Democrats Call on Biden to Quickly Bring Back ‘Fair Housing’ Rule Rescinded by Trump

An apartment unit resides next to towering buildings in Los Angeles on Jan. 11, 2024. John Fredricks/The Epoch Times

The Biden administration has come under pressure from progressive Democrats to finalize a policy outlining the obligation of communities to “affirmatively further fair housing (AFFH),” an unfulfilled aspect of a Civil Rights-era law.

In a May 10 letter to President Joe Biden, a group of 28 House Democrats called for the immediate issue of the AFFH rule proposed by the Department of Housing and Urban Development (HUD) more than a year ago.

The proposed AFFH rule, the Democrats argued, would serve to close gaps in the enforcement of the Fair Housing Act of 1968, an ambitious attempt to address historic patterns of segregation and discrimination in America’s housing market. The law consists of two aspects: first, prohibiting discrimination in sales and rentals of housing; and second, using federal executive power to implement programs “in a manner affirmatively to further the goal of fair housing as required by section 808 of the Act.”

“The nation is grappling with a fair and affordable housing crisis,” wrote the Democrats, led by Rep. Jimmy Gomez (D-Calif.) and Progressive Caucus Chair Pramila Jayapal (D-Wash.). “Discrimination and inequities in housing not only perpetuate these crises, but have a rebounding effect in every aspect of life.

“Until the AFFH rule is released, the Fair Housing Act’s promises to prevent discrimination and affirmatively further fair housing will remain unrealized, even 56 years after its enactment.”

In 2015, the Obama administration promulgated a rule designed to reinvigorate the AFFH mandate, which up until that point had rarely been enforced. The Obama-era rule acknowledged that the HUD’s effort over the past 50 years was “not as effective as originally envisioned” and implemented an administratively burdensome reporting requirement for state and local governments and public housing agencies receiving HUD funds.

Under the 2015 rule, HUD grantees had to compile reports detailing their work to identify barriers to fair housing choice and make sure that their practices and policies did not promote racial segregation. The Trump administration abolished the Obama-era AFFH rule in 2020, with then-HUD Secretary Ben Carson deeming the rule an example of “excessive Federal overreach” that “took away decision-making from local communities.”

“AFFH would have imposed a massive regulatory burden on localities, required high density zoning, eliminated single family zoning, and destroyed our suburbs,” Dr. Carson said at the time. “This overregulation of our suburbs would have harmed Americans’ abilities to work, buy homes, and build lives for their families, including many minority communities.”

Continuing the federal rulemaking back-and-forth, the Biden administration in 2021 issued an interim AFFH rule, which is very similar to its Obama-era predecessor but no longer requires local governments to report progress back to HUD.

Instead, the 2023 version of the rule mandates that HUD grantees develop elaborate “equity plans.” Specifically, they will need to “adopt different types of strategies that will meaningfully increase fair housing choice in their communities, including by choosing from an array of place-based strategies (e.g., the preservation of existing affordable housing or increased investments in community assets) and mobility strategies (e.g., improved housing counseling, assessing how school assignments are made, or building affordable housing in well-resourced areas).”

“The proposed rule would result in greater impact by charging local governments and other recipients of HUD funding to set ambitious goals to not only confront and reject housing discrimination in all forms but recognize and remedy enduring inequality,” HUD Secretary Marcia Fudge said.

“This rule will be vitally important to our work to address ongoing segregation, disinvestment from communities of color and discrimination in housing markets.”

Critics of the AFFH proposal have questioned the Biden HUD’s interpretation of “fair housing,” which appears to focus on making sure that every community has a mix of low-income and higher-income families, rather than making sure that no family is denied housing it can afford to buy or rent.

“The entire predicate of HUD’s idea of fair housing is highly questionable,” wrote Howard Husock, senior fellow at the nonpartisan think tank American Enterprise Institute. “Instead, making the right life decisions to be able to afford to move to a higher-income jurisdiction are the preconditions for success. Simply being moved there—a reward no thanks to effort—is not the same thing.”