If Maine wanted to amend its General Assistance eligibility rules to exclude legal noncitizens that federal TANF and SNAP rules also exclude, would the change survive a federal Equal Protection challenge?

Plain-English summary

This is an internal AG memorandum from AAG Justin Barnard to AAGs Dori Hartnett and Thomas Quinn evaluating proposed changes to Maine's General Assistance (GA) eligibility rules. Maine GA is the state-and-municipality-funded last-resort welfare program. The proposed rule would import the citizenship-based eligibility provisions from Maine's TANF and SNAP rules, which align with federal Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) provisions, into the GA program. Citizens would keep their existing GA eligibility unchanged. Most legal noncitizens would lose theirs.

PRWORA includes provisions that purport to authorize states to limit alien eligibility for state-funded benefits. 8 U.S.C. § 1622(a) authorizes states to determine eligibility "for any State public benefits" of qualified aliens, nonimmigrants, and certain parolees. 8 U.S.C. § 1624(a) reiterates that authorization for state and local general assistance programs, capped by § 1624(b) at no more severe than comparable federal programs.

The Equal Protection question turns on a four-part framework Barnard distilled from Supreme Court precedent: (1) state laws making alienage-based distinctions face strict scrutiny under Graham v. Richardson, 403 U.S. 365 (1971); (2) federal laws making alienage distinctions face only rational basis review under Mathews v. Diaz, 426 U.S. 67 (1976), because of Congress's broad authority over immigration; (3) a state can treat aliens differently if it follows a uniform federal immigration rule, citing Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982); and (4) outside that uniform-rule channel, "Congress does not have the power to authorize the individual States to violate the Equal Protection Clause," again per Graham.

PRWORA's grant of discretion does not satisfy the third principle's uniform-rule requirement, because each state can decide differently. The grant of discretion thus runs into the fourth principle. Barnard pointed to Aliessa v. Novello, 754 N.E.2d 1085 (N.Y. Ct. App. 2001), where the New York Court of Appeals applied strict scrutiny to a state medical assistance program that adopted PRWORA's restrictions to exclude aliens while continuing to serve citizens. That case struck down the restrictions. Barnard was unaware of any case upholding a state-only benefits program that served citizens while excluding noncitizens.

The internal memo is labeled "Confidential / Attorney Work Product" but was later released and posted to the Maine AG's public archive.

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.

The Maine GA citizenship rule was the subject of subsequent state and federal litigation, and Maine has continued to revise its GA eligibility framework. Anyone evaluating current GA eligibility rules should consult the present version of 22 M.R.S. ch. 1161 and 10-144 C.M.R. ch. 323, plus any subsequent court decisions on alienage-based GA restrictions.

Historical summary

For DHHS rule drafters (at the time): The memo flagged a high likelihood that the proposed rule would not survive constitutional review. The opinion did not stop the rulemaking but predicted the litigation outcome.

For civil rights attorneys (at the time): The memo is a worked map of the Graham/Mathews/Plyler doctrine plus the Aliessa analog. The four-part framework is portable to other state-only benefits programs that adopt PRWORA's restrictions.

For state agency policy staff: The opinion is a useful reminder that PRWORA's apparent authorization to states is constrained by the Equal Protection Clause. Federal legislation cannot license a state to do what the Equal Protection Clause forbids.

Citations and references

Statutes and rules:
- 8 U.S.C. § 1612(a) (most qualified aliens barred from SNAP)
- 8 U.S.C. § 1612(b); § 1613(a) (5-year bar from TANF)
- 8 U.S.C. § 1622 (state authorization to determine state public benefit eligibility)
- 8 U.S.C. § 1624 (state authorization to limit alien eligibility for general assistance)
- 10-144 C.M.R. ch. 323, section V (Maine General Assistance eligibility)

Cases:
- Graham v. Richardson, 403 U.S. 365 (1971) (strict scrutiny for state alienage classifications)
- Mathews v. Diaz, 426 U.S. 67 (1976) (rational basis for federal alienage classifications)
- Plyler v. Doe, 457 U.S. 202 (1982) (uniform federal rule allows state to follow)
- Aliessa ex rel. Fayad v. Novello, 754 N.E.2d 1085 (N.Y. Ct. App. 2001) (PRWORA-derived state restriction failed strict scrutiny)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2013/ag_20131226.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONFIDENTIAL
ATTORNEY WORK PRODUCT

STATE OF MAINE
OFFICE OF ATTORNEY GENERAL

MEMORANDUM

6 State House Station
Augusta, ME 04333-0006
Telephone 626-8800
FAX 626-8828

To: Dori Hartnett, Assistant Attorney General
Thomas Quinn, Assistant Attorney General

From: Justin B. Barnard, Assistant Attorney General

Date: December 26, 2013

Subject: Equal Protection Implications of Citizenship-Related Changes to General Assistance Eligibility Regulations

This memorandum is intended to briefly and informally summarize my views on the federal Equal Protection Clause implications of the recent proposed changes to Maine's General Assistance eligibility regulations. My views are informed almost exclusively by past research on related subjects; I have not performed any new case law research. As discussed below, 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").

