|Legal Services Corporation
For 25 Years, America's
Partner For Equal Justice
Program Letter 01-3
Board of Directors
Douglas S. Eakeley
John N. Erlenborn
Hulett H. Askew
LaVeeda M. Battle
John T. Broderick, Jr.
F. Wm. McCalpin
St. Louis, MO
Maria Luisa Mercado
Nancy H. Rogers
Thomas F. Smegal, Jr.
San Francisco, CA
Ernestine P. Watlington
February 28, 2001, the United States Supreme Court issued a decision in Legal Services Corporation v. Velazquez, et al., Nos. 99-603 and
99-960, 121 S. Ct. 1043, 2001 WL 193738 (U.S.), striking down as
unconstitutional the restriction prohibiting LSC grantees from challenging
welfare reform laws when representing clients seeking specific relief from
a welfare agency. LSC intends
to revise its regulations at 45 CFR Part 1639 to bring them into
conformity with the Supreme Court’s Velazquez
decision. In the meantime,
however, LSC is issuing this interim guidance on the effect of the Velazquez decision on LSC’s regulations.
The stricken restriction was first imposed by Congress in §504(a)(16)
of the FY 1996 Legal Services Corporation appropriations legislation (the
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L.
104-134, 110 Stat. 1321-53 (1996)) and has been retained in each
subsequent annual LSC appropriation. The relevant portion of §504(a)(16)
prohibits funding of any organization:
restriction was incorporated into LSC’s regulations at 45 CFR Part 1639.
Specifically, 45 CFR §1639.3, Prohibition, provides that:
as provided in §§1639.4 and 1639.5, recipients may not initiate legal
representation, or participate in any other way in litigation, lobbying or
rulemaking, involving an effort to reform a Federal or State welfare
system. Prohibited activities include participation in:
Litigation challenging laws or regulations enacted as part of an effort to
reform a Federal or State welfare system.
Rulemaking involving proposals that are being considered to implement an
effort to reform a Federal or State welfare system.
(c) Lobbying before legislative or administrative bodies
undertaken directly or through grassroots efforts involving pending or
proposed legislation that is part of an effort to reform a Federal or
State welfare system.
45 CFR §1639.4,
Permissible representation of eligible clients, provides that:
The Supreme Court upheld the decision of the Court of Appeals and
invalidated that portion of the statute which provides that representation
of an individual eligible client seeking specific relief from a welfare
agency may not involve an effort to amend or otherwise challenge existing
law. The Court held
that such a qualification constitutes impermissible viewpoint
discrimination under the First Amendment because it “clearly seeks to
discourage challenges to the status quo.” 121 S. Ct. 1043, 1047 (2001).
The Supreme Court also upheld the lower court’s decision that the
general restriction on litigation, lobbying, and rulemaking involving an
effort to reform a Federal or State welfare system is valid since these
restrictions prohibit recipient involvement in such activities regardless
of “the side of the issue” the recipient advocates.
determining what part of the 1996 Act to strike as invalid, the Supreme
Court noted that the Court of Appeals concluded that congressional intent
regarding severability was unclear and, therefore, decided to
“invalidate the smallest possible portion of the statute, excising only
the viewpoint‑based proviso rather than the entire exception of
which it is a part.” Id. at
1052. Since that
“determination was not discussed in the briefs of either party or
otherwise contested” in the appeal to the Supreme Court, the majority
opinion noted that it was exercising its “discretion and prudential
judgement” by declining to address the issue. Id.
at 1053. The Court opted instead to simply affirm the decision of the
Court of Appeals which left intact the exception
permitting a grantee to represent an individual eligible client who is
seeking specific relief from a welfare agency, while striking the
limitation on the exception which provides that such a representation may
not involve an effort to amend or otherwise challenge existing law.
of the Decision on 45 CFR Part 1639
effect of the Velazquez decision
is to render the stricken language null and void.
This means that the limitation on representation of an individual
eligible client seeking specific relief from a welfare agency which
prohibits any such representation from involving an effort to amend or
otherwise challenge existing law is not valid and may not be enforced or
given effect. Henceforth, an individual eligible client seeking relief
from a welfare agency may be represented by a recipient without regard to
whether the relief involves an effort to amend or otherwise challenge
existing welfare reform law.
be advised, however, that in accordance with the opinion of the Supreme
Court, the general restriction on initiating legal representation or
participating in lobbying or rulemaking, involving an effort to reform a
Federal or State welfare system remains in effect.
Accordingly, actions which are prohibited under §1639.3 and not
specifically excepted as part of the representation of an individual
eligible client seeking relief from a welfare agency,
continue to be prohibited.
the issuance of a revised Part 1639, LSC will enforce Part 1639 in a
manner consistent with the Velazquez
decision and this guidance.
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