Impact of the Change in Administration on Equity and Policing

By David Eichenthal | November 2020

The transition from the Trump Administration to the Biden Administration in January will lead to a long list of changes in federal policy that will impact local and state governments across the country. 

The full extent of policy shifts will depend on the outcome of the two U.S. Senate races in Georgia that will be the subject of runoff elections on January 5th:  if the Democrats capture both seats, they will hold majorities in both houses of Congress and be able to pass President-elect Biden’s legislative agenda without the need for Republican support, assuming likely changes in the filibuster rule.

Even without a congressional majority, the Biden Administration will move forward with policy changes through regulations, executive orders and using other executive powers.  On the day that President-elect Biden delivered his victory speech in Wilmington, The Washington Post reported that “President-elect Joe Biden is planning to quickly sign a series of executive orders after being sworn into office on Jan. 20, immediately forecasting that the country’s politics have shifted and that his presidency will be guided by radically different priorities.”

There are two areas where major shifts are likely and that will create both opportunities and challenges for local governments.

In discussing the federal response to the economic crisis triggered by the COVID-19 pandemic, President-elect Biden campaigned on the need to "build it back better" – including “a major mobilization of effort and resources … to advance racial equity across the American economy. That is why racial equity is a distinct pillar of his Build Back Better plan.”

Among other initiatives, the Biden Administration will move to address equity issues through reinstating – and likely building on – the Obama Administration’s Affirmatively Furthering Fair Housing (AFFH) rule. Under the rule, local governments receiving funding from HUD were required to identify, report on and develop a plan to address barriers to fair housing including housing segregation. In many cases, this will require local governments to re-think strategies, programs and investments through an equity lens that does not currently exist. 

The Trump Administration repealed AFFH earlier this year and there is some question whether the Biden Administration will be able to simply re-instate it or whether the “new” old rule will need to go through a regulatory process. In any event, AFFH is just one of many tools that the Biden Administration is likely to use to incentivize local governments to focus on equity.

Police reform is another area where immediate change in policy is almost certain.  Under the Obama Administration, the Department of Justice (DOJ) brought 25 cases under a provision of the 1994 Crime Bill (drafted by then-Senator Joe Biden) that allowed the federal government to sue local law enforcement agencies engaged in a “pattern or practice” of violations of constitutional rights. These pattern and practice investigations were widely publicized and frequently resulted in consent decrees between DOJ and local police departments requiring extensive reforms.

While not every police department could realistically be a candidate for a DOJ investigation, the potential for DOJ intervention often created an incentive for changes. DOJ intervention was often costly and resulted in the involvement of outside parties in the administration of departments that are typically the largest in budget and workforce for most city governments.

Under the Trump Administration, DOJ repeatedly backed away from continued enforcement of the 15 pattern and practice consent decrees from the Obama Administration and launched only one new pattern and practice investigation.

President-elect Biden’s criminal justice plan pledges that “the Justice Department will again use its authority to root out unconstitutional or unlawful policing. The Biden Administration will reverse the limitations put in place under President Trump, and Biden will appoint Justice Department leadership who will prioritize the role of using pattern-or-practice investigations to strengthen our justice system.”

At the Center for Justice and Safety Finance, we have considerable experience working with cities to address the impacts of law enforcement consent decrees. We have also been working to develop strategies to support local governments wanting achieve cost effective reforms in policing and corrections.