Did Maine's 2013 AG opinion say undocumented immigrants are eligible for Maine's General Assistance benefits?
Plain-English summary
In the wake of the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), federal law treated noncitizens differently from similarly situated citizens for many public benefits. PRWORA, codified in part at 8 U.S.C. section 1621, generally bars undocumented immigrants from "State or local public benefits" unless the State has enacted post-August-22-1996 legislation affirmatively making them eligible.
Maine's General Assistance program, established at 22 M.R.S. section 4301 et seq., is a municipally administered safety-net program of last resort. Maine never enacted post-1996 legislation re-authorizing GA eligibility for undocumented immigrants. At the same time, Maine's then-current Department of Health and Human Services guidance instructed municipal GA caseworkers not to inquire into citizenship status, treating GA as available to anyone in need without citizenship-based screening.
The 2013 AG opinion analyzed the resulting tension. The conclusion: under the federal framework as it stood in 2013, undocumented immigrants were not eligible for state and local public benefits like GA unless Maine passed re-authorizing legislation. Maine could either re-authorize through legislation, leave the existing situation in place (with the federal-law concern unaddressed), or pass legislation expressly excluding undocumented immigrants. The AG also flagged Maine Human Rights Act and federal Equal Protection considerations that could constrain certain forms of categorical exclusion.
This opinion came during the early-2013 policy debate over Maine GA reform. Subsequent legislation and court rulings have moved the practical landscape considerably; this opinion is historical context, not current law.
Currency note
This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
PRWORA (Pub. L. 104-193) restructured federal welfare and constrained state and local benefits for noncitizens. 8 U.S.C. section 1621 lists what counts as a "State or local public benefit" (broadly defined to cover most cash, in-kind, and program assistance) and conditions undocumented-immigrant eligibility on post-1996 state legislation.
Maine's General Assistance program at 22 M.R.S. section 4301 et seq. is municipally administered. Each municipality must operate a GA program (section 4305) and may set local eligibility criteria within state statutory limits. Funding comes from a mix of municipal and state sources, with the State reimbursing municipalities for a substantial portion of GA expenditures.
The Maine Human Rights Act (5 M.R.S. section 4551 et seq.) prohibits discrimination on the basis of national origin in public accommodations and benefits. Federal Equal Protection challenges to immigration-based eligibility distinctions have produced mixed results historically.
Common questions
What did the AG opinion conclude was the state of the law in 2013?
That federal law (PRWORA) generally barred undocumented immigrants from Maine's GA program unless Maine had affirmatively re-authorized their eligibility by post-1996 legislation, which Maine had not done. Existing practice in many municipalities (extending GA without citizenship inquiry) was therefore in tension with federal law.
What happened next?
The Maine Legislature considered (and rejected) various proposals to expressly authorize or exclude undocumented immigrants from GA in 2013-2015. The Department of Health and Human Services issued guidance restricting state reimbursement to municipalities for GA paid to undocumented immigrants, leading to litigation. The litigation produced rulings constraining DHHS's interpretation. The current operative rules differ substantially from the 2013 baseline.
Is this opinion still cited today?
It's a useful historical reference for how the Maine AG read PRWORA in 2013. Anyone advising on current GA eligibility questions for noncitizen residents should consult current state statute, DHHS rules, and the most recent court rulings rather than relying on this opinion.
Why does the GA program matter for noncitizens?
GA is a program of last resort, often used when other safety-net programs (TANF, food stamps, MaineCare) are unavailable. PRWORA already excluded most noncitizens from federally funded programs; GA was potentially the only remaining option for undocumented residents in acute need.
Citations
- 22 M.R.S. section 4301 et seq. (General Assistance)
- 8 U.S.C. section 1621 (State and local public benefits for unqualified aliens)
- PRWORA, Pub. L. 104-193 (1996)
- Maine Human Rights Act, 5 M.R.S. section 4551 et seq.
