With the public and political class alike still reeling from Election Day, president-elect Donald Trump is just beginning to reveal what his administration will actually look like.
But even at this early stage of the transition, it’s almost certain that one new, important, and fragile piece of overlooked Obama administration policy designed to combat housing segregation will soon die in its crib.
It’s called the Affirmatively Furthering Fair Housing (AFFH) rule, a wonky name that belies a simple purpose: restoring teeth to the 1968 Fair Housing Act. Trump will come into office with a brand-new, historically important anti-segregation policy still warm off the presses — and still vulnerable to willful sabotage on behalf of the white communities nationwide that vehemently oppose housing fairness in their neighborhoods.
Since 1968, federal law has required towns, counties, and states that seek federal dollars for building things to show their work to unravel deep-set racial segregation in housing. The Fair Housing Act, passed that year, created huge federal investments in revitalizing cities, subsidizing housing costs for the poor, and improving the housing options available to black Americans. But it didn’t just make those funds available to anyone. The 1968 law, the last and most politically difficult piece in a wave of reforms meant to restore non-white Americans’ civic and legal equality with whites, said applicants for the money had to prove their communities were actively working to desegregate housing before the Department of Housing and Urban Development (HUD) would cut a check.
This requirement to “affirmatively further” housing equity and desegregation gave the feds teeth to deny money to cities that engaged in practices designed to ensure white people would never have black neighbors. But the government only used that leverage for a couple of years in a handful of places, before then-President Richard Nixon chased then-HUD Secretary George Romney out of his cabinet for aggressively pushing to integrate the country through the FHA structure.
The AFFH regulation, unveiled by Obama’s Department of Housing and Urban Development (HUD) in 2015, restores force to HUD’s grantmaking power by beefing up the accountability mechanisms for housing segregation. When communities apply for HUD money, they must also turn in an Analysis of Impediments (AI) that shows what hurdles residents of color face and what actions local officials are taking to combat segregation. But AIs have been a joke for years. Local leaders don’t take them seriously — in some cases relying solely on what realtors and developers tell them rather than conducting an actual analysis — and HUD doesn’t check to see if applicants are telling the truth or even preparing updated AIs.
The 2015 AFFH rule makes it easy to prepare accurate AIs by sharing the feds’ comprehensive data on segregation with local governments. It also sharpens the agency’s teeth to actually withhold money from communities that aren’t working to break down racial segregation in housing.
But only part of the rule is final. Key components of it won’t have made it through its required Office of Management and Budget review by the time Trump is sworn in, according to CityLab. That means Trump doesn’t even have to do the heavy lifting of tearing up the Obama rule. He can just let it languish, unfinished, and direct his HUD secretary to return to business as usual.
That’s what the next president is very, very likely to do. The way things are lining up, Trump will have a much easier time chopping the legs from under fair housing law than Nixon did at the start of the 1970s.
Nixon, after all, picked an ardent opponent of housing segregation to run the Department of Housing and Urban Development (HUD). Though Trump’s preferred cabinet is still behind a fog of speculation, the chances he picks a supporter of the Obama rule — that is, someone who believes the 1968 Fair Housing Act should actually mean anything — are approximately zero.
His party’s platform, crafted and managed by incoming chief of staff Reince Priebus, explicitly opposed the Obama rule as “social engineering.” And future White House chief strategist Steve Bannon was running Breitbart News when the site depicted Obama’s HUD rule as a “war on suburbs” ginned up by “radical” actors in the administration, Congress, and the Supreme Court.
Trump surrogate Betty McCaughey said Obama’s HUD was conducting an “assault on suburbs nationwide,” designed to “prevent the rich from enjoying the suburbs.” And supposedly reasonable conservatives of the #NeverTrump cultural stripe at the National Review and the American Enterprise Institute have blasted the Obama rule too.
None of that guarantees Trump will actually follow through on strangling AFFH, of course. Some reports on potential nominees to head Trump’s HUD have floated a woman named Pamela Patenaude, president of the relatively centrist Terwilliger Foundation. But it would far better fit Trump’s movement and character to select a longtime ally who embodies the right’s opposition to the Obama rule. And Trump already knows just the guy for the gig.
Robert Astorino has run the Westchester County, NY, government since 2009. He’s known Trump for years. And he’s been at the forefront of the war against AFFH. He’s also on Trump’s reported shortlist for the HUD job, and claims Trump told him during the campaign that he would reverse Obama’s initiative if elected.
Before Astorino headed up its government, Westchester civic leaders spent years throughout the early aughts applying for HUD money and telling the government they were working to combat racial segregation, even though six towns there maintain exclusionary zoning rules — policies that effectively guarantee segregation will get worse. The non-profit Anti-Discrimination Center brought the deception to the feds’ attention and then sued the county for fraud over its years of misleading the government, eventually winning a consent decree that let Westchester avoid large fines.
Then Astorino jumped onto the scene in 2009, decrying a deal that would integrate Westchester’s white neighborhoods. Turns out that’s a popular campaign theme with the white residents of those neighborhoods, who elected Astorino County Executive that year so he could make good on his promise to walk away from the settlement. Westchester is one of the two places since Nixon’s era to be denied federal dollars over violations of the Fair Housing Act.
When Nixon accidentally put a desegregationist in charge of federal housing policy, he managed to get rid of the guy within three years. That ushered in decades of federal money intended to promote fair housing going directly to projects that either ignored or actively promoted segregation.
Trump — whose real estate empire was repeatedly sued under the FHA for discriminating against black tenants — may not even wait three years to gut Obama’s housing rule.
This piece initially said Westchester County was sued by the federal government. The government declined to take up the Anti-Discrimination Center’s complaint, getting involved only once the group’s suit forced the county to negotiate a consent decree.