An American History of Separating Families

On Thursday, the U.S. House of Representatives Committee on the Judiciary released a report with a title that pulls no punches: “The Trump Administration’s Family Separation Policy: Trauma, Destruction, and Chaos.” It opens with the righteous statement that “these preventable tragedies must not be forgotten.” The Committee’s indignation is justified, but what is missing is historical context. The separation of Central American families carried out by the Trump Administration is just the latest version of cruel family separation practices rooted in America’s soil.

The report is a product of a 21-month investigation that, in the Committee’s own words, “revealed a process marked by reckless incompetence and intentional cruelty.”  The Administration formally executed the “zero tolerance” family separation policy between April and June 2018.  However, the report details that the executive branch began sowing the policy’s seeds weeks after inauguration, in mid-February 2017, and the actual separation of families began before the President’s announcement.  In fact, it reveals that the U.S. Department of Health and Human Services (HHS) reported that by April 2018–the same month the President publicly revealed zero tolerance–the government already had separated “at least 856 children” from their parents, of which “twenty-six percent were under the age of five.”

The report also details how government officials when they first started separating families acknowledged that there was no way to link children with their parents, but did nothing to rectify this.  Last week, we learned that the government has yet to find the parents of 545 migrant children.  The HHS Office of Inspector General estimated that in total, the U.S. government separated nearly 2,800 children.  The Young Center for Immigrant Children’s Rights issued a report this summer on the Administration’s ongoing practices that separate migrant children from their parents.

The law clinic I direct represents two of these thousands of separated families.  In both cases, U.S. immigration officials separated the parents from their children, who at the time were under the age of eight, soon after the families crossed the border. Officials ripped both children from their parents’ arms, put them on planes, and held them in shelters thousands of miles away.  The government deported their parents within a week of their arrivals.  Both parents then spent agonizing weeks in their home countries trying to get information on the children’s whereabouts. After about six months, the U.S. government finally returned the children to their parents.

Even as someone who for almost two decades has witnessed egregious harms inflicted on non-citizens by the U.S. government, I found myself particularly affected by the cruelty my clients had suffered. I initially was unable to answer my students’ question of how the U.S. government can engage in such cruelty, until together we realized that family separation is embedded in American history. It was a practice tied to our inhumane founding, to force a fantasized notion of America by solving the so-called “Indian problem.”  Part of this solution was separating Indigenous children from their families, first by placing them in boarding schools and later by promoting and facilitating their adoption by non-Indigenous families. A 1978 U.S. House of Representatives report cited that the government separated approximately twenty-five to thirty-five percent of Indigenous children from their families.

There was also the separation of enslaved families and kidnapped freed African Americans, about which Ta’Nehisi Coates says, “Here we find the roots of American wealth and democracy – in the for-profit destruction of the most important asset available to any people, the family. The destruction was not incidental to America’s rise; it facilitated that rise.” Local governments and private organizations removed Polish and Irish immigrant children from the mid-19th through early 20th century, the majority of whom were Catholic, through a movement called “orphan trains.”  Most of 150,000 to 200,000 children were not orphans, and were placed with Protestant and Anglo-American families. Although family separation arguably is not explicitly the objective of U.S. mass incarceration and mass deportation policies, it certainly has been their outcome.

Imagine if the House Committee report placed the Trump Administration’s family separation practices in the context of the separation of vulnerable, mostly Black and Brown, families as deeply rooted in American history. Some might say that doing so would dilute its critical force.  I offer that providing historical context would force us to think more broadly about systemic oppression, creating spaces for change that could be more meaningful to communities in the U.S. most vulnerable to state sponsored violence and harm.

Anita Sinha is an Associate Professor of Law and Director of the International Human Rights Law Clinic at American University, Washington College of Law

Supreme Court Recusal

Recusal – the act of a specific judge or justice being removed from a specific case, typically for ethical reasons – is as old as courts themselves. It reflects a concern about self-interested judging that is at odds with the impartial, independent judiciary envisioned by our Constitution and, to that end, serves two general purposes. The first is to protect individual litigants from biased judges. Our judicial system cannot function if litigants lack a fair opportunity to present their cases to an open-minded arbiter. The second is to protect the integrity of the judiciary, which is necessary to maintain public confidence in our judicial institutions and actors.

