the Byrd
rule. Indeed, there was no careful mark-up of the bill following the deletion of the
definition of "federal means-tested public benefit." where inconsistent provisions might have
been brought into conformity.
16 Similar inconsistencies appear in other provisions of the PRA as 1 result of Byrd rule deletions. For
example. the family cap provision of S: 1956. see § 103 of July 16 version of S. 1956 (establishing new section
408(a)(2) of TANF program). was deleted through a Byrd rule objection. The conference report notes this
deletion and the provision does not appear in the final version of the PRA 142 Cong. Rec. H8903 (daily ed.
July 30, 1996). Nevertheless. a reference to the family cap provision remains. in § 103 of the PRA
(establishing new § 402(a)(7) of title IV of the SSA). which permits states to waive program requirements in
cases of domestic violence.
- 10 -
Moreover, it is unlikely that members of Congress would have seen the list of
exceptions as obviously inconsistent with the PRA as revised by application of the Byrd rule.
The categorization of particular programs as mandatory or discretionary is not at all obvious,
and it is likely that many, if not most, members did not know precisely which programs fell
into which category.¹⁷ In addition, the list of exceptions can be seen as Congress' attempt
to safeguard certain programs from any definitional skirmishes and ensure their exception."
We are also unpersuaded that the legislative history of the PRA supports the
conclusion that Congress intended to enact extraneous material through the reconciliation
process over the sustained objection of a member of the Senate. Although noting that the
definition of "federal means-tested public benefit" was deleted from the bill through operation
of section 313, the conferees' report on the PRA nonetheless asserts that "it is the intent of
the conferees that [the deleted] definition be presumed to be in place for purposes of this
title." 142 Cong. Rec. H8927 (daily ed. July 30, 1996). We believe that this statement in
the conferees' report cannot be taken as controlling.
As noted above, "[f]ew principles of statutory construction are more compelling than
the proposition, that Congress does not intend sub silentio to enact statutory language that it
has earlier discarded in favor of other language." Cardoza-Fonseca, 480 U.S. at 442-43
(citations omitted). Here, this rule cannot plausibly give way to contrary legislative history.
Both houses of Congress deleted the definition of "federal means-tested public benefit": the
Senate did so on the basis of the CBA, and the House acceded to the Senate. A conference
committee cannot essentially overrule those decisions by including contrary language in its
report. To permit this to occur not only would run counter to the canon against construing a
statute to include terms that Congress had earlier discarded, id., but, even more
fundamentally, would undermine the rules that were established with such care in section
313, which permit a Sepator to object to extraneous material that the conference might
include in the legislation itself, but provide no mechanism for correcting the conference's
17 In fact. during Senate consideration of the conference version of the bill, Senator Graham confirmed, for
himself and for any other members that might no: have analyzed the list of excepted programs. that the post-
conference version of the bill was consistent with the Senate's earlier Byrd rule objections. defining -federal
means-tested public benefit' as applicable only to mandatory programs. See infra note 20.
18 As a result, we do not believe it to be significant that the final version of the PRA also included
exceptions for two discretionary programs that did not appear in the Senate version of the PRA from which the
broad definition of "federal means-tested public benefit" had been deleted. Specifically, the Head Stan and Job
Training programs were only included in the House's final list of exempted programs. and not the Senate's.
even though they do appear in the final version of § 403(c)(2). The inclusion of these two additional exceptions
does not change our conclusion because there is no reason to believe that the inclusion of exceptions for these
particular discretionary programs. more than the exceptions for the other discretionary programs. was intended
to do more than safeguard them from further definitional disagreements. In any event. the inclusion in the final
bill of two additional discretionary programs seems to us a most oblique means for Congress to reinsert a
definition of "federal means-tested public benefit" that had previously been struck.
- 11
explanatory statement. 19 Finally, subsequent Senate colloquy admittedly an insubstantial
grounding for legislative intent if standing alone confirms the understanding that a
definition that would have extended the term to encompass discretionary programs was
deleted because it was outside the subject matter scope of the reconciliation process. 20
We thus conclude that the legislative record provides strong support for the proffered
construction of the PRA and that the inconsistencies noted above, while giving rise to some
.9 Section 313 permits a Byrd rule objection to be made at various points throughout the legislative process.
including after the bill has been reported out of conference. 2 U.S.C. & 644(c). Thus. the statute allows for
the possibility that Congress might attempt 10 reinsert a deleted provision into a bill during conference. and
provides the Senate with the opportunity to renew its Byrd rule objection if it insists upon the deletion.
However, because a Byrd rule objection can be raised only against legislative language. not against explanatory
statements in the conference report, see § 644(a). allowing a conference report statement to act as the equivalent
of legislative language effectively abolishes the statutory mechanism established to ensure the integrity of the
Byrd rule process.
30 Specifically, in the debate over the conference report on the Senate floor. Senator Graham sought to
confirm the exact scope of the term "federal means-tested public benefit. After reviewing the history of the
Byrd rule objection and the Pariiamentarian's ruling, Senator Graham engaged Senstor Kennedy in the following
colloquy:
Mr. Graham:
[W]ould the Senator agree that. when the Senate struck these sections as
violating the Byrd rule, the Senate's intent was to prevent the denial of services in appropriated
programs such as those that provide services to victims of domestic violence and child abuse,
the maternal and child health block grant. social services block grant. community health
centers and migrant health centers?
Mr. Kennedy Yes. Under the Byrd rule. the budget reconciliation process cannot be used to
change discretionary sponding programs. Only mandatory spending is affected.
142 Cong. Rec. S9400 (daily ed. Aug. 1. 1996).
Senator Graham subsequently asked Senator Exon. who was one of the Senate conferees on the bill.
whether "the version of the bill recommended in this conference report is consistent with this understanding."
!d. Senator Exon confirmed that it was. Later during the debate, Senator Graham raised this issue again with
another conferee. Senator Chafee:
Mr. Granam: I wonder if my colleague could address one point on this bill. I notice that the
term "Federal means-tested public benefit" was defined in previous versions of the bill.
However, in this conference report no definition is provided.
Mr. Chafee:
[W]hen the bill was considered in conference. I understand that there was
an intentional effort to ensure this provision complied with [the] Byrd rule by omitting the
definition of that particular term.
