by Stanley Kurtz July 20, 2015 10:01 AM
It’s difficult to say what’s more striking about
President Obama’s Affirmatively Furthering Fair Housing (AFFH) regulation: its
breathtaking radicalism, the refusal of the press to cover it, or its potential
political ramifications. The danger AFFH poses to Democrats explains why the
press barely mentions it. This lack of curiosity, in turn, explains why the
revolutionary nature of the rule has not been properly understood.
Ultimately, the regulation amounts to back-door
annexation, a way of turning America’s suburbs into tributaries of nearby
cities. This has been Obama’s purpose from the start. In Spreading the Wealth:
How Obama Is Robbing the Suburbs to Pay for the Cities, I explain how a young
Barack Obama turned against the suburbs and threw in his lot with a group of
Alinsky-style community organizers who blamed suburban tax-flight for urban
decay.
Their bible was Cities Without Suburbs, by former
Albuquerque mayor David Rusk. Rusk, who works closely with Obama’s Alinskyite
mentors and now advises the Obama administration, initially called on cities to
annex their surrounding suburbs. When it became clear that outright annexation
was a political non-starter, Rusk and his followers settled on a series of
measures designed to achieve de facto annexation over time.
The plan has three elements: 1) Inhibit suburban growth,
and when possible encourage suburban re-migration to cities. This can be
achieved, for example, through regional growth boundaries (as in Portland), or
by relative neglect of highway-building and repair in favor of public
transportation. 2) Force the urban poor into the suburbs through the imposition
of low-income housing quotas. 3) Institute “regional tax-base sharing,” where a
state forces upper-middle-class suburbs to transfer tax revenue to nearby
cities and less-well-off inner-ring suburbs (as in Minneapolis/St. Paul). If
you press suburbanites into cities, transfer urbanites to the suburbs, and
redistribute suburban tax money to cities, you have effectively abolished the
suburbs. For all practical purposes, the suburbs would then be co-opted into a
single metropolitan region.
Advocates of these policy prescriptions call themselves
“regionalists.” AFFH goes a long way toward achieving the regionalist program
of Obama and his organizing mentors. In significant measure, the rule amounts
to a de facto regional annexation of America’s suburbs. To see why, let’s have
a look at the rule. AFFH obligates any local jurisdiction that receives HUD
funding to conduct a detailed analysis of its housing occupancy by race,
ethnicity, national origin, English proficiency, and class (among other
categories). Grantees must identify factors (such as zoning laws,
public-housing admissions criteria, and “lack of regional collaboration”) that
account for any imbalance in living patterns.
Localities must also list “community assets” (such as
quality schools, transportation hubs, parks, and jobs) and explain any
disparities in access to such assets by race, ethnicity, national origin,
English proficiency, class, and more. Localities must then develop a plan to
remedy these imbalances, subject to approval by HUD.
By itself, this amounts to an extraordinary takeover of
America’s cities and towns by the federal government. There is more, however.
AFFH obligates grantees to conduct all of these analyses at both the local and
regional levels. In other words, it’s not enough for, say, Philadelphia’s
“Mainline” Montgomery County suburbs to analyze their own populations by race,
ethnicity, and class to determine whether there are any imbalances in where
groups live, or in access to schools, parks, transportation, and jobs.
Those suburbs are also obligated to compare their own
housing situations to the Greater Philadelphia region as a whole. So if some
Montgomery County’s suburbs are predominantly upper-middle-class, white, and
zoned for single-family housing, while the Philadelphia region as a whole is
dotted with concentrations of less-well-off African Americans, Hispanics, or
Asians, those suburbs could be obligated to nullify their zoning ordinances and
build high-density, low-income housing at their own expense. At that point,
those suburbs would have to direct advertising to potential minority occupants
in the Greater Philadelphia region.
Essentially, this is what HUD has imposed on Westchester
County, New York, the most famous dry-run for AFFH. In other words, by
obligating all localities receiving HUD funding to compare their demographics
to the region as a whole, AFFH effectively nullifies municipal boundaries. Even
with no allegation or evidence of intentional discrimination, the mere
existence of a demographic imbalance in the region as a whole must be remedied
by a given suburb.
Suburbs will literally be forced to import population
from elsewhere, at their own expense and in violation of their own laws. In
effect, suburbs will have been annexed by a city-dominated region, their laws
suspended and their tax money transferred to erstwhile non-residents. And to
make sure the new high-density housing developments are close to “community
assets” such as schools, transportation, parks, and jobs, bedroom suburbs will
be forced to develop mini-downtowns. In effect, they will become more like the
cities their residents chose to leave in the first place.
It’s easy to miss the de facto absorption of local
governments into their surrounding regions by AFFH, because the rule disguises
it. AFFH does contain a provision that allows individual jurisdictions to
formally join a regional consortium. Yet the rule leaves it up to local
authorities to decide whether to enter regional groupings — or at least the
rule appears to make participation in regional decision-making voluntary.
In truth, however, just by obligating grantees to compare
their housing to the demographics of the greater metropolitan area, and remedy
any disparities, HUD has effectively turned every suburban jurisdiction into a
helpless satellite of its nearby city and region. We can see this, because the
final version of AFFH includes much more than just the provisions of the rule
itself.
The final text of the regulation incorporates summaries
of the many public comments on the preliminary rule, along with replies to
those comments by HUD. This amounts to a running dialogue between leftist
housing activists trying to make the rule more controlling, local bureaucrats
overwhelmed by paperwork, a public outraged by federal overreach, and HUD
itself.
