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Federal Housing News

January 27, 2015

NLIHC’s Congressional District Profiles Updated

NLIHC has posted updated Congressional District Profiles for 2015 that include the new members of the 114th Congress, who took office on January 3, 2015. The profiles are one-page snapshots of affordable rental housing and related data for each of the 435 Congressional Districts.

The profiles contain data on housing cost burden and the shortage of affordable and available units by income group, using Comprehensive Housing Affordability Strategy (CHAS) data for 2007-2011. CHAS data are custom tabulations of Census data focusing on housing need and problems. Each profile also contains selected data from NLIHC’s Out of Reach for Metropolitan Statistical Areas (MSAs) and counties that fall into each Congressional District. The profiles also have state-level data on housing cost burden and the shortage of affordable and available units by income group from the 2012 American Community Survey.

NLIHC’s Congressional District Profiles are at

NLIHC’s Out of Reach is at



FHFA Director Mel Watt to Testify in House

The House Committee on Financial Services will hold a hearing on January 27 entitled “Sustainable Housing Finance: An Update from the Director of the Federal Housing Finance Agency.” The hearing’s sole witness will be Federal Housing Finance Agency (FHFA) Director Mel Watt.

According to a Committee memorandum, the purpose of the hearing is to receive an update from FHFA on measures FHFA has taken as conservator of Fannie Mae and Freddie Mac; FHFA’s current Strategic Plan for Fannie Mae and Freddie Mac; the current financial condition of Fannie Mae, Freddie Mac, and the Federal Home Loan Banks (FHLBs); the current state of private sector participation in the housing finance market; whether adequate steps are being taken to encourage additional private capital in this market; and additional actions FHFA has taken as regulator of Fannie Mae, Freddie Mac, and the FHLBs.

Director Watt’s decision to lift the suspension on Fannie Mae’s and Freddie Mac’s obligation to fund the National Housing Trust Fund (NHTF) and the Capital Magnet Fund (CMF) (see Memo, 12/15/2014) is expected to be a topic at the hearing. When Mr. Watt made his announcement, Financial Services Committee Chair Jeb Hensarling (R-TX) issued a press statement expressing objections to Mr. Watt’s action and saying he would call Mr. Watt before the committee early in the new Congress. 

The hearing on January 27 will be at 10:00am ET in room 2141 of the Rayburn House Office Building.

The Committee memorandum on the January 27 hearing is at

Chair Hensarling’s December 11 media release is at


NLIHC Updates NHTF State Allocation Estimates

NLIHC updated its estimates of the amount of funding each state, the District of Columbia, and the U.S. territories will receive as a result of the Federal Housing Finance Agency (FHFA) directing Fannie Mae and Freddie Mac to begin setting aside funds for the National Housing Trust Fund (NHTF) and Capital Magnet Fund (CMF) (see Memo, 12/15/14).

The total amount in the first year will depend on the volume of business for Fannie Mae and Freddie Mac in 2015. The statute requires that the companies transfer 4.2 basis points of their annual volume of business to fund the NHTF and the CMF, 65% for the NHTF. The new estimates are based on $250 million or $500 million being available for the NHTF in February 2016.

The estimates for each state are based on HUD’s proposed rule for the formula for allocating NHTF dollars (see Memo, 12/4/09) and 2007-2011 Comprehensive Housing Affordability Strategy (CHAS) data, the newest available data.

The proposed allocation formula gives a combined weight of 75% to the two factors in the formula that address the needs of extremely low income (ELI) renter households, those with income at or below 30% of area median income (AMI). One of these two factors, the ratio of the shortage of standard rental units both affordable and available to ELI renters in the state to this shortage at the national level, has the highest priority with a weight of 50%. The other factor addressing ELI renters has a weight of 25% and reflects renter households paying more than 50% of their income for rent and utilities, or living with incomplete kitchen or plumbing facilities, or having more than one person per room.

The remaining two factors in the formula are weighted at 12.5% each and address very low income renters (VLI), those with income between 30% and 50% of AMI. These two factors reflect the shortage of affordable and available rental units for VLI households, and the number of VLI renter households paying more than 50% of their income for rent and utilities, or living with incomplete kitchen or plumbing facilities, or having more than one person per room.