Source
- Landing page: https://www.maine.gov/ag/about/ag_opinions.html
Original opinion text
MAINE STATE LEGISLATURE
The following document is provided by the
LAW AND LEGISLATIVE DIGITAL LIBRARY
at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib
Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
STATE OF MAINE
Office of the Attorney General
MEMORANDUM
6 State House Station Telephone 626-8800
Augusta, ME 04333-0006 FAX 626-8828
To: Dave Maclean, Office for Family Independence
From: Thomas J. Quinn, AAG, HHS Division
Date: June 12, 2013
Subject: Eligibility of undocumented aliens for General Assistance benefits
Issue Presented & Basic Conclusions
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 notJ1,lthough with substantial caveats, including:
1. the impact of the Maine Human Rights Act is unclear, insofar as it precludes
discrimination based on "national origin;"
2. it is unclear whether such a change could be imposed merely by rule change or
whether it would require a statutory amendment, either or both of which m.igbt
require legislative approval;
3. any change would be subject to potential attack on federal (and perhaps State) Equal
Protection grounds;
4. Defense of such a challenge would presumably entail expensive and uncertain
litigation, and expose the State to potential liability for attorneys' fees;
5. Successful defense would require meeting a fairly high standard of justification based
upon past Supreme Court precedent;
6. Even if unsuccessful with respect to adult undocumented aliens, there is some reason
to conclude that children of such aliens could nevertheless not be punished for the
'sins of the father' by the withholding of public benefits, presumably resulting in a
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conclusion that assistance could be denied only proportionately to the undocumented
individual .
Background
As you know, the passage under President Clinton of the Personal Responsibility and
Work Opportunity Reconciliation Act (PRWORA) revolutionized welfare policy as it existed,
including making dramatic changes to policies regarding aliens and immigrants.
PRWORA institutionalized the concept of immigrant exceptionalism-treating
noncitizens differently from similarly situated citizens-to a new and unprecedented degree in
social welfare policy.
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 1•
Under PRWORA, aliens who were not "qualified aliens" (including undocumented
immigrants) were made ineligible for "Federal Public Benefits," the definition of which
included virtually any retirement, welfare, health, disability, food assistance, or any other similar
benefit. (See section 401). With respect to state and local programs, the same legislation gave
states authority to determine immigrants' eligibility for state and local programs, with some
conditions:
8USC § 1621
(a) In general
Subject to subsection (b) of this section and notwi~standing any
other provision of law, a State or political subdivision of a State
is authorized to prohibit or otherwise limit or restrict the
eligibility of aliens or classes of aliens for programs of general
cash public assistance furnished under the law of the State or a
political subdivision of a State.
1
By limiting Immigrants' access to federal assistance and vesting states with the authority t9
set eligibility rules for immigrants, the federal law implicitly gave states another choice: whether to
create new state-funded substitute benefits for immigrants. Maine did so, for example, some years
ago when, after certain classes of legal immigrants became ineligible for Medicare/MaineCare, it
crafted a separate Maine-funded policy to supply the same benefits.
)
2
(b) Limitation
The authority provided for under subsection (a) of this section
may be exercised only to the extent that any prohibitions,
limitations, or restrictions imposed by a State or political
subdivision of a State are not more restrictive than the
prohibitions, limitations, or restrictions imposed under comparable
Federal programs. For purposes of this section, attribution to an
alien of a sponsor's income and resources (as described in section
1631 of this title) for purposes of determining eligibility for,
ancJ the amount of, benefits shall be considered less restrictive
tha,n a prohibition of eligibility for such benefits.
Section 1621 (d) also stated that undocumented immigrants were not eligible for
state/local public benefits unless the state passed a new law after August 22, 1996 affirmatively
making them eligible2 • States could restrict the eligibility of qualified aliens, non-immigrants,
and certain parolees; they could not restrict the eligibility of certain other classes of immigrant
including refugees, asylees, military members, veterans and a few others. They could not deny
access by any alien to certain benefits that met the definition of "excepted services" described in
§162l(b)3. States could now require an applicant for state or local public benefits to provide
proof of eligibility (§ 1625).
I )
Maine Practice
Like many states, Maine has not specifically excluded immigrants, documented or
otherwise, from eligibility for general assistance. Indeed, the current on-line manual providing
guidance to DHHS caseworkers essentially instructs them to not even inquire into such status:
Questio11: I have an applicant in the office who says he is here Ji-om Mexico. I don 't think he is a
US citizen. Do I even take an application? What ifhe is not here legally-who do I report to?
A11swer: You should taken [sicJan 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.
