In suburban Baltimore County, county executive Kevin Kamenetz has introduced a bill to ban “housing voucher discrimination,” that is to say, a bill requiring landlords to take Section 8 tenants. “Kamenetz is required to introduce the bill as part of a housing discrimination settlement with the federal Department of Housing and Urban Development that was reached this year. … If [it] does not pass the County Council, the HUD settlement requires it to be reintroduced in future years.” Landlords and property owners say that it is unfair to force them to enroll against their will in a program with cumbersome paperwork and inspections. [Pamela Wood, Baltimore Sun] HUD is now arm-twisting jurisdictions nationwide into enacting these bad laws; earlier here (bad renter trashes unit), here, etc.
HUD to private landlords: from now on, prepare to defend a discrimination suit if you decline to rent to felons. After all, any such rule might have disparate impact on members of protected groups. [NPR] Julia Vitullo-Martin writes: “Amazing, given that government — in the form of public housing — has refused to rent to felons since Clinton administration reforms.”
- Under HUD deal, “Dubuque must now actively recruit Section 8 voucher holders from the Chicago area,” 200 miles away [Stanley Kurtz/National Review, Deborah Thornton/Public Interest Institute, July]
- Mandatory rental inspections: Can City Hall demand entrance to a home with no evidence of violations? [Scott Shackford] Nuisance abatement laws: “NYPD Throws People Out of Their Homes Without Ever Proving Criminal Activity” [same]
- Data point on scope of regulation: online marketing of sink faucets “seems targeted at assuring potential purchasers of regulatory and legal compliance,” both ADA and environmental [Ira Stoll]
- Public interest litigators’ “right to shelter” created today’s hellish NYC homeless program [NYT on murder at Harlem shelter, background at Point of Law]
- Flood insurance: “$7.8 Million Fee For Lawyers, 7-Cent Check For One Lucky Class Member” [Daniel Fisher]
- On eminent domain, some lefty lawprofs suddenly turn all skeptical on whether courts can fix injustice [Ilya Somin] Prof. Purdy defends the Kelo v. New London decision, but Prof. Kanner would like to correct a few of his facts;
- “The San Francisco artist who is being kicked out of his apartment after 34 years is a perfect example of why rent control is awful” [Jim Edwards, Business Insider] “Big-City Mayors Think They Can Mandate Their Way to Affordable Housing” [Matt Welch, Reason]
- Please just don’t: “Should Happy Hour be banned?” [New York Times “Room for Debate”]
- “This furniture must be affixed to the wall with the enclosed wall fastener.” Ikea liable for tip-over hazard anyway? [Nick Farr, Abnormal Use, Pennsylvania]
- Oh, great: making writers declare as taxable income the (face?) value of review-copy books they’re sent [Ira Stoll, Future of Capitalism]
- “Every state county or municipality…should think long and hard before taking a dime in HUD money.” [Richard Epstein, Hoover “Defining Ideas”, “The Folly of ‘Fair’ Housing”] “Confusion and uncertainty” in housing sector as to what disparate impact liability actually will mean, after Supreme Court ruling [Hans Bader, CEI; earlier]
- And he’ll take the low road: “Donald Trump sued Scotland” [Lowering the Bar, earlier]
- Garlock database shows “staggering” amount of money changing hands in asbestos litigation [Madison County Record]
- Harm reduction and its enemies: “Two Surveys Find That Almost All Regular Vapers Are Smokers” [Jacob Sullum, earlier]
…There’s nothing fair about it. I’ve got a post at Cato about yesterday’s important Supreme Court victory for the Left in which Justice Anthony Kennedy joined the four liberals to hold that current federal law allows housing suits based on “disparate impact” theories. I explain why pundits are being silly when they claim that the Court “saved” the Fair Housing Act or that a contrary ruling would have “gutted” it, and why Samuel Alito and Clarence Thomas were right in their dissents to spotlight the shaky basis of the theory in the statutory text, going back to the original disparate-impact case, Griggs v. Duke Power.
True, Kennedy did throw a sop or two about how courts applying disparate impact need to avoid pressuring actors toward the potentially unconstitutional result of quotas. Although some consider these bits of wording significant, I suspect that will mean about as much as similar sops that the Court has thrown over the years about avoiding quotas in employment and education, i.e., not much. Others, such as Cory Andrews of WLF, point to Kennedy language suggesting (on what statutory basis is not entirely clear) that disparate impact scrutiny might be limited to “artificial, arbitrary, and unnecessary” practices, a narrowness of approach not seen in other disparate-impact contexts. How administrable such a standard might prove, or how much litigation will be needed before it is clarified, is anyone’s guess.