In other words. then. the term "Federal means-rested public benefit" - if it is to be in
compliance with the Byrd rule -- does not refer to discretionary programs
Id. at S9403.
12 -
ambiguity, are insufficient to rebut the evidence that Congress intended to reach only
mandatory spending programs. We, accordingly, turn to the second step of the Chevron
inquiry.
II.
Chevron Step II
Under the second step of the Chevron analysis, two questions arise. First, it is
necessary to determine whether Congress intended for agencies or courts to resolve the
ambiguity that Congress, either intentionally or inadvertently, failed to resolve. See Adams
Fruit Co. V. Barrett, 494 U.S. 638, 649 (1990) ("[a] precondition to deference under
Chevron is a congressional delegation of administrative authority"); see also Johnson V.
United States R.R. Retirement Bd., 969 F.2d 1082, 1088 (D.C. Cir. 1992) ("If agencies are
simply interpreting a statute, but have not been granted the power to 'administer' it, the
principle of deference applies with less force."), cert. denied, 507 U.S. 1029 (1993).
Second, if Congress intended for agencies to resolve the ambiguity, then it is necessary to
determine whether the proposed agency interpretation is "permissible." Chevron, 467 U.S.
at 843.21 If Congress intended for the agencies to resolve the interpretive ambiguity, and the
agency resolution is permissible, then the agency construction is binding. See id.
A.
Congress need not expressly authorize agencies to construe ambiguous statutory terms
in order for courts to be bound by agency constructions. In Chevron itself, for example, the
Court deferred to an Environmental Protection Agency ("EPA") construction of the Clean
Air Act, even though no statutory language expressly empowered that agency to impose a
binding interpretation of the term "stationary source." The Court simply inferred that
Congress must have intended for the EPA, as the agency entrusted with administering the
Clean Air Act, to resolve the policy choices that inhere in the interpretation of ambiguous
statutory language. See Chevron, 467 U.S. at 843. The Court explained that this inference
was reasonable because agencies generally possess superior expertise and greater political
accountability than courts. See id. at 865-66.
On the other hand, Congress may impliedly authorize courts to interpret a particular
statutory provision, even though an agency has been generally charged with administering the
21 Although the Court stated in Cardoza-Fonseca that Cbevron-deference does not apply to pure questions of
law. such as the one at issue here. it has subsequently retreated from this position. Our memorandum proceeds
on the assumption that Chevron applies to such questions. Cardoza-Fonseca, 480 U.S. at 454-55 (Scalia, J.,
concurring).
= Even if Congress has not entrusted the interpretative function to an agency. courts should still give careful
consideration to agency constructions that are based on expertise and to which they have consistently adhered.
See, e.g., Atchison, Topeka and Santa Fe Ry. V. Pena. 44 F.3d 437, 445 (7th Cir. 1994) (Easterbrook. J.
concurring). aff'd sub com, Brotherhood of Locomotive Engineers V. Atchison, Topeka & Santa Fe Ry., 116
S. Ct. 595 (1996).
13 -
statute as a whole. In Adams Fruit Co., for example, the Court refused to defer to the
Department of Labor's resolution of the question whether exclusivity provisions in state
worker compensation laws trumped a federal private right of action under the Migrant and
Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-1872 ("Worker Protection
Act"). Even though the Department was responsible for administering the Worker Protection
Act generally, the Court concluded that Congress intended for the judiciary, not the agency,
to construe the contours of the private right of action that the Worker Protection Act created.
See Adams Fruit Co., 494 U.S. at 649. The Court based that conclusion primarily on the
fact that the Department was not required to interpret the private right of action provisions as
an incident of its general administration of the Worker Protection Act, as those provisions
established a parallel and independent enforcement mechanism. See id. at 649-50.
In our view, the delegation question presented here is more analogous to Chevron
than to Adams Fruit Co. Although the PRA does not expressly delegate general
administrative authority to HHS, HUD, or, for that matter, to any other particular agency,
the PRA effectively amends the statutes that establish the assistance programs over which
HHS, HUD and other federal agencies have already been delegated administrative authority.
Because those agencies possess general administrative authority to interpret eligibility criteria
set forth in statutes enacted prior to the PRA. we believe it to be a fair inference that
Congress intended for the changes effected by the PRA to be administered in the same
manner.
In an analogous context, the Third Circuit deferred to HHS' construction of the Hyde
Amendment, even though, as the dissent in that case pointed out, the Hyde Amendment does
not expressly delegate administrative authority to any agency. Compare Elizabeth Blackwell
Health Ctr. for Women, 61 F.3d at 182, with id. at 196 (Nygaard, J., dissenting). The
court concluded that HHS' authority to administer the Medicaid statute necessarily included
the authority to construe legislation that amended the Medicaid statute's eligibility
requirements. Id. at 182; see also Fort Wayne Community Schools V. Fort Wayne Educ.
Ass'n. 977 F.2d 358, 365 (7th Cir. 1992) (deferring to Postal Service's construction of a
criminal statute on the ground that it was "intimately connected" to the purposes of the
statute that Postal Service was charged with administering), cert. denied, 510 U.S. 826
(1993); Associated Third Class Mail Users V, United States Postal Serv., 600 F.2d 824, 826
n.5 (D.C. Cir.), cen. denied, 444 U.S. 837 (1979) (same).
The case for deference is even stronger here, moreover, because the PRA not only
amends the eligibility requirements for the programs that these agencies administer, but also
expressly assigns these agencies the responsibility of informing the public of the changes in
those eligibility requirements that the PRA effects. Section 404(a) of the PRA requires
federal agencies that administer assistance programs to provide the public with information
- 14
about how the PRA changes the eligibility requirements for those programs. 23 This
assignment, we believe, impliedly delegates to these agencies the authority to resolve the
meaning of the phrase "federal means-tested public benefit": agencies must first interpret the
meaning of the term "federal means-tested public benefit" in order to comply with section
404(a)'s mandate to inform the public of the PRA's impact on eligibility requirements. Only
by determining whether that term applies to both mandatory and discretionary assistance
programs (among other questions of application) will agencies be able to determine who is
eligible for the programs that they already administer pursuant to separate statutory
delegations. Section 404(a)'s notification requirement serves a useful function, moreover,
only to the extent that the agencies are able to provide accurate information about the
eligibility changes that the PRA mandates. If courts are free to reject reasonable agency
interpretations of that term, then agencies will be forced to risk providing inaccurate
eligibility information or to refrain from providing complete eligibility information
altogether. Because neither result seems consistent with the purpose behind section 404(a), it
is proper to infer that Congress intended for the agencies to provide the authoritative
construction of the term "federal means-tested public benefit" when it assigned them the
notification task set forth in section 404(a).
