Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/60

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Alito, J., dissenting

Here, 43 years after the FHA was enacted and nine days after the Court granted certiorari in Magner (the "rodent infestation" case), HUD proposed "to prohibit housing practices with a discriminatory effect, even where there has been no intent to discriminate." Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 76 Fed. Reg. 70921 (2011). After Magner settled, the Court called for the views of the Solicitor General in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., 568 U. S. ___ (2012), another case raising the same question. Before the Solicitor General filed his brief, however, HUD adopted disparate-impact regulations. See Implementation of the Fair Housing Act's Discriminatory Effects Standard, 78 Fed. Reg. 11460 (2013). The Solicitor General then urged HUD’s rule as a reason to deny certiorari. We granted certiorari anyway, 570 U. S. ___ (2013), and shortly thereafter Mount Holly also unexpectedly settled. Given this unusual pattern, there is an argument that deference may be unwarranted. Cf. Young v. United Parcel Service, Inc., 575 U. S. ___, ___ (2015) (slip op., at 16–17) (refusing to defer where “[t]he EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari” (discussing Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944))).[1]

There is no need to dwell on these circumstances, however, because deference is inapt for a more familiar reason: The FHA is not ambiguous. The FHA prohibits only disparate treatment, not disparate impact. It is a bedrock rule that an agency can never "rewrite clear statutory terms to suit its own sense of how the statute should

  1. At argument, the Government assured the Court that HUD did not promulgate its proposed rule because of Magner. See Tr. of Oral Arg. 46 (“[I]t overestimates the efficiency of the government to think that you could get, you know, a supposed rule-making on an issue like this out within seven days”). The Government also argued that HUD had recognized disparate-impact liability in adjudications for years. Ibid.