Discussio11: 22MRSA§4305 states: "all individuals wishing to make application for reliefshall
have the opportunity to do so. One of the fundamental precepts of Maine's General Assistance
program has been that General Assistance is available to anyone in the state at any particular
z No such Maine law seems to have been passed in response, at least with respect to GA.
3
These generally involve emergency medical situations, disaster relief, immunizations, in-kind services, and the life
and safety protections. They do not include standard general cash assistance.
)
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time as long as he or she meets the eligibility criteria. There exist no citizenship or residency
criteria in order to be eligible for General Assistance.
General Assistance does not receive any Federal monies/assistance so Title VI (the Civil Rights
Act of 1964) may not apply to General Assistance, but the Maine Human Rights Act (MHRA)
does apply. MHRA has non-discrimination requirements that require that public entities cannot
deny an individual services or benefits because of race, color, or national origin. As a result, all
persons, including those not.from Maine and those who are not US citizens must be provided the
opportunity lo apply and must be assisted if otherwise eligible.
http://111ww. maine.govlcihhslofi/services/general-assistancel
The Maine General Assistance statute, 22 MRS §4301 et seq., requires that each
municipality operate a general assistance program (§4305 (1 )) and that "municipalities may
establish standards of eligibility, in addition to need, as provided in this chapter". (Id. at §4305
(3)4. Since the Federal government has delegated to Maine the right and responsibility to
establish eligibility criteria for GA, and Maine has (even earlier) delegated such responsibility to
the municipalities, it would appear both that municipalities on their own could establish criteria -
-- including being a "qualified alien" -- or that the State could amend Title 22 to specifically
include being a ''qualified alien" as a necessary criteria to qualify for GA.
To the extent that the Rules governing Maine's administration of the GA program have
been deemed "major substantive" and not "minor procedural" any change would require
) legislative approval. Obviously, too, any amendment of the existing statutory scheme would
require action by the Legislature.
Maine Human Rights Act & Equal Protection Issues
There remain, however, issues as to potential challenges based on either State law or
Federal Equal Protection arguments.
As noted above, the Maine Human Rights Act prohibits discrimination on the basis of
"national origin."~Iowever, a distinction based on being an "undocumented alien" does not
necessarily equate to invidious discrimination based on "national originjThe distinction makes
no mention of nationality per se, except to distinguish between citizens and non-citizens, or
citizens and "qualified" aliens. That is, there is no discriminatory animus against, say, Bosnians,
Swiss, or Mexicans. There is merely a legal restriction against aliens, of whatever national
origin, who m·e undocumented. I do not thinkthat a.suitagainstthe State-based on alleged
"national origin" discriminatiori-a:Sdefined in the MHRA would succeed, although such results
~1_1~ver q_e~gl!JU"anteed, and a.Jawsuit is expensive Jo defend whatexer the outcome. Should
such a challenge succeed, of course, it would open the State both to an award of attorneys' fees
and the possibility that undocumented aliens who had previously declined to seek GA out of fear
of exposure would be emboldened to make claims based on a court decision that they were
entitled to such benefits.
4
The standards of eligibility addressed include a prohibition against a durational residency requirement, 22 MRS
s.4307(3).
)
4
) ~imilarly, the fact that Congress seems to have given the states the right to prohibit
undocumented aliens from receipt of even state (GA) benefits does not necessarily (a) immunize
the State from suit, or (b) mean that if sued, it would win] The Congress has great power over
matters relating to immigration, but it has no power to authorize States to violate the Equal
Protection clause. As the Court noted in Graham v. Richardson, 403 U.S. 365,382 (1971):
Although the Federal Government admittedly has broad constitutional power to
determine what aliens shall be admitted to the United States, the period they may remain,
and the terms and conditions of their naturalization, Congress does not have the power to
authorize the individual States to violate the Equal Protection Clause. Shapiro v.
Thompson, 394 U.S., at 641. 89 S.Ct., at 1335. Under Art. I, s 8, cl. 4, of the
Constitution, Congress' power is to 'establish an uniform Rule of Naturalization.' A
congressional enactment construed so as to permit state legislatures to adopt divergent
laws on the subject of citizenship requirements for federally supported welfare programs
would appear to contravene this explicit constitutional requirement of uniformity.