In light of the agencies' statutorily assigned responsibilities, the agencies cannot fairly
be viewed as "trying to 'bootstrap' [themselves] into an area in which [they have] no
jurisdiction" in seeking deference for their construction of the term "federal means-tested
public benefit." Wagner Seed Co. V. Bush, 946 F.2d 918, 923 (D.C. Cir. 1991), cert.
denied, 503 U.S. 970 (1992) (citation omitted). Rather, they are offering an interpretation
that results from the "intimate connection" between the purposes of the statutes that the
agencies already administer and those of the PRA generally, Fort Wayne Community
Schools, 977 F.2d at 365, and that arises in connection with the "special duty" that section
404(a) of the PRA assigns them. See FLRA V. Department of Treasury, 884 F.2d 1446,
1451 (D.C. Cir. 1989), cen. denied, 493 U.S. 1055 (1990).
We are aware of those cases that assert that courts should not defer to statutes that are
"general" in nature or that are subject to interpretation by more than one agency. See, e.g.,
Johnson V. United States R.R. Retirement Bd., 969 F.2d at 1088 (citing cases). We do not
believe that this rule of construction should appiy here. The rule has been invoked primarily
in cases in which agencies seek Chevron deference for their construction of statutes that have
been expressly entrusted to other agencies for administration, see id.; Cheney R.R. V,
Railroad Retirement Bd., 50 F.3d 1071, 1073-74 (D.C. Cir. 1995), that are designed to
ensure that agencies remain publicly accountable or proceed in a fair manner, see. e.g.,
Professional Reactor Operator Soc'y V. United States Nuclear Regulatory Comm'n, 939 F.2d
1047, 1051 (D.C. Cir. 1991); see Air North Am. V. Department of Transp., 937 F.2d 1427.
1436 (9th Cir. 1991), or that are not intimately connected to the mission of the agency that
23 "Each Federal agency that administers a program to which section 401, 402, or 403 applies shall. directly
or through the States, post information and provide general notification to the public and to program recipients
of the changes regarding eligibility for any such program pursuant to this subtitle." 110 Stat. at 2267.
- 15
seeks deference. See. e.g., Professional Airways Sys. Specialists V, FLRA, 809 F.2d 855,
857 n.6 (D.C. Cir. 1987). The results in these cases are, therefore, best explained as
particular applications of the justifiable presumption that Congress does not intend for courts
to be bound by agency constructions that are beyond agency expertise, see, e.g., Colorado
Nurses Ass'n V. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988), or that concern provisions
that are designed to ensure agencies proceed in a fair and accountable manner. see Air North
Am. V. Department of Transp., 937 F.2d at 1436. These cases do not establish, in our
view, a general presumption in favor of judicial resolution of all statutory ambiguities that
confront more than a single agency.
Indeed, Chevron's emphasis on the greater political accountability of agencies
counsels against a rule of construction that would afford judges the last word on the meaning
of any statute that does not authorize a single agency to administer it. See Chevron, 467
U.S. at 865-66. Where, as here, a statute assigns a group of agencies a particular task that
is related to the duties that the agencies already have been assigned by their governing
statutes, Congress may be presumed to have intended for these agencies to resolve any
ambiguities that may arise. That the PRA does not assign any particular agency primary
interpretive responsibility does not change the analysis. Congress may have intended for the
courts to resolve the meaning of the term "federal means-tested public benefit" in the event
of unresolved interpretive conflicts among the agencies identified by section 404. There is
no reason to suppose, however, that Congress intended for unelected judges to countermand
a unanimous resolution of the policy question by the agencies closest to it. Cf. American
Fed'n of Gov't Employees Y. FLRA, 2 F.3d 6. 10 (2d Cir. 1993) ("[W]hen two agencies,
each examining statutes they are charged with administering, agree as to the interplay of the
statutes, there is no more reason to mistrust their congruent resolutions than there is to
mistrust action taken by a single agency[.] see also Salleh V. Christopher, 85 F.3d 689
(D.C. Cir. 1996) (suggesting that joint agency interpretations may deserve deference); cf.
Lieberman V, FTC, 771 F.2d 32, 37 (2d Cir. 1985) (declining to defer to joint agency
construction but noting that Congress may delegate "dual lawmaking authority"). So long as
the agencies identified by section 404(a) concur in their interpretation of the term "federal
means-tested public benefit," therefore, we believe that courts would be bound to accord that
interpretation Chevron deference.
Finally, we do not believe that the deference that the agencies receive under Chevron
should turn on whether their construction of the term "federal means-tested public benefit"
would be deemed an "interpretative" or "legislative" rule under the Administrative Procedure
Act. We agree with those courts that have concluded that Chevron deference turns solely on
whether the agency's interpretation may fairly be understood to be one for which Congress
intended judicial deference to apply. see, e.g., Elizabeth Blackwell Health Ctr. for Women,
61 F.3d at 182; id., at 190-96 (Nygaard J., dissenting) (reviewing conflicting caselaw);
Kelley V. EPA, 15 F.3d 1100, 1108 (D.C. Cir. 1994), cert. denied, 115 S. Ct. 900 (1995);
see generally Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and
the Courts?, 7 Yale J. on Reg. 1 (1990), and not on whether the proposed construction is
16
S9400
CONGRESSIONAL RECORD-SENATE
August 1, 1996
there will no longer be any mechanism
Mr. GRAHAM. Is this consistent with
tion of the Senate, and I thank the
for guaranteeing a national safety net
the understanding of the Senator from
Senators for their efforts.
for our poorest families.
Nebraska as well?