Supreme Court recusal is important to the confirmation process for at least three reasons. First, because Supreme Court justices’ recusal decisions are unreviewable and very rarely explained, the confirmation process may be the best opportunity for public vetting of a justice’s views on recusal. It is perhaps the only chance for public inquiry into how the prospective justice envisions balancing the institutional cost of recusal, discussed below, against the benefits of protecting the integrity of the Court from real or perceived bias. Second, a prospective justice may invoke future recusal problems as a reason not to answer a question at their hearing. Third, and relatedly, because Supreme Court justices rarely, if ever, publicly answer questions about their personal views on the law or judging (let alone under oath), confirmation hearings are among the very few instances where a justice may publicly take a position that could be grounds for recusal in a future case or cases.

The justices’ autonomy over recusal is reflected in practice. Notwithstanding their wide discretion in deciding whether to recuse, recusal is not uncommon at the Court. Stock ownership is among the most common grounds for recusal but is far from the only one. Justice Breyer has recused himself from multiple petitions in cases that involved his brother, a senior district judge in California. Justice Kagan recused herself from the controversial affirmative action case Fisher v. University of Texas, almost certainly because she had worked on the case while Solicitor General. In the October 2018 Term, Justice Kavanaugh recused from several cases he participated in while a judge on the appeals court, as well as Gundy v. United States, a constitutional challenge to Congress’s authority to delegate power to administrative agencies, because he joined the Court after oral argument. This past term, Justice Sotomayor recused herself from a “faithless elector” case, Colorado Department of State v. Baca, because of her friendship with one of the parties.

Whereas the justices are regularly confronted with recusal issues, they are not required to, and hardly ever, explain their recusal decisions. Moreover, when the justices do publicly explain their views on recusal, they reveal a range of concerns that are beyond the statutory requirements set by Congress. These concerns are driven by the fact that, unlike lower court judges, a recused justice may not be substituted for, leaving the Court with at least one fewer member in that case. Recusal’s effect on the physical makeup of the Court raises the possibility of a tie vote that could prevent the Court from issuing a precedential decision on an issue of national importance, or, in instances of multiple recusals, a lack of quorum that would prevent the Court from deciding the case at all. Chief Justice Roberts confirmed the justices’ views on recusal in his 2011 Year-End Report on the Federal Judiciary when he explained that, “if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.” Similar concerns have been expressed by justices in their congressional testimony, public statements on recusal, and individual memoranda explaining specific decisions not to recuse.

Understanding recusal in this way reveals much that is relevant to the confirmation process. A nominee’s hearing is an opportunity to discover (and potentially commit them to) their views on how recusal should be employed at the Court. In particular, how the Court’s obligation to resolve important legal questions should be balanced against perceived challenges to its integrity and legitimacy. As the Court becomes more politicized, concerns about the justices’ political affiliations or connections may diminish public confidence in the Court’s ability to remain independent. The recusal statute’s requirement that justices be removed from cases in which their impartiality might reasonably be questioned may be read more broadly as the political environment in the nation—and the Courts’ perceived place in it—becomes more contentious.

Nowhere is this more evident than in the controversy surrounding Judge Amy Coney Barrett’s confirmation to the Court just days before a presidential election. Within hours of Justice Ruth Bader Ginsburg’s death on September 18, Senate majority leader Mitch McConnell, the person in charge of the confirmation process, announced that “President Trump’s nominee will receive a vote on the floor of the United States Senate.” This is directly contrary to his position in 2016, when President Obama nominated Chief Judge Merrick Garland to fill the late Justice Antonin Scalia’s seat on the Court 237 days before the election. At that time, McConnell announced that the Senate would refuse to consider any of the president’s nominees to the Court until after the election because the Senate should "give the people a voice in the filling of this vacancy."

