The Silver Lining in Biden’s Massive Housing Plan

topicspolicy

A Democratic White House and a Republican Senate might be the best of all worlds when it comes to federal housing policy. We can expect the return of heavy-handed regulations under Joe Biden’s presidency, but his worst, most expensive ideas involving increased federal funding likely won’t make it through Congress. Meanwhile, the president-elect could lend crucial support to efforts to nudge local and state governments into zoning deregulation.

On the spending side, Biden has pledged to plow $640 billion over 10 years into new and existing housing programs, including a new $100 billion Affordable Housing Fund to finance low-income housing and energy-efficient upgrades. Biden also wants to fully fund the Section 8 Housing Choice Voucher program so that all renters who qualify for it receive a voucher, and he wants to devote $10 billion each to the existing Community Development Block Grant and Low-Income Housing Tax Credit programs.

Very little of that is good from a libertarian perspective. Luckily, none of it is likely to happen so long as Republicans control the Senate.

Biden is promising to revive an Obama-era rule, gutted by President Donald Trump, requiring jurisdictions that receive federal housing money to collect reams of demographic data, to identify supposed obstacles to fair housing, and then to craft plans to eliminate those obstacles. Biden also would bring back the “disparate impact” rule, which makes it easier to sue banks and other financial institutions for discriminatory housing policies. All of this can be done without congressional approval.

While that kind of bureaucratic make-work is troubling, Biden has also endorsed a more promising policy: making federal housing and transportation block grants conditional on loosening state and local zoning laws to allow denser development. That could be an effective nudge for the most tightly regulated, most expensive communities to get rid of the rules, including parking-spot quotas and lengthy permitting processes, that stymie the construction of new housing.

The Trump administration proposed a more modest version of the same policy but scrapped it in favor of an anti-development “save the suburbs” message in the run-up to the election. Bipartisan bills in Congress have proposed a similar approach. One, the YIMBY Act, passed the House in March, but has since languished in Senate committees.

Biden’s eager endorsement of that kind of approach could help get the YIMBY Act and other related bills over the finish line, however. All considered, things could definitely be worse.

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The Silver Lining in Biden’s Massive Housing Plan

topicspolicy

A Democratic White House and a Republican Senate might be the best of all worlds when it comes to federal housing policy. We can expect the return of heavy-handed regulations under Joe Biden’s presidency, but his worst, most expensive ideas involving increased federal funding likely won’t make it through Congress. Meanwhile, the president-elect could lend crucial support to efforts to nudge local and state governments into zoning deregulation.

On the spending side, Biden has pledged to plow $640 billion over 10 years into new and existing housing programs, including a new $100 billion Affordable Housing Fund to finance low-income housing and energy-efficient upgrades. Biden also wants to fully fund the Section 8 Housing Choice Voucher program so that all renters who qualify for it receive a voucher, and he wants to devote $10 billion each to the existing Community Development Block Grant and Low-Income Housing Tax Credit programs.

Very little of that is good from a libertarian perspective. Luckily, none of it is likely to happen so long as Republicans control the Senate.

Biden is promising to revive an Obama-era rule, gutted by President Donald Trump, requiring jurisdictions that receive federal housing money to collect reams of demographic data, to identify supposed obstacles to fair housing, and then to craft plans to eliminate those obstacles. Biden also would bring back the “disparate impact” rule, which makes it easier to sue banks and other financial institutions for discriminatory housing policies. All of this can be done without congressional approval.

While that kind of bureaucratic make-work is troubling, Biden has also endorsed a more promising policy: making federal housing and transportation block grants conditional on loosening state and local zoning laws to allow denser development. That could be an effective nudge for the most tightly regulated, most expensive communities to get rid of the rules, including parking-spot quotas and lengthy permitting processes, that stymie the construction of new housing.

The Trump administration proposed a more modest version of the same policy but scrapped it in favor of an anti-development “save the suburbs” message in the run-up to the election. Bipartisan bills in Congress have proposed a similar approach. One, the YIMBY Act, passed the House in March, but has since languished in Senate committees.

Biden’s eager endorsement of that kind of approach could help get the YIMBY Act and other related bills over the finish line, however. All considered, things could definitely be worse.

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Is SCOTUS Done with Emergency COVID-19 Free Exercise Litigation?

The past 96 hours have been very busy for COVID-19 Free Exercise Clause litigation.

On Friday, January 22, a Ninth Circuit panel upheld California’s “Regional Stay at Home Order and Tier 1 of the Blueprint.” This measure prohibited all indoor worship, but permitted outdoor worship. (I wrote about those directives here, here, here, here, and here). The South Bay United Pentecostal Church no doubt began to prepare another emergency application to the Supreme Court.

