Jul 3, 2024

SCOTUS allows laws against homeless encampments.

The Supreme Court's latest decision has major implications for the homelessness crisis

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

The Supreme Court rules that Grants Pass, Oregon, can enforce a law against sheltering in public. Also, why do we not have space for reader questions?

Happy Fourth of July!

Tangle will be off tomorrow and Friday in observance of the Fourth of July holiday. We’ll be back in your inbox on Monday, July 8. To all our U.S. readers, have a great Fourth!

In the meantime we’ll be working on putting out some content from our live event in New York City earlier this year. You can check out the trailer below.

Quick hits.

  1. The Food and Drug Administration approved a new Alzheimer's treatment from drugmaker Eli Lilly that aims to slow the progression of the disease in its early stages. (The approval)
  2. Rep. Lloyd Doggett (TX) became the first House Democrat to publicly call on President Joe Biden to drop out of the 2024 presidential race following last week’s debate. (The call)
  3. The Supreme Court declined to hear challenges to an Illinois ban on certain types of semi-automatic weapons, attachments, and magazines while lower courts decide the cases. (The decision)
  4. Moderna won a $176 million contract with the U.S. Department of Health and Human Services to develop an mRNA vaccine for pandemic influenza as bird flu continues to spread through dairy farms. (The contract)
  5. At least 121 people were killed in a crowd crush at a religious gathering in northern India. (The latest)

Today's topic.

City of Grants Pass v. Johnson. On Friday, the Supreme Court voted 6-3 along ideological lines to uphold ordinances in the city of Grants Pass, Oregon, that outlaw sleeping and camping in public places while using materials like blankets, pillows, or cardboard boxes for warmth or shelter. The decision overturns a lower court’s determination that such laws are unconstitutional and grants greater authority to local governments to address homelessness in their communities. The Supreme Court’s decision returns the case to the lower courts, which will consider separate arguments about Grants Pass’s laws. 

Reminder: In 2018, homeless residents of Grants Pass challenged the constitutionality of the city’s public camping laws and won their case before a federal district court. The city appealed the decision to the U.S. Court of Appeals for the 9th Circuit, which upheld the district court’s ruling by citing Martin v. City of Boise, its 2018 decision that determined laws penalizing people who have nowhere else to stay for sleeping in public violate the Constitution’s Eighth Amendment prohibition on “cruel and unusual” punishments. The city appealed to the Supreme Court, which took the case and heard arguments in April. 

We covered the 9th Circuit’s ruling here and recapped oral arguments at the Supreme Court here.

The challengers centered their arguments on the Supreme Court’s 1962 decision in Robinson v. California, which found that the government could not punish a narcotics addict solely because of his "status" as an addict. The challengers argued that bans on public camping effectively punish the “involuntary status” of being homeless, noting that Grants Pass has no public homeless shelter (though a private religious organization does operate one). The court’s majority disagreed, ruling that Grants Pass’s ordinances target the act of camping on public property rather than an individual’s status. 

Writing for the majority, Justice Neil Gorsuch reasoned that the ban on public sleeping did not unfairly target the city’s homeless as it applied to all residents of Grants Pass. He also rejected the 9th Circuit’s conclusion that the ban constituted cruel and unusual punishment, countering that the Eighth Amendment typically applies only to methods of punishment (rather than types of criminalized conduct).  

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented. Sotomayor framed the case as a question of whether basic human needs can be criminalized. “Sleep is a biological necessity, not a crime,” she wrote. “For some people, sleeping outside is their only option.” She acknowledged that the United States’s homelessness crisis has created “immense challenges” for local governments but argued the Constitution does not permit “punishing homeless people with no access to shelter for sleeping in public with as little as a blanket to keep warm.” 

Leaders in West Coast states, where homelessness is particularly acute, were mixed in their reaction to the ruling; Gov. Gavin Newsom (D-CA) said the court’s decision “removes the legal ambiguities that have tied the hands of local officials for years,” while Los Angeles Mayor Karen Bass (D) called it “disappointing.” Grants Pass expressed gratitude to the court for “help[ing] guide our next steps regarding unhoused members of our community.”

Today, we’ll examine arguments about the ruling from the left and right. Then, my take.

What the left is saying.

  • The left is dismayed by the court’s decision, suggesting it allows cities to sidestep their homelessness problems.
  • Some say the case underscores the failures of U.S. housing policy.
  • Others support the ruling, arguing that it provides a helpful tool for local officials to aid the homeless.  

The Los Angeles Times editorial board said the ruling “will do nothing to end homelessness.”

