Many Americans who benefit from federal health, safety, and other regulations nevertheless succumb to the rhetoric and are led to believe that they are victims of government red tape and an overly burdensome bureaucracy. However, despite its negative connotations, the administrative state is often central to the government’s work in protecting and supporting low-income Americans and other vulnerable groups.
Under Obama, the administrative state produced key gains in opportunity, mobility, and social inclusion. But as with any structure endowed with political power, federal agency authority can (and has) cut both ways in advancing or impeding social equity. As such, it’s crucial to take stock of the ways in which battles over federal regulation will impact disadvantaged groups in the years ahead.
Federal oversight and implementation supply the working gears of civil rights legislation. For instance, during the Obama administration, the Department of Housing and Urban Development (HUD) implemented the “Affirmatively Furthering Fair Housing” (AFFH) rule that, in accordance with the Fair Housing Act, requires jurisdictions receiving HUD funding to analyze local access to fair housing and take affirmative measures to expand housing choice and address gaps in opportunity.
Unfortunately, some policymakers are currently looking to undercut this and other federal directives. One threat is the so-called “Local Zoning Decisions Protection Act of 2017,” introduced by Rep. Paul Gosar (R-AZ) and Sens. Mike Lee (R-UT) and Marco Rubio (R-FL), that would destroy and bar reissuance of the AFFH rule in its current form.
The bill would also bar the use of federal funds to “design, build, maintain, utilize or provide access to a federal database of geospatial information on community racial disparities or disparities in access to affordable housing”—sighting a deliberate bullseye on antidiscrimination measures and also undermining evidence-based planning and advocacy in areas such as housing, environmental health, transportation, education, employment, and other aspects of opportunity.
Beyond this bill, an emphasis on deregulation is likely to be an underlying theme for the Trump administration. This can be seen already in executive orders issued in recent weeks that aim to crudely reduce regulations with little account for the underlying merits of the regulations themselves.
Most blatantly, in an illogical, and legally unauthorized move last month, the White House issued an “Executive Order on Reducing Regulation and Controlling Regulatory Costs” that requires rescinding two regulations for every new one passed and mandates that the combined costs of new and repealed regulations does not exceed $0, even if the identified benefits of the rules exceed the costs.
A lawsuit contesting the EO’s constitutionality, and underlying unreasonableness, was filed earlier this month. And numerous public interest organizations have commented on the prospective impact of the EO’s directive, calling it a “Sophie’s Choice” order that would require, for example, repeal of lead hazard rules to allow for regulation of other toxins.
This EO, and the Congressional attacks on federal oversight mentioned earlier in the piece, illustrate a simplistic approach that fails to consider the social benefits of the agency rules they seek to undermine.
The aforementioned AFFH rule, for example, aids state and local governments and the public in implementing the Fair Housing Act, and provides tools for them to use in understanding and addressing discrimination, segregation, and community development needs. This support includes analytical tools to examine local patterns and causes of environmental health disparities such as toxic air quality due to freight routes, lead exposure due to unremediated older housing stock, and a lack of healthy food and pedestrian infrastructure.
Far from being a “top down” approach, well-designed regulations like the AFFH hold local institutions accountable to those they serve, encouraging an evidence-based framework and community participation.
The evolution of regulations like the AFFH also speak to our body of a laws as a living framework and the culmination of tireless work from previous generations. The Fair Housing Act – which the AFFH seeks to operationalize – passed on the heels of Dr. Martin Luther King Jr.’s assassination, and was a product of the great effort and risks taken by King and other civil rights demonstrators. In a time when populism demands much attention, it is worth reflecting that the quiet but momentous gains made by the administrative state are at their foundation no less rooted in the will of the people.
Well-designed federal regulations and oversight can help breathe life into ideas and principles that previous generations framed into law. While the administrative state may not attract the attention of other political issues, its crucial importance means that we must remain diligent in ensuring government is active in enforcing and operationalizing the laws and civil rights protections that so many fought so hard for.