Comment Detail

Comment

Comment One: The FHFA has ignored for nearly 9 years the mandate of HERA and has failed to promulgate rules it is required to write that govern the FHFA's own obligations under the law. §1207.10-1207.19 has been reserved since the original Minority and Woman Inclusion rule was issued. The FHFA has taken multiple bites at the apple to ensure that the nongovernmental institutions that it regulates meet a higher and higher bar, while failing to write regulations governing its own conduct in compliance with the law. The Office of Inspector General should ask the FHFA why it has failed to address its own requirements under HERA.
Comment Two: In light of PHH Corp v. CFPB, the single Director structure of the CFPB was deemed unconstitutional. The CFPB shares the same governance structure of the FHFA. Any action taken by the Director of the FHFA in light of the DC Circuit Court of Appeals ruling is subject to challenge and may be nullified. The FHFA should postpone all rulings requiring final approval of the Director until the constitutional issues are resolved.
Comment Three: The FHFA defines outreach based on outmoded categories of race. As the recent census data reveals, the United States is more diverse than ever in that the population are the product of many races. The FHFA should address whether individuals who can identify as multiple races can or should be entitled to the benefit of these rules, and provide the public policy reasons for such decisions.
Comment Four: The categories of race required for data reporting are ripe for fraud and abuse. There are no definitive or authoritative resources to verify an individual's race. Racial data is self-reported, and as a result cannot be relied upon with certainty. There is no third party to verify the reporting.
Comment Five: Racially based quotas have not survived court challenges outside of narrow areas under the law, including government contracting. The FHFA dances across the line, willfully and somewhat too cleverly, in attempting to require the entities that they regulate to impose quotas on themselves. The entities are not agencies of the federal government, and such requirements are tantamount to unconstitutional quotas imposed by the government.
Comment Six: Laws and regulations based on race are subject to strict scrutiny. The FHFA has not narrowly tailored the regulation to address the inequality of past discrimination. While there is no doubt that certain racial classes have suffered under the the official oppression of government action, individuals recently arriving to the United States since the civil rights movement of the 60s have suffered no official oppression. As one example, the overwhelming majority of Hispanics living in the United States have arrived or were born after the 1960s. These individuals suffered no oppression, and should not benefit from unconstitutional government actions based on race.
Comment Seven: If for the sake of argument we accept that the government, in its action under this regulation, is intending to help groups historically oppressed, and without focusing on the harm the government does to those it does not favor, the use of racial categories in laws and regulations is suspicious on its face and further keeps the spotlight on race in a society where we demand that the scales of justice be colorblind. Chief Justice John Roberts in the Seattle School District Case wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." While reporting on outreach activities may be permissible under the Constitution, requiring results from such activities clearly is tantamount to a quota system and cannot survive court scrutiny.
Comment Eight: The FHFA's actions in this regulation exceed its authority under HERA, and therefore as a matter of regulatory law, its actions are ultra vires.