At 9:30 a.m. on Monday, January 25, the Supreme Court denied Calvary Chapel’s petition for certiorari before judgment. The Court did not see fit to review this case from Nevada a second time. I think the majority said what they wanted to say in Diocese of Brooklyn.

Shortly thereafter, another Ninth Circuit panel denied Harvest Rock’s application for an injunction pending appeal. This panel found itself bound by the three-day old South Bay circuit precedent. Judge O’Scannlain dissented, contending that South Bay was “woefully out of step with” Roman Catholic Diocese of Brooklyn. He wrote:

A simple, straightforward application of these controlling cases compels what should be the obvious result here: California’s uniquely severe restrictions against religious worship services—including its total ban against indoor worship in nearly the entire state—are patently unconstitutional and should be enjoined. The court’s refusal to do so in South Bay cries out for correction.

And shortly thereafter, California lifted the regional stay at home order. Now, local authorities can impose their own measures. Was this change made based on #science? I would not be surprised if this timing was occasioned by the Ninth Circuit’s double-rulings, and the Supreme Court’s cert denial. Now California can argue, for the umpteenth time, that an emergency application to the Court is moot. Sense a pattern? The game of whack-a-mole continues.

At this juncture, I think the Supreme Court is finished with emergency COVID-19 Free Exercise Clause litigation. The Court may still consider some cases that arise in the normal course–for example, a dispute that seeks damages, rather than an injunction. But the shadow docket will likely cool off in a shady penumbra for some time.

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Is SCOTUS Done with Emergency COVID-19 Free Exercise Litigation?

The past 96 hours have been very busy for COVID-19 Free Exercise Clause litigation.

On Friday, January 22, a Ninth Circuit panel upheld California’s “Regional Stay at Home Order and Tier 1 of the Blueprint.” This measure prohibited all indoor worship, but permitted outdoor worship. (I wrote about those directives here, here, here, here, and here). The South Bay United Pentecostal Church no doubt began to prepare another emergency application to the Supreme Court.

At 9:30 a.m. on Monday, January 25, the Supreme Court denied Calvary Chapel’s petition for certiorari before judgment. The Court did not see fit to review this case from Nevada a second time. I think the majority said what they wanted to say in Diocese of Brooklyn.

Shortly thereafter, another Ninth Circuit panel denied Harvest Rock’s application for an injunction pending appeal. This panel found itself bound by the three-day old South Bay circuit precedent. Judge O’Scannlain dissented, contending that South Bay was “woefully out of step with” Roman Catholic Diocese of Brooklyn. He wrote:

A simple, straightforward application of these controlling cases compels what should be the obvious result here: California’s uniquely severe restrictions against religious worship services—including its total ban against indoor worship in nearly the entire state—are patently unconstitutional and should be enjoined. The court’s refusal to do so in South Bay cries out for correction.

And shortly thereafter, California lifted the regional stay at home order. Now, local authorities can impose their own measures. Was this change made based on #science? I would not be surprised if this timing was occasioned by the Ninth Circuit’s double-rulings, and the Supreme Court’s cert denial. Now California can argue, for the umpteenth time, that an emergency application to the Court is moot. Sense a pattern? The game of whack-a-mole continues.

At this juncture, I think the Supreme Court is finished with emergency COVID-19 Free Exercise Clause litigation. The Court may still consider some cases that arise in the normal course–for example, a dispute that seeks damages, rather than an injunction. But the shadow docket will likely cool off in a shady penumbra for some time.

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Press Coverage on the Emolument Clauses Litigation

On Monday, the Supreme Court effectively ended the Emoluments Clauses litigation.  Howard Bashman rounded up more than a dozen media accounts. I’d like to commend Adam Liptak’s report for the New York Times. His account stands out, because he did not accept the Plaintiffs interpretation of the Foreign Emoluments Clauses as fact. Adam wrote:

The move means that there will be no definitive Supreme Court ruling on the meaning of the two provisions of the Constitution concerning emoluments, a term that means compensation for labor or services. One provision, the domestic emoluments clause, bars the president from receiving “any other emolument” from the federal government or the states beyond his official compensation.

The other provision, the foreign emoluments clause, bars anyone holding a federal “office of profit or trust” from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state” without the consent of Congress.

First, Adam did not define an”emolument” as anything of value, or something to that effect. He used a far more neutral definition: “compensation for labor or services.” Second, Adam did not state, as a matter of fact, that the Foreign Emoluments Clause applies to the President. Instead, he quoted the language used in the Constitution.

Way back in September 2017, Adam wrote about the briefs Seth Barrett Tillman and I filed in the CREW litigation. Even then, he understood the nuance of our position. And to this day, Adam stated the position accurately for the Times.

