[ad_1]
NO!! THE NOW-NOTORIOUS “OLMSTEAD MEMO” DOES *NOT* MEAN THE DOJ IS GOING TO INSTITUTIONALIZE DISABLED PEOPLE!!
by Anne P. Mitchell, Esq. – zero hyperbole and 100% facts in plain English about what’s going on with this administration and the law
This is what happens when people with little or no knowledge of the law and how it works get ahold of something in the legal realm and decide to interpret it for their followers. Fear and chaos.
I’ve now had several people ask me about the “Olmstead act”, and does it “really mean that the government is going to institutionalize disabled people”?
First, it’s not an act, or a law, or even an executive order. And NO, it doesn’t mean that the government is going to institutionalize people!
Here are the truth and the facts:
Sometime in the near past the Office for the Counsel to the President asked the Office of Legal Counsel three questions regarding the case of Olmstead v. LC..
Olmstead was a case decided by the Supreme Court in 1999. It had to do with whether, under the Americans with Disabilities Act (ADA), and the Rehabilitation Act, it was discrimination to keep someone with mental disabilities in isolation when it had been determined that they were safe or otherwise appropriate to be placed in a community setting. The Supreme Court, in a 46-page decision (included for Notes from the Front members) said basically that it was discriminatory if, and I quote, “the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”
The Court’s shorthand was “unjustified institutional isolation”.
The three questions that were asked of the Office of Legal Counsel by the Office of Counsel to the President were:
“(1) whether Olmstead conclusively decided that section 504 of the Rehabilitation Act and Title II of the ADA impose (or authorize the imposition of) the integration mandate;
(2) assuming the question remains open, whether Congress constitutionally could impose such a mandate; and
(3) whether Congress statutorily did impose such a mandate.”
So let’s stop here for a minute. What we have here is one legal office within the executive branch asking for an *opinion* by another legal office within the executive branch, and that second legal office providing its *opinion*.
Not an act.
Not proposed legislation.
Not an executive order.
And certainly not a law.
An opinion, shared between legal entities.
The damned thing even says right at the top “slip opinion”.
Now, it is true that slip opinions from the Office of Legal Counsel (OLC) are generally binding on executive agencies. So you probably want to know how the OLC answered the questions. (Spoiler alert: in this case there were *no* directives in the slip opinion, just an opinion as to whether or not Congress might be able to do something.)
I’m including the full OLC opinion along with the Supreme Court opnion for Notes from the Front members, but here is the short answer:
To the question of whether the Supreme Court in Olmstead said that the Rehabilitation Act and the ADA *require* integration into a community situation, the OLC concluded that it did not (in other words Olmstead does not *require* states to integrate people with mental disabilities into a community situation).
To the question of whether Congress had to date imposed such requirements by law, the OLC concluded that it had not (in other words no law has been passed *requiring* states to integrate someone into a community situation instead of keeping them in isolation).
As to whether Congress *could* constitutionally pass such a law, well that’s what the rest of the 39 pages are about. The opinion goes into Georgia’s (the state in Olmstead) claims that they weren’t discriminating on the basis of mental disability, but rather they had to allocate funds as best they could, and there simply wasn’t the funding to support adding the plaintiffs in the case into a community population. And lots of other dissection of the Olmstead case.
At the end of the 39 pages, the OLC attorney who authored this opinion, Lanora Pettit, concluded that Olmstead “held nothing more than that unjustified institutionalization of individuals with mental disabilities can constitute discrimination on the basis of disability as that term is used in section 504 of the Rehabilitation Act and Title II of the ADA. If, in passing those proscriptions, Congress had imposed an integration mandate on state and local governments, both statutes would raise grave constitutional concerns. However, we need not resolve that issue here, because Congress did not purport to impose such a mandate, nor did it authorize HHS or DOJ to do so.”
NOW, I’m *not* saying that this is nothing. We all know that Trump would love nothing more than to “house” the unhoused who are deemed mentally disabled in an institutionalized setting, rather than keep them in a community setting. (DO NOT TALK ABOUT NAZIS AND HITLER IN A COMMENT OR I WILL BLOCK YOU.)
One way to read this, particularly the question about whether Congress *could* pass a law requiring community integration, is that Trump already knows that this would be *so* wildly *unpopular* that he anticipates that Congress – even *this* Congress – would try to codify Olmstead.
What’s more, the Supreme Court rang a pretty damned clear bell in Olmstead: it’s *not* ok to institutionalize someone with mental disabilities when professionals have deemed that they are safe to be housed in a community, *especially* if the *reason* you are doing it is *because* of their disability. That’s *why* Trump is trying to get the OLC to say that the Supreme Court didn’t *mandate* that such people be integrated into a community situation. Did they mandate it? Well, they didn’t say “thou shalt always integrate”. But they *did* lay out the factors that *lead* to it being discriminatory if the state *doesn’t* integrate, and of course “thou shalt not discriminate” is still a pretty damned clear commandment.
Notes from the Front members: the Supreme Court opinion and the 39-page Olmstead memo from the OLC are in your inbox now!
If you’re not a Notes from the Front member yet, please consider joining us! It’s just $5 a month and not only will you be supporting my research and reporting for you, but you will have access to all of the documents, to our live shows, and to our *private* members-only chat! You can join at this link and of course you can cancel any time!:
https://annepmitchell.substack.com/p/no-the-now-notorious-olmstead-memo
New by popular demand: Many of you have asked how you can support my work without joining Notes from the Front (thank you for asking! ❤️), here’s how: https://www.annepmitchell.com/buy-anne-a-coffee/
P.S. If you actually read all the way to the bottom please leave a comment that includes the word “slip”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering just why everyone is talking about slips or slipping! ;~)
[ad_2]
Source