Hidden Rules of Race Are Embedded in The New Tax Law
Hidden Rules of Race Are Embedded in The New Tax Law
The federal tax code is one of the most powerful tools of economic policymaking. It can
incentivize, subsidize, or discourage certain behaviors or activities. It can impose economic
burdens, or it can relieve them. It can shift resources from one area to another. It can provide
an implicit check on the outsized power, including political power, that is accrued by one class
of people with a gross disproportion of societal resources, or it can reinforce and amplify that
power. The federal tax code, in other words, houses some of most critical rules that govern
our economy. As such, it is also home to a set of hidden racial rules that, through intention or
neglect, provide opportunities to some communities and create barriers for others.
The hidden rules of race (Flynn et al. 2017) are the racial rules that reshape the economy,
and society more broadly, for black and brown Americans. These rules—historic and
current, implicit and explicit—have driven disparities ranging from wealth creation and
educational attainment to health care access and economic mobility.
The recently enacted Tax Cuts and Jobs Act, known colloquially as the Trump tax law, was
a substantial rewrite of the tax code. Far from addressing, fixing, or improving the hidden
rules of the tax code that disadvantage people of color, the new law strengthened some of
these rules and even added new ones. The sum total effect of the Trump tax law is likely
to further increase the economic disparities, particularly with regards to wealth, between
white Americans and communities of color.
There are at least four major ways in which the new tax law will have a disparate negative
impact on people of color. First, the tax law’s benefits accrue disproportionately to high-
income households, which means that, because of the long-established racial income gaps,
white households will capture more than their fair share of the tax cuts.
Second, the new law primarily benefits people who hold existing wealth—in everything
from corporate shares to housing stock—rather than providing benefits to create
wealth. Compared to income disparities, racial wealth disparities are more severe and
generationally established, and thus they have a much more intense and lasting impact
that the tax law will exacerbate.
Finally, the enormous revenue loss caused by this law, coupled with the limitation on the state
and local tax deduction, will undermine the public sector. This will be particularly true at the
state and local levels where governments are often constrained to balance their budgets. At
the federal level, the woeful irony of a budget-busting tax cut skewed towards the wealthy in a
political context that overemphasizes austerity will likely mean an acceleration of the already
dimensioned public sector labor force. Black workers make up a disproportionate share of
public employees, and public employment plays a disproportionately important role in black
communities. Cuts to public employment will therefore impose a disparate burden on black
American workers and black American communities.
In sum, the Tax Cuts and Jobs Act enhances existing hidden rules and creates new ones
that negatively impact people of color. The scale of the long-term impacts of these rules is
yet to be determined, but the direction of that impact is clear: In addition to disadvantaging
low- and middle-income people in favor of the rich and powerful few, the Trump tax law
specifically preys upon people of color.
According to the Tax Policy Center, for 2018, the average tax cut for the richest 1 percent is
roughly 50 times larger, in raw dollars, than the average tax cut for someone in the middle
quintile, and it’s 850 times larger than the average tax cut for someone in the bottom
quintile. Even as a share of income, the law’s benefits skew toward those with high incomes.
The law also becomes more skewed toward the rich over time, as certain provisions expire.
By 2027, fully 83 percent of the tax cuts flow to those in the top 1 percent, while those in the
bottom 60 percent will, on average, actually experience tax increases relative to the previous
tax law (Tax Policy Center 2017).
The overall skew of the Trump tax law toward the rich is both well-covered by the media
and well-known by the public. In a recent Quinnipiac University poll (2018), fully 62 percent
of respondents agreed that the law mainly benefits the wealthy rather than the middle class.
What is less well understood is the racial implications of this income skew.
The richest Americans are the disproportionate beneficiaries of the Trump tax law,
and the richest Americans are also disproportionately white. According to the Current
Population Survey (2016), while white households make up 67 percent of all households in
the country, they constitute 78 percent of those in the richest 5 percent of income earners.
Black households, on the other hand, make up 13 percent of all households but comprise
just 5 percent of those in the top 5 percent. Similarly, Hispanic households are 13 percent
of the total, but they account for just 6 percent of those in the top. On the other end of the
income spectrum, both black households and Hispanic households are overrepresented in
the bottom income quintile (United States Census Bureau 2016). Consequently, by cutting
taxes for the rich, while mainly leaving out the poorest Americans from the tax changes
entirely, the Trump tax law also very directly delivers disproportionate tax benefits to white
Americans relative to Americans of color.
