Harvard Law & Policy Review

Obama Legacy Symposium

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Solicitor General Don Verrilli: What We Stand For

I was fortunate to be a part of many great moments, in and out of the Supreme Court’s chambers, during my tenure as Solicitor General in the administration of President Obama. But of all the great moments, the one that means the most to me occurred at the end of a grueling three days of oral argument in the historic Health Care Case, when I spoke these words:

The Medicaid expansion that we are talking about this afternoon and the provisions we talked about yesterday, we have been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance.

There is an important connection, a profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford . . . there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put upon them and have the opportunity to enjoy the blessings of liberty.

And the same thing will be true for a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I can multiply example after example.

In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure the blessings of liberty. And I think that that is important as the Court’s considering these issues that that be kept in mind.

As I made that statement, the Affordable Care Act appeared to be hanging by a thread. The argument a day earlier on the constitutionality of the Act’s so-called “individual mandate” had not gone well at all. Hostile questions came at a furious pace, and my handling of them had ignited a vortex of public criticism. Overnight, conventional wisdom had congealed around the prediction that the Court would strike down the mandate, and with it the market reforms that would have made affordable health care available to millions of Americans whose pre-existing conditions had locked them out of the health insurance market. As devastating as that would have been, by the time the last day of argument had drawn to a close, the Act’s prospects appeared even bleaker. Earlier that day, during questioning about “severability” (i.e., if the Court declared the mandate invalid, how much of the rest of the Act would fall with it?), a majority of the Justices seemed poised to wipe out the entire Act—the Medicaid expansion that offered the prospect of affordable health care to tens of millions more Americans, the Medicare reforms, everything.

I am under no illusion that my closing statement made the difference on the Court’s ultimate decision. At that point, I wasn’t trying to offer a finely calibrated argument designed to sway one Justice or another to my side. Rather, with the Affordable Care Act hanging in the balance, I thought the moment demanded a statement, in the clearest possible terms, of what was at stake.

Throughout the three days of argument, those challenging the Act had laid claim to the mantle of liberty. As the argument drew to a close, they appeared to have succeeded in framing the case as a contest between the liberty protected by the Constitution’s guarantee of limited government and the handiwork of out-of-control policy wonks who sought to displace private choice with oppressive bureaucratic diktat (that is why the so-called “broccoli horrible” was so effective; it captured precisely this sense of things). I could not let that stand. The Health Care Case did not ultimately pit claims of liberty against claims of policy expertise. At bottom, it was a case about what our Constitution means when it speaks of “securing the blessings of liberty.” Do we secure liberty solely by restraining the federal government’s power or may the government use its allocated authorities to create the conditions that make it possible to enjoy liberty’s blessings? I was consciously evoking a conception of liberty that stretches back at least to the New Deal and FDR’s Four Freedoms. I hoped that doing so would help our case by reinforcing the salience of the settled jurisprudential understanding that, within wide margins, it should be up to the politically accountable branches to work out the right balance between these dueling conceptions of liberty. But if we were to lose, it was imperative that there be no ambiguity about what that loss would signify, both for our jurisprudence and for the lives of so many Americans. Fortunately, a majority of the Justices agreed with our understanding of the Constitution, and thousands of people (inside the government and out) then put their shoulders to the wheel to make the promise of affordable health care a reality for tens of millions of Americans.

Of course, the Constitution speaks not simply of securing the blessings of liberty but of doing so “for ourselves and our posterity.” As I write these words, the blessings of liberty that the Affordable Care Act secures once again appear to be hanging by a thread—threatened this time by the prospect of legislative repeal once Donald Trump assumes the presidency. So this moment too demands clarity.

As high as the stakes were in 2012, they are higher now. Should the Congress and the new President take the fateful step of dismantling the Act now that it has gone into effect and done so much to improve the lives of so many Americans, they will have much to answer for. They will have to answer for ending life-saving treatment for mothers with breast cancer who will die without that treatment and leave behind grieving children and spouses; for ending ongoing care that makes it possible for those with diabetes, heart disease and other chronic conditions to live full lives and avoid the ravages that these conditions would otherwise inexorably inflict; for extinguishing the guaranteed availability of preventive care that would ensure that children never develop such debilitating conditions in the first place. Just as important, they will have to answer for upending the financial and emotional security that the law’s very existence provides to millions of Americans; to parents who thought that they would never again have to worry that, if anything happened to them, their children with conditions like multiple sclerosis would be unable to get the care they need to live a full life; to entrepreneurs who left a secure job with employer-sponsored health care to pursue their dreams, thinking that they could rely on the Act’s guarantee of insurance to protect their families; and to so many others who would otherwise live one serious illness or accident away from financial ruin.

What a cruel irony to tell these millions of Americans (and their children and spouses) that extinguishing their access to affordable health care will restore their liberty. And the irony is obviously not lost on those rushing to repeal the Act. That is why they go on and on about “high risk pools,” “health savings accounts” and other policy fig leaves that in the real world have never come close to covering over the yawning chasm in coverage that their actions will restore, and that they will never fund at levels sufficient to allow more than a tiny fraction of those now covered to stay covered—and that don’t even purport to offer anything at all to the more than 10 million poorer Americans who now receive care as a result of the expansion of Medicaid. They know full well how implausible it is to justify such consequences as the price that must be paid to vindicate their conception of liberty. So they deny and distract instead.

