01.28.2021 0

Biden housing memorandum eyes renewing federal zoning rule Congress already banned

By Robert Romano

On Jan. 26, President Joe Biden continued his flurry of executive orders and other actions with a new memorandum, “Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies,” which seeks to undo a series of steps taken by former President Donald Trump and former Housing and Urban Development (HUD) Secretary Ben Carson.

The memorandum states, “it is the policy of my Administration that the Federal Government shall work with communities to end housing discrimination, to provide redress to those who have experienced housing discrimination, to eliminate racial bias and other forms of discrimination in all stages of home-buying and renting, to lift barriers that restrict housing and neighborhood choice, to promote diverse and inclusive communities, to ensure sufficient physically accessible housing, and to secure equal access to housing opportunity for all.”

It cites as authority the Fair Housing Act, 42 U.S.C. 3608(d), which states, the federal government must “administer their programs and activities relating to housing and urban development . . . in a manner affirmatively to further fair housing”.

During the Obama administration, in 2015 HUD issued the Affirmatively Furthering Fair Housing  that conditioned receipt of $3 billion of annual community development block grants on rezoning neighborhoods along racial and income guidelines that nearly ended local zoning authority.

During 2020, Biden’s campaign website stated, “Biden will implement the Obama-Biden Administration’s Affirmatively Furthering Fair Housing Rule requiring communities receiving certain federal funding to proactively examine housing patterns and identify and address policies that have a discriminatory effect.”

The original 2015 regulation stated, “This final rule, and Assessment Tools and guidance to be issued, will assist recipients of Federal funding to use that funding and, if necessary, adjust their land use and zoning laws in accordance with their existing legal obligation to affirmatively further fair housing.”

There is just one problem.

Congress defunded the 2015 Obama-Biden regulation in the $1.4 trillion annual omnibus appropriations bill, just as it did in the 2017 omnibus, the 2018 omnibus, the 2019 omnibus, and the Consolidated Appropriations Act of 2020. It was originally drawn from a provision by Sen. Susan Collins (R-Maine) passed the Senate easily 87 to 9 in 2016 that barred the regulation from being used to affect local zoning.

The prohibition states, “None of the funds made available by this Act may be used by the Department of Housing and Urban Development to direct a grantee to undertake specific changes to existing zoning laws as part of carrying out the final rule entitled ‘Affirmatively Furthering Fair Housing’ … or the notice entitled ‘Affirmatively Furthering Fair Housing Assessment Tool’…”

The defund has to be read consistently with the provisions of the Fair Housing Act, which draws its own authority from the 14th Amendment’s guarantee that states guarantee the “equal protection of the laws” and stated “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

That puts Congress as the final decider of what constitutes equal protection, including whether housing policy should include federal zoning mandates or not. If Congress says none of the funds can be used to do zoning, then none of the funds can be used.

In addition, the Affirmatively Furthering Fair Housing was revised in July 2020 by the Trump administration, under a new rule, called Preserving Community and Neighborhood Choice, which states, “It must be local governments, not HUD, that exercise control of administering local housing policies, including zoning and development policies that are unique to a particular community.”

The changes by Trump and Carson restored local control over zoning, and are consistent with federal law that Congress enacted. But now the Biden administration is saying it wants to change all that.

The memo will reexamine the new Neighborhood Choice rule, as well as “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard” regulation, and afterward, “the Secretary shall take any necessary steps, as appropriate and consistent with applicable law, to implement the Fair Housing Act’s requirements that HUD administer its programs in a manner that affirmatively furthers fair housing and HUD’s overall duty to administer the Act (42 U.S.C. 3608(a)) including by preventing practices with an unjustified discriminatory effect.”

Biden is teeing this up to issue another rule regulating a national zoning standard that Congress has already prohibited. In fact, this law — the Congressional defund — may be all that now stands in the way of a Biden presidency renewing the federal war on suburbs and eliminating local government zoning authorities.

Affected localities should obviously exercise their rights in federal courts. The federal government has no role in telling people where they must live based on their race or income, and yet that is precisely what the Obama-Biden era regulation sought to accomplish.

That is why, as the Biden administration brings forward its new plan, Congress must monitor it to make sure that the zoning mandates are not put back into place. The Collins amendment should be defended at all costs.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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