A Fight Over Fair Housing Regulations

May 21, 2018
Sean Anderson from the University of Illinois College of Law

Sean Anderson from the University of Illinois College of Law

University of Illinois College of Law

The Trump Administration’s generally hostile approach to federal regulations continues to generate litigation. Three fair-housing advocacy groups have sued Ben Carson and the Department of Housing and Urban Development, known as HUD, for effectively suspending a set of regulations adopted during the Obama Administration. Those rules required communities to submit plans for remedying racial segregation and other housing problems, but now HUD has delayed until at least 2024 the deadline for most communities to comply.

Let’s back up. Congress adopted the Fair Housing Act fifty years ago, in the wake of the Kerner Commission’s report on urban unrest and the assassination of Martin Luther King, Jr. The Act forbids various kinds of housing discrimination, but it also requires that HUD administer federal housing and urban development programs in ways that affirmatively further the Act’s anti-discrimination goals.

For decades, according to fair-housing advocates, that requirement didn’t really mean very much. HUD sent loads of money to local communities for housing and other programs; nowadays, it’s billions of dollars annually. In exchange, localities could simply certify that they were working to address persistent problems such as racial segregation and concentrations of poverty, without facing any rigorous review of those certifications by HUD or any other government agency.

Beginning in 2009, the Obama Administration moved toward putting some “oomph” behind that aspect of the Fair Housing Act. It engaged in years of what’s called notice-and-comment rulemaking, which, as the name implies, is a process by which agencies publish proposed rules, gather comments from interested groups and members of the public, then take those comments into account as they revise the proposed rules. That process culminated in a new set of regulations, issued in 2015.

Those new rules require localities that receive HUD funds to analyze housing patterns to identify specific kinds of disparities, and to develop detailed, practical plans for addressing those problems. They also require HUD to review the plans that are submitted, reject those that are inadequate, and work with localities to improve them.

In January 2018, HUD, under Secretary Carson, put the new rules into limbo, allowing municipalities to fall back on the older, minimal requirements until at least 2024. In their lawsuit, the fair-housing groups raise both procedural and substantive challenges to HUD’s action. They argue, for example, that it was illegal, under a law known as the Administrative Procedure Act, for HUD to suspend the rules without going through a new round of notice-and-comment rulemaking. Substantively, the groups claim that reverting to the old rules violates the Fair Housing Act itself. For decades, they say, the old rules were ineffective in furthering the goal of fair, desegregated housing. On that view, going back to those rules disobeys Congress’s command that HUD’s programs must pursue an end to unfair discrimination and segregation, a command that was issued more than fifty years ago.