COST OF THE LEGAL
A two trillion dollar bypass of electoral accountability?
By Howard Phillips,
President, The Conservative Caucus Foundation
and Peter J. Ferrara, Senior Fellow, National Center for Policy Analysis
Published in The Washington Times, April 23, 1995
President Clinton proposes to spend $415 million in his budget next year for the Legal Services Corporation (LSC). But this does not begin to measure the real costs of the LSC. That $415 million goes to fund a legal and political crusade by left-wing lawyers and political activists to hold up middle-class taxpayers for unbounded income redistribution and welfare schemes.
From the beginning, a principal avowed purpose of the Legal Services movement has been "law reform." That means changing the law wherever possible to suit the left-wing ideology of the Legal Services activists. The very essence of that ideology is class warfare, organizing tax-users, as a class, against tax-payers, for the purpose of taking from those who have, to give to those who don't.
This is all the more insidious because these left-wing activists can bring their cases before left-wing judges, whose avowed legal philosophy is not to rule in accordance with their personal biases. Their rulings then serve as precedents.
In this and other ways, left-wing activists bypass the democratic process in enacting their ideology into law.
This also occurs when left-wing bureaucrats in Federal or state agencies settle lawsuits brought by left-wing Legal Services activists on an ideologically "sweetheart basis" creating precedents which effectively change the law in accordance with left-wing ideology.
Republican Congressional leaders should be especially concerned about such anti-democratic lawmaking, because it effectively undercuts them as the duly elected, Constitutionally authorized legislators, in favor of nonelected lawmakers who hold opposite philosophical views.
Measuring the true cost of the LSC, therefore, should be included in the impact of actual, threatened, and feared LSC-related suits and other activities, on Federal, state, and local government spending for increased welfare or other government benefits. Viewed in this way, the LSC is properly seen as a central player in our current national deficit and debt problem.
Disability Programs. Evidence of the high cost of Federally subsidized legal action can be seen in the effects of LSC litigation on the Social Security Disability Insurance and the Supplemental Security Income (SSI) programs. LSC grantees regularly sue the government to obtain coverage under these programs for drug addicts and alcoholics.
For example, in Jones v. Shalala (1993), the Legal Assistance Foundation of Chicago sued to obtain SSI benefits for a 44-year-old man whom they alleged was disabled due to alcohol and opioid dependence and antisocial personality disorder. The Legal Services lawyers argued that the claimant's admitted stealing of $60 per day to support his drug and alcohol habits did not show that he was capable of work.
Similarly, in In Re M (1993), the Disability Advocacy Clinic of Albuquerque sued to obtain SSI benefits for a claimant allegedly disabled due to chronic alcohol and drug abuse and a personality disorder, as well as arthritis and lower back pain. In Trujillo v. Sullivan (1992), the Legal Aid Society of Metropolitan Denver obtained Social Security disability benefits for a claimant who suffered from alcoholism and back pain. In In Re X (1992), Southern Minnesota Regional Legal Services won disability benefits for a 40-year-old heroin addict on the grounds that his addiciton rendered him incapable of work. In S v. Sullivan (1992) Alaska Legal Services won Social Security disability benefits for an alcoholic who could not work because he could not stop drinking. In Smith v. Sullivan (1993), Merrimack Valley Legal Services of Massachusetts won SSI benefits for a drug addict who also suffered from migraines and arthritis.
The General Accounting Office reports that about 250,000 individuals receive Social Security or SSI benefits costing about $1.4 billion per year on the basis of claims related to drug or alcohol abuse. Providing government cash without condition will help them buy more drugs and alcohol, at taxpayer expense.
Another favorite LSC crusade is obtaining disability benefits for claimants seemingly ineligible under the governing legislation. In In Re Mills (1993), New Hampshire Legal Assistance obtained SSI disability benefits for an 8-year-old child on grounds of partial hearing loss and vertigo.
In In Re S (1994), the Legal Aid Society of Roanoke Valley in Virginia obtained SSI benefits for an 8-year-old boy because of an attention deficit disorder.
The Social Security Administration estimates that almost 400,000 children nationwide are or will soon be receiving SSI disability benefits, at a cost of $4.13 billion over five years. Of course, the whole notion of assigning disability benefits to ineligible parties is dubious. Disability benefits were intended to replace lost income for adults who can no longer work and support their families.
There is also a pattern of LSC cases seeking disability benefits for adults who are capable of work. In In Re S, the Disability Advocacy Clinic of Albuquerque sued to obtain Social Security and SSI disability benefits for a 39-year-old woman who suffered from "intractable and painful calluses in both her feet."
