Criminalizing homelessness before the Supreme Court.

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Quick hits.

1. Rep. Donald Payne Jr. (D-NJ) died Wednesday at the age of 65 after suffering a heart attack earlier this month. (The death)
2. Officials from TikTok have vowed to fight a new law that calls for the company to sell the platform in the next 270 days or leave the U.S. market. (The response)
3. The United Nations is demanding an investigation after Gaza authorities said they uncovered “mass graves” at two Gaza hospitals that were raided by Israel. (The call)
4. Former Trump lawyer Rudy Giuliani, former White House Chief of Staff Mark Meadows, and 16 others were indicted in Arizona over their fake electors plan. (The indictments) Separately, the Republican-controlled Arizona House of Representatives narrowly passed a bill to repeal the 1864 law that imposed a near-total abortion ban, which would leave a more recent 15-week ban in place. (The bill)  
5. On Thursday, the Supreme Court will weigh whether former President Donald Trump is entitled to sweeping immunity for actions taken while president. (The case)

Today's topic.

The homelessness case before the Supreme Court. During oral arguments on Monday, the Supreme Court seemed divided on City of Grants Pass v. Johnson, a case about local and state restrictions on people camping and sleeping in public places.

Reminder: The case started in July 2020 when officials in Grants Pass, Oregon, began levying fines against people setting up encampments in public places. A court in Medford, Oregon, decided that Grants Pass's treatment of its homeless population was unconstitutional for violating the Eighth Amendment, which says that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Upon appeal, the Ninth Circuit, the most powerful federal appeals court in the Western United States, reaffirmed its 2018 decision that cities and towns are not allowed to force homeless people off the streets unless those communities provide adequate shelter for them. Its ruling in the Grants Pass case was then challenged to the Supreme Court.

We covered the Ninth Circuit's ruling on the case in July. Today's summary of oral arguments is heavily derived from SCOTUSblog and oral argument transcripts.

The details: Grants Pass wants to impose fines to dissuade anyone from using blankets, pillows, or cardboard boxes to set up shelter while sleeping within the city limits. The city argued that the rules do not single out the homeless, but bar anyone from camping on public property. Under the ordinances, first-time violations incur a $295 fine, which continues to increase if it goes unpaid, and multiple citations can result in a ban from public property. If transgressors violate that ban they can be charged with criminal trespassing, which carries penalties of up to 30 days in jail or up to a $1,250 fine.

Challengers to the law say it effectively criminalizes being homeless and violates the Constitution's ban on cruel and unusual punishment. Laws like the one in Grants Pass have been popping up across the country, and the outcome of the case could have a major impact on how local governments and states manage homelessness.

The arguments: A large portion of oral arguments pertained to the Supreme Court's 1962 ruling Robinson v. California, which determined the Eighth Amendment prohibits the state from making it a crime to be a drug addict, saying the government can't criminally punish a person for an involuntary status. Both sides in Grants Pass v. Johnson used that case to bolster their arguments, with Grants Pass's attorneys arguing the decision drew a line between punishing conduct and unconstitutionally targeting a person's status.

The city also argued that its anti-camping laws protect public spaces and that the Ninth Circuit ruling prohibiting the implementation of those laws has stopped local elected leaders from acting in the interest of their constituents.

Challengers argued that Grants Pass has defined a campsite as anywhere a homeless person is, making it impossible for any homeless person to live in Grants Pass without facing fines or jail time. They said Grants Pass has plenty of tools to regulate homelessness without needing to outlaw sleeping in public.

Justice Brett Kavanaugh appeared skeptical of the city's position, asking how these ordinances would make a difference if the city doesn’t have enough beds for people experiencing homelessness, adding that people who went to jail would still have nowhere to go when they eventually get out.

