The Obama administration has demonstrated over and over again that lawlessness begets lawlessness. When government abdicates its core responsibility of maintaining security and preserving liberty, it creates a vacuum for infringements on that liberty. Now that Obama has pursued a comprehensive strategy of delegitimizing our culture of law and order and is promoting criminal rights, he is infringing upon property rights of landlords who wish to protect their property from violent criminals.
It’s no surprise that coinciding with Obama’s announcement of more clemencies for federal felons was a stern warning issued this morning to landlords who deny rentals to those with criminal records. While the Fair Housing Act does not regulate a landlord’s discretion to deny rentals based on criminal record, the Department of Housing and Urban Development (HUD) is asserting that because of the alleged racial disparities in the criminal justice system, it is within their right to bar landlords from using criminal records as a criteria for turning down prospective tenants.
“Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African-Americans and Hispanics” wrote HUD’s Office of General Counsel in a memo this morning. “While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification.”
Now small business owners who own apartment complexes will have to litigate every single denial and affirmatively prove the renter is a danger to the property, otherwise they will face a stiff fine.
To begin with, the entire premise of racial disparity in the criminal justice system is a myth, as we have explained in our series on “criminal justice reform.”
Moreover, this is another executive overreach that explicitly oversteps congressional statutes, the same way Obama has operated with EPA regulations and immigration laws. Obama is using executive fiat to spawn social transformation without the representation or input of the elected officials.
This new regulation also demonstrates how “criminal justice reform” is not merely about offering some leniency in drug sentences. As Senator Tom Cotton said today, this is part of a broader problem of Obama delegitimizing the core function of government: law and order.
There are no lengths to which this administration won’t go to support convicted criminals. While those who have served their debt to society and completed the rehabilitation process deserve a second chance, it should not be at the expense of law-abiding citizens. Whether releasing violent felons early from prison, preventing employers from asking about an applicant’s criminal record, or now blocking landlords from deciding whether to rent to someone who may pose a threat to their property and the surrounding community, these policies are part of a disturbing pattern.
There is one other angle to this problem, and of course, it flows from the other unelected branch of government: the judiciary. During the final week of the Supreme Court’s term last June, the high robes issued three decisions that permanently remade America. In King v. Burwell, the court crowned itself super legislature and rewrote Obamacare. In Obergefell, the court redefined marriage, the building block of all civilization, from the bench. But there was a third case equally as officious and destructive as the other two – the disparate impact case.
Writing for the majority, Justice Anthony Kennedy essentially created a new fundamental right for any individual to claim discrimination as long as they can concoct macro data showing a non-uniform outcome in the workplace or in housing, even if the individual business owner clearly had no intent to discriminate. Kennedy even admitted that this decision may be used to “perpetuate race-based considerations rather than move beyond them.”
It was this decision that, in part, gave the administration a green light on today’s guidance. In the words of the HUD memo, “A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate.”
What we are seeing here are the concepts of property rights and true equality under the law being flipped upside down, inside out. And this is being done not by the elected branch of government, but by the bureaucracy and the courts.
Many libertarians are jumping on this “criminal justice reform” train based on very narrow policy ideals that are not the intent of those championing this cause. Criminal justice “reform” is being used as a catalyst for broader social transformation that overrides private property rights – the most anti-libertarian outcome possible. Today’s HUD guidance is just the tip of the iceberg.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.