AFFH Has No Basis in the Fair Housing Act

AFFH Has No Basis in the Fair Housing Act

By Stanley Kurtz — May 17, 2016

The Fair Housing Act (FHA) of 1968 was a great achievement, rightly prohibiting discrimination in the sale or rental of housing. President Obama claims that his wildly overreaching Affirmatively Furthering Fair Housing (AFFH) regulation, finalized almost fifty years later in July of 2015, is simply fulfilling the purposes of the original Fair Housing Act. That is nonsense. It’s also a classic case of left-leaning politicians achieving their ends by reading radically new meanings into well-established laws.

This week the Senate will go on record for the first time on an amendment to a THUD (Transportation and Housing and Urban Development) appropriations bill defunding AFFH. Since the House has twice passed such an amendment and is likely to do so again, the Senate vote has turned into a major showdown over Obama’s radically transformative new housing regulation.
If the Senate passes Sen. Mike Lee’s amendment defunding AFFH, President Obama will have to either accept the end of AFFH or veto the THUD bill. He will also have to decide whether to do something he has deliberately and successfully avoided for years: publicly defend his radical and sure-to-be-unpopular housing agenda.
To prevent all this, defenders of AFFH are aggressively taking the line that defunding Obama’s revolutionary new rule, which federalizes the core functions of local government and turns suburbs, towns, and even mid-sized cities into helpless satellites of nearby megacities, is nothing but a bit of new guidance showing localities how to fulfill their existing obligations under the Fair Housing Act of 1968. This is simply wrong.
The Fair Housing Act of 1968 says nothing whatever about withholding HUD grants from localities unless they nullify classic suburban zoning patterns to build high-density low-income housing. FHA is strictly about preventing overt discrimination in housing transactions. The Obama administration and its activist allies have sought to read new meanings into a few brief phrases in FHA requiring HUD to administer its programs in such a way as to “affirmatively further” the purposes of the act. Yet it’s perfectly clear that this was simply an instruction to HUD to aggressively monitor its programs to make sure that no overt discrimination was taking place.
But don’t take my work for it. Consider this account of the Fair Housing Act by Charles M. Lamb, author of a 2005 book on federal housing policy. Lamb was a fair housing specialist with the U.S. Commission on Civil Rights and has taught constitutional law and civil liberties at the University of Buffalo, SUNY. More importantly, Lamb is an enthusiastic advocate of precisely the kind of housing policy favored by President Obama. In his book, however, based on extensive archival study of the intentions behind the Fair Housing Act of 1968, Lamb makes it clear that a housing policy of the kind now favored by President Obama would have to move well beyond the intentions of the FHA itself. Here is Lamb on what he calls the “weakness” of the original FHA:
“…nothing in the Fair Housing Act expressly requires the federal government to encourage suburban racial integration through the use of subsidized housing. Nor does the Fair Housing Act forbid economic discrimination of any kind or require government to promote suburban economic integration in any way. The act certainly prohibits various forms of discrimination based on race and provides that the secretary of HUD shall affirmatively promote the goal of fair housing. Still, the Secretary’s stated duties do not include promoting suburban racial or economic integration by linking HUD funding to a requirement that low-income suburban housing also be built.” (p. 47)
Again, Lamb strongly favors aggressive attempts to control suburban housing of exactly the type now adopted by President Obama. Yet Lamb is honest enough to admit that FHA in no way authorizes such policies. I wonder if Lamb would have been so honest had he written in the wake of Obama’s attempt to radically reinterpret the plain meaning of the FHA.