Some further background on Texas Department of Housing and Community Affairs v. Inclusive Communities Project: SCOTUSBlog, Cato’s brief in the case and earlier coverage by Ilya Shapiro and company here and here, and my podcast.
With three decision days remaining — today, tomorrow, and next Monday — Ilya Shapiro outlines the remaining seven cases and their importance, including Texas Dept. of Housing v. Inclusive Communities Project (are defendants liable under “disparate impact” theories in housing discrimination law?) and King v. Burwell (interpreting Congress’s language on Obamacare subsidies).
Update: Both of those cases were decided this morning. In King v. Burwell, the Court broke 6-3 for the administration to uphold the IRS’s rewrite of ObamaCare subsidies. The Court keeps on hand a supply of what one observer called Get Out Of Bad Drafting Free cards, but as Justice Scalia noted in his “SCOTUScare” dissent, awards them only for certain laws. And the housing case was a big win for the left as Justice Anthony Kennedy joined the four liberals to uphold housing suits based on “disparate impact” theories. His opinion throws a sop or two about how disparate impact shouldn’t imply quotas, which I suspect will mean about as much as similar sops the Court has thrown over the years in employment and education, i.e., not much. (P.S. As one reader rightly objects, the problem in Burwell wasn’t so much bad drafting as drafting that failed of its intended coercive effect and therefore needed to be revised if there was to be a Plan B. More on King v. Burwell: Roger Pilon and Ilya Shapiro at Cato)
- Skull and crossbones to follow: San Francisco pols decree health warnings on soft drink, Frappuccino billboards [Steve Chapman]
- Judge criticizes feds’ punitive handling of AIG rescue as unlawful, but says no damages are owed to Hank Greenberg [Bloomberg, Thaya Knight/Cato, Gideon Kanner who predicted outcome, W$J]
- Congress resisting Obama/HUD scheme to force communities to build low-income housing [Jonathan Nelson/Economics21, Marc Thiessen, Affirmatively Furthering Fair Housing or AFFH]
- California, following New York, proposes 50 hours of mandatory pro bono work for prospective lawyers [John McGinnis]
- Five part Renee Lettow Lerner series on historical role and present-day decay of juries [Volokh Conspiracy, introduction, parts one, two, three, four, five] Related: Mike Rappaport and follow-up on Seventh Amendment, Liberty and Law.
- Latest Scotland drunk-driving blood threshold: Drivers “warned that having ‘no alcohol at all’ is the only way to ensure they stay within the limit” [Independent via Christopher Snowdon]
- How not to argue for bail reform: Scott Greenfield vs. NYT op-ed writer [Simple Justice]
The Obama Administration has repeatedly dodged cases in fear of judicial review of its controversial application of the disparate impact theory to mortgage lending and other aspects of the housing market, but its position has now met with a stiff rebuke from district court judge Richard Leon [Insurance Journal]:
“This is yet another example of an administrative agency trying desperately to write into law that which Congress never intended to sanction,” Leon wrote.
He called the rule “nothing less than an artful misinterpretation of Congress’s intent that is, frankly, too clever by half.”
- Federally run consumer complaint database at CPSC has been unfair and unreliable mess, so naturally CFPB wants one of its own [Kevin Funnell]
- Los Angeles, Miami, Providence, and Cook County among municipalities piling on lenders with mortgage and disparate-impact suits [same]
- “Just one way to stop corporate tax inversions: cut taxes” [Chris Edwards, NYT/Cato; more]
- “The IPO is dying. Marc Andreessen explains why.” [Timothy Lee, Vox via Tyler Cowen]
- No mercy for the Swiss: feds’ “fierce campaign” on overseas tax compliance “doing more harm than good” [The Economist; Doreen Carvajal, New York Times]
- “Pretty much everything George Dvorsky says at io9 about corporate personhood is wrong” [Bainbridge] Dodd-Frank turns four, alas [same]
- “There was no evidence, period.” Preet Bharara loses one as jury acquits in insider trading case [Ira Stoll, Future of Capitalism]
“Study results in jurisdictions with state-level protections against housing discrimination on the basis of sexual orientation unexpectedly show slightly more adverse treatment of same-sex couples than results in jurisdictions without such protections.” [Samantha Friedman et al., “An Estimate of Housing Discrimination Against Same-Sex Couples,” SSRN]