The decision “raises the grim question of whether cities and counties will rely more on anti-camping ordinances to deal with homeless people and encampments rather than doing the hard work of creating interim housing, such as motel and hotel rooms, and permanent affordable housing, often with services. Those are the solutions — the only humane solutions — to homelessness and they require hard work, funding and patience,” the board wrote. “This decision, cruelly, allows cities to deal with homeless people by fining, jailing and ultimately shooing them away from sidewalks and parks, leaving them to search out other sidewalks and parks. Impoverished people cannot pay fines, and so the penalties accumulate.”

“Anti-camping laws are not tools in the toolbox that fix homelessness. And citing people for living outside has nothing to do with creating housing,” the board said. “Yes, it is difficult to grapple with homelessness, but the problem is not solved by jailing and fining people and pushing them from one sidewalk to another. Only adequate housing and services — including treatment for mental illness and substance abuse — will solve homelessness. It takes time and it takes money.”

In The Atlantic, Jerusalem Demsas wrote about “what the Supreme Court doesn’t get about homelessness.”

“The ruling epitomizes why housing has become a crisis in so much of the country: It does nothing to make communities confront their role in causing a housing shortage, and it upholds their ability to inflict pain upon that shortage’s victims,” Demsas said. “In prosperous American cities, homelessness abounds. It’s not because drugs were invented in the past several decades, nor is it because mental illness was invented by Millennials. Rather, it’s because local governments have sought to rid their housing markets of low-income people by getting rid of low-income-housing options, while ensuring that the rest of the market would become prohibitively expensive.”

“And now, after policy choices have created a nationwide housing crisis, cities have successfully petitioned the Supreme Court to allow them to ignore a problem of their own making. If they’re not willing to allow more housing, they certainly are willing to house the indigent in jail,” Demsas wrote. “When cities turn to punitive measures without offering options more suitable than camping outside, they’re at best simply moving homeless people around in an endless dystopian game. At worst, they’re imposing fines and other legal costs on people already defined by their lack of resources, and increasing the likelihood that they remain transient and unhoused.”

In The Idaho Press, David H. Bieter argued “the Supreme Court is right in Grants Pass ruling.”

“I am no fan of this Court, but I agree with their decision. Homelessness is by far the toughest city issue. I was the mayor of Boise for 16 years. In 2004, we got a crash course on how tough it is when a 200 bed, city owned, nonprofit run homeless facility failed… Boise was sued for enforcing our anti-camping ordinance. Because of a misunderstanding the Boise Police stopped issuing citations for camping on public property. Within a matter of days, a camp formed on a public right of way off the connector. It grew to over 120 people,” Bieter said. “Camps are the opposite of compassion. They foster unsanitary, drug infested, dangerous lodgings where people prey on the least fortunate.”

“Advocates say you are criminalizing homelessness — no, you are criminalizing appropriating public property for private use. And life will go on. Homelessness will still be the most difficult issue for cities, but a vital tool to help bring people in— how can you help someone if they won’t come into the system?— will be available. Homelessness is a societal problem, a problem of substance abuse, unbridled capitalism, social isolation, and low wages. Our nation needs to solve it. But as we struggle to do so, cities need to keep order and disrupt camps so we can collectively help those that desperately need it. We all need to help.”

What the right is saying.

  • The right mostly supports the ruling, with many saying it gives local governments the appropriate authority to address homelessness.
  • Some argue progressives’ views on government regulation of public spaces are illogical. 
  • Others agree with the court’s reasoning but oppose the practical outcome of the decision.

In City Journal, Judge Glock said the ruling “returns homeless policy to state and local governments—where it belongs.”

“Gorsuch’s opinion overturning the Grants Pass ruling lays waste to the Ninth Circuit’s arguments. First, he shows that the claim that the Eighth Amendment prevents camping laws is absurd on its face. The Eighth Amendment is about preventing types of punishments, such as beatings, not about banning whole categories of laws proscribing certain behaviors. The punishments authorized by the city of Grants Pass, Oregon, such as civil fines and a ban on camping in public parks, were both restrained and common,” Glock wrote. “Gorsuch’s opinion also points out a fact many activists like to deny: homeless encampments are dangerous and violent. Rulings that prevent the clearing of those camps can lead to more violence.”

Despite valiant efforts by the Left to portray the attacks on the Ninth Circuit as a right-wing effort, the court’s rulings on the homeless united a broad spectrum of opponents. The National League of Cities, representing more than 19,000 American municipalities, and individual cities from San Francisco to Colorado Springs asked the Supreme Court to review the Grants Pass ruling,” Glock said. “Local governance is a formidable challenge that involves weighing diverse preferences and enforcing rules across the vast panoply of human behavior. While the Grants Pass ruling does not guarantee that Western states and cities will handle homelessness well, it at least gives them a chance.”