The laws at issue in the Richardson case involved General Assistance programs in
several states which distinguished between potential recipients based on either citizenship or
residency. The Supreme Court invalidated them on Equal Protection grounds5, finding that
alienage was to be treated as a "suspect classification" requiring a "strict scrutiny" analysis. The
Cowt found that the subject laws could not be sustained by any of the States' rationales. 6
)
The present issue is different, in that a distinction between citizens and undocumented
(i.e., 'illegal') aliens does not present precisely the same form of analysis. The Supreme Couit
has made clear that the standard is different; it has been vague about the precise analysis. In
Plyler v. Doe, et al., 457 U.S. 202 (1982) the Court invalidated a Texas law which withheld from
local school districts any state funds for education of the children of 'illegal aliens.' In the first
part of their analysis, the court noted that the equal protection clause applies to "any person
within its jurisdiction," therefore, whatever his status under immigration laws, an alien is a
"person" in any sense of the term and thus entitled to equal protection. Turning to the issue of the
5
The Equal Protection Clause basically states that all persons similarly situated must be treated alike. However,
where a State legislature chooses in fact to treat them differently, in most instances the Court will apply only the
so-called 'rational basis' test, i.e., will ask If the classification at issue bears some fair relationship to a legitimate
public purpose. However, where the classification either effects a 'suspect class' or Impinges on the exercise of a
'fundamental right' the analysis Is more rigorous. There, the Court will apply a 'strict scrutiny' test requiring the
State to demonstrate that the classification has been precisely tailored to serve a 'compelling governmental
interest.' Further, in a few cases, the Court has detected a sort of middle ground, finding "that certain forms of
legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these
limited circumstances we have sought the assurance that the classification reflects a reasoned judgment consistent with
the ideal of equal protection by Inquiring whether it may fairly be viewed as furthering a substantial interest of the
State." 457 U.S. at 217-218.
6
If an effort to eliminate GA payments to undocumented allens impacted citizen children, an argument could be
made that a different -- and more rigorous -- standard would apply since it would now discriminate against citizens
whose only offense was to be born of 'illegal' parents.
)
5
proper framework for analysis, the court held that undocumented resident aliens could not be
treated as a "suspect class7" so as to require the state to justify its action by showing that it
served the compelling state interest. Nevertheless, the cowt said, the case was problematic in that
the onus fell upon the children of such persons:
The children who are plaintiffs in these cases are special members of this underclass.
Persuasive arguments support the view that a State may withhold its beneficence from those
whose very presence within the United States is the product of their own unlawful conduct.
These arguments do not apply with the same force to classifications imposing disabilities on
the minor children of such illegal entrants. At the least, those who elect to enter our territory
by stealth and in violation of our law should be prepared to bear the consequences, including,
but not limited to, deportation. But the children of those illegal entrants are not comparably
situated. Their "parents have the ability to conform their conduct to societal norms," and
presumably the ability to remove themselves from the State's jurisdiction; but the children
who are plaintiffs in these cases "can affect neither their parents' conduct nor their own
status." Trimble v. Gordon. 430 U.S. 762. 770, 97 S.Ct. 1459, 1465, 52 L.Ed.2d 31 (1977).
Even if the State found it expedient to control the conduct of adults by acting against their
children, legislation directing the onus of a parent's misconduct against his children does not
comport with fundamental conceptions of justice.
The children having little control over their situation, the Court held, "it is thus difficult to
conceive of a rational justification for penalizing these children for their presence within the
United States." Id. at 220.
Significantly, too, the court went on to say that while public education is not a "right,, granted
by the Constitution, "neither is it merely some governmental 'benefit' indistinguishable from
other forms of social welfare legislation." Id. Instead, it is a preeminent function of government,
access to which is critical to the basic goals of equal protection itself. Summing up, the Court
concluded that weighing all of these interests led to this conclusion:
These well-settled principles allow us to determine the proper level of deference to be
afforded [the statute}. Undocumented aliens cannot be treated as a suspect class because their
presence in this country in violation of federal law is not a "constitutional irrelevancy." Nor is
education a fundamental right; a State need not justify by compelling necessity every
variation in the manner in which education is provided to its population.... But more is
involved in these cases than the abstract question whether [the law] discriminates against a
suspect class, or whether education is a fundamental right. [The law] imposes a lifetime
hardship on a discrete class of children not accountable for their disabling status. The stigma
of illiteracy will mark them for the rest of their lives. By denying these children a basic
education, we deny them the ability to live within the structure of our civic institutions, and
foreclose any realistic possibility that they will contribute in even the smallest way to the
7
"We reject the claim that 'illegal aliens' are a 'suspect class.' 457 U.S. 219 at note 19.