Mr. LEVIN. Mr. President, today, the
I am concerned that the work re-
Mr. EXON. Yes. As ranking minority
Senate will reach a milestone in the
quirements in the bill can not be met.
member of the Budget Committee, I
long and sometimes twisting journey of
States that do not meet employment
have been concerned to ensure that the
welfare reform legislation. The Senate
goals will lose part of their block
budget reconciliation process is limited
will pass this bill. as the House of Rep-
grants. Penalties would rise from 5 per-
to affecting mandatory spending and is
resentatives did yesterday. The Presi-
cent in the first year to 21 percent in
not misused to achieve other objec-
dent has told the Nation that he will
the ninth year. The Congressional
tives. Budget reconciliation's depar-
sign it, and soon it will become law. I
Budget Office has already reported that
ture from ordinary Senate rules of de-
will vote in favor of this bill because it
most States will be unable to meet the
bate must be carefully limited to its
is a step toward ending the present Bys-
work requirements. This legislation
original and proper purpose. Our col-
tem which simply does not work and
lacks the necessary commitment or re-
leagues on the other side of the aisle
replacing it with a system which re-
sources to help people move from pov-
shared this view when they agreed to
quires and rewards work. I wish, how-
erty to meaningful employment. It
strike the offending. provisions from
ever, that we had before us a reform
does not provide any specific funding
the Senate bill.
bill which I could wholeheartedly.
for States to help people find or train
Mr. GRAHAM. Would the Senator
without reservation, endorse and sup-
themselves for better-paying jobs.
agree that the version of the bill rec-
port. I would greatly prefer a bill, for
Rather than moving people off welfare
ommended in this conference report is
example, like the work first legislation
and onto work, this bill emphasizes
consistent with this understanding?
which contained a Federal safety net
cutting off welfare.
Mr. EXON. Yes. These provisions
for children and which I cosponsored
While I support reform that promotes
stayed out of the bill in conference, as
with Senator DASCHLE and many of my
personal responsibility and community
the conferees sought to avoid another
colleagues or even like the bipartisan
initiatives, I cannot support legislation
challenge on the Senate floor that
Biden-Specter approach which I voted
which undermines the national safety
for in the Senate.
these provisions violated the Byrd rule.
net and reduces resources for hungry
The bill before us is an improvement
This manifests our intent to keep this
over the legislation which I opposed
families.
bill within the proper parameters of
Mr. GRAHAM. Mr. President, during
last year and which the President ve-
budget reconciliation.
consideration of the Senate reconcili-
toed because, among other things, it
Mr. President, changes in discre-
ation bill, two definitions regarding
provides more support for child care,
tionary programs on a reconciliation
immigrants, section 2403(c)(1), and in
retains needed child protection pro-
bill, such as the ones mentioned by the
section 2423, section 213(A)(f)(2), were
grams and services, includes my
Senator from Florida and the Senator
stricken because they contained mate-
amendment strengthening the work re-
from Massachusetts, result in no direct
rial that was not under the jurisdiction
quirement, does not block grant food
budgetary savings and are therefore ex-
of the Finance Committee. Specifically
stamp assistance, requires a greater
traneous under the Byrd rule.
maintenance of effort from the States,
the definitions denied all means-tested
During floor consideration of this
and doubles the contingency fund to
benefits to immigrants including bene-
legislation, we struck section 2403(c)(1),
help States in times of economic down-
fits subject to appropriations.
and in section 2423, section 213(A)(f)(2)
The Parliamentarian also agreed
turn. However, it contains a number of
because they contained material that
that the provisions violated another
serious flaws. That is why it is a mile-
was not under the jurisdiction of the
section of the Byrd rule, section
stone and not a final destination. It
Finance Committee, namely many dis-
313(b)(1)(D). Section 313(b)(1)(D) pro-
will need repairs. As the President has
cretionary programs, because they vio-
hibits language in a reconciliation bill
indicated, there are aspects of this leg-
lated section 313(b)(1)(C) of the Budget
or conference report if the deficit re-
islation which the Congress will be re-
Act. These provisions also provide no
duction is merely incidental to the
quired to revisit. And beyond that, I
budgetary savings, and violating the
larger policy changes contained within
believe that this kind of sweeping re-
intent of section 313(b)(1)(A) of the
form involves an element of risk. Al-
the provision. The Parliamentarian
Budget Act, but because they were
agreed that since the reconciliation
though our efforts are directed toward
cleverly embedded in language which
process is confined to mandatory
improving the system, recognizing
did provide direct budgetary savings, it
spending, expanding the scope of provi-
within the welfare system the principle
was difficult to fully enforce the Byrd
sions to include benefits provided by
of the value of work, assuring the pro-
rule. Nonetheless, it is clear that this
discretionary spending was a violation
tection of children and reasserting the
bill should not be used to make
responsibility of absent parents to
of the Byrd rule.
The conferees were certainly notified
changes in discretionary programs, and
their children, we cannot possibly be
about these rulings and the offending
those who look to interpret the action
sure that all the effects of such sweep-
provisions were not included in the
of the Congress should take this into
ing reform will be those intended. For
account.
conference report.
that reason, the Congress must remain
Moreover, would the Senator agree
Mr. President, the purpose of the
vigilant in its oversight and monitor-
that, when the Senate struck these sec-
Byrd rule is to prevent reconciliation
ing of the impacts of this legislation.
tions as, violating the Byrd rule, the
bills from being loaded up with provi-
We must stand ready to address nega-
Senate's intent was to prevent the de-
sions, such as these, that have no budg-
tive impacts. If critics are fully correct
nial of services in appropriated pro-
etary impact. This is important be-
and there is a large increase in the
grams such as those that provide serv-
cause reconciliation bills move in the
numbers of American children who find
ices to victims of domestic violence
Senate under special rules which limit
themselves impoverished, we must
and child abuse, the maternal and child
amendment and time for debate. With-
stand ready to remedy quickly the de-
health block grant, social services
out the protections provided by the
fects in this bill.
block grant, community health centers
Byrd rule, it would be far too easy to
For a number of years, I have been
and migrant health centers? Does the
take advantage of the privileged nature
working toward reform of the welfare
Senator agree that recipients of appro-
of reconciliation to enact controversial
system. The existing system has failed.
priated funds are not forced to conduct
items without proper consideration in
It does not serve families and children
checks on citizenship and immigration
the Senate. Allowing reconciliation to
well. It does not serve the American
status when providing community
be used in this manner fundamentally
taxpayer well. It was created to meet
services?
undermines the basic nature of the
the needs of families in hard times. Un-
Mr. KENNEDY. Yes. Under the Byrd
Senate's rules which protect the voice
fortunately, for far too many, what was
rule, the budget reconciliation process
of the minority and damages the Sen-
intended as a safety net has too often
cannot be used to change discretionary
ate as an institution.
become a way of life, a cycle of depend
spending programs. Only mandatory
For this reason, I feel it is important
ency. It 18 wrong to allow such a sys
spending 18 affected.
to bring these provisions to the atten-
tem to continue.