Senator Lindsey Graham, the chair of the Judiciary Committee and the second-most powerful person in the confirmation process, followed Senator McConnell’s lead despite having promised in 2016 that: "If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, ‘Lindsey Graham said let's let the next president, whoever it might be, make that nomination.’” What’s more, Senator Graham expressed confidence that Republicans would confirm a new justice before the election prior to knowing who the president would nominate. This abrupt shift by both Republican leaders reveals the inherent partisanship and opportunism in their decision, and draws into question the integrity of the entire confirmation process.

But simply filling the seat before the voters weigh in is only one example of the hyper-politicization of Judge Barrett’s nomination. President Trump also made clear that installing his nominee on the Court before the election is important to the outcome of the election itself. He explained he thinks the election “will end up in the Supreme Court and I think it’s very important that we have nine justices, and I think the system’s going to go very quickly.” He also directly connected Judge Barrett’s confirmation to a central issue of his campaign by tweeting that his judicial nominees, including Judge Barrett, “will do the right thing unlike Bush’s appointee John Roberts” and vote to overturn the Affordable Care Act in a case scheduled a few days after the election; just in time for Judge Barrett to join the Court.

The hypocrisy of McConnell and Graham, and the explicit connection of Judge Barrett’s nomination to President Trump’s campaign platform and the election cast a shadow on the Court’s integrity and independence. More urgently, they cast a shadow over Judge Barrett’s potential participation in cases involving the 2020 election that requires her recusal from such cases. As we learned from Bush v. Gore, the public is inherently skeptical about the Court’s involvement in a presidential election, especially one that appears to be decided along party lines. This skepticism contributes to the conclusion that a reasonable observer could question Judge Barrett’s participation in a case involving the election and further supports her recusal.

Finally, although the threat of a tie vote due to Justice Barret’s recusal is an important consideration, it should not overcome her need to recuse. Whereas a 4-4 decision would be a terrible outcome in a case effectively deciding a national election, leaving the Court with an even number of justices may also be a blessing, as it could force the eight sitting justices to seek (and find) greater consensus. The Court has been inspired to pursue unanimity in other landmark decisions; what better place to rise above partisan and ideological divides than in a case about preserving our democratic process.

In recusing herself from any election disputes, Justice Barrett would be practicing the lessons of 2000 by protecting the Court’s legitimacy and incentivizing her eight remaining colleagues to find common ground on an issue of the greatest national importance.

Judge Barrett’s Originalism: Conservative Politics All the Way Down

About the only thing of interest, if one can call it that, Judge Amy Coney Barrett revealed during her confirmation hearings was that she is an “originalist.” That label, however, is utterly meaningless as a descriptor of constitutional interpretation but it does accurately suggest Barrett will vote conservative most of the time regardless of whether constitutional text or history supports her suggested results. History and common sense both show that there are conservative judges, moderate judges, and liberal judges, but there are no originalist judges. Our political dialogue would be much improved by removing this pernicious term from our societal debates about the proper role of the United States Supreme Court.

In the 1970s and 1980s, originalists were almost universally opposed to judges overturning state and federal law absent a clear inconsistency with constitutional text. This call for judicial deference by people like Judge Robert Bork and Professor Raoul Berger was a conservative political reaction to liberal Warren Court decisions such as Roe v. Wade and Miranda v. Arizona. The key component of this theory was judicial restraint.

After twelve years of conservative judges appointed by Ronald Reagan and George H.W. Bush, however, the originalist calls for judicial deference transitioned in the 1990s to strained justifications for aggressive originalist judicial review of state and federal laws. In other words, originalism became a sword for justices and academics to use to urge more judicial review, not less, almost always in the pursuit of conservative constitutional decisions. Judges resorted to discussions of constitutional history only when doing so supported the results they desired on other grounds.