The formula also takes into account the relative cost of construction in each state compared to the national cost of construction.

The minimum allocation that a state can receive is $3 million, so any states with an estimated allocation below that amount will receive $3 million, and the allocations to all other states will be adjusted down accordingly.

The District of Columbia and Puerto Rico are defined as states for the purpose of receiving NHTF dollars. In addition, allocations to American Samoa, Guam, the Northern Mariana Islands, and the Virgin Islands are based on the proportion of renter households in each of these areas to the total number of renter households in the U.S. These amounts are subtracted from the total available for the 50 states, the District of Columbia, and Puerto Rico.

NLIHC’s updated estimates of state allocation amounts are at


NHTF Final Rule Clears OMB

On January 21, the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) completed its review of the final NHTF regulations. The rule is now back at HUD, awaiting publication.

The same day the final rule is published in the Federal Register, HUD must submit a copy to the Senate and the House of Representatives. Congress may review the rule and may consider and pass legislation to overturn the rule, which the President may sign or veto. Such adverse action by Congress is extremely rare. Assuming the final NHTF rule clears any Congressional objections, the rule should take effect 60 days publication in the Federal Register.

Once a final rule is published, NLIHC will analyze it and prepare a report on its provisions, including any differences from the proposed rule.

Notice that OIRA completed review of the final NHTF rule is at;jsessionid=096EBA10CECCED765290243A52B32523

To review the proposed rule and NLIHC’s analysis of it, go to



House Budget Hearing, Senate Budget Timing, New Sequester FAQ

The House Committee on the Budget, chaired by Representative Tom Price (R-GA), has scheduled a hearing for January 27 entitled “The Congressional Budget Office’s Budget and Economic Outlook.” The Congressional Budget Office (CBO) produces nonpartisan, independent analyses of budgetary and economic issues to support the Congressional budget process. CBO Director Douglas Elmendorf is the hearing’s sole witness. The hearing will be at 10:30am ET in room 210 of the Cannon House Office Building.

Senate Committee on the Budget Chair Mike Enzi (R-WY) said on January 22 that he intends to mark up a budget resolution in committee during the third week of March and to bring the resolution to the full Senate for a vote in the last week of March.

The House and Senate Budget Committees develop their own budget resolutions, which are subsequently considered by their respective chambers. Then the House and Senate work to have one final, concurrent budget resolution agreed upon by both chambers by April 15. In recent years, Congress has not produced a concurrent budget resolution and each chamber operated under its own resolution. With both chambers controlled by the same party this year, a concurrent resolution is more likely.

The FY16 budget resolution will set the overall framework for federal spending, including caps for nondefense discretionary spending on programs. Most housing and community development programs are in the nondefense discretionary part of the federal budget.

The concurrent budget resolution could include nondefense discretionary spending caps lower than the Budget Control Act (BCA) of 2011 (see Memo, 8/5/11) requires for FY16, making it very difficult for the appropriations committees to produce minimally acceptable appropriations bills. If the FY16 budget resolution breaches the spending caps established by the BCA, then a sequester will occur equal to the amount above the caps. If the caps are not breached, there will be no sequester. But if the caps are very low, funding for housing and community development programs will suffer regardless.

As explained in a January 16 publication by the Democratic Caucus of the House Budget Committee, Frequently Asked Questions about Sequestration, there is no waiver of the sequester unless there is a declaration of war. “The only option for changing it would be to enact legislation to amend the BCA, which Congress has already done twice (in December 2012 and December 2013).”  The changes made to the BCA in December 2013 by the Bipartisan Budget Act of 2013 (see Memo, 12/13/2013) provided significant relief for discretionary spending in FY14 and FY15, but not for future years. “The new caps will keep the defense and non-defense discretionary levels basically flat from FY 2014 through FY 2016,” according to the paper. If these flat spending caps remain in place and no changes to the BCA are enacted, appropriation levels for HUD programs in FY16 could be the worst in several years.

