Lawyers for the LePage administration and for some of Maine’s largest cities debated before a judge Friday in Portland whether the administration circumvented the state rule-making process to bar asylum-seekers from receiving General Assistance.

The fate of aid to hundreds of immigrants hinges largely on a procedural question about the LePage administration’s notice last year to municipalities that the state would no longer pay for such emergency assistance to asylum seekers: Did the state create a new rule or is it simply a matter of following an existing federal law?

Immigrants seeking asylum often rely on General Assistance for basic necessities until they receive work permits from the federal government allowing them to work legally – a process that can take months. In Portland alone, more than 400 families totaling roughly 900 people could lose non-cash vouchers for rent, food and clothing beginning July 1 – if the court rules in favor of the administration.

“There are real lives at stake here, Your Honor, people who are living on the absolute margins of survival and all they have left really is the protection of the law,” said Zachary Heiden, legal director of the American Civil Liberties Union of Maine, who represented several immigrants who would be affected by the change.

Justice Thomas Warren did not issue a ruling in Cumberland County Superior Court, but indicated he would as soon as possible.

At issue is whether the state last June created a new rule regarding GA eligibility or simply offered program guidance for an existing rule that has always been in effect but never followed.

Attorneys for the Maine Municipal Association and the cities of Portland and Westbrook argued the state did in fact enact a new rule without going through the established process requiring public notice, public hearings and ultimately a ruling of legality from the Attorney General’s Office. They say the state is punishing municipalities by withholding millions of dollars in reimbursements. General Assistance is given out by cities and towns and paid for with a combination of state and local funds.

FOLLOWING FEDERAL LAW

But an attorney for the state argued that the Maine Department of Health and Human Services simply informed municipalities the state would begin following a federal law that already prohibited such assistance. Withholding reimbursements is a logical consequence of continuing to provide aid to people deemed ineligible under federal law, rather than punishment for not complying with the state’s policy guidance.

“When you’re not reimbursed for certain GA payments that you make, it’s not because the guidance says so; it’s because the Welfare Reform Act … says so,” said Clifford Ruprecht, an outside lawyer hired by the administration to argue the case after disagreements with the Maine attorney general on the issue.

Ruprecht said the state has been reimbursing municipalities for GA payments for other individuals it agrees are eligible, despite Gov. Paul LePage’s threat to withhold all reimbursements for municipalities that continue to provide aid to certain immigrants, mostly asylum seekers.

The federal Welfare Reform Act prohibits illegal immigrants and immigrants whose visas have expired from receiving welfare, unless a state enacts legislation to specifically allow such aid. That includes people who have fled their native homelands due to violence and have come to the U.S. legally using temporary visas, but their final immigration status has not been decided. Asylum applications can take years to be decided because of backlogs in the federal review process.

NEED VS. IMMIGRATION STATUS

Heiden, along with Peter DeTroy, who represented the MMA, Portland and Westbrook, argued that the biennial budgets adopted by previous legislatures since the reform act passed in 1995, as well as comments made by legislators during floor debates, make it clear that the state supported providing assistance based solely on financial need and not immigration status.

However, Ruprecht argued that simply funding a program is not an affirmative statement about eligibility and that the federal rules still apply in Maine. He said the Legislature has taken action to make those individuals eligible for food stamps and Temporary Assistance for Needy Families under the federal reform act, but has chosen not to do so for GA.

“If Maine wants out from under the federal Welfare Reform Act, then the Maine Legislature needs to enact a statute that says so – something it knows how to do and has done with respect to TANF and (food stamps), but it has not done with respect to GA,” he said.

DeTroy said that to allow the state to institute this change outside of the established process would set a dangerous precedent by giving more power to the administration.

“They’re not the marshal of Dodge City,” DeTroy said. “If there’s a marshal in Dodge City for Maine, it’s the Attorney General’s Office.”

In 2013, the state tried to enact similar changes by going through the rule-making process, but Attorney General Janet Mills ruled that the changes were unconstitutional.

Justice Warren saved most of his questions Friday for the state’s attorney. He wondered why the state previously tried to make the eligibility changes through the rule-making process, but is now arguing that such changes must be made by the Legislature itself.

Ruprecht conceded that would have been a key question if those rules were approved and subsequently challenged, but they were not. He also said the two proposals are different, with the most recent changes being totally in line with federal law.

DeTroy, meanwhile, questioned the importance of the federal rules, since there is no enforcement mechanism in the reform act and the U.S. Attorney’s Office has never taken action against a state for providing aid to these disputed groups without enabling state legislation. “That, to me, speaks volumes,” DeTroy said.

While both sides asked for a quick judgment, Warren cautioned that it may take some time before he decides. He also suggested that the case would be decided on appeal.

“I need to do some serious thinking about this,” Warren said. “You have all given me food for thought and there is a lot of law that needs to be canvassed.”

Randy Billings can be contacted at 791-6346 or at:

rbillings@pressherald.com

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