Defund HUD’s Affirmatively Furthering Fair Housing Rule

Background: On July 8, 2015, the Department of Housing and Urban Development (HUD) finalized language for a new housing regulation named the Affirmatively Furthering Fair Housing Rule (AFFH). This new 377 page rule, first implemented in mid-August of 2015, empowers the Federal government to audit the demographic and socioeconomic status of local communities in order to force state and local governments to enhance diversity among its community makeup.

All local jurisdictions that receive HUD funding, particularly through the Community Development Block Grant program, are subject to this rule and must identify factors and communities assets that contribute to the racial disparities in their communities compared to those at the local and regional level around them. Once this evaluation is complete, localities must develop a plan on how to fix the racial disparities and submit it to HUD for approval.

Problem: AFFH effectively turns HUD into a National Zoning Authority for every locality across the country. Suburban neighbors will have to compare themselves with neighboring cities and essentially rewrite their zoning laws and pay for affordable housing projects and other community development projects to encourage housing diversity and affordability in their communities.

According to department officials, this rule is needed because “increasing a neighborhood’s appeal to families with different income and ethnic profiles can encourage a more diversified population and reduce isolation.” While this may be a goal worth pursuing, local authorities, not unaccountable federal bureaucrats should be making these decisions.

As Senator Mike Lee (R-UT) so plainly puts it, “In other words, this new regulation is designed to give unelected, anonymous bureaucrats in Washington the power to pick and choose who your new next-door neighbor will be. If they don’t believe your neighborhood is “diverse” enough, they will seize control of local zoning decisions—choosing what should be built, where, and who should pay for it—in order to make your neighborhood look more like they want it to.”

Solution: Congress must use its Constitutional power of the purse to defund any implementation of the AFFH rule. The House of Representatives has already passed Rep. Paul Gosar’s (AZ) amendment to defund the AFFH rule and attached it to the Transportation, Housing and Urban Development and Related Agencies Appropriations Act for Fiscal Year 2016. The Senate must now take up and pass Sen. Lee’s AFFH defunding amendment to make sure this reaches the President’s desk and is signed into law. Local communities, not bureaucrats in Washington, D.C., should determine the social and economic makeup of their own neighborhoods.

Read More

New budget plan doesn’t address the underlying disagreement

House leaders, trying to break the impasse stalling the chamber’s budget and appropriations process, are putting forward a new plan designed to get conservative support for a budget that sets FY17 discretionary spending at $1.070 trillion, the cap created by last fall’s budget deal.

The plan would combine the traditional congressional budget resolution with formal legislative bill text that would achieve $30 billion in savings in the first two years and $170 billion over ten.  It would not be a strictly congressional resolution as budgets are, but rather a bill that could theoretically be signed into law.  A “leadership source” explained the plan to Politico, saying:

“[T]he budget then couldn’t take effect without the mandatory savings, which target Medicaid and Obamacare, also being enacted. Such a move would allow conservatives to claim they voted for a budget with less spending than prescribed by the Obama-Boehner deal. But members of the conference’s right flank were cool to the proposal. They noted it was unlikely the package would be passed by the Senate or signed into law by Obama.”

That fact that this new proposal is intended to gain the support of conservatives for the $1.070 trillion budget number without providing a way of actually achieving the goals they have laid out, invites the question: Why is this plan being put forward? If this is simply an exercise to get conservatives on record supporting a budget (any budget, even one with ancillary provisions) at 1070 in order to weaken their resolve to oppose efforts later this month to move appropriations bills written to the 1070 level, then it is a poor exercise and a waste of time.

House Republicans have serious policy differences on how to move forward with this year’s budget and appropriations process. Those differences can’t be papered over or avoided with proposals that don’t address the fundamental disagreements in question.

This proposed plan does nothing to address that fundamental disagreement.

What’s more, all budget resolutions contain “illustrative policy options” to achieve its underlying assumptions. Adding specific bill text to achieve some of those savings (though in this instance, representing less than 2.5% of the proposed savings contained in the budget), and having members vote on those specific savings, can rightfully be seen as a positive step; however, contrary to some talking points, sidecar legislation spelling out specific cuts is not revolutionary. Back in 2012, the House passed follow-up legislation to its budget laying out $310 billion in specific deficit reductions. That legislation was not coupled with a meaningful strategy to enact those cuts, and thus was not taken up in the Senate and died a quiet death. This plan appears likely to meet the same fate.

To be clear, the cuts that are reportedly included in the bill are generally worthwhile and while this bill certainly has merits in isolation, it does not in any way change or address the fundamental issue at hand. Conservatives in the House have made their demands clear: they will not vote for $1.070 trillion in discretionary spending, including appropriations written to that level, unless $30 billion in cuts are enacted.

