Can the courts stop HUD and the Affirmatively Furthering Fair Housing, AFFH, Rule?

by Smith Young

I started this article as a draft a few weeks ago triggered by reading about the courts role in pushing back on EPA regulations and asking why not push back HUD too. Although the facts associated with HUD and the EPA are totally different, the canonical form of the cases appears to be the similar. Below is my version of using the EPA case and brainstorming a case against HUD.

Chief Justice John Roberts and the Supreme Court may have salvaged Affirmatively Furthering Fair Housing as an initiative by ruling in favor of “disparage impact”, but the AFFH rule imposing the use of the AFFH Tool for future federal funding should be proven to be an of executive overreach.

The AFFH rule issued in July extends HUD’s federal jurisdiction over millions of private single family dwellings that have traditionally been regulated by local zoning and planning boards.

As the Second Circuit explains in its 25 September decision, there was no finding of discrimination, but in order for Westchester County, NY, to receive millions of dollars in 2014 grants, the County and HUD must resolve exclusionary zoning issues for a few of its municipalities.  There is no law against exclusionary zoning and this allegation by HUD is nothing more than an attempt to govern localities using the threat of withholding grants, already having the effect of forcing the County to decline future participation in CDBG program.

The courts need to put a stop on the AFFH Rule, halting further implementation to silence the whirlwind of confusion that springs from the uncertainty about using the AFFH Tool to coerce localities with the threat of withholding future grants.  Relief should not only depend on current bills in Congress to stop HUD’s use of the rule and the tool. Unless the localities refuse the grants and drop out from under HUD’s control, the courts may now be the last recourse for providing reasonableness.

The new AFFH rule is being imposed on approximately 1,250 localities receiving billions of dollars in HUD (CDBG) grants.  The AFFH Tool requires localities to assess and report local racial data comparing it with census data seeking to eliminate racial imbalances.  Empowered and justified by the ruling on disparate impact, HUD has superseded the previous Analysis of Impact (AI) with the assessment tool that essentially forces white communities to incriminate themselves in future lawsuits.  With the repetition of this assessment to continue receiving grants, the federal government is now in the business of local government planning and in a position to threaten lawsuits for noncompliance according to their rules.

While HUD’s putative objective was to define limitations on federal authority using the 1968 Fair Housing Act, the rule in effect gives federal agencies unfettered power to closely manage a primary function of local governments.

The truth is that the AFFH rule like so many Obama Administration diktats offers marginal benefits at a high cost and is intended to subvert state and local sovereignty and expand federal dominion over private businesses.

I’m no attorney, so if I can put this draft together, imagine what some real legal minds should be able to do.

– Smith Young