Fair Housing and the Federal Executive

Today's decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. "acknowledges the Fair Housing Act's continuing role in moving the Nation toward a more integrated society."  That requires, the Court held in an opinion by Justice Kennedy, recognizing disparate impact liability under the FHA. 

The Court thus joined the Secretary of Housing and Urban Development, who had already interpreted the FHA to encompass disparate impact.  HUD's regulation, as Justice Kennedy noted, had influenced the court of appeals in Texas Department.  Going forward HUD will continue to play a role in shaping disparate impact law under the FHA.  All of which raises a question I've written about before:  What role does the Executive Branch have in shaping property lawmaking?

The question may seem a strange one.  We don't usually think of the federal Executive when we think about property lawmaking.  But we should.  Why?  Look no farther than the three opinions in Texas Department.  Each acknowledges the Executive's role and has a different view of it. 

I begin with footnote 4 of Justice Thomas's dissenting opinion.  As far as I can tell, the footnote aims to impeach "[e]fforts by Executive Branch officials to influence this Court's disparate-impact jurisprudence" and, by extension, the Court's interpretation of the FHA.  Justice Thomas summarizes a joint congressional staff report that alleged the DOJ secretly convinced the City of St. Paul, Minnesota to voluntarily dismiss Magner v. Gallagher, 564 U.S. __ (2011), which presented the same question about the FHA the Court decided today.  Footnote 4 goes on to say, "just nine days after we granted a writ of certiorari in Magner, and before its dismissal, the Department of Housing and Urban Development proposed the disparate-impact regulation at issue in this case," the implication being, I think, that proposing the rule was also unseemly.   

Not all efforts to influence the Court's disparate-impact jurisprudence are equally unseemly, however, given that Justice Thomas joined Justice Alito's dissenting opinion, which made much of the Executive Branch's views of the FHA in 1988.  As Justice Alito explains, "the Solicitor General and the Court place heavy reliance" on 1988 amendments to the FHA, which the Court treat as "crucial" evidence that the FHA authorizes disparate-impact claims.  As the Court points out, "all nine Courts of Appeal to have addressed the question" by 1988 "had concluded the Fair Housing Act encompassed disparate-impact claims."

In response, Justice Alito marshals a "fact" that he thinks is "fatal to any notion that Congress implicitly ratified disparate impact in 1988."  The fact?  "Shortly before the 1988 amendments were adopted, the United States formally argued in this Court that the FHA prohibits only intentional discrimination."  The Executive Branch's "considered and public view that [the appellate courts'] decisions were wrong" defeat any inference that Congress ratified those decisions.  Moreover, "when he signed the [1988] amendments," President Reagan "disapproved of disparate-impact liability."  How then, Justice Alito asks, can we now interpret the 1988 amendments to approve of the same? 

For the majority, President Johnson's actions, not President's Reagan's, provide important context for interpreting the FHA.  Justice Kennedy explains:  "The mid-1960's was a period of considerable social unrest; and, in response, President Lyndon Johnson established the National Advisory Commission on Civil Disorders, commonly known as the Kerner Commission."  The Kerner Commission found that "residential segregation and unequal housing and economic conditions in the inner cities [were] significant, underlying causes of the social unrest" and recommended "'a comprehensive and enforceable open-occupancy law.'"  (It's important to note that President Johnson convened the commission but ultimately didn't fight for adoption of its recommendations.)  Following Dr. King's assassination in Memphis in 1968, "Congress responded by adopting the Kerner Commission's recommendation and passing the Fair Housing Act." And, the Court concludes on the last page of its opinion, "[t]he FHA must play an important part in avoiding the Kerner Commission's grim prophecy that '[o]ur Nation is moving toward two societies, one black, one white --- separate and unequal.'"  

The lesson here may be best captured by a sentence buried in Justice Kennedy's opinion:  "The availability of disparate-impact liability . . . has allowed private developers to vindicate the FHA's objectives and to protect their property rights . . . ."  Federal regulation and property rights aren't simply opposed.  Regulation may be necessary to protect property rights.  And, if that's correct, then it shouldn't be surprising to see the federal executive appear in a story --- or, in the case of Texas Department, three different stories --- about property lawmaking.