United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2021 Decided August 26, 2022

No. 20-5126

NYC C.L.A.S.H., INC., ET AL.,

APPELLANTS

v.

MARCIA L. FUDGE, SECRETARY OF HOUSING AND URBAN 

DEVELOPMENT, IN HER OFFICIAL CAPACITY AND UNITED 

STATES DEPARTMENT OF HOUSING & URBAN DEVELOPMENT,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-01711)

Lawrence J. Joseph argued the cause and filed the briefs 

for appellants.

Lindsey Powell, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With her on the brief were 

Brian M. Boynton, Acting Assistant Attorney General, and 

Mark B. Stern and Alisa B. Klein, Attorneys.
2

Before: SRINIVASAN, Chief Judge, JACKSON, Circuit 

Judge, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: In 2016, the Department of 

Housing and Urban Development promulgated a rule

prohibiting the use of lit tobacco products in HUD-subsidized 

public housing units and their immediate surroundings. The 

Smoke Free Rule is meant to improve air quality within public 

housing, protect residents from health risks associated with 

secondhand smoke, reduce the risk of fires, and decrease the 

cost of property maintenance.

Appellants here, led by New York City Citizens Lobbying 

Against Smoker Harassment (C.L.A.S.H.), brought an action 

raising a number of statutory and constitutional challenges to 

the Rule. The district court rejected all of C.L.A.S.H.’s claims. 

We agree with the district court and thus affirm its grant of 

summary judgment to the Department.

I.

A.

The Housing Act of 1937 declares it to be “the policy of 

the United States” to “assist States and political subdivisions of 

States to remedy the unsafe housing conditions and the acute 

shortage of decent and safe dwellings for low-income 

families.” 42 U.S.C. § 1437(a)(1)(A). The statute authorizes 

the Department of Housing and Urban Development to provide

federal financial contributions to public housing agencies

 Circuit Judge, now Justice, Jackson was a member of the panel 

at the time the case was argued but did not participate in this opinion.
3

(PHAs) to develop and maintain public housing. Id. § 1437c. 

PHAs are state and local entities “authorized to engage in or 

assist in the development or operation of public housing.” Id.

§ 1437a(b)(6)(A).

Contribution contracts for PHAs “shall require that the 

agency maintain its public housing in a condition that complies 

with . . . housing quality standards” established by the 

Department. Id. § 1437d(f)(1). The Department’s “housing 

quality standards” must “ensure that public housing dwelling 

units are safe and habitable.” Id. § 1437d(f)(2). To that end, 

the standards “shall include requirements relating to 

habitability, including maintenance, health and sanitation 

factors,” and “condition . . . of dwellings.” Id.

B.

In November 2015, relying on its authority under 

§ 1437d(f)(2) “to ensure that public housing dwelling units are 

safe and habitable,” the Department proposed a rule requiring

PHAs to implement a smoke-free policy in public housing

units. Instituting Smoke-Free Public Housing, 80 Fed. Reg. 

71,762 (proposed Nov. 17, 2015). In December 2016, after a 

period of notice and comment, the Department promulgated the 

final rule. Instituting Smoke-Free Public Housing, 81 Fed. 

Reg. 87,430 (Dec. 5, 2016). 

The Rule instructs PHAs to prohibit lit tobacco products 

in all indoor areas of public housing, including but not limited 

to living units, indoor common areas, electrical closets, and 

administrative office buildings. Id. at 87,444; 24 C.F.R. 

§ 965.653(a). The prohibition also extends to outdoor areas 

within twenty-five feet of public housing and administrative 

buildings. PHAs retain the discretion to establish designated 
4

smoking areas outside the twenty-five-foot perimeter. 81 Fed. 

Reg. at 87,444; 24 C.F.R. § 965.653(b). 

The Department explained that the Rule “is expected to 

improve indoor air quality in public housing; benefit the health 

of public housing residents, visitors, and PHA staff; reduce the 

risk of catastrophic fires; and lower overall maintenance costs.” 

