Shutdown Fairness Act

— 513 — Department of Housing and Urban Development ENDNOTES 1. At a 1998 Senate hearing, then-HUD Secretary Andrew Cuomo acknowledged that the department “faced a competence gap” and had “the dubious distinction of being the only federal agency designated as ‘high risk’ by the General Accounting [now Government Accountability] Office (GAO),” even referencing the Section 8 rental subsidy as “on the brink of becoming the next savings and loan scandal,” and explained how the department was stepping up enforcement efforts “focused on closing the competence gap by eliminating waste, fraud, and abuse.” See “Testimony of Secretary Andrew Cuomo before the House Appropriations Subcommittee on VA, HUD, and Independent Agencies,” March 25, 1998, https://archives.hud.gov/ testimony/1998/tst32598.cfm (accessed March 4, 2023). 2. H.R. 7984, Housing and Urban Development Act of 1965, Public Law No. 89-117, 89th Congress, August 10, 1965, https://www.congress.gov/89/statute/STATUTE-79/STATUTE-79-Pg451.pdf (accessed March 4, 2023). 3. U.S. Department of Housing and Urban Development, 2023 Budget in Brief, pp. 2 and 7, https://www.hud.gov/ sites/dfiles/CFO/documents/2023_BudgetInBriefFINAL.pdf (accessed March 4, 2023). 4. For example, the Special Applications Center (SAC) located in Chicago, Illinois, was established in 1998 as a division of the Office of Public and Indian Housing to accept, review, and approve all nonfunded, noncompetitive applications and plans for demolition, disposition, and conversion of land subject to an annual contributions contract (ACC) in public housing. 5. The Secretary has delegated full authority for the Administration and enforcement of the Fair Housing Act to the Assistant Secretary of the Office of Fair Housing and Equal Opportunity but also has delegated limited assignment and decision-making authority to the General Counsel. 6. Effectively the HUD Chief Operating Officer and appointed by the President with Senate advice and consent. 7. The Office of Hearings and Appeals (OHA) is an independent adjudicatory office within the Office of the Secretary. Led by a Director who is appointed by the Secretary, it supervises the Administrative Judges of the Office of Appeals, the administrative law judges of the Office of Administrative Law Judges, and the OHA support staff. The HUD Secretary appoints administrative judges and administrative law judges in accordance with the Administrative Procedure Act, 5 U.S.C. Chapter 5, https://www.law.cornell.edu/uscode/text/5/part-I/ chapter-5 (accessed March 4, 2023). 8. HUD currently has a Departmental Equity Assessment Working Group, supported with five FTEs funded by the OSDBU, “as part of the President’s Executive Order 13985, Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” See U.S. Department of Housing and Urban Development, 2023 Congressional Justifications, p. 35-15, https://www.hud.gov/sites/ dfiles/CFO/documents/2023HUDCongressionalJustificationsFINALelectronicversion.pdf (accessed March 4, 2023), and President Joseph R. Biden Jr., Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” January 20, 2021, in Federal Register, Vol. 86, No. 14 (January 25, 2021), pp. 7009–7013, https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021- 01753.pdf (accessed March 4, 2023). 9. Interestingly, “[t]he 2023 President’s Budget requests $748 thousand for CFBNP, which is $436 thousand less than the 2022 Annualized CR level. The Budget reflects total funding (carryover and new authority) of $1.2 million, $448 thousand less than 2022 total funding.” U.S. Department of Housing and Urban Development, 2023 Congressional Justifications, p. 35-16. 10. See H.R. 558, Stewart B. McKinney Homeless Assistance Act, Public Law No. 100-77, 100th Congress, July 22, 1987, https://www.govinfo.gov/content/pkg/STATUTE-101/pdf/STATUTE-101-Pg482.pdf (accessed March 5, 2023). Later renamed the McKinney–Vento Homeless Assistance Act. 11. Established under the Housing and Community Development Act of 1974, 42 U.S.C. §§ 5301 et seq., https:// www.law.cornell.edu/uscode/text/42 (accessed March 4, 2023). 12. S. 566, Cranston–Gonzalez National Affordable Housing Act, Public Law No. 101-625, 101st Congress, November 28, 1990, Title II, https://www.congress.gov/101/statute/STATUTE-104/STATUTE-104-Pg4079.pdf (accessed March 5, 2023). 