Sunday, December 10, 2017

The Republican war on civil legal aid: A brief primer

Civil legal aid, a surprisingly controversial idea, has had a contentious history. As mentioned in my last post, it has been routinely attacked and accused of moving away from its mission. For many people however, it is a life raft in the choppy seas of justice. Without access to civil legal aid, many people would walk into the courtroom without representation and thus without equal access to justice. For many, the federal government's involvement in the legal services world has been essential to ensuring that they have access to justice. However, federal funding for legal services has been increasingly imperiled and the history of the Legal Services Corporation, the organization that receives the federal dollars that it gives out to member organizations, has been filled with continual threats to its existence.

The development of a federal legal aid program came as the issue of class consciousness came back to the forefront in the early 1960s. In 1960, presidential candidate John F. Kennedy boldly campaigned on the idea of venturing into a “New Frontier” and tackling the issue of poverty. After Kennedy’s death, President Lyndon B. Johnson seized upon the “New Frontier” and used it to launch his “War on Poverty.” In 1964, President Johnson created the Office of Economic Opportunity (OEO), which within a year created the Legal Services Program. The program quickly won the support of the American Bar Association and within nine months was able to open and fund 130 offices throughout the country.

The creation of the Legal Services Program saw the creation of what may perhaps be the first successful rural legal services organization, California Rural Legal Assistance (CRLA). California Rural Legal Assistance quickly proved the potency of an organization that actively advocated for the rights of rural citizens. As one of the first rural legal assistance programs in the country, CRLA sought to change the distrust that many of the rural poor in California had for the legal system. While the vast majority of the cases that CRLA took were service cases, which dealt primarily with only remedying the problems of the individual, they did often take cases that were designed to set precedent and reform the legal system. Often times, the CRLA would directly clash with Governor Ronald Reagan, often taking cases that sought to overturn his policies. In one instance, Reagan had reduced Medicaid funding and in the process, eliminated entire programs. The CRLA successfully represented an injured client who was reliant on one of the programs that had been eliminated. In Morris v. Williams, the court held that Reagan had violated California law by eliminating, instead of simply reducing the funding of several programs. Because of developments such as these, the CRLA quickly drew the ire of the Reagan Administration. As governor, Reagan had the ability to veto funding for the CRLA, but his veto was subject to approval by the director of the OEO. Knowing that he lacked the political will to have his veto upheld, Reagan appointed a new director for the California OEO and commissioned a study into the activities of the CRLA. The study alleged that the CRLA was connected to unions, racial violence and had allegedly exploited the poor by refusing to simply settle their cases. In December of 1970, Ronald Reagan vetoed funding for the CRLA. The federal OEO did not immediately overturn Reagan’s veto, but instead funded CRLA for six months while they investigated the report itself. The OEO found that many of the allegations made in the report were without merit and ultimately overturned Reagan’s veto.

In its early years, the program was dependent upon yearly appropriations from Congress to remain functional. Upon assuming the presidency however, Richard Nixon sought to find ways to make the program permanent. In February of 1971, President Nixon sent a message to Congress advocating for the creation of the Legal Services Corporation, and after years of Congressional negotiation, he was finally able to sign the bill into law on July 25, 1974. One of the LSC’s biggest advocates in its early years was Hillary Clinton, who was appointed to the board of directors by President Jimmy Carter. The selection of Clinton marked a victory for the rural impoverished. As the wife of Arkansas Attorney General Bill Clinton, Hillary was familiar with the legal problems of the rural poor and was able to advocate for the interests of the rural poor and serve as a face for their interests.

The LSC would face its first big challenge when former California governor Ronald Reagan ascended to the presidency in 1981. As you will recall, Reagan had directly clashed with the CRLA years earlier and had no love for legal services organizations. Reagan first tried to eliminate the organization by defunding it completely, but that failed. In his first budget, Reagan proposed that the LSC be dissolved and that block grants be given to states so they could have complete autonomy as to how the money could be spent and how legal services would be structured in their state. The Reagan Administration reasoned that a change in structure would allow legal services to advocate for the poor instead of “promo[ting] social causes.” While Reagan was unsuccessful at entirely eliminating the program, he did achieve a 25 percent cut in his first budget. By 1982, the LSC’s funding had been reduced from $300 million in 1980 to $241 million. The effects of this cut were felt quickly as many offices had to lay off staff and even close entirely. Prior to Reagan’s election in 1980, there were 1,406 field offices funded by the LSC and by 1982, this number had been reduced to 1,12192. In 1980, these offices employed 6,559 attorneys and by 1982, that number had dropped to 4,776. Reagan encountered difficulty getting his appointees to the LSC board approved by the Senate, and as result would often just make recess appointments to the board. In fact, for much of the Reagan Administration, the LSC was governed by a series of hostile recess appointees with little stability in its governance. The Reagan-era LSC often harassed attorneys at local LSC field offices by confronting them in an adversarial manner and demanding records that attorneys could not ethically provide. They also withheld funding from offices for “technical violations” and sought to impose restrictions on them that went beyond the restrictions imposed by statute.