In National Review, Dominic Pino argued “progressives think government can regulate only private, not public, places.”

“The dissent makes clear the emerging progressive view: Government can regulate only private, not public, spaces. This is basically the opposite view that common sense would suggest. One of the fundamental reasons government exists is to provide public works, which entails the regulation of the spaces in which they exist. The maintenance of public order, too, is a fundamental purpose of government that requires regulation of public spaces,” Pino wrote. “Progressives have essentially inverted that order of things. Public spaces are the domain of individual rights where nobody can tell anyone else what to do. But there is hardly any limit to what progressives believe government should be able to regulate in private spaces.”

“Progressives are perfectly fine with government telling you which appliances you’re allowed to put in your own home, which cars you are allowed to buy, what your health insurance is required to cover, and which school your children are allowed to attend,” Pino said. “But yeah, by all means, camp on public property — that is an individual right. Let the relatively small number of criminals who are responsible for most violent crime out on bail and just keep catching and releasing them as they commit more crimes in public. Enforcing traffic laws on public roads is racist. Let anyone cross the border and receive public money and accommodations… Lawless public spaces and micromanaged private spaces — that’s the progressive vision of governance.”

In Reason, Christian Britschgi wrote “NIMBY governments win at the Supreme Court.”

“Local governments love to blame Martin for rising homelessness because it relieves them of any real responsibility for the problem. Homelessness is something that happened to them, and here comes the 9th Circuit preventing them from doing anything about it,” Britschgi said. “It's an incredible act of blame-shifting. In fact, local and state governments bear a considerable share of the blame for the rising homeless population by making housing so hard to build in the first place. Nothing correlates more with homelessness rates than high housing costs. And nothing drives up housing costs like government restrictions on building housing.”

“Giving police greater powers to ticket and arrest anyone sleeping on a park bench isn't going to fix homelessness when you're in San Francisco and 4,000 people in your city are sleeping outside, the median apartment rents for $3,300 a month, and the number of new homes permitted per month is in the single digits. Nor, frankly, will ‘housing first’ strategies fix homelessness in high-cost cities with the highest homeless rates,” Britschgi wrote. “Until local and state governments adopt policies that would significantly reduce the costs of housing, it is unfair, unhelpful, and illiberal to fine people for sleeping on a park bench with a blanket—even if doing so is constitutional.”

My take.

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  • The ruling is legally sound, and I agree with the majority’s reasoning that towns should be able to manage their public spaces.
  • That said, public encampment laws are no substitute for effective housing policy.
  • Cities should focus on building new housing and cutting regulations to combat the homelessness crisis.

At the end of a short but intense week of Supreme Court coverage, I’m pleased to say that I’m pretty satisfied with this ruling. The court didn’t invent a new standard for interpreting law, and it didn’t opine on sweeping legal doctrine. Instead, this court — which has recently been accused both of putting the judiciary above the two other branches of government and putting the president above the two other branches of government — mostly saw itself out.

“The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy,” Justice Neal Gorsuch wrote in his majority opinion.

I couldn’t agree more.

Courts shouldn’t stop small towns or cities from enforcing laws those communities want (as long as those laws don’t flagrantly violate the Constitution). And regardless of how you feel about this court, and what you think about homelessness policy, I think you can see the reason in that stance. So, as we always do, let’s go through the legal arguments and practical implications separately.

At the risk of oversimplifying, the fundamentals of this case boil down to two questions. First, does jailing people for camping in public places go against the Eighth Amendment’s protections against cruel or unusual punishment? Gorsuch’s answer was a pretty simple no, citing 1967’s Powell v. Texas where the court found — rather obviously — that the clause about punishments applies to punishments, not laws. “The primary purpose of [the Cruel and Unusual Punishments Clause] has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes,” Justice Thurgood Marshall wrote for the majority at the time. And jailing people is not a cruel or unusual punishment.

Additionally, the counter arguments to Gorsuch’s reasoning don’t really hold much water to me. As we got into the first time we covered this case, the “basic needs” argument is pretty silly. Justice Sotomayor argued that the city restricting sleeping in public was criminalizing a basic bodily function like eating or breathing, which Justice Barrett soundly countered by saying that cities restrict defecating (another basic function) all the time. Further, Grants Pass is not criminalizing just nodding off in public, but saying that you can’t set up an encampment with blankets or tents or cardboard in a public space. Sotomayor’s argument is like saying a law against grilling on the sidewalk is making it illegal to eat in public.

