Not for Dummies, Extreme Coverage of AFFH

War on Suburbs: Obama, Julian Castro Rev Up Affirmative Action Housing

brietbart.com, by Michael Patrick Leahy
July 29, 2015

President Obama and a famous Castro brother are uniting to subjugate American suburbs with the unlawful “Affirmatively Furthering Fair Housing Rule,” (AFFH) and no one in the mainstream media seems to care.

The Castro in question is Julian Castro, Secretary of Housing and Urban Development, not Cuban dictator Fidel or his brother Raul, though the actual content of the administrative rule makes it hard to tell the difference.

The social engineering in the rule was first proposed in 2013. It was finalized last month after an ideological assist from the Supreme Court’s 5-to-4 Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. decision.

The AFFH rule “gives the federal government a lever to re-engineer nearly every American neighborhood — imposing a preferred racial and ethnic composition, densifying housing, transportation, and business development in suburb and city alike, and weakening or casting aside the authority of local governments over core responsibilities, from zoning to transportation to education,” as National Review’s Stanley Kurtz put it last week.

When then-Secretary of Housing and Urban Development Shaun Donovan first proposed the AFFH rule in 2013, Paul Compton, a housing law expert and partner at the law firm Bradly Arant Boult Cummings told the Weekly Standard it is “a real shift in emphasis from ensuring that the private sector and participants in federal programs don’t unlawfully discriminate to defining the existence of racially and ethnically ‘segregated’ neighborhoods to be in themselves a violation of fair housing.”

Under this new rule, Compton said, “if a neighborhood is not integrated in some vaguely defined ratio, then that in itself is a fair housing issue.”

“In significant measure, the rule amounts to a de facto regional annexation of America’s suburbs,” National Review’s Kurtz writes. Here’s how, he says:

AFFH obligates any local jurisdiction that receives HUD funding to conduct a detailed analysis of its housing occupancy by race, ethnicity, national origin, English proficiency, and class (among other categories). Grantees must identify factors (such as zoning laws, public-housing admissions criteria, and “lack of regional collaboration”) that account for any imbalance in living patterns. Localities must also list “community assets” (such as quality schools, transportation hubs, parks, and jobs) and explain any disparities in access to such assets by race, ethnicity, national origin, English proficiency, class, and more. Localities must then develop a plan to remedy these imbalances, subject to approval by HUD.

Though the Republican-controlled Congress seems unwilling to exercise its constitutional authority through the power of the purse to defund Obamacare, the bureaucrats at the Department of Housing of Urban Development have no such reticence. In fact, it is precisely their plan to force state and local governments to comply with the onerous social engineering components of this new rule by withholding federal grants from state and local governments if they fail to comply.

While this would be an excellent opportunity for those states and local governments to exercise their independence by telling HUD to “take this grant and shove it,” the realities of balancing a complex budget and the general timidity of state and local politicians when it comes to defying the federal government suggests that such acts of defiance may well be few and far between.

Through the AFFH rule, HUD will use the power of the purse like a sledge hammer to bludgeon suburbs into submission. As Kurtz explains:

[B]y obligating all localities receiving HUD funding to compare their demographics to the region as a whole, AFFH effectively nullifies municipal boundaries. Even with no allegation or evidence of intentional discrimination, the mere existence of a demographic imbalance in the region as a whole must be remedied by a given suburb. Suburbs will literally be forced to import population from elsewhere, at their own expense and in violation of their own laws. In effect, suburbs will have been annexed by a city-dominated region, their laws suspended and their tax money transferred to erstwhile non-residents. And to make sure the new high-density housing developments are close to “community assets” such as schools, transportation, parks, and jobs, bedroom suburbs will be forced to develop mini-downtowns. In effect, they will become more like the cities their residents chose to leave in the first place.

In announcing the newly finalized AFFH rule earlier this month, the Department of Housing and Urban Development claimed its statutory authority was found in the Fair Housing Act of 1968.

Consider the ridiculousness of a regulation that is purportedly designed to implement a statute passed by a Congress that convened 47 years ago—so long that not only is the President who signed the bill into law, Lyndon Johnson, long dead; all but three Senators and a handful of the members of the House of Representatives who voted for the bill are also now dead.

While there is, unfortunately, no statute of limitations on how long after a law is passed the Executive Branch can decided to promulgate a rule purportedly designed to implement the law, the lawfulness of such a regulation is defined by the process identified in the Administrative Procedure Act of 1946, as subsequently interpreted by federal courts.

