Recent executive actions in immigration, and now asset forfeiture underline just how great is the President’s “power of the pen and phone.” — his ability by regulation or other executive action to make very significant changes in the way government deals with the people.
Surely we in the access to justice world should be thinking about whether there are actions that this administration can take before January 20, 2017 — now just over two years away.
To be a viable candidate for such action, a federal regulatory change should probably be:
- One for which is there is little real focused opposition, or one which it would be hard to repeal in the future
- Not be too obviously expensive
- Build its own constituency over time
Some possible areas in which advocates might look are:
- Funding formulas set by regulation rather than by statute, in which access to justice might be made either a priority or included more explicitly as available — DOJ has already had very significant impact in this area.
- Federal administrative agency procedures that impact poor and middle income people (a huge category from the VA to Social Security)
- Oversight of future changes in Federal and federally supervised quasi judicial agencies that have an impact on access to justice — such as by setting up an “access to justice impact statement” requirement for all changes in such agencies.
- State administrative agency and quasi-judicial procedures that are funded and regulated by Federal agencies (such as unemployment, food stamps, TANF, etc.)
- Use of nonlaywers in such Federal or Federally-supervised contexts — an area in which there is already substantial precedent. Could, for example, the Federal section 8 housing regs be modified to allow non-lawyers to appear on behalf of tenants in cases in which the judge found a need under Turner? And what about child support enforcement, a major area of federal investment?
- Federal funding of state courts, including data collection — a big budget item on which conditions could be met, and which might provide leverage on forms and accessible electronic filing
- Things being done by state Commissions that might be adopted as Federal standards.
- Leverage provided by funding of law student loans and other forms of assistance to law schools.
These, and others, are surely areas on which advocates and policy advocates should be brainstorming about how to take advantage of this short and rare moment of opportunity — we may not get another for a generation or two. Let’s think big.
We should also be asking how we can facilitate such discussions within our communities.
I would add this situation and opportunity to the list of ideas that demonstrate the need for more intentional and focused leadership capacity in our field.
A final, if controversial, thought. It may be that some of the most appropriate changes would be ones that some of the President’s more traditional stakeholders might oppose, and with respect to which it might therefore be easier for an outgoing administration be willing to do the right thing.
I would very much appreciate any thoughts on these and related topics.