SCOTUS Hamstrings Federal Agencies, a Blow to Housing and Health Equity

This article is reprinted with permission from Shelterforce.

The June Supreme Court decision to overturn the legal precedent known as Chevron deference marks a significant shift in administrative law with broad implications for various sectors, including housing and public health.

Chevron deference, established in 1984 by the landmark case Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., required courts to defer to a federal agency’s interpretation of ambiguous statutory language as long as it was reasonable. The removal of this principle has the potential to negatively affect health equity, particularly through its effects on housing policies and regulations.

Understanding Chevron deference and its reversal

The Chevron deference decision was a cornerstone of administrative law, enabling federal agencies like the Department of Housing and Urban Development (HUD) and the Department of Health and Human Services (HHS) to interpret and implement complex regulations from a position of authority. This flexibility allowed agencies to address evolving challenges and adapt to new scientific evidence and changing circumstances efficiently.

The Supreme Court’s decision to overturn Chevron deference shifts the power to interpret ambiguities in laws and regulations to the courts. Now, agencies will have to delay their work as they wait for court rulings to clarify legal ambiguities. Private parties, industry groups, or states may also bring more legal challenges to these regulations, causing further delays as agencies wait out and engage in litigation.

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One example of the flexibility Chevron deference granted agencies is HUD’s interpretation of the Fair Housing Act (FHA). The act prohibits housing discrimination but leaves open the possibility of argument around the meaning and intent of the phrase “disparate impact”— policies that are neutral at face value but lead to discrimination in practice. In 2013, HUD issued a rule clarifying that disparate impact claims could be brought under the FHA. While the courts had generally agreed, there was variation in how the standards were applied before HUD’s rule. The new standard ensured that claims would be evaluated using the same criteria across the board.

Similarly, HUD used the flexibility granted it by Chevron deference to interpret the Residential Lead-Based Paint Hazard Reduction Act of 1992. The agency established regulations that defined hazard levels and provided guidelines for lead abatement in older housing, particularly housing for low-income families. This allowed HUD to adapt its rules to new research on lead exposure and flexibly address evolving public health concerns.

What the reversal means for housing policies and health equity

Stable and affordable housing is a fundamental determinant of health. The overturning of Chevron deference could significantly affect the crossover between health and housing policies more than it might impact them individually. These overlapping policies require a nuanced understanding of how social determinants of health are addressed. Without deference to the agencies’ expertise, HUD and HHS may find it harder to coordinate their policies. This could result in fragmented or inconsistent enforcement, particularly in addressing the compounded inequities faced by marginalized communities.

With the overturning of Chevron deference, the administrative capacity of federal agencies to swiftly interpret and implement housing regulations could be compromised, directly undermining progress toward health equity in housing policy. Several specific impacts could arise from this change:

1. Increased Litigation and Delays: Without Chevron deference, federal agencies could face challenges to their interpretation and enforcement of housing regulations from opponents of regulation—especially anti-regulation advocates. This would likely result in increased litigation, with the judiciary playing a more active role in interpreting housing regulations. This could delay the rollout of essential housing programs, like affordable housing initiatives and tenant protections. Prolonged legal battles would divert resources from enforcing existing regulations and developing new standards, worsening housing instability and exacerbating health disparities.
2. Weakened Affordable Housing Programs: Programs like the Low-Income Housing Tax Credit (LIHTC) and Section 8 Housing Choice Vouchers rely on complex regulatory frameworks that require continuous interpretation and adjustment, often by federal agencies. Increased judicial scrutiny resulting from Chevron’s reversal could slow the adaptation of these programs, reducing their effectiveness. State agencies may vary in their interpretations of LIHTC, complicating regulatory consistency.
3. Inconsistent Public Health and Housing Standards: Federal agencies set and enforce housing standards that affect public health, such as regulations on lead paint, mold, and other environmental hazards. Since many of these regulations are derived from ambiguous statutes, their enforcement could now depend on the decisions of lower federal courts, creating patchwork enforcement of vital health and safety measures.

The role of Skidmore and Auer deference after Chevron’s reversal

While Chevron deference has been overturned, other forms of deference still remain relevant in how courts interpret agency decisions. Skidmore deference, a doctrine from 1944 (Skidmore v. Swift & Co.), grants weight to an agency’s interpretation based on its reasoning and expertise but leaves more discretion to courts. Similarly, Auer deference (established in Auer v. Robbins, 1997) allows courts to defer to an agency’s interpretation of its own ambiguous regulations, though it was limited by a 2019 ruling.

For housing policies, this means that while federal agencies will face more judicial scrutiny, they can still influence housing regulations—if they provide well-reasoned, consistent, and thorough interpretations. However, this judicial shift creates more unpredictability, which is why advocacy groups and grassroots organizations may need to play a more active role in pushing for fair and equitable housing policies that safeguard public health.

By understanding the fundamental shifts in administrative law, stakeholders in housing and health equity can better navigate the complexities that come with the changing deference standards.

How we can keep fighting health disparities with housing policy

Despite the overturning of Chevron deference, there are strategic approaches that policymakers, advocates, and community organizations can adopt to continue advancing health equity through housing policy:

1. Strengthen Local and State Initiatives: With potential delays and uncertainties at the federal level, local and state governments have an opportunity to play a more significant role in addressing housing and health disparities. By enacting robust housing policies and directing resources to community-based health initiatives, local authorities can fill critical gaps in federal action, ensuring that vulnerable populations continue to receive the support they need.
2. Continue Community-Based Advocacy: Community organizations and advocacy groups can help by continuing to monitor judicial decisions that impact federal housing and health regulations. By staying vigilant, these groups can encourage local lawmakers to pass relevant policies that protect marginalized communities. Grassroots advocacy, alongside coalition building, enables these groups to influence local policy decisions and ensure that the needs and voices of underrepresented populations are prioritized.
3. Collaborate Across Sectors: Collaboration between housing organizations, health care providers, and legal advocates is vital for addressing the complexities of the post-Chevron regulatory landscape. By pooling their expertise, these sectors can create comprehensive strategies that address the intertwined issues of housing and health. Organizations like the Build Healthy Places Network, which works to improve health outcomes through partnerships between the community development and health care sectors, exemplify the power of cross-sector collaboration.
4. Continue Innovative Housing and Health Programs: Programs that integrate housing and health services, such as medical-legal partnerships and housing-first initiatives, have become critical tools despite the regulatory hurdles. These programs provide holistic support by addressing both housing and health needs simultaneously, helping to break the cycle of poverty and health inequity. Their approach can serve as a model for other regions looking to address disparities.

Moving forward: A call to action

The Supreme Court’s decision to overturn Chevron deference is an obvious setback for those of us who are committed to advancing health equity and understand the significant role that housing plays in public health. But this moment is a powerful reminder that we are not without options or agency. I see this as a call for us to be more adaptive, resilient, and innovative in our approach. We can no longer rely solely on federal agencies to drive progress, but that does not mean we are powerless. Now more than ever, local initiatives, community-based advocacy, and cross-sector partnerships are essential. We must take ownership of the solutions—whether it’s pushing for stronger local housing policies, organizing grassroots campaigns, or collaborating with health care and legal advocates. These are not just strategies; they are the paths forward to ensure that safe, stable, and affordable housing remains a reality for all, especially those who have been historically marginalized.