The sequester FAQ is at,



Senate Banking Committee Subcommittee Leaders Announced

Senators Richard Shelby (D-AL) and Sherrod Brown (D-OH), Chair and Ranking Member of the Senate Committee on Banking, Housing, and Urban Affairs respectively, announced the panel’s subcommittee chairs and ranking members on January 22 and 23. They are:

Subcommittee on Housing, Transportation, and Community Development

-   Chair - Senator Tim Scott (R-SC), a new member of the Committee

-   Ranking Member - Senator Robert Menendez (D-NJ)

Subcommittee on Economic Policy

-   Chair - Senator Dean Heller (R-NV)

-   Ranking Member - Senator Elizabeth Warren (D-MA)

Subcommittee on Securities, Insurance, and Investment

-   Chair - Senator Mike Crapo (R-ID), Committee Ranking Member in the last Congress

-   Ranking Member - Senator Mark Warner (D-VA)

Subcommittee on Financial Institutions and Consumer Protection

-   Chair - Senator Patrick Toomey (R-PA)

-   Ranking Member - Senator Jeff Merkely (D-OR)

Subcommittee on National Security and International Trade and Finance

-   Chair - Senator Mark Kirk (R-IL)

-   Ranking Member - Senator Heidi Heitkamp (D-ND)


House Financial Services Committee Democrats Appointed to Subcommittees

On January 22, House Committee on Financial Services Ranking Member Maxine Waters (D-CA) announced the Democratic members for the Financial Services subcommittees.

Subcommittee on Housing and Insurance: Representative: Emanuel Cleaver (D-MO) will serve as Ranking Member. Other Democratic members are Representatives Nydia Velázquez (D-NY), Joyce Beatty (D-OH), Dan Kildee (D-MI), Michael Capuano (D-MA), Al Green (D-TX), Gwen Moore (D-WI), Keith Ellison (D-MN), and William “Lacy” Clay (D-MO).

Subcommittee on Capital Markets and Government Sponsored Enterprises: Representative Carolyn Maloney (D-NY) will serve as Ranking Member. Other Democratic members are Representatives Brad Sherman (D-CA), Rubén Hinojosa (D-TX), Stephen Lynch (D-MA), David Scott (D-GA), Keith Ellison (D-MN), Ed Perlmutter (D-CO), James A. Himes (D-CT), John Carney (D-DE), Terri A. Sewell (D-AL), Bill Foster (D-IL), Patrick Murphy (D-FL), and Gregory Meeks (D-NY).

Subcommittee on Oversight and Investigations: Representative Al Green (D-TX) will be the Ranking Member. Other Democratic members are Representatives Emanuel Cleaver (D-MO), Joyce Beatty (D-OH), Juan Vargas (D-CA), Denny Heck (D-WA), Keith Ellison (D-MN), John Delaney (D-MD), Kyrsten Sinema (D-AZ), and Michael Capuano (D-MA).


House Financial Services Committee Approves Oversight Plan

The House Committee on Financial Services approved its oversight plan during a mark-up on January 22. Regarding housing, the plan states, “The Committee will conduct oversight of the mission, operations, and budgets of Department of Housing and Urban Development (HUD), the Rural Housing Service (RHS), and the [Neighorhood] Reinvestment Corporation. The Committee will review current HUD and RHS programs with the goal of identifying inefficient and duplicative programs for potential elimination or streamlining.”

During the markup, Committee Chair Jeb Hensarling (R-TX) said, “We will do everything within our power to make sure the agencies under our jurisdiction treat the funds they are appropriated, the funds they have at their disposal, taxpayer funds – that they treat them with respect….No one in Washington – Republican or Democrat – should ever be allowed to carelessly spend the hard-earned taxpayers’ money. And that is why this committee will continually and vigilantly monitor every agency and every program under our jurisdiction.”

Ranking Member Maxine Waters’ (D-CA) opening remarks directly addressed the Committee’s lack of attention to low income housing needs. She said, “Last Congress, this Committee held one single hearing on public and assisted housing – sending a clear message regarding the majority’s lack of interest in the housing needs of poor, elderly, and disabled Americans. That track record is shameful – especially given the devastating sequester cuts that crippled important programs that help low and moderate income families. And Republicans continue to block important housing bills, including those that would protect tenants from foreclosure, preserve homeownership, and increase access to credit for credit-worthy borrowers.”