In In Re W (1993), the same group won Social Security disability for a 23-year-old woman who testified that she could lift no more than 10 pounds and stand for only limited periods of time, and suffered from hoarseness.
In Schultz v. Nelson (1993), New Orleans Legal Assistance Corporation won benefits for a 56-year-old woman whose "tendonitis" supposedly precluded her engaging in productive endeavor.
In In Re Weimer (1994), the University of Hawaii Elder Law Program Program won benefits for a 60-year-old man suffering from depression, even as a separate government agency was paying him to provide home health care services to his live-in partner.
In Slover v. Sullivan (1991), the Bucks County Legal Aid Society won SSI disability benefits for a 43-year-old woman who said she suffered from ulcers, back pain, headaches, anxiety, and depression. She also claimed heart problems, causing a seizure disorder, though tests showed no heart abnormality.
But what about the middle-class taxpayer? In Anderson v. Collis (1992), the Legal Aid Society of Minneapolis sued community residents opposed to location of a group home for the mentally disabled in their neighborhood.
In Potomac Group Home Corp. v. Montgomery County (1993), the Bazelon Center for Mental Health Law in Washington, D.C. challenged county licensing laws concerning group homes for the disabled, asserting that the Fair Housing Act is violated by a requirement that notice and comment by neighbors of license applicants be considered. This may be the first time anyone related to the LSC has opposed notice and comment for anything.
Spending for the SSI program has soared to $35 billion this year from $9 billion in 1985 and $4.7 billion in 1975. Similarly, spending for the Social Security Disability Insurance program has risen to $42.5 billion this year, up from $25.1 billion in 1990 and $19.3 billion in 1985.
Indeed, the Disability Insurance trust fund has been completely exhausted as a result, and disability benefits are currently being financed in part by drawing out of the trust fund for Social Security retirement benefits. The LSC and its grantees have been part and parcel of these developments.
Welfare Benefits. The LSC crusade to sue Federal, state and local governments to stop any restrictions on welfare spending and to substantially expand welfare wherever possible has cost countless scores of additional billions of dollars. When New Jersey adopted a welfare experiment to eliminate routine increases in subsidies for persons on welfare when they reproduce, Legal Services of New Jersey was there to sue the state (as well as the Federal government) for granting a waiver. The Legal Services lawyers argued that the proposed limits in the availability of supplementary subsidies somehow restrained the ability of women to have more children, when in fact it merely restrained their ability to require other mothers and fathers to subsidize somebody else's children.
Similarly, when Michigan reduced AFDC benefits in 1992 under an appropriations bill requiring statewide across-the-board budget cuts, Michigan Legal Services was there to sue the state.
Another LSC grantee sued Ohio in 1993 to stop reductions in the state's General Assistance benefits, alleging a right to welfare under the state's constitution.
In 1993, the Legal Aid Society of Alameda County won a judgment stopping the county from limiting General Assistance benefits from employable recipients.
In 1992 and 1993, LSC grantees filed similar suits against reductions or limits in AFDC or General Assistance benefits against California, Massachusetts, San Diego County, Maryland, Rhode Island, Tennessee, Los Angeles, Iowa, Kansas, and Maine.
These suits can also be quite profitable for LSC grantees. In 1993, the National Center for Youth Law won $314,107 in attorneys' fees in a suit against Arkansas that forced the state to expand its child welfare system. In another case, seven LSC grantees in California won $1.2 million in legal fees for a successful suit against the state demanding increased benefits under the state's Medicaid program.
Paternity Cases. Welfare reform advocates have sought to require each mother receiving welfare subsidies to identify the father(s) of her children so the state can pursue him(them) for child support. Payment by fathers would reduce the burden on tax-paying families struggling to make ends meet.
Unfortunately, LSC grantees have vigorously sought to nullify such efforts. For example, in one 1993 case in Minnesota, Northwestern Minnesota Legal Services successfully argued that an AFDC recipient had adequately complied with the legal requirements to identify the father of her child, even though the two men she had variously identified were excluded from possible paternity by blood tests.
Legal Assistance of North Dakota and Oakland Livingston Legal Aid in Michigan successfully argued the same position in cases in their states the same year. In another case, Legal Services of Eastern Michigan openly challenged the legality of requiring paternity identification for prenatal care benefits under Medicaid.
Residency Requirements. In Shapiro v. Thompson, 394 U.S. 618 (1969), which prohibited states from establishing residency requirements for welfare, LSC-funded lawyers were central. Since then, Legal Services attorneys have immediately attacked any effort to establish such requirements. For example, in 1992 Southern Minnesota Regional Legal Services successfully sued to strike down a 6-month residency requirement for General Assistance benefits in that state. Monroe County Legal Assistance Corp. brought suit against a similar requirement in New York state in 1993. In that same year, Legal Aid Society of San Mateo County sued California to strike down a one-year residency requirement for full AFDC benefits.
