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The Law, Lawyers, And The Courts: The First Line Of Defense Against Donald Trump

(This post was first published on WGBH News.)

by Lonnie Powers

There has seldom been a time when the wisdom of John Adams’s separation of powers among the three branches of government has been more obvious. The doctrine was a crucial innovation of the Massachusetts Constitution and was incorporated into the United States Constitution. The first two months of the new presidential administration have demonstrated the necessity of our system of checks and balances on arbitrary power. Thus far, only the judicial branch has acted as an effective deterrent to the administration’s extraordinary, unrestrained style of governance. The courts have courageously insisted on fidelity to the rule of law.

This was illustrated dramatically in January, when President Trump signed an executive order banning immigrants, refugees, and visitors from seven majority-Muslim countries from entering the country. No warning or guidance was given ahead of time to federal personnel charged with enforcing the ban, which went into effect immediately after it was signed. As a result, legal residents of the U.S. who had been traveling overseas were detained or turned away at airports across the country.

Attorneys flocked to airports, providing free legal aid to individuals and families swept up in the ban. This legal assistance was, in many cases, the difference between people with visas and green cards being allowed into the country or having their lives and livelihoods cast into limbo.
Within days, the ACLU, state attorneys general and individual attorneys won injunctions against the ban in federal courts in Massachusetts, New York and Washington State.

Even with this important check from the judiciary, we have seen alarming cracks in the system. At some airports, Customs and Border Protection agents refused to obey court orders issuing a stay on the ban. And President Trump used his Twitter account to attack a judge who issued a stay on the ban, referring to him as a “so-called judge” and accusing him of putting the country in “peril” with his order. The tweets resulted in threats being directed toward the judge.

Nevertheless, when the Trump administration sought to implement a more narrow travel ban in March, the judiciary responded yet again. Attorneys General of Hawaii and Maryland won court injunctions to stop it, with judges ruling that the ban continues to impose a religious test on those wishing to enter the U.S. Opposition to the religion-based, unconstitutional travel ban is the starkest example yet of the important role our independent judiciary and strong legal profession are playing in the current political environment. They have been fighting on multiple fronts—and readying themselves for more work to come.

Attorneys general in numerous states have sued to prevent the Trump administration from dismantling the Consumer Financial Protection Bureau, which protects consumers by taking action against companies that engage in unfair, deceptive, or abusive business practices. They are also suing to preserve the federal program that reduces harmful emissions from trucks and to prevent the federal government from resurrecting a national accrediting agency that permitted for-profit schools, such as ITT Tech and Corinthian Colleges, to defraud students.

The Trump administration is also proposing to eliminate funding for the Legal Services Corporation (LSC), the federal agency that makes grants to civil legal aid organizations across the country. Just as attorneys helped cut through the chaos created by the Muslim ban, legal aid lawyers untangle smaller-scale but no less devastating non-criminal legal matters like home foreclosure, the denial of veterans’ benefits, dangerous working conditions, or domestic violence by negotiating on behalf of low-income clients or helping them navigate our complex civil court system.

With Trump’s proposed budget that seeks to drastically cut funding to, or eliminate completely, an array of federal agencies and popular programs that help underserved communities and low-income families and individuals, Americans who are already struggling to make ends meet will be squeezed even further. If a fraction of the proposed cuts are enacted, the need for legal representation within these marginalized groups will increase sharply. For families living one paycheck away from homelessness, or a child on the edge of catastrophic illness, civil legal assistance can have outsized influence on the ability to live independently and with dignity in the face of increased hardship.

Sensing the catastrophic potential of leaving low-income Americans to navigate our complicated legal, government, and regulatory systems on their own, the American Bar Association (ABA) is mobilizing the legal community in a grassroots campaign aimed at encouraging lawmakers to preserve the LSC and with it our country’s commitment to making access to justice available to all in our nation who need it.

As the last two months have taught us, the legal system is critical to our democracy.