81 Fed. Reg. at 87,431. The Department relied on scientific 

evidence documenting both the deleterious health effects of 

secondhand smoke and the migration of secondhand smoke 

along hallways and between apartments within multi-unit 

buildings. 80 Fed. Reg. at 71,763–64. The Department noted 

that “[t]he Surgeon General has concluded that there is no riskfree level of exposure to SHS [secondhand smoke].” Id. at 

71,763. With regard to the link between smoking and the risk 

of fires, the Department cited studies documenting the 

connection and establishing that “[s]moking is the leading 

cause of fire deaths in multiunit properties.” Id. at 71,764. 

“Smoking is also associated with higher maintenance costs for 

landlords,” the Department explained, including “the need for 

additional cleaning, painting, and repair of damaged items at 

unit turnover compared to non-smoking units.” Id. The 

Department reviewed various studies and surveys estimating 

those additional costs.

To implement the Rule, the Department amended the 

regulations governing PHA leases to include the requirement 

that tenants agree not to smoke in restricted areas. 24 C.F.R. 

§ 966.4(f)(12)(i)(B), (ii)(B). The regulations also require 

PHAs to amend existing tenant leases and applicable PHA 

plans in accordance with the Rule. Id. § 965.655. A tenant’s 

failure to fulfill household obligations can be grounds for 

termination or eviction, although the terms of the Rule leave 

enforcement to the discretion of each PHA. Id. § 966.4(l).
5

C.

In July 2018, C.L.A.S.H. and aligned parties filed an 

action against the Department, raising constitutional and 

statutory challenges to the Smoke Free Rule. C.L.A.S.H. 

argued that the Department lacked statutory authority to 

promulgate the Rule and that the Rule is arbitrary, capricious,

and an abuse of discretion. C.L.A.S.H. further claimed that the 

Rule exceeds the Department’s powers under the Spending and 

Commerce Clauses, and that it violates the Fourth, Fifth, and 

Tenth Amendments. 

The district court granted summary judgment in favor of 

the Department, rejecting all of C.L.A.S.H.’s challenges in a 

thorough opinion. NYC C.L.A.S.H., Inc. v. Carson, 442 F. 

Supp. 3d 200, 223 (D.D.C. 2020). C.L.A.S.H. now appeals.

II.

C.L.A.S.H. renews the same statutory and constitutional 

claims it unsuccessfully advanced in the district court. We first 

address the statutory challenges and then turn to the 

constitutional ones. We, like the district court, conclude that 

all the challenges lack merit.

A.

In its statutory arguments, C.L.A.S.H. contends that the 

Smoke Free Rule exceeds the authority granted to the 

Department under the Housing Act, and that the Rule is 

arbitrary and capricious in contravention of the Administrative 

Procedure Act. 
6

1.

We first consider—and reject—C.L.A.S.H.’s contention 

that the Department’s grant of authority under the Housing Act 

does not encompass the Smoke Free Rule. The Act directs the 

Department to “establish housing quality standards . . . that 

ensure that public housing dwelling units are safe and 

habitable.” 42 U.S.C. § 1437d(f)(2). And those housing 

quality standards must include “requirements relating to 

habitability, including maintenance, health and sanitation 

factors,” and “condition . . . of dwellings.” Id. 

The ordinary meaning of terms such as “safe and 

habitable,” “maintenance,” “health and sanitation,” and 

“condition of dwellings” embraces a rule prohibiting use of lit 

tobacco products in public housing units “to improve indoor air 

quality in public housing; benefit the health of public housing 

residents, visitors, and PHA staff; reduce the risk of 

catastrophic fires; and lower overall maintenance costs.” 81 

Fed. Reg. at 87,431. Those objects of the Rule directly relate 

to the “safety,” “habitability,” and “condition of dwellings” in 

public housing and to “maintenance, health and sanitation 

factors” associated with those dwellings. 42 U.S.C.

§ 1437d(f)(2). Below, we consider the extent to which the 

Department adequately substantiated the connection between 

the Rule and those objectives when we review C.L.A.S.H.’s

arbitrary-and-capricious challenge. But on the question we 

consider here of whether the Rule lies within the statute’s grant 

of authority to the Department, the plain language of the statute 

encompasses the Rule. 

