STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6325

December 11, 1985

CONSTITUTIONAL LAW:

Const 1963, art 4, s 25

US Const, Supremacy Clause

SOCIAL SERVICES, DEPARTMENT OF:

Authority to fix financial standards for Aid to Families with Dependent Children and for General Assistance programs

1985 PA 117, s 129 which purports to fix standards for payment for certain persons receiving Aid to Families with Dependent Children program grants for the first six months of eligibility based upon grants previously received from other states or the District of Columbia conflicts with federal regulations and is invalid under the Supremacy Clause of the U.S. Constitution, art VI, cl 2.

1985 PA 117, s 129, which purports to fix standards of payments for certain persons receiving Aid to Families with Dependent Children program grants, is unconstitutional as violative of Const 1963, art 4, s 25.

1985 PA 117, s 129, which purports to fix standards of payments for certain persons receiving General Assistance program grants, is violative of Const 1963, art 4, s 25.

Agnes M. Mansour

Director

Michigan Department of Social Services

333 S. Capitol Avenue

Lansing, Michigan 48933

You have requested my opinion as to the validity of 1985 PA 117, s 129, a provision of the Department of Social Services appropriations act for the fiscal year ending September 30, 1986.

1985 PA 117, s 129, provides:

'If a person applies for general assistance or AFDC and has received public assistance from another state, territory of the United States, or the District of Columbia, within 60 days before the date of application for general assistance or AFDC in this state, that person, if otherwise eligible, shall receive, for the first 6 months of eligibility, an amount of general assistance or aid to families with dependent children equal to the lesser of the following:

'(a) The amount of similar assistance paid in the state, territory of the United States, or District of Columbia, where the applicant last received assistance.

'(b) The amount of general assistance or AFDC paid to residents of this state.'

With respect to the Aid to Families with Dependent Children [AFDC] program, your question requires an analysis of the applicable federal law and regulations to ascertain whether the state law provision at issue conforms to Title IV of the SocialSecurity Act, s 401 et seq, 42 USC 601 et seq. If the above stated AFDC law provision conflicts with the federal AFDC statute or regulations, then it would be considered invalid under the Supremacy Clause of the United States Constitution. Townsend v Swank, 404 US 282, 286; 92 S Ct 502; 30 L Ed 2d 448 (1971); In re Vary Estate, 401 Mich 340; 258 NW2d 11 (1977), cert den, 434 US 1087 (1978); Timmons v Department of Social Services, 89 Mich App 330; 280 NW2d 515 (1979).

42 USC 602(a)(1) and AFDC regulations found at 45 CFR 233.20(1) and (2), require each state participating in the AFDC program to adopt state plan provisions which provide that the determination of need and amount of assistance payment for all applicants and recipients be made on an objective and equitable basis; that a statewide standard expressed in money amounts be used in determining such need and amount of assistance payment; and that such standard, once established, be uniformly applied throughout the state. Boddie v Wyman 434 F2d 1207 (CA2, 1970) affd sub nom Wyman v Rosado, 402 US 991; 91 S Ct 2168, 29 L Ed 2d 157 (1971).

As 1985 PA 117, s 129 sets a maximum limit on AFDC payments that has no relationship to Michigan's need standard and applies only to applicants who have received AFDC benefits from another state within 60 days of application, this state statutory provision clearly conflicts with federal law. Thus, 1985 PA 117, s 129 is invalid under the Supremacy Clause of the U.S. Const, art VI, cl 2.

Your question also requires a review of the state law provisions governing the AFDC program, upon which 1985 PA 117, s 129 has a direct impact, in order to determine whether the aforesaid limitation on AFDC grants was adopted in conformity with Const 1963, art 4, s 25, which provides:

'No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re- enacted and published at length.'

MCL 400.56(D); MSA 16.456(d), provides, in pertinent part:

'The amount of assistance which shall be granted for a dependent child shall be determined with due regard to the resources and necessary expenditures of the family . . . and pursuant to section 38.'

MCL 400.38; MSA 16.438, which relates to the AFDC program, provides:

'Upon receipt of the recommendations of the county department of social services, the state department (of social services) shall determine the amount of . . . assistance. . . .'

It is noted that in OAG, 1967-1968, No 4607, p 174, 176 (February 6, 1968) it was concluded that, as a result of the passage of 1965 PA 401, 'the county welfare department or county department of social services, as it is now called, has been made structurally a part of the state department of social services insofar as all programs financed with federally aided funds are concerned.' Thus, the recommendation provision is no longer operative.

By this statutory provision, the Legislature has delegated to the Michigan Department of Social Services the authority and duty to establish the amount of assistance to be allowed under the AFDC program. 1985 PA 117, s 129, is an attempt by the Legislature to exercise without reenacting and republishing the statute that previously delegated authority by setting out another financial standard not established by the Department.

A similar Department of Social Services appropriation act provision setting special shelter standards for persons in certain counties receiving General Assistance program grants which dispensed with or changed MCL 400.24; MSA 16.424 was found to be unconstitutional as being violative of Mich Const 1963, art 4, s 25 in OAG, 1981-1982, No 5951, p 304 (August 10, 1981) where it was stated:

'The Legislature may include in an appropriation act any condition on appropriations which it may lawfully impose. State Board of Agriculture v Auditor General, 226 Mich 417; 197 NW 160 (1924). In testing whether the Legislature may lawfully impose the above-stated condition, it is necessary to consider the mandate of Const 1963, art 4, s 25, which states:

'No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.'

This provision was before the Michigan Supreme Court in Midland Township v State Boundary Commission, 401 Mich 641; 259 NW2d 326 (1977), and was discussed in OAG, 1975-1976, No 4896, p 132 (September 9, 1975). It requires the Legislature to reenact and republish any act which is amended by the Legislature in another act in a manner which 'dispenses with' or 'changes' provisions of the act amended.'

Thus, with respect to the AFDC program, 1985 PA 117, s 129 is also violative of Const 1963, art 4, s 25.

Your question further requires a review of the state law provisions governing the wholly state funded General Assistance (GA) program, upon which 1985 PA 117, s 129 has a direct impact, in order to determine whether the limitation on GA grants is consistent with Const 1963, art 4, s 25.

MCL 400.24; MSA 16.424, provides, in pertinent part:

'[t]he state department (of social services) shall establish eligibility and financial standards for all forms of general public relief [General Assistance].'

By this statutory provision, the Legislature has delegated to the Department of Social Services the authority and duty to establish eligibility and financial standards governing the GA program. 1985 PA 117, s 129 dispenses with or changes without reenacting and republishing the affected statute in that it sets out another financial standard not established by the Department.

It follows that 1985 PA 117, s 129 is violative of Const 1963, art 4, s 25 as it applies to the GA program.

Since it is clear that 1985 PA 117 would have been enacted without s 129, such invalid section is severable from the remainder of the Act which remains valid. OAG, 1981-1982, No 5951.

The Legislature may, in conformity with Const 1963, art 4, s 25, amend MCL 400.24; MSA 16.424, to impose such conditions upon the authority of the Department of Social Services in fixing financial standards for the General Assistance program.

It is my opinion, therefore, that 1985 PA 117, s 129, as it relates to the Aid to Families with Dependent Children program is invalid as conflicting with federal regulations under the Supremacy Clause of U.S. Const, Art VI, cl 2 and is unconstitutional as violative of Const 1963, art 4, s 25. It is my further opinion that 1985 PA 117, s 129, as it relates to the state General Assistance program, is unconstitutional as violative of Const 1963, art 4, s 25.

Frank J. Kelley

Attorney General