By Robert Romano

“I would incentivize people who really would like to get a nice juicy government grant [to look at their zoning codes].”

That was Housing and Urban Development (HUD) Secretary Ben Carson in an Aug. 13 interview with the Wall Street Journal, announcing changes to the way the Trump administration would interpret the Obama era Affirmatively Furthering Fair Housing regulation.

There’s only one problem. This year, under Division L, Title II of the Consolidated Appropriations Act of 2018, Section 234, Congress passed a provision that states, “None of the funds made available by this Act may be used by the Department of Housing and Urban Development to direct a grantee to undertake specific changes to existing zoning laws as part of carrying out the final rule entitled ‘Affirmatively Furthering Fair Housing’ … or the notice entitled ‘Affirmatively Furthering Fair Housing Assessment Tool’ …”

A similar provision passed the Senate 87 to 9 in 2016.

This overturned part of the regulation that conditions receipt of $3 billion of annual community development block grants to more than 1,200 cities and counties to rezone neighborhoods along income and racial criteria.

The regulation said, “This final rule, and Assessment Tools and guidance to be issued, will assist recipients of Federal funding to use that funding and, if necessary, adjust their land use and zoning laws in accordance with their existing legal obligation to affirmatively further fair housing.”

While Carson is saying he wants to shift from using the grants to make changes to zoning to incentivize utopian goals like racial equality to instead promote economic development and building more overall housing, it does not really matter what the stated goal is.

Congress has prohibited the use of funds to compel changes to zoning by municipalities. Period.

The good news is that HUD has issued a new guidance revisiting the Affirmatively Furthering Fair Housing regulation, which is now up for revisions.

Americans for Limited Government President Rick Manning in a statement said this created an opportunity for HUD to get into compliance with the law Congress passed.

“We appreciate the efforts by Secretary Carson to revisit the Affirmatively Furthering Fair Housing regulation. Congress this year prohibited the use of funds by HUD to compel changes to local zoning via the regulation, and we urge that the revised regulation will comply with the law and remove any mention of zoning mandates as a condition of receiving federal funds,” Manning said.

Manning added, “Zoning is one of the most important functions of local government and it was always vast overreach by the Obama administration to attempt to regulate it, which is why Congress stepped in. Now it is time for the Trump administration to enforce the law and remove any zoning mandates from the books.”

Sen. Mike Lee (R-Utah), who sponsored legislation to end the regulation, said in May after Carson rescinded the regulations assessment tool, called for it to be rescinded in its entirety, saying, “rescinding the Affirmatively Furthering Fair Housing rule is the best way to remove the federal government from yet another overreach into local and state decision making.”

Really, other than rescinding the regulation, removing the zoning requirements is the only way to bring the regulation into compliance with current law.

As the regulation is currently written, it is illegal.

Carson couldn’t consider his proposal to trade “juicy grants” for changes to zoning if he wanted to, because the laws says, “None of the funds made available by this Act may be used by the Department of Housing and Urban Development to direct a grantee to undertake specific changes to existing zoning laws…”

That was Congress’ Article I prerogative using the power of the purse. And President Donald Trump signed the bill into law. Meaning, it’s not optional. Carson has to implement the law.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.