The end of the Reagan Administration and the beginning of the George H.W. Bush administration saw change for the LSC. Bush did not share his predecessor’s hostility towards legal services and actually increased funding for the program throughout his presidency. When Bush left office in 1993, he had increased funding for legal services to $350 million. The election of President Bill Clinton (husband of former board chair Hillary Clinton) saw continued progress for the LSC. President Clinton raised funding for the LSC to $400 million in his first budget. The trajectory for the LSC now looked to be in stark contrast to what it had been in the Reagan years.

1994 was a year of great change in America however. The Republicans took back the House of Representatives for the first time in many years and sought to quickly implement their policy proposals. In regards to the LSC, Republicans sought to return to the Reagan era hostility towards the program. In 1995, the House adopted a budget that would reduce funding for the LSC incrementally before eliminating it entirely after the 1997 fiscal year. Like Reagan, the Republican House delegation was not successful at entirely eliminating the program but they did however achieve significant cuts. They also succeeded at imposing significant restrictions on LSC, such as reducing the ability of local offices to take class action cases that are likely to result in legal change and also eliminating most of their ability to engage in legislative lobbying. Under the Republican House, funding for the LSC fell to $278 million, resulting in 900 fewer attorneys working at LSC funded offices and the closure of 300 local offices.

Like his father, President George W. Bush did not display much hostility towards the LSC and funding for the programs increased incrementally throughout his presidency. By the end of the Bush presidency and beginning of the Barack Obama presidency, the budget for the LSC had increased to $390 million. Obama sought to increase funding for the LSC, and was successful at getting funding increased to $420 million by 2011. Much like Bill Clinton however, Obama was faced with a Republican tidal wave during his first term and had to contend with their calls for cuts to the program. In 2011, the LSC requested that their budget be increased to $516.5 million in order to combat the increased need for legal services for the poor bought on by the economic downturn. The Obama Administration only asked for a modest $30 million increase, while congressional Republicans asked for a $75 million decrease. The two sides ultimately settled on $348 million in funding for FY 2012, its lowest level of funding since 2007. The LSC was once again cut in FY 2013 to $316 million before ultimately rising again to $343 million by FY 2015.

The LSC once again finds itself under attack with President Donald Trump proposing its complete elimination in his most recent budget. The Republican House of Representatives has proposed a decrease to $300 million.

The history of the LSC has been filled with resilience in the face of hostility. The Legal Services Corporation has stood at the forefront of the fight against injustice against the poor and has often found itself having to justify its existence. It is important that we keep its history in mind as it once again enters into hostile waters.

Monday, December 4, 2017

Investing in solving the rural lawyer shortage can pay economic dividends

One of the biggest questions around solving the rural lawyer shortage is funding. Where is the money going to come from? One possible source of funding to hire rural attorneys is increased funding for civil legal aid. However civil legal aid funding is on the decline and rural areas often bear the brunt of these cuts. In many states, such as North Carolina, reductions in Legal Aid funding have even led to the closure of offices in the rural and often underserved parts of the state.  President Donald Trump's budget even calls for the elimination of funding for the Legal Services Corporation, which would further exacerbate these issues.

Much of the rhetoric around defunding Legal Aid has centered around the idea of waste and that Legal Aid isn't fulfilling its mandate. As Rep. Alex Mooney of West Virginia said in 2015:
To cut Federal waste, my third proposal defunds the Legal Services Corporation, an agency which operates far outside its original mandate after decades absent of any congressional oversight. Defunding the Legal Services Corporation is a proposal supported by both the Congressional Budget Office and The Heritage Foundation. Instead of providing legal services to the poor, as is its mandate, the organization has been used to advance pro-abortion and politically ideological policies, as well as increase spending on welfare.

