Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/35

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Cite as: 576 U. S. ____ (2015)

Thomas, J., dissenting

EEOC's strategy paid off. The Court embraced EEOC's theory of disparate impact, concluding that the agency's position was "entitled to great deference." See Griggs, 401 U. S., at 433–434. With only a brief nod to the text of §2000e–2(a)(2) in a footnote, id., at 426, n. 1, the Court tied this novel theory of discrimination to "the statute's perceived purpose" and EEOC's view of the best way of effectuating it, Smith, 544 U. S., at 262 (opinion of O’Connor, J.); see id., at 235 (plurality opinion). But statutory provisions—not purposes—go through the process of bicameralism and presentment mandated by our Constitution. We should not replace the former with the latter, see Wyeth v. Levine, 555 U. S. 555, 586 (2009) (Thomas, J., concurring in judgment), nor should we transfer our responsibility for interpreting those provisions to administrative agencies, let alone ones lacking substantive rulemaking authority, see Perez v. Mortgage Bankers Assn., 575 U. S. ___, ___–___ (2015 (Thomas, J., concurring in judgment) (slip op., at 8–13).

    jurisprudence may not be a thing of the past. According to a joint congressional staff report, after we granted a writ of certiorari in Magner v. Gallagher, 564 U. S. ___ (2011), to address whether the Fair Housing Act created disparate-impact liability, then-Assistant Attorney General Thomas E. Perez—now Secretary of Labor—entered into a secret deal with the petitioners in that case, various officials of St. Paul, Minnesota, to prevent this Court from answering the question. Perez allegedly promised the officials that the Department of Justice could not intervene in two qui tam complaints then pending against St. Paul in exchange for the city’s dismissal of the case. See House Committee on Oversight and Government Reform, Senate Committee on the Judiciary, and House Committee on the Judiciary, DOJ’s Quid Pro Quo With St. Paul: How Assistant Attorney General Thomas Perez Manipulated Justice and Ignored the Rule of Law, Joint Staff Report, 113th Cong., 1st Sess., pp. 1–2 (2013). Additionally, just nine days after we granted a writ of certiorari in Magner, and before its dismissal, the Department of Housing and Urban Development proposed the disparate-impact regulation at issue in this case. See 76 Fed. Reg. 70921 (2011).