Representative Keith Ellison (D-MN) expressed hope that the Committee will spend much of its time responding to the needs of people who are struggling to make ends meet, and that it was the responsibility of the Committee to improve the living conditions of the poor. He pointed out that eleven million families pay more than half of their income for rent, and that only one in four families who qualify for housing assistance actually receives it.  

The oversight plan is at

The hearing and other material from the markup are at



Three-Year Income Recertification Bill Introduced

Representatives Earl Perlmutter (D-OR) and Steve Stivers (R-OH) reintroduced H.R. 233, a bill that would reduce the frequency of income recertifications for HUD rent assisted households whose income is at least 90% from fixed-income sources.  Recertifications would be only every three years, instead of annually. Because a tenant’s share of rent is based on income, recertifications are done to make sure tenants are paying the correct amount of rent. The process can be time-consuming for tenants and housing authority staff.

The bill would allow the HUD Secretary to define “fixed income.” Various versions of rent assistance reform legislation have defined fixed income to include Social Security or Supplemental Security Income (SSI).

The bill was introduced on January 8 and referred to the House Committee on Financial Services. It is a reintroduction of an identical bill from the last Congress (see Memo, 12/8/14


Two House Bills Would Address Low Income Veterans’ Housing Needs

On January 9, Representative Al Green (D-TX) introduced two bills to address the housing needs of veterans. 

H.R. 251, the “Homes for Heroes Act of 2015,” would establish the position of Special Assistant for Veterans’ Affairs at HUD. The bill would also require annual submission of the Supplemental Veterans’ Annual Homeless Assessment Report (AHAR). While the current Administration has submitted a Veterans’ AHAR annually, the veteran component of the AHAR is not mandated by law. The measure, which currently has 17 cosponsors, was referred to the House Committee on Financial Services. The bill was introduced in the 113th Congress and passed the House by a vote of 420 to 3, but was never taken up by the Senate and thus died at the end of last Congress.

H.R. 252, the “Comprehensive Homes for Heroes Act of 2015,” would authorize the HUD Secretary to provide assistance to nonprofits and consumer cooperatives to expand the supply of supportive housing for very low income veteran households. The assistance authorized under the bill could be awarded as planning grants, capital advance funds, project-based rental assistance, or tenant-based rental assistance. The measure would exclude veterans' benefits from income for purposes of rent determination for HUD-assisted housing. As with H.R. 251, the bill would create the position of Special Assistant for Veterans’ Affairs at HUD and require annual submission of the Veterans’ AHAR. This bill also was introduced in the 113th Congress, but did not advance out of committee. H.R. 252 currently has 18 cosponsors and was referred to the House Committee on Financial Services and the House Committee on Ways and Means.

Representative Green’s media release is at



U.S. Supreme Court Hears Oral Arguments On Disparate Impact

On January 21, the U.S. Supreme Court heard oral arguments in the case of Texas Department of Housing and Community Affairs vs. The Inclusive Communities Project. NLIHC signed one of 22 amici curiae supporting the disparate impact standard in housing discrimination cases (see Memo, 1/12). The Inclusive Communities Project (ICP) sued the Texas Department of Housing and Community Development over the siting of most Low Income Housing Tax Credit properties in predominately black communities in Texas and won in the lower court. Texas appealed to the U.S. Supreme Court.

NLHIC participated in a rally in support of the disparate impact standard outside the Supreme Court. During the three-hour rally, speeches were made by civil rights and fair housing leaders, plaintiffs in several Fair Housing cases, and NLIHC President and CEO Sheila Crowley.

At issue is whether the Fair Housing Act of 1968 bars not only intentional discrimination, but also policies and practices that have a disparate impact – that do not have a stated intent to discriminate but that have the effect of discriminating against the Fair Housing Act’s protected classes – race, color, national origin, religion, sex, familial status, or disability.

Section 804(a) of the Fair Housing Act makes it unlawful “[t]o refuse to sell or rent…, or otherwise make unavailable or deny, any dwelling to any person because of race, color, national origin, religion, sex, familial status, or handicap.” (emphasis added)

Shortly after passage of Title VIII of the Civil Rights Act of 1968, which is the Fair Housing Act, federal circuit courts unanimously upheld that violations of the Fair Housing Act can be established through a disparate impact standard of proof. By 1988 when the Fair Housing Act was amended to expand its scope, nine circuit courts of appeal had found the disparate impact standard necessary to enforce the law.  Under the disparate impact standard, courts assess discriminatory effect and whether an action perpetuates segregation, whether the discrimination is justified, and whether less discriminatory alternatives exist for the challenged practice.