If there is a glimmer of hope, it lies in these efforts to deny the obvious. For they reveal the power of what we stood for—of what we stand for. The Affordable Care Act proves that we as a people were able to summon the imagination, the ability, and the will to make access to good health care a right for virtually all Americans, and that we were able to do so while respecting the limits that the Constitution places on government to protect the liberty of all. Like any undertaking of this magnitude, it requires some adjustments to ensure smooth functioning over time. But the reality is that the Act is now providing affordable health care to tens of millions of people who did not have it before. To strip these Americans of the prospect of a full life freed from the shackles of debilitating disease (and to snatch away from many thousands the chance to continue to live at all) would make a mockery of the constitutional promise of the blessings of liberty.

Whatever comes next, the reality of what we did will always stand as a beacon to those who come after us. We have secured at least that much to our posterity. And for the moment one can hope that when those in the democratically accountable branches of government who seek to extinguish the right to affordable health care are forced to come face to face with the grievous and completely preventable harms that their actions will inflict on so many of their fellow citizens, they will be moved to think differently than they now do about what it means to secure the blessings of liberty.

 

Mr. Verrilli served as Solicitor General of the United States under President Obama from 2011 to 2016. He previously served the Obama administration as Associate Deputy Attorney General and Deputy Counsel to the President.

The courtroom artist rendering at the top of this post shows Mr. Verrilli, speaking before the Supreme Court. (Associated Press/File).

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DIRECTOR ZIENTS: Building an Economy to Last

When President Obama took office in 2009, the economic outlook was bleak. We were losing nearly 800,000 jobs—the equivalent of laying off the entire workforce of West Virginia every month. The unemployment rate was headed to 10 percent. The auto industry and the financial system were on the verge of collapse. We were approaching a second Great Depression.

Fortunately, in the face of stiff opposition, the President took bold, determined action. He moved aggressively to repair our financial system and stabilize housing markets. He fought to get the Recovery Act through Congress, which made critical investments in infrastructure, energy, broadband, and education. It kept teachers and first responders on the job. It immediately cut taxes for middle-class Americans. And it helped the hardest-hit families make ends meet. Analysis by the Council of Economic Advisers suggests that at its peak, the Recovery Act increased employment by nearly 2.5 million jobs, and prevented millions of Americans from falling into poverty—more than 5 million in 2010 alone. At a time when a lot of people here in D.C. were urging us to stand aside and let Detroit collapse, the President engineered the rescue of the auto industry. Since that time the industry has added more than 600,000 jobs and the Obama Administration’s loans have been repaid in full.

That historic response paid off: we averted catastrophe and jumpstarted growth. Just six months after the President entered office, an economy that had been shrinking at an annual rate of more than 8 percent started growing again. American businesses have now created 15.5 million new jobs since early 2010. Unemployment has been cut in half to below 5 percent. The stock market has more than tripled. Rising home prices have replenished trillions of dollars in middle-class wealth. In 2015 alone, real median household income rose by 5.2 percent, and more Americans climbed out of poverty in 2015 than any other year since the 1960s. So far in 2016, wages have grown by 3 percent at an annual rate, much faster than inflation. And we have achieved all this progress despite significant economic headwinds from overseas.

The President’s policies have laid the foundation for a fairer and more durable economy. But at the same time, many Americans feel real anxieties. While many have benefitted from a decades-long economic transformation, some worry that the new economy does not have a place for them. They look at the disruptions that globalization and technology carry and worry that they might be left behind. While these forces have led to remarkable advances, they are also testing the basic promise of America—that every American who works hard has a fair shot at opportunity and economic security.

That is why we have been tackling these challenges from the first days of the Obama Administration. The President has always taken the long view—working to lay a new foundation for an economy that works for all Americans. It is why the President has taken important actions on education—upping our commitments to Pell grants, catalyzing change across the pre-K through 12th grade education system, and proposing universal pre-K and free community college. It is why the President signed into law Wall Street reforms to make our financial system safer and stronger. The Consumer Financial Protection Bureau has put nearly $12 billion back in the pockets of over 27 million consumers as a result of its supervisory and enforcement work. It is why the President has strengthened job training programs by working with employers, community colleges, and training providers to make sure that training dollars are focused on local, in-demand skills and available jobs. And it is why the President signed into law the Affordable Care Act, which has given another 20 million Americans the financial security that comes with health insurance, and made major progress in addressing the spiraling health care costs that were eating into Americans’ wages, harming our businesses’ ability to create jobs, and threatening our fiscal future.

Despite the dire predictions from some here in Washington, long-term investments in our economy have not slowed job growth or caused deficits to skyrocket. In fact, just the opposite. Job growth has been strong. Health care prices have risen more slowly than they have in 50 years. And we have cut annual deficits by about two thirds. But, of course, we know there is more work to be done.

