A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality

This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, which includes systemic failures of our educational system, a frayed social safety net, probusiness policies at the expense of consumers and employees, and the growing influence of money in politics. In each of these areas, the Court’s deference to legislative judgments is highly selective and driven by a class-blind view of the law that presumes that market-based results are natural, inevitable, and beneficial. For instance, the Court rejects government attempts to voluntarily desegregate schools, while deferring to laws that create unequal financing for poor school districts. The end result is that poor children receive subpar educations, dooming many of them to the bottom of the economic spectrum. Similarly, the Court overturned Congress’s attempt to rein in campaign financing, while upholding state voter identification laws that suppress the votes of the poor. These decisions distort the electoral process in favor of the wealthy. In short, the Court tends to defer to laws that create economic inequality, while striking down legislative attempts to level the playing field. While a popular conception of the Court is that it is designed to protect vulnerable minorities from majoritarian impulse, the Court, instead, is helping to protect a very powerful minority at the expense of the majority. This Article is one step toward understanding how law intertwines with politics and economics to create economic inequality

Litigating Presidential Signing Statements

In response to President George W. Bush\u27s aggressive use of presidential signing statements, several members of Congress as well as a prominent Taskforce of the American Bar Association have proposed legislation to provide for judicial review of signing statements. These critics assert that the President must veto legislation with which he disagrees, rather than use signing statements to refuse to enforce statutes that he signs into law. This article explores whether Congress can litigate presidential signing statements, concluding that they are not justiciable even if Congress enacts a law granting itself standing to raise such a challenge. Congress might be able to piggyback on litigation brought by private parties through the procedural tools of intervention and amicus. However, private parties may also be hard-pressed to challenge signing statements, even if the President follows through on the views expressed in his signing statements and declines to enforce the laws as written. As a result, Congress must exercise its political powers if it wishes to confront the President over his signing statements

POVERTY LAWGORITHMS A Poverty Lawyer’s Guide to Fighting Automated Decision-Making Harms on Low-Income Communities

Automated decision-making systems make decisions about our lives, and those with low-socioeconomic status often bear the brunt of the harms these systems cause. Poverty Lawgorithms: A Poverty Lawyers Guide to Fighting Automated Decision-Making Harms on Low-Income Communities is a guide by Data & Society Faculty Fellow Michele Gilman to familiarize fellow poverty and civil legal services lawyers with the ins and outs of data-centric and automated-decision making systems, so that they can clearly understand the sources of the problems their clients are facing and effectively advocate on their behalf

The Return of the Welfare Queen

After welfare reform was passed in 1996, there was every reason to hope that the welfare queen was dead. The “welfare queen” was shorthand for a lazy woman of color, with numerous children she cannot support, who is cheating taxpayers by abusing the system to collect government assistance. For years, this long-standing racist and gendered stereotype was used to attack the poor and the cash assistance programs that support them. In 1996, TANF capped welfare receipt to five years and required work as a condition of eligibility, thus stripping the welfare queen of her throne of dependency. Nevertheless, during the 2012 presidential campaign, Republican candidate Mitt Romney resurrected the welfare queen. In a barrage of television campaign ads, Romney inaccurately accused President Obama of gutting TANF work requirements, while President Obama responded by touting his own tough-on-welfare credentials. In the subsequent battle over which candidate was toughest on the poor, there was no mention that TANF is largely a failure. While TANF enrollment has plunged since 1996, it has not reduced poverty. Instead, it pushed many poor mothers into the low-wage workforce, where they struggle to survive on meager wages. In addition, many families have slipped out of the safety net altogether, sanctioned by TANF caseworkers or discouraged by TANF\u27s onerous application requirements, privacy-stripping processes, and stingy grants. As a result, only 4.5 million people receive cash assistance through TANF, amounting to 0.47% of the federal 2012 budget. In other words, the political salience of the welfare queen far outstrips her numbers. The good news is that Romney\u27s dependency rhetoric did not work and may have backfired. The bad news is that the welfare queen still lurks behind repeated calls to cut government benefits and to criminalize poverty. This article explores the legacy of the welfare queen, her return in the 2012 presidential campaign, and the current inadequacies of TANF. The article concludes with suggestions to reform TANF in the hopes of burying the welfare queen once and for all

Charitable Choice and the Accountability Challenge: Reconciling the Need for Regulation with the First Amendment Religion Clauses

Since 1996, Congress has included charitable choice provisions in several social welfare statutes to encourage the participation of religious organizations in administering government-funded social service programs. In this Article, Professor Michele Gilman discusses the lack of accountability to beneficiaries that occurs when public funds are given to religious organizations for secular programs, and she proposes solutions to this problem. As Professor Gilman explains, doctrines that constrain abuses of governmental discretion, such as administrative procedure acts and constitutional restrictions, generally do not apply when public programs are privatized. Moreover, religious organizations are often insulated from public scrutiny because of First Amendment concerns about entangling government in religion, as well as special immunities from tort liability and limited fiduciary duties for directors. The mechanisms of privatization, such as contracts and vouchers, also fail to ensure that beneficiaries receive quality services. As a result, Professor Gilman proposes a set of measures to improve accountability, all of which hinge on including beneficiaries in setting clear standards, evaluating outcomes, and enforcing rights to quality services. Finally, Professor Gilman analyzes current Supreme Court caselaw on public funding to religious entities and explains why imposing accountability measures on charitable choice programs does not violate the First Amendment religion clauses

