Last night, in a written statement, Attorney General Janet Mills reiterated her assessment that Gov. Paul LePage has “no authority” to change policy regarding General Assistance, or to withhold state funds for towns and cities that opt to ignore his decrees.
The statement came in response to LePage’s letter to towns and cities, telling them that any municipality that chooses to ignore the administration’s new guideline prohibiting the disbursement of GA funds to undocumented immigrants would see all state reimbursement for the program disappear.
For years, General Assistance has been distributed on the basis of need, with no regard for immigration status. Earlier this month, DHHS issued guidelines to towns and cities, telling them they could no longer provide aid to “unlawfully present aliens,” which includes not only those immigrants here without documentation, but those with expired documents and those immigrants who are here legally by nature of applying for refugee or asylum states, but awaiting final word from the federal government — a process that can take years..
Mills’ letter was the latest salvo in a back-and-forth between not only her and LePage about the legality of the governor’s unilateral rule change, but also Maine’s municipalities, who say they’re caught between a rock and a hard place in deciding whether to listen to LePage and risk enforcing an illegal policy, or listen to Mills and risk losing thousands — and in some cases millions — of dollars in state reimbursement.
The controversy over the General Assistance program involves debate and disagreement over many core tenets of government — legislative process, separation of powers and the relationship between state and federal law.
There are lots of questions that need answers. I want to use this post to try to break it down for you.
1. Is the new guideline from DHHS and LePage, which bars towns from giving GA to undocumented immigrants, legal?
Mills and others point to the state’s Administrative Procedures Act, which outlines the legislative process by which changes to programs such as General Assistance must be made. That process prescribes public hearings, opportunity for comment, and a legal review by the Office of the Attorney General for any proposed rule change.
A similar rule change was put through that process earlier this year, and ultimately rejected by Mills, who said it represented an unfunded mandate for municipalities and violated the U.S. and Maine constitutions.
DHHS amended the rule but didn’t put it through the process outlined in the Administrative Procedures Act, so Mills did not review it. She did, however, indicate taht the amended version would likely be found unconstitutional as well.
DHHS Commissioner Mary Mayhew opted to proceed with the new rule anyway.
Mills and other say the fact LePage and Mayhew skipped the rulemaking process is enough to make the new policy illegal. Said Mills: “The executive branch lacks the authority to promulgate a change in General Assistance eligibility, whether by rule or by edict or by form.”
LePage says he doesn’t have to go through the long process because federal law is already on his side. He cites a 1996 federal law approved during the Clinton administration, which says that
“A state may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.”
Maine has many statutes regarding General Assistance, but no relevant statute passed after Aug. 22, 1996, which “affirmatively provides” for the eligibility of undocumented immigrants. LePage says that in barring the disbursement of GA to undocumented immigrants, he’s simply following federal law.
However, Maine does have eligibility rules in statute. Specifically, General Assistance is to be provided for a first-time applicant “solely on the basis of need.” Both the Maine Municipal Association and the American Civil Liberties Union of Maine say that means that no other criteria — including immigration status — can be used to deny assistance.
In her Tuesday letter, Mills also raises questions about the 1996 federal law. She writes:
“In many respects, the federal statute on which the Governor relies, which has never been enforced to our knowledge and which even lacks an enforcement mechanism, represents an intrusion into states’ rights and a questionable expansion of Congress’ authority.”
2. OK, but can LePage withhold state reimbursement for cities and towns that buck his new policy on GA?
Let’s start with a quick explanation of what this would mean: Maine law requires that every municipality offer temporary General Assistance to people whose income doesn’t meet their need. It covers basic needs such as food, housing, utilities and the like. The state reimburses towns for between 50 and 90 percent of money spent on General Assistance.
Total GA budgets around the state in the last fiscal year exceed $17.8 million, so this could potentially be a lot of money.
Portland and Bangor alone represent about 60 percent of all General Assistance spending in Maine, and receive millions of dollars from the state in reimbursements. That’s the money LePage is threatening to withhold if they don’t comply with his new rule. Both cities have said they’re going to ignore the new guideline until the attorney general and governor can both get on the same page, which is unlikely to happen anytime soon.
Maine statute does provide DHHS with the authority to issue penalties on municipalities that violate General Assistance laws. LePage is apparently relying on his analysis that providing aid to undocumented immigrants is a violation of the law, and so towns and cities can be punished for it.
The law does say that the state can withhold reimbursements for municipalities that are out of compliance. Towns and cities must be given 30 days to correct the problem and submit to DHHS an action plan for compliance. Then, the department will review the town’s GA program within 60 days of accepting the plan.
If the municipality is still out of compliance, the state can assess a civil penalty of up to $500. In addition to the civil penalty, the state can withhold reimbursement for every 30-day period in which the town or city is out of compliance.
Of course, Mills and others say it should never get to that point, because the new rule isn’t legal to begin with. “Since there is no authority for this change [in policy], there is no authority to withhold funds,” Mills wrote Tuesday night.
3. So what should the municipalities do?
That’s the million-dollar question.
Municipalities — and the Maine Municipal Association – worry they’re susceptible to legal action no matter what they do. What’s more, while the debate over the legality of LePage’s threat to withhold reimbursement rages, there doesn’t seem to be anything standing in his way, immediately, from making good on the threat.
If towns follow LePage’s order, MMA says, they open themselves up to the possibility of a lawsuit filed by an aggrieved GA applicant who is denied assistance. That applicant would likely say that the rule barring them from receiving aid was illegal. Cue lawyers’ fees and other costs associated with fighting a lawsuit.
Portland Mayor Michael Brennan says that in that scenario, the town wouldn’t have a legal leg to stand on, and would likely lose.
The other scenario is that a municipality ignores LePage’s new policy, but that brings with it the risk of losing state reimbursement. For the municipalities, the controversy over the new policy is a lose-lose scenario.
4. Wow, this is complicated. So how will it all be resolved?
Most people seem to think there are only two ways this issue gets resolved, but neither is likely to happen very quickly and in the meantime, towns will either lose money from the state or undocumented immigrants in need of assistance will be turned away.
The most clarity would come through legislation. The House and Senate could pass a law clarifying whether the state will provide assistance for undocumented immigrants or not. While that would end the debate once and for all, it’s an unlikely solution anytime soon. Not only would the governor surely veto a bill providing assistance to undocumented immigrants, but the Legislature is currently adjourned and has shown little inclination to come back to Augusta until after elections in November.
The second scenario comes through legal action. Both towns and applicants have the right, under Maine law, to appeal any decision made regarding General Assistance. The ACLU of Maine and MMA both say that other legal actions could also be possible, but no one is threatening an immediate lawsuit.