The Biden Administration’s Housing Policy Moves

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, August 30, we discuss the "Biden Administration’s Housing Policy Moves." My name is Evelyn Hildebrand, and I’m an associate director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are fortunate to have an excellent panel moderated by Mr. Ken Marcus, whom I’ll introduce very briefly. Ken Marcus is the Founder and Chairman of the Lily D. Brandeis Center for Human Rights Under Law. He’s the former Assistant U.S. Secretary of Education for Civil Rights, and he’s the Chairman of The Federalist Society Civil Rights Practice Group, and we’re very pleased to welcome him and our excellent panel to discuss today’s topic.

 

After our speakers give their opening remarks, we will turn to the audience for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen. We will handle questions as we can towards the end of this afternoon’s program. You can enter those questions at any time, so please go ahead and use the Q&A to enter your questions. With that, thank you for being with us today. Ken, the floor is yours.

 

Hon. Kenneth L. Marcus:  Thank you, Evelyn. Thank you for putting this together, and welcome to everyone joining us for the webinar. One other aspect of my background that I’ll mention, because it’s pertinent, is that I am a former General Deputy Assistant Secretary of Housing and Urban Development for Fair Housing and Equal Opportunity.

 

I say that because it took me quite a while to learn to say that with one breath and also because I believe that two other members of the panel have the same distinction of having had to learn to say that title and having held the position themselves at various times in different administrations.

 

I’m so happy to be able to put a focus on the Biden housing moves and, in particular, an important, but not especially closely watched, area in which he has made an interesting policy change that I think requires assessment, and that is his new approach to Affirmatively Furthering Fair Housing, different from the prior administrations and certainly worth considering.

 

We have here three experts on this topic. Bryan Greene, my friend and former colleague from the Office of Fair Housing and Equal Opportunity. We served together during the George W. Bush administration. He was a senior executive in Career Service, while I was a political appointee. Currently, he is the Vice President of Policy Advocacy for the National Association of Realtors, where he oversees all legislative and regulatory advocacy on behalf of the association’s 1.4 million members. But he formerly was the top career official at the Office of Fair Housing and Equal Opportunity for something like a decade and so has some of the deepest knowledge and experience in that area, of anybody I know, and we’re going to be glad to welcome him in a moment.

 

Daniel Huff, former counsel to the Senate and House Judiciary Committees. I’ve had the pleasure of working with him in various capacities over many years during both his House and Senate backgrounds. But in addition, in 2019, he also was appointed General Deputy Assistant Secretary for enforcement at HUD, overseeing a staff of 400 and working on issues that included Affirmatively Furthering Fair Housing. Dan also has a distinction of having looked at that issue from multiple perspectives, including from the time he worked during President Donald Trumps White House, where he also had an opportunity to work on the topic of Affirmatively Furthering Fair Housing.

 

Third. Howard Husock, we are honored to welcome. He has been Senior Fellow for the Manhattan Institute, serving as Vice President for Research and Publications for a number of years. A city journal contributing editor, he is the author of Who Killed Society? The Rise of Big Government and Decline of Bourgeois Norms and the Trillion-Dollar Housing Mistake: The Failure of American Housing Policy as well as numerous other articles, some of which deal directly with the policy issues that we are going to discuss.

 

So to look at this question of, what is President Biden doing about housing policy? And, more generally, what does it mean to talk about Affirmatively Furthering Fair Housing, an issue that has had considerable dissension, but which is fundamentally important to the way in which our country deals with the issue of discrimination and fairness in housing. We’re going to start with my former colleague, my friend, Bryan Greene.

 

Bryan Greene:  Well, thank you. Thank you, Ken, and it’s great to see you. It’s great to have served with you at HUD, and if this panel proves anything, it proves that there is life after serving as General Deputy Assistant Secretary for Fair Housing for all of us. I am at NAR, the National Association of Realtors, as Ken points out, and I’m our vice president for policy advocacy.

 

And let me start by just saying a little bit about NAR, and its support for fair housing, and its support for Affirmatively Furthering Fair Housing. As Ken noted, we represent 1.4—actually, now it’s 1.5—million realtors across the country, and we believe it’s very important that we have an open housing market that serves all. And we recognize that there are challenges in this country to serving all, and many of those are historic challenges and legacy issues.

 

And NAR has been very vocal in stating that it supports the Fair Housing Act. It supports aggressive enforcement of the Fair Housing Act, and it supports the implementation of all provisions of the Fair Housing Act, including this provision that we’re focusing on today, Affirmatively Furthering Fair Housing. We ourselves, in recognition of the impact that the real estate profession has had in this country on segregation and the wealth and equity we see today that is very much a product of past housing practices.

 

Because of all of this, the National Association of Realtors recently apologized as an institution for its role in creating segregation in the country and the wealth and equities that resulted from that. We recognize that we were strong supporters of racially restrictive covenants. We helped proliferate them throughout the country, advocated for them, and people in the housing industry, of course, then went into government, where much of these practices were codified.

 

And we, as the National Association of Realtors, opposed the Fair Housing Act within the lifetime of several of us here. And it was only in my lifetime that the National Association of Realtors actually allowed African Americans to become members of the realtors. And so even starting my career, a lot of this legacy was very much raw, and, of course, there’s no question that these practices influenced where we are today.

