NMHC/NAA Seek Ruling on Section 8 Program

An alliance of apartment organizations have joined forces to file a “friend of the court” brief asking the United States Supreme Court to weigh in on whether states and localities can force property owners to participate in the federal Section 8 program by passing laws that make it illegal to deny a voucher holder based on their “source of income.” 

The effort is spearheaded by the National Multi Housing Council (NMHC) and the National Apartment Association (NAA) and the Louisville (KY) Apartment Association.  They are joined by National Leased Housing Association, the Apartment and Office Building Association of Metropolitan Washington; the Delaware Apartment Association, the Greater Lexington (KY) Apartment Association, the Mobile Bay Area Apartment Association and the New Jersey Apartment Association.

“When Congress created the Section 8 program, it explicitly made the program voluntary because it recognized that there are costs and burdens imposed on property owners who choose to participate,” said Jim Arbury, NMHC/NAA Senior Vice President of Government Affairs. “Now states and localities are trying to alter the voluntary nature of the program by passing so-called “source of income” non-discrimination laws that essentially make property owner participation mandatory.” 

“Not only do these state and local laws contradict Congressional intent, they also impose an unconstitutional burden on property owners,” explained Arbury.  “We believe that the voluntary nature of the federal law should preempt these state and local laws.” 

To date, all of the federal appeals courts that have considered the preemption issue have upheld the supremacy of federal law or Congressional intent where it directly conflicts with a state or local law.  However, state court rulings – including the Maryland state ruling at issue in the brief--have rejected the federal preemption argument in the context of the Section 8 program (Glenmont Hills Associates Privacy World at Glenmont Metro Center, v. Montgomery Country, Maryland).

“Based on these conflicting rulings at the state and federal level, we believe the case is appropriate for review by the U.S. Supreme Court,” said Douglas Culkin, CAE, President of NAA.  “Unless the Supreme Court acts, these conflicts are likely to become more numerous as more and more state and local governments attempt to effectively amend a federal statute.”

“We understand that states and localities are struggling with a shortage of affordable housing, but mandating participation in the Section 8 program is not an effective solution to that problem,” said Arbury.  “In fact, these rulings actually jeopardize the continued success of the Section 8 program because the practical result of such laws could increase rental rates and reduce the number of units available.”

Seventeen cities, including Los Angeles, New York, Philadelphia, Seattle, St. Louis and Washington, D.C. have “source of income” anti-discrimination rules.  Thirteen states also have such laws: California; Connecticut; Maine; Maryland; Massachusetts; Minnesota; New Jersey; North Dakota; Oklahoma; Oregon; Utah; Vermont; and Wisconsin.

Source: NMHC