After decades of neglect, we have an infrastructure deficit of over a trillion dollars across our transportation, water, electricity and aviation systems. Our outdated roads, bridges and highways alone impose a hidden tax on American families and businesses of over $150 billion per year through hours lost in traffic, wasted fuel, higher shipping costs, and lost wages and jobs. This year, commuters in Philadelphia and Houston will spend more than 48 hours—two full days— stuck in traffic.

We need to fix our business tax system. Our outdated tax code distorts business decisions, creating incentives for firms to locate production and shift profits overseas and to take on excessive debt. We need reforms to ensure that companies make business decisions based on their business prospects, not their tax strategies.

We also need to expand educational opportunities for young Americans. Our nation’s economy for the decades ahead will be built on the shoulders of today’s students, so it is critical that we prepare them for an economy that is evolving at lightning speed. Increased investments in early childhood education, expanding access to high-quality job training programs, like apprenticeships, and making college more affordable are all essential to ensuring that tomorrow’s workers can compete in an increasingly global economy.

Finally, we need to make sure that all workers benefit from the forces of globalization that have led to so much progress and economic gain around the world. Closer ties around the world have improved the lives of billions of people, but they have also led to disruptions that have hit certain workers and communities very hard. It may be understandable that some want to pull back from a globalized world. But given global supply chains, trying to cut ourselves off from the rest of the world will simply hurt workers and exacerbate inequality. Instead, it is critical that we make our economy more inclusive, through stronger protections and wages for workers; a robust safety net; durable education policies; and trade agreements that protect workers and the environment

The United States has the strongest and most durable economy in the world. We have the most desired products, the strongest exporters, the best workers, and the most innovative businesses. The President has been fighting since his first day in office to build upon those underlying strengths. By building on his successes, and facing directly the challenges that remain, we hope our successors can keep our nation on a path to a more prosperous future.

 

Jeff Zients
Director, National Economic Council
Harvard Law and Policy Review

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CHAIRMAN MASSAD: Bold, Steady Leadership in the Face of the Financial Crisis

As President Obama took office in January of 2009, our nation was in the depths of the worst financial crisis since the Great Depression. We were losing more than 750,000 jobs a month. Ultimately, those job losses totaled nearly nine million. Over five million American families lost their homes. Countless small businesses were shuttered, and about thirteen trillion dollars in family wealth was destroyed, costing many Americans their retirement savings, their chance to go to college, and other opportunities.

We’ve come a long way in the eight years since the President took office. Since 2010, we have seen seventy-nine consecutive months of private sector job growth, adding a total of 15.5 million jobs. The unemployment rate has been cut in half, rising home prices have restored more than six trillion dollars in home equity, the S&P 500 has risen by about three hundred percent, and we have seen the fastest sustained deficit reduction since World War II.

The causes of the crisis were many, accumulating over a number of years. They included a bubble in house and other asset prices; banks and investors taking on excessive risk they did not understand; mounting corporate and household debt; and a neglected regulatory system that had significant gaps and deficiencies. But once a crisis starts and threatens to take down the financial system, the focus must not be on looking for someone—or something—to blame, but instead on stopping the panic and preventing the economy from crashing. And so, President Obama’s administration launched an all-out effort to do just that.

A central part of the effort to stabilize the financial system was the Troubled Asset Relief Program, or TARP. TARP was a bipartisan program that the Bush Administration launched by providing capital to the largest banks. I was honored to serve my country by helping President Obama continue the work of TARP. We provided capital to hundreds of smaller banks, including over eighty-four community development financial institutions. We implemented a housing program that helped five million Americans stay in their homes by modifying their mortgage payments. We restarted the frozen credit markets, by providing backstops and using government capital to leverage private investment. And we prevented the U.S. auto industry from collapsing.

President Obama also took action by requiring stress tests of the biggest banks to determine how much additional capital they needed. And we made sure they raised it.

The work didn’t stop there. In fact, the effort to stop the crisis and get the economy moving involved many other programs—some launched by the Federal Reserve Board, the Treasury, the Federal Deposit Insurance Corporation, and other agencies. These efforts were complemented by the monetary policies of the Federal Reserve and the President’s economic stimulus package. It was a war fought on many fronts, and it succeeded.

President Obama exhibited steely determination and a willingness to be bold and creative. There was no playbook. There was no precedent. And it wasn’t clear what would work. It was a process of considering a number of possible solutions and making corrections as we went.

The President showed wise judgment. He waded through a diversity of opinions on every issue. There were those who said the government should let the market correct itself, while others said we must nationalize the big banks. Some argued our first priority in stopping the crisis must be to not create moral hazard—let those who made bad choices suffer their fate or else there would be no incentive to avoid taking excessive risk in the future.

President Obama recognized that fighting a financial panic is like fighting an out-of-control fire in your neighborhood. Passively hoping it will burn itself out may mean it spreads and takes down the whole community. And as the fire rages, it doesn’t matter whether your neighbor was at fault for smoking in bed. You must still put it out to save the community.

And we did. Our economy recovered faster for it. One need only contrast the slower pace of recovery in countries that failed to act as comprehensively and as expeditiously as we did.

