A Toolkit for Economic Justice

Hammer, wrench, and gavel on wooden surface

Can citizens who are homeless register to vote? Can an employer fire a worker whose earnings are subject to garnishment? Are schools obligated to provide lunch to students who can’t afford to pay?

Getting By: Economic Rights and Legal Protections for People with Low Income

These are among the questions posed in Getting By: Economic Rights and Legal Protections for People with Low Income, coauthored by Helen Hershkoff, Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties, and Stephen Loffredo, Professor of Law at the City of New York University School of Law. Published by Oxford University Press, Getting By is a comprehensive overview of federal laws and programs dealing with basic necessities that middle and upper-income people may take for granted—cash income, job protection, health care, food, housing, and schooling, and many civil liberties and civil rights—but that people with lower incomes must often struggle to access. 

The Law and Political Economy Project, centered at Yale Law School, featured Getting By in an online symposium published in July 2020. “Each chapter describes our nation’s current programs, and also points to alternative approaches that would be more respectful of personal dignity, take seriously human capabilities, confront racial and gender subordination, and strive to ensure a shared economic basis for true democratic participation,” Hershkoff and Loffredo wrote in their symposium article. In an interview, Hershkoff provides additional insight about why she and Loffredo wrote the book and how they hope it can assist individuals, communities, and advocates.

Who should read this book?

We wrote the book for multiple audiences. At one level, Getting By is part of a “know your rights” strategy and aimed to help individuals and communities navigate what my colleague Philip Alston, John Norton Pomeroy Professor of Law, has called “the labyrinth of the US legal and welfare systems.” We wrote the book before the onset of COVID-19, but the pandemic has heightened the urgency of being able to access federal programs that can make the difference between having a place to live, food to eat, and essential medical care—or not. 

Because lawyers play such an essential role in enforcing federal programs, we also wrote Getting By for them, as well as for paralegals, lay advocates, and community organizers. Adrienne Holder, Attorney-in-Charge at The Legal Aid Society, Civil Practice, in New York, generously called Getting By an “impactful work to share with racial, social, and economic justice warriors.” We wrote the book for another professional audience, too: policymakers, reporters, legislators, legislative aides, and judges and their judicial clerks, who likewise, we hope, will benefit from a concise introduction to the complex laws and regulations that pertain to people with low income. 

Of course, we also wrote the book for law students—in the hope that they will be motivated to use the law for social and economic improvement.  

With that in mind, was there anything that surprised you as you were writing the book?

Was I surprised by anything? To put your question in context: I was a legal aid lawyer during the Reagan years, and at the ACLU when Bill Clinton “ended welfare as we know it.” Since then, the United States has made it tougher for people in need to get basic assistance, excluded immigrants even with legal status from eligibility for benefits, retreated from a commitment to racial equity, impeded unionization efforts, and created barriers for women to exercise reproductive choice. Writing the book brought home the cumulative, unremitting, and pervasive impact of these political choices for social and economic life in the United States. It highlighted how even helpful government programs work hand-in-hand with a carceral state that subjects recipients to coercive surveillance.  

Perhaps what surprised me most, or, really, continues to shock me, is that our nation’s approach to social and economic well-being remains, by design, both impoverished and punitive. Full time work at the federal minimum wage leaves a family of three beneath the federal poverty line—a measure that underestimates basic need in most parts of the country by more than a factor of two.    

The Food Stamp Program (now known as SNAP), while providing essential support, calculates benefit levels based on inadequate need standards, resulting in an average allotment of approximately $1.40 per meal. Even after the Affordable Care Act, millions of families do not have access to adequate health care, and our country has some of the highest levels of infant mortality, low birth weight, and “amenable mortality,” the anodyne term for deaths from lack of medical care, with racial disparities evident in every category..

In the aftermath of writing the book, and with the onset of COVID, I’ve noted the large number of journalists and politicians who express surprise by the triple blight of poverty, economic inequality, and systemic racism in the United States. The pandemic has exposed conditions in the United States that are open and notorious, but often ignored or pushed aside—demographic trends involving income levels, income inequality, and asset formation, while producing a smaller middle class, a larger group of people in extreme poverty, and wide racial gaps in financial well-being. The pandemic—coinciding with the #BlackLivesMatter movement and horrific videos of police violence—has jumpstarted mobilization on these important issues, and I hope Getting By serves as a helpful resource for these efforts.

The concluding chapter of your book focuses on voting rights. What are the most important things for voters to know about their rights? 

Voters need to know what Getting By makes clear: that rights are fragile, and their impact on daily life depends on vigilant enforcement and institutional support. Support must come from many sectors—from Congress, the White House, the courts, the states and localities, and private companies—and cannot be detached from issues of class and race.  Voters also need to confront and resist politicians who try to pit the rights of working people against those who are underemployed or unemployed, casting social policy as a zero-sum game.  

If nothing else, I hope the book contributes to a greater sense of solidarity, helping to build collective power among those with low income—so no one has to settle for just “getting by.” 

Most of the chapters begin with a passage stating whether certain needs such as food or housing are constitutionally guaranteed, and most were not. What point are you making about the federal government’s role in supporting and protecting people with low income?

You are right that most of the chapters begin by emphasizing that the rights we discuss are not constitutionally guaranteed. Unlike many other industrialized nations, the United States has never made a federal constitutional commitment to public schooling, to income support, to health care, or to basic housing. To be sure, a constitutional right does not mean housing is available, vaccines are distributed, or healthy meals are given to hungry children at school.  But Getting By does reflect the view that our country’s constitutional gap when it comes to social and economic rights requires attention, critique, and reform. Getting By also underscores that federal rights and protections are contingent and a matter of political will. So to return to your earlier question, voters must remember that elections matter because they determine policies on the ground.

As your question emphasizes, Getting By focuses on federal, and not state and local programs. Of course, the states play an important role in the provision of social services, and they are important sites of experimentation and self-governance. But the current pandemic underscores that the states cannot deal with social and economic problems on their own—they need direction and support from the federal government.  The federal government plays an important role in creating the legal infrastructure within which markets operate, and in helping to ensure that the states and localities have resources needed for federalism to work in practice. As an example, Congress enacted the CARES Act after our book went to press. In our view, the CARES pays insufficient attention to the needs of states and localities, to  public educational institutions, to the unemployed and underemployed, and to the essential workers—many of whom are Black or Brown—who keep the country going but are not always given essential protective gear for even minimum safety.  

What should lawyers and aspiring lawyers consider when working with vulnerable populations in need of a social safety net? 

Legal work with vulnerable populations includes individual representation in courts, administrative advocacy, class action or other group representation, policy advocacy, legislative action, organizing, and so forth.  No one strategy is sufficient and together they generate important synergies. The work is complicated, in part because the laws are so complex and inter-connected. So every lawyer needs to develop professional and substantive competence in order to navigate the laws and programs. At the same time, lawyers need to recognize their limits. Clients and communities have expertise that lawyers lack—not the least, the lived experience of laws and programs. And so lawyers need humility and an open mind, as well and energy and persistence.  Above all, they need a clear sense of the constraints and pitfalls of current programs, and the courage to work for a more humane future.

Posted November 16, 2020