A Few proposed regulation by President Joe Biden’s Department Of Housing and Urban Development (HUD) would once again attempt to meddle in state and local governments’ affairs by conditioning federal funding including Community Development Block Grants on changes to local zoning laws.

The rule, once again titled, “Affirmatively Furthering Fair Housing,” was offered in January and includes “working with a local government to address exclusionary zoning,” and “if disparities by protected class group are identified in the questions regarding homeownership opportunities, responsive goals could include … zoning code reform,” and “this rule requires an analysis of barriers to affordable housing, representing a key opportunity for program participants to identify the policies and practices, such as land use and zoning ordinances, that impede the development and maintenance of affordable housing commensurate with need.”

The regulation also requires grantees to assess: “How have existing zoning and land use policies or ordinances, the presence or lack of source of income anti-discrimination laws, eviction policies and practices, and other State and local policies or practices contributed to the patterns of segregation…” and “This analysis shall include… municipal or State policies, such as zoning and land use policies, ordinances, or regulations…”

And so forth. There is just one problem. It’s illegal as Congress has six times defunded  the original 2015 regulation that had included an explicit requirement calling for changes to local zoning, stating, “This final rule, and Assessment Tools and guidance to be issued, will assist recipients of Federal funding to use that funding and, if necessary, adjust their land use and zoning laws in accordance with their existing legal obligation to affirmatively further fair housing.”

This is why Congress moved to defund the original Affirmatively Furthering Fair Housing regulation, in the 2017 omnibus, the 2018 omnibus, the 2019 omnibus, and the Consolidated Appropriations Act of 2020 and the 2021 omnibus, before it was removed in the 2022 omnibus. But then it was included again in the 2023 omnibus, and so still remains standing law.

Here, HUD appears to be saying that doesn’t matter, it’s just going to keep issuing the same exact regulation. 

And so, now House Republicans appear poised to defund it yet again in the 2024 transportation and housing appropriations bill, appearing in section 233, updating the language to reflect the most recent regulation in whack-a-mole fashion: “None of the funds made available by this 24 Act may be used to implement, administer, or enforce the proposed rule entitled ‘Affirmatively Furthering Fair Housing’ published by the Department of Housing and Urban Development in the Federal Register on Feb. 9, 2023 (88 Fed. Reg. 8516), or to direct a grantee to undertake specific changes to existing zoning laws as a part of carrying out the interim final rule entitled ‘Restoring Affirmatively Furthering Fair Housing Definitions and Certifications’ published by such Department in the Federal Register on June 10, 2021 (86 Fed. Reg. 30779).”

These provisions for years have explicitly changed the terms and conditions of the Fair Housing Act, barring the federal government from directing or encouraging grantees to make changes to local zoning.

The provision was originally drawn from a provision by Sen. Susan Collins (R–Maine) passed the Senate easily 87-9 in 2016 that barred the regulation from being used to affect local zoning.

The regulation was also rescinded by the Trump administration, under a rule, called Preserving Community and Neighborhood Choice, which states, “It must be local governments, not HUD, that exercise control of administering local housing policies, including zoning and development policies that are unique to a particular community.”

This law may be all that stands in the way of a Biden presidency renewing the federal war on suburbs, eliminating one of the most important responsibilities of local government — zoning. But to make it stick, Congress will have to continue to intervene via the appropriations process unless it can make a more-permanent alteration to law. For now, Congress appears poised to continue to play whack-a-mole with the provision as HUD simply defies the law.                    

Robert Romano is the VP of public policy at Americans for Limited Government (ALG). The organization says it is a “non-partisan, nationwide network committed to advancing free-market reforms, private property rights, and core American liberties.” 

Now that it’s settled down to just a low simmer, the revolt by members of the ultra-conservative Freedom Caucus in the U.S. House of Representatives has mostly left the front pages. But it would be fair to say that it hasn’t been resolved — merely cooled for the moment. Since it could flare up again at any time, it’s worth taking a step back and looking at why, in the long run, the House might be better off because of it.

First, though, let’s recap. As you may recall, the whole thing began when some of the House GOP caucus’s most-conservative members decided to use more than words to express their displeasure with the debt-ceiling agreement struck between President Joe Biden and House Speaker Kevin McCarthy. In essence, they took their own party’s agenda hostage, with 11 of them siding with Democrats on a procedural vote that halted progress on several Republican-sponsored bills. In the closely divided House, this was enough to produce a week of gridlock early in June, while McCarthy and the rebels huddled to try to come to terms.

They emerged with an agreement to allow the blocked bills and other measures to move forward — and a warning from the rebels that they could grind things to a halt again if they don’t see progress on a “power-sharing” deal with McCarthy. “We want to work on an accountability regime and a power sharing agreement,” said one of the hardliners, Rep. Matt Gaetz, of Florida. “We want to see House conservatives in a position to be able to enforce the agreements that we all make.”

Democrats, of course, watched all this gleefully, and while some conservative commentators praised the rebels for insisting on steeper cuts to federal spending, others lamented the talking points the move handed to people who criticize the House GOP caucus for being unable to govern. “It…gives the usual media suspects grist for more rounds of ‘Republican infighting/incompetence’ stories,’” fumed the New York Post editorial board.

To me, however, what was most noticeable about the whole affair was not the politics of the moment, but that it a major detour from the long march in the House toward what detractors call “the imperial speakership” — a handy shorthand for the decades-long trend, under both Democratic and Republican leaders, to consolidate power in the hands of just a few leaders.

There is no question that this has made for more efficiency in the House by keeping debate and amendments to a minimum and wrapping multiple pieces of legislation that ought to get their own votes into a single omnibus package that most members barely get a chance to read. The tradeoff, at least in the past, has been that the leadership protects members of its own party from politically touchy votes.

But the cost to American democracy has been high. The House — unlike any other institution in Washington — was designed by the architects of our republic to be the people’s body, the most representative of our nation’s diverse and ever-changing population. Over the country’s history, it developed a robust committee system, rules for floor debate, and other procedures designed to give ordinary representatives a chance to do just that: represent the American people. The consolidation of so much power in leaders’ hands has circumvented all that — and, arguably, made the House more prone to partisanship and more inclined toward the extremes, since the majority leadership cares mostly about pleasing its own base, not forging common ground across the aisle.

There are any number of issues on which I part company with the members of the Freedom Caucus. But on this front, I have considerable sympathy — as do other observers who care about a House of Representatives that can function as its creators intended and as it did for much of its history. As former Democratic Rep. Dan Lipinski argues in a recent op-ed, “If the House does not change, its members will continue to fail in representing their constituents in the legislative process on most major issues.” That’s an issue we all should care about, regardless of party.    

Lee Hamilton, 92, is a senior advisor for the Indiana University (IU) Center on Representative Government, distinguished scholar at the IU Hamilton Lugar School of Global and International Studies, and professor of practice at the IU O’Neill School of Public and Environmental Affairs. Hamilton, a Democrat, was a member of the U.S. House of Representatives for 34 years (1965-1999), representing a district in south-central Indiana.