PRWORA and the CARES Act: What’s the Prospective Power of a “Notwithstanding” Clause?

PRWORA and the CARES Act: What’s the Prospective Power of a “Notwithstanding” Clause?

Legal Sidebari

PRWORA and the CARES Act: What’s the
Prospective Power of a “Notwithstanding”
Clause?
July 27, 2020
Which categories of non-U.S. nationals (aliens) are eligible for the student financial aid, unemployment
compensation, and other benefits authorized by the Coronavirus Aid, Relief, and Economic Security
(CARES) Act? Particularly in the case of student financial aid, the question has produced debate and
controversy. The CARES Act itself is mostly silent about alien eligibility. The legal debate centers upon a
provision from the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of
1996, which renders many aliens ineligible for federal public benefits. PRWORA says that its restriction
applies “notwithstanding any other provision of law.” What power does that phrase have to limit
eligibility for the benefits created 24 years later in the CARES Act?
CARES Act Background
The list of federally funded benefits that the CARES Act created in response to the Coronavirus Disease
2019 (COVID-19) pandemic is long. Major examples include the one-time recovery rebate (providing a
maximum payment of $1,200 for individuals or $2,400 for married couples, with a $500 supplement per
qualifying child); the Paycheck Protection Program; federally funded unemployment benefits such as
Federal Pandemic Unemployment Compensation (FPUC), which boosts weekly compensation by $600,
and Pandemic Unemployment Assistance (PUA), which provides benefits to self-employed individuals
and others not eligible for other types of unemployment compensation; and emergency financial aid for
higher education students through the Higher Education Emergency Relief Fund (HEERF).
For the recovery rebates, Congress expressly denied eligibility to “nonresident aliens” and people without
social security numbers. (There is ongoing litigation about the constitutionality of a sub-provision that
bars some mixed-status couples from receiving the rebates.) For the other benefit types, however,
Congress did not explicitly address the eligibility of aliens in the CARES Act itself. Some of the benefit
provisions restrict eligibility or use of funds according to other criteria. People able to telework cannot
receive PUA, for example, and universities cannot use HEERF funds for certain “capital outlays.” But
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aside from the recovery rebate provisions, nothing in the CARES Act directly restricts eligibility for a
benefit by immigration status.
PRWORA
PRWORA complicates matters. Enacted in 1996, the law sought in relevant part to impose uniform
restrictions on alien access to a broad array of federal benefits. The key provision is codified at 8 U.S.C.
§ 1611(a) and states that “notwithstanding any other provision of law . . . an alien who is not a ‘qualified
alien’ . . . is not eligible for any Federal public benefit.” (PRWORA has many other features not relevant
here, including special eligibility rules for major federal programs such as Medicaid and default
restrictions on state and local benefits.) The term “qualified alien” is defined to include only eight
categories of aliens—lawful permanent residents, refugees, asylees, and some other groups. “Federal
public benefit” is defined expansively to cover a range of benefits that are federally funded or provided by
federal agencies, including grants, loans, postsecondary education benefits, and unemployment benefits,
to name only the most relevant types for CARES Act purposes. (The definition does not explicitly
encompass tax credits, which seems to explain why the IRS has never taken the position that § 1611
restricts eligibility for tax credits, including CARES Act recovery rebates.)
The upshot of § 1611 is to bar non-qualified aliens, including recipients of Deferred Action for Childhood
Arrivals (DACA) and holders of Temporary Protected Status (TPS), from receiving federal public
benefits. This bar has some exceptions spelled out in PRWORA and elsewhere. Non-qualified aliens may
receive emergency medical treatment funded by Medicaid and non-cash emergency disaster relief, for
example. But the exceptions generally do not enable non-qualified aliens to receive federal public benefits
in the form of cash, other than under some specialized rules for retirement, disability, and railroad worker
benefits.
Interpretive Difficulty: Retrospective Application of PRWORA
The proper reach of PRWORA’s “notwithstanding” clause in the qualified alien provision of § 1611 has
long generated confusion. Until recently, that confusion was mainly about the retrospective application of
the “notwithstanding” clause—in other words, about its application to conflicting eligibility rules in pre-
existing statutes. Before PRWORA, a plethora of more specific federal statutes established alien
eligibility rules for particular types of federal benefits. PRWORA imposed the overarching “qualified
alien” restriction but did not expressly repeal the more specific, pre-existing eligibility rules.
For example, the Federal Unemployment Tax Act (FUTA) governs most forms of unemployment
insurance. Since 1977, FUTA has contained immigration-related provisions that generally render aliens
ineligible only if they lack authorization to work in the United States. Many non-qualified aliens,
including DACA recipients and TPS holders, may possess work authorization. PRWORA did not
expressly repeal the FUTA provisions, but it did list “unemployment benefits” in its definition of “federal
public benefits” (making non-qualified aliens ineligible for such benefits under § 1611(a) when they are
federally funded or provided by federal agencies.) Does the “notwithstanding” clause in § 1611 override
FUTA and render non-qualified aliens with work authorization ineligible for federally funded
unemployment insurance? Or does FUTA, as the more specific statute, continue to govern the eligibility
of aliens for the unemployment insurance programs that it authorizes? The Department of Labor (DOL)
stated in 1998 that PRWORA governed the federally funded benefits, but since then it does not appear to
have taken up the issue. In practice, state labor agencies do not seem to apply the PRWORA rules when
delivering federally funded benefits during periods of high unemployment.
Similar confusion exists about whether PRWORA overrides pre-existing eligibility rules in the Higher
Education Act (HEA) and the Housing and Community Development Act. The U.S. Court of Appeals for