August 1, 1996
CONGRESSIONAL RECORD-SENATE
S9403
that from the day they receive their
ment requires States to reserve a por-
food stamps, Medicaid, and other as-
first check, the clock will be ticking.
tion of their social service block grant
sistance for legal immigrants; it has no
Society is fulfilling an obligations to
funds for programs and services that
good place in a welfare-to-work bill.
help them get back on their feet, and
educate young people about the con-
As the President has urged, we must
they in turn are obligated to make
sequences of premarital pregnancy. As
keep these issues in mind for repair in
every effort to receive job training or
we reduce the number of teens who be-
the future even as we recognize that
education and to find employment. The
come pregnant, we will be increasing
this legislation 18 definitely an im-
employment of parents will enrich
the number of children who are able to
provement in the current welfare pro-
their children not only financially, but
enjoy a childhood without deprevation.
gram. In voting for this bill, we will re-
morally as well. In watching their par-
There are other aspects of this legis-
alize an historic opportunity to meet
ents benefit from educational opportu-
lation which have been framed with the
President Clinton's call to "end welfare
nities and engage in gainful employ-
protection of children in mind. For ex-
as we know it." We will have also prov-
ment, children may embrace a valuable
ample, minor children continue to re-
en to the American people that the
work ethic and eventually be better
ceive Medicaid even If their parents
Federal Government is capable of
able to free themselves from the cycle
lose coverage as a penalty for not get-
bringing about change through biparti-
of poverty and welfare dependence in
ting off of welfare into job training and
san cooperation.
which they are currently entrapped.
work, Families can also be eligible for,
-This is not the end of welfare reform
States will also have an incentive to
transitional Medicaid coverage as they.
but it is the largest step forward we
help beneficiaries find work. Welfare
move from welfare to work. These pro-
have taken to improve the way Amer-
offices should become employment of-
visions are vital as many parents cur-
ica cares for its poor, and tries to make
fices as States strive to move recipi-
rently. refrain from finding jobs and
real for them the dreams of equal op-
ents into the work force in order to
moving off welfare for fear of dosing
portunity, which is the driving impulse
earn a "performance bonus from the
the medical coverage for their children
of our history
Federal Government
that welfare provides.
thank the Chair and yield the floor.
The conference bill also holds the
Mr. President, this bill provides a
Mr: GRAHAM. I wonder if my col-
hope of protecting children and reduc-
significant improvement over the Sen-
league could address one point on this
ing welfare spending by attacking the
ate-passed bill in allowing States to
bill. I notice that the term "Federal
problem of unmarried teen parenthood.
provide needy children of parents who
means-tested public benefit" was de-
Welfare will no longer encourage the
go off of welfare with vouchers through
fined in previous versions of the bill.
proliferation of single and uneducated
the title XXblock grant. The legisla-
However, in this conference report, no
parents by automatically and uncondi-
tion also answers the all-important
definition is provided.
tionally underwriting the mothers who
question of who will care for the chil-
Mr. CHAFEE. It is my understanding
bear children out of wedlock. Children
dren as their mothers and fathers move
that the Parliamentarian noted that
born out of wedlock are shown by stud-
into the world of education and work.
the previous definitions of "Federal
ies to be three times more likely to be
We have designated $13.8 billion-a sub-
means-tested public benefit" were
on welfare as adults than their peers.
stantial increase-to be spent just on
broad enough to include discretionary
By implementing this bill, however,
child care over the next 6 years, and we
spending. According to the Par-
the Federal Government will require
have retained child care health and
liamentarian, that inclusion caused the
States to combat this problem and
safety standards. Moveover, we will not
definition to violate Section
hopefully prevent it in a number of
penalize mothers with children under
313(b)(1)(D) of the Byrd rule, which pre-
ways. First, paternity must be estab-
the next 6 years, and we have retained
vents reconciliation legislation from
lished for all children born out of wed-
child care health and safety standards.
extending its scope to items that pro-
lock at birth as a condition for receiv-
Moreover, we will not penalize mothers
vide merely incidental deficit reduc-
ing assistance, and fathers will be re-
with children under the age of 6 who do
tion, that is, discretionary programs.
quired to pay child support and set a
not accept employment because they
Therefore, when the bill was consid-
good example for their children by en-
cannot find or afford child care. I
ered in conference, I understand that
gaging in either private sector or com-
would have preferred the retention of
there was an intentional effort to en-
munity service jobs. Mothers must live
the Senate provision in this regard
sure this provision complied with Byrd
with an adult parent or relative or in
which allowed the mothers of children
rule by omitting the definition of that
an adult-supervised, strictly run Sec-
age 6 to 11 who cannot find adequate,
particular term.
ond Chance Home where they can learn
`affordable child care to stay home with
In other words, then, the term "Fed-
skills necessary to the proper manage-
them without penalty.
eral means-tested public benefit"-if it
ment and care of a child and household.
Mr. President, this is a good bill-a
is to be in compliance with the Byrd
A further condition of receiving assist-
giant step forward from the welfare
rule-does not refer to discretionary
ance is a commitment to educational
status quo-but it is no more perfect
programs. I would assume that pro-
advancement. Young mothers must
than any other bill that has passed the
grams such as funding for community
stay in a school or training program as
Senate on a big, complicated problem.
health centers, as well as the maternal
a condition of continuing to receive
I am especially concerned by the food
and child health block grant, would not
welfare checks.
stamp provision which is a real break
be impacted.