Judge Barrett’s alleged originalism, like the faux originalism of her mentor Justice Scalia, has nothing to do with deferring to legislative majorities and everything to do with reaching conservative political results. Over the course of his career, Justice Scalia voted to overturn over 100 state and federal laws on such hot button issues as affirmative action, campaign finance reform, myriads of contested free speech issues, voting rights, and the proper balance between the state and federal governments almost always without any persuasive originalist justification. Although Scalia off the bench and in dissents talked the talk of originalism, when he voted, he walked the walk of aggressive living constitutionalism.

Judge Barrett, following in her mentor’s footsteps, has already voted in dissent to strike down a Wisconsin law on the books since 1981 barring all  those convicted of felonies from owning guns unless the state can prove the individual is a risk for violence, This decision was not based on text, history, or precedent but Judge Barrett’s conservative values. Expect more of the same on issues of abortion, federalism, voting rights, and affirmative action when she becomes a Justice.

Truly originalist judges, to be sincere and honest, would have to adopt a strong deferential stance towards state and federal laws because that was the original understanding of the power of judicial review. In Federalist No. 78, written by Alexander Hamilton, he argued that judges should only overturn laws absent an “irreconcilable variance” between a law and the Constitution. Nationally acclaimed historians such as Jack Rakove and Sylvia Snowiss have reviewed the founding period and concluded that the people at the time expected judges to overturn laws only where they were obviously and clearly unconstitutional. In other words, judicial review was supposed to be limited, modest, and used sparingly.

The original Originalists, like Judge Bork, understood this history and preached judicial restraint as a way to cure what they saw as the excesses of the Warren Court. But the Supreme Court is a political institution that makes political decisions. Once the Court was staffed with conservatives who wanted to limit voting rights, assist big business, and allow for unlimited money in political campaigns, among other important issues, all of a sudden judicial restraint became a thing of the past and originalism was either ignored or distorted in the service of the Court issuing mostly conservative decisions (overturning same-sex marriage bans, prayers at high school events, and on rare occasions abortion laws were exceptions proving the rule).

Judge Barrett knows or at least should know that in the hard cases that reach the United States Supreme Court, the text and history in question will point in many different directions or often in no helpful direction. Constitutional phrases like equal protection of the laws, due process of law, freedom of speech, establishment of religion, and cruel and unusual punishments have no fixed meaning and contested histories. Judges have to go well beyond text and history to apply those flexible aspirations to modern problems unless they adopt a strong posture of judicial restraint.

Additionally, today’s originalists, unlike those of the 1980s, admit that the applications of the text change as society changes. What all of this means is that the Justices will, as they always have, vote their preferences. The only form of originalism that can change that is one that comes with strong judicial deference, not the current version which allows judges to pick and choose which historical facts, if any, support their desire to reach conservative political results. Unfortunately, calls for judicial restraint, whether from the left or the right, are rarely heeded by Supreme Court justices who have life tenure and largely unreviewable power.

Judge Barrett’s alleged commitment to originalism, like her mentor’s, is an empty promise devoid of constraining effect. Today, originalist judges and justices are just conservative judges and justices, nothing less and nothing more. The American people should not be fooled by her empty nods towards originalism as a theory of constitutional interpretation. Her brand of originalism, like those of most modern judges, is just conservative living constitutionalism in disguise.

Eric Segall is the author of Originalism as Faith (Cambridge 2018).

Abortion Access for Low-Income People is at Stake in the Amy Coney Barrett Nomination

The nomination of Judge Amy Coney Barrett threatens to radicalize the Supreme Court. Barrett’s record demonstrates that she is fundamentally hostile to reproductive rights, and within her judicial philosophy, she discounts the consequences and burdens of the judiciary’s decision-making in people’s lives.

However, her approach is in conflict with current Supreme Court precedent, which has considered exactly these kinds of real-world burdens with respect to laws impinging upon reproductive rights. While low-income Americans often struggle to access reproductive health care, the Court in last term’s June Medical Services v. Russo (2020) reaffirmed earlier holdings in Planned Parenthood v. Casey (1992) and Whole Woman’s Health v. Hellerstedt (2016) that constitutional review of state abortion restrictions must take into account the burdens they impose on the least advantaged.