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the Ninth Circuit, for instance, has left open the question whether PRWORA displaces alien eligibility
rules for federal student aid programs in § 484 of the HEA. The uncertain interplay between alien
eligibility rules for specified housing programs in Section 214 of the Housing and Community
Development Act has led to calls for clarification on Capitol Hill.
New Interpretive Difficulty: Prospective Application of PRWORA to the
CARES Act
After Congress enacted the CARES Act, this confusion shifted to the prospective application of the
“notwithstanding” clause—in other words, its application to new benefit laws. Some commentators
expressed doubts about whether PRWORA barred non-qualified aliens from receiving FPUC and PUA
(two of the new unemployment benefits). And some universities questioned whether PRWORA barred
them from using HEERF funds to provide emergency financial aid grants to students who are DACA
recipients. This latter issue came to the fore when the Department of Education (ED) took the position in
guidance—first issued in April, and since reiterated in May and in a June 2020 interim final rule—that
DACA recipients and some other categories of aliens are not eligible for the grants. Two lawsuits have
ensued. Federal district courts have thus far reached conflicting decisions in these cases about whether
PRWORA restricts the funds. A court in California held in a preliminary ruling that PRWORA likely does
not apply to HEERF and blocked ED from taking action inconsistent with that ruling against California
community colleges while the case continues. In contrast, a court in Washington State held at summary
judgment (a more advanced stage of the litigation) that PRWORA restricts the HEERF grants. These
cases remain ongoing. (ED also argues in the guidance and the lawsuits that the immigration-related
restrictions in § 484 of the HEA apply to the HEERF grants, even though the HEERF program does not
fall under the HEA. Both courts rejected the HEA argument in preliminary rulings, leaving the PRWORA
issue to take on heightened importance.)
The salient issue in the cases, at least with respect to PRWORA, is whether the CARES Act overrides
PRWORA by implication or otherwise overcomes its restrictions. Some (but not all) jurists might agree
that the HEERF grants to students constitute “federal public benefits” within the plain language of the
PRWORA definition. The definition encompasses federally funded “grants” and also federally funded
“postsecondary education” benefits. As the Department of Justice has explained, the definition
encompasses these types of federally funded benefits even when a non-federal entity, using monies
received from the federal government, delivers the benefits to individuals. But the conclusion that HEERF
grants are “federal public benefits,” even if correct, does not settle the question of whether PRWORA
restricts eligibility for the grants. Congress can override PRWORA’s application to a particular benefit in
new legislation and has done so in the past. While the CARES Act does not address PRWORA or alien
eligibility expressly, it allocates HEERF funds to institutions based on their enrollment of full-time
students, without excluding any students from the calculation based on immigration status. The CARES
Act also places some restrictions on how institutions may use the funds, but does not specify any
immigration-related restrictions.
Do these CARES Act provisions establish that Congress did not intend PRWORA to restrict the HEERF
grants? Courts generally disfavor interpreting statutes to repeal earlier statutes by implication, unless “the
earlier and later statutes are irreconcilable.” Thus, a central question for the courts in these cases is
whether the HEERF provisions in the CARES Act can co-exist with PRWORA—whether, for example,
the allocation of funds to an institution based on the enrollment of some non-qualified alien students is
“irreconcilable” with a prohibition on such students receiving grants paid out from the funds.
Alternatively, leaving aside the question of an implied repeal, one might argue that PRWORA’s
“notwithstanding” clause simply has limited power to constrain later statutes, especially when the later
statute is more specific than PRWORA and pursues an objective much different than PRWORA’s. Under

