This morning’s Washington Post reports that the Biden-Harris Department of Housing and Urban Development will move today to reinstate Obama-era rules on affirmatively furthering fair housing. In a separate op-ed, HUD Secretary Marcia Fudge argues that the move is “necessary to realize the full promise of the 1968 Fair Housing Act.” Critics on the left are already charging that Biden and Fudge are not going far enough to overturn President Trump’s deregulatory actions. Conservatives will likely conclude that they have gone too far, reinstating a discredited regulatory regime that imposed unnecessary burdens on localities while undermining (and racializing) the goals of land-use planning.

This issue was a flashpoint in the last election, when President Trump warned that Joe Biden, if elected, would destroy the suburbs. Media sources charged Trump with playing on racial fears. In fact, Trump’s argument was that Democratic fair housing policies would increase crime by pushing high-density low-income housing in areas where such uses have been prohibited. The latter concern is not irrational, nor it is it irrational to fear that HUD’s new rule could have a host of negative consequences.

Interestingly, the new proposed rule apparently omits a key Obama mandate that Trump had rescinded. Trump’s HUD had rescinded a 2015 requirement that communities undertake a detailed analysis of barriers to integration and submit plans to dismantle them to HUD. Even the Biden administration is not defending that rule, which Secretary Carson had been heavily criticized for relaxing. The Washington Post explains:

Biden administration HUD officials said the creation and review of these assessments of fair housing “proved to be unnecessarily burdensome” for communities as well as the agency, echoing some of the complaints voiced by former HUD secretary Ben Carson.

This appears to be an unexpected concession that even the Biden administration cannot assail a key deregulatory move by the Trump administration. Secretary Carson’s critics may owe him an apology.

Left-leaning critics are right to be suspicious of HUD. Historically, HUD was a key driver of racially segregated housing patterns. For example, in Hills v. Gaustraux, 425 U.S. 284 (1976), black public housing residents were able to prove that HUD had conspired with the City of Chicago to concentrate housing projects on a racially segregated basis. Through such intentional racial segregation, HUD reinforced and exacerbated racial divisions in urban housing, with profound implications for public education. It is entirely reasonable to subject HUD activities to close scrutiny in light of its history of racial discrimination.

Conservatives will see red flags in HUD’s action too. Secretary Fudge describes the rule in ways that suggest that President Trump’s warning may not have been entirely far-fetched:

This week, HUD is publishing a rule that will require every local government that accepts federal housing dollars to make concrete and meaningful commitments toward affirmatively furthering fair housing. In some places, this could mean developing more affordable housing by relaxing restrictive zoning codes that prevent all but the wealthiest from living in certain communities. In others, it could entail bringing new services — such as affordable public transit — to neighborhoods that lack them.

Fudge’s discussion of “restrictive zoning codes” suggests that her department may indeed pressure localities to loosen zoning codes in ways that have unforeseen consequences beyond just the burdensomeness of paperwork requirements on localities. The danger is that localities, under vague requirements to “affirmatively further fair housing,” will be pressured to distort, rewrite, or selectively enforce their zoning and housing policies in ways that disregard the customary concerns for which such policies are developed, e.g., crime-reduction, traffic management, and preservation of neighborhoods.

The question here is whether HUD’s old, and newly exhumed, approach to fair housing is the appropriate means of addressing racial discrimination, or whether it is at best a costly paper-pushing exercise and at worst an effort to bulldoze communities into dubious land-use decision-making. To begin with, to paraphrase Chief Justice Roberts, the best way to avoid discrimination is to avoid discriminating. HUD should keep its own house clean and use its fair housing arm, which I once directed, to ensure that HUD funds are not used in a discriminatory manner. If HUD is concerned about racial discrimination, as it should be, then it should focus on enforcing the powerful tools that it already has available under the Civil Rights Act of 1968. The new “interim final rule” does not do that. Rather, it imposes a potentially costly, previously discredited, requirement on those localities that seek HUD grants with consequences that may be unintended and unwise.