Lamb also makes a point that turns out to be essential to understanding the overreach of Obama’s AFFH. The Fair Housing Act does nothing whatever to promote “economic integration.” And as Lamb also notes, “No federal court has ever declared that the Fair Housing Act requires economic integration in housing.” Yet AFFH is precisely an attempt to create a de facto legal requirement for economic integration under the cover of the FHA.
Public commenters on the first draft of AFFH recognized this. They challenged AFFH on the ground that poverty is not a “protected class” under the Fair Housing Act. Here is how HUD replied to that challenge in the finalized AFFH regulation:
“ The focus and purpose of the AFH [Assessment of Fair Housing required under AFFH] is to identify, and to begin to overcome, the causes and contributing factors that deny or impede housing choice and access to opportunity based on race, color, religion, sex, national origin, familial status, and disability. In addition, a large body of research has consistently found that the problems associated with segregation are greatly exacerbated when combined with concentrated poverty. That is the legal basis and context for the examination of RCAPs/ECAPs [Racially and Ethnically Concentrated Areas of Poverty].”
This is an extraordinarily weak argument. First, it implicitly concedes that economic integration is not in fact mandated by FHA, but needs instead to be attached to the legally protected classes by academic studies showing that poverty is an aggravating factor in housing issues. But by that reasoning, Congress’s refusal to mandate a radical new policy of government-imposed economic integration becomes meaningless. By the reasoning adopted in AFFH, any law could be indefinitely extended to suit the tastes of scholars and bureaucrats, rather than democratically elected legislators.
The spurious claim by AFFH that the federal government is now legally obligated to impose economic integration on every locality in America leads to nonsensical results. In a 2015 Rasmussen poll, 83 percent of respondents said it was not the government’s job to diversify neighborhoods by income level, while only 8 percent said that this was an appropriate task for government. Yet now, the Obama administration has promulgated a rule that effectively adds the radical new principle of government-imposed economic integration to law, when nothing of the sort appeared in the original FHA, and the public to this day overwhelmingly opposes the idea. AFFH effectively nullifies the very idea of legislative democracy.
Advocates who falsely read a policy of racial and ethnic quotas and forced economic integration back into FHA also like to quote FHA co-sponsor Sen. Walter Mondale, who said that the reach of the proposed law was to replace “ghettos by truly integrated and balanced living patterns.”
This proves nothing. Public debate over the original FHA was driven above all by the bill’s main advocate, President Lyndon Johnson. And Johnson continually made clear his belief that it was overt housing discrimination that had bottled up America’s minorities in sub-standard housing. Johnson wanted “integrated and balanced living patterns” too, but his point was that the right way to get there was by banning discrimination. Lamb’s study makes it clear that, “Johnson’s entire effort focused on nondiscrimination in urban housing,” and was not at all about pressing suburbs to take high-density low-income housing (even though Lamb himself strongly favors imposing such policies on suburbia).
In short, the claim that President Obama’s AFFH does nothing more than elaborate on obligations already implicit in the Fair Housing Act of 1968 is false. On the contrary, AFFH is an attempt to radically reinterpret FHA by creating a basis for de facto federal control of suburban zoning and planning, and a mandate for economic integration that exists nowhere in the original Fair Housing Act. AFFH is federal overreach on steroids, and deserves to be repealed and repudiated, not only on policy grounds but out of basic respect for the democratic process. Our constitutional system depends on the integrity of our laws. Once executive regulations effectively usurp the legislative power, Congress itself is rendered powerless, and our constitutional republic is lost.
— Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at comments.kurtz@nationalreview.com.