Lonnie Powers is executive director of the Massachusetts Legal Assistance Corporation.

Prepare To Dig In To Preserve Civil Legal Aid

By Lonnie Powers

We don’t quite know what to expect from the federal government in the weeks and months ahead in terms of support for civil legal aid. For decades, support for the Legal Services Corporation (LSC), the nonprofit that administers federal funding to legal aid programs across the country, has been seen as a smart investment by members of both parties.

In 1964, Congress passed the Economic Opportunity Act, a centerpiece of President Lyndon B. Johnson’s anti-poverty agenda. The law aimed to eliminate poverty by giving poor people access to educational and vocational programs, loans, and other services that would help them achieve greater financial security. It quickly became clear that free legal advice or representation in non-criminal legal matters like child support and custody disputes; home foreclosure or eviction; wrongful termination from a job, and accessing veterans’ services provided stability that was just as vital to fighting poverty as educational and financial supports. Civil legal aid became a key part of the effort to fight poverty in America.

Like Johnson before him, President Richard M. Nixon understood the necessity of civil legal aid for people struggling to escape poverty. In his proposal to create the LSC, which was passed by Congress in 1974, Nixon called local civil legal aid offices the places where “the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help.” He added, “Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.”

Numerous programs have since demonstrated the wisdom of this approach. Civil legal services can help poor people stay in their homes, prevent sudden evictions by allowing tenants to negotiate exits from housing, and ensure smooth transitions to safe, affordable housing. A pilot program launched in 2009 by the Boston Bar Association showed that poor people fighting eviction notices in housing court in Quincy, Massachusetts fared much better when they were represented by attorneys. Two-thirds of those with full representation kept their housing; only one-third of those who went through housing court without an attorney were able to do the same. Similar results have been found in New York City, San Francisco, and San Mateo County, California.

Legal advocacy in the form of large, class-action lawsuits to change laws and governmental policies that adversely ― and overwhelmingly ― affect poor people, has also been effective in ensuring access to justice regardless of income. In 1970, legal aid attorneys successfully argued before the U.S. Supreme Court in Goldberg v. Kelly that state welfare departments cannot terminate benefits without first providing applicants with a fair hearing. In 1973, California Rural Legal Assistance successfully sued to stop large agricultural operators from requiring migrant farm workers to use short-handled hoes while working in fields. (The short-handled hoes forced workers to stay bent over for long periods of time; field managers required their use because if they saw workers standing up, then they knew that they were resting and not working. After these hoes were banned, back injuries among farm workers dropped by more than 30 percent.) More recently, a federal lawsuit by Greater Boston Legal Services resulted in changes in policy by the Massachusetts Department of Transitional Assistance which had improperly denied benefits to people living with disabilities.

Despite these clear successes, state and federal funding for civil legal aid is well below what is needed ― studies show that more than 63 million Americans qualify for LSC-funded civil legal assistance, yet about 80 percent of the serious legal needs of low-income Americans go unmet. Civil legal aid must be deployed more broadly in future efforts to combat poverty, and public resources for legal assistance must be increased greatly in order to maintain progress. President Obama, a strong supporter of civil legal aid, secured modest funding increases during his tenure (though some were rolled back). He also expanded access to legal aid services through initiatives like the White House Legal Aid Interagency Roundtable (LAIR). The Roundtable has made available more grant funding for legal aid, conducted new research, and provided education to federal agency staff about how civil legal aid advances federal priorities, among other activities. But much more is needed, in terms of resources and political will, if we are truly serious about helping low-income Americans establish and maintain independent, financially secure lives.

Any attempts to weaken or dismantle federal civil legal aid must be met with principled advocacy and resistance by the legal community, social justice activists, and civil rights organizations. Civil legal aid is a powerful ― and much needed ― tool that helps people living in poverty build a foundation of stability so they can create a better future for themselves, their families, and our communities.

