FAIR QUESTIONS, MAJOR ANSWERS: ROOTING FAIR HOUSING IN AN INCENTIVE-BASED APPROACH TO AVOID MAJOR QUESTIONS CONCERNS.

• Author: Jumper, Samantha

Introduction 506 I. Histories of Fair Housing and Major Questions 508 A. From Discrimination to Fair Housing 509 1. Federal Housing Legislation: A Historical Overview 510 2. Rule Changes, and Changes, and Changes 514 B. Questions about Major Questions 518 1. Non-Delegation Doctrine and Chevron Deference: Pre-2000 518 2. The Original Major Questions Doctrine: 2000-2021 521 3. Recent Major Developments: 2022 525 II. Answering the Major Questions 529 A. Understanding the Major Questions Doctrine 530 1. What Makes a Question Major? 531 a. Economic Impact 532 b. Agency History 533 c. Congressional Action or Inaction 534 2. How Clear is Clear Enough? 535 3. Taking Justice Gorsuch Seriously 538 B. Applying the Major Questions Doctrine to Affirmatively Furthering Fair Housing 540 INTRODUCTION

The United States is racially segregated. (1) The vast majority (81%) of metropolitan regions with populations over 200,000 are more segregated now than they were in 1990. (2) Only two of the 113 largest cities in the United States are racially integrated. (3) Compared to segregated white neighborhoods, segregated communities of color have higher poverty rates and political polarization, reduced home values, and lower rates of homeownership. (4) The Fair Housing Act of 1968 (FHA) outlawed housing discrimination, but had no way to undo the nation's decades of segregation. (5) In fact, 83% of neighborhoods that were subject to discriminatory federal lending practices in the 1930s remain highly segregated communities of color today. (6) The neighborhood a child grows up in impacts whether they will attend college, their access to medical care, and their future earning potential. (7) Black and Latino children raised in highly segregated communities of color will, as adults, earn thousands of dollars less a year than those raised in integrated and in white neighborhoods. (8) Integration benefits everyone, but is increasingly difficult to achieve. (9)

Fair housing advocates are attempting to address these issues but cannot singlehandedly resolve the long history of housing discrimination. (10) The only federal mechanism that could force or promote residential integration is an oft-forgotten provision in the FHA, (11) which states that federal agencies have a mandate to "affirmatively further" fair housing ("AFFH"). (12) The AFFH mandate was ignored and unenforced for decades, but it has received renewed attention from recent presidential administrations. (13) The Obama Administration began to enforce AFFH nearly 50 years after it was enacted; the Trump administration quickly pulled back these efforts; and then the Biden administration restored the Obama administration's AFFH regulations. (14) The current iteration of AFFH is not set in stone, and the newly established major questions doctrine presents a looming jurisprudential challenge. (15) Commentators are split on this issue, and it is unclear how the new doctrine will impact administrative regulations. (16) This Note explores whether courts can use the major questions doctrine to invalidate attempts to promote fair housing through rules promulgated under AFFH. This Note conducts extensive research into the considerations driving the doctrine and, for the first time, analyzes the major questions doctrine in the context of the AFFH mandate and current AFFH regulations. This Note addresses the options for revising current fair housing regulations to avoid the strict review associated with the doctrine and proposes that incentivizing fair housing planning is the most practical solution.

Part I first discusses a brief history of federal housing legislation and the social and political contexts underlying each phase of national housing law, culminating in the modern iteration of the AFFH mandate. (17) Part I then provides an overview of the judicial theories courts use when analyzing agency actions, specifically looking at the major questions doctrine. (18) Part II analyzes the recent developments in the U.S. Supreme Court's use of the major questions doctrine, along with analyzing whether AFFH poses a major question. (19) Part III proposes that rooting the AFFH regime in a purely incentive-based approach could avoid the potential threat of major questions, while noting that such a move could result in reduced fair housing efforts. (20)