This is where the new AFFH rule goes from the merely ridiculous to the unlawful, and why HUD Secretary Castro waited for the cover of the Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. case in which the Supreme Court’s 5-to-4 decision “represents the triumph of an agency’s preferences over Congress’ enactment and of assumption over fact… by importing its disparate-impact scheme into yet another statute,” as Justice Thomas said in his dissent, before announcing the final rule this month. (emphasis added)

It will come as no surprise to SCOTUS watchers that Justices Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor ruled in the majority, while Justices Scalia, Alito, Thomas, and Roberts dissented.

The new AFFH rule is not based upon the letter of the law found in the Fair Housing Act of 1968, but instead upon a creative expansion of that law found in a 2010 GAO report submitted in response to a request from a Rogues Gallery of far-left members of the House of Representatives that included now retired Rep. Barney Frank (D-MA), Rep. Maxine Waters (D-CA) 28%, Rep. Mel Watts (D-CA), Rep. Andre Carson (D-IN) 13%, Rep. Keith Ellison (D-MN) 23%, Rep. Emanuel Cleaver (D-MO), Rep. Rubén Hinojosa (D-AZ), Rep. Gwen Moore (D-WI) 14%, and Rep. Michael Capuano (D-MA) 21%.

Congress passed no legislation based upon the recommendations of this report. However, HUD, which as an executive cabinet is by law required to base proposed regulations on actual legislation, proposed and finalized rules based on recommendations made by an independent agency whose sole purpose is to provide advice to Congress on proposing new legislation and exercising oversight over existing legislation.

The confluence of a Supreme Court that decides it has the power to legislate, a pro-active politicized bureaucracy at HUD that is betting the court will help it end-run Congress, and a Congress that allows itself to be manipulated by allowing its own independent agency to usurp its legislative function confirms that the federal government in its entirety has now merely become yet another arm of the Democratic Party.

This is why state and local authorities will have moral authority when they channel country singer Johnny Paycheck and tell the highest federal court in the land, “take this Supreme Court decision and shove it.”

In 2014, President Obama moved Shaun Donovan, the originator of the AFFH rule, from his position as Secretary of Housing and Urban Development to become Director of the Office of Management and Budget.

The move came several months after the public comment period on the proposed rule closed in September 2013. The primary contribution of his successor, former San Antonio mayor Julian Castro, to the finalization of the rule appears to be ensuring that positive comments made by “community activist” groups in the public comment period were incorporated into the final rule, while those of opponents who questioned the rule’s lawfulness were ignored.

This is no surprise, given his huge political ambitions (rumors are he is jockeying to become Hillary Clinton’s choice for Vice President) and his family’s left-wing past. His mother was a key player in the radical La Raza Unida, and his twin brother Joaquin is a liberal Democratic member of the House of Representatives.

The 60-day public comment period on the proposed AFFH rule began on July 19, 2013 and ended on September 17, 2013. The rule’s lack of statutory authority was not lost on about half of the 884 individuals and groups who offered their comments during the rules public comment period. Those comments opposed to the new rule, however, were apparently not considered by the HUD bureaucrats during the year and ten months between the closing of the public comment period and the announcement of the final rule. (This unusually long waiting period resulted from HUD’s desire to wait for the Supreme Court’s ruling on the “disparate impact” legal theory on which the Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. decision turned.)

Instead, HUD bureaucrats paid attention to the half of those 884 comments that praised the rule. Those comments came almost exclusively from of a bevy of “community activist groups” and public organization employees who benefitted from the proposed rule.

The most compelling criticism of the proposed rule came in a a letter dated September 17, 2013 and signed by three members of the U.S Commission on Civil Rights, Abigail Thernstrom, Vice Chair, Peter Kirsanow, Commissioner, and Todd Gaziano, Commissioner, who destroyed the disparate impact theory when they wrote:

[T]he underlying flaw in this proposed rule lies in its repeated use of the term “segregation” to describe housing patterns in which members of racial or ethnic groups are concentrated in particular areas. Legal segregation has been dead for over forty years. Geographic clustering of racial and ethnic groups is not in and of itself an invidious phenomenon. Referring to contemporary housing patterns as “segregation” trivializes the horror of legal segregation that existed in the United States for over half a century. . .

The Fair Housing Act Does Not Authorize the Use of Disparate Impact Theory

We realize that HUD recently promulgated a rule enshrining disparate impact theory in its regulations. Nevertheless, we must reiterate here what we have previously stated elsewhere: disparate impact claims are not cognizable under the Fair Housing Act.

