Sara Rosenbaum
February 2025
On February 19th, President Trump issued an Executive Order (EO) “Ending Taxpayer Subsidization of Open Borders.” The EO was accompanied by a factsheet providing further detail. Executive Orders (EOs) are broad statements of policy and do not, by themselves, have the force and effect of law. As a result, this EO, like others issued by the White House since January 20th, should be viewed as a wide-ranging roadmap to future action by executive agencies, not as binding policy. At the same time, it is clear that the administration already has begun to implement its EOs as if they already have been enacted by Congress or codified in formally issued rules, even in cases where the EOs are at apparent odds with judicial rulings.
Turning EOs into formal rules is not necessarily the end, either. Under enduring principles of administrative law reflected in a long line of federal court decisions, regulations that run afoul of the laws they are meant to implement are unlawful. So are regulations that rest on regulators’ arbitrary preferences and lack evidence or reasoned decision making. In other words, regulations must accurately reflect the laws they implement and must be based in evidence, reason, and fact. Nonetheless, EOs point to things to come.
A brief overview of current laws affecting immigrants’ eligibility for federally funded programs and services
The principal law governing immigrants’ eligibility for various types of federal assistance is the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), one of whose central purposes was to clarify the relationship between non-U.S. citizens and federal programs and services benefits. PRWORA imposes certain restrictions on receipt of federal public benefits by immigrants while also giving states the ability to determine noncitizen eligibility for state and locally funded services.
Qualified and nonqualified aliens. Under the law, noncitizens are divided into “qualified aliens” and “nonqualified aliens.” Qualified aliens are principally lawful permanent residents (green card holders), asylees, refugees, and immigrants “paroled” (i.e. allowed to lawfully, even if temporarily, enter) the U.S. These groups can receive federal public benefits, although unless specifically exempted, they must wait 5 years to qualify for “means-tested” assistance such as Medicaid, SNAP, SSI, and TANF. Nonqualified aliens such as holders of Temporary Protected Status (TPS), recipients of Deferred Action for Childhood Arrivals (DACA), and nonimmigrants (e.g., people on temporary visas) generally are ineligible for federal public benefits. (TPS entrants can qualify for Marketplace coverage, as can DACA recipients in most states)
Federal public benefits. PRWORA defines a federal public benefit as assistance for which an individual eligibility determination is made. Importantly, however, an exception is made for certain federal public benefits including emergency Medicaid, short-term, non-cash, or in-kind emergency disaster relief. Emergency Medicaid coverage is specified in the federal Medicaid statute, and current HHS policy gives states flexibility to define the scope of what constitutes emergency care and definitions vary widely.
Community benefits. PRWORA also clarifies that certain services are not considered federal public benefits. This exemption category includes a long list of federally assisted health and social services furnished at the community level including community health centers, Ryan White Care Act clinics, and other health, social services, and educational programs that serve a community and are not conditioned on individual eligibility determinations. These programs are considered exempt, and providers are exempt from immigration status checks. This exemption is codified in federal law pursuant to a formal Justice Department ruling issued in 2001. Unlike a program such as Medicaid, use of a community health center is not tied to income (modest patient copayments for care in some cases do not equate with an eligibility determination, since no individual can be denied care because of an inability to pay).
The EO
The EO raises many concerns:
The EO states that “the . . . Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193) (PRWORA), generally prohibits illegal aliens from obtaining most taxpayer-funded benefits.” But PRWORA does not use the term “illegal aliens” and the EO does not define it. Furthermore, the factsheet accompanying the EO implies that immigrants paroled into the U.S. are “illegal” when of course they are not. PRWORA speaks about qualified and nonqualified aliens, not legal and illegal people. While PRWORA states that a purpose of the law was to deter “illegal immigration,” the term illegal alien simply does not exist as a statutory classification. Furthermore, even “nonqualified aliens” are entitled to certain benefits (including, as noted, community-wide services such as community health centers).
The EO goes on to state that “. . . to ensure, to the maximum extent permitted by law, that no taxpayer-funded benefits go to unqualified aliens [not a term found in the law]” federal agencies are directed to:
“identify all federally funded programs administered by the agency that currently permit illegal aliens [undefined] to obtain any cash or non-cash public benefit. (not clear if a “public benefit” is to be equated with a “federal public benefit);
“ensure, consistent with applicable law, that Federal payments to States and localities do not, by design or effect, facilitate the subsidization or promotion of illegal immigration, or abet so-called “sanctuary” policies that seek to shield illegal aliens from deportation,” and;
“enhance eligibility verification systems, to the maximum extent possible, to ensure that taxpayer-funded benefits [a term not defined] exclude any ineligible alien who entered the United States illegally or is otherwise unlawfully present in the United States.”
Finally, the EO directs OMB and DOGE to “identify all other sources of Federal funding for illegal aliens; and recommend additional agency actions to align Federal spending with the purposes of this order.”
Implications
Because the EO’s basic terminology (e.g., “illegal aliens” “taxpayer funded benefits” is so vague and nonaligned with existing statutes and rules, it is impossible to know how broadly federal agencies will sweep. Essentially the EO demands that agencies sweep broadly to root out “illegal aliens” from “taxpayer subsidized” programs. None of these concepts has any basis in law.
Medicaid likely would be a target, not only with respect to emergency coverage for nonqualified aliens (as PRWORA provides) but also to the extent that the administration seeks to reclassify certain groups of qualified aliens (e.g., refugees, asylees, paroled immigrants) as illegal aliens. Without a change in PRWORA or other federal statutes addressing noncitizen eligibility for services such as Medicaid, such a move would violate federal law. Similarly, an HHS move to impose a narrow definition of “emergency care” for purposes of emergency Medicaid coverage for nonqualified aliens and qualified aliens still within the five-year waiting period would need to go through rulemaking and would fail if judged to be either unsupported by law or arbitrary and capricious.
Other federal public benefits similarly will be closely scrutinized, from food and nutrition to other forms of individual assistance, where agencies may attempt to define categories of qualified aliens, or even nonqualified aliens, as somehow “illegal.”
Furthermore, the administration may seek to revisit current policy regarding community benefits and significantly narrow their scope. At this point, DOJ, which by law has the power to set such policy, could take a second look at public health programs, community health centers, Ryan White Care Act clinics, homeless health programs, and indeed, the full list of current programs considered community benefits.
Finally, one should assume that the administration could attempt to exclude from federal Medicaid and other funding those states that use their own funds to support immigrants otherwise excluded from federal assistance. Particular focus will be placed on states with sanctuary laws.
Under the EO, agencies are required to report back within 30 days, so we should know more soon.