Category Archives: Politics

New Article: The Folly of Credit as Pandemic Relief

New Article: Pamela Foohey, Dalié Jiménez, and Christopher K. Odinet, The Folly of Credit as Pandemic Relief, 68 UCLA L. Rev. Disc. 126 (2020). Abstract below:

Within weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis and the collapsing economy forced Congress to make a critical choice about how to help families survive financially. Congress had two basic options. It could enact policies that provided direct and meaningful financial support to people, without the necessity of later repayment. Or it could pursue policies that temporarily relieved people from their financial obligations but required that they eventually pay amounts subject to payment moratoria later.

In passing the CARES Act, Congress primarily chose the second option. This option reflects a belief that offering people credit can bring them meaningful relief because it assumes that people will have the ability to pay back the loan as it becomes due. The assumption that people will be able to repay credit masquerading as “relief” in the wake of the pandemic is a serious error that will have enduring negative consequences.

In short, Congress got the balance between providing true money versus what amount to credit products to people fundamentally backwards. But given that, unfortunately, the effects of the pandemic likely will continue for months, if not years, it is not too late for Congress to adopt a family financial well-being approach to relief that provides meaningful, widespread, and expanded direct payments to households in distress.

News Coverage: Alexandria Ocasio-Cortez’s Next Big Effort: Tackling Poverty

News Coverage: Lola Fadulu, Alexandria Ocasio-Cortez’s Next Big Effort: Tackling Poverty, N.Y. Times, Sept. 25, 2019.

-Thanks to Jeff Selbin for the heads up!

Article: A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers

David A. Super, A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers, 65 UCLA L. Rev. 1590 (2018).

Abstract below:

Administrative law is fundamentally a regime of soft power. Congress, the President, administrative agencies, civil servants, and the courts all operate within a broad consensus for rational, good-faith decisionmaking. Congress grants agencies discretion, and courts and civil servants defer to agencies’ political leadership based largely on the expectation that the latter are seeking to honor statutes’ purposes. That expectation of prudential restraint also allays concerns about delegations of legislative power. When the executive systematically disregards that expectation and seeks singlemindedly to maximize achievement of its policy objectives, deference’s justification breaks down.

Across agencies, the Trump administration has disregarded the assumptions on which administrative law’s soft power consensus depends. Its waivers allowing states to deny Medicaid to otherwise eligible low-income people unable to find employment exemplifies this disregard. Exploiting a sweeping delegation of authority to test new ways to achieve Medicaid’s goal of providing health care coverage, this administration has instead sought to achieve very different goals, from legislation that Congress has rejected. The waiver applications themselves estimate substantial increases in the numbers of uninsured people.

Ignoring the administration’s disregard of the longstanding administrative law consensus could deter future Congresses from valuable delegations of discretion. Permanently abandoning the deferential soft-power model would seriously undermine future governance. Instead, courts and civil servants should treat this period as a hiatus in consensus for good-faith decisionmaking. Courts should suspend deference and other aspects of soft-power jurisprudence. And civil servants should comply with political officials’ lawful directions but should remain steadfastly truthful in their words and actions.

New Report: Reining in CEO Compensation and Curbing the Rise of Inequality

New Report: Dean Baker, Josh Bivens, & Jessica Schieder, Reining in CEO Compensation and Curbing the Rise of Inequality, Economic Policy Institute, June 4, 2019. Preview below:

What this report finds: Since the 1970s, rapidly accelerating CEO pay has exacerbated inequality in the United States: High CEO pay generates pay increases for other high-level managers, while pay at the middle and bottom of the wage distribution continues to be depressed. Increasing CEO pay is not actually linked to an increase in the value of CEOs’ work; instead, it is more likely to reflect CEOs’ close ties with the corporate board members who set their pay. While corporate boards technically report to shareholders, shareholders are not particularly well positioned to put pressure on directors to restrain CEO pay.

