AFFIRMATIVE ACTION FOR HOUSING MOVES FORWARD: Michael Patrick Leahy at Breitbart reports on Affirmatively Furthering Fair Housing (AFFH) rule, the Obama Administration’s latest affirmative action pet project that will withhold federal funds to localities that fail to have an as-yet-undefined acceptable percentage of minority residents:
The AFFH rule “gives the federal government a lever to re-engineer nearly every American neighborhood — imposing a preferred racial and ethnic composition, densifying housing, transportation, and business development in suburb and city alike, and weakening or casting aside the authority of local governments over core responsibilities, from zoning to transportation to education,” as National Review’s Stanley Kurtz put it last week.
When then-Secretary of Housing and Urban Development Shaun Donovan first proposed the AFFH rule in 2013, Paul Compton, a housing law expert and partner at the law firm Bradly Arant Boult Cummings told the Weekly Standard it is “a real shift in emphasis from ensuring that the private sector and participants in federal programs don’t unlawfully discriminate to defining the existence of racially and ethnically ‘segregated’ neighborhoods to be in themselves a violation of fair housing.”
Under this new rule, Compton said, “if a neighborhood is not integrated in some vaguely defined ratio, then that in itself is a fair housing issue.”
The Supreme Court has long recognized an important distinction between de jure (by law) versus de facto (by fact) racial segregation, with the former being forbidden by the Equal Protection Clause and the latter being, well, just the result of private conduct and human nature/preferences, and thus beyond the reach of the Fourteenth Amendment (which limits only “state”–government–action). Congress, however, has increasingly endorsed, via statutes–including the Fair Housing Act–that the notion that mere statistical differences in racial representation in private activities such as housing, mortgages, and employment, can constitute “racial discrimination” due to a theory called “disparate impact.”
The AFFH rule is the Obama Administration’s radical vision of how to implement disparate impact theory under the Fair Housing Act. Congress could stop it immediately, if it so desired, by an explicit amendment to the Fair Housing Act that disapproves of the AFFH rule. But as is all too common these days, Congress seems unable to exercise its constitutional authority, instead preferring to roll over and show its beta belly in response to President Obama’s extreme transformation of the country.
I hope the moderators of the upcoming GOP presidential debates will be sure to ask all the candidates whether they will make it a priority to reverse the AFFH and similar disparate impact rules enacted by the Obama Administration.