13. S. 1, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law No. 91-646, 91st Congress, January 2, 1971, https://www.congress.gov/91/statute/STATUTE-84/STATUTE-84-Pg1894.pdf (accessed March 4, 2023). “The URA establishes the minimum Federal requirements for the acquisition of real property for Federally-funded programs and projects, and for the relocation of persons who must move from — 514 — Mandate for Leadership: The Conservative Promise their homes, businesses, or farms as a direct result of acquisition, rehabilitation, or demolition for a Federally- funded program or project.” U.S. Department of Housing and Urban Development, HUD Exchange, “49 CFR Part 24–URA Regulations,” published February 2005, https://www.hudexchange.info/resource/804/ura-and- real-property-acquisition-policies-act-49-cfr-part-24/ (accessed March 4, 2023). HUD is one of the 18 federal departments and agencies that “are subject to the Uniform Act.” U.S. Department of Transportation, Federal Highway Administration, “Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,” Federal Register, Vol. 84, No. 243 (December 18, 2019), pp. 69466–69521, esp. p. 69484, https://www.govinfo.gov/content/pkg/FR-2019-12-18/pdf/2019-25558.pdf (accessed March 4, 2023). 14. H.R. 3219, Native American Housing Assistance and Self-Determination Act of 1996, Public Law No. 104-330, 104th Congress, October 26, 1996, https://www.congress.gov/104/plaws/publ330/PLAW-104publ330.pdf (accessed March 4, 2023). 15. U.S. Department of Housing and Urban Development, 2023 Congressional Justifications, p. 6-1. The U.S. Housing Act of 1937 (Wagner–Steagall Act) established the origins of locally chartered housing agencies that administer federal funding for various rental assistance programs—a quintessentially progressive New Deal–era policy that expanded the administrative state’s powers to the housing market—with the primary legislative intent of eradicating slum housing in urban areas, boosting jobs, and providing housing for the working poor. 42 U.S.C. §§ 1437 et seq., https://www.law.cornell.edu/uscode/text/42 (accessed March 4, 2023). A decade later, the Housing Act of 1949 codified federal standards for housing livability—a rationale that HUD and federal legislators have continued to use to justify federal intervention in housing—establishing as a national policy objective the provision of a minimum standard of housing quality for all Americans. This legislation also statutorily established many of the rural housing programs that are administered at USDA and expanded programs facilitating the removal of slum housing in urban areas. 42 U.S.C. §§ 1441 et seq., https:// www.law.cornell.edu/uscode/text/42 (accessed March 4, 2023). 16. U.S. Department of Housing and Urban Development, 2023 Congressional Justifications, pp. 1-2 and 2-2. 17. The National Housing Act of 1934 established the FHA and the statutory authority for the secondary market. The main stated premise was to stimulate jobs and facilitate the housing and construction sector during the Great Depression. 42 U.S.C. §§ 1701 et seq., https://www.law.cornell.edu/uscode/text/12 (accessed March 4, 2023). 18. 42 U.S.C. §§ 2000d et seq., https://www.law.cornell.edu/uscode/text/42 (accessed March 4, 2023). 19. 29 U.S.C. §§ 701 et seq., https://www.law.cornell.edu/uscode/text/29 (accessed March 4, 2023). 20. HUD’s Departmental Enforcement Center (DEC) is led by a Director. It was established in 1998 as part of a broader effort to streamline and consolidate functions at HUD and was later merged with the Office of General Counsel. The DEC “is comprised of the Office of the Director, the Compliance Division, the Operations Division and five Satellite Offices” and describes its mission as “assuring the highest standards of ethics, management and accountability in the resolution of HUD's troubled properties.” U.S. Department of Housing and Urban Development, Departmental Enforcement Center, “Program Offices: Departmental Enforcement Center,” https://www.hud.gov/program_offices/enforcement (accessed March 4, 2023). 21. H.R. 5334, Housing and Community Development Act of 1992, Public Law No. 102-1017, 102nd Congress, October 28, 1992, Title X, https://www.congress.gov/102/statute/STATUTE-106/STATUTE-106-Pg3672.pdf (accessed March 4, 2023). 