 

We just issued a report, looking at the profile of buyers and sellers this past year, and we see that of the people who were successful in purchasing homes, only five percent of those were African American, when we know African Americans represent approximately 13 percent of the country.

 

What’s fascinating is when you dig into this, and you can find it on our website, the African Americans who were successful tended to be more qualified than white purchasers, in the sense that they had higher degrees of education. Thirty percent of African American purchasers last year had MBAs or JDs, advanced degrees, while whites who purchased clustered around folks with undergraduate degrees.

 

African Americans were also twice as likely to have student loan debt and much more of it, and so they were purchasing in many instances, overcoming many more challenges. And we know a lot of this was because African Americans are not as capitalized because of history of discrimination. And so education, which we see reflected in this, becomes key.

 

African Americans having to achieve more in order to realize the same, and education, of course, was supposed to compensate for a history of exploitation and theft of wealth, but what we’re also finding now, and there was a big Wall Street Journal article about this, is that many African Americans, with advanced degrees now, are much more in the hole than their parents were and finding this crushing student loan debt is becoming an even greater burden to mobility.

 

But this all comes back, really, to the fact that, in our society, these things happened, and we never really addressed them. We never took the affirmative steps or certainly not in time to help close these gaps. And so that is one of the goals with Affirmatively Furthering Fair Housing laws that Walter Mondale and Senator Edward Brook in sponsoring the Fair Housing Act and in introducing the provisions, the “though shalt not” provisions, of the Fair Housing Act. Also, he said there are some affirmative steps we must do because we created this situation, and people really aren’t going to overcome it unless we’re more intentional or conscious in addressing the impacts of it, and that, certainly, we need to make sure that federal funding going to communities is not used to further exacerbate these historic issues.

 

And so that’s the focus today, really, what has Affirmatively Furthering Fair Housing been? What does it mean? I had the opportunity to meet with Senator Mondale—or Vice President Mondale, we’ll call him—when he came back to HUD, in 2015, to lay out what he intended. We also have the congressional record from Edward Brooke laying out the intent to address the legacy of discrimination and to ensure that the federal government is actively taking roles to promote, what we used to call then, integration—a word we don’t use so much anymore.

 

What I want to emphasize—rather than getting into technical details, technical details, which I didn’t particularly like getting into so much even when I was at HUD—is to underscore some main points. The first main point is Affirmatively Furthering Fair Housing is a civil rights concept, that the purpose of it is to advance the fair housing thrust of this law to overcome racial segregation, in particular, and lack of opportunity due to race.

 

One of my concerns, when I listened to the public dialogue on Affirmatively Furthering Fair Housing, and I think has been true from all quarters, is the focus seems to be overwhelmingly on low-income persons and assisted housing. And we do know that low-income issues and assisted housing issues can perpetuate segregation. A lot of the case law around Affirmatively Furthering Fair Housing has involved the citing of public housing or assisted housing.

 

But I really want to stress that AFFH is about racial segregation, irrespective. If the vehicle for segregation is affordable housing, that’s important, but in this country, we are segregated in market-rate housing, overwhelmingly. We do have suburbs that are now much more diverse than they were at the time of the Fair Housing Act, but you have to break that down, right?

 

We have entering suburbs that are much more integrated, many of them even predominantly people of color. Ferguson was a suburb—or is a suburb. So we have many, predominantly, African American suburbs, even wealthy ones, say, Prince George’s County, areas outside of Atlanta, Georgia.

 

But then we have suburbs that are just really the run of the mill for America, and many of those are segregated. Many have some degrees of integration, but the suburbs are vast, and they’re not a monolith, and so we are still addressing that. Conversely, we have cities that are disproportionately communities of color, so there is an imbalance.

 

And so we have to look at the specifics when we talk about these issues, and we have to look at causes. And that brings me to the main point about Affirmatively Furthering Fair Housing. It’s about looking at causes. It’s not looking at, or mandating, specific prescriptions. The purpose is to examine what barriers exist to determine “what can you do about those barriers?” and then to set a reasonable course for what you can address.

 

Theoretically, you could do this kind of analysis, if you’re getting federal money, and not identify any barriers. That’s unlikely, but it is basically saying it’s not enough to say, “See no evil, hear no evil, speak no evil.” You’ve got to look at the history of your community, what has resulted in the segregation, and what reasonably can be done to address it.

 

We know the story of many of our communities. We know the story, for example, of urban renewal and the impact of urban renewal on African American communities, and in many of these instances, it didn’t lead to integration; it led to just another form of segregation in many of these communities and again more loss of wealth for many businesses and individuals. And then individual cities, recently, many of them have begun to do this work and to identify actual city-related actions that they want to redress, and I think we can learn a lot from some of the soul searching these different cities have gone through.

 

I think many of you may have heard that Evanston, Illinois has looked at its history and how it specifically segregated African Americans into a small triangular area of the city, and it recognizes the long-term impact of that. I think they did this from 1919 to 1968—at least, legally. But since that time, they’ve said, “All right. What can we do?” And there’s been a lot of evaluation of this effort to try to redress this past discrimination.

 

And there are people of all different political stripes and different racial backgrounds who disagree, and it’s not predictable where people necessarily come out on this. But that’s the work, and that’s what’s important, to actually do the analysis, to have the debate, and to recognize that something should be done.

