An example of a de facto result would be the legal exercise of governmental authority in zoning matters. A real estate developer applies for a zoning permit to develop a subdivision in a municipality. The governmental authority requires a minimum lot size and a minimum square footage of house size such that the final cost of the homes built is very expensive. The result of this legal exercise of the governmental authority results in homes which are only within the price range of the wealthy, thereby excluding availability to entire classes of the population who are poor or needy. Although the result of the governmental action is to exclude ownership of these homes by disadvantaged classes of individuals, it cannot be said that the action creates an intentional result to discriminate against those excluded classes.
While the distinction between de facto and de jure turns on intentional conduct, actions which are not intentional are subject to later analysis to prove a de jure result. Actions may be reviewed under a standard of "foreseeability." The fact that an imbalance exists is not the same as a showing that the imbalance was foreseeable. Therefore, actions which at first blush appear to be the end result of intentional action can be classified as such if the end result was foreseeable at the time the action was engaged in. The foreseeability measure is said to arise from governmental action or inaction that does not serve the avowed governmental policies and purposes or that overlooks less offensive options that were available at the time the policies evolved.
The fact that policies are de facto does not mean that they are free from future scrutiny. Policies which create a de facto result are allowed, but only for so long as that policy is applied in a consistent and neutral fashion and is not changed when the composition of the groups change. An example of a de facto policy that became de jure is found in police and fire departments. Police and fire departments historically excluded women from participation based upon a notion that women were somehow physically inferior to men and thus unable to perform the tasks of police or firemen. Although this policy of inferiority was universally accepted at one time, attitudes and knowledge eventually eroded that notion. Thus, a discriminatory intent could be shown even though the discrimination resulted from historically neutral policies.
The exercise of authority must be thoroughly reviewed and analyzed at the time of the implementation of policy to ensure that discrimination will not occur. This analysis should weigh alternative options to determine if a less discriminatory result would ensue. Finally, after implementation, the policy should be systematically reviewed to ensure that its original purpose is still valid.
THOMAS A. CONNELLY
Rabkin, Jeremy, 1989. Judicial Compulsions: How Public Law Distorts Public Policy. New York: Basic Books.
Rossum, Ralph A. and G. Alan Tarr, 1991. American Constitutional Law: Cases and Interpretation. 3d ed. New York: St. Martin's Press.
DEBT, NATIONAL. Divided into two categories in the United States: debt held by the public, and debt the government owes itself. Debt held by the public is the total of all federal deficits, minus surpluses, over the years. This is the cumulative amount of money the federal government has borrowed from the public, through the sale of notes and bonds of various sizes and for differing time periods. Debt the government owes itself is the total of all trust fund surpluses over the years, such as the Social Security surpluses, which the law says must be invested in federal securities. There is also a legal limit on the amount of federal debt. This is roughly the same as gross federal debt (debt held by the public and debt owed to trust funds such as Social Security) and is the maximum amount of federal securities that may be legally outstanding at any time. When the limit is reached, the president and Congress must enact a law to increase the debt limit or take other extraordinary measures to ensure that interest is paid to those holding public debt instruments in order to maintain faith in U.S. government obligations.
At the end of 1995, the government owed $3603 billion ( Analytical Perspectives 1996, p. 187) of principal to the people who had loaned it money to pay for past deficits (see deficit). This amounted to approximately 50.2 percent of gross domestic product. The gross federal debt, which also includes the securities held by trust funds and other government accounts, was $4.921 trillion. In the 1990s surpluses in the Social Security trust funds helped reduce the size of annual operating deficits. However, in terms of what the government is obligated to pay back at some point in the future, the number for gross federal debt is probably the more correct measure ($4.921 trillion). This came to 70.3 percent of GDP in 1995 and has doubled since 1980 as a percentage of GDP, when it was 34.4 percent (Budget FY 1997, Table 7.2). At some point the Social Security surpluses invested in public debt will have to be paid back or Social Security taxes raised again to keep the system solvent. The stock of debt held by the public will probably never be paid back so long as investors are assured their principal is safe and the rate of interest return is competitive.
One of the striking trends in debt held by the public is the growth of debt held by foreign investors. In 1965, debt held by foreign investors amounted to 4.7 percent of debt held by the public; by 1995 this had increased to 23.5 percent and the change from 1994 to 1995 almost tripled,