The game of ping-pong involving the Affirmatively Furthering Fair Housing rule continues as the new Trump Administration repeated its actions of 2020 and terminated the regulation.
This rule, which requires recipients of HUD funds to take proactive steps to combat segregation, promote fair housing choices, eliminate disparities, and foster inclusive communities, was first put into place in 2015 under President Obama.
In July 2020, then-Department of Housing and Urban Development Secretary Ben Carson said he was terminating and replacing the rule.
The volley then went to the Biden Administration, which restored the rule in June 2021 and then proposed a revamp of AFFH in January 2023.
In his announcement that again terminates the rule, recently confirmed HUD Secretary Scott Turner said the move reduces red tape and restores control to state and local governments.
“Terminating this rule restores trust in local communities and property owners, while protecting America’s suburbs and neighborhood integrity,” Turner said in a press release.
“By terminating the AFFH rule, localities will no longer be required to complete onerous paperwork and drain their budgets to comply with the extreme and restrictive demands made up by the federal government. This action also returns decisions on zoning, home building, transportation, and more to local leaders,” he said.
Turner claimed neighborhoods have been neglected or negatively impacted because of AFFH.
“Returning to the law as written will advance market-driven development and allow American neighborhoods to flourish,” he said.
Going forward, for sufficient compliance with the Fair Housing Act, all a locality needs to do is to certify that it has affirmatively furthered fair housing.
That Turner withdrew the rule wasn’t surprising, said Len Wolfson, a former HUD deputy secretary for Congressional relations and acting Federal Housing Administration commissioner in the first Trump administration.
“This rule has never had anything to do with building affordable housing or increasing housing supply,” said Wolfson, currently a partner at government affairs firm FedHall. “It was really nothing more than a burdensome regulation on localities.”
It was never fully implemented so its withdrawal has no practical impact except for eliminating a burdensome paperwork requirement, he said.
Even the Biden Administration felt the original Obama rule was unworkable, which is why it did the reproposal, although that was never finalized and then withdrawn before he left office, Wolfson said.
It might not be as simple as the stroke of a pen to cancel AFFH, said Robert Maddox, a partner and the practice group chair of the Banking & Financial Services Practice Group at Bradley Arant Boult Cummings.
“The obligation to ‘affirmatively further fair housing’ as embodied in the Fair Housing Act, the genesis of the Civil Rights Act of 1968,” Maddox said in an emailed statement. “That historic law prohibits discrimination in housing related activities but also directs federal agencies and those who receive funding from federal agencies to affirmatively promote fair housing — that is not and cannot be undone by HUD’s recent withdrawal of the rule.”
Earlier on Wednesday, the National Multi-Housing Council and the National Apartment Association put out research that said among the effects of “overregulation” were costs for affordable housing, which would discourage new construction.
The joint press release did not mention the AFFH, but the theme is in line with Turner’s statement.
“At a time that demands bold action on housing affordability, policymakers must reject damaging regulations and instead turn to sustainable solutions that lower costs and increase housing supply,” said NAA President and CEO Bob Pinnegar.
The report was prepared by researchers from Metrosight using NAA data on operating income and expenses.
“The debate over housing policy and affordability has never been more important than it is today,” said NMHC President Sharon Wilson Géno. “This new research on how regulations can drive up housing costs, discourage investment needed to build housing and ultimately negatively affect housing affordability and opportunity will help inform the discussion and educate lawmakers at all levels of government on how policies they propose may have unintended consequences.”
The Mortgage Bankers Association, in an emailed statement, noted that it “is committed to working with policymakers and our members to strengthen the housing finance system to deliver fair, sustainable, and responsible financing to meet the needs of today’s homeowners and renters.”
State and local officials understand their communities best and as long as they are in compliance with the Fair Housing Act, HUD will leave them alone, Wolfson said.
“The only people who supported the original AFFH rule are fair housing advocates in Washington, and that’s because they’ve never left the Beltway and had to run an actual housing program,” Wolfson said. “I think if they did, they’d be the first to recognize how unworkable the AFFH rule was.”