In resisting that straightforward understanding of the 

statutory terms, C.L.A.S.H. relies on a presumption against 

preemption in fields traditionally occupied by state and local 

governments. No degree of presumption, however, supports 
7

the conclusion that a rule directly related to, and promulgated 

to ensure, the safety, health, habitability, and maintenance of 

dwelling units falls outside a statutory grant of authority to 

address those precise subjects by name. 

C.L.A.S.H. emphasizes that states and localities “have a 

long history of regulating housing standards for the health and 

safety of the community.” C.L.A.S.H. Br. 39. The Rule, 

though, operates only in the context of public housing 

subsidized by federal funding—a context in which the 

establishment and regulation of housing standards is entrusted 

by statute to a federal agency. And within that domain, the 

Department’s regulations impose an array of obligations on 

tenants related to the health and safety of their housing—

including requirements that tenants safely dispose of garbage 

and waste, refrain from disturbing the peaceful enjoyment of 

accommodations by other residents, and maintain their

property in “decent, safe, and sanitary” conditions. 24 C.F.R. 

§ 966.4(f)(6), (7), (9), (11). C.L.A.S.H. does not suggest that 

those kinds of requirements fall outside the Department’s 

statutory authority. And C.L.A.S.H. points to no material 

distinction between those requirements and the Smoke Free 

Rule vis-à-vis a presumption against preemption.

C.L.A.S.H.’s reliance on the Supreme Court’s recent 

decision in Alabama Ass’n of Realtors v. HHS, 141 S. Ct. 2485 

(2021), is off base. There, the Court held that the Director of 

the Centers for Disease Control and Prevention (CDC) almost 

certainly lacked authority under the Public Health Service Act 

to impose a nationwide moratorium on eviction of tenants in 

response to the COVID-19 pandemic. That holding rested on 

the specific terms of the statutory grant of authority, which the 

Court read to be focused on measures directly relating to the 

spread of the disease itself as opposed to the indirect, 

“downstream connection between eviction and the interstate 
8

spread of disease.” Id. at 2488. And the Court emphasized the 

“sheer scope of the CDC’s claimed authority,” which 

encompassed private landlords nationwide. Id. at 2489. Here, 

by contrast, the Smoke Free Rule falls directly—not 

indirectly—within the terms of the statutory grant of authority. 

And the Rule applies only in the specific setting of Departmentfunded public housing, a context in which the Housing Act 

expressly contemplates—indeed, requires—Departmental 

involvement.

C.L.A.S.H. gets no further in relying on FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120 (2000). There, the 

Court held that the Food and Drug Administration’s statutory 

authority to regulate drugs and devices did not encompass the 

power to regulate tobacco products. The Court reasoned that 

Congress had shown in various ways that it intended to exclude 

tobacco products from the agency’s jurisdiction, including 

through a history of tobacco-related legislation leaving no role 

for the FDA over tobacco products and through Congress’s 

repeated rejection of legislation that would have granted the 

FDA the authority to regulate tobacco. Id. at 142–44, 147–49. 

C.L.A.S.H. points to no such legislative indicia here. And 

importantly, the Brown & Williamson Court emphasized the 

breadth of authority claimed by the agency, which 

encompassed the purported power to regulate an industry 

constituting a significant portion of the national economy and 

to ban the industry’s products altogether. Id. at 159. This case, 

again, is decidedly different in that the Rule applies only to

federally-funded public housing, a domain in which Congress

has granted the Department the express authority to regulate 

dwelling conditions by setting health, safety, habitability, and 

maintenance standards.
9

2.

C.L.A.S.H. next contends that the Department’s 

promulgation of the Smoke Free Rule was arbitrary, capricious, 

and an abuse of discretion. We disagree. 

Under the arbitrary and capricious standard, we do not 

“substitute [our] judgment for that of the agency.” Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983). The standard is met as long as 

there is a “rational connection between the facts found and the 

choice made.” Id. And we “give an extreme degree of 

deference to the agency when it ‘is evaluating scientific data 

within its technical expertise.’” Kennecott Greens Creek Min.

Co. v. Mine Safety & Health Admin., 476 F.3d 946, 954–55 

(D.C. Cir. 2007) (quoting Hüls Am., Inc. v. Browner, 83 F.3d 

445, 452 (D.C. Cir. 1996)).

