On December 16, 2025, Assistant Attorney General T. Elliot Gaiser, the head of the Justice Department’s Office of Legal Counsel, signed an opinion that closes a welfare loophole nearly three decades in the making. The opinion withdraws a 1997 OLC opinion, 21 Op. O.L.C. 21, that had let the Department of Health and Human Services and the Department of Housing and Urban Development read the Personal Responsibility and Work Opportunity Reconciliation Act’s ban on federal welfare for aliens as reaching only mandatory spending programs like Medicaid, not the far larger universe of discretionary programs. Congress meant to shut off both. For twenty-eight years, one administration’s legal opinion prevented that from happening. It took the collapse of a doctrine called Chevron deference to fix it.
A Statute Congress Meant to Have Teeth
On August 22, 1996, President Bill Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193 — the welfare-reform law that replaced Aid to Families with Dependent Children with Temporary Assistance for Needy Families. Title IV did more than reshape domestic welfare policy. Congress declared it “a compelling governmental interest” to “remove the incentive for illegal immigration provided by the availability of public benefits,” 8 U.S.C. § 1601(6), and backed the declaration with substance: qualified aliens were barred from any “Federal means-tested public benefit” for their first five years of lawful status, 8 U.S.C. § 1613(a), and any citizen who sponsored an alien’s entry had that sponsor’s income and resources counted as the alien’s own for eligibility purposes, 8 U.S.C. § 1631(a). If the sponsor could support the alien, the alien did not qualify for taxpayer-funded benefits. That was the design.
The 1997 Opinion That Gutted It
The design did not survive contact with Clinton’s own executive branch. Five months after PRWORA’s enactment, HHS and HUD asked the Clinton Office of Legal Counsel whether the statute’s bar reached discretionary spending programs — the broad category of federal benefits, beyond Social Security and Medicaid, whose funding Congress sets annually — or only mandatory ones. The 1997 opinion found the operative phrase, “Federal means-tested public benefit,” ambiguous enough to defer to the agencies’ preferred reading under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which instructed courts and executive-branch lawyers alike to accept an agency’s reasonable interpretation of an ambiguous statute rather than search for the single best one. The agencies wanted discretionary programs excluded. OLC agreed that reading was reasonable. A statute written to cut illegal aliens off from taxpayer-funded benefits was construed to leave the larger share of those benefits untouched, and it stayed that way through four subsequent administrations.
Loper Bright Changes the Math
The legal foundation under that 1997 opinion collapsed on June 28, 2024, when the Supreme Court decided Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Chief Justice Roberts’s majority opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Amy Coney Barrett, overruled Chevron outright and held that courts must exercise independent judgment to identify a statute’s best reading rather than defer to any merely permissible agency interpretation. Justice Kagan dissented, joined by Justice Sotomayor. On September 15, 2025, HHS Deputy General Counsel Emily Claire Mimnaugh sent OLC a memo, addressed to Deputy Assistant Attorney General Josh Craddock, asking the office to reconsider the 1997 opinion in light of Loper Bright. HUD concurred in the request. Three months later, Gaiser answered it.
What the New Opinion Holds
Applying Loper Bright’s independent-judgment standard rather than Chevron’s tie-goes-to-the-agency rule, Gaiser’s opinion concludes that the best reading of “Federal means-tested public benefit” covers mandatory and discretionary programs alike — there is no textual basis for the line the 1997 opinion drew. The opinion also forecloses any claim that agencies may keep relying on the old reading going forward:
“American taxpayers have interests, too, in ensuring that their tax contributions do not encourage illegal entry into the United States. … Americans are entitled to rely on duly enacted legislation crafted by their elected representatives and designed to protect the public fisc from abuse. While reliance interests may be relevant in evaluating past expenditures and may preclude attempts to divest aliens of benefits received under our prior interpretation, there can be no prospective reliance on a continued misinterpretation of federal law.”
— T. Elliot Gaiser, Assistant Attorney General, Office of Legal Counsel
Reliance interests, in other words, can protect what has already been paid out. They cannot protect what an agency proposes to keep paying under a reading OLC now says was wrong from the moment it issued.
Why a Welfare Opinion Matters to Me
I have spent most of my career litigating and writing about the Second Amendment, and I make no apology for saying this opinion matters to that project as much as any circuit ruling does. Immigration control is, in my estimation, more important to the survival of the right to keep and bear arms than anything the Supreme Court will do with the Second Amendment itself, because constitutional rights are not self-executing. They depend on a citizenry, and an electorate, that still believes in them. A welfare system that subsidizes settlement by people with no stake in the American constitutional order, funded by American taxpayers, works against every right in that Constitution, arms included. Congress tried to cut that off in 1996. It took Loper Bright, a request memo, and Gaiser’s opinion twenty-eight years later to make Congress’s own words mean what they say.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.