In January 2023, fair housing advocates got what they thought was exciting news: The Biden administration finally released a revamped Affirmatively Furthering Fair Housing (AFFH) rule. The new rule would not only direct jurisdictions receiving federal funding to actively seek methods for overcoming decades-old housing disparities, it would provide the framework and tools to help them do that. The public was given until early April 2023 to comment on the proposed rule, leading many to believe it would be finalized soon after.
“This administration on day one said it had a commitment to achieving racial equity and restoring critical fair housing rules,” says Nikitra Bailey, executive vice president of the National Fair Housing Alliance. “So we’re waiting with bated breath on the release of this rule.”
[RELATED SERIES: New AFFH Rules—What you Need to Know]
That wait has now stretched to more than 19 months, with no clear path to finalization. As of today, not only has AFFH not been finalized, the delay has made it vulnerable to future potentially serious legislative challenges that could have been avoided had Biden instructed the U.S. Department of Housing and Urban Development (HUD) to finalize the rule months ago.
“It’s really hard as an advocate in the fair housing space,” says Noëlle Porter, director of government affairs at the National Housing Law Project (NHLP), “to watch a president who staked his administration’s first four years on a return to equity and a focus on racial justice just sort of run scared from this highly technical rule that we think is so important to overcoming decades, hundreds of years, of racial injustice, specifically in our housing system.”
The ‘lookback’ period
There is a provision within a little-known but powerful statute called the Congressional Review Act that affects all rules finalized during any outgoing administration’s final months. The act requires all finalized rules be submitted to Congress. Each chamber gets 60 legislative days, excluding any days in recess, to consider the rule. During that period, either the House or Senate can issue a resolution of disapproval. If both chambers pass the resolution with a simple majority, the resolution is passed to the president, who can sign it and thereby nullify the rule, or veto it, leaving the rule intact.
However, because the act requires that all rules get a full 60 working days of congressional consideration, any rules finalized with fewer than 60 in-session days left before adjournment are transferred to the succeeding Congress, which gets 60 days into the next session to “look back” at the rule.
This provision was designed to prevent what is called “midnight rulemaking,” says Rob Randhava, senior policy counsel at The Leadership Conference on Civil and Human Rights, meaning the possibility that an outgoing administration would “load up rule after rule after rule and then tie down their successor or Congress” to enforcing them.
But, he notes, the provision could also affect good-faith rulemaking, such as AFFH. “If there’s a change in the administration,” he says, “Congress could vote on a resolution of disapproval next year . . . and if the president is [Donald] Trump, he would certainly sign it.”
While the exact date this year at which this provision kicked in is murky, even the latest estimates put the lookback period taking effect in mid-June—which means if the Biden administration finalizes AFFH now, it’s fair game for next year’s Congress.
Trump vs. AFFH
The Fair Housing Act of 1968 requires that all federal agencies “affirmatively further fair housing.” The Obama administration in 2015 was the first to actually put into effect rules that would implement that provision. Those rules placed requirements on HUD funding recipients to “proactively take meaningful actions to overcome patterns of segregation, promote fair housing choice, eliminate disparities in opportunities, and foster inclusive communities free from discrimination.” It also laid out planning, engagement, and reporting requirements to enforce that.
There are several reasons to believe AFFH would be especially at risk in another Trump presidency—16 reasons, to be exact. The Congressional Review Act “is a wonky tool that Congress used once in a while,” says Marne Marotta, the managing director at Arnold and Porter law offices, who’s written about the lookback period. “It wasn’t really used all that often, but it became a favorite tool for the Trump administration.”
Prior to 2017, Congress had successfully repealed just one final rule; the 115th Congress and Trump overturned 16 Obama-era final rules. “[The Trump administration was] very proud of the fact that they had the most Congressional Review Act resolutions passed,” Marotta says. “So I would say that they would look to use it for anything that they can” during a second term.
In fact, Trump already gutted AFFH once. At the beginning of his administration, he first directed then–HUD Secretary Ben Carson not to enforce it, leaving jurisdictions unsure how to follow it even when they wanted to. Then, on the 2020 campaign trail, Trump used it to stoke racist fears that low-income housing would destroy the suburbs and championed himself as a “suburban savior” by overturning it entirely.
[RELATED ARTICLE: AFFH’s Bumpy Road to Overcoming Segregation]
By the time he scrapped it, just two cities had participated in the process—New Orleans and Philadelphia—and only Philly had sent a completed report back to HUD. “So we really hadn’t had enough time to implement it,” Porter says. Now, she warns, if Biden fails to finalize it before leaving office and Trump is reelected, “then we really won’t have a shot at the apple for four years. And because this work has been so heavily interrupted already, we really obviously need our chance to get back at the wheel.”
Delaying its finalization by four years isn’t ideal, but Randhava says it’s possible moving too quickly could make things “even worse than that. When Congress [rescinds a rule], any administration in the future is prevented from issuing a ‘substantially similar rule,’” he says. “There are arguments about what exactly that means, but it’s not good.”
Marotta adds that because the Congressional Review Act was used so rarely prior to the Trump administration, no precedent exists around what “substantially similar” means.
“There just isn’t a bright line rule here,” she says. “The ‘substantially similar’ mandate doesn’t have a time limit. So, in theory, it can go in perpetuity. But since it hasn’t been tested, we’re just now seeing agencies grapple with that. And this is one of those rules where the agency is trying to figure out what to do with the ‘substantially similar’ part. I suspect that even if this rule became final . . . there’s probably a constituency out there that would try to challenge it, saying it’s substantially similar [to the overturned rule], even though the agency tried to make it not substantially similar.”
