American presidency: Trump draft budget proposes huge funding cut for civil legal aid

Michael D Goldhaber, IBA US correspondent

President Donald Trump’s draft budget reportedly reduces federal funding for civil legal aid from $375m to zero. The idea of eliminating the Legal Services Corporation (LSC), whose funding is already low by global and historical standards, had drawn swift condemnation from legal aid leaders of both parties, as well as from leading non-partisan lawyers’ groups.

Podcast - John Levi and Frank Strickland discuss civil legal aid

‘I think you'd be talking about a devastating blow to the orderly functioning of our justice system,’ says LSC Chair John Levi, who was appointed by President Barack Obama.

The Conference of Chief Justices sent a letter to the White House warning of ‘tragic consequences’ if LSC is eliminated – or even reduced. ‘What they’re seeing in their courts across the country is people trying to go it alone,’ says Levi. ‘Our system was not set up to be a go-it-alone system.’

Frank Strickland served as LSC Chair under President George W Bush, and cast an electoral college vote for Trump. ‘If you want equal justice for all, then you should believe in the cause of civil legal services,’ he says. ‘This is the storefront lawyer for the poor.’

The LSC began life in 1974 with a budget, in today’s dollars, of $880 million, serving fewer than 30m poor Americans. But America was always ambivalent about civil legal aid. Even as the population rose, inequality mounted, and inflation took its toll, the budget often went down. In 1982, the LSC suffered a 25 per cent cut under Ronald Reagan. In 1996, its budget plunged 30 per cent courtesy of Newt Gingrich’s Contract with America. Now the budget is $375 million for more than 60m poor Americans.

‘‘I think you'd be talking about a devastating blow to the orderly functioning of our justice system

John Levi, Chair, US Legal Services Corporation

In international terms, only 12 of 113 nations rank below the US on the accessibility and affordability of civil justice in the World Justice Project's rule of law index. America ranks between Afghanistan and Zimbabwe (with Zimbabwe performing a little better). Based on the reported budget, President Trump seems intent on dropping the US to last place alongside Cambodia.

The slow withdrawal of federal funding has long put pressure on state and local budgets and private donors to fill the gap. The bar responded to the Reagan-era cuts by earmarking the interest on lawyer trust accounts (never anticipating how much that pot would shrink in a climate of prolonged low interest rates). Non-federal sources now fund 60 per cent of US civil legal aid. The value of law firm pro bono rose sharply over two generations to partly meet the need.

Strickland believes that Members of Congress who think states will plug the new hole are fooling themselves, and extends an open invitation to them. ‘Come with me and let's see if we can get the same amount of money from the Georgia Assembly that is going to be deleted as a result of the zeroing out of the LSC budget,’ he says. ‘Join me and let's go down to the General Assembly. It's in session right now as we speak at the State Capitol. Let's go down there and see if we can get that done. My bet is we can't.’

A 1996 law already bars LSC grantees from helping most illegal immigrants, or taking class actions of any kind. Their docket is therefore dominated by individual housing or family law cases. About a sixth flow from domestic abuse.

The White House is reportedly adapting a Heritage Foundation plan that would also scrap the $400m Office on Violence Against Women. Levi notes that wife beaters can often afford lawyers because they control the family finances. But if both offices are axed, he worries, poor women seeking court protection will be ‘pretty much on their own… You just think about an individual who's been abused, having to show up in court and there you are facing your abuser.’

The new attack on LSC arrives soon after Harvard sociologist Matthew Desmond revealed in his powerfully-original book Evicted ‘how deeply housing is implicated in the creation of poverty’. Some 2.7m Americans a year face eviction, and Desmond describes housing court as a place where the only people in suits work for landlords. In many cities, he estimates that 90 per cent of tenants are unrepresented, while 90 per cent of landlords are represented. Often preventable, eviction creates a cycle of lost jobs, disrupted schooling, and homelessness.

As it happens, New York City announced the nation’s first plan to guarantee low-income tenants the right to counsel on 12 February, five days before news leaked of the White House plan to defund legal services. New York aims to spend $155m each year on tenant legal services by 2022. A cost-benefit analysis last year by the financial advisory firm Stout Risius Ross calculated that the policy will more than pay for itself by reducing the cost of homelessness.

There are approximately 900 offices funded by the LSC across America – and disproportionately in under-lawyered rural areas. Most LSC clients are white. About 45,000 each year are veterans or their families, often contesting the wrongful denial of military benefits. ‘In rural America, in small-town America, we are often the only game in town,’ says Levi.

Strickland suggests rural grantees would be hit hardest, because they’re more dependent on federal funds, and less likely to find private funds. Others may differ, Strickland says respectfully, but in his view, cutting legal services is inconsistent with the President’s pledges to honour the safety net, and to champion those who have been left behind by the global economy.

Civil legal aid has an illustrious Republican pedigree, and not only because the LSC was incorporated by Richard Nixon. Levi’s father Edward, who later served as Attorney General under Gerald Ford, founded the nation’s first law school legal services clinic at the University of Chicago in 1957. ‘My dad always believed that every generation has a responsibility, to itself and to those that come after it, to leave the country in as good if not better shape than they found it,’ says Levi. ‘I think he would be very troubled.’

Perhaps the most eloquent paean to legal services was delivered by the late Justice Antonin Scalia, who is widely revered in conservative circles. As Scalia would walk up the Supreme Court’s front steps, he’d sometimes ponder the engraved words on the pediment, EQUAL JUSTICE UNDER LAW.

‘I’ve always thought that’s somewhat redundant,’ he remarked on the LSC’s fortieth anniversary in 2014. ‘Can there be justice if it is not equal? Can there be a just society when some do not have justice?’

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