Attention America’s Suburbs: You Have Just Been Annexed

Attention America’s Suburbs: You Have Just Been Annexed

By Stanley Kurtz — July 20, 2015

It’s difficult to say what’s more striking about President Obama’s Affirmatively Furthering Fair Housing  (AFFH) regulation: its breathtaking radicalism, the refusal of the press to cover it, or its potential political ramifications. The danger AFFH poses to Democrats explains why the press barely mentions it. This lack of curiosity, in turn, explains why the revolutionary nature of the rule has not been properly understood. Ultimately, the regulation amounts to back-door annexation, a way of turning America’s suburbs into tributaries of nearby cities.

This has been Obama’s purpose from the start. In Spreading the Wealth: How Obama Is Robbing the Suburbs to Pay for the Cities, I explain how a young Barack Obama turned against the suburbs and threw in his lot with a group of Alinsky-style community organizers who blamed suburban tax-flight for urban decay. Their bible was Cities Without Suburbs, by former Albuquerque mayor David Rusk. Rusk, who works closely with Obama’s Alinskyite mentors and now advises the Obama administration, initially called on cities to annex their surrounding suburbs. When it became clear that outright annexation was a political non-starter, Rusk and his followers settled on a series of measures designed to achieve de facto annexation over time.
The plan has three elements: 1) Inhibit suburban growth, and when possible encourage suburban re-migration to cities. This can be achieved, for example, through regional growth boundaries (as in Portland), or by relative neglect of highway-building and repair in favor of public transportation. 2) Force the urban poor into the suburbs through the imposition of low-income housing quotas. 3) Institute “regional tax-base sharing,” where a state forces upper-middle-class suburbs to transfer tax revenue to nearby cities and less-well-off inner-ring suburbs (as in Minneapolis/St. Paul).
If you press suburbanites into cities, transfer urbanites to the suburbs, and redistribute suburban tax money to cities, you have effectively abolished the suburbs. For all practical purposes, the suburbs would then be co-opted into a single metropolitan region. Advocates of these policy prescriptions call themselves “regionalists.”
AFFH goes a long way toward achieving the regionalist program of Obama and his organizing mentors. In significant measure, the rule amounts to a de facto regional annexation of America’s suburbs. To see why, let’s have a look at the rule.
AFFH obligates any local jurisdiction that receives HUD funding to conduct a detailed analysis of its housing occupancy by race, ethnicity, national origin, English proficiency, and class (among other categories). Grantees must identify factors (such as zoning laws, public-housing admissions criteria, and “lack of regional collaboration”) that account for any imbalance in living patterns. Localities must also list “community assets” (such as quality schools, transportation hubs, parks, and jobs) and explain any disparities in access to such assets by race, ethnicity, national origin, English proficiency, class, and more. Localities must then develop a plan to remedy these imbalances, subject to approval by HUD.
By itself, this amounts to an extraordinary takeover of America’s cities and towns by the federal government. There is more, however.
AFFH obligates grantees to conduct all of these analyses at both the local and regional levels. In other words, it’s not enough for, say, Philadelphia’s “Mainline” Montgomery County suburbs to analyze their own populations by race, ethnicity, and class to determine whether there are any imbalances in where groups live, or in access to schools, parks, transportation, and jobs. Those suburbs are also obligated to compare their own housing situations to the Greater Philadelphia region as a whole.
So if some Montgomery County’s suburbs are predominantly upper-middle-class, white, and zoned for single-family housing, while the Philadelphia region as a whole is dotted with concentrations of less-well-off African Americans, Hispanics, or Asians, those suburbs could be obligated to nullify their zoning ordinances and build high-density, low-income housing at their own expense. At that point, those suburbs would have to direct advertising to potential minority occupants in the Greater Philadelphia region. Essentially, this is what HUD has imposed on Westchester County, New York, the most famous dry-run for AFFH.