Other accounts, however, simply stated as fact that the phrase “emoluments” refers to a much broader range of payments. And most accounts simply assumed that the Foreign Emoluments Clause applies to the President.

Now that the Supreme Court has denied review, we likely will not get any definitive judicial resolution of this issue. I’ve pasted the other press clippings below the jump.

Washington Post:

It means there is no definitive answer after years of legal wrangling over the Constitution’s emoluments clauses, which prohibit presidents and others from accepting gifts or payments from foreign governments without congressional approval.

Wall Street Journal:

The justices in brief written orders wiped out a pair of cases alleging Mr. Trump was violating the Constitution’s emoluments clauses, which prohibit the president from receiving things of value from foreign and state governments.

USA Today:

Aiming to limit the potential for outside influence on the president, the Constitution’s Framers included language asserting that “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” A second constitutional provision specifically prohibits the president from receiving domestic emoluments.

Reuters:

The action means that after four years of litigation the top U.S. judicial body will not rule on the meaning and scope of the Constitution’s so-called emoluments provisions, a largely untested area of constitutional law. The provisions bar presidents from accepting gifts or payments from foreign and state governments without congressional approval.

NBC News:

Both lawsuits involved the Constitution’s emoluments clauses, which forbid the president from receiving “any present, emolument, office or title of any kind whatever from any king, prince, or foreign state” or any state in the U.S.

Politico:

The outcome in the cases also signals how ineffective the courts proved to be in policing Trump’s alleged violations of the emoluments clauses, which prohibit any president from receiving funds related to their official duties from any foreign or state government.

Courthouse News Service:

At the heart of the cases is the so-called emoluments clause, which bars presidents from receiving gifts from foreign or state governments while in office without congressional consent.

 

 

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Press Coverage on the Emolument Clauses Litigation

On Monday, the Supreme Court effectively ended the Emoluments Clauses litigation.  Howard Bashman rounded up more than a dozen media accounts. I’d like to commend Adam Liptak’s report for the New York Times. His account stands out, because he did not accept the Plaintiffs interpretation of the Foreign Emoluments Clauses as fact. Adam wrote:

The move means that there will be no definitive Supreme Court ruling on the meaning of the two provisions of the Constitution concerning emoluments, a term that means compensation for labor or services. One provision, the domestic emoluments clause, bars the president from receiving “any other emolument” from the federal government or the states beyond his official compensation.

The other provision, the foreign emoluments clause, bars anyone holding a federal “office of profit or trust” from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state” without the consent of Congress.

First, Adam did not define an”emolument” as anything of value, or something to that effect. He used a far more neutral definition: “compensation for labor or services.” Second, Adam did not state, as a matter of fact, that the Foreign Emoluments Clause applies to the President. Instead, he quoted the language used in the Constitution.

Way back in September 2017, Adam wrote about the briefs Seth Barrett Tillman and I filed in the CREW litigation. Even then, he understood the nuance of our position. And to this day, Adam stated the position accurately for the Times.

Other accounts, however, simply stated as fact that the phrase “emoluments” refers to a much broader range of payments. And most accounts simply assumed that the Foreign Emoluments Clause applies to the President.

Now that the Supreme Court has denied review, we likely will not get any definitive judicial resolution of this issue. I’ve pasted the other press clippings below the jump.

Washington Post:

It means there is no definitive answer after years of legal wrangling over the Constitution’s emoluments clauses, which prohibit presidents and others from accepting gifts or payments from foreign governments without congressional approval.

Wall Street Journal:

The justices in brief written orders wiped out a pair of cases alleging Mr. Trump was violating the Constitution’s emoluments clauses, which prohibit the president from receiving things of value from foreign and state governments.

USA Today:

Aiming to limit the potential for outside influence on the president, the Constitution’s Framers included language asserting that “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” A second constitutional provision specifically prohibits the president from receiving domestic emoluments.

Reuters:

The action means that after four years of litigation the top U.S. judicial body will not rule on the meaning and scope of the Constitution’s so-called emoluments provisions, a largely untested area of constitutional law. The provisions bar presidents from accepting gifts or payments from foreign and state governments without congressional approval.

NBC News:

Both lawsuits involved the Constitution’s emoluments clauses, which forbid the president from receiving “any present, emolument, office or title of any kind whatever from any king, prince, or foreign state” or any state in the U.S.

Politico:

The outcome in the cases also signals how ineffective the courts proved to be in policing Trump’s alleged violations of the emoluments clauses, which prohibit any president from receiving funds related to their official duties from any foreign or state government.

Courthouse News Service:

At the heart of the cases is the so-called emoluments clause, which bars presidents from receiving gifts from foreign or state governments while in office without congressional consent.

 

 

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