In Casey, the Supreme Court held that a state unlawfully impedes upon the constitutional right to access abortion if it creates an “undue burden” on the right. The Court factored in real-world circumstances facing people seeking abortion when it invalidated Pennsylvania’s requirement that a woman notify her spouse of her intention to have an abortion, recognizing that compliance would be especially burdensome for those in abusive relationships. The Court wrote that “we must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.”

The Supreme Court’s decision in Whole Woman’s Health reaffirmed the importance of considering real-world circumstances when applying the undue burden standard. In assessing the burdens imposed by two Texas TRAP (“targeted regulation of abortion providers”) laws, the Court credited the district court’s finding that each requirement created “a particularly high barrier for poor, rural, or disadvantaged women,” highlighting increased travel as just one example.

Following these Supreme Court decisions, lower courts evaluating the constitutionality of abortion restrictions have consistently factored in burdens attendant to economic hardship. These included the socioeconomic makeup of patients seeking abortions, travel time to clinics, transportation costs, hotel costs, lost wages from time off from work, childcare costs, and time and resources spent borrowing or raising the necessary funds for all of the above.

One of these cases, known as June Medical Services v. Gee (later June Medical Services v. Russo), involved a challenge to a Louisiana TRAP law identical to one of the Texas requirements invalidated in Whole Woman’s Health. While blocking the Louisiana law, the district court made extensive findings that the resulting clinic closures would disproportionately burden low-income people. For instance, the court found that those seeking abortion are disproportionately poor: 42% of women having abortions nationally live at or below the poverty line, and “another 27% ha[ve] incomes at or below 200% of the poverty line.” The court also found that the burdens of the law – from longer wait times to delays in care – “would have the effect [of] increasing health risks among the State’s poorer women.”

After the Fifth Circuit reversed the district court’s decision, the Supreme Court agreed to hear the case. In its decision last term in June Medical Services, the Court invalidated the law as an undue burden on the right to abortion. Five Justices – a plurality of Justices Breyer, Ginsburg, Sotomayor, and Kagan, plus Chief Justice Roberts in concurrence – reaffirmed the holdings from Casey and Whole Woman’s Health that real-world circumstances, including harms amplified by poverty, are relevant under the undue burden standard.

The plurality closely evaluated the real-world impacts of Act 620. It explained that “the reduction in abortion providers caused by Act 620 would inevitably mean ‘longer waiting times and increased crowding’” and that “even if they obtain an appointment at a clinic, women who might previously have gone to a clinic in Baton Rouge or Shreveport would face increased driving distances.” Moreover, the plurality explained that “the impact of these increases would be magnified by Louisiana’s requirement that every woman undergo an ultrasound and receive mandatory counseling at least twenty-four hours before an abortion,” and that this impact would be even greater under the admitting privileges law, as “a Shreveport resident seeking an abortion who might previously have obtained care at one of that city’s local clinics would either have to spend nearly twenty hours driving back and forth to Doe 5’s clinic twice, or else find overnight lodging in New Orleans.” The plurality recognized that “the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them.”

Chief Justice Roberts, providing the fifth vote to strike down the law, also acknowledged the significance of these real-world impacts. He credited the district court’s finding that the law “would result in longer wait times for appointments, increased crowding, and increased associated health risk.” And he recognized that people in Louisiana seeking abortion already “have difficulty affording or arranging for transportation and childcare on the days of their clinic visits,” and that the “increased travel distance” due to clinics closures would only serve to “exacerbate this difficulty.” He also observed that “the law would be particularly burdensome for women living in northern Louisiana…who once could access a clinic in their own area and will now have to travel approximately 320 miles to New Orleans.”