Why it matters: CEO pay is not just a symbolic issue. High CEO pay spills over into the rest of the economy and helps pull up pay for privileged managers in the corporate and even nonprofit spheres. Because pay for top managers—CEOs and others—is not driven by their contributions to economic growth, this pay can be reduced and others’ incomes boosted if we can figure out a way to restrain CEOs’ market power. Importantly, the most direct damage done by excess CEO pay is to shareholders. Since shareholders are a relatively privileged group themselves (if not as privileged as CEOs), they could potentially wield power in this situation; policymakers should try to figure out how to enlist shareholders in the fight to restrain excess managerial pay.

What can be done about it: Policies should be passed that boost both the incentive for and the ability of shareholders to exercise greater control over excess CEO pay. Tax policy that penalizes corporations for excess CEO-to-worker pay ratios can boost incentives for shareholders to restrain excess pay. To boost the power of shareholders, fundamental changes to corporate governance have to be made. One key example of such a fundamental change would be to provide worker representation on corporate boards. Finally, as a starting point, the Securities and Exchange Commission (SEC) should change the reporting requirements for corporations calculating their CEO-to-worker pay ratios to make them consistent over time and across firms; this will make these ratios far more useful to policymakers and the public.


New Report: Administration’s Poverty Line Proposal Would Cut Health, Food Assistance for Millions Over Time

New Report, Aviva Aron-Dine et al., Administration’s Poverty Line Proposal Would Cut Health, Food Assistance for Millions Over Time, Center on Budget and Policy Priorities, June 18, 2019.

Article: The Thirteenth Amendment and Minimum Wage Laws

Ruben J. Garcia, The Thirteenth Amendment and Minimum Wage Laws, 19 Nev. L. J. 479 (2018). Abstract below:

     The Thirteenth Amendment is undergoing a renaissance in scholarship and advocacy. Labor scholars and advocates are looking at the Thirteenth Amendment as a new source of constitutional rights for several reasons. First, its prohibition against involuntary servitude applies both to the public and private spheres. Second, its capacious text and history allows for new interpretive approaches. Third, the idea of a constitutional floor for free labor is an appealing one in an era of retrenchment in legislatures and the courts.

The Trump Administration and the Republican Congress can significantly change the direction of labor policy in the coming years. Now, the prospects are dim for an increase in the minimum wage at the federal level. The moral underpinnings of increasing the minimum wage are even greater now as economic inequality continues to increase. But the control of all three branches of government means that the foundations of the New Deal—in place for over eighty years— must be reexamined and reasserted. Thus, new grounds must be developed to bolster the original commitments to the New Deal.

In this Article, I argue that the Thirteenth Amendment coupled with the Fourteenth Amendment provides a basis for the equal application of minimum wage laws to all workers. Then, I apply the Amendment as safeguard against the erosion of minimum labor standards in three current controversies—the subminimum wage, the tipped minimum wage, and workers in immigration detention.

There are historical precedents for the Thirteenth Amendment being used as a basis to regulate working conditions. The Freedmen’s Bureau Act of 1865 provides an example of when the federal government intervened in the regulation of labor standards. The Act also provides a basis for an aggressive campaign of the federal government to regulate the labor standards of workers. History can show a way for an expanded role of the government in the setting and enforcing of labor standards.

Yet, the Commerce Clause has always been an unsteady and historically contingent grounding for Congress’s power to regulate the economy. In this Article, then, I argue that the Thirteenth Amendment provides alternative constitutional support for the federal minimum wage. This Article will also shine a light on workers who are not covered by any minimum wage because their states do not have a minimum wage and they are not covered by FLSA jurisdiction. Next, the Article will show how the movement for higher wages in the fast food industry has adopted the public-private flexibility of the Thirteenth Amendment as against the government and employers. The Article then concludes by exploring legal strategies—under the Thirteenth Amendment—to expand minimum wage laws to workers who are not covered by the laws.

News Feature: How America Got to ‘Zero Tolerance’ on Immigration: The Inside Story

News Feature: Jason Zengerle, How America Got to ‘Zero Tolerance’ on Immigration: The Inside Story, The New York Times Magazine, July 16, 2019. This (long) feature explores the battles that have raged within the Trump administration over family separations, ICE raids and the president’s obsession with a wall. Together, they have remade homeland security.