TARP not only enabled our banking system to recapitalize and our credit markets to restart; we also recovered more on all the investment programs than we disbursed—$442.1 billion recovered versus $434 billion disbursed.

Could we have done things better? Certainly. And we should learn from our experience. But given the magnitude and unprecedented nature of what we were facing, some of the second guessing—with the benefit of hindsight—was like criticizing the fire department for using one bucket of water too many.

In my view, our biggest shortcoming was a failure to communicate why the actions were necessary to help Main Street. Many believed we simply helped Wall Street. But the financial system is like the circulatory system—the body can’t live if it isn’t pumping blood to all parts.

President Obama also moved quickly to pursue reforms that would address the weaknesses of our regulatory system and the gaps in oversight. One of the most glaring was the complete lack of regulation of over-the-counter swaps. These types of transactions, such as credit default swaps, brought AIG to the brink of collapse. But for the massive intervention by the federal government, AIG would have fallen, and probably taken our economy down with it. A total of $182 billion was committed over the course of several months to prevent that from happening. Though we recovered all these funds at a profit, such a commitment was an outrage—and should never have been necessary.

As in the United States, swaps were largely unregulated around the world. The market was a tangled spider web of bilateral transactions among the world’s largest financial institutions, with no transparency and nothing to ensure adequate capital or collateral. Therefore, a default by one big bank could easily lead to a cascade of defaults. In the spring of 2009, President Obama joined the other leaders of the G20 in committing to address this issue, through a set of reforms of these markets. The U.S. enacted these measures as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, along with a variety of other measures needed to modernize our regulatory system and address causes of the crisis.

The Commodity Futures Trading Commission was the primary agency charged with implementing these swaps reforms. And we have largely completed the job. The reforms have required that more capital and collateral stand behind these transactions, and that standardized swaps are cleared on central clearinghouses and traded on regulated platforms. They have required that swap dealers abide by basic oversight requirements, and that we increase transparency in this market.

Swaps, which are a type of derivative, are now being regulated in a manner that is more consistent with other derivatives markets—such as futures. These markets have generally functioned effectively over the years. Although most Americans do not participate in these markets directly, they profoundly affect the prices we all pay for food, energy, and most other goods and services. They enable farmers to lock in a price for their crops or airlines to hedge the costs of fuel.

Many other reforms have been implemented under Dodd Frank, with the overarching goal to make the system safe for failure. That is, failure is part of a healthy, competitive economy. We want a system in which the failure of a major financial institution does not create a systemic crisis. Other reforms include increased bank capital requirements, limitations on certain types of risky activities, and developing the means to resolve a large institution without resorting to taxpayer funds. The work is not yet finished on any of these fronts, but the progress we have made over the past six years has been substantial.

Following the 2016 presidential election, repeal of Dodd-Frank is now mentioned as a priority of the incoming Trump administration. But a wholesale repeal seems unlikely. Eliminating all the steps we have taken, which have decreased the risk that a globally significant financial institution’s failure will take down our economy, would not seem to deliver on the President-elect’s promises to working class voters, many of whom believe the government has been captured by powerful interests. Moreover, there is a wide consensus that the reforms made to bring transparency and oversight to the swaps market made sense.  We may see changes in details, but I do not expect repeal of this new framework.

Even before he assumed the Oval Office, President Obama was confronted with one of the most significant challenges any modern president has faced. And I believe that when historians look back, Barack Obama’s legacy will be one of bold thinking and steady leadership—and a commitment to do everything he could to prevent an economic crash and reduce the pain of this terrible event, and then put in place common-sense measures to help ensure this doesn’t happen again.

Should more have been done to help those hardest hit by the crisis? Yes, but TARP funds could only be used, by law, to purchase troubled assets from financial institutions. More importantly, Republicans in Congress blocked other initiatives.

Our economy still faces significant challenges, particularly as a result of structural shifts that have occurred over decades due to globalization. This past election underscores that.   We need to do more to have an economy that creates opportunity for all Americans, such as infrastructure spending, job training, increasing the minimum wage, tax reform, and making higher education more affordable. But we would be much further from that goal if it weren’t for the focus, determination, and good judgment of our forty-fourth president.

Timothy G. Massad is Chairman of the U.S. Commodity Futures Trading Commission. He previously served as the Assistant Secretary for Financial Stability at the U.S. Department of the Treasury, where he was responsible for overseeing the Troubled Asset Relief Program.

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LAURENCE TRIBE: The Trumpet Summons Us Again: A Post-Election Call To Action

I remember well how I felt as dawn broke the morning after Barack Obama’s election as president in 2008. My hopes were boundless, my expectations unrealistic. That President Obama did not succeed in mobilizing the deeply transformative political dynamic I dared to anticipate is no doubt true, especially in light of this year’s election results. But looking back, I remain enormously proud of my former student and chief research assistant. Obama achieved great things both domestically and globally, all in the face of deeper recalcitrance and obstruction than most of us had imagined possible.