The Solicitor General of the State of Texas, Scott Keller, opened the oral arguments asserting that the Fair Housing Act does not recognize disparate impact claims for two reasons:

The plain text of the Fair Housing Act does not use effects- or results-based language, and therefore is limited to intentional discrimination, and

The canon of constitutional avoidance compels this interpretation. Mr. Keller is referring to the 14th Amendment to the U.S. Constitution, which calls for equal protection of the laws.

Most of the Justices’ questioning of Mr. Keller focused on his first point. Justice Sonya Sotomayor noted that in other statutes, such as Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, also did not use the words ‘disparate impact’ early on, yet the Supreme Court recognized that it applies the disparate impact standard. Mr. Keller responded by stating that the Court needed to focus on the plain text of the Fair Housing Act, arguing that “make unavailable” was not an active verb, compared to the verb “adversely affect” used in Title VII, which has an established disparate impact standard.

Referring to the 1988 amendments to the Fair Housing Act that provided three exemptions from liability under the disparate impact standard, Justice Antonin Scalia commented, “What hangs me up…is the fact that Congress seemingly acknowledged the effects test later in legislation when it said that certain effects will not qualify…Why doesn’t that kill your case? When we look at a provision of law, we look at the entire provision of law, including later amendments.”

Picking up the thread of the 1988 amendments, Justice Elena Kagan reminded Mr. Keller that when Congress considered those amendments they were aware that ten circuit courts of appeals had said that disparate impact was a valid action under the Fair Housing Act and did not negate those decisions.  In addition, Congress explicitly articulated the three circumstances in which disparate impact would not apply.  Whereupon Justice Scalia commented, “That’s a very strange thing for Congress to do, to believe that those court of appeals’ opinions are wrong and yet enact these exemptions. So even though those opinions are wrong, they will not apply to these things. That’s very strange.” 

Justice Stephen Breyer weighed in saying:

“The law has been against you…And it’s universally against you. And as far as I can tell, the world hasn’t come to an end….this has been the law of the United States uniformly throughout the United States for 35 years…and all the horribles that are painted don’t seem to have happened or at least we have survived them. So, why should this Court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people, has not produced disaster…?”

In response to oral arguments offered U.S. Solicitor General Donald B. Verrilli as a friend of the court in support of ICP, Chief Justice John Roberts questioned what he perceived to be the difficulty of deciding what impact is good and bad. He posited two proposals both with good impacts: one to build new housing in a low income area that would primarily benefit minorities, another to build new housing in a more affluent area, thus promoting integration. Mr. Verrilli responded that HUD or the courts must look at which is having a disparate impact and apply the test that the courts and HUD have used for many years, that is, analyze the justification for a policy or practice and determine whether there is a race-neutral alternative that has less harmful effects.

Mr. Verrilli addressed the issue of constitutional avoidance, stating that in the context of Title VII, Mr. Keller had argued that the only way to avoid disparate impact liability is to engage in race-based remedies. Mr. Verrilli asserted that in other Fair Housing cases adjudicated by eleven circuit courts, the remedy was substituting one race-neutral rule for another race-neutral rule.

The issue of constitutional avoidance was given greater discussion in Justice Scalia’s questioning of Michael M. Daniel, attorney for ICP.  Mr. Daniel said, “It’s clear from the Congressional Record Congress was worried and concerned about making units only available in low income, minority areas that it called ‘ghettos.’”  Justice Scalia quickly interjected that the word “unavailable” was not the problem; the problem was unavailable on the basis of race. “Let’s not equate racial disparity with discrimination…what you are arguing here is that racial disparity is enough to make whatever policy adopted unlawful.”

Much of the discussion with Mr. Daniel reiterated how the disparate impact tests has been applied for many years, that is, the justification for a policy or practice is analyzed, and the party challenged must show that there are no alternative policies or practices that do not have a disparate effect.

