|7/17/2014 10:25:00 AM|
Eye on Augusta: MMA Files Suit Over LePage's Ban on GA for Undocumented Immigrants
by Andy OBrienLast week Maine Municipal Association filed a "petition for review" in Cumberland County Superior Court to clarify confusion resulting from Gov. LePage's mandate to municipalities to deny general assistance to undocumented immigrants. The MMA, which represents 487 towns and cities in the state, questions whether the governor's order is legally binding. The organization also cited an opinion by Attorney General Janet Mills, a Democrat, which questioned the legality of the governor's order. The City of Portland and City of Westbrook joined MMA as co-plaintiffs in the suit.
Local Officials Turn Into Immigration Officials
As the oldest, whitest state in the country and with less than 3.6 percent of the population of foreign origin, Maine is not known as a popular destination for foreign immigrants. But for Gov. Paul LePage, adding undocumented immigrants to his anti-welfare agenda presents a tantalizing piece of red meat for his voting base in the heat of a tough reelection campaign.
"Illegal aliens who choose to live in Maine are not our most vulnerable citizens," said the governor in a recent weekly address. "We need to take care of Mainers first. I think most Mainers would agree."
In a letter to municipalities dated June 20, Gov. LePage announced that he would withhold reimbursements for general assistance to towns and cities that fail to comply with his new order barring those who are unlawfully in the US from receiving the emergency support. GA is a municipally administered welfare program for individuals with immediate needs including food, clothing and shelter. Individuals banned from receiving GA under the new rule may include asylum seekers waiting for their applications to be processed, foreign nationals with expired visa or those who have entered the country illegally. Under current Maine statute, GA is provided to individuals who demonstrate financial need, but citizenship or legal residency does not disqualify them. Depending on the size of the town, the state reimburses municipalities from 50 to 90 percent for municipal GA programs.
Under LePage's edict, GA administrators must ask if an applicant is a citizen and if they are not, then they must answer if they are in the country legally. If they say "no," then they will be denied GA assistance. Since GA applicants must first apply for state welfare programs before going to their town for GA, the Department of Health and Human Services generally has their legal status on file, which is verified through a federal database. In 2011, the governor barred newly arrived non-citizens from receiving state welfare benefits, making them only eligible for GA. It's unknown how many local foreign nationals would be impacted by the rule change, but some estimates have put the number at 1,000.
A Conflict Between State and Federal Law
The order marks a shift from the LePage administration's earlier pronouncement that the state would only withhold GA reimbursements for undocumented immigrants, not everyone, if the municipality failed to comply with governor's order. LePage's threat to unilaterally penalize municipalities for not complying with his decree has faced stiff criticsm from the ACLU, the Maine Municipal Association and Attorney General Janet Mills, who says that the governor's decree circumvents state law.
"The fact remains that the executive branch lacks authority to promulgate a change in General Assistance eligibility, whether by rule or by edict or by form," wrote Mills in a statement. "Since there is no authority for this change, there is also no authority for the administration to withhold funds."
Mills and the MMA have pointed to the state's Administrative Procedures Act, which states that rule changes for state programs like GA can't just be issued by fiat. They must follow a process like any other major rule change: with a notice, a public hearing and a legal review by the Attorney General. Furthermore, Mills said that the rule will be overly burdensome for the state's nearly 500 municipalities to comply with.
"If you ask one person for his or her immigration status, you have to ask everyone for that information," wrote Mills. "Yet people who seek General Assistance - the person fleeing domestic violence, the victim of human trafficking, the asylum seeker awaiting federal approval, the family who lost their home to fire or war - are least likely to have this paperwork on hand during a crisis."
Mills previously struck down a proposal by the governor to eliminate GA for legal non-citizens, such as asylum seekers from war-torn countries, citing "serious Constitutional issues" with the proposal.
Gov. LePage counters that his most recent act is backed by federal welfare reform legislation signed by President Bill Clinton in 1996 that bars state and local governments from giving welfare benefits to undocumented immigrants. The governor points out that in order to be compliant with federal law, the Maine Legislature could have passed a law mandating that municipalities provide GA to undocumented immigrants, but has not done so. Mills argues that the 18-year-old federal statute has never been enforced, cannot be enforced and "represents an intrusion into states' rights and a questionable expansion of Congress' authority" under the U.S. Constitution.
Darned if They Do, Darned if They Don't
"It's putting municipalities in a darned if they do, darned if they don't position," said Kate Dufour of the Maine Municipal Association.
According to Dufour, the state law mandating that towns provide GA to anyone in financial need is codified into municipal ordinances. If GA administrators follow the governor's orders, they could open themselves up to potential lawsuits from individuals who are denied benefits. But if they don't follow the governor's mandate, they risk losing their state GA reimbursements.
About 78 percent of the state's $12,229,360 annual GA budget goes to the three largest cities - Portland, Bangor and Lewiston. And with the governor and attorney general giving municipalities mixed messages, both Bangor and Portland have stated that they will ignore LePage's command until the matter is cleared up. Under state statute, if a municipality is in violation of GA guidelines, it must be given 30 days to come into compliance or face a $500 fine or withholding of the state reimbursement until the issue is resolved. But towns have a right to appeal decisions and individuals have a right to appeal a denial of GA.
"I would expect that if they lost all of their reimbursement that they would certainly move forward with some sort of action," said Dufour.
However, it's still not clear whether the LePage administration will even follow through with its threats. According to a memo to municipalities from DHHS, the department won't begin auditing towns and cities to make sure they're complying with the governor's ultimatum until October. By then, the election will be a month away and enforcement might very well depend on whether the governor keeps his job. But in the meantime, it remains to be seen how much time and money will be spent on legal costs and efforts to force compliance.
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