This welfare reform bill will addi-
with what was agreed to in the Senate-
Mr. GRAHAM. I thank the Senator
tionally work to prevent a new genera-
passed bill. It limits the receipt of food
for clarifying that point.
tion from entering into the cycle of
stamps by jobless individuals who do
Mr. DOMENICI. Mr. President, I be-
early parenthood and welfare depend-
not have children to 3 months out of a
lieve our last Senator, other than the
ence by making it a national goal to
3-year period and allows no hardship
leader and myself. is Senator THUR-
lower teen pregnancy rates. It estab-
exemptions. This is far harsher than
MOND, and he would like 8 minutes. We
lishes a national campaign that will as-
the Senate provision which allowed
have plenty of time, so I give him 8
sure the creation of teen pregnancy
jobless individuals to receive food
minutes.
prevention programs in at least 25 per-
stamps for 6 months out of each year
The PRESIDING OFFICER. The Sen-
cent of American communities by 1997.
as well as a 20-percent hardship exemp-
ator from South Carolina:
It includes two amendments which I
tion. Food stamps are also now cut for
Mr. THURMOND. Mr. President, I
authored with the intent of combating
households receiving energy assistance,
rise in support of the conference report
this problem. One will require the Jus-
a proposal not included in the Senate
to H.R. 3734, the Personal Responsibil-
tice Department as well as the States
bill The conference report also cuts
ity and Work Opportunity Reconcili-
to crack down on what studies show is
the cap on the shelter deduction by $42
ation Act of 1996. This legislation re-
a class of older men-many of them
and takes away food stamps for more
forms welfare to emphasize fundamen-
predatory-who father the children of
families with children who pay over
tal American values. It rewards work
young girls in the majority of teen
half their income for housing. And I re-
and self reliance, promotes personal re-
pregnancy cases. The second amend-
main very concerned about the ban on
sponsibility, and renews a sense of hope
NATURALES
Office of the Assistant Secretary
DEPARTMENT OF HEALTH & HUMAN SERVICES
for Legislation
Washington, D.C. 20201
July 21, 1997
The Honorable Lamar Smith, Chairman
House Judiciary Subcommittee on Immigration
B-307B Rayburn House Office Building
Washington, D.C. 20515
Dear Chairman Smith:
As you requested, attached is a list of HHS discretionary funded programs in which eligibility for
benefits is conditioned on recipients income and/or resources.
Please contact me if you have any further questions.
Sincerely,
In A Su
Irene B. Bueno
Deputy Assistant Secretary for Legislation
(Congressional Liaison)
Enclosure
DRAFT
DRAFT
DRAFT
HHS DISCRETIONARY FUNDED PROGRAMS IN WHICH ELIGIBILITY FOR BENEFITS
IS CONDITIONED ON RECIPIENT'S INCOME AND/OR RESOURCES
(Some Programs May Be Exempted Specifically From Section 403 of PRWORA)¹
HRSA
Aids Drug Assistance Program (ADAP)
ACF
Community Services Block Grant Program
Job Opportunities for Low-Income Individuals Program
ORR Programs
--
Refugee Cash Assistance
--
Refugee Medical Assistance
Low Income Home Energy Assistance Program
Residential Energy Assistance Challenge Grants
"Special Circumstance " Programs
Head Start (90 percent of enrollees must meet income eligibility criteria, 10 percent do not need
to meet income criteria)
--
Migrant Head Start
--
Comprehensive Child Development Centers
Child Care (while recipients must meet income eligibility criteria, the program is funded with
both discretionary appropriations and mandatory spending)
I For example, benefits under the Head Start Act are specifically exempted under section
403(c)(2)(J), and therefore Migrant Head Start and Comprehensive Child Development Centers
are specifically exempted from the definition of "Federal means-tested public benefits" since
they are authorized under the "Head Start Act". In addition, programs may also be exempted if
they provide public health assistance for immunizations, are authorized under titles III, VII, and
VIII of the Public Health Service Act, or are in-kind services necessary for the protection of life
or safety (Attorney General exception--section 403(c)(2)(G)).
We need guidance on how to issue the definition of Federal means-tested public benefit. As you
know, the definition of Federal means-tested public benefit provides the framework for eligibility
of qualified aliens for benefit programs. Under this definition, the benefit restrictions for Federal
means-tested public benefits would only apply to mandatory programs and not discretionary
programs.
This memo presents (1) administrative options for issuing the definition of Federal means-tested
public benefit, and (2) the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) policy implications.
To summarize the issues explained below, OIRA believes that issuances for the mandatory
programs may be subject to SBREFA regardless of which option is chosen. HRD believes
separate agency issuances, properly prepared, would not be subject to SBREFA. HRD also
believes that if the issuances are reviewed in draft to ensure uniformity, the OLC's concerns may
be satisfied.
Options on How to Issue the Definition:
Common
The Civil Division at DOJ recommended a "common rule" approach which
Rule
would provide a stronger legal position in case of litigation. (They believe
this approach would be helpful, although not essential, for defense of the
definition.) The Office of Legal Counsel at DOJ stressed the need for
uniformity in implementing the definition.
Exchange of
When approached, OIRA suggested an exchange of letters which would
Letters
provide legal defense for a unified definition within the Federal government.
(This would not be considered a rule thus not subject to SBREFA.) After
the exchange of letters, an agency could release the definition through any
means they determine is appropriate for them. Given that an earlier exchange
of letters occurred between agencies that led to the OLC opinion, in the
RMO's view a second exchange would not appear to significantly strengthen
the Administration's legal position. Since over a month has passed since the
letter idea was developed, OIRA staff agree with the RMO that the issuance of
the definition is overdue.
Lead
One agency could promulgate the definition in a rule. (For example, the INS
Agency
Affidavit of Support interim final rule which contains a definition for means-
tested public benefit -- Federal, state and local levels.)
Guidance
The DOJ Interim Verification Guidance could also be a vehicle for release of
the definition. Although, DOJ believes this option could have Chevron
problems because DOJ is not the lead agency for benefit programs.
Separate
Agencies could individually issue the definition in either guidance or
Issuances
rulemaking. The guidance may be considered an interpretive rule.
SBREFA Implications:
Among the key issues are whether agency guidance will be considered a rule, and thus sent to the
Hill for review; and whether any rulemaking will be considered a major rule under SBREFA.
Rules are major, in general, if the impact on the economy is more than $100 million, which
subjects them to a 60-day delayed effective date that can be waived and requires GAO to write a
report. Congress has the same opportunity to review and challenge rules regardless of whether
they are major.
