Resistance from State Attorneys General Reminds Trump that No One is Above the Law

by Ngozi Esomonu, Lawyers’ Committee for Civil Rights Under Law

The anti-Muslim travel ban, the 2018 budget proposal, and this month’s religious liberty executive order are just three of the many Trump Administration policies that spell discrimination for America’s most marginalized. Resisting these suppressive policies, are attorneys general from states all over the country from Eric Schneiderman in New York, to Maura Healey in Massachusetts, to Bob Ferguson in Washington State. Their primary tool of resistance is coalition-building with fellow state attorneys general. Once in a coalition, they utilize their joint political powers to pressure federal officials into supporting their position.

Beyond coalitions, however, state attorneys general use the threat of litigation as a guard against federal discrimination. And when their threats fail to deter, these state officials have not hesitated in pursuing litigation as a final step. With a Republican-dominated Congress and executive branch, attorneys general have emerged as the primary agents of resistance to the Trump administration’s damaging brand of conservatism.

Take for example, Trump’s anti-Muslim travel ban. As a nation of immigrants, with a significant Muslim population, it was no secret that Executive Order 13769, (which suspended immigration from seven Muslim countries for three months and the Syrian refugee program indefinitely) would trample on individual rights. This, however, did not dissuade the president from issuing his order, and the Republican-led Congress, for the most part, remained silent on the issue. State attorneys general therefore became the leading voice of opposition.

Washington State’s Attorney General Bob Ferguson filed a suit against the Trump administration just 10 days after Trump implemented the executive order. Months later, Oregon, California, New York and Maryland formed a coalition and joined the suit seeking a restraining order to prevent enforcement of the ban. Their filing revealed a willing to protect the rights of Muslim citizens from federal intrusion as well as a willingness to keep their state’s immigrant families together. Their efforts were ultimately successful when a federal district judge granted the temporary restraining order against the order’s enforcement.

Hawai’i’s state Attorney General also pursued litigation after Trump unveiled his revised version of the executive order. This time, though, instead of joining the suit as co-plaintiffs, the coalition of state attorneys general filed an amicus brief opposing the order as discriminatory. Again, the state attorneys general efforts were affirmed when federal judge Derrick Watson reinstated the nationwide restraining order against the ban until the resolving of Hawai’i’s lawsuit.

You can gauge how effective state attorneys general are through the travel ban resistance movement. What made these attorneys general so successful was their relentless approach to fighting the ban and the divisive sentiments it promoted. You can see how dedicated they were just by reading their Twitter pages and official websites. The sheer amount of space devoted to the travel ban resistance is immense. The next arena where state attorneys general have showcased a similar dedication is healthcare reform.

Trump’s 2018 budget proposal stands to slash federal funding for programs that traditionally spend more money on women than men (such as the defunding of Planned Parenthood). The result is that women will be disproportionately affected by budget cuts, particularly poor women of color. New York Attorney General Eric Schneiderman threatened to sue Trump regarding the defunding of Planned Parenthood, even before Trump revealed his proposed budget.

Lastly, state attorneys general have championed the struggle for transgender students’ rights within schools. A coalition of 19 state attorneys general supported a transgender student’s right to use the bathroom, consistent with his gender identity, by filing a multistate amicus brief in the Supreme Court of the United States. While the case is yet to be resolved, the brief functions as a key piece of opposition to Trump’s withdrawal of federal protections for transgender students implemented by the by the Obama Administration.

In all, state attorneys general have become a primary force guarding citizens’ rights from government intrusion. As the Trump Administration continues to unveil policies that target the rights of various groups, we can expect state attorneys general to continue their proactive resistance to this discrimination. We can expect them to hold the current president accountable.

Employment Without an Exit

A sandwich maker in a shop that is part of a national chain. A cub reporter, fresh from college, reporting on news from local courthouses. A woman who travels all over the state to draw blood for insurance company medical exams. What did they have in common? All of them were subject to out-of-control non-compete agreements.

Use of non-compete agreements is growing, with a recent report indicating that nearly one in five employees are currently subject to these constraints. These agreements restrict future employment, prohibiting an employee from taking a new job with a competitor of their current employer. Generally, they contain time and geographic limitations, preventing the employee from working for a competitor for, say, two years and within a 75-mile radius.

Historically, non-competes have been used in relation to high-level employees, with special skills or knowledge of confidential information or trade secrets. Think secret formula.

But more and more rank-and-file workers are constrained by non-competes. Think no secret formula, no highly-classified customer list, no special skills at all. Workers agree to this for a simple reason: they need a job. The expanding use of non-competes constrains workers’ job mobility and ability to improve their lives; it also thwarts workers’ ability to bargain for better wages or conditions. If the boss knows you cannot go anywhere else, there is no need to give you a raise.

