Of everything that President Obama has done that President-elect Trump stands to undo, perhaps no policy better symbolizes the differences between the two than a housing rule meant to reshape towns and counties across America.
Although the rule hasn't earned the same level of attention that the stimulus, Obamacare, or Dodd-Frank did, it is ambitious. It requires local governments to spell out plans for reducing segregation or else risk losing federal funds, and is the Obama administration's attempt to increase diversity and desegregate housing markets all over the country through federal action. Trump and the incoming GOP Congress don't share that vision.
Instead, all indications suggest that Trump's team is ready entirely to scrap the housing rule, clunkily known as Affirmatively Furthering Fair Housing.
The rule was finalized in July 2015. But it is meant to implement a part of the housing title of the landmark 1968 Civil Rights Act fully. Coming nearly a half century after the legislation authorizing it, the rule also represents Obama's larger hope for the country over the next decade: That it becomes more progressive and less unequal at the same time that it becomes demographically more diverse.
Conservatives see the rule as outrageous government overreach and federal intrusion into local affairs. Some red state areas that backed Trump have gone so far as to rebel against the rule, giving up federal funds rather than implement it. Even in Democratic states it is causing local consternation and anger.
One prominent conservative critic of the rule is Ben Carson, the famed neurosurgeon and former Republican presidential candidate, and now Trump's choice to lead the Department of Housing and Urban Development, the agency responsible for carrying out the rule.
In a 2015 Washington Times op-ed published just a week after the rule's finalization, Carson savaged it, saying it constituted "government-engineered attempts to legislate racial equality" and equated it to "failed socialist experiments."
Trump's thorough willingness to ignore liberal pieties and take a rhetorical buzz saw to political correctness suggests that his new administration might well scrap the rule without a backward glance before it is even phased in.
Here's how it works: For any jurisdiction that receives block grants from HUD, the agency provides the locality with an assessment tool and with data on the region's demographic and socioeconomic profile. About 1,100 jurisdictions and 4,000 public housing agencies are affected. The town or county officials then are supposed to use the tool to identify ways in which protected groups, such as minorities or disabled people, are segregated or excluded from areas with government services or jobs.
Then they have to develop plans, in three- or five-year cycles, to address those obstacles, for instance by rezoning neighborhoods, building public housing in more prosperous areas, or connecting poor neighborhoods to businesses with public transportation. Then HUD reviews those plans, with the leverage that they could withhold funds if they don't find them convincing.
Dr. Ben Carson is President-elect Trump's choice to lead the Department of Housing and Urban Development. (AP Photo)
On paper, Douglas County, Colo., is exactly the kind of place that might be scrutinized under the HUD rule.
Located just south of Denver, the county is one of the 10 richest in the U.S., with a median household income nearly twice the national average.
Poverty is scarce, and so is ethnic and racial diversity. The county is more than 90 percent white, and around 1 percent black.
Just as everywhere else in the U.S., housing in Douglas County has long been subject to anti-discrimination laws under the 1968 Fair Housing Act. Landlords and real estate agents can't refuse to rent apartments or show houses to protected classes, including racial minorities.
Each year HUD fields thousands of fair housing complaints, and the Department of Justice keeps open dozens of cases against banks accused of "redlining," or refusing to make loans in certain minority areas. Although the feds may not do a perfect job enforcing the law, the basic message is that companies or cities can't stop specific groups from moving in where they want, or refuse to lend to them if they are creditworthy.
That norm is not seen as a threat to Douglas County. But this year, county officials decided that the new housing rule would be. In June, the county voted not to follow the rules, at the cost of losing HUD funding.
"There were strings attached that weren't acceptable," explained Roger Partridge, a county commissioner.
HUD records indicate that the county got over $1 million in community development block grants, in the most recent year for which data was available.
Partridge's county is one of a handful around the country that has turned down federal funds rather than try to comply with the rule.
Banning discrimination is one thing. But facing pressure to change their communities "affirmatively," a policy that conservatives characterize as effectively a national zoning board, is another.
A revolt isn't what HUD wanted.