An expanded summary of the oral arguments prepared by NLIHC is at

The transcript of the oral arguments is at

The audio of the oral arguments is at





STATE OF THE UNION MESSAGE ADDRESSES BROAD THEMES, TOUCHES ON HOUSING. President Obama’s January 20 speech began with the story of a Minnesota family who recently were able to buy their first home. A later mention of “lower mortgage premiums” apparently referred to the President's recent action to lower HUD FHA mortgage costs (see HAC News, 1/7/15).  

For the first time in several years, the Administration’s budget request will be released on time. The Budget Control Act’s spending caps will apply to final appropriations for FY16. Check on February 2 for details.

Chairs and ranking minority members of the housing-relevant committees in the new 114th Congress are mostly in place. In the Senate, Richard Shelby (R-AL) and Sherrod Brown (D-OH) have been named chairman and ranking minority member on the Banking Committee. For the Appropriations Committee those spots are held by Thad Cochran (R-MS) and Barbara Mikulski (D-MD). New Senate Appropriations subcommittee chairmen and ranking members are Jerry Moran (R-KS) and Jeff Merkley (D-OR) on Agriculture and Susan Collins (R-ME) and Jack Reed (D-RI) on Transportation-HUD. In the House, Jeb Hensarling (R-TX) and Maxine Waters (D-CA) continue as the chairman and ranking member of the Financial Services Committee. For that panel’s Housing and Insurance Subcommittee, Reps. Blaine Luetkemeyer (R-MO) and Emanuel Cleaver (D-MO) are the new leaders. Harold Rogers (R-KY) and Nita Lowey (D-NY) continue as chairman and ranking member of the House Appropriations Committee. Rep. Robert Aderholt (R-AL) will continue as chairman of the House Appropriations Subcommittee on Agriculture and Rural Development, and Rep. Mario Diaz-Balart (R-FL) will be the new chairman of the Subcommittee on Transportation-HUD. Ranking minority members are Rep. Sam Farr (D-CA) continuing on the Agriculture Subcommittee and Rep. David Price (D-NC) as the new ranking on T-HUD.  

In response to comments received on its July 2013 proposed rule on Affirmatively Furthering Fair Housing, HUD is considering giving states, insular areas, small PHAs, and small entitlement jurisdictions more time than others to prepare their first Assessments of Fair Housing. Comments on this specific topic are due February 17. Contact Camille Acevedo, HUD, 202-708-1793.

Intended to reduce burdens on industry and the EPA, a proposed rule would eliminate the requirement that refresher training for renovators have a hands-on component, remove jurisdiction-specific certification and accreditation requirements, and clarify requirements for training providers. Comments are due February 13. Contact Marc Edmonds, EPA, 202-566-0758.

Comments are due March 16. One proposed rule would amend HUD’s regulations for Management and Occupancy Reviews (MORs) at project-based Section 8 properties, and reduce payments HUD makes to owners for vacant project-based Section 8 or Section 202 units. Another would reduce the frequency of MORs. Contact Lauryn Alleva, HUD, 202-708-3730.

Administrative Notice 4778 (Jan. 5, 2015) clarifies and updates AN 4747 (Feb. 10, 2014) (see HAC News, 8/20/14), applying the Violence Against Women Act to USDA’s multifamily programs. Contact Barbara Chism, RD, 202-690-1436.

An Unnumbered Letter dated Dec. 17, 2014 tells field staff that owners of multifamily properties cannot avoid the prepayment process by intentionally defaulting on loan payments. Contact an RD state office.

Administrative Notice 4780 (Nov. 12, 2014) provides guidance on RD compliance with HUD’s rule on preventing lead-based paint poisoning. Contact an RD state office.

HUD reported that recently announced premium cuts (see HAC News, 1/7/15) will save FHA borrowers an average of $900 annually. To break down that average, realty information company Realtytrac mapped data showing the savings for median priced homes in many metro counties, ranging from $118 to over $7,900. HousingWire lists the counties with the lowest and highest savings.

HUD compiled data from state housing agencies on Low Income Housing Tax Credit tenants’ race and ethnicity, disability status, family composition and age, household income, monthly rental payments and use of rental assistance. Understanding Whom the LIHTC Program Serves presents the information nationally and for each state.

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