22. H.R. 8588, Inspector General Act of 1978, Public Law No. 95-452, 95th Congress, October 12, 1978, https://www. congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1101.pdf (accessed March 4, 2023). 23. Guiding questions: What immediate administrative reforms of HUD and its programs can be made with high probability of success? What short-term legislative reforms can be proposed that, in tandem with administrative reforms, would achieve the HUD vision/mission objective? What HUD offices should be eliminated and/or realigned to reduce any redundancy that may persist in programmatic functions? 24. Wholly aside from reforms that would require legislation, the next Administration must ensure that key political appointees are able to acquit themselves as change agents to execute administrative reforms. Otherwise, whether because of a sheer lack of skill and expertise or simply a lack of will and philosophical alignment with reforms, staff may frustrate the efforts of committed political appointee staff and leadership to execute substantive administrative reforms. To achieve the policy and regulatory reforms outlined in this chapter, political appointees must be carefully placed in positions that reflect not only technical, market/ industry, and operational expertise, but also a shared will and commitment.

— 76 — Mandate for Leadership: The Conservative Promise to delay. With the proper limitation of labor union actions, the FLRA should have limited reason for appeals. The EEOC’s federal employee section should be transferred to the MSPB, and many of the OCS’s investigatory functions should be returned to the OPM. The MSPB could then become the main reviewer of adverse actions, greatly simplifying the burdensome appeal process. Making Civil Service Benefits Economically and Administratively Ratio- nal. In recent years, the combined wages and benefits of the executive branch civilian workforce totaled $300 billion according to official data. But even that amount does not properly account for billions in unfunded liability for retirement and other government reporting distortions. Official data also report employment as approximately 2 million, but this ignores approximately 20 million contractors who, while not eligible for government pay and benefits, do receive them indirectly through contracting (even if they are less generous). Official data also claim that national government employees are paid less than private-sector employees are paid for similar work, but several more neutral sources demonstrate that pub- lic-sector workers make more on average than their private-sector counterparts. All of this extravagance deserves close scrutiny. Market-Based Pay and Benefits. According to current law, federal workers are to be paid wages comparable to equivalent private-sector workers rather than compared to all private-sector employees. While the official studies claim that federal employees are underpaid relative to the private sector by 20 percent or more, a 2016 Heritage Foundation study found that federal employees received wages that were 22 percent higher than wages for similar private-sector workers; if the value of employee benefits was included, the total compensation premium for federal employees over their private-sector equivalents increased to between 30 percent and 40 percent.18 The American Enterprise Institute found a 14 percent pay premium and a 61 percent total compensation premium.19 Base salary is only one component of a federal employee’s total compensation. In addition to high starting wages, federal employees normally receive an annual cost-of-living adjustment (available to all employees) and generous scheduled raises known as step increases. Moreover, a large proportion of federal employ- ees are stationed in the Washington, D.C., area and other large cities and are entitled to steep locality pay enhancement to account for the high cost of living in these areas. A federal employee with five years’ experience receives 20 vacation days, 13 paid sick days, and all 10 federal holidays compared to an employee at a large private company who receives 13 days of vacation and eight paid sick days. Federal health benefits are more comparable to those provided by Fortune 500 employers with the government paying 72 percent of the weighted average premiums, but this is much higher than for most private plans. Almost half of private firms do not offer any employer contributions at all.