The racial wealth gap is rooted in the history of chattel slavery, when black people
themselves were considered capital assets that fueled the wealth of a white plantation
owning class, which served as the impetus for modern financial capital markets (Baptist
2014). Since the abolition of slavery, public policies have mainly served to perpetuate the
racial wealth gap. From redlining to mass incarceration to unregulated predatory lending,
federal, state, and local policies have tended to erect barriers to wealth creation for black
and brown people, while protecting and expanding the legacy of wealth that exists mainly in
the accounts of white people.
The Tax Cuts and Jobs Act continues in that trend, favoring existing wealth over new wealth
creation in numerous important ways. For example, one of the centerpieces of the new
law is its massive tax cut for corporations, reducing their tax rate down from 35 percent
to 21 percent. That one change alone is worth about $1.3 trillion over the next decade
(Joint Committee on Taxation 2017). Tax cuts for corporations disproportionately benefit
Furthermore, despite being billed as a comprehensive “tax reform,” the new tax law makes
none of the potential changes one would expect to see out of a reform that sought to aid
in new wealth creation, such as provisions for seed capital to create vehicles to assets that
appreciate over time like a home or a new business (e.g. “baby bonds”) (Hamilton and Darity
2010; Hamilton and Darity 2017b). Essentially, the law maintains all of the largest legacy tax
benefits for existing wealth, such as the lower tax rates on capital gains.
On top of all this, the Trump tax law dramatically cuts the estate tax for the extremely
wealthy—a group that is far whiter than the overall population—making it even easier to
pass along their often inherited advantages to another generation of heirs (Jan 2017).1
Even before the Trump tax law, estates worth up to $11 million could be passed on entirely
tax-free, despite the fact that roughly half of the value in the largest estates has never
been subject to income tax (Poterba and Weisbenner 2000). The new law increases the
estate tax exemption, so now just estates worth more than $22 million owe any estate tax
at all, bestowing an enormous tax windfall worth approximately $83 billion for only the
wealthiest heirs in the country. This policy is especially galling considering that inheritance
is the single variable with the greatest explanatory power of the overall racial wealth gap
(Gittleman and Wolff 2004).
While we do not have data on the racial demographics of Americans who owe estate taxes, two relevant data points
1
make it a safe assertion that they are disproportionately white. First, as of 2015, only seven people on the Forbes 400
were either black or Latinx. Second, while over 15 percent of white households have a total net worth above $1 million,
less than 2 percent of black or Hispanic households do.
In a tax system with a limited SALT deduction, states and localities may find it harder
politically to raise revenue in a progressive way. We can see this scenario already playing out
in New Jersey where Democratic state legislators who previously supported raising taxes
on rich residents voiced concerns over a high-income surtax because that tax would no
longer be fully deductible at the federal level (Marcus and Johnson 2018). When states and
localities face revenue constraints, they often turn to fees and fines as a substitute.
Shifting from progressive income and property taxes to regressive fines and fees, along
with the historical political vulnerability of the black community to state predation,
is tantamount to shifting the tax burden from predominantly white residents to
disproportionately black and brown residents. Also, this increased reliance on fees and
fines will lead to increased interactions with the criminal justice system—as police, parole,
probation, and other court officers respond to the imperative to raise revenue—an outcome
that has negative implications for communities of color.