In other words, by obligating all localities receiving HUD funding to compare their demographics to the region as a whole, AFFH effectively nullifies municipal boundaries. Even with no allegation or evidence of intentional discrimination, the mere existence of a demographic imbalance in the region as a whole must be remedied by a given suburb. Suburbs will literally be forced to import population from elsewhere, at their own expense and in violation of their own laws. In effect, suburbs will have been annexed by a city-dominated region, their laws suspended and their tax money transferred to erstwhile non-residents. And to make sure the new high-density housing developments are close to “community assets” such as schools, transportation, parks, and jobs, bedroom suburbs will be forced to develop mini-downtowns. In effect, they will become more like the cities their residents chose to leave in the first place.
It’s easy to miss the de facto absorption of local governments into their surrounding regions by AFFH, because the rule disguises it. AFFH does contain a provision that allows individual jurisdictions to formally join a regional consortium. Yet the rule leaves it up to local authorities to decide whether to enter regional groupings — or at least the rule appears to make participation in regional decision-making voluntary. In truth, however, just by obligating grantees to compare their housing to the demographics of the greater metropolitan area, and remedy any disparities, HUD has effectively turned every suburban jurisdiction into a helpless satellite of its nearby city and region.
We can see this, because the final version of AFFH includes much more than just the provisions of the rule itself. The final text of the regulation incorporates summaries of the many public comments on the preliminary rule, along with replies to those comments by HUD. This amounts to a running dialogue between leftist housing activists trying to make the rule more controlling, local bureaucrats overwhelmed by paperwork, a public outraged by federal overreach, and HUD itself.
Read carefully, the section of the rule on “Regional Collaboration and Regional Analysis” (especially pages 188–203), reveals one of AFFH’s key secrets: It doesn’t really matter whether a local government decides to formally join a regional consortium or not. HUD can effectively draft any suburb into its surrounding region, just by forcing it to compare its demographics with the metropolitan area as a whole.
At one point (pages 189–191), for example, commenters directly note that the obligation to compare local and regional data, and remedy any disparities, amounts to forcing a jurisdiction to ignore its own boundaries. Without contradicting this assertion, HUD then insists that all jurisdictions will have to engage in exactly such regional analysis.
Comments from leftist housing activists repeatedly call on HUD to pressure local jurisdictions into regional planning consortia. At every point, however, HUD declines to demand that local governments formally join such regional collaborations. Yet each time the issue comes up, HUD assures the housing activists that just by compelling local jurisdictions to compare their demographics with the region as a whole, suburbs will effectively be forced to address demographic disparities at the total metropolitan level (e.g., page 196).
When housing activists worry that a suburb with few poor or minority residents will argue that it has no need to develop low-income housing, HUD makes it clear that the regulation as written already effectively forces all suburbs to accommodate the needs of non-residents (pages 198–199). Again, HUD stresses that the mere obligation to analyze, compare, and remedy demographic disparities at the local and regional levels amounts to a kind of compulsory regionalism.
HUD’s language is coy and careful. The Obama administration clearly wants to avoid alarming local governments, so it underplays the extent to which they have been effectively dissolved and regionalized by AFFH. At the same time, HUD wants to tip off its leftist allies that this is exactly what has happened.
At one level, then, the apparatus of formal and voluntary collaboration in a regional consortium is a bit of a ruse. AFFH amounts to an annexation of suburbs by cities, whether the suburbs like it or not. Yet the formal, regional groupings enabled by the rule are far from harmless.
Comments from housing advocates (pages 194–197), for example, chide HUD for failing to include a mention in AFFH of the hundreds of federally-funded regional plans already being developed by leftist activists across the country (the “Sustainable Communities Regional Planning Grant” program). These plans entail far more than imposing low-income housing quotas on the suburbs. They embody the regionalist program of densifying housing in suburb and city alike, and they structure transportation spending in such a way as to make suburban living far less convenient and workable. HUD replies that these plans can indeed be used by regional consortia to fulfill their obligations under AFFH.
So a city could formally join with some less-well-off inner-ring suburbs and present one of these comprehensive regionalist dream-plans as the product of its consortium. At that point, HUD could pressure reluctant upper-middle-class suburbs to embrace the entire plan on pain of losing their federal funds. In this way, AFFH could force the full menu of regionalist policies—not just low-income housing quotas—onto the suburbs.
There are plenty of ways in which HUD can pressure a suburb to bend to its will. The techniques go far beyond threats to withhold federal funds. The recent Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project has opened the door to “disparate impact” suits against suburbs by HUD and private groups alike. That is, any demographic imbalance, whether intentional or not, can be treated by the courts as de facto discrimination.
Just by completing the obligatory demographic analysis demanded by AFFH—with HUD-provided data, and structured according to HUD requirements—a suburb could be handing the government evidence to be used in such a lawsuit. Worse, AFFH demands that suburbs account for their demographic disparities, and forces them to choose from a menu of HUD-provided explanations. So if a suburb follows HUD’s lead and formally attributes demographic “imbalances” to its zoning laws, the federal government has what amounts to a signed confession to present in a disparate-impact suit seeking to nullify local zoning regulations. With a (forced) paper “confession” from nearly every suburb in the country in hand, HUD can use the threat of lawsuits to press reluctant municipalities to buy into a regional consortium’s every plan.
Regionalists consider the entire city-suburb system bigoted and illegitimate, so there are few local governments that HUD would not be able to slap with a disparate-impact suit on regionalist premises. It’s unlikely that any suburb has a perfect demographic and “asset” balance in every category. All HUD has to do is decide which suburban governments it wants to lean on. With every locality vulnerable to a suit, every locality can be made to play the regionalist game.
Leftist housing activists worry that AFFH never specifies the penalties a suburb will face for imbalances in its housing patterns. These activists just don’t get it. A thoughtful reading of AFFH, including its extraordinary “dialogue” section, makes it clear that HUD can go after any suburb, any time it wants to. The controlling consideration will be politics. HUD has got to boil the frog slowly enough to prevent him from jumping.
It will take time for the truth to emerge. Just by issuing AFFH, the Obama administration has effectively annexed America’s suburbs to its cities. The old American practice of local self-rule is gone. We’ve switched over to a federally controlled regionalist system. Now it’s strictly a question of how obvious Obama and the Democrats want to make this change — and when they intend to bring the hammer down. The only thing that can restore local control is joint action by a Republican president and a Republican congress to rescind AFFH and restrict the reach of disparate impact litigation. We’ll know after November 8, 2016.
— Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at comments.kurtz@nationalreview.com

