Apartment Groups Ask Supreme Court to Decide Whether Participation in Section 8 Housing Should be Mandatory

By Anuradha Kher, Online News Editor Washington, D.C.–An alliance of apartment organizations have joined forces to file a “friend of the court” brief asking the United States Supreme Court to decide 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 voucher holders based on their source of income.“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,” says 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.”The National Multi Housing Council (NMHC) and the National Apartment Association (NAA), along with the Louisville (KY) Apartment Association, are spearheading the effort. The 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 are joining in the efforts.Until now, all 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,” says 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.”Arbury also added that though states and localities are struggling with a shortage of affordable housing, mandating participation in the Section 8 program is not an effective solution to the problem and could actually jeopardize the success of the Section 8 programs.