Obama and Castro Begin Re-engineering Of American Neighborhoods

The AFFH rule “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,”

In announcing the newly finalized AFFH rule earlier this month, the Department of Housing and Urban Development claimed its statutory authority was found in the Fair Housing Act of 1968.

Consider the ridiculousness of a regulation that is purportedly designed to implement a statute passed by a Congress that convened 47 years ago—so long that not only is the President who signed the bill into law, Lyndon Johnson, long dead; all but three Senators and a handful of the members of the House of Representatives who voted for the bill are also now dead.

While there is, unfortunately, no statute of limitations on how long after a law is passed the Executive Branch can decided to promulgate a rule purportedly designed to implement the law, the lawfulness of such a regulation is defined by the process identified in theAdministrative Procedure Act of 1946, as subsequently interpreted by federal courts.

This is where the new AFFH rule goes from the merely ridiculous to the unlawful, and why HUD Secretary Castro waited for the cover of the Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. case in which the Supreme Court’s 5-to-4 decision “represents the triumph of an agency’s preferences over Congress’ enactment and of assumption over fact… by importing its disparate-impact scheme into yet another statute,” as Justice Thomas said in his dissent, before announcing the final rule this month. (emphasis added)

It will come as no surprise to SCOTUS watchers that Justices Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor ruled in the majority, while Justices Scalia, Alito, Thomas, and Roberts dissented.

The new AFFH rule is not based upon the letter of the law found in the Fair Housing Act of 1968, but instead upon a creative expansion of that law found in a 2010 GAO reportsubmitted in response to a request from a Rogues Gallery of far-left members of the House of Representatives that included now retired Rep. Barney Frank (D-MA), Rep. Maxine Waters (D-CA), Rep. Mel Watts (D-CA), Rep. Andre Carson (D-IN), Rep. Keith Ellison (D-MN), Rep. Emanuel Cleaver (D-MO), Rep. Rubén Hinojosa (D-AZ), Rep. Gwen Moore (D-WI), and Rep. Michael Capuano (D-MA).

Congress passed no legislation based upon the recommendations of this report. However, HUD, which as an executive cabinet is by law required to base proposed regulations on actual legislation, proposed and finalized rules based on recommendations made by an independent agency whose sole purpose is to provide advice to Congress on proposing new legislation and exercising oversight over existing legislation.

The confluence of a Supreme Court that decides it has the power to legislate, a pro-active politicized bureaucracy at HUD that is betting the court will help it end-run Congress, and a Congress that allows itself to be manipulated by allowing its own independent agency to usurp its legislative function confirms that the federal government in its entirety has now merely become yet another arm of the Democratic Party.