Aliens. Another LSC-promoted lawsuit was Graham v. Richardson, 403 U.S. 365 (1971), in which it was held that states may not deny welfare benefits to aliens. Since then, LSC grantees have been busily suing to obtain welfare and other benefits for a full range of non-citizens anxious to obtain regular subsidies from U.S. taxpayers.
For example, in 1993 Gulfcoast Legal Services sued to obtain Social Security retirement benefits for an illegal alien who had twice been deported for criminal activity.
In another case, Pine Tree Legal Assistance of Maine sued to obtain Social Security disability benefits for an alien seeking political asylum in the U.S. Similarly, Western Reserve Legal Services in Ohio sued in 1993 to obtain AFDC, Medicaid, and food stamp benefits for an alien family from Kuwait seeking U.S. political asylum.
Medicaid. In 1993, Vermont Legal Aid sued that state to stop a 2% cut in its Medicaid program. Another LSC grantee sued Pennsylvania to challenge limits on cold medications and dental services under that state's Medicaid program. Legal Services of Eastern Missouri brought a similar suit against Missouri in 1992. In the same year, LSC grantees in New York and Maine sued to stop the adoption of co-payments for the states' Medicaid program. In 1991, Legal Services of Wichita sued Kansas to stop reductions in its Medicaid program. In 1992, the National Center for Youth Law sued California to expand its Medicaid program to cover preventive dental services for children.
Housing Benefits. Still another LSC grantee brought suits against Madera County and the City of Oxnard in California in 1993 and 1994 to demand more government subsidized housing. Other suits against Pennsylvania, New York City, and New Haven, Connecticut have alleged a "right to shelter" provided by the government.
Another suit against New York City in 1992 demanded higher rental allowances. Relentless litigation by Passaic County Legal Services in 1993 finally led to the elimination of a 12-month limit on "temporary" rental assistance in New Jersey. In that year, Cambridge and Somerville Legal Services also sued to stop reductions in monthly rental allowances in Massachusetts.
In 1991, Western Massachusetts Legal Services sued the state under an emergency housing assistance program demanding benefits for furniture storage, moving expenses, security deposits, transportation, child care, nutrition allowances, rent, as well as funds to cover the cost of damage tenants may have caused in their taxpayer-subsidized apartments.
Other Welfare Cases. In 1991, the Legal Aid Society of Minneapolis won benefits for a pregnant 18-year-old living in her parents' basement, on the grounds that she became a separate household from her parents when she became pregnant. Also in that year, Kansas Legal Services won full SSI benefits for a claimant on grounds that room and board received by the claimant from his mother could not be counted as income because it was a loan he would have to repay later. Another LSC grantee found a judge who agreed that public assistance may not be denied to a pregnant minor due to the availability of the parents' home as a potential alternative resource, and that applicants were not required to pursue potential alternative resources as a condition of eligibility for food stamps.
In another case, Legal Services Organization of Indiana sued the state to stop termination of AFDC benefits to a parent whose children had been removed from the home by the state because she had failed to exercise responsibility for the day-to-day care and control of the children. Of course, eligibility for ADFC benefits is entirely dependent on having children in the first place.
One LSC grantee won continued AFDC benefits for a recipient who decided to become a VISTA volunteer rather than get a job. Her VISTA stipend and allowance were also excluded from her income in calculating AFDC eligibility. In 1992, still another LSC grantee sued the U.S. Department of Education demanding expansion of the department's vocational education program to millions of additional students regardless of the availability of Federal funds.
After the Los Angeles riots in the summer of 1992, another LSC grantee sued and won from the U.S. Department of Agriculture a bonus of emergency food stamps for residents of the area. The USDA was also required to pay court costs and attorney's fees.
Total Federal, state and local welfare spending in the U.S. today has soared to $350 billion per year, up from $10 billion in 1965, when Federal legal services activities had just gotten underway (in 1963). This is considerably more than is now spent on national defense.
The LSC's national corps of litigative storm troopers has played a major role in running up the bill.
Indeed, as early as 1976, welfare test cases pursued by LSC grantees were touted in one major study as adding 5.5 million beneficiaries to the welfare rolls. Even earlier, in 1973, Jerome Carlin, a former director of the San Francisco Neighborhood Legal Assistance Foundation, was already bragging.
"Between 1968 and 1973, largely because of a succession of highly effective lawsuits brought by the foundation, the total number of California's welfare cases in the Aid for Dependent Children program (AFDC), the largest welfare program, more than doubled (from 208,000 to 428,000). The average grant per AFDC recipient increased by almost one-third over the same period (from $48 to $67 a month).