Unless there is a strategy and path forward to getting this new plan through the Senate and signed into law by the President, conservatives in the House should continue to oppose the “1070” budget level and make clear that this plan doesn’t bind them to supporting appropriations going forward. In fact,they should continue to oppose those appropriations bills unless and until the bill’s cuts get signed into law.

Read More

House NDAA Budget Gimmick

Next week the House will take up the annual National Defense Authorization Act (NDAA), setting forth funding authorization levels and laws that guide our Department of Defense for the upcoming fiscal year. Late last month, the House Armed Services Committee (HASC) passed the bill out of committee that authorizes base defense spending at $551 billion and includes $59 for Overseas Contingency Operations (OCO), which qualifies as emergency spending and therefore is not subject to the recently revised budget caps.

While the title of this additional funding would suggest that it is solely for “overseas operations,” the truth is that this emergency spending stream has often been used for non-emergency base defense priorities that should be funded in the regular defense budget. Just last year Heritage Action’s CEO Mike Needham and Steve Bucci, former Heritage Foundation Director of the Allison Center for Foreign and National Security Policy Studieswrote about the use of OCO as an emergency funding gimmick:

Read More

Puerto Rico and the PROMESA Act: Claims and Responses

Claim: If conservatives don’t agree to this bill, the alternative is  a $72 billion bailout package.

Response: Things are going to get worse in Puerto Rico before they get better. Even though there is no reason to believe a Republican-controlled Congress would ever pass a direct taxpayer bailout, calls for such action are likely to increase whether or not PROMESA (H.R. 4900) is passed, as Puerto Rico will likely continue to experience economic and fiscal troubles. Congress and Puerto Rico need to pass economic reforms to slow and reverse the ruinous outmigration of Puerto Rico’s young workers. PROMESA reshuffles the deck, but it doesn’t change the game.

Claim: If Congress doesn’t pass some sort of assistance package, Puerto Ricans are just going to abandon the island and move to the mainland, causing an economic death spiral.

Response: Puerto Ricans are moving to the mainland in large numbers because of the lack of economic growth and opportunity on the island — not, for the most part, because of the government’s financial distress and liquidity issues. Regardless of what happens with Puerto Rico’s government debt, this exodus will continue if Puerto Rico can’t return to growth, which it can only do by creating opportunities for young adults and attracting and keeping businesses on the island. There is no reason to believe this bill would create those economic opportunities.

Claim: The fiscal oversight board has the tools it needs to jumpstart Puerto Rico’s economy.

Read More

First Amendment Defense Act (FADA) FAQs

What is FADA and what would it do?

The First Amendment Defense Act (FADA), S. 1598 and H.R. 2802, is a religious liberty protection bill introduced by Senator Mike Lee (R-UT) in the Senate and Representative Raul Labrador (R-ID) in the House. FADA would prevent the federal government from discriminating against individuals, associations, or businesses, such as churches and religious colleges, by denying a tax exemption, grant, contract, license, or certification because they believe marriage is a union of one man and one woman.

Why is FADA necessary?

FADA was introduced in Congress on June 17, 2015, shortly before the Supreme Court ruled in Obergefell v. Hodges that all laws defining marriage as the union of a husband and wife were unconstitutional. This ruling redefined marriage across the country and opened the floodgates for the government to discriminate against citizens who continue to live out their religious and moral convictions about marriage as they always have.

In oral arguments before the Supreme Court, Justice Samuel Alito asked Solicitor General Donald Verrilli whether a university or college might lose its nonprofit tax status if it doesn’t abandon its views on marriage as the union of husband and wife. Verrilli’s response was telling: “It’s certainly going to be an issue. I – I don’t deny that. I don’t deny that, Justice Alito. It is – it is going to be an issue.”

FADA was introduced to prevent this very scenario from happening.

Doesn’t the Religious Freedom Restoration Act (RFRA) and other State Religious Freedom Restoration Acts already protect religious liberty?

No. RFRAs provide generalized protections that require judges to engage in a balancing test when assessing religious liberty claims. The courts first determine if a government action substantially burdens religious exercise, and if so, it then assess whether the government has a compelling justification that is implemented in a way that does the least harm to religious liberty.

In contrast, FADA provides highly specific protections and limits judicial discretion, thereby taking much of the potential for mischief from activist judges out of the equation. FADA would take the debate out of the hands of the most non-democratic branch of government and put it back into the hands of the American people and their elected officials. FADA takes a surgical approach that does the balancing on the “front end” by protecting precisely the beliefs under assault in precisely the contexts where they are most threatened.

While RFRA’s general protections are vital for countering threats to religious liberty we may not foresee, FADA’s specific protections are vital for countering threats to religious liberty that are right in front of us, right now.

But isn’t the marriage debate a politically toxic issue for Republicans? Just look at what happened in Indiana.