Defunding this organization would remove a Federal agency operating outside of its mandate and would also save taxpayers millions of dollars.
Without litigating the veracity of his other claims, that will come in a future post, I want to analyze this idea that defunding Legal Aid will actually cut "federal waste" and "save taxpayers millions of dollars."

In 2013, the New Hampshire Supreme Court Access to Justice Commission sponsored a study  that analyzed the impact of civil legal aid on the economy of New Hampshire, a similar study was sponsored in 2016 by Maine's Justice Action Group. Given the fact that these two states are predominantly (if not entirely in Maine's case) rural, I will be using these two studies to inform my analysis of this issue and the potential to legal services to boost a rural economy.

In 2011, assistance provided by New Hampshire's legal services organizations accounted for an $84.4 million dollar boost to the New Hampshire economy. The sources of this money varied from federal programs to child and spousal support to even cost savings associated with avoiding paying for domestic violence shelters. In 2015, these numbers totaled to $37 million in Maine. This is money that is coming into the state that may not have otherwise come into the state. This is also money that goes into the local economy.

What about the idea that these people could just hire an attorney and secure these benefits anyway? As the Maine study notes, 80% of civil legal aid clients are from households with incomes below $25,000, representing the bottom quartile of the state's population. These are simply people who would not otherwise be able to afford an attorney and it is likely that without civil legal services, millions of dollars would be lost from the Maine and New Hampshire economies. For rural citizens, the affordability issue is multiplied by the short supply of attorneys in rural communities. As I noted here, rural Maine is facing a severe lawyer shortage. Without legal services, if you cannot afford one of the local attorneys, who themselves are often underpaid and overworked, you are out of luck. With a robust legal services apparatus however, that issue is at least partially alleviated. This is a direct rebuke of Rep. Mooney's claim that legal services organizations are not providing services to the poor.

Recipients of civil legal aid services are also better able to advance their careers and further their education. For rural communities facing a labor shortage, trained workers are an invaluable asset to the local economy. A student who has to leave school has just lost an opportunity to learn a skill or trade that they could use to contribute to their local economy. Not only did the community lose a future contributor but that person may have also lost the opportunity to provide a stable future for their families.

A student may have to leave school for a variety of reasons, many of which could be fixed if they had competent legal counsel. Here are three examples of how this would look:
  • A student who is facing food insecurity applies for SNAP benefits but is denied. With the help of counsel, they would be able to appeal and possibly get into the program but without counsel, they may have to leave school to work extra hours to make up for the difference. As Maslow's hierarchy of needs dictates, the need for food is one of our most basic needs 
  • A student who is facing eviction from their housing. Without counsel, a student would likely lose their housing and either leave school entirely or watch their grades fall as they struggle with housing insecurity. With counsel however, they may be able to retain their housing and, if applicable, any government benefits that help pay for it. 
  • A student finds themselves in a domestic violence situation and without the assistance of counsel would likely have to deal with harassment and violence.  The stress would almost certainly interfere with their studies. With counsel, they can seek a protective order and other legal remedies that would help keep the person out of their lives. 
There are many other examples, of course, but ponder these three, how they may interfere with a person's studies and how legal services can help remedy their situations. In Maine, increased wages brought about because of education accounted for $2.75 million (calculated over a 10-year period) of the $37 million quoted above. 

You can read the studies for more information, charts, graphs, and more precise quantitative analysis. It is clear from these studies that Rep. Mooney's claim that legal service organizations represent a waste in federal funding is simply preposterous. Rep. Mooney's decision to unfairly attack "welfare" also represents a gross misunderstanding of the benefits that federal programs provide to local communities. As seen above, these programs represent millions of dollars that flow into local economies that help people purchase necessities such as food, housing, and child care. The benefits of these dollars goes beyond the populations that they directly help, they also provide money that helps to keep local businesses open. In an impoverished rural community, these dollars can even represent a substantial chunk of the local economy. As seen in New Hampshire and Maine, cutting legal services would not "save taxpayers millions of dollars," it would instead cost taxpayers millions of dollars in lost economic revenue. A common misconception seems to be that government benefits evaporate as soon as they reach the pockets of the people who receive them. However, these dollars are often reinvested in local businesses and the local economy, a fact confirmed by these studies.