But the impact of non-competes goes beyond the affected workers. Some economists believe that non-competes inhibit growth and innovation, depressing the economy more generally. And some employers dislike non-competes, because they curtail a company’s ability to hire the very best people. These employers also recognize that they can protect their interests with nondisclosure or non-solicitation agreements.

Government officials have begun to address the issue; for example, the White House took on non-competes during the final days of the Obama administration. Ideally, this issue would be resolved at the federal level, but more realistically these days, states will have to take up the mantle.

Many states have case law on non-competes, generally limiting their use to situations where the employer can show a legitimate business interest and where geographic scope and duration are reasonable. Some states have statutes on point: California law has long deemed non-competes void, and blue Illinois and red Utah have more recently passed legislation on the topic. The New York State Attorney General’s Office, my former employer, just spearheaded a proposed bill on non-competes. Other states should join this growing movement to ensure that workers are not stuck in place.

Strong legislation would contain a clear package of protections. Assuming that non-competes would be permitted at all, a top priority should be prohibiting their use in relation to workers with incomes below a certain dollar amount (like the roughly $47,000 overtime threshold proposed by the Obama Labor Department, and more in high-cost areas) and for workers in jobs involving public health or safety, with penalties and a private right of action for violations. Statutes should also prohibit non-competes for employees who lack access to trade secrets or other confidential information. It is important to prohibit use of non-competes instead of making them unenforceable; with a prohibition, non-competes simply cannot be used, while if non-competes are unenforceable, they can be used and ultimately a court will decide whether the use is lawful in that particular situation. Since most workers cannot afford to litigate a case, making non-competes unenforceable does not fully solve the problem.

The law should require employers to supply a proposed non-compete to a prospective employee before the person accepts a job, and not after work has begun; further, duration of non-competes should be limited to six or nine months. Finally, employers should be obligated to pay an affected worker during that time; the person has to live, after all, and an employer should be willing to pay for a non-compete, if it is of value to them. Requiring such payments (known as “garden leave”) could seriously help discourage use of non-competes, because employers will have to assess whether they really need a non-compete for each individual worker.

In the meantime, lawyers can challenge non-competes under existing law any way we can: with arguments that a given non-compete does not protect the employer’s legitimate business interests or is too broad in terms of time or geography; maybe with anti-trust arguments about the terrible impact on job market competition or with arguments about plain unconscionability.

Or perhaps we should drop the legal arguments altogether, and point out what is ultimately in the employer’s self-interest. In a case we handled in the New York State Attorney General’s Office, it was not our legal acumen that tipped the scales toward settlement, although we had very good law on our side. Instead, what made the difference was pointing out that the employer had a recruitment, retention and morale problem because their employees felt trapped and miserable.

How can it possibly be in your company’s best business interest to have your people remain only because you will not let them leave?

Bipartisan Coalition of State AGs Oppose Defunding Legal Services Corporation

*This piece originally appeared on StateAG.org’s Tierney Blog.

by Faisal Sheikh

It is an indictment of the current age that we must pause and applaud a rare moment of bipartisan cooperation around an incredibly important and seemingly uncontroversial issue. But such are the times.

This did not take place in the halls of Congress, of course, but rather among a group 32 state attorneys general, led by Massachusetts Attorney General Maura Healey, a Democrat, and Colorado Attorney General Cynthia Coffman, a Republican. On May 22, the group sent letters to members of the House and Senate Appropriations Committees declaring their bipartisan opposition to the Trump administration’s proposal to eliminate all federal funding to the Legal Services Corporation (LSC). The corporation is a grant-making organization created by Congress for the purpose of distributing federal appropriations to nonprofit organizations that provide civil legal assistance. This group of state AGs joins the American Bar Association, state judges, over 150 law firms and many other concerned groups in opposing this assault on civil legal services for low-income Americans. This includes the elderly and low-income military veterans and military families.

It is only fitting that a bipartisan coalition of public officials rallies around this organization. LSC’s conception began under President Lyndon Johnson’s “war on poverty” and culminated in the enactment of a bipartisan bill signed into law by President Richard Nixon in 1974 that created the grant-funding organization. According to the LSC website, in describing the need for the organization, President Nixon wrote:

Here each day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.