The court's liberal justices seemed to agree with the challengers that the laws are designed to target people who are involuntarily homeless. Sonia Sotomayor made the argument that the ordinances only impact homeless people, as Grants Pass police are not ticketing babies in blankets or people who fall asleep stargazing. Justice Elena Kagan compared sleeping in public to breathing in public, arguing that it constituted a basic need that humans need to meet. Several of the justices also suggested that the Supreme Court was not the place to solve the question of a local issue like policing homelessness.

Meanwhile, Justice Amy Coney Barrett pressed the challengers on whether criminalizing public urination or defecation would violate the Eighth Amendment under the challengers' theories, as those also constituted basic human needs. Chief Justice John Roberts, meanwhile, questioned whether homelessness constituted conduct or status. He argued that because someone can instantly become not homeless it did not constitute a status, implying that it shouldn't be protected as such.

Divisions in the arguments left many court watchers unsure of how the justices would land, though the court seems most likely to issue a narrow ruling in favor of giving the city limited power to regulate homelessness as it sees fit. 

Today, we're going to examine some arguments about the case from the right and left, then my take.

What the right is saying.

• The right mostly supports the court overturning the Ninth Circuit’s ruling, arguing it invents rights not covered in the Constitution.
• Some disagree and suggest laws that criminalize homelessness make the problem worse. 
• Others argue the status quo is worse for homeless people in the long run.  

In Fox News, Mark Miller said the “Supreme Court can fix the homeless crisis that the government caused.”

“Reasonable people agree that the homeless crisis presents a serious public policy problem. Growing homeless populations encroaching on public and private property and the resulting conflicts among people who use or own those spaces have forced the nation and the courts, like the Ninth Circuit here, to grapple with the problem. But the solution won’t be found in the courts,” Miller wrote. “We can address the homeless crisis by taking away from the government planners.”

“But that’s not what the Ninth Circuit decided in the Grants Pass case. That Court gave us more government involvement in our lives, not less. The Ninth Circuit’s Grants Pass rule, if adopted by the Supreme Court, would create a new, previously unknown Eighth Amendment right to sleep on public property, which would put costly new demands and responsibilities on local and state governments and the public purse. That mistake would put even more power into the hands of government planners. That is exactly the wrong road for the court to take.”

In Hot Air, Jazz Shaw questioned the effectiveness of arrests “for sleeping outdoors.”

“We are desperately in need of a solution to the swelling problem of homelessness and the growing armies of illegal migrants overrunning so many parts of the country. But I'm not sure if a ban on sleeping outdoors is the answer, whether it's constitutional or not. These problems are largely of the government's own making, of course. When we began decriminalizing everything, ‘reimagining’ the police, and driving up inflation and the cost of almost everything - particularly housing - such conditions were clearly inevitable.

“But at the same time, you would have to be a fairly heartless person to look at the individuals who find themselves in such conditions and conclude that locking them up or charging them fines that they obviously have no money to pay was the best solution,” Shaw said. “If you pass a law, it is supposed to apply to everyone equally at all times. The intent of the Oregon law is obvious, but would the police also be issuing fines to average citizens who go for a walk in the park and nod off on a park bench? If not, then the law would not be applied equally.”

In National Review, Stephen Eide wrote “homeless-encampment culture is cruel and unusual.”

“Investing in shelter is a worthy undertaking but also expensive if the goal is to persuade every last encampment member to come in off the street,” Eide said. “Many officials accept the idea that providing shelter and other alternatives to the streets is the humane thing to do. But they want the authority to implement reasonable ‘time, place, or manner’ restrictions on public camping. In a number of recent instances, lower courts, following what they take to be the Ninth Circuit’s guidelines, have denied localities that authority.”

“Make no mistake, as with Oregon’s recent rollback of drug decriminalization, and recent ballot-initiative results in San Francisco, reversing Grants Pass and Boise would represent social progress. The issue is encampment culture itself. One of the lessons that American government is thought to have learned from the old mental-asylum programs is that institutionalizing people long-term serves as poor preparation for normal life on the outside. Similarly, those who live out of tents, for too long, get too used to the encampment way of life,” Eide wrote. “Cruelty reigns in encampments, and to an unusual degree; a more civilized society would put up with them less.”

