ACR Project and Manhattan Institute Comment on HUD’s Proposed Improvements to FHA Regulations
The ACR Project and Manhattan Institute jointly filed a comment with the U.S. Department of Housing and Urban Development (“HUD“). The comment supports a proposed rule addressing the place of disparate-impact liability (if any) under the Fair Housing Act (the “FHA“). You can read that comment, below.
The comment explains the adequacy of HUD’s proposed timeline for the submission of comments under the current circumstances. It then explores the substantive propriety of the proposed rule.
HUD’s proposal demonstrates real administrative humility. The proposal admits that, to date, SCOTUS reads disparate-impact liability into the FHA. HUD then recognizes that further interpretation of the statute is “best left to the courts.” HUD expressly notes Loper Bright leaves it “appropriate for the courts, not a Federal agency, to make determinations related to the interpretation of disparate[-]impact liability under the [FHA.]”
We make two additional points.
- A future court could interpret HUD’s proposal to revoke any endorsement of reading the FHA to impose disparate-impact liability. The merits–specifically, the FHA’s language and the Justices’ most recent interpretations of that same language elsewhere in the Civil Rights Act–justify such an inferred message.
- Reading the FHA to impose disparate-impact liability either yields absurd results or avoids them solely through arbitrariness and caprice.
HUD offers the proposed rule on a reasonable timetable. HUD demonstrates admirable modesty, adhering to the proper executive and administrative role. To the extent HUD’s proposed rule carries any substantive content, aside from its deferral to the courts on the final interpretation of the FHA, HUD grounds that content in recent legal developments and moves the agency away from a completely unworkable interpretation of the FHA.
We hope our comments assist HUD in assessing and improving the proposed rule before its final issuance.