There are two different approaches to determine the impact the definition has on discretionary
programs:
(1) the impact is the difference between current practice and implementation of the policy
-- impact is therefore zero;
(2) the impact is the difference between including and not including discretionary
programs into the definition of means-tested public benefit.
OIRA staff do not believe the discretionary programs are likely to have a net effect in excess of
$100 million regardless of which approach is used.
For mandatory means tested programs, OIRA believes the mandatory programs will potentially
be major under SBREFA due to an impact over $100 million annually. When reviewing rules
that merely implement statutory language, the costs are calculated by comparing the world with
and without the law. In the case of Medicaid, if neither HCFA nor HHS do anything further
there is nothing to be subject to SBREFA.
HRD believes the definition will not trigger the major rule for the following reasons:
HCFA already issued guidance that recognized Medicaid as a means tested program.
HHS has not issued guidance for TANF but the financial consequences to states from this
program alone would not exceed $100 million annually.
For SSI and Food Stamps, the ban until citizenship elsewhere in the bill makes the means
tested provision incidental.
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF THE PRESIDENT SIATES AND R THE UNITED
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
October 14, 1997
F Means Tea
ADMINISTRATOR
OFFICE OF
INFORMATION AND
means Tested
REGULATORY AFFAIRS
MEMORANDUM FOR ERSKINE BOWLES
THROUGH: Franklin D. Raines FOR
Benefits
FROM:
Sally Katzen. R
SUBJECT: Heads-up on DOJ/INS Affidavit of Support Interim Final Rule
On July 2, 1997, we circulated a heads-up memo on an INS interim final rule requiring
sponsors of immigrants to file an affidavit of support that will enable Federal, State, and local
governments to recoup the costs of any "means-tested benefits" received by the immigrants. The
rule will be published (finally) in the Federal Register at the end of this week. I have attached a
copy of our July 2 heads-up memo to refresh your memory on the substance. Please give me a
call if you have any questions.
cc:
Maria Echaveste
Rahm Emanuel
John Hilley
Ann Lewis
Thurgood Marshall, Jr.
Sylvia Mathews
Bruce Reed
Elena Kagan
Victoria Radd
Barry Toiv
Michael Waldman
Kathy Wallman
Josh Gotbaum
Michael Deich
Larry Haas
E
PRESIDENT
EXECUTIVE OFFICE OF THE PRESIDENT
OF STATES THE UNITED
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
July 2, 1997
ADMINISTRATOR
OFFICE OF
INFORMATION AND
REGULATORY AFFAIRS
MEMORANDUM FOR ERSKINE BOWLES
THROUGH: Franklin D. Raines JXR
FROM:
Sally Katzem SK
SUBJECT: Heads-up on DOJ/INS Affidavit of Support Interim Final Rule
We have just completed review of an Immigration and Naturalization Service interim
final rule that implements part of the recently enacted Immigration reform law by requiring
sponsors of immigrants to file an affidavit of support that will enable Federal, State, and local
governments to recoup the costs of any "means-tested benefits" received by the immigrants. It
has taken an interagency group (including OMB, DOJ, and DPC) several months to work
through the issue of how to define "means-tested" at both the Federal and State levels. To
oversimplify the matter, the group decided to define "means-tested" for Federal purposes as
programs funded under mandatory spending rules (as distinct from discretionary programs). For
State benefit purposes (not including any Federal contribution), the group left it entirely up to the
States to define the term, so long as they notify the sponsors of their definition.
This rule will not go unnoticed by some on the Hill, but it appears to be the right result.
Please call me if you have any questions.
cc:
Maria Echaveste
Rahm Emanuel
John Hilley
Ann Lewis
Thurgood Marshall, Jr.
Sylvia Mathews
Bruce Reed
Victoria Radd
Barry Toiv
Michael Waldman
Kathy Wallman
Ken Apfel
Michael Deich
Larry Haas
07/23/97
15:28
002
Elena,
INS is currently undergoing a rulemaking to develop regulations to implement Affidavit of
Support requirements. As far as I am aware, this rulemaking is the first matter facing the
Administration since the Printz (Brady Law) decision that requires assessment of the case's effect
on ongoing federal regulatory programs. After prodding form DOJ, INS, as the attached memo
attests, is attempting to construe the underlying statute to avoid Printz concerns. Whether that
construction will avoid adverse Hill reaction (or a legal challenge) is another question.
Anyway, I thought you might want to be aware of the matter both because of the nature of the
specific rulemaking at issue and because of the implications that this matter may have for other
federal programs.
Thanks.
Dell
Diana - -
You've move up w then
issues than 1 am. Could
you look this wer and tell
me what you think? Note
especially my question m P.3- -
what should we Think of an
administratic intervetratic that makes
gives states + led apencies The choice
of whether to proceed benetits? a jainst a spentor
Pu reimburrement of Elena
cc:Pruce
07/23/97
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Memorandum
HQCOU 120/17.3 -C
Subject:
Date:
To: Seth Waxman, Acting Deputy Attorney
General and
Sally Katzen, Administrator Office
DRAFT the Commissioner
of Information and Regulatory Affairs, OMB
Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
the Immigration and Naturalization Service has been working closely with the Office of
Management and Budget, other components of the Department of Justice, and other Federal
Agencies to develop a new enforceable Affidavit of Support and a regulation to implement it.
The resolution of many difficult legal and policy issues needed to be coordinated among these
agencies, and by the end of June the new affidavit of support form and regulation were approved-
by OMB.
cleared
However, on June 27, 1997, the Supreme Court decided Printz V. United States, a landmark
decision invalidating the portions of the Brady Handgun Control Act which required State and
local law enforcement officials to conduct background checks on persons purchasing handguns.
In Printz the Court held that "[t]he Federal Government may neither issue directives requiring the
States to address particular problems, nor command the States' officers, or those of their political
subdivisions, to administer or enforce a federal regulatory program." This decision has required
a reassessment of the affidavit of support regulation because of the effect on States of provisions
relating to the definition of "means-tested public benefits" and the enforcement of the affidavit.
Based on our assessment of the Printz case and the relevant legal and policy issues, the INS has
determined that the approach outlined in this memorandum would be the best course for the INS
to follow in implementing the affidavit of support.
