Politico Report on Agency Planing for Next Administration Underlines Importance of Laying the Groundwork Now — But We Have to Ask

An interesting story in Politico reports that Federal agencies are continuing to move forward with regulatory-type initiatives that could only be completed in the next administration, implicitly assuming a Democratic victory.

The Obama administration is seemingly so confident of a Hillary Clinton victory in November that it’s pumping out rules and other executive actions that won’t be completed until the next president takes office on politically sensitive issues like climate change and student loans.

And, for example:

“The effort you are seeing from the president and his team will help ensure when Secretary Clinton enters the Oval Office, she and her team will have a running start when it comes to advancing climate and energy issues,” said Tom Reynolds, a former White House climate aide who stepped down in April.

So, this highlights that the staff and committement are in place to do everything that can be done to lay as much of the groundwork as possible for access to justice-friendly regulations.  But we have to ask.

Has any civil access to justice group, as of now, made ANY ask of the White House, or any agency for  such action during this time.  The courts, the traditional legal aid community, the access Commissions, the bar?  (Actually, it seems to me that the only asking that is being done is within the administration itself, through the DOJ program on Access.  That and LAIR and follow-up provides an opening and leveraging point.)

Unless I am really missing something, the implications of this lack of ask could only be justified by the belief that there is no regulatory language that acts as a barrier to access innovation or delivery, no potential regulation or executive action that would improve access, no regulation, executive order or policy that would benefit from an access friendly interpretation explanation, or urging.  In other words, that all the possible work has been done.

In an attempt to suggest that that can not be the case, I am pasting in some suggestions and thoughts from a prior post.

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, and 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.

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About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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