I spent a bit over a year in the Obama administration, launching a new initiative to enhance access to justice for the poor and middle class. After returning to Harvard, I continued to assist when I could, even though I didn’t hesitate to criticize the president when I thought he had given up too soon on important efforts and especially when I thought he had lost his legal moorings. But his election eight years ago was a ray of sunshine after a bleak eight years under President George W. Bush.

The contrast with how I felt the morning after this election could not have been starker. The Electoral Vote victory of Donald Trump, a bigoted and ill-informed bully who called forth the worst impulses in many of his followers, and who inspired the emergence of the vilest elements of our society, including unabashed KKK racists and neo-Nazis, felt then and continues to feel utterly devastating. It was an outcome I never ruled out as inconceivable but also never came to regard as genuinely plausible — even when FBI Director James Comey irresponsibly reversed the pro-Hillary Clinton momentum 11 days before the election, only to say “never mind” just a week later, two days before the election. His 11th-hour clarification, whatever its purpose, clearly came too late to undo the mess he had gratuitously created. 

I believed, even after that FBI fiasco, that this uniquely qualified, talented, and dedicated woman would soon become Madame President. I knew what Clinton’s victory would mean to my two granddaughters — and to my two grandsons as well. I knew what it would mean to many of my students. I knew what a victory for Clinton, and — I dared to hope — a Democratic takeover of the Senate, would mean for the Supreme Court, and for the Constitution and the rule of law as I understood them. And, at a gut level, I knew what those victories would mean for millions of decent, law-abiding (even if undocumented) individuals, including innocent immigrant children and families who had just begun to emerge from the shadows.

I especially looked forward to the opportunities a victory would give Clinton to prove herself trustworthy, to plug the holes that remained in the Obama legacy with respect to health care and jobs, and to advance a fundamentally progressive agenda. And, most important, I knew that a Clinton administration would fend off the terrible and unjustifiable harms that her opponent’s apparent agenda threatened to inflict on the many poor and middle-class people Obama’s programs had helped to protect from the ravages of a slow economic recovery and from the slings and arrows of racism, misogyny, homophobia, and Islamophobia.

None of that was to be. In the few hours between 8 o’clock in the evening of Nov. 8 and the start of the next day, the glimmer of possible catastrophe turned rapidly into a feeling of foreboding and then a sense of impending doom.

A few hours of fitful sleep ended with a rude awakening. It had really happened.

In the days since, I’ve struggled with what to make of it all. Clinton had won the nationwide popular vote by a wide margin, making the weird and increasingly unjustifiable Electoral College the villain of the piece for the second time this century.

A fervent believer in democracy and in the American experiment, I couldn’t just dismiss the votes of over 60 million of my fellow citizens — not a majority, but damn close. I couldn’t bring myself to say, as some are saying, that nearly half the voting electorate had displayed raw hatred of the “other” or at least a disgusting willingness to tolerate vicious scapegoating and mistreatment of women, people of color, immigrants, Jews, Muslims, members of the LGBT community, veterans who had been captured and tortured, people with disabilities, and other often marginalized groups — all in exchange for the promise of better times to come for themselves and their families.

It was especially painful to imagine that so many Americans, when envisioning “better times,” may well have been thinking not just of their fair share of the economic pie but of a nation of pervasively white, straight, and male privilege — a nation I could hardly recognize as my own. 

Even if the aspirations tempting most of Trump’s followers were less retrograde and repressive but were overwhelmingly economic, it remained hard to think of so many Americans eagerly embracing what seemed to me the empty promises of a self-proclaimed billionaire whom many Republicans, as well as nearly all Democrats, rightly called a con man, an immature and ignorant blowhard whose admiration for tyrants like Vladimir Putin and whose business entanglements with Putin-linked oligarchs and cyber-warriors might well have motivated Russia’s grotesque manipulation of the American presidential election.

In trying to empathize with Trump’s supporters, I’ve been moved by the thoughtful observations of people like J.D. Vance (“Hillbilly Elegy”) and Michael Moore holding coastal elites (and folks like me, for sure) responsible for our blind failure to appreciate, and to address convincingly, the economic travails of people all over the country, especially noncollege whites living in rural communities or in ravaged, formerly thriving, industrial areas, all left behind by technological and cultural change. Of people who were struggling mightily to care for their families and who were more than ready to vote for someone they could see as not beholden to Wall Street or to other self-important elites who looked down on them.

And yet I remain deeply perplexed by how to empathize with those whose needs, priorities, and attitudes differ dramatically from my own without becoming complicit in the evil that those other priorities and values might yield.

I do know that I must use all my legal skills to fight that evil if and when it occurs, and to prepare to fight it on the premise that it might occur with little or no notice. I must work tirelessly with other lawyers and with my students — without pay, of course — in planning legal and political strategies to defend the vulnerable from Trump-authored or Trump-inspired violations of their fundamental rights, whether those violations take the form of outright discrimination and subordination or subtle, systemic infringements. 

We must take what feels like this dark hour to shine light on abuse and to deploy all our knowledge and ability to combat it. We must be proactive and not just proceed from a defensive crouch. I have told my students that it does no good just to feel devastated, as many (of course not all) of them do. Now it is our turn to give back in as full a measure as we can. Let’s accept the challenge and run with it.