Here, the Department documented considerable evidence 

substantiating the health, safety, and cost-saving benefits of the 

Rule. In terms of health, the Department found “the scientific 

evidence for the adverse health effects of SHS [secondhand 

smoke] exposure” to be “compelling.” 81 Fed. Reg. at 87,441. 

The Department discussed, for instance, a report in which the 

“Surgeon General concluded that there is no risk-free level of 

exposure to SHS.” Id. “In children,” the Surgeon General 

found, secondhand smoke “exposure can cause sudden infant 

death syndrome, and can also cause acute respiratory 

infections, middle ear infections and more severe asthma.” Id. 

And in adults, exposure “causes heart disease, lung cancer, and 

stroke,” id., resulting in the death of some 41,000 adult 

nonsmokers each year from lung cancer and heart disease, 80 

Fed. Reg. at 71,763. Accordingly, secondhand smoke is 

considered a known human carcinogen. 81 Fed. Reg. at 

87,441–442; see generally 80 Fed. Reg. at 71,763–764. 
10

The Department also described the evidence 

demonstrating that, because of the way secondhand smoke 

moves through a building, “individuals living in multiunit 

housing can be exposed to SHS even if no one smokes in their 

households.” 80 Fed. Reg. at 71,764. The Department 

referenced studies and surveys examining the migration of 

secondhand smoke in buildings, explaining that “SHS can 

move both from external hallways into apartments and between 

adjacent units.” Id. Studies thus showed that children in nonsmoking apartments had substantially higher levels of a 

nicotine metabolite in their blood than children living in nonsmoking detached homes. Id. And while “improvements in 

ventilation systems” and “increased air sealing of units” can 

help reduce the movement of secondhand smoke through a 

building, “these strategies cannot fully eliminate exposure.” 81 

Fed. Reg. at 87,442. “Increased air sealing could also have the 

disadvantage of increasing SHS exposures to non-smokers in 

the sealed units, and could increase the amount of SHS that 

settles on surfaces within the sealed units.” Id.

With regard to fire safety, the Department discussed the 

number of residential fires and resulting deaths and injuries 

caused by smoking and observed that “[s]moking is the leading 

cause of fire deaths in multiunit properties.” 80 Fed. Reg. 

71,764. As for maintenance costs, the Department determined 

that “the costs and benefits” are “compelling in terms of 

reduction in maintenance and unit turnover costs.” 81 Fed. 

Reg. 87,438. Various surveys documented the substantial costs 

associated with fires and smoking damage, with the CDC 

estimating that a smoke-free policy in public housing would 

annually save some $43 million in renovation expenses and 

$16 million in averted fire losses. 80 Fed. Reg. 71,764.
11

C.L.A.S.H. asserts that the health risks from secondhand 

smoke to tenants living in other units are “scientifically 

dubious.” C.L.A.S.H. Br. 50–51. But C.L.A.S.H. merely 

states without elaboration that the data is “inconclusive,” and 

then summarily references, without any further discussion, 

what it describes as a list of “studies suggesting lack of transfer 

and lack of adverse health effects.” Id. at 51–52. C.L.A.S.H. 

acknowledges, moreover, that its “list of studies were not in the 

record” before the agency. Id. at 52. Indeed, while C.L.A.S.H. 

provided certain comments to the Department during the 

comment period for the Rule, it submitted no scientific 

information and cited no studies supportive of its position. 

N.Y.C. C.L.A.S.H. Comment Letter on Proposed Rule 

Instituting Smoke-Free Public Housing, 80 Fed. Reg. 71,762 

(proposed Nov. 17, 2015). And we generally do not consider 

information that was not before the agency when making its 

decision. See CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 

2014). C.L.A.S.H.’s conclusory statements questioning the 

evidence of health risks posed by secondhand smoke, finally, 

have no bearing at all on the Department’s other rationales for 

the Rule—i.e., the interest in reducing the risk of catastrophic 

fires and in decreasing maintenance costs.