What the left is saying.

• The left holds varying views on the case, though many express concern that the court’s ruling could hinder efforts to help the homeless. 
• Some criticize the Ninth Circuit’s decision, arguing it removes the agency of cities to address homelessness at the local level. 
• Others say the court should issue a narrow ruling that doesn’t undercut the Eighth Amendment. 

The Los Angeles Times editorial board said “the Supreme Court cannot allow homelessness to be a crime.”

“Most of the justices seemed troubled by the idea of fining and jailing homeless people as a way to deal with homelessness. How could they not be disturbed by that? Grants Pass even criminalizes using a blanket while sleeping outdoors. Liberal or conservative, under what value system does jailing people for trying to stay warm constitute a crime,” the board asked. “The goal in Grants Pass, as discussed in a public city council meeting in 2013, was to figure out how to make life uncomfortable enough for homeless people that they would leave. The ordinance was never about solving homelessness.”

“If the court allows Grants Pass to enforce the ordinance, it will allow any city tired of doing the heavy lifting of providing housing and services to resume fining or jailing homeless people in an effort — whether they say it out loud like Grants Pass officials did — to, once again, shoo homeless people from one block to another, one neighborhood to another, one city to another,” the board wrote. “We hope the Supreme Court justices grasp the profound difficulty of truly solving homelessness and that they don’t let cities fall back on criminalizing people who are so desperately poor they have no homes.”

The Washington Post editorial board argued “there is no constitutional right to pitch your tent on the sidewalk.”

“Though started with good intentions — to prevent ‘criminalization’ of poverty and to incentivize cities to offer shelters — the 9th Circuit approach has shown itself to be counterproductive. Without a credible threat of sanctions against public camping, officials have little leverage to induce people to take shelter beds when they are available. Arguably, this has undermined quality of life not only for those who live or work near unsafe encampments but also for the homeless people themselves.

“That’s why a broad bipartisan coalition including leaders from big blue cities and small red towns in the 9th Circuit, and elsewhere, is begging the Supreme Court to rule in favor of Grants Pass,” the board said. “The 9th Circuit’s position is that a city can penalize public camping but only when there are enough beds in suitable shelters inside the city limits to accommodate everyone who is ‘involuntarily’ homeless… However good this might sound in theory, in practice, the 9th Circuit and its component district courts have defined the terms of acceptable shelter so narrowly and confusingly that few places can comply.”

In Slate, Mark Joseph Stern suggested the court “might do less damage to the Eighth Amendment” than expected. 

“SCOTUS has torn down pretty much every safeguard against cruel and unusual punishment that it has come across, eviscerating the principle that the amendment enshrines ‘evolving standards of decency’ into constitutional law. The real question in Grants Pass, then, is not whether the Supreme Court will side with the town—it will. The question is how much damage it’ll do to the Eighth Amendment along the way.

“On this point, the conservative justices seemed divided; the biggest surprise from Monday’s arguments may be their evident reluctance to go big,” Stern wrote. “There is really no chance that five justices will affirm the 9th Circuit’s holding that the Grants Pass anti-homelessness laws amount to unconstitutional ‘cruel and unusual punishment.’ But perhaps in siding with the town, some conservative justices will preserve Robinson and its protections against status-based ‘crimes.’ They could leave room for homeless residents to mount a more limited challenge rooted in due process.”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• As a matter of policy, I don’t think laws like this are the best way to solve homelessness.
• Legally, it’s tough to call this an Eighth Amendment violation.
• I don't know where the line is, but I’d expect the Supreme Court to narrowly rule in favor of Grants Pass.

As is typical with cases like this, policy and legal questions are both at play. The Supreme Court's job, obviously, is to rule on the legal questions. But the policy implications are important.