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this view, the CARES Act need not repeal PRWORA to make HEERF grants available to non-qualified
aliens, because the CARES Act responds to an “unprecedented national emergency” (to use the words of
the California court) and does not fall within the range of laws that Congress intended to be governed by
PRWORA’s notwithstanding clause. This argument relies on Ninth Circuit precedent for the proposition
that “the phrase ‘notwithstanding any other law’ is not always construed literally.”
The district courts are breaking new ground on these questions. There is little existing authority on
PRWORA’s prospective application to new federal programs or, more specifically, on what kind of
language or legislative context suffices to render the “qualified alien” rule inapplicable absent express
repeal. The California court reasoned in its preliminary ruling that the HEERF grants are not “federal
public benefits” and also that language in the CARES Act, particularly the funding allocation formula,
indicates that Congress did not intend to disqualify students based on immigration status. This CARES
Act language “take[s] priority” over PRWORA, the court concluded. The Washington court, in contrast,
held that the HEERF grants are federal public benefits and that the CARES Act does not demonstrate a
sufficiently clear congressional intent to override PRWORA, meaning that the qualified alien restriction
applies to the grants.
Litigation does not appear to have arisen over PRWORA’s applicability to other CARES Act benefits, but
more potential issues lurk. The labor agency in the Commonwealth for the Northern Mariana Islands has
taken the position that PRWORA bars non-qualified aliens from receiving PUA and FPUC. Thus far, this
position appears to be an outlier; there is no indication that other U.S. jurisdictions have followed suit.
With respect to business loans funded by the Paycheck Protection Program, the Small Business
Administration (SBA) has not said whether PRWORA applies, yet SBA guidance imposes a “qualified
alien” requirement on federally funded disaster loans for alien-owned business entities. Even if these
mostly dormant PRWORA issues do not flare up before CARES Act benefits lapse, they could re-emerge
under any new stimulus legislation that Congress might enact during the pandemic.
Considerations for Congress
For Congress, probably the most important thing to know about the legal principles that address whether
PRWORA’s “notwithstanding” clause governs new benefit types, such as those in the CARES Act, is that
the principles do not deliver clear answers. It is possible that the HEERF litigation will clarify the
principles. In the meantime, if Congress wants to know with certainty whether PRWORA will govern
alien eligibility for new benefits at the time of enactment, it could (1) address PRWORA expressly in the
new legislation; (2) establish clear rules for alien eligibility in the new legislation that conflict
irreconcilably with PRWORA; or (3) both. An example of the third, combined approach is the Children’s
Health Insurance Program Reauthorization Act of 2009, which expressly overrides PRWORA to allow
states to provide Medicaid coverage to some pregnant women and children who are “lawfully residing” in
the United States (even if they are not “qualified aliens”). An example of the second, implied approach is
the Affordable Care Act of 2010, which does not override PRWORA expressly but does extend eligibility
to “lawfully present” aliens, a more expansive category than “qualified aliens” under PRWORA. If
Congress takes neither approach and instead remains silent about alien eligibility when creating new
benefits, agencies and courts will likely hash out whether PRWORA applies. The outcome of this process
is difficult to predict and may not align with congressional intent.

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Author Information

Ben Harrington

Legislative Attorney

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