In the wake of June Medical Services, there is now broad, reaffirmed precedent from the Supreme Court that the burdens falling most heavily on low-income people seeking abortion matter under the Constitution. The Court’s membership is now undergoing a transformation. If confirmed to the Supreme Court, Judge Barrett must set aside her own unforgiving judicial philosophy and pay the respect of stare decisis to precedent giving constitutional meaning to the lived experiences of marginalized people seeking to exercise their fundamental rights.

The Trump Administration Thinks It is Immune to Regulation of COVID-19 Safety and Health

The COVID crisis has caused millions of people to lose their jobs as businesses shuttered and we sheltered in place to prevent the spread of COVID. In March, Congress enacted the CARES Act, expanding unemployment benefits for workers to protect them from financial disaster and extending eligibility to gig economy workers who are classified as independent contractors.

Meanwhile, the Trump Administration has shown time and time again that it believes it is above the law, and the pandemic. The recent superspreader event at the White House is further evidence that the Administration should not be trusted to oversee the federal agency that oversees worker safety, the Occupational Safety and Health Administration (OSHA).

The rollback of rights and economic exploitation intersects with race discrimination and poverty, as millions of low-wage workers are people of color. The question facing these  vulnerable workers is whether OSHA will be there to protect them, when it has so far exercised minimal oversight over the industries where they are concentrated—food processing, prisons and nursing homes.

Sadly, the historical antecedents of these contemporary failures run deep. At the end of the Civil War, the 13th Amendment to the Constitution outlawed not only slavery but also involuntary servitude, including the indentured servitude of northern workers. Labor activists in the 19th and 20th centuries invoked the 13th Amendment when they advocated for regulations that would protect their right to organize, establish minimum wage and maximum hours, and protect them against dangerous working conditions. Civil rights leader Dr. Martin Luther King Jr. invoked the emancipation of slaves in his 1963 “I Have a Dream” speech as he condemned racial segregation and advocated for civil rights laws.

The activists who invoked the Constitution achieved many victories for racial justice and workers’ rights. However, in recent years low-wage workers have been increasingly subject to labor practices which employers have intentionally adopted to avoid protective regulations, like the OSH Act and the National Labor Relations Act of 1935 (“NLRA”) which protect the right of workers to raise their voices in opposition to unsafe work practices.

But these protective statutes do not apply to those who are not “employees.” In the gig economy, low-wage workers lack job security and must constantly search for new work. Most low-wage workers do not receive health insurance, pensions, or other benefits from their employers. The recent COVID crisis has exposed this reality and heightened the vulnerability of U.S. workers.

“Essential” workers such as medical workers, agricultural and food processing workers, and grocery store employees are particularly vulnerable to COVID exposure and infection. Now U.S. teachers are also being asked to risk their lives by returning to unsafe classrooms.

Disproportionately represented in frontline “essential services” jobs, racial minorities are also disproportionately likely to sicken and die of the disease. In her recent book, Caste, Isabel Wilkerson argues that our country perpetuates a racial caste system. According to Wilkerson, caste “is like a corporation that seeks to sustain itself at all costs.” The COVID crisis reflects this racial caste system, and workers of color are indeed paying the costs.

The growth of the COVID virus throughout the country is impeding economic recovery. There simply aren’t enough jobs out there for the unemployed to return to, and too many jobs that do exist are unsafe. Yet rather than protecting workers from disease, Republican lawmakers have repeatedly insisted that workers must return to work regardless of the risk. They have repeatedly argued that extending enhanced unemployment benefits disincentivizes workers from returning to their jobs.

As our businesses began to reopen in April and May, workers in many states were informed that if they failed to return to work out of fear of COVID infection, they would no longer be eligible for unemployment benefits. The federal government is doing nothing to ensure that those workers’ employers adopt safety measures to protect them from infection. Instead, Republican lawmakers wish to immunize those employers from liability so workers who contract COVID on the job have no recourse, thus removing any incentive for job safety. They are also using COVID as an excuse to attempt to water down other protections for workers, including anti-discrimination laws and measures protecting the rights of unionized workers.

