Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/53

Rh , dissenting ("An action taken because of some factor other than race, i.e., financial means, even if it causes a discriminatory effect, is not an example of the intentional discrimination outlawed by the statute"); id., at 14 ("The words 'because of' plainly connote a causal connection between the housing-related action and the person’s race or color"). This was the same position that the United States had taken in lower courts for years. See, e.g., United States v. Birmingham, 538 F. Supp. 819, 827, n. 9 (ED Mich. 1982) (noting positional change), aff'd, 727 F. 2d 560, 565–566 (CA6 1984) (adopting United States' "concession" that there must be a "'discriminatory motive'"). It is implausible that the 1988 Congress was aware of certain lower court decisions but oblivious to the United States’ considered and public view that those decisions were wrong.

This fact is fatal to any notion that Congress implicitly ratified disparate impact in 1988. The canon of interpretation on which the Court and the Solicitor General purport to rely—the so-called "prior-construction canon"—does not apply where lawyers cannot "justifiably regard the point as settled" or when "other sound rules of interpretation" are implicated. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 324, 325 (2012). That was the case here. Especially after the United States began repudiating disparate impact, no one could have reasonably thought that the question was settled.

Nor can such a faulty argument be salvaged by pointing to Congress' failure in 1988 to enact language that would have made it clear that the FHA does not authorize disparate-impact suits based on zoning decisions. See ante,