Lonnie Powers is executive director of the Massachusetts Legal Assistance Corporation.

Closing the ‘Justice Gap’

By Lonnie Powers

Demand for civil legal aid continues to outstrip supply. Among attorneys and others in the field, this is known as the “justice gap.”

It’s clear that we will never close this gap unless our federal and state funders dramatically increase their support. In the meantime, we must also find ways to expand access to information that can help those in need. While there is no one way to do this, self-help legal centers and smarter use of technology are surely part of the solution.

In 1996, the Legal Services Corporation, an independent entity created by Congress in 1974 to support civil legal aid organizations around the country, issued a report touting the benefits of technology to increase the capacity of civil legal aid organizations. With its enthusiastic descriptions of self-help kiosks (“The Minnesota Twins sell tickets via kiosks which allow the potential buyer to ‘see’ what seats are available on a given date, and what the view is like from those seats, reportedly prompting many ticket upgrades”), the 18-year old report is quite dated. But its basic message still holds true today: by using technology and self-help centers, the civil legal aid profession can “reshape delivery of legal services” and “assist millions of additional clients at very low cost.”

Today, self-help centers and technology have radically reshaped the delivery of civil legal aid. There are now online sources of legal assistance in each of the 50 states that provide information on civil legal cases related to basic human needs. In Alaska, that state’s court system has set up an online Family Law Self-Help Center with videos and articles providing information about child support and custody, divorce, and domestic violence. The Texas Legal Services Center runs TexasLawHelp.org, which provides free online information related to housing and employment discrimination, domestic violence, and other critically important civil legal matters.

In some instances, such as Massachusetts’ MassLegalServices.org, these online self-help centers assist civil legal aid advocates and attorneys in “more easily, accurately, and efficiently [creating] legal documents for their clients,” as Vincent Morris, director of the pioneering Arkansas Legal Services Partnership, wrote last year for the Mississippi Law Journal. (For a comprehensive overview of this aspect of the legal landscape, Morris’s “Navigating Justice: Self-Help Resources, Access To Justice, and Whose Job Is It Anyway?” is a must read, and it argues convincingly for the inclusion and expansion of “innovative self-help resources” to “ensure that unrepresented civil litigants have meaningful access to justice.”)

A number of states including Illinois, Iowa, Minnesota, New York, and others have combined the self-help aspect of online research with live help in the form of instant messaging from legal experts, who are known as “navigators.” (This model has been employed by the health care industry in the form of “patient navigators“―people who are not health care providers, but who are nonetheless familiar with the health care system and assist new patients in navigating among specialists and primary care providers.)

Yet another method of expanding access to civil legal aid information is through self-help centers located in court houses and staffed by attorneys. A district judge had nothing but praise for the Civil Law-Self-Help Center set up on the bottom floor of Las Vegas Justice Court: When litigants are better prepared, “the judge can make intelligent decisions,” District Judge Elizabeth Gonzalez told the Las Vegas Sun. “The traffic through the center is much better than I anticipated, and I’m impressed with how the staff has handled it.”

In Massachusetts, “Lawyer of the Day” programs in housing courts around the state provide advice and assistance — but not representation — to income eligible tenants and landlords. Courts in Massachusetts are also in the process of opening two pilot self-help centers, one in the western part of the state in Greenfield, and a second in Boston.

Nothing can replace the value brought by a skilled attorney or advocate to civil legal issues affecting basic human needs such as housing, shelter, and family safety. But expanding access to information through the use of technology and self-help centers to meet rising demand must be a part of the solution to closing the gap.

Lonnie A. Powers is the Executive Director of the Massachusetts Legal Assistance Corporation. He has more than 40 years of policy and legal experience at the state and national levels, having devoted the majority of his career to establishing, building, sustaining and revitalizing legal aid organizations. Lonnie began his legal career in his native Arkansas, first with the Attorney General’s Office and later with Legal Services of Arkansas, where he served as Executive Director.