AUGUSTA, Maine — Republican Gov. Paul LePage has doubled down on new state guidelines that bar undocumented immigrants from receiving General Assistance, decreeing that any municipality that bucks the new rule will see all state reimbursement for the program cut off.
That’s a shift from previous announcements from the Department of Health and Human Services, which indicated that the state would only stop paying its share of assistance distributed by towns and cities to undocumented immigrants but not to everyone.
The sudden change in penalties heightened the frustration by municipal leaders and others who were already concerned about the legal consequences of the unilateral policy change.
Many feel they will be open to lawsuits by aggrieved immigrant applicants who are denied assistance if they follow the LePage administration’s new guidelines, which are not codified in Maine law. If they buck the new rules, they’re told they’ll lose reimbursement from the state.
“They’ve got us caught between a rock and a hard place,” Bangor City Manager Cathy Conlow said.
The new rules have caused headaches and confusion for the state’s municipalities, which administer the General Assistance program that provides one-time assistance to families and individuals experiencing financial and other emergencies. Under the usual scenario, the state reimburses the municipality between 50 and 90 percent of the assistance provided, depending on the town.
LePage on Monday sent a two-page letter to each municipality in the state, explaining his reasoning for establishing the new guideline and making his case that the change is legal.
In his letter, he cites a law passed by the U.S. Congress in 1996, which prohibited states from providing assistance to undocumented immigrants unless they pass a new law of their own to the contrary. Maine has never passed such a law, though advocates point to existing state eligibility rules that say eligibility is based “ solely on the basis of need.” They say that means assistance cannot be denied simply because someone is undocumented.
Adding complexity to the issue is the fact that Maine Attorney General Janet Mills, a Democrat, said the rule change is likely unconstitutional. She struck down a similar, though not identical, proposal for violating both U.S. and state constitutions.
Mills and others, including the Maine Municipal Association, also have criticized the governor and his administration for changing the rule by executive fiat, rather than going through the rulemaking process established by Maine law. They say failure to follow the rulemaking process makes the law unenforceable.
“You would search in vain through volumes of Maine law to find anything saying the governor can do whatever he wants to anyone he wants, whenever he wants, for any reason,” said Zachary Heiden, legal director for the American Civil Liberties Union of Maine. “We don’t have a law like that because we don’t have a king. We have a governor.”
In his letter, LePage defended his move, saying he was simply following federal law.
“Some have claimed this marks a policy change that should go through the legislative process,” LePage wrote in his letter to municipalities. “Well, it did: Our elected Congress enacted this law in 1996, and it remains on the books today. The Maine Legislature has had every opportunity in the past 18 years to pass a law mandating that municipalities provide General Assistance to illegal aliens. They have chosen not to.”
“I fail to understand how DHHS’s enforcement of an existing federal law somehow reflects a desire to ignore the will of the people,” he wrote.
Several municipalities, including Bangor and Portland, have already said they will ignore the department’s new guidelines until the discrepancy between the attorney general’s interpretation and the department’s is resolved. That’s a position backed by the Maine Municipal Association.
However, the amount of GA funds provided by municipalities to undocumented immigrants — who are not asylees or refugees — is, in most cases, small. Previously, municipalities understood the reimbursement would be cut off for those recipients but not all GA beneficiaries.
Now, LePage said the penalty for noncompliance will be significantly more dire.
“If DHHS finds that a municipality fails to comply with the law, it will cut off all General Assistance reimbursement to that community,” he wrote.
Maine law states that if a municipality is in violation of General Assistance law, the town must be given 30 days to correct the violation. If the correction isn’t made, the municipality can face up to a $500 fine and a withholding of reimbursement until the issue is resolved.
Regardless, officials in Bangor and Portland — which together account for nearly 60 percent of all GA spending in Maine — say they’ll continue offering assistance to undocumented immigrants who demonstrate need.
“The top attorney for the state is the attorney general. I didn’t create the separation of powers. Until the governor becomes the top attorney of the state of Maine, I listen to the attorney general,” Conlow said. “He seems to be writing, interpreting and implementing all in one fell swoop. It defies the whole separation-of-powers concept.”
Portland Mayor Michael Brennan said the new guidelines will cost his city about $250,000 a month and will affect 600 people. Still, he said, Portland will continue to administer General Assistance to all considered eligible before LePage unilaterally changed the rules.
“As I understand it, state law does not require us to determine somebody’s citizenship status, and we apply the law based on the statute, with regard to need,” he said. “Certainly, the governor has now upped the ante, in terms of his approach, and it’s very disappointing.”
Both the ACLU of Maine and the Maine Municipal Association have said if the Legislature does not pass a law clarifying the eligibility requirements, the issue will likely have to be resolved in court.
Follow Mario Moretto on Twitter at @riocarmine.