White House Deputy Chief of Staff Stephen Miller allegedly pushed for the DOJ’s dubious legal memo on institutionalization.Francis Chung/Politico/AP
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On Thursday, Sen. Tammy Duckworth (D-Ill.) will introduce a resolution that calls for the Department of Justice to rescind a memo issued last week that contests the longstanding interpretation of the Supreme Court’s 1999 Olmstead v. L.C. decision, a landmark case that limits states’ power to compel people to live in psychiatric and other institutions, such as nursing homes.
“I am not going to let this administration move us back to a time when people were ripped out of their communities, ripped out of their homes against their wills, and forced into institutions,” Duckworth told me in an interview.
The DOJ memo itself does not change the law, but it may influence how the Departments of Justice and Health and Human Services approach agreements and programs that help disabled people live in their communities, outside institutions. Following the release of the memo, HHS took down its webpage on Olmstead and community living.
The slip opinion, which Bloomberg Law reported was allegedly driven by the demands of ultra-right Trump advisor Stephen Miller, was met with immediate backlash from disability advocates and legal experts. As George Washington University law professor Alison Barkoff told me when I covered the opinion last week, the Trump administration’s “interpretation is completely inconsistent with virtually all courts” with respect not only to the interpretation of Olmstead but also that of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which the Olmstead decision builds on. That also greatly concerns Duckworth.
“This is taking us back to a time when there were forced lobotomies in this country,” Duckworth said. “We just cannot let that happen.”
The resolution is also co-sponsored by Sens. Chuck Schumer (D-N.Y.), Bernie Sanders (I-Vt.), Kirsten Gillibrand (D-N.Y.), Chris Van Hollen (D-Md.), Patty Murray (D-Wash.) and Ron Wyden (D-Ore.), among others. The DOJ opinion, the resolution says, “rejects the integration mandate and threatens the hard-won progress towards full integration of individuals with disabilities into society in the United States,” compounded by GOP cuts to Medicaid-funded home and community-based services, which will also force more disabled people into institutions. The resolution also calls for the US government to recognize the importance of fulfilling Olmstead and a reversal of Medicaid cuts.
“This is clearly the ableism that exists in this administration that starts with Donald Trump, the president,” Duckworth told me. “He’s the guy who looked at wounded veterans, amputees, and said those guys are suckers and losers.”
Olmstead‘s integration mandate, Duckworth emphasized to me, is “critically important to our society.”
“We cannot be a leader of the free world if we continue to segregate groups of people in our own country, whether it is through racism or through ableism,” Duckworth said. “They underestimate the willpower of the disability community.”