— 7 — Foreword Instead, party leaders negotiate one multitrillion-dollar spending bill—several thousand pages long—and then vote on it before anyone, literally, has had a chance to read it. Debate time is restricted. Amendments are prohibited. And all of this is backed up against a midnight deadline when the previous “omnibus” spending bill will run out and the federal government “shuts down.” This process is not designed to empower 330 million American citizens and their elected representatives, but rather to empower the party elites secretly nego- tiating without any public scrutiny or oversight. In the end, congressional leaders’ behavior and incentives here are no differ- ent from those of global elites insulating policy decisions—over the climate, trade, public health, you name it—from the sovereignty of national electorates. Public scrutiny and democratic accountability make life harder for policymakers—so they skirt it. It’s not dysfunction; it’s corruption. And despite its gaudy price tag, the federal budget is not even close to the worst example of this corruption. That distinction belongs to the “Administrative State,” the dismantling of which must a top priority for the next conservative President. The term Administrative State refers to the policymaking work done by the bureaucracies of all the federal government’s departments, agencies, and millions of employees. Under Article I of the Constitution, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” That is, federal law is enacted only by elected legislators in both houses of Congress. This exclusive authority was part of the Framers’ doctrine of “separated powers.” They not only split the federal government’s legislative, executive, and judicial powers into different branches. They also gave each branch checks over the others. Under our Constitution, the legislative branch—Congress—is far and away the most powerful and, correspondingly, the most accountable to the people. In recent decades, members of the House and Senate discovered that if they give away that power to the Article II branch of government, they can also deny responsi- bility for its actions. So today in Washington, most policy is no longer set by Congress at all, but by the Administrative State. Given the choice between being powerful but vulnerable or irrelevant but famous, most Members of Congress have chosen the latter. Congress passes intentionally vague laws that delegate decision-making over a given issue to a federal agency. That agency’s bureaucrats—not just unelected but seemingly un-fireable—then leap at the chance to fill the vacuum created by Congress’s preening cowardice. The federal government is growing larger and less constitutionally accountable—even to the President—every year. l A combination of elected and unelected bureaucrats at the Environmental Protection Agency quietly strangles domestic energy production through difficult-to-understand rulemaking processes; — 8 — Mandate for Leadership: The Conservative Promise l Bureaucrats at the Department of Homeland Security, following the lead of a feckless Administration, order border and immigration enforcement agencies to help migrants criminally enter our country with impunity; l Bureaucrats at the Department of Education inject racist, anti-American, ahistorical propaganda into America’s classrooms; l Bureaucrats at the Department of Justice force school districts to undermine girls’ sports and parents’ rights to satisfy transgender extremists; l Woke bureaucrats at the Pentagon force troops to attend “training” seminars about “white privilege”; and l Bureaucrats at the State Department infuse U.S. foreign aid programs with woke extremism about “intersectionality” and abortion.3 Unaccountable federal spending is the secret lifeblood of the Great Awokening. Nearly every power center held by the Left is funded or supported, one way or another, through the bureaucracy by Congress. Colleges and school districts are funded by tax dollars. The Administrative State holds 100 percent of its power at the sufferance of Congress, and its insulation from presidential discipline is an unconstitutional fairy tale spun by the Washington Establishment to protect its turf. Members of Congress shield themselves from constitutional accountability often when the White House allows them to get away with it. Cultural institutions like public libraries and public health agencies are only as “independent” from public accountability as elected officials and voters permit. Let’s be clear: The most egregious regulations promulgated by the current Administration come from one place: the Oval Office. The President cannot hide behind the agencies; as his many executive orders make clear, his is the respon- sibility for the regulations that threaten American communities, schools, and families. A conservative President must move swiftly to do away with these vast abuses of presidential power and remove the career and political bureaucrats who fuel it. Properly considered, restoring fiscal limits and constitutional accountability to the federal government is a continuation of restoring national sovereignty to the American people. In foreign affairs, global strategy, federal budgeting and pol- icymaking, the same pattern emerges again and again. Ruling elites slash and tear at restrictions and accountability placed on them. They centralize power up and away from the American people: to supra-national treaties and organizations, to left-wing “experts,” to sight-unseen all-or-nothing legislating, to the unelected career bureaucrats of the Administrative State.