In a victory for the LePage administration, a Superior Court justice ruled Tuesday that the state Department of Health and Human Services doesn’t have to reimburse Portland and Westbrook for General Assistance payments for certain categories of immigrants.

The ruling, which could have a significant effect on Portland’s budget, stems from the administration’s effort to reduce the welfare rolls by enforcing a 1996 federal law that bars such payments to immigrants. But the court also chastised DHHS for skirting the legally required rulemaking process by rewriting the General Assistance policy unilaterally, including requirements that cities and municipalities ask all aid applicants their immigration status and require them to submit supporting documentation.

The 20-page ruling by Cumberland County Superior Court Justice Thomas D. Warren affirmed that the state may withhold General Assistance reimbursements for certain non-citizens, including the growing number of asylum seekers in Portland who cannot work while they await determination of their immigration status.

But Warren also ruled that the state has no legal authority to impose further penalties on communities that do not comply.

“That leaves the court with what might appear to be an irreconcilable conflict between a state agency that has failed to adopt a rule as required by law and whose actions are in excess of statutory authority … and municipalities which are not adhering to federal statute relating to the eligibility of certain non-citizens for state and local benefits,” Warren wrote.

That conflict didn’t deter the administration from declaring a victory in the fight over the aid program of last resort, which is financed partly by the state and partly by the communities that administer the program.

“This is a major win for the administration,” DHHS spokesman David Sorenson said in a statement.

Portland, a service-center city that has seen an influx of asylum seekers, particularly from conflict-torn African nations, could be one of the cities most affected by the decision.

City projections through the end of June indicate that since the lawsuit was filed in July 2014, DHHS has withheld about $3.3 million in reimbursements to roughly 950 asylum seekers. Portland’s overall budget is $220 million.

Before the state’s policy change, Portland received about $3.1 million annually from the state for General Assistance payments to asylum seekers.

Gov. Paul LePage, who is seeking to fulfill a campaign promise of welfare reform, welcomed the court’s ruling.

“The people of Maine have spoken out for years against welfare for illegal immigrants, and now the courts have spoken,” the governor said in a statement. “The only people who still support welfare for illegal immigrants are liberal lawmakers in Augusta who are ignoring the Maine people and refusing to include common-sense welfare reforms in the state’s budget.”


While LePage and others frequently refer to asylum seekers as “illegals,” such immigrants generally arrive legally with temporary visas and remain legal residents while they await a decision on asylum.

The decision stems from a 2014 lawsuit filed by the Maine Municipal Association on behalf of the cities of Portland and Westbrook that sought to quash a policy the administration put in place that year. The policy sought to bring the state into compliance with the 1996 federal law, changing the common practice in Maine municipalities by requiring cities and towns to ask General Assistance applicants their immigration status and to deny aid to those who don’t meet a new set of guidelines.

The policy denies asylum seekers and other “legal non-citizens” federal benefits, including food stamps and Temporary Assistance for Needy Families, or TANF.

Portland Mayor Michael Brennan said the city is examining the effects the ruling might have on Portland’s responsibility to determine the immigration status of applicants and therefore who is eligible to have General Assistance aid reimbursed by the state.

“I found the decision to be somewhat contradictory,” he said.

Even if asylum seekers’ visas expire, the federal government does not consider them to be illegally present in the United States while a decision remains pending on their asylum application, a process that can take months, if not years.

Asylum seekers are not allowed to work for six months after their application, which puts them in financial limbo that leads many to apply for General Assistance.

That disparity was seized upon by the American Civil Liberties Union of Maine and Maine Equal Justice Partners, two groups that joined the lawsuit and on Tuesday called on state legislators to pass legislation explicitly allowing asylum seekers to receive the aid.

“The vast majority of people impacted by this change are asylum seekers who are lawfully seeking refuge here,” said Robyn Merrill, executive director of Maine Equal Justice Partners. “They are caught in legal limbo, unable to work and with few resources. The LePage administration is playing politics with people’s lives.”

Despite the financial impact on Portland, Maine Municipal Association Director Christopher G. Lockwood declared the ruling a partial win, pointing to the court’s rebuke of LePage’s skirting of rulemaking procedures, which would be required if the state sought to withhold all General Assistance aid for communities that did not comply.

“In our central argument – that this action by DHHS was taken illegally and is not enforceable – we clearly won,” Lockwood said. “This administration and future ones now know they must follow legally required rulemaking in order to make this kind of change in a long-standing policy and practice.” t


At the center of the dispute is the Personal Responsibility and Work Opportunity Act of 1996, enacted during the Clinton administration, which rewrote federal welfare rules, including new provisions to bar certain categories of immigrants from receiving state or local public benefits.

States that choose to pay benefits to those groups of prohibited immigrants may do so only if a state legislature passes a law specifying the immigrants’ eligibility. Maine’s Legislature in 1997 enacted such a law pertaining to TANF and Medicaid, but that law has since been repealed.

In the ruling Tuesday, Warren chastised DHHS for skirting the legally required rulemaking process after the administration’s attempts were rebuffed by the state Attorney General’s Office. Instead of challenging the attorney general’s refusal to proceed with the requested rulemaking process, DHHS administrators rewrote General Assistance policy and included controversial requirements that cities and municipalities ask all General Assistance applicants about their citizenship status, and to require non-citizens to submit supporting documentation of their immigration status.

There were other flaws in the state’s assertion of power to enforce the federal law, the court found.

The state DHHS only has the power to enforce the rules and conditions of the Maine law that stipulates General Assistance eligibility, which does not include immigration status, or expressly incorporate a federal standard.

Conversely, the 1996 federal law is only enforceable for programs that receive federal funding, making it impossible for federal officials to regulate the state-funded General Assistance.

“As a result, municipalities which provide General Assistance to asylum seekers may be violating (federal law), but they are not violating Maine’s General Assistance statute,” the judge wrote.