HUD began implementing the rule with a "spirit of collaboration" with local governments, Secretary Julian Castro said in a PBS interview when the rule was finalized.
"We're not dictating to communities what they have to do," Castro said, later promising that "enforcement is a last resort."
"We're not dictating to communities what they have to do," HUD Secretary Julian Castro said, later promising that "enforcement is a last resort." (AP Photo)
HUD's line is that jurisdictions will be helped by the "tool" that helps them gauge how well they are performing on a range of indicators relating to diversity and opportunity, such as indices of segregation, dispersion of low-income housing, transportation, access to jobs, and more.
Those analyses will supplant the old process, in which local governments seeking HUD funds merely had to sign off on documents identifying racial or income barriers to housing and certifying that they would take steps to alleviate them.
Yet there are reasons that governments view the switch warily.
One is simply paperwork and logistics. Partridge isn't opposed to working with HUD on the issue, but says dedicating the manpower necessary to fill out the new paperwork would be expensive enough to cut significantly into the added funding from HUD grants. It is also difficult to tell what the county would be getting itself into, he adds. It appears that some requirements would be impossible for the county government to guarantee, such as police and sheriff policies over which the county government has no control.
Yet, opposition to the rule goes beyond mere logistical concerns.
Paul Donahue, outgoing mayor of Castle Rock, the county seat of Douglas County, called the rule "extortion" and "thuggery."
Separately from the county, Donahue's town moved to turn down HUD funds rather than participate in the rules, giving up what he said was over $200,000 in grants for handicap ramps and nonprofit organizations. In the conservative town — around 55 percent voted for Trump — he felt he was on solid ground resisting a deal that could expand federal power over local administration
"It's much like the crack dealers will hand out free crack to kids on the street in order to get them hooked, so that later on they can make them dependent on the money," Donahue said of the funds.
The general view is that it is worth some sacrifice to maintain local control rather than commit to an open-ended federal intervention.
"We just don't need them trying to control us," said Richard Ranzau, a commissioner in Sedgwick County, Kan., another government that rejects the rule. "It's best not to take the money and regret it."
Preparing for blue states
HUD's efforts to allay conservative fears haven't fared well. They also risk spooking left-wing housing advocates who believe the federal government's desegregation enforcement hasn't gone far enough to end racial inequalities.
Rob Breymaier, executive director of the Oak Park Regional Housing Center in Chicago, is an advocate of the new rule, but says he hears from more liberal friends that they are concerned about its weak enforcement.
Governments must pursue fair housing by law. In June 2015, the Supreme Court ruled 5-4 that Texas violated the law by providing too many tax credits for housing in black inner-city areas and too few in white suburbs. The data, the court ruled, showed evidence not that minorities were being illegally discriminated against, but that the state's policies had a "disparate impact" on them, and that disparity itself is a violation of the law.
In other words, Castro would have a legal basis for strong enforcement of its fair housing goals, reshaping towns across the country. Instead, at every turn he has sought to downplay the possibility of strong federal intervention into local affairs.
Some advocates of fair housing are amenable to that approach, though, because they don't think many carrots or sticks are necessary.
"A number of people in America feel as though there are certain communities that are off-limits to them," Breymaier said. "All that really needs to be done to change that is to promote your community as welcoming."
Making a community more welcoming, he says, doesn't have to entail building low-income housing. Instead, cities could meet the rules by improving transportation options or bringing more job opportunities to poorer areas. He surmised that red state opponents are "really reacting to the idea that they're going to be forced to build a certain kind of housing, they're going to be forced to change every policy they have. And that's not necessarily the case."
Each year HUD fields thousands of fair housing complaints, and the Department of Justice keeps open dozens of cases against banks accused of "redlining," or refusing to make loans in certain minority areas. (Photo courtesy of Wikimedia Commons)
One reading of the rule is that it is simply trying to ease the country's transition to the more diverse future that is inevitable because of the nation's demographic change. Oak Park itself can be seen as one manifestation of that future: More diverse than the country as a whole, prosperous, and overwhelmingly liberal, the township went 86 percent for Clinton. As the country becomes more nonwhite, Breymaier suggested, suburbs and rural areas will need to find a way to incorporate diverse groups, and the HUD rule could prompt them to do so in low-impact way that doesn't transgress their conservative values.
