Hypertechnical tError

 

In 1980, Congress passed Section 214 of the Housing and Community Development Act (or “Section214”), which limited eligibility for federal low-income housing assistance to U.S. citizens and certain categories of immigrants—such as lawful permanent residents, refugees and asylees, and some others. This made all other non-U.S. citizens outside the chosen categories, both documented and undocumented, ineligible. 

        Determining whether a particular non-citizen was eligible under this statute was straightforward enough; one simply compared that person’s immigration status to the list of eligible categories. But many households with immigrants had some members who were U.S. citizens or eligible non-citizens, and other members who were not eligible. Section 214 did not make clear what was to be done in cases involving such “mixedstatus families.” 

        Allowing only the eligible household members to live in HUD-subsidized housing, while excluding the ineligible members, would require either breaking up households or forcing eligible people to forego critical housing assistance just to remain with their family members. This was not only cruel and counterproductive, but often impractical—for instance, often young children would be U.S. citizens while their parents belonged to ineligible immigrant categories. But simply allowing such families to participate fully in federal housing programs would seem to conflict irreconcilably with the statute—and though it was a bad idea, a statute is a statute.

               After many years of litigation and HUD rulemaking, a compromise called the “mixed status families rule” resolved this conundrum. If a family had at least one eligible member, then the entire family could live together in subsidized housing—but their rental subsidy would be pro-rated based on the percentage of eligible household members. This had been HUD policy since the mid-1990s, and had functioned without incident for more than 20 years since Congress endorsed the rule in 1996. 

Trump's HUD Secretary Ben Carson wanted to change this, replacing the mixed-status families rule with a new all-or-nothing policy dreamed up by senior Trump advisor and notorious xenophobe Stephen Miller.[i] Under the proposed newrule,[ii] nobody could be a member of a subsidized household unless that person was eligible. If adopted, this policy would have forced all 25,000 of the existing mixed-status families in HUD housing either to break up or move out. 

HUD’s own analysis showed the proposed rule change would have cost U.S. taxpayers roughly $400 million per year, impacting HUD’s budget so much that the net loss of housing units would eclipse the number of apartments opened up for fully-eligible households on waiting lists.[iii] The policy would also have devastated certain housing authorities with higher numbers of mixed-status families—such as Los Angeles, where one-third of its assisted households were mixed-status. But all of those harms were exactly the point; not only was the Trump administration built on racism and anti-immigrant sentiment, but starve-the-beast was just as much a long-favored rightward tactic for demolishing popular social programs. Carson and Miller had to figure HUD wasn’t getting the extra $400 million per year, and so local housing authorities would just need to close projects, cancel vouchers, or cut other services accordingly--and that was just peachy in their sick little minds.

Former NHLP attorney Karlo Ng had partnered with allies at the National Low-Income Housing Coalition to launch #KeepFamiliesTogether, an information and advocacy campaign dedicated to the housing rights of immigrants and laser-focused on beating back the Carson-Miller attack on the mixed status families rule. Among other activities, Karlo and #KeepFamiliesTogether provided educational materials and templates for use in submitting comments to HUD on the rule change. This was important because federal agencies cannot promulgate new regulations or change existing ones without considering and responding to the comments they receive. This helps lay the groundwork for future legal challenges to regulations, because an agency’s response might reveal that some important fact was overlooked or that the proposed change is otherwise “arbitrary and capricious,” the usual standard for challenging federal executive actions.[iv]

In this case, however, the #KeepFamiliesTogether campaign paid off in HUD simply receiving an absurd number of comments; whereas HUD had never previously received more than 1,000 comments on a proposed rule, the change to the mixed families rule received an astounding 30,000+ comments.[v] Though NHLP and partners geared up for months preparing to sue HUD if and when they put the proposed rule into effect, that litigation never became necessary. Between the time it took for HUD to review so many comments, coupled with the delays and complications related to Covid-19, #KeepFamiliesTogether had simply run the clock out on them. The Biden administration formally withdrew the proposed rule change in the spring of 2021.[vi] 

Such were the wages of putting clueless neurosurgeons in charge of housing agencies and other people with limited or no government experience in charge of departments in which they had no subject matter expertise either—or probably even more importantly, for which they had no respect. We never had to sue HUD over the mixed status families rule, but had it been necessary the case would likely have succeeded in large part because some unknown HUD analyst had Galen Erso’d the rule by noting how its $400 million per year cost would simply shut down way more housing than however many units Miller thought he was opening up for his preferred kind of people. This was the kind of thing likely to have the Trumps launching into conspiracy theories and whining about the “deep state,” but was simultaneously just a professional person telling the truth.

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[i] Tracy Jan, “HUD says 55,000 children could be displaced under Trump plan to evict undocumented immigrants,” Washington Post (May 10, 2019), https://www.washingtonpost.com/business/2019/05/10/hud-says-children-could-be-displaced-under-trump-plan-evict-undocumented-immigrants/.

[ii] 84 FR 20589 (May 10, 2019).

[iii] U.S. Dept. of Housing & Urban Development, Docket No: FR-6124-P-01, Regulatory Impact Analysis, Housing and Community Development Act of 1980: Verification of Eligible Status, Proposed Rule (Apr. 15, 2019), file:///C:/Users/Eric%20Dunn/Downloads/HUD-2019-0044-0002_content.pdf.

[iv] 5 U.S.C. § 706.

[v] Maggie McCarty and Jameson A. Carter, “HUD’s Proposal to End Assistance to Mixed Status Families,” Congressional Research Service (July 29, 2019), https://www.everycrsreport.com/files/20190729_IN11121_bb4b708d394cc9fea428c39bdd878a3a04fd3161.pdf.

[vi] 86 FR 17346 (Apr. 2, 2021).