 

And so that is really what Affirmatively Furthering Fair Housing is, that under law, communities that receive federal funding are required to look at their history. Why do they have segregated – why are they a segregated suburb or why are they a segregated municipality? Are there legitimate reasons for it? Are there historical reasons that the community has failed to address? As they’re making new decisions, are they addressing these issues in their planning? So to be conscious going forward.

 

There are many cities and communities historically who have very consciously announced that they want to be a welcoming community, and they’ve planned that way. So you have places like Shaker Heights, Ohio. You have Oak Park, Illinois. You have Montclair, New Jersey; Montgomery County, Maryland; Orange/Maplewood. Most of these cities, or communities, are not integrated incidentally. They made conscious decisions to promote this, so they do stand as examples that this can be done.

 

And the final thing I’ll say is we also just have to look at data. Data’s important; mapping is important. Much of the data that you see indicates how, regardless of income group, however you look at this, there is a different reality for African Americans versus others. Of course, we have poor whites in many of our communities, but when you look at where poor whites live, they are much better integrated into communities. They’re seldom isolated. Blacks in most metropolitan areas are anywhere from 10 times or more isolated if they are poor.

 

Again, this is not about moving the poor to other neighborhoods. It’s about access and about fairness and whether race is a determinant, and if it appears to be a determinant, what can be done about it? So that is still I think the unfinished business for Affirmatively Furthering Fair Housing, and we’re very hopeful that the Biden administration will take a thoughtful approach to this, and after 53 years, Affirmatively Furthering Fair Housing can take on some meaningful shape. Thank you.

 

Hon. Kenneth L. Marcus:  Thank you, Bryan Greene. I must confess to have been a little chagrined at the beginning of your talk when you confessed that you did not enjoy the technical aspects of fair housing, even when you worked at HUD, speaking as someone who relied on your technical aspects because there [crosstalk 20:22] --

 

Bryan Greene:  I didn’t.

 

Hon. Kenneth L. Marcus:  -- But you must have done a remarkable job of muddling through, despite the lack of enjoyment, and we thank you for your insights.

 

Bryan Greene:  Thanks.

 

Hon. Kenneth L. Marcus:  Dan Huff, I know you have thoughts on this issue and a way of approaching it, and we’d love to hear from you now.

 

Daniel Huff:  Thanks, Ken. There’s a popular internet meme that features two pictures side by side. One captioned how it started, and the other, how it’s going. And the point is to illustrate the often vast gulf between the intention behind something and how it operates in practice. When the civil rights bills were voted on, Hubert Humphrey, a chief sponsor, famously promised to eat the paper they’re written on if they ever lead to quotas. And since then, the left has eagerly used those laws to impose quotas on our schools and businesses.

 

And the Affirmatively Furthering Fair Housing, or AFFH rule, hits even closer to home—literally. It hands government bureaucrats that same top-down, quota-based, social-engineering power over the communities where we all live. And here’s how it works: federal grantees are required by statute to certify that they will comply with the civil rights law, the Fair Housing Act, and that they will affirmatively further fair housing.

 

Now, in context, it’s clear that what this simply means is “Yes. I’m going to follow all the laws, and I’m going to use the money as intended. I’m going to build houses and not stadiums.” But HUD says that this certification, this Affirmatively Furthering Fair Housing rule, these four words, rather, in the statute, it actually gave it authority to impose a massive regulatory structure, under which localities must submit demographic and historical information, and if the HUD bureaucrats deem it insufficiently diverse, in that community they have to eliminate their zoning laws, or other regulatory rules, in order to enable construction of low-income high-rises next to single family suburban homes. And I say this is wrong as a matter of policy, and it’s wrong as a matter of law.

 

As a matter of policy, zoning’s good. It allows you to essentially preserve the look, and character, and feel of your area. So think about the D.C. height restrictions, right? It allows D.C. to maintain a more small-town feel. Now, you can say to me, “Well, historically, or in particular situations, it can be used to exclude ‘Look, there’s a land legal maximum, abusus non tollit usum. Improper use does not preclude property use.’”

 

And similarly, people tend to want to live among other people with whom they have much in common. This is natural. Religion, culture, socioeconomic background. There’s nothing invidious, or unfair, or unjust about a member of group A saying, “Look, I don’t think anything ill of group B. I just want to live with group A because I have more in common with them.” And the government has no business interfering in this sort of judgment.

 

And the last point on the policy is that, look, the left is very strategic. They talk about high principle, but a lot of what this is about is putting low-income housing in the suburbs in order to turn red areas blue. And you could say, “Look, I’m too pure to make that sort of political judgment when I looked at this policy, but the bottom line is you ignored it at your peril because the left’s thinking about, and if you don’t think about those kinds of considerations, in the long run, you’re going to lose.” And if you talk to certain congressmen from certain areas, they’ll all tell you that this is what’s going on. But even if you don’t agree with me, as a matter of policy, the AFFH rule is definitely wrong as a matter of law.

 

Now, discussion on this issue by advocates and the courts that look at it, it precedes from a false premise. And they say HUD is statutorily required to integrate communities. This is false. There’s no such obligation. Now, what they’ll do is they’ll set the legislative history. It’ll talk about the chief sponsors, Mondale, others, saying, “Well, we want to achieve the truly integrated and balanced living patterns, and we want to end patterns of segregation. That’s in the record, and they said it all the time.