 

Laurence H. Tribe @tribelaw
Carl M. Loeb University Professor and
Professor of Constitutional Law
Harvard Law School

*This article was originally published in the Boston Globe.

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DEP. ASST. JOCELYN FRYE: Reflections on the Legacy of President Barack Obama

The President often speaks about the strong women who have helped shape his life – his mother who raised him mostly as a single parent, his grandmother who worked for years in a bank but lost out on jobs after hitting the glass ceiling, and his wife and daughters who have provided the immeasurable strength of family and have been the foundation of his support. The diverse roles that women play in their families, in the workplace, and in society are core themes that have figured prominently in the policy changes advanced by the President throughout his time in office and are an important part of his legacy.

Women increasingly are central to the economic security and sustainability of most American families, particularly families of color.  Thus, ensuring that both women and men can participate fully in the workforce is essential to fostering greater equality, promoting family stability, and maximizing workers’ success. The President’s work has resulted in significant and sometimes groundbreaking initiatives that have fundamentally changed the landscape, not only for women, but also men and working families.

The first law the President signed was the Lilly Ledbetter Fair Pay Act in January 2009.  This action was significant not only because it restored critical protections for workers seeking to file pay discrimination claims, but also because it signaled the importance of equal pay and pay discrimination to the administration.  That legislation was followed by the creation of an inter-agency Council on Women and Girls and later a White House Equal Pay Task Force for key federal agencies engaged in equal pay enforcement.  The President also undertook a series of executive actions aimed at eliminating unfair pay practices, strengthening enforcement of equal pay laws, and raising wages. Particularly noteworthy were the revisions to the Department of Labor’s Fair Labor Standards Act regulations to extend minimum wage protections to home care workers. This change removed a longstanding barrier to fair pay experienced by care workers, who are mostly female and disproportionately women of color. These jobs are often among the lowest paying jobs, and the rule change made clear the importance of paying all workers a fair wage. Moreover, it directly confronted persistent gender, racial, and ethnic biases that have devalued jobs perceived as “women’s work” and placed these workers on more equal footing with other workers.

The President also pursued a complement of policy changes to respond to the often competing demands of work and family. He announced executive actions requiring paid sick days for workers working on federal contracts, and directed federal agencies to review and strengthen their work-family policies to afford maximum flexibility for workers.  He pushed for universal pre-kindergarten programs and greater investments in child care to provide more children and parents with high-quality, affordable options. He also made a public call for the adoption of a national paid family and medical leave program, elevating the issue into the national spotlight and leading to unprecedented attention among candidates. Further, through the Department of Labor, he provided grants to states to allow them to explore ways to develop paid family leave programs in their own communities. All of these policies are critical for women, who typically take on more of the caregiving responsibilities in their families. These policies are especially important for women of color and low-income women, both of whom are far less likely to have access to these types of supports.

Perhaps even more importantly, the President has used the power of the bully pulpit that the presidency affords to shed light on and reject the underlying attitudes and biases that have fueled many of the barriers women experience at work, at home, and in the broader society. He celebrated women’s intellectual leadership and excellence by appointing two women to the United States Supreme Court, including the first Latino justice to serve on the Court. He has spoken powerfully about pernicious stereotypes that have been used to denigrate African American women and girls, and has proudly claimed the mantle of feminism in celebrating expanding opportunities for women. There are many more examples of the President challenging gendered stereotypes: he opened up more combat roles for women in the military, supported an initiative to increase research into the unique challenges facing women of color, introduced an aggressive initiative to combat sexual assault on campuses across the country, and adopted rules expanding our understanding of gender to embrace equality for LGBTQ individuals.

At the heart of this work is a narrative that advances a vision of women’s roles as more expansive and inclusive, one that recognizes the need for all women to determine their own destiny without being held back by antiquated attitudes. Moreover, because of the policy changes that he has pursued, his work has helped to normalize the types of policies that should be part of every workplace and set a baseline of basic standards that every worker should enjoy. While there is certainly more work to do, this shift has been essential to women’s equality and feminist progress.

Working on these issues as the First Lady’s Policy Director gave me a unique perspective. Nowhere do all of the different roles that women often play – from worker, to parent, to executive, to teacher, and more – collide more visibly than in the unique role of First Lady, which brings with it conflicting public expectations about women’s roles and the comfort level with them.  The fact that the First Lady is the first African American to assume the role further accentuated the conflicted public expectations inherent in the role; at times, biases emerged. Although many pundits sought to confine her to one easily defined box, her approach – and example – was to embrace multiple roles, as most women do; these roles cut across any singular stereotype.  Thus, on any given day she could be a powerful advocate for groundbreaking child nutrition reforms or for mobilizing support for military families, a host for numerous official visits and events, a volunteer in the community, an inspirational coach urging young people to pursue their education, a mentor to young women in her own mentoring program, a self-described “Mom-in-Chief” focusing on the needs of her own family, or some other role. And, those are choices that every woman should have.