Read carefully, the section of the rule on “Regional
Collaboration and Regional Analysis” (especially pages 188–203), reveals one of
AFFH’s key secrets: It doesn’t really matter whether a local government decides
to formally join a regional consortium or not. HUD can effectively draft any
suburb into its surrounding region, just by forcing it to compare its
demographics with the metropolitan area as a whole.
At one point (pages 189–191), for example, commenters
directly note that the obligation to compare local and regional data, and
remedy any disparities, amounts to forcing a jurisdiction to ignore its own
boundaries. Without contradicting this assertion, HUD then insists that all
jurisdictions will have to engage in exactly such regional analysis.
Comments from leftist housing activists repeatedly call
on HUD to pressure local jurisdictions into regional planning consortia. At
every point, however, HUD declines to demand that local governments formally
join such regional collaborations. Yet each time the issue comes up, HUD
assures the housing activists that just by compelling local jurisdictions to
compare their demographics with the region as a whole, suburbs will effectively
be forced to address demographic disparities at the total metropolitan level
(e.g., page 196).
When housing activists worry that a suburb with few poor
or minority residents will argue that it has no need to develop low-income
housing, HUD makes it clear that the regulation as written already effectively
forces all suburbs to accommodate the needs of non-residents (pages 198–199).
Again, HUD stresses that the mere obligation to analyze,
compare, and remedy demographic disparities at the local and regional levels
amounts to a kind of compulsory regionalism. HUD’s language is coy and careful.
The Obama administration clearly wants to avoid alarming local governments, so
it underplays the extent to which they have been effectively dissolved and
regionalized by AFFH. At the same time, HUD wants to tip off its leftist allies
that this is exactly what has happened. At one level, then, the apparatus of
formal and voluntary collaboration in a regional consortium is a bit of a ruse.
AFFH amounts to an annexation of suburbs by cities, whether the suburbs like it
or not.
Yet the formal, regional groupings enabled by the rule
are far from harmless. Comments from housing advocates (pages 194–197), for
example, chide HUD for failing to include a mention in AFFH of the hundreds of
federally-funded regional plans already being developed by leftist activists
across the country (the “Sustainable Communities Regional Planning Grant”
program).
These plans entail far more than imposing low-income
housing quotas on the suburbs. They embody the regionalist program of
densifying housing in suburb and city alike, and they structure transportation
spending in such a way as to make suburban living far less convenient and
workable.
HUD replies that these plans can indeed be used by
regional consortia to fulfill their obligations under AFFH. So a city could
formally join with some less-well-off inner-ring suburbs and present one of
these comprehensive regionalist dream-plans as the product of its consortium.
At that point, HUD could pressure reluctant upper-middle-class suburbs to
embrace the entire plan on pain of losing their federal funds. In this way,
AFFH could force the full menu of regionalist policies—not just low-income
housing quotas—onto the suburbs.
There are plenty of ways in which HUD can pressure a
suburb to bend to its will. The techniques go far beyond threats to withhold
federal funds. The recent Supreme Court decision in Texas Department of Housing
and Community Affairs v. Inclusive Communities Project has opened the door to
“disparate impact” suits against suburbs by HUD and private groups alike. That
is, any demographic imbalance, whether intentional or not, can be treated by
the courts as de facto discrimination. Just by completing the obligatory
demographic analysis demanded by AFFH—with HUD-provided data, and structured
according to HUD requirements—a suburb could be handing the government evidence
to be used in such a lawsuit.
Worse, AFFH demands that suburbs account for their
demographic disparities, and forces them to choose from a menu of HUD-provided
explanations. So if a suburb follows HUD’s lead and formally attributes
demographic “imbalances” to its zoning laws, the federal government has what
amounts to a signed confession to present in a disparate-impact suit seeking to
nullify local zoning regulations. With a (forced) paper “confession” from
nearly every suburb in the country in hand, HUD can use the threat of lawsuits
to press reluctant municipalities to buy into a regional consortium’s every
plan.
Regionalists consider the entire city-suburb system
bigoted and illegitimate, so there are few local governments that HUD would not
be able to slap with a disparate-impact suit on regionalist premises. It’s
unlikely that any suburb has a perfect demographic and “asset” balance in every
category. All HUD has to do is decide which suburban governments it wants to
lean on. With every locality vulnerable to a suit, every locality can be made
to play the regionalist game.
Leftist housing activists worry that AFFH never specifies
the penalties a suburb will face for imbalances in its housing patterns. These
activists just don’t get it. A thoughtful reading of AFFH, including its extraordinary
“dialogue” section, makes it clear that HUD can go after any suburb, any time
it wants to. The controlling consideration will be politics. HUD has got to
boil the frog slowly enough to prevent him from jumping. It will take time for
the truth to emerge. Just by issuing AFFH, the Obama administration has
effectively annexed America’s suburbs to its cities.
The old American practice of local self-rule is gone.
We’ve switched over to a federally controlled regionalist system. Now it’s
strictly a question of how obvious Obama and the Democrats want to make this
change — and when they intend to bring the hammer down. The only thing that can
restore local control is joint action by a Republican president and a
Republican congress to rescind AFFH and restrict the reach of disparate impact
litigation. We’ll know after November 8, 2016.
Stanley Kurtz is a senior fellow at the Ethics and Public
Policy Center. He can be reached at comments.kurtz@nationalreview.com /
Source:http://www.nationalreview.com/corner/421389/attention-americas-suburbs-you-have-just-been-annexed-stanley-kurtz
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