State warns of federalism in writ opposition

Warning it would result in "the invasion of state sovereignty," Attorney General Xavier Becerra on Tuesday objected to a writ petition challenging California's $75 million gift to two nonprofits for pandemic-related payments to people who entered the U.S. without legal permission.

At issue is the interpretation of the federal law governing state policy decisions regarding benefits for people living in the country illegally, Title 8, Section 1621 of the U.S. code.

Harmeet Kaur Dhillon, founder of the Center for American Liberty, argued the law renders the state's Disaster Relief Assistance for Immigrants Project illegal in a petition on behalf of two California residents. It is among several receiving immediate expedited attention from the state Supreme Court.

The state, however, said the project "complies fully" with Section 1621 because it was created through a 2019 state law the Legislature specified was to provide for people who entered the U.S. illegally. Senate Bill 80 "provides a major component of the funding at issue here," according to Tuesday's opposition, signed by Deputy Attorney General Anna T. Ferrari.

Ferrari cited case law supporting benefits for people living in the country illegally under 1621, including In re: Garcia (2014) 58 Cal. 4th 440, 458, which allows an applicant "who is not lawfully present in the United States" to be eligible for California Bar admission.

"Petitioner's assertion that 'no such law has been passed in California' is therefore incorrect," Ferrari wrote.

Dhillon has until Thursday at noon to file her reply. She and co-counsel Mark P. Meuser and Gregory R. Michael represent Ricardo Benitez, who entered the country without legal permission but who's now a U.S. citizen as well as Jessica Martinez, a Whittier city councilwoman and candidate for state Assembly District 57. Benitez v. Newsom, S261804.

Dhillon, who's also pursuing a federal civil rights lawsuit in the Eastern District of California over Gov. Gavin Newsom's stay-at-home orders, announced the action in an April 23 news release in which she accused him of "doing an end-run around the legal guardrails in place."

"There is no accountability over the distribution of these funds to individuals legally not entitled to cash benefits," Dhillon said. "The laws apply to everyone, even the governor, and we hope the California Supreme Court will agree."

In addition to the 1621 argument, Dhillon argued the state Constitution prohibits giving money to non-government groups for a purpose not determined legitimate by the Legislature. She also said the payments are unemployment benefits, which federal and state law prohibits from going to people in the country illegally, and the payments are illegal under a federal statute that made changes in welfare.

According to Ferrari, all those arguments are wrong. The payments aren't unemployment benefits because eligibility "is not tied to loss of employment, and the benefit amount is not tied to wages earned or services performed." Regarding the welfare law, Ferrari said it permits benefits for people living in the U.S. illegally through affirmative enactments such as SB 80.

The payments help "ensure that all Californians are able to heed public health orders, thereby protecting public health statewide, and to support the state's recovery from the economic harms of the COVID-19 pandemic,"

Ferrari wrote. "As such, they indisputably serve a valid, indeed compelling, public purpose."

Ferrari said there's no dispute that the law permits benefits for people living in the country illegally. Rather, she said Dhillon incorrectly argues the authorization process the state used regarding pandemic-related allocations doesn't comply with 1621. Nothing in 1621 requires a separate affirmation for eligibility for those in the U.S. without legal permission and "such a requirement would also raise serious federalism concerns," according to Ferrari's filing.

"The invasion of state sovereignty that would result from petitioners' argument would be particularly acute because the project is an exercise of the state's core authority to protect its residents in the midst of a global public health and economic crisis," Ferrari wrote.