(dissenting).
This is the second time this appeal has been before this court. On the first presentation the majority opinion held that the “rent range formula” adopted by the Housing Authority of Louisville and approved as both legal and constitutional by the District Judge was contrary to the federal housing statutes constituting the United States Housing Act of 1937, as amended, 42 U.S.C. § 1401 et seq. (1970). My dissent held that while the rent range formula attacked was dubious social policy, it was nonetheless within the broad powers given the agency by Congress and was not a violation of the United States Constitution.
The Supreme Court granted certiorari and then vacated the judgment and remanded “for further consideration in light of Public Law No. 93-383, August 22, 1974, 43 U.S.L.W. 3206 (U.S. Oct. 15, 1974).”
The applicable portion of Public 'Law No. 93 — 383 is as follows:
(4) the public housing agency shall comply with such procedures and requirements as the Secretary may prescribe to assure that sound management practices will be followed in the operation of the project, including requirements pertaining to—
(A) the establishment of tenant selection criteria designed to assure that, within a reasonable period of time, the project will include families with a broad range of incomes and will avoid concentrations of low-income and deprived families with serious social problems, but this shall *536not permit maintenance of vacancies to await higher income tenants where lower income tenants are available; Title II, Sec. 201(a), § 6(c)(4)(A), 88 Stat. 660 (1974).
Additionally, Section 3(1) of Title II § 201(a) requires that “at least 20 per centum of the dwelling units shall be occupied by very low-income families,” defined as families whose incomes do not exceed 50% of the median income for the area concerned.
The only relevant legislative history pertaining to those provisions is found in the Senate Report on No. 93-693, U.S. Code Cong. & Admin.News 1974, p. 4273:
Occupancy would be limited to families who at time of entry are low-income families, and at least 20% of all new housing developed would be occupied by very low-income families. Very low-income families are defined as families whose income does not exceed 50% of the median income for the area. While it is expected that the public housing agencies will continue to give particular attention and priority to very low income families, the Committee expects that in the long run we would have more housing developments which are not occupied solely by the very poor, but by a cross section of lower income households, representing a variety of household types. Experience has demonstrated that a cross-section of occupancy is an essential ingredient in creating economically viable housing as well as a healthy social environment. It is recognized by the Committee that existing public housing in many of our largest cities has become a concentration of very poor families and often predominately of families receiving public assistance. The provisions of this Act make it possible to develop new public housing with a cross section of low income families. At the same time, it is clear that steps must also be taken to alter the occupancy in existing public housing to achieve a similar cross-section of occupancy. It is the intent of the Committee that the Secretary of HUD take appropriate steps to assist public housing agencies to achieve this cross section of occupancy requirements which have the effect of denying admission to any family on the basis that its income is too low. P.L. No. 93-693 at 3817, U.S. Code Cong. & Admin.News 1974, at p. 4311.
Thus the statutory enactment which the United States Supreme Court instructed this court to consider upon remand of this case now requires as to future tenant selection criteria that they be designed so as to 1) assure projects which will “include families with a broad range of income”; 2) “avoid concentrations of low-income and deprived families with serious social problems”; and 3) guarantee that “at least 20% of the dwelling units [will] be occupied by very low income families.”
Title II, of course, deals only with providing publicly assisted housing for low income families, as defined in the Act (Title II, Sec. 201(a), §§ 2, 3) — namely, those families whose income is so low as to prevent their securing “decent, safe and sanitary housing” in the private housing market.
Congress could, of course, have provided such housing exclusively to the very lowest income families in the total low income family category described above. Clearly, however, Congress never intended to do so. In the debate preceding the adoption of the 1949 Amendments to the United States Housing Act of 1937, Senator Sparkman offered this explanation of the Congressional purpose:
The primary purpose of public housing is to provide decent housing for families living in the slums. Families having the worst housing should get preference. This does not, however, means (sic) that public housing should be used as a program of monetary relief for families who have no income or incomes that are far below the level of bare subsistence. It is the function of welfare and relief agencies to provide such families with the bare minimum of subsistence. The Federal Government should not provide funds *537to get rents so low that families with little or no income can be accommodated. To do so is really to put local relief assistance in those communities which do not provide reasonable welfare assistance. Welfare, agencies must provide these families with a minimum subsistence income, and public housing can and will then accommodate them under the bill at rents in proper relation to their actual income — regardless of its source. They can and will do this under the present provisions of the bill.
tf¡ Ofi * sf:
The same is true in relation to the preference for units at a specified rent. This limitation is necessary in order to assure that the families with the very lowest incomes get a fair chance at the dwellings in a public housing project when it is first tenanted. Experience has shown that as among the families in the low-income group who are in urgent need of housing, the families with the higher rather than the lower incomes tend to apply first. These families are more active and are better informed, while the families of lowest income often do not as quickly appreciate that public housing is actually being made available to them. Time after time, housing authorities have been told by the most under-privileged families that they had not applied earlier because they could not believe “this project was really being built for the likes of us.” Local authorities have many times had to enlist the help of welfare agencies and religious organizations in making clear to the families whose housing need is most urgent and whose incomes are lowest, that these projects are actually for them. It is therefore clear that the requirement of S. 1070 that the preference in respect to housing need should be at specified rents is a necessary and proper one in order to make sure that a fair proportion of lowest-income families are properly served. 95 Cong.Rec. 4808-09.
The recent enactment of P.L. No. 93— 383 is consistent with the purposes described above.
The United States Housing Act of 1937 has been repeatedly upheld as to constitutionality. See City of Cleveland v. United States, 323 U.S. 329, 65 S.Ct. 280, 89 L.Ed. 274 (1945). We have no doubt that the following three purposes of P.L. No. 93-383, Title II, are constitutional likewise. Congress has a right to provide “a broad range of income” within the general low income family category in order to prevent default on repayment of local authority bonds guaranteed by the United States. The prevention of absolute concentration of lowest income families with serious social problems is likewise a reasonable congressional purpose. Finally, Congress has provided a specific mandate for “at least 20%” of the housing units to be occupied by “the lowest-income families.”
I note that Congress did not repeal any prior statutory language conveying broad authority to HUD and the local housing authorities to fix income admission criteria and rents. See United States Housing Act of 1937, as amended, 42 U.S.C. § 1401 (1970). Compare 42 U.S.C. § 1410(b) and (g) with § 5(b) and § 6(c) of the 1974 Amendments.
Thus far ir. the history of housing litigation and legislation no case law or statute has declared any legal right to shelter at public expense. The national effort to alleviate the housing shortage for low income families has never been financed at a level which contemplated meeting the total need. Nor has the housing subsidy provided by Congress ever been sufficient to pay the total cost of the housing which was built. Rental payments from the tenants of publicly assisted housing have always been required to meet the costs of construction, operation and maintenance — offset only by the yearly subsidy. When inflation increases operating costs or the subsidy payments provided are inadequate, HUD and the local housing authorities have no recourse except to increase both rent and ncome admission criteria.
*538As I read P.L. No. 93-383, it was designed explicitly to command the tenant selection criteria in which HUD and the Louisville Housing Authority had previously joined in promulgating in HUD circular HM 7465.12 and HAL’s Rent Range formula Resolution No. 51 — 72. Since this formula was within agency discretion prior to the 1974 Amendments, I would affirm the original judgment of the District Court.