On the other hand, another justification of the rule is that it would disperse poor groups to more areas, which is more likely to unsettle middle-class suburbanites. The advantage, said John Taylor, president of the the National Community Reinvestment Coalition, is that it would help solve a problem Trump has identified, namely concentrations of poverty in inner city locations that have "become a dumping ground, certain neighborhoods, for all the low-income housing."
What happens now, Taylor explained, is that market forces will lead developers to use low-income housing tax credits provided by HUD to build housing in areas that are already predominantly poor. The result is that poor families that can't afford to live elsewhere are steered into locations that are already low on resources, and that are in some cases themselves the creation of government policies, such as the mass construction of GI housing after World War II. The new HUD rule would counteract those market forces, leaning on counties and towns to "dissipate this concentrated pocket of poverty."
The leading example
Whatever the Obama administration's intentions, conservatives see coercion in the rule, because of the example of Westchester County.
In 2006, the county of nearly a million people outside of New York City was successfully sued by an anti-discrimination group because it had failed to identify obstacles to fair housing and to act on them in applying for block grants.
Politicians from localities that turned down HUD funds who spoke to the Washington Examiner cited Westchester's example, fearing that such suits will become more common under the new rule, when localities will be graded on a wider range of factors.
Westchester wasn't found guilty of discrimination. Even so, it has been embroiled in controversy for years over the implementation of the settlement, which involved building new homes in its wealthier areas.
One of those areas is the hamlet of Chappaqua, a wealthy, 86-percent white enclave that is home to Bill and Hillary Clinton. Chappaqua was slated to get a new project that would have to be advertised to low-income groups, which locals opposed.
County executive Rob Astorino, a Republican, has capitalized on concern about the developments, fighting HUD on implementation of the terms of the settlement. The 2014 Republican nominee for governor, Astorino was reported as a potential nominee for the HUD post before Carson's selection.
Whatever the Obama administration's intentions, conservatives see coercion in the rule, because of the example of Westchester County. (AP Photo)
Although small areas, such as Chappaqua, are rich and homogeneous, Westchester County as a whole is fairly diverse: More than 100,000 black and 200,000 Hispanic people live in the county, making it more heavily minority than the country as a whole.
It is similarly large, diverse counties that have histories of racial segregation that could face the most change under the new HUD rule, rather than small, white enclaves.
There could be unintended consequences. In a letter about the rule, Los Angeles city and county governments warned HUD that by rating cities on desegregation, the steeply minority-majority city of Los Angeles could be penalized. The push for construction of low-income housing in rich areas could backfire, they added, because many poor people, especially poor immigrants in L.A. who speak primarily Spanish, want and need cheap housing in their own communities.
Kill the rule
Because of those and other possible ill effects, Howard Husock, a scholar at the conservative Manhattan Institute, said he would counsel the Trump administration to roll back the HUD rule.
"I hope that they would be unapologetic about it," said Husock, author of the 2003 book The Trillion-Dollar Housing Mistake: The Failure of American Housing Policy.
Reversing the rule would inevitably invite accusations of racism, Husock acknowledged. But federal intervention into local zoning decisions is more likely to exacerbate racial tension rather than ease it. Instead, the government should more aggressively target outright discrimination.
And when asked, local government officials wary of the rule explained their opposition not in terms of racial politics, but as a matter of federal versus local control.
Advocates are bracing for the Trump administration to ax the rule — just one of his first-term priorities they are worried about, in addition to promised across-the-board domestic spending cuts that would fall heavily on housing vouchers.
"Honestly, if there's anything that HUD should be doing, it's focusing on Affirmatively Furthering Fair Housing," said Breymaier, the Oak Park fair housing advocate.
"They need to get their noses out of it, and stop trying to control people and micromanage people," said Ranzau, the Sedgwick County commissioner. The federal government, he said, is the "single greatest threat to freedom and prosperity that we have."