The need for civil legal services for those living near or below the poverty line, as well as middle-income Americans, has never been greater. According to the ABA’s Commission on the Future of Legal Services 2016 Report, approximately 63 million Americans are eligible for civil legal assistance through an LSC grantee, meaning their salaries were at or below 125 percent of the federal poverty line. And yet, current congressional appropriations allow LSC and its grantees to serve only a small percentage of those eligible for legal services. In many cases, legal services agencies must turn away individuals in need of legal assistance. The report found that “in some jurisdictions, more than eighty percent of litigants in poverty are unrepresented in matters involving basic life needs, such as evictions, mortgage foreclosures, child custody disputes, child-support proceedings, and debt collection cases.”

ABA President Linda Klein’s testimony before a U.S. Senate Appropriations Subcommittee shed further light on this dire situation. Since 2010, funding for LSC has dropped approximately 18 percent, while the number of individuals eligible for free civil legal services has increased 25 percent.

Presidential and congressional defunding threats have long been part of LSC’s history. In 1982, President Reagan recommended that Congress not reauthorize LSC funding. Interestingly, state AGs also rose up to defend LSC, on a bipartisan basis, against the Reagan assault. Although Congress rejected President Reagan’s proposal, it did reduce the budget and impose onerous restrictions on LSC attorneys. Similarly, in the mid-90’s, a Republican controlled Congress implemented another round of cuts to the nonprofit corporation.

Defunding LSC would be devastating to some state legal services organizations. For instance, in 2015, Legal Services of Alabama relied on LSC for 88 percent of its funding, Dakota Plains Legal Services of South Dakota received 86 percent of its funding from LSC, and Montana’s Legal Services Association received 43 percent of its funding from LSC.

As news outlets have noted, this proposal would, in many cases, impact the very residents that supported the president during the election. The South Dakota and Montana attorneys general, Republicans in states whose electoral votes went to Trump, joined the coalition of state AGs opposing the administration’s proposal.

Aside from the moral dimension of this proposal, studies have shown that civil legal services providers actually have a positive impact on state and local economies. A study commissioned by the Tennessee Bar Association in 2015 entitled, "Economic Impact of Civil Legal Aid Organizations in Tennessee," found that not only did the organizations have positive impacts on the client population, but with every dollar invested in a legal service organization, over 11 dollars were produced “in financial benefits, extending to businesses, local governments and individuals across all social classes.”

The rationale for this latest attack on LSC comes under the guise of placing “more control in the hands of State and local governments, which better understand the needs of their communities.” On this point, the president may be right. So, to the administration and members of Congress, take it from 32 state attorneys general, the chief legal officers of their respective states, when they say, “[a]t a time of constrained state budgetary resources, federal funding plays an increasingly critical role in the provision of these services.” (emphasis added).

The fact that state attorneys general from both parties came together to announce their opposition to this unfortunate proposal, in this age of increased political polarization, should demonstrate to the administration and members of Congress the pressing need for continued and enhanced civil legal services for those who need it the most.

Twenty-One AGs Urge Education Secretary to Reconsider Rollback of Student Loan Reforms

*This piece originally appeared on StateAG.org.  

In a letter sent last week, 21 state attorneys general and the Office of Consumer Protection of Hawaii urged Secretary of Education Betsy DeVos to immediately reconsider “the Department of Education’s revocation of critical student loan service reforms.” The policy and guidance memoranda withdrawn by the Department addressed industry-wide procedures by student loan servicing companies that were the subject of investigations and enforcement actions by the Illinois and Washington state attorneys general, among others.

The April 24 letter highlights some of the industry practices that contributed to more than a quarter of borrowers being delinquent or in default on a student loan, according to a report by the Consumer Financial Protection Bureau (CFPB):

“In its 2015 report, the CFPB identified troubling student loan servicer practices – including paperwork processing errors and failure to provide accurate information – that discourage the use of income-driven repayment plans. By reforming service incentives and strengthening consumer protections, the rescinded guidance sought to eliminate the loan servicing failures that keep borrowers from entering affordable repayment plans.” — April 24 letter from 21 state attorneys general to Department of Education

According to Forbes, 44 million borrowers owe approximately $1.3 trillion in student loan debt, making it the second-largest type of consumer debt behind mortgages.

Is Speech From the Campaign Trail Relevant to Religious Discrimination Claims?

Last month, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a federal district court judge’s temporary injunction against the first version of President Trump’s travel order. Some critics of the Ninth Circuit’s opinion have argued, among other things, that the panel should not have considered Donald Trump’s statements as evidence that the order purposefully discriminated against Muslims. These critics suggest that presidential campaign speech categorically ought not to be included among the evidence to which courts look to determine whether a law was passed for discriminatory reasons.