 

But they’re confusing the aims of the bill with the mechanism for achieving it. The legislative history makes clear – the leaders on those bills also make clear that, while the aims were broad, the mechanism was narrow. And Mondale said, “Look, this obligation here, what we’re really trying to do is eliminate the discrimination and the sale and rental of housing.” That’s all it could mean. The idea was “Look, anyone who can afford a house—can actually get to it, and there’s no restrictive covenant or other barrier—that will naturally, over time, lead to the sort of integration we’re looking for.”

 

So, yes, the aims were broad, but the mechanism was narrow. It was not an invitation to some broad regulatory effort by the agency, and this is buttress, by the way, by a general principle of admin law, which is the major issues doctrine, right? The idea is that major policy issues should be decided by the entity that’s closest to the people, meaning the legislature, and not agencies.

 

And so the Supreme Court said, “Listen, if an agency wants to claim a broad grant of power, it’s got to point to something explicit.” It can’t point to something vague, something like Affirmatively Furthering Fair Housing that seems in context to just be a perfunctory certification. So I think there’s a case on that, Utility Air Regulatory Group against the EPA.

 

The bottom line is, Congress has not presumed to hide elephants in mouseholes. In other words, it doesn’t hide massive regulatory power in some vague phrase. But the most compelling and devastating argument against the AFFH rule is 42 U.S.C. § 12711. Under the caption, protection of state and local authority, the law says explicitly, “the secretary shall not establish any criteria for denying funds based on the discontinuation by a jurisdiction of any public policy regulation or law.” In other words, HUD can tie grant funding to changing local rules.

 

So, look, I made these arguments at HUD. Not a whole lot happened until I was at the White House, and I’m sitting there, in the oval office, with James Bacon, who worked with me—he’s really a young guy, but a really brilliant guy—and John McEntee, who ran the Office of Personnel, and I don't know if you guys know him, but I’ve worked for McKenzie as a management consultant. I worked for senators and congressmen, and I’ve never ever worked for a guy who’s that good a leader.

 

And we’re sitting there, and the president gets onto the housing thing, and John says, “Well, my guy’s worked at HUD.” Because James and I worked together there, and they know all about it, so we got to talking about, and the president said, “Look, I want this thing totally repealed, totally pulled out. HUD’s been working on it three-and-a-half years. I want it gone.” And James and I got together, and we did it in 14 days, and we essentially restored the original meaning.

 

We did it so thoroughly, that a friend of mine, who still is at HUD, was approached by a career who said, not in appreciation but sort of in awe, like, “Wow. You guys didn’t just get rid of the AFFH rule; you actually restored the statute to its original meaning when it was passed.” And I say that as a badge of honor.

 

And I think you can take three lessons from that. The first is that it’s important to hire people who share your view because they’ll go the extra mile to get something done. The key thing that allowed us to do it in 14 days, to put in the new rule, was realizing that we didn’t have to go through notice and comment. The APA explicitly excludes from notice-and-comment requirements matters relating to agency grants, which is what AFFH is all about. So I presented this. I said, “We don’t need to do it.” And people couldn't believe. They didn’t even know this thing existed.

 

But the point is, if I didn’t really believe in the project, that the president wanted to do, I would say, “Sir. I wish we could do it, but the notice-and-comment’s going to take months and months,” but because I believed in it, I found a way to do it. So it’s always important to hire people who see your view because they’ll go the extra mile.

 

The second lesson, I think, is that you shouldn't be afraid to explain what you are doing. Most of these major regulatory actions that the Trump administration did were challenged in court—some successfully, some unsuccessfully. The only one I can think of that was out of major headlines that wasn’t challenged – and I think it’s because we laid out explicitly what we were going to do, and we weren’t afraid of what people might say about it. We didn’t try to hide what the real objective was because we were proud of what we were doing and thought it was defensible, which is exactly why we were doing it, instead of trying to hide. When you hide, you have problems.

 

And on the third lesson is “Look, you have to be bold.” Herodotus in his Histories has a discussion, the bravery of the Spartans when they fought the purchase of the Battle of Thermopylae, and there, bravery, heroism is not being afraid of death. But in modern political climate, the real heroism is not being afraid of being called “oh, a racist,” that sort of thing.

 

We were sitting in the oval office, and someone says to the president, “Sir, we can through with this after we presented the whole thing.” He says, “But they’re going to call you a racist.” Someone else echoed that point, and he turned, and he said, “You know what? They call me that anyway.” And I know a lot of people don’t particularly like certain things President Trump says, but I got to tell you, that sort of thing is true bravery in today’s political climate and some very rare thing in D.C.

 

So the bottom line is, the Biden people have come back. They have restored the rule, essentially. The same thing with respect to the zoning. They’re going to be doing more on it too. And the question is, well, what is to be done? So I think the easiest thing really—really the only thing we did because we don’t hold any Senate or House positions—is a lawsuit. You could focus on the statutory policy substantive thing I said before because it was a statute prohibiting tying funding to changing laws.

