City of New York, et al. v. United States, et al: 2d Circuit Rejects Challenge to Provisions Barring States from Prohibiting Communication with INS; Justice Dept. Affirms Census Confidentiality

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City of New York, et al. v. United States, et al: Second Circuit rejects challenge to provisions barring states from prohibiting communication with INS; Justice Dept. affirms census confidentiality
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999

The Second Circuit Court of Appeals has rejected New York City’s challenge to section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (8 USC § 1644) and section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (8 USC § 1373(a)). The court’s action leaves in place those statutory provisions that bar federal, state, and local governmental entities from prohibiting voluntary disclosure to the Immigration and Naturalization Service of information about immigration status ("communications provisions"). In a separate but related action, the U.S. Dept. of Justice’s Office of Legal Counsel (OLC) has released a legal memorandum interpreting these same provisions in a manner that affirms longstanding census confidentiality protections.

Under the Tenth Amendment to the U.S. Constitution, the federal government’s ability to require states to administer federal programs is limited. Printz v. United States, 117 S. Ct. 2365 (1977). As the Second Circuit opinion notes, Congress "may not directly shift to the states enforcement and administrative responsibilities allocated to the federal government by the Constitution." New York City had contended that the IIRIRA and PRWORA provisions at issue amounted to such a requirement and were therefore facially unconstitutional. Specifically, New York City argued that the communications provisions unduly interfere with its Executive Order No. 124, which prohibits city employees from disclosing information about immigration status to the INS.

In rejecting the argument, the Second Circuit distinguished between federal provisions that directly require state agencies or employees to participate in federal regulatory programs and those, such as the communications provisions of the IIRIRA and the PRWORA, that merely prevent states from restricting voluntary cooperation with federal regulations. The court expressed concern that if Congress cannot preclude states from outlawing voluntary cooperation with federal programs by state or local officials, then states will be able to "turn the Tenth Amendment’s shield . . . into a sword allowing states and localities to engage in passive resistance that frustrates federal programs."

The court had more sympathy for one of the appellants’ alternative arguments that the communications provisions of the IIRIRA and the PRWORA interfere with New York City’s inherent Tenth Amendment power to determine the duties and responsibilities of its own employees. The appellants argued, and the court acknowledged, that a wide variety of state and local governmental functions may be frustrated unless government entities may preserve "some expectation of privacy." Therefore, state and local governments retain a right to regulate the use of confidential information obtained in the course of governmental business by their employees.

But the appeals court held that the appellants had failed to establish, to the degree necessary in a facial challenge to a federal statute, that the IIRIRA and PWRORA communications provisions impermissibly intrude on the power to control information or direct employees. The opinion suggests that the outcome may have been different if New York’s executive order were not limited to disclosure of immigration status to the INS. If it were, instead, a general policy limiting disclosure of confidential information, including immigration status, it might have been viewed "as an explanatory measure designed to reassure aliens that information they might impart was truly confidential, even from the INS." In that case, the executive order may have been considered "more integral to the operation of City government, and Sections 4343 and 642 might seem more intrusive."

It is important to bear in mind that despite the Second Circuit’s ruling, New York’s Executive Order No. 124 has not been invalidated. New York’s action was a facial challenge to the communications provisions of the IIRIRA and the PRWORA, and the city therefore bore the burden of proving that no set of circumstances exists under which those provisions would pass constitutional muster. The opinion leaves open the possibility that New York City or others could prevail in a nonfacial review of the same provisions—e.g., in the context of a future challenge to the executive order or other confidentiality policies.

The OLC legal memorandum was necessitated by numerous reports from the field that immigrants may be deterred from participating in the 2000 census for fear that information provided will be shared with the INS. The memo clarifies that section 642 of the IIRIRA does not repeal the strong and longstanding census confidentiality protections contained in 13 USC section 9(a).

In fact, the memo interprets section 642 as not repealing any federal prohibitions or restrictions that are imposed by federal statute. Section 642 limits state and local authority to impose confidentiality restrictions, but it only applies to federal agencies or officials to the extent that Congress has not authorized such restrictions.

This reasoning is significant because it may be applied beyond the census context to affirm the continued viability of other congressionally enacted confidentiality and privacy restrictions, including those written into the Medicaid statute, the Federal Food Stamps Act, and many other statutes.

Individuals interested in obtaining a copy of the OLC memo may do so by contacting NILC’s Los Angeles office at 213-639-3900.

City of New York, et al. v. United States, et al., __ F3d __,1999 WL 357395 (2d Cir. May 27, 1999).