Saturday, May 15, 2021
Immigration Article of the Day: Protecting Mixed-Status Families: Equal Protection Analysis of the Social Security Number Requirement by Nena Gallegos
In response to COVID-19, Congress enacted the CARES Act, which provided stimulus payments of $1,200 to individual taxpayers ($2,400 for individuals filing a joint return) plus $500 for each qualifying child of the taxpayer. However, 26 U.S.C. § 6428(g)(1)(B) limited this payment to individuals who have a Social Security number (“SSN”) and, in the case of a joint return, both spouses must have an SSN. Although the CARES Act was not the first federal economic benefit legislation to include this requirement, it was the first to face equal protection challenges from mixed-status family members. After the judges in two CARES Act cases denied the Government’s motion to dismiss, Congress retroactively amended the CARES Act to remove the requirement. Congress did not explain its reasoning for this retroactive change. By changing the law, Congress may have mooted the two CARES Act suits, but specifically left the equal protection issue open. This Comment evaluates the operation of this SSN requirement and suggests that it is likely unconstitutional in any federal legislation that provides significant economic benefits.