Over the past few years, the Supreme Court has developed several doctrines that empower judges to throw out regulatory actions with which they disagree. These decisions, most notably the abandonment of Chevron deference in Loper Bright, represent a fundamental shift in both political and economic power. They also threaten to undermine the use of administrative rulemaking to promote social justice. Indeed, in the housing context, some have wondered whether major regulations are even possible in a post-Chevron world. In this brief post, I explore two ways in which these doctrinal developments threaten existing administrative housing efforts: the mandate to achieve fair housing, and the ability to provide affordable rental housing to disadvantaged families.
Affirmatively Furthering Fair Housing
Probably the only mechanism in federal law that could force or promote residential integration directly is an often-forgotten provision of the federal Fair Housing Act of 1968. 42 U.S.C. § 3608(d) mandates that “[a]ll executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any Federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further” fair housing and shall cooperate with the Secretary of HUD in this effort. Likewise, the Secretary of HUD must “administer the programs and activities relating to housing and urban development in a manner affirmatively to further” fair housing. The mandate is usually known as AFFH, or affirmatively furthering fair housing.
The year after the Fair Housing Act was adopted, HUD Secretary George Romney attempted to fulfill the AFFH mandate and promote integrationist policies by stripping federal funds from communities that refused to integrate. However, his initiative was shut down in 1972 by President Nixon, and the mandate was generally ignored or unenforced for the next four decades. The Clinton Administration, for instance, required jurisdictions to create an Analysis of Impediments, in which they analyzed barriers to fair housing choice and made a record of them, but HUD did not enforce any requirement to take steps to address the barriers.
In 2010, however, the Anti-Discrimination Center of New York successfully sued Westchester County under the False Claims Act, alleging that the county had falsely certified that it was affirmatively furthering fair housing. As outlined in the lawsuit, the county remained largely racially segregated and, by restricting the construction of affordable housing, the county excluded lower-income residents, who are disproportionately people of color.
During this same period, the Obama Administration began to enforce AFFH and, in 2014, I was appointed Special Policy Advisor to the Office of Fair Housing and Equal Opportunity, where I worked with the team of agency officials that published an AFFH rule in 2015. The rule required jurisdictions to analyze data that reflected barriers to fair housing choice with an assessment tool and to complete an Assessment of Fair Housing that would inform their use of Community Development Block Grant funds and other initiatives. Moreover, the federal government withheld funds from local government grantees that were engaged in housing discrimination for the first time since 1972: HUD withheld funds from Westchester County after they refused to comply with the settlement terms of the discrimination lawsuit, and from Joliet, Illinois, based on its plan to demolish a federally subsidized apartment complex with mostly Black residents.
After the first Trump administration quickly pulled back these efforts, the Biden administration restored the Obama administration’s AFFH regulations and, in February 2023, issued an AFFH rule that simplifies the fair housing analysis, requires more community engagement, and added a requirement to complete an Equity Plan that would hold jurisdictions accountable for taking steps to address the barriers. Unfortunately, the rule did not make it across the finish line before noon on January 20, 2025 and, predictably, the second Trump administration eliminated the proposed rule a month into the president’s second term.
As this brief history shows, the AFFH mandate has always been hostage to the political winds of different administrations. Yet recent doctrinal developments place it in even greater jeopardy. Last summer, in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the longstanding Chevron doctrine, which required courts to defer to an agency’s reasonable interpretation of ambiguous provisions in statues. Without such deference, courts are now directed to use their own independent judgment to interpret the meaning of such statutes. As a result, judges who are politically and ideologically opposed to fair housing regulations now have the power to intervene to block future administrations from pursuing such policies, if they disagree with the agency’s interpretation of the statute. Rather than waiting for their chance to return to the White House, opponents of regulation that furthers housing justice can quickly dispatch such regulations by bringing court challenges, including by filing cases in districts to increase their chances of having the case assigned to a judge that will support their position – a practice known as “judge shopping.”
Yet eliminating Chevron deference is only part of a broader project to undermine the administrative state, the executive’s power to determine the meaning of ambiguous statutory mandates, and the expertise of career senior federal officials. Another, perhaps more important development is the rise of the so-called Major Questions Doctrine. The Court used the phrase “major questions doctrine” for the first time in West Virginia v. Environmental Protection Agency (EPA) in 2022, but the Court first introduced the concept in FDA v. Brown & Williamson Tobacco in 2000. In a case involving a challenge to the FDA’s authority to regulate tobacco products, the Court noted that “extraordinary cases” may create “reason to hesitate before concluding that Congress has intended . . . an implicit delegation” of authority to an agency. According to the Court, those cases require an analysis outside of the Chevron framework. So, the major questions doctrine, from the beginning, has been another way to avoid deference to federal agencies.
