HUD to “reinterpret” AFFH; it should rescind the rule

I’ve been critical of President Trump today. But few days go by without me being happy he defeated Hillary Clinton.

Here’s a reminder of why. Yesterday, Housing and Urban Development Secretary Ben Carson announced that his agency will “reinterpret” the ultra-instrusive Obama housing rule known as Affirmatively Furthering Fair Housing (AFFH). The rule was designed by the Obama administration to seize federal control over local zoning for the purpose of creating neighborhoods that comply with the left’s race-based vision of where people should live. We discussed it here, among other places.

Secretary Carson didn’t say exactly how he plans to “reinterpret” AFFH. However, he told the Washington Examiner that he doesn’t believe in the “manipulation” associated with the rule or with the burdens it imposes on local communities. As a candidate for president, he called it “a doomed-to-fail attempt to “legislate racial equality.”

Carson’s announcement comes on the heels of a decision by HUD to accept Westchester County’s analysis of the impact its zoning rules have had in creating barriers to fair housing. The analysis concluded that its zoning rules are not the cause of the concentrations of white, hispanic, and black populations that exist in the County.

Reportedly, the analysis submitted by the County — its eleventh attempt to satisfy HUD — was basically the same as an analysis submitted to, and rejected by, the Obama administration. The difference, of course, is the new administration.

We’ve written about how Westchester County was ensnared by HUD. It occurred as the result of a lawsuit and a settlement agreement. The County entered into the settlement agreement because it thought it had a reasonable partner — the Bush HUD. It ended up dealing with Obama’s HUD, which was anything but reasonable.

Now that it’s dealing with the Trump administration, the County’s nightmare may be over.

The problem, though, is that the next administration might revert to the Obama approach. The AFFH rule could be re-re-interpreted and then used to ensnare localities that accept federal housing money. There would be no need to sue them.

That’s the problem with merely reinterpreting AFFH. The rule should be eliminated. Otherwise, it’s a time bomb waiting to go off.

That’s why conservative Republicans led by Sen. Mike Lee called on Carson to rescind the rule. They should continue to insist on this.

Carson said he feels constrained by the Supreme Court’s decision in 2015 that the Fair Housing Act permits law suits based on disparate impact and do not require proof of intent to discriminate. I doubt that this 5-4 decision, in which Justice Kennedy cast the deciding vote, entails the AFFH rule. Indeed, I think Justice Kennedy’s opinion can easily be read to say it does not. If HUD lawyers are telling Carson something different, he should consider getting a second opinion.

In any event, we’re already in a much better place when it comes to AFFH with President Trump in office than we would have been with Hillary Clinton — a resident of Westchester County, by the way — at the helm.

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