In February 2009, the First Lady visited Mary’s Center, a community health center serving mostly Hispanic, immigrant, and African American patients in the surrounding Washington, D.C. community. She read to children, visited with teens in an after-school program, and met with experts and staff about the health and work challenges that patients faced. The visit was memorable not only because it was her first solo official visit outside of the White House and into the local community, but also because it foreshadowed many of the work-family supports – such as child care, health care, job training, and more – that the President would champion over the next eight years. Near the end of her visit, she said to a group of students: “I didn’t come to this position with a lot of wealth and a lot of resources….I think it’s real important for young kids, particularly kids who come from communities without resources to see me. Not the First Lady, but to see that there is no magic to me sitting here.”

Her words captured what may be the most important, albeit intangible, part of the President’s legacy – the push for a new normal. To make clear that the progress we’ve made is not about magic. Rather, our progress is firmly in our hands and will hinge on our commitment to being engaged and inclusive, to ask hard questions, to reject prejudice, and to push for change. That means a shift in vision, and in the policies that can support and sustain that vision over time. A shift so that our views about women’s opportunities and how all women are valued are not defined by past limitations but future aspirations. So that workplace policies enabling both women and men to respond to work and family obligations are no longer the exception but the new normal playing field for workers. So that for millions of young people and a new generation, the thought of an African American President, First Lady, and family in the White House will seem not like a one-time occurrence or magic, but in every sense, a normal part of our American democracy.

 

Ms. Jocelyn Frye
Deputy Assistant to the President and
Director of Policy and Special Projects for the First Lady

 

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CHAIRMAN JOHN LEVI: President Obama’s Legal Aid Legacy

The Legal Services Corporation was established in 1974 as an independent 501(c)(3) corporation to oversee the federal grant distribution to 134 civil legal aid clinics across the country and every congressional district with a mission of “providing equal access to the system of justice in our nation.” The Board is charged with the responsibility of selecting a paid President and a full-time staff headquartered in Washington, D.C. that is responsible for oversight and support of these grantees which, on average, receive 40 percent of their funding from LSC.

These programs provide civil legal aid to individuals living at or below 125 percent of the federal poverty guideline and are expected to adhere to federal regulations limiting the kinds of matters they can take and the individuals they can represent.

President Obama nominated our LSC Board in August of 2009, and most of us were confirmed and sworn into our posts on this bipartisan board in April 2010. I was designated by the President to chair the Board.

Throughout his administration, President Obama has been a strong supporter of LSC, requesting increased funding for LSC every year. His last budget request of $475 million for FY 2017 is the highest the administration sought during his presidency.

President Obama also helped us with the crucial task of communicating the gravity of the crisis in access to justice outside the civil legal aid community to others in the legal profession and beyond. In 2012 he helped us launch a forum on access to justice at the White House, and we have been back every year since. These forums have been regularly attended by the Vice President, Attorney General and White House Counsel. We evolved our national quarterly Board meetings (three of which are held each year on a rotating basis in the various states) so that a portion of them would include a regional forum bringing together Chief Justices, other jurists, and State Attorneys General to discuss the issues affecting access to justice in the region and propose innovations to address the crisis.

The Obama administration has also launched a number of initiatives designed to strengthen the civil legal aid network in our country, including the Legal Aid Interagency Roundtable, which encourages Federal departments and agencies to collaborate, share best practices, and consider the impact of legal services on the success of their programs. LSC helped spur the development of this project and serves as a significant partner in it.

The State of LSC Prior to 2009

When our Board came into office, the full impact of the 2008 recession was being felt throughout the country, and the number of individuals who qualified for civil legal assistance in the country jumped by nearly 20 percent to 64 million, while funding at that time was near historically low levels in inflation-adjusted dollars and, unfortunately, remains low today. In fact, our current appropriation of $385 million provides for basic field funding at approximately the same level as what Americans spend on Halloween costumes for their pets. This inadequate funding forced LSC grantees across the country to turn away scores of individuals seeking assistance. LSC’s predecessor Board had just conducted a study finding that, due to inadequate resources, our grantees were turning away at least 50 percent of qualified applicants.

Charged with the mission of helping our country keep faith with its founding vision of equal justice under law and cognizant that this was the system that Congress had implemented to pursue that vision, our Board set out to revitalize LSC.

Action and Innovation: Tackling Service Gaps

Upon taking office, our Board recognized that among the 11 of us, we did not possess enough knowledge or experience in grants oversight and management. Led by two of our Board members, we appointed a special Fiscal Oversight Task Force to help LSC reach the gold standard in grants management oversight and internal controls. That Task Force, which issued its report in 2011, made many recommendations, all of which were implemented by LSC, resulting in clearing each of GAO’s 17 reports regarding LSC.

We also realized that many in Congress thought that LSC was not doing enough to encourage pro bono and that there was a mismatch between the pro bono work being provided by lawyers and the overwhelming need of recurring legal issues affecting so many low-income Americans. We therefore empaneled a distinguished Pro Bono Task Force of 60 leaders in the profession and came up with a compelling report that made several important recommendations for how to reorganize pro bono throughout the country. Our recommendations included empowering CLE to establishing more clinics and help desks; allowing limited representation; creating webinars and tool kits to help train lawyers; and making pro bono easier to provide.