Anyone who is concerned about lifelong dependency on government programs should be heartened by the idea that these services do help people get an education and begin to climb the ladder out of poverty. To take away access to the courts would take away access to these programs and would likely doom a lot of people to a lifetime of poverty.

Legal services organizations provide an invaluable service to a population who would not otherwise have access to the courts and helps them secure benefits that provide funding for the local economy. They also enable students to remain in school and receive the training needed to be valuable contributors to the local economy in their own right. When 80% of the clients are from the bottom 25% of the population, it is clear that legal services organizations are providing a service that may not otherwise be possible.

Saturday, December 2, 2017

Foreign doctors loom large in rural healthcare

Rural America is starved for professionals. A rural lawyer shortage is the norm across much of the land, and doctors in rural places have nearly twice as many potential patients to serve as do their urban counterparts. A recent story in the “Struggling For Care” series from Valley Public Radio highlighted another dimension to the scarcity of doctors in California’s Central Valley:
Throughout California, roughly 27 percent of all doctors are international medical graduates (IMGs)…In the San Joaquin Valley, that number is nearly 50 percent. 
When IMGs come to the U.S., no matter how much experience they have, they’re required to complete a residency before they can legally practice. To do this, most get a J-1, or foreign exchange visa. When it expires, they’re required to return home—unless they spend three years working in an underserved area. 
After the J-1, foreign doctors commonly move on to an H-1B visa. That program brings in specialty workers ostensibly for jobs that Americans can’t fill. After a certain number of years on the H-1B, doctors can then apply for permanent residency and a path to citizenship. 
But since taking office, President Trump has made some changes to this pathway and hinted at others.
In a previous post, I questioned whether media accounts were overstating Trump’s potential to affect sectors heavily reliant on immigrant labor. In particular, I challenged reports that Trump’s efforts to enact a “travel ban” would bar potential IMGs or chill them from pursuing work in the United States. If I have been proven right, it has been for the wrong reasons – Trump has been simultaneously impotent in the legislative arena and impressive in the executive realm. Despite unified control of Congress and the White House, Republicans failed to deliver their fabled “repeal and replace” healthcare bill and may yet fail to ram through a tax plan, potentially leaving Trump without a significant legislative accomplishment in his first year.

But in the Executive Branch, a different story unfolds. Although the travel ban has faced repeated setbacks in litigation, most of Trump’s immigration moves have gone unchecked. The mass immigration raids of a decade ago have returned, and so has an environment where chance encounters with ICE are likely to end in removal. Impervious to public outcry, Trump’s deportation force has hunted domestic violence victims in courthouses and tracked parents to their children’s hospital beds. Weeks after taking office, Trump cut off expedited processing of H-1B visas, which allow IMGs to obtain "green cards" and potentially remain in rural clinics and hospitals permanently. As the consequences of this brash move became clear, the administration reversed course. More recently, Trump has imposed a kind of "extreme vetting" to H-1B renewals. .

The Valley Public Radio story also mentions unspecified plans to manipulate the J-1 visa process. Here, again, the president has substantial latitude. While it has been common over the last two decades to waive the return-home requirement for J-1 visa holders who agree to serve in healthcare shortage areas, the policy is more complicated. Federal law states that an application must receive a “favorable recommendation” based on a finding that a waiver is “in the public interest.” As is generally the case, regulations add substance to these vague standards; as always, those rules can be changed in a matter of months by the Executive Branch. Given the Trump Administration’s outsized success in the immigration realm, it is not hard to imagine how it might disrupt the pipeline for IMGs in under-served rural communities.

Although the Valley Public Radio piece alludes to the “San Joaquin Valley’s complicated relationship with international doctors,” it does not specify what the complication is. It may be – as has been explored repeatedly in this blog in contexts such as domestic spending, farm workers, and opioid abuse – that the weight of Trump’s policies falls most heavily in the places most eager to elect him:

San Joaquin
California (statewide)

A popular analysis of Trump's moves is that he is more constrained by the limits of what he can achieve than by the breadth of what he will attempt. If true, rural communities that depend heavily on IMGs have reason for concern: Trump's antagonism toward foreign workers is no secret, and he enjoys significant power to reshape their pathway to enter and remain in the United States. People in rural places already suffer from high healthcare costs, limited access to care, and current trends suggest that young people (potential doctors) will continue to leave rural places in droves. Under these conditions, IMGs' role in closing the doctor-patient gap is a matter of life and death.