Messitte wrote in his opinion that Bauer and Jurgena are likely to prevail on the question of whether the County Council violated federal law, which states that illegal immigrants are not eligible for any state or local public benefit that is not authorized by a law passed by the state legislature. He said Montgomery County does not deny, and that no one could credibly argue, that the EARP payments are not a public benefit.
Bauer and Jurgena will also suffer irreparable harm from the EARP program, Messitte agreed. He said that the County has distributed the EARP checks so quickly to recipients that there is virtually no way to recover those funds. Messitte said the cost could end up raising the property taxes of Bauer and Jurgena, and that the court can provide no relief or compensation to offset their higher taxes.
Messitte did find that the EARP program is in "the public interest." Based on Montgomery County's description of the program, he wrote, the beneficiaries are in severe financial distress due to the coronavirus pandemic and lockdown. Messitte said the funds are likely to go to urgent needs like food and housing.
The judge will rule on the merits of the case at a later date. But under his preliminary opinion, the County cannot spend the remaining 25% of the $10 million fund until Messitte issues his ruling in the case. That fund became even more controversial after the County Council quietly appropriated an additional $5 million more than the public was notified of in the beginning.
The case was brought by right-wing government watchdog group Judicial Watch, and is Sharon Bauer, et al v. Marc Elrich et al.