Joseph Knollenberg: “Mr. Chairman, while the legislative history is quite clear, the situation in the courts is less so. Recently, two…”

“Mr. Chairman, while the legislative history is quite clear, the situation in the courts is less so. Recently, two circuit courts reached the conclusion that the Fair Housing Act applies to the business of insurance. Those courts strictly followed the doctrine of judicial deference to agency decisionmaking. They apparently felt constrained by the fact that HUD, the agency that was charged with implementing the Fair Housing Act, had declared that the law should be applied to insurance. Rather than contradict HUD, the courts determined that they should follow HUD's rule at least until Congress expressly makes clear that HUD's interpretation is wrong. Before HUD issued its 1989 rule stating that the Fair Housing Act applies to insurance, the prevailing view in the Federal circuit courts was that the act does not apply to insurance. It was only after HUD's rule was promulgated that the courts decided otherwise. HUD, therefore, was essentially responsible for triggering the court decisions finding that the Fair Housing Act applies to insurance. Am I correct again, Mr. Chairman, in assuming that the gentleman agrees that the courts have sent mixed signals on this issue?”