Attention America’s Suburbs: You Have Just Been Annexed

Attention America’s Suburbs: You Have Just Been Annexed

 by STANLEY KURTZ July 20, 2015 10:01 AM 

It’s difficult to say what’s more striking about President Obama’s Affirmatively Furthering Fair Housing (AFFH) regulation: its breathtaking radicalism, the refusal of the press to cover it, or its potential political ramifications. The danger AFFH poses to Democrats explains why the press barely mentions it. This lack of curiosity, in turn, explains why the revolutionary nature of the rule has not been properly understood. Ultimately, the regulation amounts to back-door annexation, a way of turning America’s suburbs into tributaries of nearby cities. 

This has been Obama’s purpose from the start. In Spreading the Wealth: How Obama Is Robbing the Suburbs to Pay for the Cities, I explain how a young Barack Obama turned against the suburbs and threw in his lot with a group of Alinsky-style community organizers who blamed suburban tax-flight for urban decay. Their bible was Cities Without Suburbs, by former Albuquerque mayor David Rusk. Rusk, who works closely with Obama’s Alinskyite mentors and now advises the Obama administration, initially called on cities to annex their surrounding suburbs. When it became clear that outright annexation was a political non-starter, Rusk and his followers settled on a series of measures designed to achieve de facto annexation over time. 

The plan has three elements: 1) Inhibit suburban growth, and when possible encourage suburban re-migration to cities. This can be achieved, for example, through regional growth boundaries (as in Portland), or by relative neglect of highway-building and repair in favor of public transportation. 2) Force the urban poor into the suburbs through the imposition of low-income housing quotas. 3) Institute “regional tax-base sharing,” where a state forces upper-middle-class suburbs to transfer tax revenue to nearby cities and less-well-off inner-ring suburbs (as in Minneapolis/St. Paul). 

If you press suburbanites into cities, transfer urbanites to the suburbs, and redistribute suburban tax money to cities, you have effectively abolished the suburbs. For all practical purposes, the suburbs would then be co-opted into a single metropolitan region. Advocates of these policy prescriptions call themselves “regionalists.” AFFH goes a long way toward achieving the regionalist program of Obama and his organizing mentors. In significant measure, the rule amounts to a de facto regional annexation of America’s suburbs. To see why, let’s have a look at the rule.

 AFFH obligates any local jurisdiction that receives HUD funding to conduct a detailed analysis of its housing occupancy by race, ethnicity, national origin, English proficiency, and class (among other categories). Grantees must identify factors (such as zoning laws, public-housing admissions criteria, and “lack of regional collaboration”) that account for any imbalance in living patterns. Localities must also list “community assets” (such as quality schools, transportation hubs, parks, and jobs) and explain any disparities in access to such assets by race, ethnicity, national origin, English proficiency, class, and more. Localities must then develop a plan to remedy these imbalances, subject to approval by HUD. 

By itself, this amounts to an extraordinary takeover of America’s cities and towns by the federal government. There is more, however. 

AFFH obligates grantees to conduct all of these analyses at both the local and regional levels. In other words, it’s not enough for, say, Philadelphia’s “Mainline” Montgomery County suburbs to analyze their own populations by race, ethnicity, and class to determine whether there are any imbalances in where groups live, or in access to schools, parks, transportation, and jobs. Those suburbs are also obligated to compare their own housing situations to the Greater Philadelphia region as a whole. 