C.L.A.S.H. submits that the Department’s stated health, 

safety, and cost-related reasons for the Rule are pretextual 

because the Department in fact desires only to stop tenants 

from smoking, not to improve air quality in their units. There 

is no support for that contention. Indeed, the Department 

expressly found “it important . . . to reiterate” that the Rule 

“does not prohibit individual PHA residents from smoking,” 

and that “PHAs should continue leasing to persons who 

smoke.” 81 Fed. Reg. at 87,432. The Department also 

specifically declined to bar the use of electronic nicotine 

delivery systems, reasoning in part that doing so would “not 
12

necessarily reduce the risk of catastrophic fires or maintenance 

costs.” Id. at 87,436.

C.L.A.S.H. also contends that the Department disregarded 

the risks faced by vulnerable tenants when venturing outside 

their units to smoke. C.L.A.S.H. Br. 49. But the record reflects 

that the Department considered those very risks and 

recommended ways to alleviate them. 81 Fed. Reg. at 87,434; 

id. at 87,434, 87,436. 

In short, the Department adequately substantiated its 

rationales for the Rule and did not act arbitrarily and 

capriciously in promulgating it.

 

B.

We turn next to C.L.A.S.H.’s constitutional challenges, 

which we find to be uniformly without merit.

1.

C.L.A.S.H. first contends that the Rule amounts to an 

impermissible condition on federal spending under the 

Spending Clause. That Clause gives Congress the power to 

“lay and collect Taxes, Duties, Imposts, and Excises, to pay the 

Debts and provide for the common Defence and general 

Welfare of the United States.” U.S. Const., art. I, § 8, cl. 1. 

Under the Clause, “Congress may attach conditions on the

receipt of federal funds, and has repeatedly employed the

power to ‘further broad policy objectives by conditioning

receipt of federal moneys upon compliance by the recipient

with federal statutory and administrative directives.’” Ass’n of

Priv. Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 459 

(D.C. Cir. 2012) (emphasis in original) (citing South Dakota v.

Dole, 483 U.S. 203, 206 (1987)).
13

But the ability to attach conditions on federal spending is

“not unlimited.” Dole, 483 U.S. at 207. The Supreme Court 

has set out “several general restrictions” that a spending 

condition must meet: first, the condition “must be in pursuit of 

the general welfare”; second, it must be “unambiguous[],” such 

that recipients can make a “knowing[]” choice to participate, 

“cognizant of the consequences of their participation”; third, it 

must be related “to the federal interest in particular national 

projects or programs”; and fourth, it must comply with any 

“other constitutional provisions that may provide an 

independent bar to the conditional grant of federal funds.” Id.

at 207–08 (citations and quotation marks omitted).

C.L.A.S.H. argues that the Rule infringes the second Dole

factor, which requires conditions on federal funding to be 

unambiguous in a manner giving funding recipients adequate 

notice of the consequences of their participation. C.L.A.S.H. 

does not suggest that there is any ambiguity about whether 

funding recipients must comply with the Department’s housing 

quality standards. C.L.A.S.H.’s argument instead is that the 

Smoke Free Rule is impermissibly ambiguous because it vests 

discretion in the Department with respect to the consequences 

for noncomplying PHAs. On that score, the Rule states: “If 

HUD determines that a PHA is not in compliance with its plan, 

HUD will take whatever action it deems necessary and 

appropriate.” 81 Fed. Reg. at 87,437.

The governing contracts between the Department and a 

PHA, however, clearly set forth the consequences for “a 

serious and material violation of any one or more of the 

covenants contained” in the agreement—which generally 

include the Department’s regulations, and which specifically 

include the “failure to maintain and operate the project(s) under 

[the contract] in a decent, safe, and sanitary manner.” Form 
14

HUD-53012A, §§ 5, 17(B), J.A. 156, 158, 162–63. If a PHA 

commits such a violation, the Department may take title to the 

project, take possession and control of it, terminate the 

contract, or seek other remedies at law. Id. § 17(E)–(F), 

J.A. 163. Before exercising any such remedy, the Department

must provide a notice of default to the PHA, including a period 

in which to cure, and the PHA has a right to an administrative 

appeal. Id. § 17(C). Those potential penalties are longstanding 

and not specific to the Rule at issue here, and any participating 

PHA knows of the potential consequences when entering into 

a contract. PHAs thus accept federal funds fully aware of the 

potential consequences if they violate the Rule.