This past Friday, Judge Kozinski – in an opinion joined by four of his fellow Ninth Circuit judges, dissenting from the Ninth Circuit’s refusal to vacate the panel opinion on the First Travel Order – joined these critics. Judge Kozinski characterized the panel’s use of Trump’s own statements as an “evidentiary snark hunt.” This approach, he warned, will reward lawyers for sifting through a candidate’s “often contradictory or inflammatory” statements, “when in truth the poor schlub’s only intention is to get elected.”  Worse still, it “will chill campaign speech,” as candidates censor themselves for fear of uttering statements that will haunt them in court one day.

The concerns voiced by Judge Kozinski and other critics are misplaced. As both the Ninth Circuit panel and the federal trial court that first ruled on the case recognized, it is well established that courts may – indeed, often must – look beyond the face of a law to determine whether it is motivated partly by a discriminatory purpose. A contrary rule would create gaping loopholes in constitutional and statutory bars against religious or other forms of discrimination. To be sure, judicial inquiries into alleged discriminatory purposes are highly context-sensitive. A stray bigoted statement by a legislator or executive is unlikely to persuade a court that a measure is discriminatory in the face of ample evidence that it was directed toward, and serves a legitimate, non-discriminatory interest. On the other hand, a long history of public statements promising to take a particular action against a given group may well convince a court that the promised action, once taken, does purposefully discriminate against that group. At minimum, that history is relevant to the judicial inquiry, even if the court ultimately deems it outweighed by countervailing evidentiary factors. Were courts not free to so much as consider such history, the judicial power regarding anti-discrimination laws would be dramatically curtailed.

The question, then, is whether there exists any good reason to exempt presidential campaign statements from the realm of evidence that courts can consider in cases alleging religious discrimination. The answer is that there is none. While a presidential candidate may make conflicting statements at different times and to different audiences, that is true of many other categories of written and oral communication. And such inconsistency itself is a factor that courts can and should consider in sifting through all of the relevant evidence. It also is not remotely disqualifying that a “poor schlub” of a candidate may (shockingly!) not really mean what he or she says, but may only be seeking political advantage. A presidential action that is taken to appeal to a constituency’s perceived bigotry is no less discriminatory in purpose than is an action that manifests the president’s personal biases. Nor does the fear that candidates will censor themselves on the campaign trail justify excluding their campaign statements as evidence of discriminatory purpose. Such statements will be relevant in a lawsuit challenging official action only if the candidate, once in office, takes official actions to which the statements can be linked. Even then, the statements, while probative, are not necessarily conclusive of discriminatory purpose. Weighing such statements as evidence, in short, is not the same thing as punishing candidates for the statements themselves.

Indeed, neither the Ninth Circuit panel nor the federal trial court whose decision it reviewed played a game of “gotcha” in which it cherry-picked isolated campaign statements. To the contrary, both courts referenced campaign statements in the context of the larger body of evidence to which the state of Washington pointed in its complaint and exhibits. That larger body of evidence includes post-election and post-inaugural statements, indicia of continuities between the pre- and post-election statements and the Travel Order itself, and flaws in the administration’s national security based justifications for the Order. For example, the state of Washington observed in its complaint that candidate Trump’s press release calling for a “total and complete shutdown of Muslims entering the United States” was still available on Trump’s campaign website as of the date that the complaint was filed. It also noted that Trump referred to his immigration plan as “extreme vetting” while still a candidate, and continued to refer to it as such in his first television interview as president and in a signing ceremony for the first travel order.

The District Court and the Ninth Circuit simply took notice of Donald Trump’s own statements, made publicly and repeatedly from the early days of his campaign through the first days of his presidency, and acknowledged common sense connections between those statements and the travel order. This was no more and no less than what was necessary to hold the administration accountable under the Constitution. After all, the Constitution constrains even a “poor schlub,” when that schlub happens to be the president of the United States.

Sabin Center and StateAG.org Launch Environmental Action Database

In the face of a reduced federal presence, Columbia Law School's Sabin Center for Climate Change Law, in partnership with StateAG.org, has produced a valuable legal research tool for those interested in environmental law and policy. The State AG Environmental Action Database includes a variety of environmental lawsuits and other actions involving state attorneys general. Users can search its contents by state, issue or type of action. The database also includes links to relevant documents and resources.

This impressive database has been put together by dedicated Columbia Law School students under the supervision of Jessica Wentz, who serves as staff attorney and associate research scholar for the Sabin Center.

I cannot overstate the importance of this effort. It is the only place where this information has been brought together in a coherent, organized fashion. The database will remain a "work in progress" as AG offices provide more cases to be uploaded. Notwithstanding the efforts by some in Washington D.C., this database is demonstrable proof that state attorneys general remain vigorous protectors of our environmental heritage.