As a result of this regrettable arrogation of power, the entire proposed rule is built upon sand. Rather than focusing on incidents of disparate treatment against members of protected classes, the proposed rule transforms people with middle-income levels or below into a protected class based simply on disparate impact. We certainly oppose disparate treatment in housing because of membership in a protected class. However, the proposed rule’s focus on disparate impact and the almost complete absence of a discussion of disparate treatment suggests that people are being discriminated against on the basis of their pocketbooks. Or, as we used to call it, “living within your means.” To argue that housing discrimination is pervasive because members of a protected class are less likely to be able to afford housing that is the size they want or in a more genteel area is bizarre.

Breitbart News asked a spokesperson for the Department of Housing of Urban Development to comment on whether Secretary Castro reviewed these negative comments on the proposed AFFH rule prior to his issuance of the final rule in July. The HUD spokesperson tells Breitbart News:

The Administration recognized the importance of this law and believed it was important to clarify expectations, provide data, and develop an Assessment Tool so HUD’s grantees could better comply with their fair housing obligations established in law. To do so, HUD engaged with numerous communities and stakeholders across the country before developing a proposed rule and carefully considered all public comments before issuing a final rule. The final rule is a product of thoughtful consideration and a commitment to effective fair housing policy.

The official response is particularly telling, especially in light of Section 7 (c) of the Adminstrative Procedure Act of 1946, which states that “[e]xcept as statutes otherwise provide, the proponent of a rule or order shall have the burden of proof.”

Thernstom, Kirsanow, and Gaziano’s destruction of the disparate impact theory in their letter submitted during the public comment period on the proposed AFFH rule was a burden of proof Castro and HUD could not sufficiently address prior to the Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. decision.

When it released the final AFFH rule in July, HUD acknowledged the critical role played by that decision:

In response to comments asserting that the Fair Housing Act does not recognize disparate impact liability, the Supreme Court recently ruled that the Fair Housing Act prohibits discrimination caused by policies or practices that have an unjustified disparate impact because of race, color, religion, sex, familial status, national origin, or disability. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys Project, No. 13-1371, 2015 U.S. LEXIS 4249 (June 25, 2015). In that decision, the Supreme Court also acknowledged “the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.”

Other individual commentators were equally critical of the proposed AFFH rule during the public comment period, but cited more general objections based on the proper role of the federal government.

“[T]he government should not be requiring, encouraging, or permitting the use of racial and ethnic classifications and race- and ethnicity-based decision making in order to achieve a particular racial and ethnic mix,” Roger Clegg, President of the Center for Equal Opportunity, wrote in a comment submitted to HUD during the public comment period.

Another writes:

This new rule being proposed, flies in the face of laws already written in the Civil Rights Act of 1968 such as the concept of steering, which is illegal, yet HUD is now going to be in the business of what is known as “Steering”. Definition of Steering: “Social steering is a form of housing discrimination that involves housing authorities, real estate companies and even local governments steering certain groups of people, often minorities, into certain areas of a city.” How can HUD substantively and unilaterally change an existing law that originally needed congressional approval and call it a “Rule”?

“Bypassing local zoning and planning rights is unconstitutional. Relocating populations against their will is unconstitutional,” Arlene Frey wrote.

“Your phrase ‘social equity’ is not about social equity. It is about usurping the power of We the People and our locally elected officials. It is about creating massive government dependency. It is about the mass redistribution of wealth. This is not in line with our nation’s traditions of free market enterprise. It is not in line with the Constitution for any level of government to participate in “redistribution of wealth of resources or wealth,” Frey concluded.

“This proposal has got to be one of the most dangerous overreaches of American government power I have ever seen,” wrote Dave Turnball.

“I do not want the federal government choosing who my neighbors are going to be based on race, ethnicity, economic status or any other criteria,” wrote Matt Johnson. “Are we really going to allow HUD to arbitrarily dismantle local zoning laws simply because it seems like a good idea to a few bureaucrats in Washington DC?” he asked.

The new AFFH rule is an unlawful regulation because, as Thernstrom, Gaziano, and Kirsanow confirm, “The Fair Housing Act does not authorize the use of disparate impact theory.”

That five members of the Supreme Court decided to import the disparate impact theory into the Fair Housing Act in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., as Justice Thomas noted in his dissent, does not make it any less so.

As a consequence, elected state and local leaders are well within their rights to tell the Department of Housing and Urban Development to “take this regulation and shove it.”