 

But there’s a second thing which you could do is that they didn’t go through notice and comment either, but they didn’t use my method. What they did is they said, “Well, we’re going to issue this as an interim final rule,” and the admin law people here know that the APA allows you to avoid notice and comment for good cause, defined as impracticable, unnecessary, or contrary to public interest. But if that sounds broad, it isn’t. Impracticable means the rule is insignificant in nature and impact.

 

I’m sorry. Impracticable means that is responding to an immediate threat to public safety. Unnecessary really is limited to where the rule is insignificant, as a I said, in nature and impact, and the public interest piece really means acute health or safety risk or some kind of situation where there’s a market shot that could create the danger of market manipulation. But none of those apply here, so you could attack it technically, and you could attack it substantively.

 

But I guess thinking closing, there’s one more thing that I want to make a point of, which is that we’ve got to get smart and start seeing patterns. The AFFH rule, as I explained here, is an invention of the activist and bureaucrats following the same playbook they have used for decades to advance their controversial agenda on things from disparate impact to men and women’s bathrooms. Now, what do you do? You use the democratic process to pass a modest bill, imposing some limited requirements. You then work behind the scenes using the administrative process to expand the law to controversial areas well beyond what was agreed to.

 

Now, finally, you collude with activists, I guess, to rewrite the meaning of the law to pretend that the new expanded interpretation is really what everyone meant all along. It’s a bait and switch. It’s intellectually dishonest. It’s operating in terrible bad faith. It’s anti-democratic, and the stupid wimpy Republicans fall for it over and over again.

 

We need to stop agreeing to the Democrat’s seemingly modest civil rights proposal because I guarantee you that whatever you think you’re agreeing to, it’s going to wind up being 10 times that by the time the activist, and the bureaucrats, and the fellow traveler judges are done. So with that exhortation, I see my time has expired, and I yield back.

 

Hon. Kenneth L. Marcus:  Thank you so much, Dan. Thank you for your service, and thank you for your passion and for your words as well. The Federalist Society, of course, does not take positions or support political parties or candidates. But we know that members of the audience often do, and so we thank you.

 

Speaking of members of the audience, I just want to observe that not only do we have a very distinguished panel but we have quite a distinguished group of people watching as well or else people who’s names closely resemble others who are distinguished. But one way or the other, if you are in the audience and have a question, you should feel free to add it to the Q&A, and we will look at them at the end.

 

Now, Howard Husock, we’ve enjoyed your work on paper and look forward to hearing your remarks at this point.

 

Howard Husock:  Thank you very much, Ken. I have to say I’m motivated to say, to Dan, tell us what you really think? But I’ll bracket that by saying, just as you wanted to add, Ken, some pertinent facts about yourself, I’m now a senior fellow at the American Enterprise Institute. They’d be mad at me if I didn’t mention that, and I have a new book coming out on housing called, provocatively, intentionally, The Poor Side of Town: And Why We Need It. And I will circle around to how that relates to our discussion here.

 

Let me start by saying, my thought process always, when it comes to housing discrimination, is what is best for African American aspirations and upper mobility. I think that has to be – rather than protecting any particular status quo, I think our focus always has to be, what really will advance the interests of African American people? And my concern about Affirmatively Furthering Fair Housing, as it is implemented, is that it joins a history of government interventions in the housing market that have actually worked adversely to those interests. And Brian alluded to some of those, but I’ll elaborate a bit.

 

So there’s no doubt that redlining and the FHA rules that realtors were complicit with had a deleterious effect on black people, but we should not minimize – and it relates to affirmatively furthering fair housing—government interventions. There were illusions to urban renewal. Public housing not only was poorly maintained, much of it eventually actually demolished. It replaced healthy black communities.

 

In my book, I talk about an area of Detroit called Black Bottom. That referred to the French soil when they came there and started Detroit, not to racial matters. This was an area of high percentage of owner-occupied structures. Three hundred black-owned businesses, mutual-aid societies, churches, including the church owned by Aretha Franklin’s father, completely demolished. It’s now the Christ of Freeway. Government intervention did that. It was replaced by the Frederick Douglass Houses. Imagine naming something for Frederick Douglass.

 

Eleanor Roosevelt came there. This same kind of benevolence that concerns me. She was convinced if we had a public housing project explicitly for African Americans, that was the kind of benevolence that would provide a better environment. Its effect was to strip them of wealth, to prevent wealth accumulation. Property ownership is the key to wealth accumulation.

 

My point here is not to rehearse the argument of public housing—although, I do enjoy doing that—but to recall that government interventions in the housing market are complex, and we have to be very careful about them. And that’s what gets to me to Affirmatively Furthering Fair Housing. In effect, and I totally agree with Byran Greene, that there’s been a disproportionate focus on low-income and subsidized housing as the embodiment of fair housing, but that has been the reality.

 

We may wish, and I certainly wish, that fair housing were restored to the idea that anybody who can afford to own or rent should be able to. Should we test realtors on that? Yes. Should the federal government support that kind of testing? I have no problem with that. Anybody who can afford a home should be able to own or rent it wherever they want to live. That’s really crucial.

 

But if you go back to the Obama administration origination of the new iteration of fair housing, it focused on—and I’m not overemphasizing this—on moving poor people to what they called higher opportunity zones. The only way to do that was through public and subsidized housing. That is not only a recipe for controversy; it’s bad for the people who it’s intended to help, just as public housing was bad for the people it was intended to help. You don’t accumulate wealth when you live in subsidized housing. That’s the nature of it, right? And the idea that we have to move poor people to wealthier areas in order for them to have opportunity, that’s the opposite of what HUD was created to do in the first place, which was to improve urban areas.