It is true that last year the state of Indiana watered down its newly enacted RFRA law after it was hit with a coordinated surprise attack from LGBT interest groups, the media, and some members of the business community. But recently lawmakers have regained their footing on the issue. Efforts to further undermine religious liberty rights through sexual orientation and gender identity “bathroom bills” were defeated in the Indiana state house earlier this year and by a popular vote of 61% by the people of Houston. Republican members of Congress should not be afraid of “another Indiana” because Indiana, Houston, Missouri, North Carolina, Kentucky and many others, are fighting to defend religious liberty. Momentum in support of religious liberty is gaining steam across the country. Republicans should champion this issue, not run away from it.

Why should the government be involved in religious matters at all?

Freedom of religion is our very first freedom laid out in the Bill of Rights because if we are not guaranteed the natural right to speak and act in accordance with one’s own religious beliefs, all other rights are illusory. Thousands of religious organizations and millions of Americans are doing good work in our communities by running schools, colleges, charities, churches, and adoption agencies. The same faith and moral convictions that motivate organizations and individuals to seek the good for their children and their communities, has also led many to acknowledge marriage between a man and a woman as the indispensable backbone for civil society in America. Their religious liberty deserves protection, and the Constitution charges all branches of government with the duty to protect it, especially Congress.

Why did FADA’s text change and will it be changed again?

The sponsors changed the bill text to ensure it could not be mischaracterized by opponents as Indiana’s RFRA was. According to Senator Lee, the change “makes crystal clear that we are only seeking to prevent federal government discrimination against people and institutions that define marriage as a union between one man and one woman.” Outside of the regular amendment process, the bill text is now finalized and will not be altered again.

Will FADA authorize employees of the federal government to refuse to process the tax returns, visa applications, or Social Security checks of same-sex couples?

No. The bill expressly excludes federal employees acting within the scope of their employment and thus does not permit government employees to refuse people any services or benefits. FADA would simply protect federal employees from losing their job for religious beliefs expressed outside of the scope of their employment.

Will FADA authorize for-profit contractors to deny services or benefits to same-sex couples and/or eliminate any anti-discrimination?

No. The bill does not permit for-profit contractors to refuse services to same-sex couples. FADA would simply protect federal contractors from losing their contracts because of religious beliefs expressed outside of the scope of their contracts. FADA also does not protect publicly-traded corporations.

Will FADA authorize hospitals to refuse care to same-sex couples?

No. The bill expressly excludes “hospitals, clinics, hospices, nursing homes, or other medical or residential custodial facilities with respect to visitation, recognition of a designated representative for health care decision-making, or refusal to provide medical treatment necessary.”

FADA ensures a hospital will not lose its tax-exempt status or have its federal benefits revoked because, for example, a doctor does not wish to provide marital counseling services in a manner that violates his or her sincerely held religious beliefs.

Will FADA undermine federal civil rights protections, such as those available to employees and customers of for-profit businesses?

No. The bill does not alter or modify civil rights laws protecting people from discrimination in, for example, housing, credit, public accommodations, voting, and does not impact the American Disabilities Act, the Pregnancy Discrimination Act, and other federal civil rights laws. Employees and customers will have recourse to applicable protections under federal or state law just as before.

Will FADA preempt any state non-discrimination laws?

No. The bill applies to the federal government only and does not preempt any state or municipal non-discrimination laws, including those relating to sexual orientation or gender identity.

Will FADA grant religious individuals and institutions special privileges before the law?

No. FADA does not give special privileges to religious individuals or institutions, rather it clarifies that the federal government cannot discriminate against individuals and institutions simply because they believe and act in accordance with their religious belief that marriage is a union between a man and a woman. FADA is aimed specifically toward the federal government and executive agencies that are currently operating under the premise that the First Amendment no longer protects the belief in marriage as a union between one man and one woman.

Will FADA take away the right of members of the LGBT community to challenge religious individuals and institutions in court?

No. FADA does not prevent members of the LGBT community from taking anyone to court. The problem we are seeing now is that the Supreme Court ruling in Obergefell v. Hodges has left the courts in confusion, empowering liberal activist judges to rule however they desire. FADA offers specific protection to those who still believe marriage is a union between one man and one woman in order to limit judicial discretion in current cases.

We should have faith in the courts to not hold religious defendants liable for discrimination if they are innocent. FADA would just increase government intervention in our lives.

Unfortunately, it would be naive to believe liberal activist courts will rule fairly. FADA simply puts guardrails in place for judges to ensure they rule in accordance with First Amendment rights. The Constitution charges Congress, first and foremost, to protect the rights of the people to speak and act in accordance with their religious beliefs, including marriage.

On the contrary, FADA ensures the federal government stays out of the lives of American citizens. FADA helps prevent the federal government from intervening in civil society to force people, and their businesses, to provide goods or services they feel are against their religious beliefs.

Read More