On that side, two things still seem true to me: First, local officials should be allowed to pass laws and ordinances to deal with homelessness, and every municipality is going to be different. As a few of the justices themselves said, the Supreme Court really isn't an ideal place to solve this — what works in Grants Pass is not necessarily going to work in San Francisco. Having SCOTUS prevent local officials from doing something as basic as clearing out a public space does feel off.

Second, I think it's also obvious that fining or imprisoning homeless people for sleeping in public spaces is both counterproductive and needlessly cruel. I was glad to see Brett Kavanaugh press the city about how this program could possibly be productive in solving the problem. One of the most convincing articles I've ever read about homelessness was written by Aaron Carr, who argued that the most important driver of homelessness is the cost of housing. Working from Carr’s conclusion, depriving homeless people of their money or freedom is likely to make the problem worse.

So, as a matter of policy, laws like the one from Grants Pass have to walk a fine line. If broadly exercised, there is a good chance this policy puts a large number of homeless people into a cycle of debt, fines, and jail that ensures they’ll never be able to find work, save money, or afford housing. 

That brings us to the legal questions. Despite believing policies like this are cruel in essence, my gut instinct is that they don't constitute "cruel and unusual punishment" in the Constitutional sense. I'm not on the ground in Grants Pass, but I suspect these local officials are sincerely trying to respond to a genuine crisis in a way that's good for their community. While I believe they are wrong on the merits of the policy, I don't think that their actions are unconstitutional.

The oral arguments over whether Grants Pass was criminalizing basic human needs were fascinating. As I listened to the liberal justices comparing sleeping to breathing or eating, I felt myself moving toward their position. But Justice Barrett’s rebuttal asking whether defecating in the streets constituted a basic need that couldn't be criminalized convinced me of the flimsiness of their argument. As the questioning unfolded, though, it became clear these points wouldn’t be central to determining the outcome. 

Closer to the heart of the issue seemed to be whether Grants Pass was targeting homeless people specifically and their status in particular. To me, restrictions on camping or sleeping with blankets in public seem clearly designed to force homeless people out. That intent is not just already apparent, but the Grants Pass city council president admitted as much, saying "the point" was to "make it uncomfortable enough for them in our city so they will want to move on down the road.” But, as Roberts wondered, is Grants Pass really criminalizing someone’s “status” as a homeless person if that status can be reversed instantly by housing them, or is it regulating a kind of conduct? I really don't know.

I’m not sure how the court is going to rule, and I don't feel at all sure about how they should rule. I both agree that Grants Pass should be able to enforce some public encampment laws and that genuine constitutional protections should exist for people who are homeless. I can see how the Eighth Amendment could apply here, and I doubt that these laws necessitate violating it. The line between reasonable legal penalties and genuinely cruel punishments seems murky, at best. So while I wish Grants Pass would change these laws, I don’t feel comfortable saying they must as a matter of constitutionality.

My best guess is that the Court will issue some kind of narrow ruling that gives Grants Pass leeway to enforce its laws without broadly sanctioning localities and states to enforce similar rules. I have no idea how the court will thread that needle, though, and after reading experts on the court I’m not sure anyone really does.

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Your questions, answered.

Q: After our email discussion last year where we agreed that Social Security is totally paid for out of its own unique trust fund and has no impact on the federal annual appropriated budget, debt or deficit; I don't understand how you can say multiple times in this article that "Social Security, which is barreling toward insolvency and is one of the primary drivers of our deficit and debt" and its resolution is one of the very few ways to reduce the current debt and deficit.

— John from Metropolis, IL

Tangle: Let me be very clear that I think you are correct about Social Security being funded by individual disbursements made to its own trust fund (technically, multiple funds). I’ve tussled with readers over various aspects of Social Security in email threads and reader questions, but I want everyone to know that this is one area where there shouldn’t be any disagreement.

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First, the Social Security Administration’s (SSA) transactions have been included under the federal government’s “unified budget” since 1969, meaning that if the fund pays out more than it takes in, that’s accounted for in our deficit. You might argue that the SSA’s funds ought to be tracked separately since they are siloed from the rest of the government. That’s a sensible stance, but it isn’t shared by the government; and there’s good reason for that.

