Housing Resources Bundles: Distributive Justice and Federal Low-Income Housing Policy

John J. Infranca *

Less than one in four income-eligible households receives some form of rental assistance from the federal government.[1] In contrast with other prominent public benefit programs—including Temporary Aid to Needy Families (“TANF”) and unemployment insurance—no time limit is placed on the assistance provided through the Department of Housing and Urban Development’s (“HUD”) three major sources of rental assistance:[2] public housing, housing choice vouchers, and Section 8 project-based rental assistance.[3] Recipients of federal rental assistance can continue to receive benefits as long as they satisfy eligibility requirements.[4] Two of the most prominent forms of rental assistance—housing choice vouchers and public housing—typically have long waiting lists that are frequently closed to new applicants.[5]

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* Assistant Professor of Law, Suffolk University Law School. Thanks to Vicki Been, Erin Braatz, Nestor Davidson, Ingrid Gould Ellen, Tim Iglesias, and Patrick Shin for comments and suggestions at various stages. Earlier versions of this article were presented at the NYU Furman Center for Real Estate & Urban Policy’s Fellows Workshop, the 2013 Association for Law, Property and Society Annual Meeting, the Suffolk Law School Junior Faculty Workshop, and the Touro Law Center Faculty Workshop. Michael O’Brien provided helpful research assistance.

        [1].    Joint Ctr. for Hous. Studies of Harvard Univ., America’s Rental Housing: Evolving Markets and Needs 7 (2013) [hereinafter America’s Rental Housing]; see also Robert C. Ellickson, The False Promise of the Mixed-Income Housing Project, 57 UCLA L. Rev. 983, 1003 (2010) (citing Edgar O. Olsen, Housing Programs for Low-Income Households, in Means-Tested Transfer Programs in the United States 365, 394 (Robert A. Moffitt ed., 2003)) [hereinafter Olsen, Housing Programs for Low-Income Households] (observing that only 30% of qualified renters with incomes below the poverty level receive any form of federal housing aid); Editorial, The Affordable Housing Crisis, N.Y. Times, Dec. 5, 2012, at A30.

        [2].    This article uses the phrase “rental assistance” to refer only to assistance provided through these three programs. The phrase “housing assistance” is used to refer more broadly to all forms of federal support for housing. Of most importance for this article’s analysis, the latter term includes the three rental assistance programs as well as the Low-Income Housing Tax Credit (“LIHTC”) and the Home Mortgage Interest Deduction (“HMID”).

        [3].    See infra Part I.D. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which replaced the Aid to Families with Dependent Children program with TANF, imposed a lifetime maximum of sixty months assistance for families receiving TANF. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104–193, § 408(a)(7), 110 Stat. 2105, 2137 (1996) (codified as amended at 42 U.S.C. §§ 608(a)(7)(A) (2012)). States may, however, exempt a family from the time limit in cases of hardship, so long as no more than 20% of recipient families receive an exemption. 42 U.S.C. §§ 608(a)(7)(C)(i)–(ii). The unemployment insurance system provides a combination of federal and state benefits that differ by state, but in all states there is some limit on the maximum period of time one is eligible to receive unemployment compensation. See Policy Basics: How Many Weeks of Unemployment Compensation are Available?, Center on Budget & Pol’y Priorities, http://www.cbpp.org/files/PolicyBasics_UI_Weeks.pdf (last updated Mar. 2, 2015). In contrast with these programs, the federal Supplemental Security Income Program provides an entitlement benefit—targeted to individuals who are elderly, blind, or disabled and have little income and few assets—to all individuals who qualify and does not impose time limits on receipt. See Ctr. on Budget & Policy Priorities, Introduction to the Supplemental Security Income (SSI) Program 1 (2014), available at http://www.cbpp.org/files/1-10-11socsec.pdf (“SSI has guaranteed a minimum level of income to those who qualify.”). Finally, the largest federal anti-poverty program, the Earned Income Tax Credit (“EITC”), operates quite distinctly from these benefit programs. Like many tax credits, there is no limit on how many years an individual may receive the EITC. See 26 U.S.C. § 32 (2014).

        [4].    Public housing, housing choice vouchers, and Section 8 project-based rental assistance account for approximately 90% of the five million households who receive federal rental assistance. See Ctr. on Budget & Policy Priorities, Policy Basics: Federal Rental Assistance 1–3 (2013) [hereinafter Federal Rental Assistance], available at http://www.cbpp.org/files/Policy Basics-housing-1-25-13RA.pdf.

        [5].    See, e.g., Olsen, Housing Programs for Low-Income Households, supra note 1, at 394 (“There are long waiting lists to get into subsidized housing in all localities, and the length of the waiting list understates excess demand in many localities because housing authorities often close their waiting lists when they get sufficiently long.”); Mid-Am. Inst. on Poverty of Heartland Alliance for Human Needs & Human Rights, Not Even a Place in Line 2007: Public Housing & Housing Choice Voucher Capacity and Waiting Lists in Illinois 2 (2007), available at http://www.wowonline.org/ourprograms /fess/stateresources/documents/NotEvenaPlaceinLineIL.pdf (reporting that, as of 2006, the waiting lists at forty-two of seventy-five Public Housing Authorities (“PHAs”) in Illinois that provided housing vouchers were closed to new applications); Lolly Bowean, As CHA Saved, Residents Waited; Report: Millions in Housing Funds Stashed in Bank, Chi. Trib., July 30, 2014, at C1 (discussing report that the Chicago Housing Authority held reserve funds of over $400 million while voucher and public housing waiting list of more than 40,000 families remained closed for over five years); Mireya Navarro, On Public Housing Wait List, Position Unknown, N.Y. Times, July 24, 2013, at A1 (reporting that although 227,000 households are on waiting list for public housing in New York City, only 5400 to 5800 units become available each year); Housing Authority Officials Overloaded with Applications, Fort-Wayne J. Gazette (Mar. 30, 2014), http://www.fortwayne.com/apps/ pbcs.dll/article?AID=/20140330/NEWS/320142140 (reporting that when the Fort Wayne, Indiana Housing Authority, which provides 200 to 300 new vouchers each year, opened its Housing Choice Voucher waiting list for the first time in four years it received more than 8000 applications in three days). Lengthy waiting lists for housing assistance are not a recent phenomenon. See U.S. Dep’t of Hous. & Urban Dev., Waiting in Vain: An Update on America’s Rental Housing Crisis ii–vi (1999) (discussing lengthening waiting times for public housing, particularly in larger PHAs and major cities); William C. Nussbaum, Comment, Public Housing: Choosing Among Families in Need of Housing, 77 Nw. U. L. Rev. 700, 700 (1983) (“Throughout the country, the number of families seeking public housing vastly exceeds the number of available units.”). However, waiting lists may slightly overstate demand for housing assistance because a household may be on the waiting lists of multiple PHAs. Nat’l Low Income Hous. Coal. Res. Note #04-03, A Look at Waiting Lists: What Can We Learn From the HUD Approved Annual Plans? (2004), available at http://nlihc.org/sites/default/files/04-03WaitingLists.pdf.