Overview of the General Assistance Changes

The Department describes the proposed changes to the General Assistance eligibility regulations (found at 10-144 C.M.R. ch. 323, section V) as an effort to "align Maine's General Assistance citizenship eligibility requirements with those applicable to legal non-citizens who are covered under other federal and state funded programs such as Temporary Assistance for Needy Families (TANF) and the Maine Food Supplement (SNAP) program." The effect is quite simple. Currently, General Assistance eligibility for legal noncitizens residing in Maine is determined without reference to citizenship status. The proposed rule would impose on most legal noncitizens the more restrictive, citizenship-based eligibility restrictions that apply to federal programs, but would not change or restrict the eligibility of citizens for General Assistance in any way.

(Footnote: The proposed rule imports the citizenship eligibility provisions from Maine's SNAP and TANF rules, which extend state-funded benefits to some narrow classes of federally ineligible aliens (e.g., the disabled or elderly). Thus, the effect of the proposed rule would not be as sweeping as would be the case if Maine adopted the federal eligibility provisions outright.)

The relevant language is as follows:

NONFINANCIAL ELIGIBILITY FACTORS: Citizenship Status:
Individuals who are not eligible for federal or state TANF or SNAP benefits due to citizenship status are not eligible for General Assistance.

To determine eligibility for TANF or SNAP benefits, see:

Maine Food Supplement Certification Manual, 10-144 CMR, Ch. 301, FS-111-2 and FS-444-1; or

Maine Public Assistance Manual, 10-144 CMR, Ch. 331, Ch. II, beginning on page 3 and Ch. VII, beginning on page 9;

for state-funded and federal eligibility factors.

Note that, while there are many similarities between the eligibility standards that apply to TANF and those that apply to SNAP, federal law imposes only a five-year mandatory bar on qualified alien eligibility for TANF, see 8 U.S.C. §§ 1612(b), 1613(a), but entirely bars most qualified aliens from the SNAP program, see id. § 1612(a). Presumably, given the disjunctive language in the proposed amendments, most qualified aliens who do not fall within an exception would only be excluded from General Assistance for five years from time of entry (applying the more lax TANF standards).

Relevant Provisions of PRWORA

In the Bruns case, we have been dealing with the provisions of PRWORA that apply to federal public benefits programs. PRWORA also includes an entire subchapter relating to state and local benefits programs. Two provisions are relevant here.

First, 8 U.S.C. § 1622 provides that, subject to certain exceptions, "a State is authorized to determine the eligibility for any State public benefits of an alien who is a qualified alien . . . , a nonimmigrant under the Immigration and Nationality Act, or an alien who is paroled into the United States under section 212(d)(5) of such Act for less than one year." Id. § 1622(a). Thus, as a general matter, Congress intended to give States discretion as to coverage of noncitizens in State-only benefits programs.

Second, 8 U.S.C. § 1624 basically reiterates the same principle, with some amplification, for state and local general assistance programs. It provides that "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," id. § 1624(a), so long as such limitations are no more severe than the limitations imposed on comparable federal programs, id. § 1624(b).

Equal Protection Analysis

As set forth above, we have (a) a proposed rule that would treat noncitizens differently and less favorably than citizens with respect to eligibility for General Assistance benefits and (b) a federal statute that purports to authorize such disparate treatment. The question, then, is whether a state may, with Congressional authorization, treat noncitizens differently from citizens with respect to state-only benefits. The relevant Constitutional principles, in outline form, are as follows:

(1) States generally may not enact laws that subject individuals to disparate treatment on the basis of alienage. Graham v. Richardson, 403 U.S. 365 (1971). Strict scrutiny applies to state laws that make alienage-based distinctions.

(2) The federal government may, pursuant to its broad authority over immigration and naturalization, enact laws establishing different rules for aliens than those that apply to citizens. Mathews v. Diaz, 426 U.S. 67 (1976). Rational basis review applies to federal laws that make alienage-based distinctions.

(3) A state may treat aliens differently than citizens where it does so pursuant to a uniform federal immigration rule. Plyler v. Doe, 457 U.S. 202, 219 n. 19 (1982) ("[I]f the Federal Government has by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction").

(4) BUT: Other than through a uniform rule, "Congress does not have the power to authorize the individual States to violate the Equal Protection Clause." Graham v. Richardson, 403 U.S. 365, 382 (1971).

Based on this last principle, I do not believe that PRWORA's purported grant of discretion to the States to limit alien eligibility for general assistance would immunize Maine's law from an Equal Protection challenge. I am unaware of any cases upholding a state-only program that serves citizens but excludes noncitizens. Cf. Aliessa ex rel. Fayad v. Novello, 754 N.E.2d 1085 (N.Y. Ct. App. 2001) (applying strict scrutiny to law applying PRWORA's eligibility standards to exclude aliens from state medical assistance program that continued to serve citizens).