C.L.A.S.H. also briefly contends that the Rule infringes 

the third Dole factor, which requires conditions on the receipt 

of federal funds to be related “to the federal interest in 

particular national projects or programs.” Dole, 483 U.S. at 

207. C.L.A.S.H. characterizes the Rule as out of step with the 

statute’s delegated authority to the Department. C.L.A.S.H.’s 

argument in this respect thus essentially restates its argument 

that the Rule lies outside the Department’s statutory authority, 

which we have already addressed and rejected.

C.L.A.S.H. additionally asserts that the Rule imposes a 

“financial inducement” that is “so coercive as to pass the point 

at which pressure turns into compulsion.” Id. at 211 (quotation 

marks omitted). But C.L.A.S.H. cites no evidence about 

funding levels demonstrating that the Rule could be considered

coercive in the constitutional sense, nor did it do so before the 

district court. Compare Nat’l Fed’n of Indep. Bus. v. Sebelius, 

567 U.S. 519, 581–82 (2012) (NFIB) (plurality opinion).

Finally, relying on the plurality opinion in NFIB, 

C.L.A.S.H. contends that the spending condition is an 

impermissible “shift in kind” to the preexisting public housing 
15

program. See id. at 583. Congress, though, may permissibly 

“make adjustments” to a federal program. Id. In C.L.A.S.H.’s 

view, the Rule unconstitutionally transforms PHA’s 

obligations from providing safe housing infrastructure “to 

micromanaging tenants’ private lives.” C.L.A.S.H. Br. 17. But 

PHAs agree in their contracts to abide by future amendments 

to Departmental regulations, Form HUD-53012A § 5, J.A. 158,

and the Rule is in keeping with other obligations imposed by 

the Department on public housing tenants. 

Under the Department’s preexisting regulations, for 

instance, PHA leases already require tenants “[t]o keep the 

dwelling unit . . . in a clean and safe condition,” 24 C.F.R. 

§ 966.4(f)(6), and “[t]o dispose of all ashes, garbage, rubbish, 

and other waste from the dwelling unit in a sanitary and safe 

manner,” id. § 966.4(f)(7). Tenants must also agree “[t]o abide 

by necessary and reasonable regulations promulgated by the 

PHA for the benefit and well-being of the housing project and 

the tenants.” Id. § 966.4(f). And tenants must further “assure 

that no member of the household engages in an abuse or a 

pattern of abuse of alcohol that affects the health, safety, or 

right to peaceful enjoyment of the premises by other residents.” 

Id. § 966.4(f)(12)(iii).

C.L.A.S.H.’s attempt to analogize the Rule to the 

legislation considered in NFIB is inapt. Before the enactment

of the Affordable Care Act, the Medicaid program required

states to cover only certain discrete categories of individuals—

pregnant women, children, needy families, the blind, the 

elderly, and the disabled. The Act’s Medicaid expansion, 

invalidated by the Supreme Court as an impermissible “shift in 

kind,” required States to expand their programs to 

cover all individuals under the age of 65 with incomes below 

133 percent of the federal poverty line. NFIB, 567 U.S. at 575–

76 (plurality opinion). That was viewed to amount to an 
16

entirely “new health care program.” Id. at 584. Unlike the 

Medicaid expansion at issue in NFIB, the Smoke Free Rule 

does not fundamentally transform the nature of the public 

housing program or expand the population served.

Moreover, the operative inquiry concerns whether the new 

condition “surpris[es] participating States with post-acceptance 

or ‘retroactive’ conditions.” See id. (quotation marks and 

citation omitted). Here, PHAs were on notice that the 

Department might make adjustments to the terms of the 

program: the contract states that it “incorporates by 

reference . . . those regulations issued by HUD for the 

development, modernization, and operation of public and 

Indian housing projects . . . .” Form HUD-53012A, J.A. 156. 

PHAs thus knew that they could be subject to future 

Department regulations. And as explained, PHAs were also on 

notice of the consequences resulting from violating applicable 

Departmental rules and regulations.

