America’s housing crisis is getting worse by the day. Rents (one of the central drivers of the inflation surge) are skyrocketing, evictions are surging, and millions of Americans are being left behind without a place to call home. The demise of the Build Back Better (BBB) Act – which would have made historic investments in affordable and public housing – has likewise been a devastating setback in the fight to make housing a human right.
Despite the collapse of BBB, Americans struggling with housing insecurity needn’t lose hope just yet. As we’ve noted before on this blog, the executive branch has an extraordinary amount of power to address national crises simply by interpreting, enforcing, and implementing existing laws.
This is especially true when it comes to housing. The Department of Housing and Urban Development (HUD) oversees a broad portfolio of public housing, fair housing, and housing assistance policies and programs that have been signed into law by Biden’s predecessors over the last six decades. This portfolio is set to expand slightly with the recent passage of the FY 2022 spending package, which includes increases in HUD housing vouchers for veterans, new HUD grant programs for tenant legal assistance, and greater funding for HUD rural housing vouchers. Congress’ reauthorization of the Violence Against Women Act will also impact HUD greatly, establishing a new Gender-Based Violence Prevention Office in the Department that will protect the housing rights of domestic violence and sexual assault survivors.
Given the scope of HUD’s implementation powers, housing justice advocates have urged the Department to take actions that would make a tangible difference in the lives of tenants. In late 2020, the National Housing Law Project (NHLP) – a leading housing justice litigation and advocacy organization – compiled a list of over 20 major HUD regulatory actions that the incoming Biden administration could pursue without having to wait for Congress. While Biden and HUD Secretary Marcia Fudge have made progress on a few of them (mainly reversing or halting several last-minute rules implemented by the Trump administration), many of NHLP’s HUD recommendations have yet to be fully adopted. Other housing justice groups, including the National Alliance of HUD Tenants (NAHT) and National Low Income Housing Coalition (NLIHC), have similarly called on Biden and HUD to make full use of their executive powers to tackle the housing crisis.
Below, we’ve compiled a list of the most important regulatory actions that Biden’s HUD could – and should – immediately pursue.
What Can HUD Do?
- Prevent Evictions in HUD-Assisted Housing: Despite the Supreme Court’s ruling against the CDC’s national eviction moratorium, HUD retains broad authority under the Housing Act of 1949, Fair Housing Act, CARES Act, and at least five other major housing laws and statutes to prevent evictions on its own. Since the lifting of the CDC’s moratorium, HUD Secretary Marcia Fudge has issued an interim rule prohibiting the eviction of HUD tenants over nonpayment of rent without PHAs and owners providing a 30-day advance notice of eviction and emergency rental assistance options. Over 25 national housing organizations have criticized Fudge’s eviction prevention measures as grossly insufficient, noting they exclude voucher recipients, set a sunset date inconsistent with the CARES Act, and fail to compel landlord acceptance of emergency rental assistance or assistance application process. Moreover, while the CDC’s moratorium is gone, HUD still has sweeping legal and statutory authority to issue a blanket eviction moratorium for HUD residents and renters in federally assisted properties. Even short of a blanket moratorium, HUD would be fully within its legal authority to pursue other eviction prevention measures, such as requiring HUD-assisted housing providers to seek rental assistance and offer reasonable repayment plans to residents, or excluding nonpayment of rent from the definition of “good cause” eviction.
- Reform Demolition-Disposition Regulations to Slow the Loss of Public Housing: Under Section 18 of the Housing Act of 1937, HUD allows public housing agencies (PHAs) to demolish or dispose of public housing units that are considered obsolete, uninhabitable, or are no longer in the best interests of residents. To do this, PHAs must first meet a set of demolition-disposition qualifications and requirements outlined in a formal HUD application process. HUD’s lax enforcement process and current rules for the demo/dispo application (which were last revised in 2006) have been criticized by public housing advocates for excluding residents from demo/dispo discussions and allowing PHAs to abuse the Section 18 process. This problem has been compounded by Congress ending the “one-for-one” housing stock replacement rule for PHAs in 1995, leading to a net loss of more than 139,000 public housing units between 2000 and 2016 from demo/dispo alone (by comparison, America’s total population rose by at least 40 million over that same time period). The Obama administration attempted to tighten demo/dispo requirements with a 2012 HUD Notice reminding residents of their consultation rights and a 2014 proposed HUD rule requiring PHAs to submit more detailed justifications for demo/dispo. Both of these efforts were withdrawn by Trump HUD Secretary Ben Carson, leaving the inadequate 2006 rules in place. Biden’s HUD should revive and complete the reform efforts begun under Obama by finalizing the 2014 proposed demo/dispo rule and making additional regulatory efforts to strengthen resident consultation, relocation, and unit replacement, per advocates’ recommendations.
- Fair Market Rent Reform: Fair Market Rents (FMRs) are a HUD-calculated metric, representing median rents for a particular geographic area or region, which are used to set the value of housing vouchers given to HUD voucher program enrollees. In 2016, HUD created the additional Small Area Fair Market Rent (SAFMR) metric to more accurately measure median rents at the zip code level, allowing more voucher families to move to low poverty neighborhoods. However, HUD’s methodology for calculating FMR and SAFMR remains deeply flawed, with data being collected too slowly (resulting in calculations that are several years out of date) and broadly (resulting in FMRs that neglect dramatic variations in rent between neighborhoods, towns, and cities). Biden’s HUD should reform the way FRM and SAFMR are calculated to measure smaller and more targeted areas and employ more timely data, which would raise the value of vouchers to more accurately reflect actual market rents.
