Short Relief: In LePage v. the Legislature, don't count the governor out

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There is some merit to the governor’s positions on whether asylum seekers should get General Assistance and whether he vetoed the Legislature’s bill authorizing it.

The problem is the governor doesn’t explain his positions well, the media isn’t inclined to help him, and any merit to his positions is swamped by bitter acrimony.

The debate about GA has been pretty superficial. On one hand, advocates of General Assistance for asylum seekers argue it is the right thing to do and that anyone who opposes it is a racist xenophobe. Opponents argue that asylum seekers are not the best use of our limited resources.

Neither side marshaled the difficult details, such as the number of asylum seekers and relative resources available.

Asylum seekers are a less sympathetic type of international person seeking protection. Refugees are admitted as immigrants entitled to remain because they establish a well-founded fear of persecution abroad. As lawful immigrants, refugees are entitled to work and to government benefits.

In contrast, asylum seekers enter the country as non-immigrants, temporary visitors, such as tourists for pleasure. After they have arrived, they apply for asylum, claiming they cannot return home because of a fear of persecution. Pursuant to federal law, they are not entitled to work, nor are they eligible for state or local government benefits unless benefits are affirmatively provide by the legislature of the state where they reside.

For years, the city of Portland provided benefits like General Assistance to asylum seekers that the rest of the state helped pay for, even though the Legislature had not authorized the payments. It took a while for the current administration to figure out what had been going on.

When the administration found out, it tried to write a formal rule prohibiting the practice, but the attorney general declined to give her approval as required by Maine’s administrative procedure law. The administration then tried to stop subsidizing General Assistance to asylum seekers by issuing informal guidance.

Portland sued and a Superior Court judge ruled that the administration’s guidance was issued improperly and that the state otherwise lacked authority to enforce federal law. Even so, the court held it lacked the authority to force the state to violate federal law by subsidizing benefits for ineligible persons.

The Legislature tried to break the impasse by passing LD 369, which, as amended, extends eligibility to persons like asylum seekers who are lawfully pursuing immigration relief.

The governor, meanwhile, was mad at the Legislature in general. He was mad at Republicans for not supporting his tax reform plan. Mad at Democrats on general principle, and mad at specific Democrats like the Senate president (too wealthy) and the Speaker of the House (a hypocrite). He was also opposed to General Assistance for asylum seekers. However, rather than veto LD 369 immediately, he wanted to punish the Legislature by wasting its time.

The governor’s veto power is modeled on the power accorded the president of the United States. The president has veto power in order to protect his executive authority from legislative encroachment, and to guard against ill-considered legislation.

Ordinarily, the president must affirmatively approve and sign a bill passed by Congress in order for it to become law. He can affirmatively reject a law by returning it within 10 days for Congress to reconsider in light of his objections. Congress can override this kind of veto with a two-thirds majority vote.

If the president does not return a bill to Congress within 10 days, the bill becomes law unless congress prevents him from returning it to them by adjourning. That’s to prevent Congress from frustrating the president’s veto power by passing a bill and adjourning without giving the president the opportunity to play his role in the legislative process.

The president can also reject a bill by declining to return it while congress is adjourned and unable to consider his objections. That kind of “pocket” veto is absolute, in the sense that it precludes Congress from further considering the bill during the current session.

The Legislature passed LD 369 on June 23. Seven days later, on June 30, it adjourned until recalled by the Senate president or House speaker to conduct business or consider the governor’s veto. The Legislature did not reconvene after the 30. It adjourned for the session on July 16. The governor affirmatively vetoed the asylum seeker bill and others the same day.

So far, the issue has been framed as who decides whether the Legislature has adjourned or simply recessed. However, the issue could be framed as who determines the scope of the governor’s veto. By adjourning as it did on June 30, the Legislature deprived the governor of his constitutionally provided vetoes. Its parliamentary maneuver should not trump his constitutional authority.

It’s not a bad argument. It just loses appeal because of the vindictive context that surrounds it.

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Halsey Frank is a Portland resident, attorney and former chairman of the Republican City Committee.