Opinions

Federal housing assistance programs under section 214 of the Housing and Community Development Act of 1980 provide “Federal means-tested public benefits” within the meaning of the Professional Responsibility and Work Opportunity Reconciliation Act of 1996.

Alien applicants for federal housing benefits administered under section 214 must satisfy both PRWORA’s and section 214’s eligibility requirements. Section 214’s detailed verification scheme remains effective for all benefits administered under that section.

In 2009, relying on Chevron, this Office concluded that 28 U.S.C. § 2265(a)(1) permits the Attorney General to condition the availability of expedited habeas proceedings on a state’s application of federal standards of competency for state postconviction counsel, including federal standards for adequate compensation. Having been asked to reconsider in view of the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, we now conclude that this is not the best reading of section 2265(a)(1).

Section 1715 of title 18, U.S. Code, is unconstitutional as applied to constitutionally protected firearms, including handguns, because it serves an illegitimate purpose and is inconsistent with the Nation’s tradition of firearm regulation.  See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129–30 (2022).

The Department of Justice may not, consistent with the Constitution, enforce section 1715 with respect to constitutionally protected firearms.  The Postal Service should modify its regulations to conform with this opinion.

The Department of Veterans Affairs may not provide abortion services under any provision of chapter 17 of title 38 of the U.S. Code.

The portions of our opinion in Intergovernmental Immunity for the Department of Veterans Affairs and Its Employees When Providing Certain Abortion Services, 46 Op. O.L.C. __ (Sept. 21, 2022), that held to the contrary are withdrawn and superseded by this opinion.

This Office concluded in 1997 that the phrase “Federal means-tested public benefit,” as used in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, could permissibly be read to include only benefits administered under mandatory (but not discretionary) federal spending programs. We therefore deferred to two agencies’ interpretation under the Chevron framework. Having been asked to reconsider in view of Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), we now conclude that the best reading of “Federal means-tested public benefit” is its plain meaning and withdraw our earlier opinion.

A “Federal means-tested public benefit” is any federal public benefit for 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 the income, resources, or financial need of the individual, household, or unit—regardless of the funding sources for that federal public benefit.

Certain race-based grant programs administered by the Department of Education violate the Fifth Amendment’s equal-protection component.

The refundable portions of refundable tax credits, as a class, are benefits to taxpayers within the meaning of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as codified in relevant part at 8 U.S.C. § 1611.

The refundable portions of the Earned Income Tax Credit, the Additional Child Tax Credit, the American Opportunity Tax Credit, the Premium Tax Credit, and the Saver’s Match Credit are “Federal public benefits” under 8 U.S.C. § 1611(c) and hence are not available to non-qualified aliens under 8 U.S.C. § 1611(a). 

Congress has authorized the Consumer Financial Protection Bureau to draw funds from the “combined earnings of the Federal Reserve System,” 12 U.S.C. § 5497(a)(1), and required the CFPB to report to Congress and the President if it determines that insufficient funds are available, id. § 5497(e)(1). In this context, “earnings” are profits. Because the Director of the CFPB has determined that the Federal Reserve System has no available profits from which to draw, the proper recourse is for the Director to report to Congress and the President—not to draw funds from the Federal Reserve without a congressional appropriation.

The Department of War may detail attorneys to serve as immigration judges on a reimbursable basis. The Department may also detail attorneys to serve as Special Assistant United States Attorneys on a non-reimbursable basis so long as a purpose of the detail is to provide training.

The Posse Comitatus Act does not preclude the use of military attorneys as immigration judges or Special Assistant United States Attorneys provided the details occur on a full-time basis and the detailees operate fully under civilian control and supervision.

Administrative judges of the Merit Systems Protection Board adjudicating removal-related appeals brought by certain federal employees must resolve the constitutional arguments raised by the Executive Branch.