- Address Housing Needs of the Formerly Incarcerated: It should come as little surprise that America’s broken criminal justice system – which remains structurally biased against people of color thanks to the disastrous legacy of the War on Drugs – has had negative downstream effects on equitable housing. As HUD Secretary Marcia Fudge has herself acknowledged, formerly incarcerated people of color are disproportionately unable to secure access to rental housing thanks to discriminatory tenant screening procedures by property owners. While HUD previously offered guidance during the Obama administration on easing punitive tenant screening procedures, it has yet to codify tenant screening reforms into regulations. Housing justice advocates recommend that Biden’s HUD not only codify the Obama-era guidance, but also go further by scrapping the “one-strike policy” (a Clinton-era HUD rule that allows tenants to be evicted for a single particular criminal infraction) and prohibiting the use of blanket admission bans against people with a conviction history.
- Expand Support for Tenant Organizers: Even without Congress passing a Tenants’ Bill of Rights, HUD can move to expand protections for tenant organizers through regulatory action. One such action is to expand tenant organizing protections to voucher recipients by granting them the same right to organize and grant funding for organizing activities that HUD currently provides to public housing and project-based rental assistance tenants. Another is for the agency to fully spend its Congressionally-authorized Section 514 grant funds (which could provide up to $10 million each year to tenant organizing efforts) that have gone largely unspent since the early 2000s. Advocates have also urged HUD to amend its policy on tenant organizing (24 C.F.R Sec. 964) to create a process by which public housing residents can submit complaints if a PHA violates tenant participation regulations. The agency could also finalize an interim 2011 rule creating a process for measuring residents’ ability to participate and satisfaction with organizing efforts in HUD assessments of PHAs.
- Reform Inspections of HUD Properties: HUD’s Real Estate Assessment Center (REAC), through a numerical scoring system, is responsible for inspecting the physical and financial condition of all HUD public and assisted properties to resolve major health or safety concerns. Tenant advocacy organizations like the National Alliance of HUD Tenants (NAHT) have criticized REAC’s current system for being overly permissive of substandard living conditions and excluding tenant participation from the inspection process. To improve the quality of HUD housing and assisted properties, the agency could revise its REAC inspection protocols to create early warning systems for failing properties, better enforce improvement plans, and strengthen penalties against noncompliant properties. Likewise, the REAC scoring system could be toughened and revised to ensure that serious deficiencies – such as the presence of asbestos, mold, vermin, and radon – disqualify properties from receiving a passing inspection grade. To improve tenant participation in the inspection process, NHLP has urged HUD to grant tenants third party enforcement rights, including rights to remediation of hazardous or unhealthy conditions, appropriate compensation for deficiencies, and timely temporary relocation to proximate affordable housing during renovations.
The Capacity Question
While these proposed HUD regulatory measures are by no means a complete substitute for Congressional action, they would substantially improve the lives of those living in public housing and HUD-assisted properties in the short- and medium-term.
A larger problem, however, will be the Department’s lack of personnel and capacity. As my colleague Toni Aguilar Rosenthal wrote on this blog, HUD “has been shedding staff for decades”, losing more than 49% of its full-time equivalent staff from 1991 to 2019. This has been thanks to deliberate sabotage of the agency under Republican presidents. During the Trump years, HUD Secretary Ben Carson slashed the Department’s budget and shattered morale among career staff, leading to an exodus of ten percent of agency personnel. The hollowing out of HUD has had an obvious negative effect on the Department’s ability to administer its programs, oversee enforcement and compliance efforts, and take new regulatory actions. Rebuilding HUD’s shattered capacity will be no easy task, and the Biden administration must make HUD funding a top priority in the forthcoming FY2023 budget talks.
A related issue is the Department’s lack of Senate-confirmed leadership in HUD program offices. Thanks to hyper-partisan opposition by Republicans and archaic Senate rules, many of Biden’s sub-Cabinet HUD nominees remain stuck in the Senate awaiting confirmation. James Arthur Jemison, Biden’s nominee to oversee public and Native housing, was nominated last October and is yet to receive a Senate floor vote as of this writing. Dave Ueijio, who has been tapped to lead HUD’s fair housing enforcement efforts, has been languishing in confirmation hell three months longer than Jemison. Other positions lack a nominee altogether, including the Assistant Secretary for Community Planning and Development (Biden pick Mark Colon’s initial nomination expired in January) and the Assistant Secretary for Congressional and Intergovernmental Relations (Biden has yet to name a nominee).
There are signs that the confirmation delay may soon come to an end. This week, Vice President Harris cast a tie-breaking vote advancing Julia Gordon’s nomination to be Assistant Secretary for Housing to the Senate floor. To ensure the timely confirmation of Gordon and the rest of Biden’s backlog of HUD nominees, Senate Democrats should immediately change floor time rules to allow for expedited confirmation votes and fewer obstruction opportunities for the GOP.
Regardless of the capacity question, the time for HUD to act on these regulatory changes is now. Biden and Fudge have an opportunity to act where Congress will not and address a crisis affecting millions of Americans. With the midterm elections on the horizon, Biden could also reap the political benefits of actually delivering on his campaign promise to tackle the housing crisis. Given the harsh political headwinds Democrats face this fall, a HUD-led action agenda may be the only way to maximize Biden’s rapidly-closing window of opportunity on housing.
The time to act on housing is now, and housing advocates have shown Biden the way to do it. Inaction is no longer an option.
IMAGE: HUD Secretary Marcia Fudge at HUD Roundtable, March 28, 2022 (U.S. Department of Housing and Urban Develompent, Flickr).