On the other hand, argues NHLP managing attorney Natalie Maxwell, “the current administration has made a commitment in its equity programs, has done a lot of work around building infrastructure in this country, which includes housing . . . [and] in order to make sure these investments in housing opportunities are felt by all communities, it’s really important that this rule be finalized.”
“In the case of AFFH, those who really want it gone are going to be a Republican-controlled House and Senate as well as a Republican presidency,” Porter says, meaning that “the only real threat of a full retraction of any final rule is a Trump presidency with a Trump-controlled House and Senate.”
Maxwell also stressed that, while “from a legal perspective, the rule is important,” AFFH is codified “in the Fair Housing Act . . . which means that the obligation to affirmatively further fair housing exists without the rule.”
Broad Support for Finalization
NHLP is among a varied group of 300-plus civil rights, housing justice, real estate, faith, and other professional organizations that released a joint letter in April to Biden urging immediate release of the finalized rule. Among the organizations that signed the letter are the National Association of Realtors, the National Low Income Housing Coalition, the Lutheran Metropolitan Ministry, and several disability rights groups.
“It’s rare that you see this combination of groups that have come together—you have civil rights organizations, housing policy organizations, faith organizations, and . . . environmental justice [leaders],” NFHA’s Bailey says. “That collaboration within the industry is a real unique, powerful coalition [that’s] seeking immediate release of the rule.”
This rule is our government’s most substantial effort to guide and support program participants in furthering fair housing. It closes the spaces where participants can hide when they are unable to show results . . .
Amalea Smirniotopoulos, Legal Defense Fund
“This rule is our government’s most substantial effort to guide and support program participants in furthering fair housing,” Amalea Smirniotopoulos, Legal Defense Fund (LDF) senior policy counsel and co-manager of LDF’s Equal Protection Initiative, wrote in an email. “It closes the spaces where participants can hide when they are unable to show results while opening up space for community-driven plans as well as data-driven advocacy.”
The organizations sent the letter several weeks before the lookback period began, hoping President Biden would have time to consider the broad coalition of support and get in under the wire, Bailey says. LDF and several other organizations also met with the White House to urge them to release the strongest rule possible. It hasn’t happened yet. (HUD didn’t reply to Shelterforce’s request for comment on the delay.)
One of the reasons supporters want to see the rule pushed through is so some real work on advancing fair housing can begin. Once finalized, implementing AFFH “will take some work,” says Marc Morial, president of the National Urban League, another of the letter’s cosigners.
“This is not a short-term thing where you just turn on the switch,” Morial says. “This is long term, and it will take time. It’s an exciting challenge and I welcome it.”
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2 thoughts on “Housing Equity in Limbo—Why Hasn’t Biden Finalized an Update to AFFH?”
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Strategy, folks, strategy. We’ve got to be focused on the long-term. Ssending the revived AFFH rule for Congressional review now would only help put Trump back in the White House which would be a mluti-generational disaster for fair housing. Sure, it would have been highly desirable for the rule to have been finalized a year or two ago, but that ship sailed long ago and we just have to live with it.
This past year I don’t know if Pres. Biden has kept the revised AFFH back for the reasons I’m about to give, but if he has, he’s finally being strategic and thinking about the long run, something we progressives rarely do., Issuing the rule now would only provide fresh fodder to the radical right that has kidnapped the GOP and released the kracken of white supremacy and segregation. Trump and his minions would use it to scare the hell out of suburbanites and raise the spector of “forced” integregration (as opposed to the real life forced segregation of the past 150 years), just as they did in Westchester County, NY a few years ago. It doesn’t matter that the revised AFFH rule is the right thing to do; it doesn’t matter that it is badly needed. Bringing it up now would generate more massive publicity against AFFH — just like it has in the past. I’ve got a huge collection of articles from the far right distorting AFFH beyond recognition, plus articles from the mainstream press that clearly did not understand AFFH at all.
All that matters right now is keeping the white supremacists out of the White House and from appointing more federal judges and Supreme Court justices who would, without a doubt, invalidate the AFFH rule and further cripple civil rights and fair housing statutes and enforcement mechanisms. Better to wait until the next term, to advance the revised AFFH rule — think long term.
My comment as a former Fair Housing professional-Director and current Montgomery County, MD civil rights advocate and professional EEO Specialist-federal contractor. First of all, thanks to Reporter Shelby R. King for writing this article and also to Daniel Lauber. You are both very smart/politically astute persons and an excellent Journalist.
I don’t know why President “Uncle Joe” Biden didn’t get to this critical issue years ago. Maybe, there were too many things on his plate or another political reason. I sure hope and don’t think that it was his apathy on this extremely important Housing Justice issue. The Affirmatively Furthering Fair Housing (AFFH) rule is more strategic and important than simply attempting to end housing segregation. The AFFH rule requires local Housing and Community Development Departments & HUD under the law and funding to take steps and document the actual progress of local jurisdictions and communities. That puts steps to end housing discrimination right beside the other priorities of: Developing Housing Infrastructure and Housing Support items, such as better Housing Inspectors, Affordable Housing Programs, Low-Income Housing programs, Rental and For Sale Programs for First-Time Home Buyers, and all of the housing services required in a local DHCD.
I see nothing wrong with reminding Vice-President Kamala Harris and the current Secretary of HUD of the need for a new AFFH during the Campaign. In this way we can simply remind people of the Strategic Need/Requirement of the AFFH Rule. Let Trump try to defend his Fair Housing record! Ha!