HUD like the Bureau of Land Management, BLM, Rebukes Rule of Law with AFFH Rule
By Smith Young “:)” Like HUD and the Affirmatively Furthering Fair Housing (AFFH) rule, the Bureau of Land Management (BLM) published a new regulation last year asserting broad authority to control oil and gas regulations on the basis of previous laws that were allegedly ambiguous1. Unlike HUD and the AFFH rule, BLM was challenged in court and a federal judge struck down an oil and gas rule as having no statutory authority. BLM said it deserved the benefit of interpretive doubt (referred to by the courts as Chevron deference).
BLM argued that Congress’ choice in a previous law to return power to the states didn’t matter because the bureau wasn’t mentioned by name in the law1. For HUD, if challenged with a lawsuit, that would be like arguing that Congress’ intent to preserve local government authority from AFFH doesn’t matter because HUD is not mentioned by name in the law.
We need Judge Scott Skavdahl of Wyoming, an Obama appointee, to preside in a case against HUD’s AFFH rule. Under the BLM argument the judge writes “there would be no limit to the scope or extent of congressionally delegated authority BLM has … Having explicitly removed the only source of specific federal agency authority [2005 Energy Law] over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same under a general statute that says nothing about hydraulic fracturing.”
Alternatively, consider the parallel HUD argument that by explicitly removing the only source of specific agency authority over protection of state and local authority, i.e., provision 12711:
United States Code, 2010 Edition
Title 42 – THE PUBLIC HEALTH AND WELFARE
CHAPTER 130 – NATIONAL AFFORDABLE HOUSING
SUBCHAPTER I – GENERAL PROVISIONS AND POLICIES
Sec. 12711 – Protection of State and local authority2
From the U.S. Government Printing Office, www.gpo.gov
It defies common sense for HUD to argue that Congress intended to allow it to regulate the same under a general statute that says nothing about the Supreme Court’s ruling on Disparate Impact last year that prompted HUD to implement the AFFH rule.
A President who rewrites inconvenient laws ought to alarm Americans of all political persuasions. Principled decisions like Judge Skavdahl’s help restore the constitutional norms that Mr. Obama has done so much to dismantle1.
1. Wall Street Journal, Obama’s Fracking Comeuppance, Thursday, June 23, 2016 pg A10
2. Sec. 12711 – Protection of State and local authority