Affirmatively Furthering Fair Housing (AFFH), a controversial Department of Housing and Urban Development (HUD) rule first introduced by the Obama administration, is being resurrected by Biden’s HUD.

The history of AFFH is winding, and the rule has been through various evolutions since its introduction. Under Secretary Castro, AFFH was proposed in 2013 and gradually revised through a public comment process. The finalized 2015 rule created various reporting and planning requirements intended to ensure that program participants were taking steps to “affirmatively further fair housing” through “overcom[ing] historic patterns of segregation” and “achiev[ing] truly balanced and integrated living patterns,” among other objectives.

Before the Republican presidential primaries, Ben Carson publicly criticized AFFH, and shortly after Carson assumed office as Secretary, HUD suspended the rule under his guidance. This move resulted in legal action, with civil rights groups bringing a suit against HUD, which a judge later dismissed.

After suspending the rule, Carson looked for a replacement and proposed one intended to streamline reporting requirements and encourage local deregulation in 2019, following complaints that the requirements were costly and feedback that local deregulation would do more to reduce segregation and improve affordability than anything else. But by 2020, President Trump was attacking AFFH from his Twitter account, and the administration seemed to decide it was prudent to end the rule altogether. Unsurprisingly, AFFH’s demise was met with cheers and jeers from various quarters.

Although AFFH was gone, the incoming administration had not forgotten it. Following his election, Biden promised to undo the previous administration’s actions. And this month, Biden’s HUD published a new proposed rule to bring back the original Obama-era AFFH.

Unfortunately, Biden’s proposed rule seems to suffer from some of the same issues as the initial version of AFFH. As highlighted previously, AFFH has a tenuous relationship with Fair Housing Act (FHA) legislation on which it is based. A read of FHA reveals that the original legislation never mentions segregation or “concentration” (referring to the concentration of poverty or minorities), and it hardly mentions affirmatively furthering fair housing.

Similar to the 2015 rule, the proposed rule is focused on segregation and uses some version of the word 122 times. The AFFH is supposed to be based on the FHA, which uses the term “segregated” or “segregation” zero times.

From a process perspective, it would be an enormous improvement for Congress to clarify the goals of previous legislation rather than leaving determinations to a fickle executive branch. At a minimum, the future of the regulation is uncertain, whether or not Biden’s HUD temporarily resurrects it.

The newly proposed rule also requires that grantees answer questions about whether zoning regulations constitute a potential barrier to housing affordability and suggests that reducing land use and zoning restrictions is one possible fair housing goal. However, as past research indicates, eliminating zoning regulations should be the primary focus for policymakers serious about improving housing choice, affordability, and even reducing segregated living patterns. Fortunately, many states and local governments are tackling local regulatory issues without HUD prodding.

For these and other reasons, many of the original criticisms of AFFH apply to the latest proposed version. The Biden administration may resurrect AFFH, but more effective and enduring methods of accomplishing fair housing goals are available.