Even before the new tax law was enacted, states and localities were increasingly relying
on fees and fines to generate revenue (Shapiro 2014). A report from the Brennan Center
for Justice found that, “Across the board … states are introducing new user fees, raising
the dollar amounts of existing fees, and intensifying the collection of fees and other forms
of criminal justice debt such as fines and restitution” (Bannon et al. 2010). This trend was
spurred forward by the fiscal crunch during and immediately after the Great Recession,
but the phenomenon is not limited to periods of massive fiscal upheaval. Multiple studies
have shown that reduced tax revenue leads to higher fees and fines. For example, one
study of North Carolina in the 1990s found that police issued more traffic tickets in years
immediately following revenue declines (Garrett and Wagner 2009). Another study using
There is, of course, a disproportionate impact on communities of color from these types of
criminal justice fees and fines. Most obviously and most directly, criminal justice fees and
fines are regressive; they fall more heavily on poorer people than on richer people. A $1,000
fine is a much larger burden for a person who makes $20,000 a year than for someone who
makes $200,000 a year. And because people of color tend to have, on average, lower incomes
than white people, a shift from income taxes to fees and fines is a shift in the overall revenue
burden from white people to people of color. The fees and fines often compound into debt
traps that further impede closure of the racial wealth gap. And because of their economic
and political marginalization, people of color tend to be less well-equipped to resist this
policy shift from a progressive tax system to a regressive one that relies on fees and fines. It
should come as no surprise, then, that cities with more black residents tend to have a greater
reliance on fines as a source of revenue (Sances and You 2017).
A second, even more pernicious impact from shifting to more fees and fines is that the fiscal
imperative to raise revenue from the criminal justice system is likely to cause more people
of color to become ensnared in that system and to suffer the long-term consequences. For
example, as noted above, revenue loss leads to more traffic stops, which will inevitably
lead to more arrests. There is also evidence that the need for revenue influences other,
more dramatic policing behavior, such as drug arrests, in order to increase asset forfeitures
(Holcomb et al. 2011).
The racialized nature of the American criminal justice system is well documented
(Alexander 2012). Blacks are more likely than whites to be pulled over by the police, to
have their cars searched, to be arrested for drug crimes despite no evidence of greater use,
to serve longer sentences, to be jailed while awaiting trial, and to lose the right to vote as
a result of a felony. When confronted with an expensive legal system, blacks have far less
income or wealth to address their exigent situation. Moreover, exposure to the criminal
justice system has a more detrimental effect on black American wealth accumulation, and
wealth itself does not protect blacks from incarceration to same extent as whites—the
relatively few black youth from wealthy families face a greater risk of future incarceration
than whites from wealth poor families (Zaw et al. 2016). For black people, far more than
for white people, interaction with the criminal justice system is fraught with danger and
potentially life-altering consequences.
One might not immediately think of the newly passed tax law as contributing to the
problems of mass incarceration and the racial disparities of our criminal justice system,
but it will. By making it harder for states and localities to raise revenue in a progressive way,
and by potentially undermining federal support for states and local governments, the law
will encourage the increased use of fees and fines, which are both regressive and expand the
reach of a broken justice system.
The extent to which these costs will put true fiscal pressure on the federal budget is a topic
for another issue brief. From a political economy standpoint, however, there can be little
doubt that the significant increase in budget deficits, along with the attendant increase in
publicly held debt, in a political context that overemphasizes austerity, will substantially
increase the perceived fiscal pressure to reduce federal spending. Indeed, Congressional
Republicans and President Trump have already begun calling for “entitlement reform” and
cuts to a wide array of federal programs (Weixel 2017). And one group of people who are
always directly impacted by “austerity” cuts are public sector employees. President Trump’s
budget proposal, for example, contains $65 billion in cuts to retirement benefits for the
federal workforce (Office of Management and Budget 2018).
When the public sector sheds jobs or trims benefits and wages, black people, and therefore
black communities, bear a disproportionate share of that burden. That’s because fully 1-in-
5 black workers is employed in the public sector (Cohen 2015). As of 2014, 18 percent of all
federal, full-time civilian employees were black, even though only 12 percent of the total labor
force was black (Partnership for Public Service 2014). Historically, the public sector has been
an important source of economic security and upward mobility for black workers. Beginning
with President Franklin Roosevelt’s executive order 8802 and culminating with President
Lyndon Johnson’s executive order 11246, the federal government slowly banned employment
and contracting discrimination based on race, gender, or national origin and even required
“affirmative action” to ensure that discrimination was not taking place (Flynn et al. 2016). As
a result, over the last half century, public sector employment has offered higher wages, better
benefits, and a smaller racial wage gap than the private sector in which individual employers
and managers have greater discretion to discriminate (Pitts 2011).2 For example, in the private
sector, black workers’ wages are, on average, about 13 percent lower than white workers’,
whereas in state and local public jobs, that gap is only about 2 percent (Cooper et al. 2012).
