If you are a progressive, then you believe that perfect fairness and justice in human affairs can be achieved by empowering neutral, apolitical government "experts" to impose just the right recipe of handouts plus millions of pages of rules and regulations. And Presto! all becomes utopia. Or at least we'll die trying. Of course a few cranks like the Manhattan Contrarian keep pointing out that the places that adopt the biggest collection of these progressive policies somehow seem to have the very highest income inequality measures of anywhere in the country. Well, it can't be our fault. It must be that it would have been even worse if we hadn't tried these programs.
So how do some of these efforts play out in the real world? A Supreme Court case from the just-released end-of-term collection gives us a glimpse into the attempt to achieve perfect fairness and justice through housing subsidies and "fair housing" policy. The case is called Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.
It seems that the federal government made available to the Texas housing agency certain tax credits to be used to incentivize development of subsidized housing for low income people. The Texas housing agency allocated most of these credits to developments in low-income neighborhoods, using the logic that building in those places was less expensive, and so more units could be built than if the credits were allocated to developments in more expensive areas. Naturally this practice got the agency sued by the activists from Inclusive Communities Project, who alleged that allocating the credits to low income areas discriminated against minorities by reason of having a "disparate impact" of further concentrating them in poor areas where their chances of getting ahead in life would be limited. The legal question for the Supremes was whether such "disparate impact" claims are cognizable as illegal discrimination, or if not whether the case should be dismissed.
The Supremes held that the claim is legally cognizable. Beyond that, the Court just remanded back to the court below, so it remains to be seen whether the plaintiffs can prove the disparate impact claim, and if they can, what remedy might be ordered. As in nearly every case these days involving a liberal/conservative ideological divide, the four "liberal" justices voted as a bloc. In this case they got Justice Kennedy to go along for a 5-4 majority. The remaining four conservatives dissented, with Thomas and Alito writing separately.
Most of the case, and of Thomas's dissent, is about whether the language of the statute can support a claim based only on "disparate impact," absent any assertion or proof of discriminatory intent. Suffice it to say that the language of the statute in question (Fair Housing Act) would seem to preclude finding discrimination without intent. However, we all now know (not just from this case) that the new cardinal rule of statutory interpretation is that no matter what a statute might say in its mere words, it means what a majority of the Harvard Law School faculty and New York Times editorial board think it ought to mean in furtherance of the creation of the progressive utopia. So no problem, the intent requirement can be done away with.
But Justice Alito goes farther in his dissent, and asks the question of where the progressive project is actually going with this one:
The Texas Department of Housing and Community Affairs (the Department) has only so many tax credits to distribute. If it gives credits for housing in lower income areas, many families—including many minority families—will obtain better housing. . . . But if the Department gives credits for housing in higher income areas, some of those families will be able to afford to move into more desirable neighborhoods. . . . Either path, however, might trigger a disparate-impact suit.
This is not mere speculation. Here, one respondent has sued the Department for not allocating enough credits to higher income areas. See Brief for Respondent Inclusive Communities Project, Inc., 23. But another respondent argues that giving credits to wealthy neighborhoods violates "the moral imperative to improve the substandard and inadequate affordable housing in many of our inner cities." Reply Brief for Respondent Frazier Revitalization Inc. 1. This latter argument has special force because a city can build more housing where property is least expensive, thus benefiting more people. In fact, federal law often favors projects that revitalize low-income communities. See ante, at 2.
No matter what the Department decides, one of these respondents will be able to bring a disparate-impact case. And if the Department opts to compromise by dividing the credits, both respondents might be able to sue. Congress surely did not mean to put local governments in such a position.
Me? I say, it's outrageous that the Texas housing agency would provide housing to low income people in Texas at all. What a backwater! Each low income person from Texas should have a penthouse on Park Avenue here in Manhattan! What -- why is that a problem? Doesn't the government have an infinite credit card?