pp. 15 in Immigration Review no. 29, Summer 1997
Imagine a national network of experienced lawyers available to illegal aliens, free of charge, to sue government at the local, state, and national levels to obtain housing, education, welfare, and other governmental benefits. Imagine further that this national network of lawyers was also available to lobby, participate in referenda campaigns, and provide public relations services on behalf of their illegal alien clientele, again free of charge because the network was largely subsidized with federal funds. For good measure, imagine that this network of activist lawyers was also available to fight deportation of illegal aliens, even those with serious criminal records.
There is nothing imaginary about the network of attorneys and the activities described above. The Legal Services Corporation (LSC), which has received over $5 billion in federal funds since its founding in 1974, supports just such a network of activist lawyers working in approximately 300 local programs across the country. An outgrowth of Lyndon Johnson's War on Poverty, the federally-funded legal services program began with the best of intentions. Its proponents praised it as a noble effort to expand the type of legal aid which volunteer lawyers had traditionally offered the poor.
Almost from the start, however, lawyers in the legal services programs funded by LSC adopted a far more politicized agenda than private legal aid lawyers. The traditional approach of helping individual, deserving poor people with their legal problems was supplanted by an emphasis on large class-action lawsuits expanding entitlements and challenging legislative attempts to curb welfare reforms. In the name of serving the poor, legal services lawyers challenged tax cut referenda in court and even litigated Congressional redistricting cases.
Promotion of "welfare rights" for illegal aliens has long been a priority of legal services lawyers. To understand why these lawyers have put such a sustained effort into obtaining governmental benefits for individuals who are violating federal law by their very presence in the United States. one must understand the core social and political beliefs shared by most legal services lawyers. Along with a strong bias for the expansion of the welfare state, legal services lawyers are strong advocates of expanded group rights, believing that governmental benefits are inherent rights belonging to the poor as a class.
Thus, legal services lawyers view illegal aliens as deserving of public housing, welfare, Medicaid, free college tuition, and virtually every type of benefit a government can grant to its citizens. The fact that such policies punish the law-abiding, reward the law-breakers, strain society's capacity to help the truly needy, and encourage further illegal immigration is overlooked in deference to the political agenda being advanced.
The range of legal, lobbying, and public relations services offered to illegal aliens by lawyers for legal services programs supported by the LSC is very wide. No accurate figure exists for the amount of money expended for these services or even the number of cases handled. since the LSC Act does not require any such disclosure. Nevertheless, the National Legal and Policy Center has documented hundreds of legal services abuses through the use of LEXIS/NEXIS to search news articles and reported court cases. The cases in the accompanying sidebar are a small sample of the recent activities by legal services in support of illegal aliens.
Perhaps the biggest irony associated with the representation of illegal aliens by legal services lawyers is the fact that for many years Congress has tried to bar the use of LSC funds for such representation. However, the Legal Services Corporation Act has many loopholes and makes discovery and prosecution of abuses virtually impossible. While Congress forbade the use of LSC funds for assisting illegals, it allowed such cases if they were funded from other sources. The catch was that investigators were never allowed to inspect any case files, there was no case disclosure requirement, and enforcement was so weak that not a single local program lost its grant for representing illegals. Since most programs received some funds from sources other than the federal government, any case involving illegals was explained as being funded by non-federal funds. A recent survey by the LSC showed that about two-thirds of its grantee programs represent illegal aliens.
Of course, federal funding of the network means that taxpayers pick up the tab for rent, lawyers' salaries and virtually all fixed costs of maintaining the network This arrangement represented a massive subsidy to the political and ideological activities, including representation of illegal aliens, done by legal services lawyers with non-LSC funds.
Private funding of legal services programs comes from several sources. The United Way and private foundations have been considered reliable sources of unrestricted funding for many immigrant legal services programs, along with private foundations. The most controversial source of funds that can be used on behalf of illegal aliens is the Interest on Lawyers Trust Account (IOLTA). These are monies earned as interest on short-term bank accounts containing pooled clients' funds, typically held in escrow for real estate closings, settlement checks, retainers, or court fees. This year, the IOLTA funds total about $100 million, of which about 80 percent goes to support legal services for indigents, including illegal aliens. This year, the Fifth Federal Circuit Court in Texas ruled that this arrangement amounted to an "illegal taking" and the Supreme Court will soon have a chance to rule on its constitutionality.
The 104th Congress passed a series of new restrictions on the legal services program, including prohibiting the use of any funds for any activity banned with federal funds. In a matter of months, legal services lawyers found ways to bypass the new restriction. With the blessing of the LSC, programs hastily set up "mirror corporations," which are legally distinct but closely cooperating groups. One group receives LSC funds governed by the restrictions while the other group takes no LSC funds and is not bound by the restrictions. The two groups can share staff, the same building, research resources. etc.
Ultimately, the solution to the abuses of the legal services program is removal of all federal funds. Most poor people receiving free legal services today do not receive help from LSC grantees but from private groups and from lawyers performing pro bono services, i.e., the provision of free legal services to the poor expected of those in private law practice. With the number of lawyers and the amount of pro bono assistance at all-time highs, the value of such assistance has been conservatively estimated to be in the billions of dollars.