 

We need to make sure that every neighborhood is a high opportunity area. We’re never going to be able to move all the poor people to rich areas. That’s not going to happen. We can’t confuse that with the core idea of what makes housing markets fair, which is nondiscrimination. So we need to make sure that schools are good everywhere, that public safety is good everywhere, that parks are clean and safe everywhere. There should be no high and low opportunity zones.

 

Now, turning more directly to the mechanisms of AFFH, they’re tied to community development block grants, for instance. That was certainly part of what the Obama era would do. Now, there’s talk about expanding those kind of contingent grantmaking to transportation—and Senator Booker and Representative Clyburn have a bill in that regard—to link federal funding to a range of local rulemaking, as Dan Huff alluded to.

 

There are only 1,200 communities in the United States that receive community development block grants. Most American communities, including the, shall we say, overwhelmingly white communities, are insulated from that kind of intervention. Even some of the poster boys for integration, like Bryan referred to Shaker Heights—I’m extremely familiar with Shaker Heights, and I’ve done research there—their interest was not to help black people. It was to balance, to make sure not too many black people moved in. And they had a whole plan to move black people to other suburbs. So this government intervention idea can be very, very complicated.

 

In my opinion, zoning—I know Dan defended zoning, and zoning has its place—but zoning is too restrictive in this country in terms of helping housing supply of a range of types. This is what we need: we need a greater spectrum of housing types, which we once had in this country in the pre-World War II eras, when two-family, three-family, four-family homes were more complex. Zoning eliminated those in the post-war era.

 

I don’t believe that the federal government should use its heavy hand of contingent grantmaking to change that reality. First of all, it wouldn't affect that many communities. What we need to do is what the original advocates of zoning did, beginning in the 1920s, was just to persuade local planning boards across the country. It’s in the interest of your community to have a range of housing types so you’re children can live in the communities where they grew up, so police, firefighters, and teachers could live in the communities that they serve because there’s a natural affordability of small homes on small lots.

 

I believe that one of the collateral benefits of that would be to make a wider range of housing available to low-income persons of all types but especially African Americans. Because as Bryan pointed out correctly, low-income African Americans have fewer housing choices, not necessarily because of racism but because modest homes for people with modest incomes are restricted in this country. We need not use and should not use the heavy hand of government. Remember, that questionnaire that Dan referred to, that the Obama-era HUD, used had 93 questions—93 questions. Philadelphia’s submission for the AFFH qualification was 800 pages long.

 

HUD Secretary Fudge has said, “Well, we’re going to step back from that questionnaire, but, well, we’ll see.” That kind of heavy-handed intervention is going to make it difficult for small communities even to comply, and it will starve them of funds they need to really help low-income persons, which is what CDBG is meant to do. We need to have a broader spectrum of housing types. We need to advance the interests of poor black people, but I’m very skeptical that Affirmatively Furthering Fair Housing is the best way to do that.

 

Hon. Kenneth L. Marcus:  Thank you. Thank you so much, Howard. So there’s a lot in there, and I certainly hope that there will be a discussion of some of the areas in which you agreed and some where there was clearly disagreement. But I want to make sure that there’s clarity on one point that maybe I should’ve established at the beginning, and that’s about what the Biden administration has already done or not done on Affirmatively Furthering Fair Housing.

 

Dan mentioned that the Trump administration work was not challenged in court, much less judicially overturned. Nevertheless, it has been recorded, and it appears that President Biden’s administration has restored a requirement that communities take steps to reduce racial segregation or lose federal funds, but stopped short of returning to the full mandate imposed during the Obama administration in 2015. Is that the sort of Washington Post and other media entities reporting it? Would you agree that that’s a fair summary? In other words, that after the Trump administration, the Biden administration has gone back a notch but not completely as far as where the Obama administration was.

 

Howard Husock:  That’s my understanding and the specific questionnaire, which I characterize as burdensome, is not being used. However, it’s also my understanding that this is an interim step in their taking stock.

 

Hon. Kenneth L. Marcus:  Okay.

 

Bryan Greene:  And I would agree that’s right. They are focusing on the concept, at this point, that it’s a fair housing requirement and not an affordable housing requirement, and that deals with a broad range of issues, but how they’re going to implement it, we don’t know. And let me just say, the National Association of Realtors was not a big fan of the 93 questions either. I think the more simple we can get to these points, the better. But, yeah, I’m hopeful that the Biden administration has also learned from that experience.

 

Daniel Huff:  And Ken, from—

 

Hon. Kenneth L. Marcus:  I do want to hear from you, Dan. Say whatever you want to say, but whatever else you say, I’m interested to hear whether you felt that there was some vindication from the Biden administration of what the Trump administration did in that they did not go all the way back to Obama, or whether it’s your thought that this was just a step, and the fact is that they’re going entirely in the wrong direction.