1. HISTORIES OF FAIR HOUSING AND MAJOR QUESTIONS

   President Lyndon B. Johnson enacted the FHA in 1968 as part of the Civil Rights Act of 1968. (21) Meant to outlaw "housing discrimination and foster integration," (22) the FHA made it illegal for public and private actors to discriminate in the "sale or rental" or housing on the basis of "race, color, religion, or national origin," (23) and mandated that the recently-established (24) Department of Housing and Urban Development (HUD) Secretary "affirmatively... further" fair housing. (25) Congress established HUD as the proper agency (26) within the federal government to consider national housing and community concerns. (27) HUD is responsible for administering federal housing programs and enforcing the FHA. (28) Up until the 2010s, HUD's interpretation of the AFFH mandate resulted in very little enforcement action. (29) HUD's new interpretation of AFFH is more robust than its prior interpretation, but recent developments in the major questions doctrine could affect the validity of the new interpretation. (30)

   Section I.A discusses a history of federal housing legislation and the AFFH requirement, focusing on the sociopolitical contexts of each major regulatory regime change and the recent back-and-forth on permissible enforcement of AFFH. Section I.B provides an overview of judicial review of agency action and the evolution of the major questions doctrine.

   1. From Discrimination to Fair Housing

      Periods of severe economic distress have led Congress to enact legislation intended to improve housing conditions, first during the Great Depression and again during the civil rights movements. (31) Early legislation resulted in increased discrimination and segregation. (32) Congress addressed these issues with its civil rights legislation in the 1960s, but not all the congressionally enacted policies have been equally enforced, most notably the AFFH mandate. (33)

      1. Federal Housing Legislation: A Historical Overview

         The National Housing Act, passed in 1934, (34) created the Federal Housing Administration and charged it with the responsibility of "encourag[ing] improvement in housing standards and conditions" (35) and increasing the general housing supply. (36) Within a few years, the Federal Housing Administration improved housing conditions for millions of Americans, (37) but its policies entirely excluded people of color. (38) The Federal Housing Administration explicitly promoted segregation through discriminatory underwriting policies (39) or "redlining," and the subsidization of white-only planned communities. (40) Subsequent housing legislation continued to openly discriminate against people of color, leading to worsened segregation, housing instability, and unsafe conditions. (41)

         In response to the civil rights movements of the 1960s, the federal government enacted sweeping legislation in an effort to create racial equality. (42) The Housing and Urban Development Act of 1965, a part of this legislative movement, expanded and improved federal housing programs for low- and middle-income families and provided funding for urban renewal. (43) President Johnson described the legislation as "the single most important breakthrough in the last 40 years," (44) and a few weeks later established HUD to administer these housing and development programs. (45)

         In the 1960s, President Johnson repeatedly called for federal legislation barring housing discrimination. (46) Congress refused to act (47) until the 1968 assassination of Dr. Martin Luther King, Jr. and the subsequent mass social unrest. (48) President Johnson signed the Civil Rights Act of 1968 (49) a week after Dr. King's death, proclaiming that "fair housing for all... is now a part of the American way of life." (50) Title VIII of this Civil Rights Act, commonly known as the FHA, outlawed discrimination in the sale, rental, and financing of housing based on race, color, religion, and national origin. (51)

         The FHA not only barred housing discrimination, but also required that HUD and other federal agencies affirmatively further the purposes and policies of the FHA. (52) There are two "affirmatively furthering" sections of the FHA, (53) which are together known as the AFFH. (54) The first section mandates that the executive branch administer HUD related activities "in a manner affirmatively to further the purposes of this subchapter." (55) The FHA does not have a stated purpose, but the FHA's co-sponsor, Senator Walter F. Mondale, stated that its purpose was to replace segregated communities with "truly integrated and balanced living patterns." (56) The second "affirmatively furthering" section states that HUD must administer its "programs and activities... in a manner affirmatively to further the policies of this subchapter." (57) The policy section of the FHA declares that the United States policy is "to provide, within constitutional limitations, for fair housing throughout the United States." (58) The exact phrase "affirmatively furthering fair housing" does not, however, appear in the FHA. (59)

         Congress granted HUD broad discretion in administering the FHA and implementing the AFFH mandate. (60) Along with the AFFH mandates, Congress required that HUD (61) conduct studies on "the nature and extent of discriminatory housing practices," (62) publish reports and recommendations from these studies, (63) and "cooperate with and" (64) assist groups working to "prevent or eliminate discriminatory housing practices." (65) Congress did not, however, provide any details or guidance on how to fulfill the AFFH mandate, implicitly leaving the specifics and...