Rep. Paul Gosar (R-AZ) recently introduced H.R. 482, as Sen. Mike Lee (R-UT) introduced S. 103, an identical piece of companion legislation in the Senate. The legislation would nullify a HUD rule and notice – specifically voiding the 2015 AFFH rule and 2015 AFFH Notice relating to the Assessment Tool. The legislation also prohibits federal funds from being used to “design, build, maintain, utilize, or provide access to a Federal database of geospatial information on community racial disparities or disparities in access in affordable housing.”

In place of the AFFH Rule, the bills call for the HUD Secretary to consult with a group composed of state officials, local government officials, and public housing officials representing various regional, economic, and geographic perspectives within the United States to develop recommendations in line with Supreme Court rulings on how to appropriately further the Fair Housing Act. The bills discuss this process, including minimum timelines for public comments and processes for dealing with absence of consensus. The end result being a published report of recommendations released by the HUD Secretary made in consultation with the aforementioned officials.

While the Fair Housing Act has been in place since 1968, it wasn’t until the Obama administration that a rule was put in place enforcing affirmative action by local communities to assess fair housing issues through collected geospatial data.

HUD Secretary Nominee Dr. Ben Carson has previously spoken out against the 2015 AFFH rule. But during his confirmation hearing, Dr. Carson also stated that he would enforce pre-existing fair housing laws. As the 2015 rule in question is merely one interpreted method of how to enforce the Fair Housing Act, Dr. Carson wouldn’t be going back on his word if the 2015 rule were in fact nullified.

If such legislation were put in place, it would not change the Supreme Court’s decision in Inclusive Communities, allowing disparate impact claims as a viable legal theory in fair housing cases. Legal liability concerns as well as the replacement recommendation report may encourage officials to still assess fair housing issues addressed in the 2015 rule, but such assessments would no longer be required. Furthermore, without a federal database of geospatial information, if assessments were performed at all, they would likely be less stringent and less detailed. Plaintiffs could experience more difficulty in asserting specific types of violations without the database as well.

H.R. 482 currently has 24 Republican cosponsors while S. 103 has one Republican cosponsor. Neither sponsor sits on the Senate Committee on Banking, Housing, & Urban Affairs. Unless the legislation’s vehicle involves reconciliation, Senate Republicans would need to garner Democratic support for the bill to avoid a filibuster. H.R. 482 awaits a vote from the House Committee on Financial Services, although a hearing has yet to be scheduled. None of the bill’s 25 sponsors serve on the committee so it’s unknown how it would fare.