Under the composition of the current Court, this doctrine may become a new basis for limiting the reach of statutes, under the guise of “deferring” to congressional intent. While the Court in Brown & Williamson Tobacco did not lay out an explicit framework for determining when a challenge should fall under the extraordinary cases category, it explained that the issue’s statutory history, the “breadth of the authority” asserted, and the “economic and political significance” of the issue required the Court to defer to Congress rather than the agency. The result, however, was deference to the Court’s own gloss on what Congress meant, not necessarily tethered to the text, purposes, and context in which the statute was adopted. The Court later explained in Utility Air Regulatory Group v. EPA that if an agency’s statutory interpretation would “bring about an enormous and transformative expansion” in that agency’s “regulatory authority,” it must demonstrate “clear congressional authorization” to do so. As a judge on the U.S. Court of the Appeals for the D.C. Circuit, Justice Brett Kavanaugh described the rule he will likely attempt to shift the Court towards succinctly and tellingly: “[i]f a statute only ambiguously supplies authority for the major rule, the rule is unlawful.”
This is terrible news for AFFH, as the recent iterations of the AFFH rule were nothing if not ambiguous and open-ended. As a matter of statutory interpretation, what does it mean to “affirmatively further” the purposes of the Fair Housing Act? How is the authority to impose an assessment of fair housing or an equity plan or the authority to strip a jurisdiction of federal funds specifically provided for in this language? It isn’t. The agency made a judgment call, after notice and comment rulemaking, that a certain approach was an appropriate way of furthering this goal.
While this exercise of discretion is anathema to the newly-formulated major questions doctrine, it is also a perfectly reasonable and democratically preferable approach to policymaking. At some point, a choice must be made: agency officials who have spent a lifetime enforcing a statute and political appointees who serve at the pleasure of the President and who are charged with carrying out that person’s priorities for the people have a better sense of the way to effectuate a broad mandate provided by Congress than unelected federal judges.
Housing-Related Rulemaking
In addition to AFFH mandate, Loper Bright may also affect federal rulemaking by HUD and the USDA designed to protect access to housing and affordability. Despite the dangerous de-regulatory environment created by the second Trump Administration, the effect of the end of Chevron will exist long after Trump is gone, casting a shadow over any future administration that attempts to enforce statutory mandates through regulation. For example, Section 515 Rural Rental Housing Loans, established by a provision of the Housing Act of 1949, are mortgages made to developers by USDA to provide affordable rental housing for very low-, low-, and moderate-income families, elderly persons, and persons with disabilities. Since the USDA established the program in 1962, Section 515 has financed more than 550,000 decent, safe, sanitary, and affordable homes, which are often the only rental housing of this kind in rural communities. At one time, there was a USDA Section 515 property in 87% of all counties in the United States.
Because the properties remain in the program only as long as they are subject to the long-term mortgage used to build them, developers looking to turn the properties into market-rate housing and increase rents will often pay off the mortgages and leave the program. At that point, this source of affordable rental housing goes away almost overnight. To prevent this result, the USDA has issued regulations to limit prepayment of these mortgages.
The issue, however, is that the authority to limit or regulate the terms of prepayment is not clearly provided for in the statute. And as the number of properties with maturing mortgages is set to skyrocket in 2028, from 149 in 2027 to 436 in 2028, this rule could soon come under fire. This effort to end the rule puts the remaining properties with mortgages that will mature later at risk and places added pressure on public housing authorities and nonprofits that want to acquire and preserve these units before they convert to market-rate housing, as the looming end of the regulation hangs over them like the sword of Damocles. It also makes it more difficult to obtain the financing to provide the capital improvements necessary to ensure that these communities continue to provide quality housing, as the cost of financing soars when the property becomes market rate and access to funding sources that support affordable housing developments dries up.
Similar developments are already taking place at other agencies. For example, in a Texas federal district court, a banking industry group recently challenged revisions to regulations under the Community Reinvestment Act issued by federal banking regulators in October 2023 that would have broadened access to retail lending and services in lower-income communities. In April 2024, the court enjoined the regulations from going into effect based on the court’s determination that the agency’s interpretation “clashe[d]” with the court’s interpretation of the Act.
Overturning Chevron has introduced legal uncertainty that hampers efforts to use administrative rulemaking to promote social justice. It also emboldens opponents of regulation to challenge regulations, effectively enlisting the courts in service of a broader de-regulatory project that is already underway.