A co-chair of that Task Force was the Vice Chair of our LSC Board and the Dean of Harvard Law School, Martha Minow. Dean Minow was determined that this report not land on the shelf but that it motivate action. The report asked LSC to revamp its regulations regarding private attorney involvement for its grantees. With much input from the field, that process was successfully conducted and the rule was revised a few years ago. One of the report’s other major recommendations was that Congress fund a Pro Bono Innovation Fund to promote pro bono innovations with our grantees throughout the country. Congress agreed, and we are now in the third year of that program with an appropriation that has risen from $2.5 million to $4 million annually to support this effort. LSC has since awarded grants to 37 legal aid organizations, with many projects already showing positive results.

Our Board realized that far too many veterans were returning home from serving our country with a myriad of civil legal issues and, unfortunately, though a number of them were living below our income guidelines, there was not a coordinated effort to assist them among our grantees. To remedy this problem, LSC—in coordination with Pine Tree Legal Assistance, a grantee in Maine—developed the very first dedicated site, StatesideLegal.org, dealing specifically with veterans’ issues. We also launched a nationwide program to introduce veterans’ counseling centers to civil legal aid clinics so that each is aware of the other and our grantees are better able to address the legal and mental health needs of these indigent veterans.

LSC also needed a new strategic plan, so we embarked on a significant planning process resulting in a comprehensive plan for the 2012-2016 period. That plan was just updated for the next five years with three foundational goals: maximize the availability, quality, and effectiveness of civil legal services that its grantees provide; become a leading voice for civil legal services for low-income Americans; and achieve the highest standards of fiscal responsibility both for itself and its grantees.

LSC became a national leader in the use of technology to help expand access to our civil justice system as a result of its special Technology Initiative Grant “TIG” program, but we realized that this TIG program had been launched out of a technology summit that had occurred 16 years ago. In 2014, we therefore convened LSC’s second-ever technology summit that developed a blueprint to use technology to provide “some form of effective assistance to 100% of persons otherwise unable to afford an attorney for dealing with essential civil legal needs.” The LSC Tech Summit’s tremendous report motivated the adoption of this objective as an aspirational goal by the national Conference of Chief Justices. It also helped motivate the creation of the American Bar Association’s Commission on the Future of Legal Services, which issued its own major report on access to justice this past August.

Private Practice in the Public Service

As LSC approached the 40th anniversary of its founding, we decided to hold a special anniversary conference in the fall of 2014 in Washington, DC. For the first time in LSC’s history, we raised private funds to help bring most all of the Executive Directors and many of our grantees’ Board Chairs together with leaders in the civil justice community across the country. Our Board recognized that the cracks in our bridges and the potholes in our roads are visible and can be felt, but the cracks in our civil justice system and its ability to serve low-income Americans were not as easy to see. If leaders of the legal profession did not fully appreciate the gravity of the circumstance, we could not expect non-lawyers to understand what was happening. So at this conference and since, we have engaged leaders of the profession and the business community seeking their support and assistance in finding solutions to this crisis.

This year, we launched the LSC Leaders Council comprised of leaders in the fields of law, business, academia, sports, and other disciplines with the goal of raising public awareness of LSC and the crisis in civil legal aid. Former Bush White House counsel Harriet Miers and Ken Frazier, Chairman and CEO of Merck, are co-chairs of the Leaders Council, and its over 50 members include public figures such as Bud Selig, Commissioner Emeritus of Major League Baseball; University of Michigan football coach Jim Harbaugh; baseball great Hank Aaron; author John Grisham; former Attorneys General Eric Holder and Dick Thornburgh; and Viacom Vice Chair Shari Redstone.

Also, as a result of our modest fundraising efforts, we were able this past summer (with funding for at least the next four summers) to launch the Rural Summer Legal Corps, where more than 30 exceptional law students served LSC civil legal aid providers in rural locations. Other initiatives, funded as a result of this effort, include:

  • A partnership with Microsoft Corporation, which has committed at least $1 million in support, and Pro Bono Net to develop statewide “legal portals” to direct individuals with civil legal needs to the most appropriate assistance.
  • A Midwestern disaster preparedness project to help develop coordinated plans between disaster preparedness organizations and legal service providers.
  • LSC’s first grant initiative to support leadership training in the field of civil legal aid.
  • A new comprehensive Justice Gap study to be developed by next spring.
  • The development of a legal aid curriculum for public librarians, who are often the first people low-income Americans consult when seeking help in finding legal aid.
  • A toolkit and online guide enabling our grantees to use better client resource data enhancing their ability to assess their own performance.
  • A project to evaluate the accessibility and usability of statewide and territory-wide legal aid websites, which currently differ in quantity and quality of information.

As we continue our service, with most of the Board confirmed well into 2017, we will work hard to address this crisis and seek greater funding to expand access to our civil justice system for low-income Americans.

John Levi
Chairman of the Legal Services Corporation
Member of the American Academy of Arts and Sciences