)
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progress of our Nation. In detennining the rationality of [the law], we may appropriately take
into account its costs to the Nation and to the innocent children who are its victims. In light of
these countervailing costs, the discrimination contained in [the law] can hardly be considered
rational unless it furthers some substantial goal ofthe State.
457 U.S. at 223-224 (Emphasis added).
Thus, excluding the 'illegal immigrant' children from the same educational opportunities
enjoyed by citizens could not be considered rational unless it furthered some substantial goal of
the state.
This use of a standard stronger than the "rational basis" approach, as well as the other
lessons of Richardson and Phyler, suggests several conclusions with respect to the potential
exclusion of undocumented aliens from receipt of GA:
1) Even where the Court concedes that a 'right' being disparately provided might not be
a 'fundamental' right, or a Constitutional 'right' at all, it is still possible that the Court
will view the loss (of education, of general assistance) as so fundamental as to invoke
a standard higher than a mere 'fair relationship' to a 'legitimate public purpose,' and
require instead that the State show that it "furthers some substantial goal of the State,'
a fonnulation clearly meant to be more arduous a burden;
2) That it would be the burden of the State to demonstrate such a goal, and to
substantiate it with evidence and not simply argument, i.e., that the State would need
to quantitatively establish that the burden is real and not merely presumed;
3) That while it is much easier to make legitimate legislative distinctions between
citizens and illegal immigrants than citizens and legal aliens, in certain contexts even
illegal aliens, as persons entitled to some measure of 'equal protection,' may not be
invidiously discriminated against with impunity; and
4) That insofar as the impact of such a distinction might be felt not merely by the
undocumented alien but by his family, both (perhaps) citizen and non-citizen, the
Court would likely find such impact either impermissible (in the case of citizens) or
difficult to defend( in the case of innocent noon-citizen children).
Please let me know if you would like to discuss this further.
)
7
--. Wells, Kevin
) From: Quinn, Thomas J
Sent: Thursday, January 02, 2014 11 :27 AM
To: Wells, Kevin
Subject: RE: GA rule
Attachments: JBarnard EP memo re GA.docx
Hi Kevin:
Apropos of this issue, Dori, Justin and I are scheduled to discuss this with the AG this afternoon at 3:00. If we could chat
before then it would be helpful. I'm attaching for your review a copy of Justin's recent memo in which he sets out his
concerns about the potential EP Issues here. Apparently my mistake was in accepting the fed's suggestion in Section
1624 that the states could limit immigrants' rights in this area so long as they were not more restrictive than the feds.
Justin believes that in fact the sates can't do this (at least as we propose to) given that (a) the standard for the state
would be strict scrutiny rather than rational basis, and (b) saving money has never been found to be a sufficient basis for
discrimination of this sort.
Th.e .rule could be redrafted to exclude solely undocumented aliens, which frankly I think was close.r to the original
j;urpo-s~-.-As currently drafte-d it swe-ep-sin too-many peopl~ (such as -c~rtai-n qualified aliens) who have EP rights.
Undocumented aliens basically have none (although their children might). It might make sense to consider withdrawing
and redrafting this rule to be more narrowly focused and avoid these EP arguments.
I'd like to discuss this with you as soon as possible. Thanks.
)Tom
Thomas J. Quinn
Maine Assistant Attorney General
207-626-8569
[email protected]
From: Quinn, Thomas J
Sent: Tuesday, December 31, 2013 11:12 AM
To: Wells, Kevin
Subject: GA rule
HI Kevin:
Dori, Justin and I have met this morning to discuss the issues around this rule. I'd like to arrange a time to meet and
discuss with you. If at all possible It might be helpful to have Karen Curtis and Dawn Mulcahey either there or at least
available to consult if need be concerning how the rules for the SNAP/TANF (and State equivalents) are administered. I
am available on Thursday pretty much all day except for (assuming it is on) our Eligibility/Red Flags meeting at noon. I'm
available this afternoon, as well, although that may be short notice to get anyone else involved.
Tom
Thomas J. Quinn
. Assistant Attorney General
.) Office of Attorney General
6 State House Station
1