Default Localism, Or: How Many Laboratories Does it Take to Make a Movement?

• Publication year: 2022

48 Creighton L. Rev. 461. DEFAULT LOCALISM, OR: HOW MANY LABORATORIES DOES IT TAKE TO MAKE A MOVEMENT?

DEFAULT LOCALISM, OR: HOW MANY LABORATORIES DOES IT TAKE TO MAKE A MOVEMENT?

Kathleen CLAUSSEN(fn*)

TABLE OF CONTENTS

I. SKETCHING THE PROBLEM: AN OVERVIEW OF THE ISSUES AND THE LITERATURE ......... 464

II. MENU FOR ADDRESSING OVERLAPPING SOVEREIGNTY .................................... 467

III. THE HISTORY OF THE FEDERAL HOUSING PROGRAM ......................................... 470

A. Creating a "National" Program .................. 470

B. Section 8 ........................................ 474

IV. ENDING DISCRIMINATION AT THE FEDERAL LEVEL ............................................. 477

A. Fair Housing and Civil Rights in Congress ....... 477

B. The Fair Housing Act, Its Progeny, and the First Retraction ................................. 479

C. Fighting Private Discrimination on the Basis of Section 8 Assistance ............................. 482

V. LOST IN TRANSITION: THE DISAPPEARANCE OF FEDERAL PROTECTION ....................... 487

VI. STATES AND LOCALITIES TAKE ACTION ........ 491

VII. A SCATTERED MAP ............................... 499

A. Patterns ........................................ 499

B. Guidance from the Courts ....................... 505

VIII. REALIZING A RESPONSIBILITY TO PROTECT. . . . 506

A. Politics or Principles ............................ 507

IX. CONCLUSION ..................................... 518

[Federal] legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them.

-Justice Joseph Bradley(fn1)

The first major housing legislation in the United States, the United States Housing Act of 1937,(fn2) part of the New Deal, was intended to remedy a severe housing shortage, particularly for the urban poor.(fn3) Though it was amended and supplemented nearly a hundred times in the next several decades, it created from its inception a system that implicated multiple levels of governance. Since that time, the federal government has developed public housing policy in the United States, while state and local governments have directed that policy's implementation. Taken together, the structural scheme for public housing has relied upon a high degree of cooperation among the governmental layers.(fn4)

Alongside the structure of the public housing program, federal, state, and local governments are all engaged in efforts to ensure access to these programs. The concept of "fair housing" entered poli-cymaking vocabulary in the late 1960s when legislators recognized integrated neighborhoods as critical components for ending race-based discrimination.(fn5) The Fair Housing Act,(fn6) which outlawed discrimination in both public and private housing, was the centerpiece of this discussion, though some states had their own fair housing laws far earlier.(fn7) Twenty years after the first Fair Housing Act came into effect, Congress passed the Fair Housing Amendments Act of 1988(fn8) to expand the scope of the original federal legislation. Like their struc-tural counterparts, these federal fair housing laws were promulgated at the national level but enforced in local settings.(fn9)

Despite the introduction of these major pieces of legislation designed to "provide . . . for fair housing throughout the United States,"(fn10) housing was not made available on an equal playing field for all in need. In 1974, Congress eliminated statutory language that had prohibited discrimination by public authorities against the recipients of housing subsidies.(fn11) Although that language was brought back in 1988 to give low-income residents equal access, in a repeat performance in 1998, Congress eliminated the protection a second time.(fn12)

This Article analyzes how public housing policy has developed in the United States by examining two areas within the public housing scheme: (1) the policies governing the provision and administration of low-income housing programming ("structural policies"); and, (2) the policies prohibiting discrimination by landlords against prospective low-income tenants ("antidiscrimination policies"). The former are well-entrenched policies through which the federal, state, and local governments regularly work together and communicate about the creation and implementation of structural policies. In that way, structural housing policies are the paradigm case for proponents of federalism as an effective, cooperative model for governance. Antidiscrimination policies, on the other hand, are both highly indeterminate in their form and difficult to characterize with respect to their interactions across federal and subfederal actors. As a general matter, since the New Deal, the federal government has promulgated structural policies, while states and localities have implemented them, whereas antidiscrimination policies have been initiated at all levels.(fn13)

This Article presents a data set that defies the models of federalism-old and new. The progressive federalists of today emphasize the potentialities of local governance.(fn14) After briefly reviewing the federalist models in menu-like fashion, I argue that policymakers addressing fair housing for people with low incomes, an area of unknown or overlapping sovereignty(fn15) open to local, state, and federal governance, have failed to maximize these potentialities. In so doing, the Article shifts the narrative from models to analyses for policymaking purposes. It has been acknowledged that multiplicity is part of federalism in which sometimes local communities and states compete and sometimes they cooperate; federalism produces dynamic and uneven results.(fn16) This Article asks what underlies these crescendos and diminuendos to push tendencies in one direction or the other. I invite further investigation as to the conditions that make areas of unknown sovereignty such as this nuanced discrimination ripe for social movements. While this could be another piece of scholarship to add to the many about federalism, or a lesser-read article about housing policy, instead, it contests the academic modelling practice and seeks to empower policymakers to explore the potentialities of federalism to achieve meaningful change.

I. SKETCHING THE PROBLEM: AN OVERVIEW OF THE ISSUES

A. TWO HOUSING POLICIES

The two sets of housing policies I delineate are distinct in both their entrenchment and their scale. Both are open for legislators at the local, state, and national levels to create laws that provide or en-able access to fair housing. These areas of undefined sovereignty(fn17) are ripe for study to help policymakers conceptualize how to maximize the potential of federalism to deliver a coherent and productive outcome to constituents.

Structural housing policy and antidiscrimination housing statutes are situated in different sections of the United States Code, though there is no obvious reason that they would need to be treated separately. Their respective locations in the Code are more likely the result of different framing and their introductions at different moments in time as I show below.(fn18) In fact, the early structural policy for low-income housing included some antidiscrimination language prohibiting government authorities from discriminating against families on the basis of their receipt of public assistance.(fn19) That law was replaced with a statute that lacked the same protection in 1974.(fn20) Since that time, the federal government has continued to support low-income housing through elaborate funding mechanisms and complex tri-level schemes implicating federal, state, and local resources.(fn21) Antidiscrimination measures have remained outside the structural scheme, however. This Article asks why and how the antidiscrimination policies that have materialized have ricocheted across levels of government in contrast to their structural counterparts.

B. FEDERALISM THEORY AND PRACTICE

While I focus on how actors manage their overlapping sovereignty in the complex low-income housing system, my project also draws broader conclusions for other areas of overlapping sovereignty. The analysis undertaken here has relevance for practitioners and scholars seeking to understand how power is shared, developed, and divided among and between the federal government and the states and their political subdivisions by examining the contexts in which traditional models have been deployed. Federal and subfederal entities have ne-gotiated their shared power in such other areas as education and environmental protection, leading scholars to create descriptive labels and models for their interaction such as dialogic federalism, cooperative federalism, or polyphonic federalism. Commentators from inside and outside the law have relied on these descriptive and explanatory models along with metaphors like "marble cake federalism" or "picket fence federalism" to capture the interdependence among governing bodies.

The low-income housing policy struggles surface at the intersection of federalism and individual rights-two principal structural and substantive constitutional values. My focus on antidiscrimination...