So if some Montgomery County’s suburbs are predominantly upper-middle-class, white, and zoned for single-family housing, while the Philadelphia region as a whole is dotted with concentrations of less-well-off African Americans, Hispanics, or Asians, those suburbs could be obligated to nullify their zoning ordinances and build high-density, low-income housing at their own expense. At that point, those suburbs would have to direct advertising to potential minority occupants in the Greater Philadelphia region. Essentially, this is what HUD has imposed on Westchester County, New York, the most famous dry-run for AFFH. 

In other words, by obligating all localities receiving HUD funding to compare their demographics to the region as a whole, AFFH effectively nullifies municipal boundaries. Even with no allegation or evidence of intentional discrimination, the mere existence of a demographic imbalance in the region as a whole must be remedied by a given suburb. Suburbs will literally be forced to import population from elsewhere, at their own expense and in violation of their own laws. In effect, suburbs will have been annexed by a city-dominated region, their laws suspended and their tax money transferred to erstwhile non-residents. And to make sure the new high-density housing developments are close to “community assets” such as schools, transportation, parks, and jobs, bedroom suburbs will be forced to develop mini-downtowns. In effect, they will become more like the cities their residents chose to leave in the first place. 

It’s easy to miss the de facto absorption of local governments into their surrounding regions by AFFH, because the rule disguises it. AFFH does contain a provision that allows individual jurisdictions to formally join a regional consortium. Yet the rule leaves it up to local authorities to decide whether to enter regional groupings — or at least the rule appears to make participation in regional decision-making voluntary. In truth, however, just by obligating grantees to compare their housing to the demographics of the greater metropolitan area, and remedy any disparities, HUD has effectively turned every suburban jurisdiction into a helpless satellite of its nearby city and region.

 We can see this, because the final version of AFFH includes much more than just the provisions of the rule itself. The final text of the regulation incorporates summaries of the many public comments on the preliminary rule, along with replies to those comments by HUD. This amounts to a running dialogue between leftist housing activists trying to make the rule more controlling, local bureaucrats overwhelmed by paperwork, a public outraged by federal overreach, and HUD itself. 

Read carefully, the section of the rule on “Regional Collaboration and Regional Analysis” (especially pages 188–203), reveals one of AFFH’s key secrets: It doesn’t really matter whether a local government decides to formally join a regional consortium or not. HUD can effectively draft any suburb into its surrounding region, just by forcing it to compare its demographics with the metropolitan area as a whole. 

At one point (pages 189–191), for example, commenters directly note that the obligation to compare local and regional data, and remedy any disparities, amounts to forcing a jurisdiction to ignore its own boundaries. Without contradicting this assertion, HUD then insists that all jurisdictions will have to engage in exactly such regional analysis.

 Comments from leftist housing activists repeatedly call on HUD to pressure local jurisdictions into regional planning consortia. At every point, however, HUD declines to demand that local governments formally join such regional collaborations. Yet each time the issue comes up, HUD assures the housing activists that just by compelling local jurisdictions to compare their demographics with the region as a whole, suburbs will effectively be forced to address demographic disparities at the total metropolitan level (e.g., page 196). 

When housing activists worry that a suburb with few poor or minority residents will argue that it has no need to develop low-income housing, HUD makes it clear that the regulation as written already effectively forces all suburbs to accommodate the needs of non-residents (pages 198–199). Again, HUD stresses that the mere obligation to analyze, compare, and remedy demographic disparities at the local and regional levels amounts to a kind of compulsory regionalism. 

HUD’s language is coy and careful. The Obama administration clearly wants to avoid alarming local governments, so it underplays the extent to which they have been effectively dissolved and regionalized by AFFH. At the same time, HUD wants to tip off its leftist allies that this is exactly what has happened. 

At one level, then, the apparatus of formal and voluntary collaboration in a regional consortium is a bit of a ruse. AFFH amounts to an annexation of suburbs by cities, whether the suburbs like it or not. Yet the formal, regional groupings enabled by the rule are far from harmless. 