Because we find that the Rule is a valid exercise of the 

federal government’s power under the Spending Clause, we 

have no need to reach C.L.A.S.H.’s arguments about the scope 

of the Commerce Clause.

2.

C.L.A.S.H. contends that the Smoke Free Rule 

commandeers the States in violation of the Tenth Amendment. 

Under the Tenth Amendment, “the Federal Government may 

not compel the States to enact or administer a federal regulatory 

program.” Printz v. United States, 521 U.S. 898, 933 (1997)

(quoting New York v. United States, 505 U.S. 144, 188 (1992)); 

see also New York, 505 U.S. at 176–77; Murphy v. Nat’l

Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1478 (2018). The 

Rule, however, leaves the choice to the States of whether to 
17

accept federal public housing funding and its attached 

conditions. The Rule neither commands the States directly to 

take any actions nor compels the involvement of state officials 

in a regulatory scheme. The Rule therefore does not infringe 

the Tenth Amendment’s anti-commandeering principle. 

3.

C.L.A.S.H. argues that the Rule violates the Fourth 

Amendment by permitting unconstitutional searches. The 

Rule, however, does not contain any type of new authorization 

to search premises. Instead, the Rule by its terms leaves 

enforcement up to the discretion of each PHA. See 81 Fed Reg. 

87,437. The Department’s preexisting regulations require 

PHAs to identify the circumstances under which they may 

enter the dwelling unit during the tenancy, including for routine 

inspections, and to provide written notice before entering a 

dwelling absent a reasonable belief that there is an emergency. 

24 C.F.R. § 966.4(j). And the Department Guidebook 

specifically states that “[t]enants cannot be asked to waive 

their Fourth Amendment rights” and that it “does not authorize 

PHAs or police departments to enter units for security purposes 

unless the police department has a search warrant or they are in 

hot pursuit of a suspect who has run into the unit.” J.A. 170

(emphasis added).

4.

In its last constitutional challenge, C.L.A.S.H. submits that 

the Rule violates tenants’ “fundamental due-process right 

[under the Fifth Amendment] to engage in legal activities 

within the privacy of their homes.” C.L.A.S.H. Br. 29. But 

C.L.A.S.H. identifies no authority establishing such a right. 

The federal decisions C.L.A.S.H. cites involve the exercise of 

First Amendment rights or “personal decisions relating to 
18

marriage, procreation, contraception, family relationships, 

child rearing, and education.” See, e.g., Lawrence v. Texas, 

539 U.S. 558, 574 (2003); Paris Adult Theatre I v. Slaton, 413 

U.S. 49, 65, 69 (1973). And the state decisions C.L.A.S.H. 

cites rely on state constitutional privacy protections, not federal 

due process guarantees. See, e.g., Ravin v. State, 537 P.2d 494, 

504 (Alaska 1975).

Because the Rule does not impinge on a fundamental right, 

C.L.A.S.H. must show that the Rule’s requirements bear no 

rational relationship to a legitimate state interest. E.g., Abigail

All. for Better Access to Dev. Drugs v. von Eschenbach, 495 

F.3d 695, 712 (D.C. Cir. 2007). The Supreme Court has 

expressly held that the protection of tenants is a legitimate state 

interest. See Pennell v. City of San Jose, 485 U.S. 1, 14 (1988). 

And the Rule, intended to reduce health and safety risks to 

tenants, readily passes muster under the forgiving rational basis 

test. See Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 

487–88 (1955).

III.

We last briefly address C.L.A.S.H.’s appeal from the 

district court’s denial of certain post-judgment motions. 

C.L.A.S.H.’s post-judgment motion for reconsideration and 

amendment of the judgment simply reprises arguments we 

have already considered and rejected. C.L.A.S.H. also moved 

under Rule 15(b)(2) to amend its complaint to introduce the 

argument that the threat of losing public housing funding is 

unconstitutionally coercive. The district court did not err in 

denying a motion to amend the complaint brought after 

judgment had already been entered (and in any event, as 

explained above, C.L.A.S.H. included no evidence in its 

motion showing that the threat of losing the funding at issue 

reached the level of unconstitutional coercion).
19

* * * * *

For the foregoing reasons, we affirm the judgment of the 

district court.

So ordered.