Gregory, 501 U.S. at 460-61. Subsection 9058(c) implicates a State’s authority to craft
landlord-tenant law and the regulation of housing within a state. Though rental housing
has been “increasingly regulated” by Congress, states retain the broad power to regulate
their own landlord-tenant relationships. Silver v. Rudeen Mgmt. Co., 197 Wn.2d 535,
543, 484 P.3d 1251 (2021); Loretto, 458 U.S. at 440 (“[t]his Court has consistently
affirmed that States have broad power to regulate housing conditions in general and the
landlord-tenant relationship in particular”).
Knight points out that other courts have questioned the broad application of the
clear statement rule as set out in Gregory. Pet’r Andre Knight’s Suppl. Br. at 5-7 (citing
Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1152 (9th Cir. 2013) (“In
Gregory v. Ashcroft, the Court does not indicate that the clear statement rule applies to
any and all regulation of state governmental functions.”); Arizona v. Inter Tribal Council
of Ariz., Inc., 570 U.S. 1, 14, 133 S. Ct. 2247, 186 L. Ed. 2d 239 (2013) (declining to
apply Gregory in a preemption challenge to Congress’s authority under the elections
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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Hous. Auth. v. Knight, No. 102905-5
clause)). Despite some lower court uncertainty as to what constitutes a state function
under Gregory, the Supreme Court recognizes the applicability of the clear statement rule
to statutes touching on areas of “traditional state responsibility,” Bond, 572 U.S. at 858
(citing Gregory, 502 U.S. at 460), such as the landlord-tenant relationship. E.g., Loretto,
458 U.S. at 440. Significantly, in 2021, the Court applied the major questions doctrine to