 

Daniel Huff:  No. It’s just strategic. It’s the wrong direction, and to the extent, it’s different. It’s different in certain particulars. But with respect to the points I made, the central points of HUD’s lacking authority, the total misinterpretation of HUD’s authority, and the violation of the specific statute prohibiting the sense, the broad idea, that they shouldn't be meddling in zoning—all the big points I made—there is no difference.

 

And in fact, if you look at the rule, page 36, they talk about the overcoming patterns on segregation, replacing segregated living patterns with truly integrated living patterns. The same thing that I quoted, that floor language that looks at the broad aims but ignores the fact that the mechanism is narrow. So they’re already in that mindset.

 

And most importantly, the rule reinstates a 200-page guidebook. If you look on page 31 of the rule that’s posted—you’ll see that there—that they’re reissuing this 200-page guidebook, in which the word zoning is mentioned 82 times, and if there’s any questions to what they’re really aiming at, it’s exactly what I said.

 

Look at the June 10^th Washington Post op-ed by Secretary Fudge, where she stated that the new rule will require “Every local government that accepts federal housing dollars is supposed to take concrete steps, such as relaxing restrictive zoning codes.” That’s what they’re after. In the big picture, it’s exactly the same. There’s no indication. It’s business as usual for the Obama/Biden administration. Now, it’s the Biden/Harris.

 

Bryan Greene:  So are we in a discussion moment?

 

Hon. Kenneth L. Marcus:  Yes. If anybody else on the panel cares to add anything in response to anyone else, Bryan or others, this is the time.

 

Bryan Greene:  So I don’t know how much has been reported on the AFFH submissions that HUD accepted before the rule was rolled back, but I don’t believe in connection with any of them – well, I’m understating it. HUD did not direct anyone to change their zoning in those submissions.

 

It is a process whereby the communities, reviewing however many pages of guidance HUD provides and questions that they ask them to address, they answer those questions, and then they decide where they believe they can move the needle to affirmatively further fair housing. And there are many civil rights advocates who found that actually “weak tea” because it was not at all prescriptive. The only prescriptive element is you’ve got to ask yourself these questions.

 

And so I think it’s important to underscore, when people talk about moving people from one area to the next, maybe, people fear that’s going to be the consequence of doing this exercise, but HUD did not direct any communities that they must move their poor into new areas. This is not like Australia, in the 1940s, resettling people.

 

But what it is asking people to do is to examine the historical patterns, and it does identify, what it calls, high opportunity areas and all those different things as part of the analysis to determine whether people have access, and it challenges them to identify ways they can promote that kind of access. But it doesn’t say you must.

 

And then I guess the last point, I think everything that Howard shared in terms of different housing types, while the Affirmatively Furthering regulations from the Obama administration, and I don’t expect the Biden administration, won’t dictate zoning, and I can talk to you more about that because it’s actually explicit that they cannot dictate zoning. It asks communities to look at zoning, and if they were to look at zoning, some, by their own volition, might choose to undertake something like what Howard proposes.

 

I think many people appreciate and respect that zoning presents a challenge, and that if they had communities that allowed for these different housing types, just market-rate housing even, that it could make a difference. If a community chose to do that, that would demonstrate to HUD that they are taking a step to affirmatively further fair housing. It’s not a requirement that they take that step, but that is certainly, I think—intuitively, Howard acknowledges—that could make a difference. And I think a community that did that would actually be very aggressive, relative to what communities currently do.

 

And many communities are now doing it. The state of California just passed a law to allow for two-unit housing in the entire state. That’s a huge step for the state to affirmatively further fair housing. That’s probably light years beyond what anyone has done to affirmatively further fair housing. That doesn’t mean then they have to do something with their public housing as well. That’s the huge lift they’ve decided to make. That is significant in making progress towards that goal.

Hon. Kenneth L. Marcus:  With less than 10 minutes, others may have comments, and there’s, at least, one or two questions, but I do want first, Bryan, to maybe push you a little bit, if I may, and give you an opportunity. So there are some who will say, “Okay. So maybe, HUD is not specifically telling communities ‘You must change zoning in a particular way.’”

 

But isn’t HUD actually muscling down in a fairly easily understood, if not explicit, way to make those changes. Does one really have to be explicit in saying, “You must do X, Y, and Z in order to accomplish that goal.” Is this not simply a means for HUD to pressure communities to make these changes without actually being accountable for those [crosstalk 50:15]?

 

Bryan Greene:  No. I hear what you’re saying. If the submitted and approved Affirmatively Furthering Fair Housing submissions from those communities that went through it, on the web, I’m sure they did not all propose zoning changes. HUD accepted what they said they would do. HUD is acknowledging what our history acknowledges, that zoning has been used to discriminate, and that’s one of many things communities can look at.

 

The Trump administration, before it reversed course, actually had an initiative, an executive order, to evaluate zoning in recognition that zoning and other regulatory barriers were driving up home prices and was also using carrots to try to change or influence communities to make zoning changes, and then something happened to that.

 

But the Trump administration was also recognizing the impact of zoning. That’s what it is. And I am willing to bet that HUD will not direct communities to change their zoning or require it and that many communities will affirmatively further fair housing without touching zoning.

 

Howard Husock:  Ken, if I might just add, the questionnaires that were filled out, and the responses, the denials, that were issued, would often refer to things like, “Well, your schools are placed in a way that doesn’t make it possible for low-income students to get high-opportunity schools.” Well, as per what you were saying, Ken, that can lead you to think about zoning and whether you have multi-family housing near particular schools.