This memorandum sets forth INS policy preferences on three issues. First, how should the
affidavit of support address the definition of "Federal means-tested public benefit?" Second,
how should the affidavit of support address the definition of "State means-tested public
benefits?" Third, how should INS interpret the reimbursement provisions of section
213A(b)(1)(A) of the Immigration and Nationality Act in light of the Printz case? The
memorandum also requests advice from the Office of Legal Counsel on the constitutional
questions surrounding these determinations.
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In arriving at the decisions outlined in this memorandum, the INS has attempted to balance four
important considerations: 1) the need for a definition of "means-tested public benefit" that
reflects determinations by Federal and State agencies concerning which of their programs are
means-tested; 2) the need to provide aliens and sponsors with adequate notice of which benefits
will cause a sponsor to be liable for reimbursement if an alien receives them; 3) the need to
implement the affidavit of support in a way that respects States' rights and avoids creating
serious questions about the constitutionality of the affidavit of support statute and regulation; and
4) the need to implement an affidavit of support that is enforceable to the extent permitted by
law.
FEDERAL MEANS-TEST PUBLIC BENEFITS
The regulation will define a "Federal means-tested public benefit" as any public benefit funded
in whole or in part with Federal funds that is defined as a "means-tested public benefit" by the
Federal agency implementing the Federal funds. The regulation will also state that no benefit
described in sections 401(b), 411(b), 422(b), or 423(d) of Public Law 104-193 (Welfare Reform)
may be considered a "means-tested public benefit." These sections identify, respectively, which
benefits are exempt from the general prohibition on the receipt of benefits by non-qualified
aliens, which benefits are exempt from State deeming, and which benefits are not subject to
reimbursement under the affidavit of support. The regulation will make specific reference to
any definition of "Federal means-tested public benefit" published by a Federal agency at the time
the regulation is issued. The INS assumes that the Department of Health and Human Services
will publish such a definition in some form prior to or simultaneous with the publication of the
affidavit of support regulation The INS will also list in an attachment to the affidavit of support
(Form I-864) any Federal programs which have been identified by the benefit agencies as being
"Federal means-tested public benefits."
This policy both permits Federal benefit agencies to define which benefits are "means-tested
public benefits" and gives sponsors and aliens adequate notice of what kinds of programs will
give rise to a sponsor's obligation to reimburse a Federal agency. It also helps to ensure that the
affidavit of support will be fully enforceable with respect to Federal benefits.
STATE MEANS-TESTED PUBLIC BENEFITS
The regulation will define "State means-tested public benefit" as any public benefit for which no
Federal funds are provided that a State, State agency, or political subdivision of a State defines as
a "means-tested public benefit." The regulation will again state that no benefit described in
sections 401(b), 411(b), 422(b), or 423(d) of Public Law 104-193 may be considered a "means-
tested public benefit." The regulation will also contain language indicating that States should
publish notice of what benefits they consider to be "means-tested public benefits" as soon as
possible and preferably prior to the date that the law requires the affidavit of support to be filed
with immigrant visa and adjustment of status applications.
This policy maximizes State participation and autonomy in the process of determining which
benefits are "means-tested" and minimizes the chance that the regulation will be challenged as an
unconstitutional requirement that States take action to implement a federal program. It also
2
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encourages States to provide sponsors and aliens with proper notice and allows States to fully
enforce the reimbursement provisions of the new law.
THE REIMBURSEMENT PROVSIONS AND THE PRINTZ CASE
In light of the Printz case, a potential constitutional conflict arises because of the language in
section 213A(b)(1)(A), which reads:
[u]pon notification that a sponsored alien has received any means-tested public
benefit, the appropriate nongovernmental entity which provided such benefit or
the appropriate entity of the Federal Government, a State, or any political
subdivision of a State shall request reimbursement by the sponsor in an amount
which is equal to the unreimbursed costs such benefit (Emphasis added.)
If read literally and in isolation, this subparagraph appears to require Federal agencies, State
agencies, and nongovernmental entities to request reimbursement for all means-tested public
benefits given to aliens who have sponsors that signed an affidavit of support Read in this way,
section 213A(b)(1)(A) could well be held unconstitutional under the holding in Print. because it
commands State officials to take specific action in what could be considered the control of
immigration, a Federal program.
Operating under the general principle that statutes should be construed to avoid serious
constitutional problems, the INS would prefer to interpret section 213A(b)(1)(A) as requiring
only that reimbursement be requested as a precondition to an agency bringing legal action against
the sponsor under section 213A(b)(2). Section 213A(b)(1)(A) would thus be read not to create a
requirement that Federal, State and nongovernmental entities request reimbursement in all cases
)
where an alien receives a means-tested public benefit.
This interpretation makes the statute far less vulnerable to constitutional challenge than a literal
reading of the statute, which would view it as creating an obligation that States request
reimbursement in all cases. States are unlikely to challenge an interpretation of the statute that
gives them the power to determine whether or not to request reimbursement, and they would be
action
unlikely to win any such challenge. This reading increases State authority and makes
affidavit more enforceable because its enforcement will be less vulnerable to challenge in the
courts.
EFFORTS TO ENSURE STATE ENFORCEMENT
ti the se reim for OK? t mentes and
Because the above policies are designed to maximize State authority and to avoid potentially
serious constitutional challenges to the affidavit of support regulation, they do not require States
to provide public notice of a definition of "State means-tested public benefits" nor to request
reimbursement in all cases. To help guarantee full enforcement of the affidavit of support and
ensure that sponsors receive adequate notice, the INS will undertake an aggressive public
education campaign to inform States of their responsibilities and mobilize them to publish notice
of benefits considered to be "means-tested" and aggressively enforce the affidavits of support.
3
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202 sys 5974 r.00700
REQUEST FOR LEGAL ADVICE
The INS requests that the Office of the Legal Counsel advise the INS in writing regarding the
following questions: 1) do the policies outlined in this memorandum raise any significant
constitutional concerns? 2) would a policy interpreting INA section 213A(b)(1)(A) as requiring
State, Federal and nongovernmental agencies to request reimbursement in all cases in which they
are informed that an alien has received a means-tested public benefit raise significant
constitutional concerns? 3) would a policy of making enforcement of the affidavit of support
contingent on a State having issued public notice prior the to date an affidavit is filed raise
significant constitutional concerns?
I look forward to further discussion with you.
DRAFT
Doris Meissner
Commissioner
4
TOTOI = DC