Like any other workplace, the White House should not be a dangerous place to work for the many senior staffers and residential house staff that go there every day.  The President shows callous disregard toward the safety of those who work in the White House, but it is not surprising given the disregard the has shown for making all workplaces safe, by imploring businesses and schools to open without any plan for safety. These workers have a human right to workplace safety, and the right to have a functioning federal government that aims to protect their health.

The same people who invoke liberty against face masks and safety regulations would force workers to choose between risking their lives at work or homelessness and hunger. U.S. workers are entitled to the liberty to work in decent jobs without risking their lives.

Ruben J. Garcia is the Co-Director of the Workplace Law Program and Professor of Law at the William S. Boyd School of Law,  University of Nevada, Las Vegas. His publication “The Human Right to Workplace Safety in a Pandemic” is forthcoming in the Washington University Journal of Law and Policy.

Rebecca E. Zietlow is the Charles W. Fornoff Professor of Law and Values at The University of Toledo College of Law. Her new publication “The New Peonage: Liberty and Precarity for Workers in the Gig Economy” is forthcoming in the Wake Forest Law Review.

Consumer Financial Protection Bureau Leaders Should Focus on Racial and Economic Inequality

This blog is cross-posted in the Economic Policy Institute's Working Economics Blog.

The Consumer Financial Protection Bureau (CFPB) should explicitly re-center its antidiscrimination mandate and address itself squarely to fostering racial and economic equity.  

By doing this, CFPB leadership could realize the full Dodd-Frank Act mandate to listen and be responsive to traditionally underserved communities and consumers.   

The agency needs to center the voices of marginalized communities as a necessary adjunct to promoting accountability under the statute.  The recognition that racial and economic justice are linked and that the pandemic is amplifying and embedding existing racial disparities, demand that we move beyond the generalities of the statutory language. Poor, rural, and immigrant communities, across racial differences, are all both underserved and poorly served by financial institutions. Black people in particular have always been excluded from the financial mainstream in this country. 

I am the founder of the Consumer Rights Regulatory Engagement and Advocacy Project (CRREA Project), and in our series on how the CFPB develops policy, and the inclusion of marginalized communities’ perspectives in that policy development, we’ve talked about the vision as set forth in Dodd-Frank,  the reality of how the statutory structure was implemented,  and changes to the organizational chart under the Trump administration.  

Here are our recommendations for how the agency can focus on racial and economic equity: 

Name It:  Identify Who is Served by the CFPB’s Mission 

As a first step to re-dedicating itself to its statutory mission, the CFPB should take a public stance acknowledging the centrality of consumers and traditionally underserved consumers.  We should put behind us the fight over the name of the CFPB, and whether “consumer” or “bureau” should come first.  Regardless of how often the statute put which one first, Congress was clearly focused on a certain set of concerns in the creation of the CFPB: consumer concerns and particularly those of traditionally underserved communities and consumers.  Consumer interests always come first in the Dodd-Frank Act, and so they should in how the CFPB understands its work and presents it to the public, whether through the website, the logo, or consumer education materials.   

The CFPB’s current strategic plan runs through 2022.  In developing the new strategic plan, the CFPB will have the opportunity to revisit its mission and vision statements, as well as the overall goals for its work, including specific measurable goals to be reported on annually.  The CFPB should seize this opportunity to center consumers, and a recognition of the CFPB’s special responsibility to traditionally underserved communities, in its work.   

Lay the Foundation: Regularize Public-Facing Research on Consumer Financial Products and Services and Traditionally Underserved Communities 

 The Office of Research is the first of the statutorily mandated Dodd-Frank Act offices.  Its mandate includes research and reports on risks to consumers, access to credit for traditionally underserved communities, and the experiences of traditionally underserved consumers.  It has both world-class economists and access to datasets covering all consumer financial markets, in many cases with only a month’s lag time.  The CFPB also has the authority, in section 1022(c)(4) of the Dodd-Frank Act, to collect additional information from financial institutions.   