We need only look to the last decade to see the effects of so-called “austerity” cuts on black
workers. During the Great Recession, tax revenues—already low at the federal level due to
the “Bush Tax Cuts” of 2001 and 2003—further plunged as the financial collapse turned
into a wider economic crisis. Soon enough, “supply-side” conservatives began pushing for
massive cuts to government services and programs to bring spending down closer to the
artificially low levels of revenue. Federal, state, and local governments proceeded to lay
off about 600,000 workers from the end of the recession in 2009 to 2012 (Greenstone and
Looney 2012). The result was what sociologist Jennifer Laird (2017) called a “post-recession
double disadvantage for black public sector workers.” Black workers, by being concentrated
in the public sector, bore the brunt of the layoffs, and, even in the public sector, they were
more likely than their white co-workers to lose their jobs (Laird 2017).
It is worth noting that there is an important gender interaction here as well, given that public sector employment has
2
tended to have a smaller gender pay gap relative to the public sector, too. As a result, the public sector is especially
critical for women of color.
Whether by increasing the pressure for spending “austerity” or by limiting the ability of
state and local governments to raise revenue on their own, the new Trump tax law is likely
to undermine public-sector employment and benefits—and millions of black workers
along with it.
But the racial penalties and barriers embedded within this new tax law also perversely point
the way toward a more inclusive federal tax policy, one in which the hidden rules encourage
rather than discourage an economy that works for communities of color. Such a tax code
would begin by dramatically enhancing progressivity, rather than reducing it. For example,
wealthy corporations should be paying more in taxes, not less, and the top income tax rate
for the very richest should be higher, not lower. Second, the tax code should actively seek
out ways to redress wealth inequality, not just income inequality. This could take the form
of a much more robust estate tax, higher capital gains taxes, or even a wealth tax. It should
also seek out ways to help those born without wealth build it. For example, “baby bonds,”
originally proposed by Professors William Darity Jr. and Darrick Hamilton (co-author
of this brief ), would be federally managed trust accounts established at birth to serve as
financial capital for the future down payment of a home, to start a new business, or to
purchase a debt-free higher education for when the child matures to adulthood (Hamilton
Federal tax policy should also support employment for people of color, not create new
barriers or undermine existing sectors that provide good jobs at fair wages. And finally, the
tax code should make the use of criminal justice fees and fines as sources of revenue less
attractive, not incentivize it. That could mean more revenue sharing between the federal
government and states and localities.
Before the Trump tax law, there were myriad ways that federal tax policy could have been
improved to remove the hidden and not-so-hidden barriers to economic opportunity
and security for people of color embedded in the tax code. Unfortunately, the new law
will deliver bigger benefits and more advantages to wealthy white households relative to
households of color, while simultaneously strengthening existing racial barriers to a truly
inclusive economy. Only with progressive tax policy can the hidden rules of race that shape
the federal tax code, the U.S. economy, and society at large begin to be undone.
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s12552-016-9164-y (accessed April 2, 2018).
Darrick Hamilton is a Fellow at the Roosevelt Institute, as well as the Director of the
doctoral program in public and urban policy and jointly appointed as a professor of
economics and urban policy at The Milano School of International Affairs,
Management, and Urban Policy and the Department of Economics, The New
School for Social Research at The New School in New York. He is a co-associate
director of the Cook Center on Social Equity.
Michael Linden is a Fellow at the Roosevelt Institute who also serves as Policy
and Research Director for The Hub Project. Before The Hub, he worked as a
senior policy adviser to Senator Patty Murray on the Budget and Health Education
Labor & Pensions committees. Linden previously served as the Managing Director
for economic policy at the Center for American Progress. He received his Master
of Public Policy at the University of California, Berkeley’s Goldman School, and his
BA at Brown University.
ACKNOWLEDGMENTS
The authors thank Julie Meyer for her comments and insight. Roosevelt staff Nell
Abernathy, Kendra Bozarth, Andrea Flynn, Rakeen Mabud, Marshall Steinbaum,
and Steph Sterling all contributed to the project.
Until the rules work for every American, they’re not working. The Roosevelt
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