The second question is a little more complicated: Does the Grants Pass law unconstitutionally target a person’s status as homeless? Here again I thought Gorsuch’s argument was mostly sound. The law didn’t target homeless people in general, but prevented all persons from setting up encampments. But since homeless people by definition don’t have homes, doesn’t this law definitionally target their status? Gorsuch again referenced Powell, which found that being an alcoholic may be out of a person’s control, but it doesn’t give that person the right to be drunk in public.

In other words: Just as laws against public intoxication don’t explicitly target alcoholics, laws against public encampments don’t specifically target the homeless. That may seem like a hair-split, but I think Gorsuch is right to make the distinction. 

However, homeless people will certainly be the ones most impacted by encampment laws, and on their own these policies fall well short of an effective strategy to combat homelessness. Which brings us to the practical effects, where I’m more torn.

Obviously, this ruling will encourage more laws against public encampments. Homelessness may be a national issue, but it’s especially acute in progressive Western cities like Seattle, Portland, and San Francisco. Most of those cities have shelter spaces but many simply aren’t being used. Seattle reported that 60% of its offers for shelter were rejected, while officials in Portland said that over 70% of their offers were rejected between April 2022 and January 2024.

That said, laws against public encampments will do absolutely nothing if cities don’t also have the option of shelters; that approach only substitutes what could be low-cost shelters for high-cost prisons. Cities facing acute homelessness simply will not solve their problems by fining people or putting them in jail and will need to address homelessness through other means.

Here, I was pleased to see some agreement across the political spectrum on the root cause of homelessness: housing. We’ve frequently referenced Jerusalem Demsas’s piece about how the obviousness of that issue somehow breaks peoples’ brains (and quoted her above, under “What the left is saying”), and Christian Britschgi more or less concurred in Reason (under “What the right is saying”). 

This is a point worth driving home: The main reason people are homeless or unsheltered is that there aren’t enough homes. Rental rates are a good proxy for availability, and they correlate with homelessness. High housing costs drive homelessness. Cities not building new housing drives homelessness. Even traditionally anti-developer progressives are jumping on board to say that the best homelessness policy is to just create more housing.

I’m in favor of enforcing laws that promote public safety. And I’m definitely in favor of this court making a narrow and reasonable decision in this case. But if we want to hear fewer stories about public drug use, a crammed prison system and strains on law enforcement, the communities that will now enforce public encampment laws have to address the root causes of homelessness.

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  • $295. The fine for a first-time violation of Grants Pass’s prohibition on public camping (the fine increases to $537.60 if it is not paid). 
  • 30. The maximum number of days in jail that someone can serve after repeat violations of the city’s ordinance (in addition to a $1,250 fine). 
  • $49,335. The median family income in Grants Pass in 2022, roughly $25,000 below the 2022 U.S. median family income of $74,580.  
  • 65%. The percentage of people experiencing homelessness in Oregon who were unsheltered in 2023, according to the U.S. Department of Housing and Urban Development's (HUD) annual Homelessness Assessment Report.
  • +14.5%. The percent increase in unsheltered homelessness in Oregon between 2007-2023. 
  • 41. The number of U.S. states where chronic homelessness increased between 2020 and 2023.
  • 2,161. The estimated increase in chronically homeless people in Oregon from 2020 to 2023. 
  • +12%. The overall increase in homelessness in the U.S. between 2022 and 2023, according to HUD. 
  • +9.7%. The overall increase in unsheltered homelessness in the U.S. between 2022 and 2023.

The extras.

  • One year ago today we were just starting our break for the Fourth of July and didn’t have a newsletter. 
  • The most clicked link in yesterday’s newsletter was the Supreme Court allowing a lawsuit against swipe fee regulations.
  • Nothing to do with politics: A look back at Fourth of July celebrations across America on the country’s 200th independence day in 1976
  • Yesterday’s survey: 1,726 readers answered our survey about the Supreme Court granting former President Trump partial immunity with 76% opposing the legal justification and practical outcomes. “Trump was merely a vehicle for a ruling that applies to all presidencies going forward. However, at this time, it will only be seen as a Trump ruling,” one respondent said.

Have a nice day.

Ross “Coop” Cooper is a data and analytics strategist who has also amassed an extensive Pokemon card collection. By creating a YouTube channel and participating in Pokemon card trading conventions, Cooper has become active in the broader Pokemon community. Instead of selling his valuable cards, Cooper often gives his cards away to young Pokemon lovers. “There's just something about spreading joy and spreading kindness that it's like getting paid tenfold,” he said. NPR has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.