Homelessness: Whose Job Is It?
Terry H. Schwadron
April 24, 2024
If it works in one case, why are others so different.
What remerged on Monday before the Supreme Court was an argument that the courtroom is as lousy — no, inappropriate — place to settle matters of local law, even with national implications.
Monday’s court hearing involved Oregon anti-camping laws that authorize punishing homeless people for sleeping outside because they have nowhere else to go. The challenge was whether these kind of laws run afoul of Eighth Amendment Constitutional protections against cruel and unusual punishment “based on their status of being involuntarily homeless.”
The city of Grants Pass, with backing from other cities and state agencies, said simply that homelessness is an overwhelming social problem requiring flexibility. The laws in question allow for fines ascending in severity to jail time for sleeping in parks.
Other solutions might involve orders to create safer spaces, of course — at public expense. Questions from justices seemed to break along ideological lines, interesting because there is nothing especially ideological at question here, with conservatives in favor of laws that might crack down on homelessness and liberals more tolerant.
No decision is likely before June, but a ruling likely will affect cities nationwide.
Why Us, Say the Justices?
To my ear, the most significant issue came not from the participants, but from the court itself. Conservative majority justices suggested that the case was before the wrong people, that local policymakers, not judges, should be setting local rules.
Chief Justice John G. Roberts Jr. asked, “Why would you think these nine people are the best people to judge and weigh those policy judgments?” And Justice Brett M. Kavanaugh expressed concern about federal courts “micromanaging homeless policy.”
To them, this was not a question about humane treatment or “cruel and unusual punishment” for the crime of being homeless, but about not sitting as a legislature.
Indeed, what justices seemed to agree upon was solely that solving homelessness is complicated.
Well, no kidding, justices. These are the very same conservative justices who think that they know more than experts at various federal agencies dealing with health, abortion, communicable disease policy, environmental issues, school gun safety and the effectiveness of mandatory background checks, about what books are acceptable in libraries and on and on.
Indeed, this morning, the same justices are expected to hear arguments to determine whether the narrow carve-outs for abortion care under Idaho’s near-total abortion ban — which carries steep criminal and civil penalties for medical providers — conflict with the broader mandated requirements for medical providers under the Emergency Medical Treatment and Labor Act (EMTALA).
This “complicated” abortion law hearing seems to provide irreconcilable conflict for medical professionals — either to violate Idaho’s law under risk of criminal prosecution and loss of their professional license or violate EMTALA and face federal enforcement and civil sanctions.
Why are these same justice “the nine people are the best people to judge and weigh those policy judgments?” to quote the Chief Justice?
Indeed, in undercutting abortion rights nationally by deciding that Roe v. Wade was incorrectly decided 50 years ago, this Supreme Court majority has brought about a ton of medical harm and legal woes to women with all sorts of medical problems that get wrapped up in “abortion” generalities, leading ideologically driven Republican state legislatures to set seriously questionable policies.
Why is this case or any of the myriad medical emergency question launched in the aftermath of Dobbs a question to be settled by a mostly male Supreme Court?
Homelessness Isn’t Disappearing
There are officially more 600 unhoused residents of Grants Pass, a city with no homeless shelter, with another 1,000 living on the edge. Local agencies have reported that at least twice as many are homeless. The Gospel Rescue Mission, a privately-run religious facility, has 138 beds and requirements for regular chapel attendance and abstinence from substances and romantic relationships.
In Los Angeles, Mayor Karen Bass responded to complaints about homeless encampments by shutting them down but has run into trouble trying to find a next step. In New York City, Mayor Eric Adams complains that most of what passes as “crime” complaints really are about the rising homeless population that has overwhelmed social service agencies.
More than 600,000 are homeless nationwide, and even with every conceivable affordable housing program advanced by the Joe Biden administration, providing sustainable homes is a drop in a bucket of increasing size. Republican proposals to stop immigration do not account for rising homelessness.
Liberal Justice Elena Kagan asked. “For a homeless person who has no place to go, sleeping in public is kind of like breathing in public.” Justice Sonia Sotomayor asked where people are supposed to sleep in a city that lacks sufficient shelter beds.
“Where do we put them if every city, every village, every town lacks compassion?”
OK, the Supreme Court seems as unlikely to want to deal with issues around homelessness as does Grants Pass city hall. Congress can’t decide who should be Speaker from week to week. The presidential elections are much more fixated on the personality clash between two old white men than on listing the serious problems of the day, and even when they do, homelessness doesn’t crack the top of that list.
Whose job is it?
##