Comments from housing advocates (pages 194–197), for example, chide HUD for failing to include a mention in AFFH of the hundreds of federally-funded regional plans already being developed by leftist activists across the country (the “Sustainable Communities Regional Planning Grant” program). These plans entail far more than imposing low-income housing quotas on the suburbs. They embody the regionalist program of densifying housing in suburb and city alike, and they structure transportation spending in such a way as to make suburban living far less convenient and workable. HUD replies that these plans can indeed be used by regional consortia to fulfill their obligations under AFFH. 

So a city could formally join with some less-well-off inner-ring suburbs and present one of these comprehensive regionalist dream-plans as the product of its consortium. At that point, HUD could pressure reluctant upper-middle-class suburbs to embrace the entire plan on pain of losing their federal funds. In this way, AFFH could force the full menu of regionalist policies—not just low-income housing quotas—onto the suburbs. 

There are plenty of ways in which HUD can pressure a suburb to bend to its will. The techniques go far beyond threats to withhold federal funds. The recent Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project has opened the door to “disparate impact” suits against suburbs by HUD and private groups alike. That is, any demographic imbalance, whether intentional or not, can be treated by the courts as de facto discrimination. 

Just by completing the obligatory demographic analysis demanded by AFFH—with HUD-provided data, and structured according to HUD requirements—a suburb could be handing the government evidence to be used in such a lawsuit. Worse, AFFH demands that suburbs account for their demographic disparities, and forces them to choose from a menu of HUD-provided explanations. So if a suburb follows HUD’s lead and formally attributes demographic “imbalances” to its zoning laws, the federal government has what amounts to a signed confession to present in a disparate-impact suit seeking to nullify local zoning regulations. With a (forced) paper “confession” from nearly every suburb in the country in hand, HUD can use the threat of lawsuits to press reluctant municipalities to buy into a regional consortium’s every plan. 

Regionalists consider the entire city-suburb system bigoted and illegitimate, so there are few local governments that HUD would not be able to slap with a disparate-impact suit on regionalist premises. It’s unlikely that any suburb has a perfect demographic and “asset” balance in every category. All HUD has to do is decide which suburban governments it wants to lean on. With every locality vulnerable to a suit, every locality can be made to play the regionalist game. 

Leftist housing activists worry that AFFH never specifies the penalties a suburb will face for imbalances in its housing patterns. These activists just don’t get it. A thoughtful reading of AFFH, including its extraordinary “dialogue” section, makes it clear that HUD can go after any suburb, any time it wants to. The controlling consideration will be politics. HUD has got to boil the frog slowly enough to prevent him from jumping. 

It will take time for the truth to emerge. Just by issuing AFFH, the Obama administration has effectively annexed America’s suburbs to its cities. The old American practice of local self-rule is gone. We’ve switched over to a federally controlled regionalist system. Now it’s strictly a question of how obvious Obama and the Democrats want to make this change — and when they intend to bring the hammer down. The only thing that can restore local control is joint action by a Republican president and a Republican congress to rescind AFFH and restrict the reach of disparate impact litigation. We’ll know after November 8, 2016. — Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at comments.kurtz@nationalreview.com

Read more at: http://www.nationalreview.com/corner/421389/attention-americas-suburbs-you-have-just-been-annexed-stanley-kurtz

Massive Government Overreach: Obama’s AFFH Rule Is Out Under new management?

Massive Government Overreach: Obama’s AFFH Rule Is Out Under new management?

by STANLEY KURTZ July 8, 2015 10:47 AM Today, HUD Secretary Julian Castro announced the finalization of the Obama administration’s Affirmatively Furthering Fair Housing Rule. A front-page article preemptively defending the move appears in today’s Washington Post. The final rule is 377 pages, vastly longer than the preliminary version of the rule promulgated in 2013. 

AFFH is easily one of President Obama’s most radical initiatives, on a par with Obamacare in its transformative potential. In effect, AFFH 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. Not only the policy but the political implications are immense — at the presidential, congressional, state, and local levels. 