 

But my big concern is, and vis-à-vis California, which is a terrific point, we have a spontaneous change going on in this country, where zoning is being reflected upon by local and state officials as something that is harming the housing market by being too restrictive. The idea that this is – this is not a new idea. Secretary Kemp, in the first Bush administration, issued a landmark report too often ignored, called Barriers to Affordable Housing.

 

This is an important idea. But if HUD comes down hard on communities, they will create a backlash, a resentment, that will be counterproductive. We’re starting to see a flowering of rethinking, and we need to let it happen. If HUD wants to issue its ideas, and people want to consider them, well, that’s fine. But anything that is the heavy-handed arm of the federal government is going to have a countereffect that would be counterproductive.

 

Hon. Kenneth L. Marcus:  Thank you, Howard, and thank you, especially, for the way in which you address one of the questions from the audience in the course of your response. Dan, I see you wanted to share something.

 

Daniel Huff:  Yeah. I’m not sure where all of this comes from. The fact of the matter is that HUD did tell the Westchester County, which is really the forerunner of all of this that they must pass a zoning ordinance, and there was a settlement that required them to do so. Furthermore, they were required to build low-income housing in higher income areas. HUD has done it already, and they’ll do it again.

 

And I just told you that you have this Washington Post op-ed, where the secretary said that essentially the point of this [inaudible 53:40] highlighted changing zoning laws, and as for this point that “Well, they didn’t tell you, you specifically had to do it.” Look, that’s not how things work in the real world. They set the broad goal. The broad goal, as it says in the statute, you have to overcome barriers to building low-income housing, which they called by the euphemism affordable housing.

 

That’s the goal. You have to do it, and if you want federal government money, you’d better do it. “Oh, and what do we think is a barrier?” “Well, we think zoning’s a barrier, but you could look at other stuff if you want.” Well, if you’re trying to get that money, what are you going to do? This is silly talk. Obviously, they’re pointing at zoning. They’re saying change things. That’s how they force them to do it. They never tell them explicitly to do it. That’s the bureaucratic way. That’s how things work.

 

Hon. Kenneth L. Marcus:  Well, we can look at the ones that were accepted and verify that.

 

Daniel Huff:  That’s not a good example because the AFFH rule didn’t come out till 2015, and the Trump administration had come in late 2016. The Trump administration came in, and there was already talk about changing things dramatically, and so the implementation was not done by the people who created it. It was done by people who were much more hostile to it.

 

Hon. Kenneth L. Marcus:  Well, maybe, we’re looking at the heavy hand of HUD, the three of us here. I just think people are overstating just how heavy-handed HUD is.

 

Daniel Huff:  They did it in Westchester. Look what they did in the Westchester litigation.

 

Hon. Kenneth L. Marcus:  But that was a settlement, Dan.

 

Daniel Huff:  It was a settlement based on the fact that the—

 

Hon. Kenneth L. Marcus:  Negotiated settlement.

 

Daniel Huff:  Yeah. But essentially, the logic behind it was the same.

Hon. Kenneth L. Marcus:  [Crosstalk 55:01].

 

Daniel Huff:  I’m sorry?

 

Hon. Kenneth L. Marcus:  Yeah. Based on apparent violations. I think there are different approaches you can take during a settlement, but HUD was actually even directed by Congress because of this very fear to ensure that it did not prescribe zoning. And the folks who were writing the rule were like, “Well, we never were going to prescribe zoning.” So absolutely. But I once again stress there were accepted submissions where zoning was not – where they did not direct the change in zoning.

 

Howard Husock:  I’ll just jump in on—

 

Hon. Kenneth L. Marcus:  You can believe me or not, but I never heard that discussed by anyone at HUD, like, “We’re going to force these changes.” There’s a respect for local zoning laws.

 

Howard Husock:  Yeah. If I might just jump in—

 

Hon. Kenneth L. Marcus:  We have one minute left, and I’ll give it to Howard.

 

Howard Husock:  Well, I’ll just jump in on Westchester since I live in Westchester, and I wrote an extensive essay about that situation for a city journal. The effect of the Westchester kind of settlement, that’s where HUD talked about moving people to high-opportunity zip codes. The idea that there were these wealthy communities that had no low-income persons.

 

The effect of that was to build 750 units, dispersed around the county, at a cost of $68,000 additional subsidy per unit by the taxpayers of Westchester. So it was a very dramatic intervention, and HUD was key in that. They were a party to it. So that did reveal something about what can happen.

 

Hon. Kenneth L. Marcus:  Thank you, Howard. Thank you, Bryan. Thank you, Dan. Thank you for sharing your time and your wisdom. And thank you also to Evelyn Hildebrand for your support to the Civil Rights Practice Group and for helping to put all of this together.

 

Daniel Huff:  Thank you, Ken.

 

Bryan Greene:  Thank you.

 

Daniel Huff:  Thanks for having me.

 

Evelyn Hildebrand:  Thanks very much, everyone. And I’ll just add the thanks of The Federalist Society to our panelists, to our moderator, to our audience for sending in your questions and participating this afternoon. If you have any questions or feedback, please send that in at [email protected], and we welcome your comments and suggestions. Thank you all for participating today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.