Those resources should be focused on foundational work on the role of consumer financial products and services in traditionally underserved communities.  When is disclosure effective and for what risks?  How do consumers view tradeoffs in access to credit versus risk?  How can we untangle when the benefits of credit to traditionally underserved communities outweigh the costs of credit?  For example, the subprime lending boom of the early 2000s promoted access to credit and led directly to both the foreclosure crisis and the loss of more than a generation of wealth accumulation for Blacks and Latinx.  Credit can open doors and it can close them.   

The Office of Research has done significant work in all of these areas and more.  The CFPB should follow the precepts of the bipartisan Foundations for Evidence-Based Policymaking Act and adopt a public “learning agenda.”  A public research agenda, coupled with a regular cadence of reports on issues of importance to traditionally underserved communities, could bring public accountability to this aspect of the CFPB’s statutory mandate.  For example, researchers look to the CFPB for its annual release of the HMDA data and accompanying reports analyzing that year’s data.  Changes to the user interface for accessing the data have brought congressional scrutiny.  The CFPB could also expand its discussion in its semiannual report to Congress of the “significant problems faced by consumers in shopping for or obtaining consumer financial products or services.”  That discussion could explicitly center the experiences of marginalized communities in accessing credit on fair and non-discriminatory terms.    

Build It: Create a Structure that Reflects the Statute and Makes Visible Traditionally Underserved Communities 

The Trump-era CFPB organizational chart has moved four of the Dodd-Frank mandated offices and special units off the public-facing organizational chart.  The offices of community affairs, financial education, service members, and older Americans are now all housed inside the consumer education office, itself housed inside a new division of external affairs and consumer education.  Offices important enough for Congress to name are important enough to be visible on the public-facing organizational chart.  The public should know who leads those offices.    

Any new leadership of the CFPB will have to consider the location of the Office of Fair Lending.  The move of the fair lending office from its initial home in the same division with supervision and enforcement to the Director’s Front Office was meant to refocus the fair lending office’s work on “advocacy, coordination, and education” instead of supervision and enforcement.  We at CRREA Project believe that leaving the Office of Fair Lending in the Director’s Office could be used to signal its cross-cutting importance to the work of the CFPB, if coupled with the necessary formal and transparent decision rights and processes.   

For example, the CFPB could publicly commit to a formal role for the Office of Fair Lending in priority setting across the agency. The CFPB could update its written procedures related to decision making to embark on specific actions that would normally rise to the Director for final decision, such as authorizing specific enforcement actions.   Establishing formal and transparent decision rights and processes would provide accountability to Congress and the public.  Such actions could provide reassurance that fair lending was a central consideration in supervisory and enforcement actions without disclosing confidential internal CFPB deliberations.   

Other steps could include explicit roles for outreach connected to rulemakings to facilitate input from marginalized communities or a designated role for the statutory offices in providing input into policymaking.  Clarifying the role of the Community Advisory Board would assist both the CAB and staff in understanding the purpose and nature of their interactions.  Other agencies, such as the Environmental Protection Agency have, from time to time, published detailed guidance for staff and guidance for rulewriters about the agency’s policy decision processes.  This kind of work is foundational to consistent management across administrations and could contribute to the development of a culture and identity for the CFPB that lasts for generations. 

Conclusion 

Accountability to the underserved and poorly served consumers and communities the statute repeatedly calls out is critical.  Public-facing documents, like the strategic plan, a research agenda, or an organizational chart, afford one level of accountability.  They explain what the agency intends to do and offer a point of engagement for the public.  Future leadership should go further and embrace the statute’s emphasis on consumers and traditionally underserved consumers and communities to apply an explicit racial and economic equity lens to decision making across the agency.  Doing so would build a CFPB robust and resilient enough to serve the public well for the years to come.   

Diane Thompson is the founder of the Consumer Rights Regulatory Engagement and Advocacy Project. Previously she was Deputy Assistant Director and Acting Assistant Director of the Office of Regulations in the Consumer Financial Protection Bureau.