It is a scandal that the mainstream press has largely refused to report on AFFH until the day of its final release. The rule has been out in preliminary form for two years, and well before that the Obama administration’s transformative aims in urban/suburban policy were evident. 

Three years ago, when I wrote about Obama’s policy blueprint in Spreading the Wealth: How Obama Is Robbing the Suburbs to Pay for the Cities, the administration’s efforts to keep this issue under the radar were evident. Only last month, an admission of the stealth relied on by advocates to advance this initiative was caught on video. 

Obama has downplayed his policy goals in this area and delayed the finalization of AFFH for years, because he understands how politically explosive this rule is. Once the true implications of AFFH are understood, Americans will rebel. The only prospect for successful imposition is a frog-boiling strategy of gradual intensification. The last day the frog will be able to jump is Tuesday, November 8, 2016. 

Fundamentally, AFFH is an attempt to achieve economic integration. Race and ethnicity are being used as proxies for class, since these are the only hooks for social engineering provided by the Fair Housing Act of 1968. Like AFFH itself, today’s Washington Post piece blurs the distinction between race and class, conflating the persistence of “concentrated poverty” with housing discrimination by race. Not being able to afford a freestanding house in a bedroom suburb is no proof of racial discrimination. Erstwhile urbanites have been moving to rustic and spacious suburbs since Cicero built his villa outside Rome. Even in a monoracial and mono-ethnic world, suburbanites would zone to set limits on dense development. 

Emily Badger’s piece in today’s Washington Post focuses on race, but the real story of AFFH is the attempt to force integration by class, to densify development in American suburbs and cities, and to undo America’s system of local government and replace it with a “regional” alternative that turns suburbs into helpless satellites of large cities. Once HUD gets its hooks into a municipality, no policy area is safe. Zoning, transportation, education, all of it risks slipping into the control of the federal government and the new, unelected regional bodies the feds will empower. Over time, AFFH could spell the end of the local democracy that Alexis de Tocqueville rightly saw as the foundation of America’s liberty and distinctiveness. 

At this point, municipalities across the country need to seriously consider refraining from applying for Community Development Block Grants and other grant programs sponsored by HUD. Take one dollar of HUD money and you will be forced to submit to its demands, which can reach far beyond housing. Unfortunately, this is a highly imperfect solution, and not only because municipalities would be surrendering money taxed from their citizens’ pockets. The recent Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project has provided the federal government with a second club to use against municipalities seeking to escape HUD control. (See my piece on Inclusive Communities in the latest issue of National Review.) Ultimately, only a Republican president acting in concert with a Republican Congress can stymie AFFH and undo the damage of the Supreme Court’s recent housing decision. 

This brings us to politics. As noted, AFFH is a largely unacknowledged attempt to force economic integration on every neighborhood in America. Yet in a recent Rasmussen poll, 83 percent of respondents said it was not the government’s job to diversify neighborhoods by income level, while only 8 percent say that this is an appropriate task for government. Now you know why the Obama administration and a compliant press corps have kept this initiative quiet. 

It will take time to collect the data on which HUD’s new demands for local governments all over America will be based. While important enforcement will begin under the Obama administration, the major impact of AFFH will come under President Hillary Clinton, should she be elected. And Obama’s AFFH enforcer, Julian Castro, is widely touted as a likely vice-presidential running mate for Hillary. That means AFFH is going to be an issue in the next presidential campaign. 

And the political implications go deeper still, to every level of government. Westchester County, New York, where AFFH has had a dry run of sorts, is now administered by Republican county executive Robert Astorino. Many forget that before the Obama administration tried to force Westchester County to cast aside its own zoning laws and build high-density, low-income housing at its own expense, Westchester was a liberal Democratic county run by liberal Democrats. After all, this is where Bill and Hillary Clinton live. At the local level, the Obama administration drove Westchester into the arms of the Republicans. The same thing could happen nationally, at every political level. But only if the frog wakes up and jumps by November of 2016. Even with AFFH now public, the Obama administration and the press corps will do everything in their power to obscure the real issues at stake in the massive AFFH power-grab. Don’t let that happen. — Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at com

Read more at: http://www.nationalreview.com/corner/420896/massive-government-overreach-obamas-affh-rule-out-stanley-kurtz