Moreover, by 1972 the annual cost to the state of California (i.e., benefit to our clients) resulting from just seven of the foundation's many successful welfare cases were over $270 million! (This nearly equals the total federal contributions to all legal services programs since their inception[as of 1973.])"
Public Housing. Another major effect of LSC litigation has been to interfere with responsible administration of the nation's public housing, contributing greatly to its deterioration and ultimate unlivability.
For example, in Furr v. Simmons (1993), when a landlord of a government-subsidized housing facility sought to evict a tenant whose daughter had engaged in drug dealing on the premises, Legal Services of Greater Miami prevented her eviction by arguing that the landlord had prior knowledge that drug activity was occurring on the premises and had failed to take action to stop it.
Another LSC grantee successfully argued in a Buffalo case that a public housing tenant who had engaged in criminal or drug activity could not be evicted without 30 days prior notice.
Connecticut Legal Services stopped termination of a tenant's housing subsidy for drug related criminal activity on grounds that the tenant had not been allowed to confront and cross-examine witnesses. The Legal Services lawyers in that case also won $20,000 in legal fees from the local public housing authority.
Other LSC grantees have defended against eviction for drug dealing activity on the grounds that a notice stating the tenant was "dealing cocaine out of your unit" was too vague, and that a tenant whose daughter was selling drugs on the property was not aware of the activity.
In a North Carolina case, an LSC grantee successfully defended against eviction even though the tenant's son had shot and killed a child who had been living in another apartment in the complex.
In a Virginia case, a tenant who had engaged in violent and destructive conduct on the property was successfully defended because of procedural errors in the eviction process.
In a Connecticut case, another LSC grantee successfully argued that the local Public Housing Authority must repair apartment damage for a tenant even when the damage was caused by the tenant or her guests.
In a New York case, LSC-funded litigators successfully argued that a tenant could not be evicted even though her poor housekeeping had led to a state of squalor and disrepair.
In a Pennsylvania case, an LSC grantee sued to force the local housing authority to accept as tenants minors who had not been emancipated from their parents.
In Washington state, another LSC grantee organized a program to get such minors into public housing.
Other Cases and Activities. In 1992, Legal Services of Greater Miami filed briefs arguing that children should have standing to sue to terminate their parents rights over them, saying that legitimate parental rights would not be diminished. Another LSC grantee that year sued to demand that criminals in a mental health facility be allowed to vote.
When Washington state reformed its parole laws to ensure longer sentences for convicted criminals, Evergreen Legal Services was there to sue to prevent the changes from appplying to those currently in prison.
When the City of Santa Ana attempted to regain control of its streets by prohibiting camp outs, use of sleeping bags, and the storage or abandonment of personal property in the city streets, Legal Aid Society of Orange County was there to sue again claiming it was unconstitutional.
Similarly, when Seattle passed ordinances prohibiting sitting or lying on the sidewalks in the city's commercial areas, and aggressive begging, Evergreen Legal Services sued on the grounds claiming that the ordinances were unconstitu- tional.
Evergreen Legal Services sued Seattle in 1993 to demand bilingual education in the city schools. In 1992, Vermont Legal Aid sought to obtain unemployment benefits for a private school teacher fired for drug possession, on the grounds that the teacher had not lost his job through misconduct.
LSC grantees also carry on their left-wing crusades outside of court. For example, these tax-subsidized "public interest" law firms have conducted vigorous public campaigns trying to defeat the Proposition 13 tax limitation referendum in California in 1978, and last year, they campaigned heavily against California's Proposition 187 which sought to eliminate mandatory subsidies and benefits for illegal aliens and their relatives. LSC grantees consider group representation, community education, grass-roots organizing, and other forms of lobbying as central to their mission, all the while opposing tax cuts and social spending reductions, while seeking to expand all welfare and income redistribution efforts without limit. Taxpayers also receive for their LSC contribution about 200,000 divorces each year facilitated by LSC grantees.
The total finanical burden imposed on American taxpayers by LSC activities during the past thirty years amounts to many hundreds of billions of dollars.
A total of more than two trillion of the Federal government's five trillion dollar debt can reasonably be ascribed to the efforts of Federally-funded legal service activists, whether by litigation, procuring of grants and contracts, grass-roots organizing, lobbying, or legislative impact.
Budget crisis or not, for a Republican Congress to pay left-wing lawyers several hundred million dollars per year to sue Federal, state and local officials before liberal activist judges, in order to accomplish the opposite of what the elected Congress is trying to do, would be the height of folly. The LSC must be zeroed out.
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