Memos from Attorney General’s office shed light on GA flap

The LePage administration’s decision to crackdown on municipalities that give General Assistance (GA) to undocumented immigrants has created a firestorm driven by Democrat Attorney General Janet Mills and new lawsuit from the Maine Municipal Association.

New documents obtained by The Maine Wire shed light on the year-long collaborative process between Mills’ office and the LePage administration that resulted in the decision to enforce a 1996 federal law, which prohibits the state from providing GA to undocumented immigrants unless the state has passed a law explicitly authorizing it to do so.

According to the documents, the LePage administration’s decision to stop reimbursing cities that give General Assistance (GA) to undocumented immigrants was set in motion as early as June of 2013 and involved two Assistant Attorney Generals.

In a June 12, 2013 memo, “Eligibility of undocumented aliens for General Assistance benefits,” Assistant Attorney General Thomas J. Quinn told Dave Maclean of the Office of Family Independence (OIF) the following: “Recently you posed the question of whether there is any obligation on Maine’s part to provide undocumented immigrants and other non-qualified aliens with access to State and locally-funded programs, specifically General Assistance (“GA”). The short answer is, essentially, probably not, although with substantial caveats.”

Those “caveats” include Quinn’s concerns about the impact of the Maine Human Rights Act, whether a change in policy would require legislative approval, whether a change would be vulnerable to a legal suit on Equal Protection grounds, whether the state could win such a lawsuit and at what cost.

In the background section of the memo, Quinn informs the LePage administration that such a change would be grounded in the 1996 federal welfare reform law, the Personal Responsibility and Work Opportunity Reconciliation Act. Significantly, the rationale Quinn provided is the same justification offered by LePage’s Department of Health and Human Services.

“PRWORA institutionalized the concept of immigrant exceptionalism—treating noncitizens differently from similarly situated citizens—to a new and unprecedented degree in social welfare policy,” said Quinn. “For immigrants, the passage of federal welfare reform meant much more than ending the entitlement to cash assistance. The law restricted noncitizen eligibility for a wide range of public programs, including Temporary Assistance for Needy Families (TANF), food stamps, Supplemental Security Income (SSI), and Medicaid, and it gave states broad new authority to set social welfare policy for immigrants.”

“The new federal welfare law, moreover, allowed states to bar noncitizens from their own State cash and medical assistance programs and from TANF and Medicaid, which are funded with federal dollars,” said Quinn.

Quinn goes on to cite the specific federal statute governing GA payments to illegal immigrants, and states: “Section 1621 (d) also stated that undocumented immigrants were not eligible for state-local benefits unless the state passed a new law after August 22, 1996 affirmatively making them eligible,” adding in a footnote: “No such Maine law seems to have been passed in response, at least with respect to GA.”

Quinn’s rationale, which has been parroted by LePage administration officials, is now rejected by Quinn’s boss, Mills, as well as the Maine Municipal Association. Both Mills and the MMA have a history of clashing with the LePage administration.

Mills did not respond to multiple requests for comment.

In a second memo dated December 26, 2013, Assistant Attorney Justin B. Barnard advised DHHS about the policy’s potential to violate the “Equal Protection Clause” of the U.S. Constitution.

“I believe that there is a high likelihood that the proposed changes would violate the Equal Protection Clause, notwithstanding the apparent discretion granted to the States by the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”),” said Barnard.

In response to the concerns expressed in Barnard’s memo, Quinn advised DHHS to revise the policy to apply only to “undocumented immigrants.”

“The rule could be redrafted to exclude solely undocumented immigrants, which frankly I think was closer to the original purpose,” Quinn said in a Jan. 2 email to DHHS Attorney Kevin Wells. “As currently drafted it sweeps in too many people (such as certain qualified aliens) who have [Equal Protection] rights. Undocumented aliens basically have none (although their children might).”

Based on this advice, DHHS subsequently revised the rule to be more limited in scope. Yet critics still believe that policy is unlawful.

Mills said in a public statement that the federal law has no enforcement mechanism, that the specific provision of PRWORA has never been tested in court, and that it may constitute an overreach of congressional authority. The MMA, meanwhile, has announced it is seeking a “declaratory judgment from in Superior Court, as to whether the rules, or directives, were properly implemented and legally enforceable.”

The memos also show how current DHHS procedural guidelines instruct civil servants not to ask benefit applicants about their immigration status.

The online manual poses the following question and answer: “Question: I have an applicant in the office who says he is here from Mexico. I don’t think he is a US Citizen. Do I even take an application? What if he is not here legally – who do I report to?”

Answer: “You should taken (sic) an application and provide assistance if the applicant is eligible for benefits. You should not inquire into the applicant’s citizenship status in order to determine eligibility for general assistance benefits.”

The GA flap is not the first time the LePage administration has clashed with Mills over welfare policy.

Mills, a former Democratic lawmaker and former co-chair of the Maine Democratic Party, has sought to downplay the prevalence of welfare fraud in the state. A Maine Wire investigation uncovered emails showing how Mills personally instructed subordinates to withhold information the press about a series of welfare fraud indictments in May.

Further investigation found that the last time Mills touted the AG’s prosecution of welfare fraudsters was under the administration of Democrat John E. Baldacci.

See the documents here:

Steve Robinson
Editor, The Maine Wire