New Book: Holes in the Safety Net: Federalism and Poverty

I’m excited to share that Holes in the Safety Net: Federalism and Poverty (Ezra Rosser ed., Cambridge University Press, 2019) has just been published and is now available. As can be seen in the list of chapters below, the book has a great group of contributors:

Introduction by Ezra Rosser

Part I: Welfare and Federalism

Federalism, Entitlement, and Punishment across the US Social Welfare State by Wendy Bach

Laboratories of Suffering: Toward Democratic Welfare Governance by Monica Bell, Andrea Taverna, Dhruv Aggarwal, and Isra Syed

The Difference in Being Poor in Red States Versus Blue States by Michele Gilman

Part II: States, Federalism, and Antipoverty Efforts

States’ Rights and State Wrongs: Supplemental Nutritional Assistance Program Work Requirements in Rural America by Rebecca H. Williams and Lisa R. Pruitt

State and Local Tax Takeaways by Francine J. Lipman

Early Childhood Development and the Replication of Poverty by Clare Huntington

States Diverting Funds from the Poor by Daniel Hatcher

States’ Evolving Role in the Supplemental Nutritional Assistance Program by David A. Super

Part III: Advocacy

Federalism in Health Care Reform by Nicole Huberfeld

Poverty Lawyering in the States by Andrew Hammond

Conclusion: A Way Forward by Peter Edelman

Though it will be a year before a cheaper paperback option is sold, the hardback version of the book mainly targeted at libraries is now available. Here is the publisher’s page on the book, and here is the Amazon page. Please check it out and consider forwarding a request to your school’s librarian to get a copy of the book. The chapters really are great!

That is the main message, but I think it is within my fair use rights to share the book’s Acknowledgments’ page below because the first part of it speaks to the poverty law community generally:

This book is a product of the poverty law scholarly community. I would not have considered working on it if I had not been confident that I would find a great group of scholars willing to participate in this project. This is my third collaborative poverty law book project and it truly is wonderful to be part of a community that is primarily motivated by concern for the poor. My confidence was justified and I would like to thank especially the great group of contributors who wrote chapters for this book.

This book grew out of a conference hosted by American University Washington College of Law (WCL). I would like to thank Dean Camille Nelson, as well as Jennifer Dabson, Shayan Davoudi, and Karina Wegman for their support not only of the biannual poverty law conference but also of the Economic Justice Program at WCL. Daniel Hatcher’s eye-opening book, The Poverty Industry: The Exploitation of America’s Most Vulnerable Citizens (2016), inspired both that conference and this edited volume. Hatcher’s book is well worth reading in its own right.

I would like to give a special shout-out to my phenomenal research assistant, Oliver Jury. Often it was Oliver who caught the stray period mark or came up with the best way to fix a troublesome sentence. His attention to detail and skills as a writer are truly impressive.

Finally, I owe a big thank you to all those who cared for my young children while I worked on this project. In the United States, I want to thank Glenda, Onestina, and the staff at Play, Work or Dash; in El Salvador, thanks to my mother-in-law and to Elba. And everywhere, at all points in time, and for everything, thanks to Elvia. This book is dedicated to our children, Mateo and Mario. May they realize both the value of hard work and tremendous privileges they enjoy, and may their lives be filled with happiness and meaning. Un fuerte abrazo.

Thanks again to the contributors and to the larger community. And I hope you get a chance to read the many great chapters in the book.

New op-ed: The Cruelty of Trump’s Poverty Policy

New op-ed: David A. Super, The Cruelty of Trump’s Poverty Policy, N.Y. Times, July 24, 2019.

-Well done David!

New Blog Post: How the Democratic Candidates Talk about Poverty

New Blog Post: Kalena Thomhave, How the Democratic Candidates Talk about Poverty,, June 28, 2019. Medicare for All and income inequality are gaining traction among the party platform, but the candidates must frame all issues of poverty in terms of basic rights.