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R. Shep Melnick Chapter 3 Entrepreneurial Litigation: Advocacy Coalitions and Strategies in the Fragmented American Welfare State When the Republican-dominated 104th Congress restructured welfare policies in 1996, it also launched a major assault on welfare litigation. The law that replaced Aid to Families with Dependent Children (AFDC) with the new Temporary Assistance for Needy Families (TANF) virtually shouted "NO INDIVIDUAL ENTITLEMENTS." This part shall not be interpreted to entitle any individual or family to assistance under any state program funded by this part." Just to be sure that federal judges got the message, the statute announced that federal eligibility standards "shall not be interpreted to require States to provide assistance to any individual for any period of time under the State program under this part" (PL 104-725, sections 401(b) and 408(a)(2)(D), emphasis added). The 19961aw attempted to circumvent a 1969 Supreme Court decision that had prevented states from denying welfare benefits to those living in the state for less than a year (Shapiro v. Thompson ). It also tried to override a 1990 Supreme Court decision that had expanded the number of disabled children eligible for Supplemental Security Income (SSI) (Zebley v. Sullivan ). The 104th Congress not only slashed funding for the federal Legal Services Corporation but also prohibited Legal Services from initiating class-action suits, receiving attorneys' fees, representing illegal immigrants, or becoming involved in "any effort to reform a Federal or State welfare system" (PL 104-134, sections 501 to 509). House Republicans would have eliminated the federal Legal Services Corporation altogether had they not been thwarted by the Senate. Conservatives recognized that for three decades the federal judiciary had played a major role in developing the programs they were now determined to reconfigure, and they feared that subsequent litigation would dilute their new welfare prescriptions. In short, conservative welfare reform was coupled with an effort to "defund the left" and to defang the federal judiciary. Congress succeeded in curtailing federal court involvement in TANF eligibility determinations , but not in ending Legal Service's role as an advocate for its diverse clientele. In 2001 the Supreme Court struck down the congressional restriction on welfare reform litigation, arguing that it violated the First Amendment rights of lawyers and unduly interfered with the judicial process (Legal Services Corporation v. Valasquez). Long accustomed to political attacks and statutory restrictions on their activities, Legal Services attorneys found innovative ways to hand off many of these restricted activities to allied organizations . Some of the legal advocacy and research centers affiliated with Legal Services were able to replace federal funding with foundation grants in order to escape the new restrictions . State bar associations helped by providing financial assistance and identifying lawyers willing to do pro bono work. Legal Services has continued to receive political and 52 RemakingAmerica financial support from the American Bar Association (ABA), which for over thirty years has played a key role in guaranteeing the organization's independence. In the words of two experienced Legal Services strategists, "Despite these restrictions, most of the work that needs to be done to address the individual and systemic problems that poor people face can still be done" (Houseman and Perle 2002, 245; see Smith and Silverstein 2004; Houseman 1998). A quick glance at Legal Service's major publication, Clearinghouse Review, shows how important litigation remains in many public assistance programs, as well as the central role Legal Services and its "national support centers" play within an extended advocacy network. Each bimonthly issue of Clearinghouse Review lists fifty to seventy significant recent state and federal decisions, and notes that many additional decisions can be found on its website. These cases are arrayed by "practice areas" that illustrate both the diversity and the specialization of Legal Service's efforts: Social Security and Supplemental Security Income, veterans, food projects, migrants, mental health, housing, employment, health, disability, education, consumer protection, immigrants, and family law. Legal Services attorneys throughout the country rely heavily on the twenty-seven "national support centers" listed in table 3.1. These centers not only offer legal research, policy analysis, and strategic advice to attorneys, but coordinate the activities of an array of state, local, and professional organizations within their area of expertise. For example, the National Employment Law Project describes itself as an advocate for low-wage workers , the poor, and the unemployed. Its work includes "supporting worker organizing and alliance-building among key constituent groups working with low-wage workers," and providing advice to "legal services attorneys and...

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