Charitable Choice and the Accountability Challenge: Reconciling the Need for Regulation with the First Amendment Religion Clauses

Charitable choice, or the use of federal money to fund social services provided by religious organizations, has engendered controversy and confusion since its inception in the 1996 welfare reform legislation. Under the welfare reform statute, entitled the Personal Responsibility and Work Opportunity Reconciliation Act ( PRA ), states may contract out administration of their welfare programs to private entities, including houses of worship. President Bush is promoting the expansion of charitable choice into other federal social service programs as a major policy initiative of his administration. Federal funding of faith-based organizations has supporters and opponents on both the left and the right. Supporters argue that charitable choice ends discrimination against religious organizations in competing for federal funds, and that religious organizations provide more effective social services than governments because of the spiritual and moral guidance the religious organizations provide. Opponents on the right counter that charitable choice will destroy the unique nature of religious organizations, make churches overly reliant on federal funds, and result in federal funding of objectionable groups. Opponents on the left charge that charitable choice violates the separation of church and state and federally subsidizes discrimination, because religious organizations are exempt from some antidiscrimination employment laws. Yet these arguments miss an equally vexing problem arising under charitable choice: How can government ensure accountability from its sectarian contracting partners? This has profound ramifications for all of the constituents involved, including government funding agencies, the tax-paying public, social service providers, program beneficiaries, elected officials, advocacy groups, foundations, agency administrators, and others affected by, or interested in, a particular human services program. The PRA aims to move welfare recipients into the workforce. Rather than handing out welfare checks, welfare administrators- whether public or private-are charged with putting people to work. As a result, under the PRA\u27s charitable choice provision, faith-based organizations are providing a variety of social services designed to move welfare recipients towards self-sufficiency, including child care, substance abuse treatment, homeless services, English courses, parenting classes, mentoring, job training, mental health counseling, life skills training, affordable housing, domestic violence shelters, transportation to job sites, and fatherhood pro- grams. With President Bush\u27s proposed expansion of charitable choice into other federally funded programs, churches can be expected to provide an even greater array of social services. Despite this proposed expansion, there is scant empirical evidence as to the effectiveness of the faith-based approach. The existing anecdotal evidence points in both directions. For every claimed success story, such as the eighty-five percent drug rehabilitation success rate of a Christian treatment program called Teen Challenge, there is a horror story, such as the alleged child abuse that occurred at Roloff Homes in Texas, a church-run home for troubled youths. Given the lack of empirical evidence, ensuring accountability should be a paramount concern. Currently, it is not. To the contrary, several charitable choice proponents, including President Bush, advocate removing regulatory burdens from faith-based providers altogether to encourage their participation in federally funded programs. When government provides social services, a mix of laws and legal doctrines operate to constrain official discretion and to provide openness and participation in the administrative process

Expanding Civil Rights to Combat Digital Discrimination on the Basis of Poverty

Low-income people suffer from digital discrimination on the basis of their socio-economic status. Automated decision-making systems, often powered by machine learning and artificial intelligence, shape the opportunities of those experiencing poverty because they serve as gatekeepers to the necessities of modern life. Yet in the existing legal regime, it is perfectly legal to discriminate against people because they are poor. Poverty is not a protected characteristic, unlike race, gender, disability, religion or certain other identities. This lack of legal protection has accelerated digital discrimination against the poor, fueled by the scope, speed, and scale of big data networks. This Article highlights four areas where data-centric technologies adversely impact low-income people by excluding them from opportunities or targeting them for exploitation: tenant screening, credit scoring, higher education, and targeted advertising. Currently, there are numerous proposals to combat algorithmic bias by updating analog-era civil rights laws for our datafied society, as well as to bolster civil rights within comprehensive data privacy protections and algorithmic accountability standards. On this precipice for legislative reform, it is time to include socio-economic status as a protected characteristic in antidiscrimination laws for the digital age. This Article explains how protecting low-income people within emerging legal frameworks would provide a valuable counterweight against opaque and unaccountable digital discrimination, which undermines any vision of economic justice

Presidents, Preemption, and the States

Early in his administration, President Obama issued a memorandum about preemption that ordered federal agencies to fully consider state interests before preempting state laws. The Obama memorandum was a rebuke to the Bush Administration, which had regularly inserted preemption provisions into federal regulations in areas affecting health, consumer safety, and the environment. As a result of preemption, state laws could not be more protective than federal standards, and corporations were spared state tort lawsuits and state regulatory regimes. Preemption not only tends to pit corporate interests against the public welfare, but it can also undermine federalism. There is currently a lively debate as to whether the best institutional actor to foster federalism is the judiciary, Congress, or agencies. Yet despite the centrality of modern Presidents to preemption policy, the role of the President is all but ignored in preemption scholarship. Accordingly, this Article adds the President to the mix. In general, congressional lawmaking about preemption is preferable to presidential preemption because states have more opportunities to influence Congress. Nevertheless, there are many situations in which Congress cannot or will not consider the preemption implications of legislation. Accordingly, this Article explores ways in which the President can effectively ensure a vibrant role for the states in federalism regimes by using his Article II powers to push federal agencies to do a better job of considering state interests when they regulate