Daily Journal: Supreme Court Fails to Acknowledge Its Part in America’s Homelessness Problem

On any night, more than half a million Americans cannot afford or find a place to sleep other than outdoors or in an emergency shelter. In a recent case about this homelessness crisis called City of Grants Pass v. Johnson, all nine Justices of the Supreme Court had the opportunity to consider the Court’s significant role in creating that homeless crisis — but each Justice ignored it.

The reality they avoided is this: A century ago, in a case called Euclid v. Ambler Realty, the Court wrongly determined that the government has substantial authority to regulate in minute detail how an individual exercises his property rights on his own land and what uses he makes of his own property through zoning. This wrongheaded idea that property rights can be substantially regulated by the government — without showing that the owner is using his property to harm others — is one of the root causes of the homeless crisis and must be corrected.

When we look at the homeless crisis, the average American often sees drug abuse and mental illness as its root causes, obscuring the Court’s role in the creation of the crisis. Yet, as Gregg Colburn and Clayton Page Aldern persuasively explain in their book “Homelessness is a Housing Problem,” it is the prohibitive cost of housing — especially in areas where the government severely restricts the use and development of land and with the resulting skyrocketing of home prices — that drives the ongoing homeless crisis.

How do they substantiate this? By pointing out that the regional variation in rates of homelessness can be explained by the costs and availability of housing. “[H]ousing market conditions explain why Seattle has four times the per capita homelessness of Cincinnati,” Colburn and Aldern write. “Housing market conditions explain why high-poverty cities like Detroit and Cleveland have low rates of homelessness.” Cheaper housing in a booming city like Charlotte is more affordable because its land use restrictions are less draconian. This explains why homelessness in that city is not as extreme as in other modern-day boom towns like Boston, Seattle, Portland, and San Francisco.

If it were mental illness, drug addiction, and other individual failures that led to the extreme rates of homelessness we see, then the prevalence of homelessness would be evenly spread across the country. But not so. Every community has individuals with drug, alcohol, and mental illness problems. But not every community has the extreme homelessness problems that led to the Grants Pass case and other cases like it in primarily, but not exclusively, the western states.

The worst homeless problems arise in cities where the housing markets are tightest. Strict zoning limitations and other regulatory restrictions on the building of housing are worst in the cities where the homeless crisis is worst. These restrictions drive up the cost of housing, leaving people who could afford housing in less restricted communities on the streets. This land use “tax,” as economists call it, accounts for much of the price difference in housing along the coasts, where homelessness is worst, versus the rest of the country.

For an example of how land use restrictions drive up prices for all, consider single-family residence (SFR) zoning. Here, the local government decides only a single home can be built on a lot. Much of our coastal land is zoned in just this way. By restricting a piece of property to only a single home, the opportunity to put a second home, a duplex, or even a quad on that property is lost. Less supply of housing equals more expensive housing for all.

This is where the Supreme Court’s responsibility for the problem comes in: the Court has allowed the government to unconstitutionally restrict the development of private property in this way and other unconstitutional ways for a century, beginning in Euclid v. Ambler Realty in 1926. This idea — that a constitutional right explicitly stated in the Bill of Rights can be substantially regulated— is the root of the homeless crisis.

In its Grants Pass decision, the Justices avoided considering their role in creating the housing crisis that has increased the homeless by designating homelessness as a public policy problem better resolved by elected officials and appointed officials tasked with solving public policy problems. To be sure, the Supreme Court does not exist to work out public policy. But public policy works within the constitutional boundaries set by the Court. When it comes to property rights, including the right to build housing, the Court wrongly set those boundaries much too generously in favor of the government, allowing government officials to interfere with property rights in a way they are not allowed to interfere with other constitutional rights, like free speech, free exercise of religion, and the right to own a gun.

This country has done hard things in the past and solving the housing crisis is a challenging thing we will do in the future. The solution begins with the Supreme Court upzoning the Fifth Amendment to the rarified air the Court accords the other civil rights set out in the Bill of Rights: It will have to recognize our property rights as first-class, not second-class, rights that the government does not get to ‘substantially regulate’ unless our plans explicitly interfere with someone else’s rights. Until the Court acknowledges and corrects its 100-year-old mistake in Euclid, homelessness will remain an intractable problem for the country.

This op-ed originally appeared in Daily Journal on October 10, 2024.