As Congress moves to phase out funding to the LSC, critics of the program are proposing reforms to get legal services lawyers out of the types of representation of legal aliens now allowed with federal funds. One such proposal under consideration now is to disallow representation of temporary agricultural farm workers participating in the H-2A visa program. These temporary workers compete with illegal aliens and are not readily organized into unions, another longtime ally of legal services. Legal services lawyers frequently file lawsuits against farmers on behalf of H-2A workers, thus making the program economically unattractive. An amendment to the LSC appropriations bill now under consideration could stop such representation with federal funds.
As the policy debate over the future of the legal services program heats up in Congress, there is one thing on which both legal services lawyers and their critics both agree: the future of the program is at a critical crossroads.
* * *
Ken Boehm is Chairman of the National Legal and Policy Center, a legal foundation promoting ethics and accountability in government.
Examples of LSC Assistance to Illegals
Medicaid for Illegals
Legal services sued California when it passed a law requiring those seeking care under Medicaid to disclose their immigration status. When the California Supreme Court rejected the legal services argument, legal services announced plans to take the case to the U.S. Supreme Court.
BNA Health Care Daily, December 30, 1994
Expulsion of Mexicans Illegally Attending U.S. Public Schools
When school officials in California's Mountain Empire District, on the Mexican border, expelled hundreds of Mexicans illegally attending school there, California Rural Legal Assistance immediately denounced the action The students lived in the nearby Mexican town of Tecate. Students, regardless of nationality, can only attend schools in another district if they pay the $3,000 tuition. Although the expulsions saved the taxpayers $1 million, it is estimated that the total cost of this fraud along the border is $29 million.
Washington Times, May 22, 1994
Legal Services Sues INS for Trying to Enforce Immigration Laws
In 1993, INS required all resident aliens to renew green cards issued before 1978 by paying a $70 fee. The replacement program was part of the agency's effort to end widespread document fraud that had seriously weakened the 1986 IRCA prohibitions on the hiring of illegals The legal services lawsuit tried to sink the plan by claiming that the $70 fee was too high.
The Los Angeles Times, November 6, 1993
Residency for Criminals
Legal services lawyers sued INS to overturn a rule that denied legal residency to agricultural workers with serious criminal records who applied under the l986 SAW amnesty. In response to a 1990 law passed by Congress, the INS issued a rule denying residency to aliens with one felony or three misdemeanor convictions. Legal services lawyers argued that this violated the undocumented aliens' 5th Amendment rights and the Administrative Rules Procedure Act. A U.S. Appeals Court rejected the 5th Amendment claims but upheld legal services challenge on administrative grounds.
Naranjo v. U.S. INS, 30 F.3d (US App. Ct.) 1994
Drivers Licenses for Illegal Aliens
Two grantees of the Legal Services Corporation sued California's Department of Motor Vehicles for refusing to issue drivers' licenses to illegal aliens. As mandated by law, the DMV requires all applicants to provide proof of legal residency in order to obtain licenses and registration. The legal services lawyers sued the DMV on behalf of several illegal aliens who had their applications rejected, taking the position that even if their clients' presence in the United States is unlawful, they are still entitled to a driver's license. A state appeals court rejected the argument and ruled "DMV is not only authorized but obligated" to deny licenses to illegal aliens.
Lauderbach v. Zolin, 35 Cal. App. 4th 578, May 30, 1995
Minimum Wage to Alien Detainees
Southeastern Ohio Legal Services participated in a lawsuit against the INS for not paying illegal aliens minimum wage for menial labor performed while incarcerated at INS detention facilities. As part of the detention program, the Port Isabel Processing Center in Harlingen, Texas, regularly offered work to detainees doing grounds maintenance, cleaning, cooking, laundry, and other services. The work was strictly voluntary and the pay was $1 a day. Legal services claimed this violated the Fair Labor Standards Act and demanded relief in the form of unpaid minimum wages for the workers and attorneys' fees for themselves. A U.S. Appeals Court in Texas rejected the claim because minimum wage laws only apply to U S. workers and not to prisoners or illegal aliens in INS detention facilities.
Guevara v. INS, 902 F.2d 394, U.S. App. Ct., 1990
Deportation of Murderers and Drug Dealers
In 1993, the Atlanta Legal Aid Society attempted to halt the deportation of Cuban nationals convicted of committing serious crimes including murder and drug trafficking. Part of the 1980 Mariel Boatlift, the Cubans committed the crimes while on immigration parole. After release from prison, their immigration parole was revoked and they were subsequently placed in detention to await deportation to Cuba. Legal services lawyers said their detention was a violation of their constitutional right to due process of law. A U.S. Appeals Court rejected the petition.
Gisbert v. U.S.A.G., 988 F.2d 1437(U.S. App. Ct.) 1993
Hospital Criticized for Frightening Illegal Aliens with Uniforms
In 1991, Texas Rural Legal Aid threatened to sue a hospital in McAllen, Texas, because its security guards wore uniforms resembling those of Border Patrol agents. Legal services said this was discriminatory against illegal aliens because it discouraged them from seeking care.
Modern Healthcare, December 17, 1990, and January 28, 1991