Which is point two: The government borrows from Social Security. When we run a deficit, the government issues bonds to itself using funds from whatever cash it has on hand, like the SSA trust funds. The government has never failed to pay that money back (with interest), but those interest payments are also part of the federal budget, meaning they’re also partial drivers of future deficits. Social Security recipients are ultimately beneficiaries of these loans, providing justification for why the government should account for SSA in the unified budget.

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Remember: The SSA isn’t a collection of private savings accounts. You don’t pay for your own Social Security; you paid for people before you, other people are paying for you now, and the current math is just out of balance. Those payments come through very specific taxes and are accrued in very specific funds, yes, but the government accounts for them generally (as it should). And since disbursements comprise about 20% of our budget, and the SSA is paying out more than it takes in, Social Security is a driver of our federal deficit.

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Under the radar.

The United States has been secretly shipping long-range missiles to Ukraine, which has now used them on two occasions in its war with Russia. Whether to send the Army Tactical Missile Systems (ATACMS) was a subject of much debate within the Biden administration; the missiles have a range of up to 300 kilometers, and the administration sought assurances from Ukraine that they would only be used against targets within Ukrainian territory. The Pentagon opposed sending the missiles, saying it could impact U.S. military readiness. However, Secretary of State Jake Sullivan confirmed the administration decided to send them, planned to send more, and did not specify how many it has already sent. Reuters has the story.

Numbers.

• 138. The maximum number of people that the Grants Pass Gospel Rescue Mission, the primary organization serving the city’s homeless population, can accommodate at one time at its facilities, according to an amicus curiae brief filed to the Supreme Court.
• 582,462. The estimated number of people in the U.S. who experienced homelessness on a given night in 2022, according to the Department of Housing and Urban Development.
• 653,104. The estimated number of homeless people in the U.S. on a given night in 2023, a 12% annual increase.
• 39%. Of those experiencing homelessness, the percentage that were categorized as unsheltered, defined as living in a public or private place not designated for regular sleeping accommodation for people. 
• 1,112,545. The available number of year-round beds designated for homeless people in the U.S. in 2023.
• 59%. The percentage of homeless people who were sheltering in an urban area in 2023.  
• 57%. The percentage of people in urban areas in the U.S. who said they noticed an increase in homelessness in their communities in 2023, according to a poll by BPC/Morning Consult. 
• 85%. The percentage of Americans who viewed homelessness as a serious problem at the national level in 2023.

The extras.

• One year ago today we wrote about Fox News firing Tucker Carlson.
• The most clicked link in yesterday’s newsletter was this X post by Ahmed Fouad Alkhatib.
• Nothing to do with politics: After 14 years, Reggie Bush is regaining his Heisman Trophy.

Yesterday’s survey: 1,203 readers answered our survey on campus protests over Israel with 42% finding the protests not important at all. “I am a student at Columbia University involved in the protests, and I agree with every point you've made. I'd like to add that we have been asking for eyes on Gaza instead of us this whole time... I am happy that the media circus around these protests are hopefully showing Biden and the Democrats how much young voters care about this issue,” one respondent said.

What do you think of Grants Pass’s public encampment laws? Let us know!

Have a nice day.

Most of us are lucky to have a gym buddy who will go the extra mile for us. Brooke Smith-Sanders’s gym buddy went an extra marathon when she volunteered to carry Brooke’s child. When she was 17, Brooke learned that she had been born without a uterus, so she and her husband went straight for IVF with a surrogate when they were ready to have kids. After two unsuccessful attempts, Brooke’s CrossFit buddy Dawn Crawley stepped up, successfully carrying Brooke’s twins to term — at the age of 47. “I am adopted—someone gave me a chance from birth,” said Crawley. “I wanted to repay that any way that I could.” Good News Network has the story.

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