Issues & Insights: Homeless Crisis Exposes Judges Making Policy Rather than Law

October 02, 2023 | By MARK MILLER

Homelessness is the defining public health and safety crisis in the western United States. We see it in Phoenix, Seattle, Boise, Los Angeles, and seemingly all cities in between: makeshift camps, tents, feces, discarded drug needles, and the mentally ill living on the streets and in the public parks of our cities.

To their credit, city officials on both sides of the aisle want to address the crisis, but the federal court that controls the western states — the U.S. Ninth Circuit Court of Appeals — has made it difficult for them to do so. Unelected judges have injected themselves into the crisis without justification, making a bad situation worse. They have done this by failing at their job, which in turn has prevented elected officials from doing their job.

Last week, cities from all over the West asked the Supreme Court to fix what the Ninth Circuit broke: city officials’ ability to address the homeless crisis to protect private property, make the streets safer, and get the mentally ill and drug-addicted homeless help they desperately need.

The case is called Johnson v. Grants Pass, and it’s a follow-up to another Ninth Circuit mistake called Martin v. City of Boise, when five years ago this same court began interfering with cities seeking to address the homeless crisis. It is imperative that the nation’s High Court finally step in.

How did the Ninth Circuit worsen the homelessness crisis in the Martin and Grants Pass cases? It did so by failing to properly recognize that our system of separation of powers allocates to local and state elected officials’ authority to address a public health and safety crisis like homelessness through their policy choices. Instead, the judges decided that they, as ersatz “homeless policy czars,” would recognize for the first time that the homeless had a “right” to a public place to sleep.

From that so-called right — a right that no other court, let alone the Supreme Court, had recognized — they fashioned a rule that basically said, “if a city does not have enough beds for the number of homeless individuals living in their city, then the city can’t fine the homeless or otherwise get them help in a way that would get them off the public streets and out of the public parks.”

Through this “bed formula,” the judges blocked the local and state leaders from making the streets and parks safer for everyone, including the homeless who need help, unless and until all the homeless in town had public beds for sleeping. The idea that the tax funds needed to accomplish such a Sisyphean task would be astronomical did not even receive mention by the judges.

After this blinkered rule came in for bipartisan criticism, the court tried to erase it in a follow-up decision without providing direction as to what should take its place. That left city and state elected leaders with even less of an idea as to what they could do to address the crisis. When they try to work around these two Ninth Circuit rulings, they are immediately hauled into court by lawyers who used the unclear rulings against the cities.

Rules are supposed to foster what have been called the interrelated virtues of reliance, predictability, and certainty. That is a basic requirement of the law and a basic requirement of judging.

But the “rules” set out by the judges in the Martin and Grants Pass cases have failed to deliver on any of those virtues. When a rule is unpredictable, no one can rely upon it — least of all, as we see here, local and state legislators who have every reason to want to act legally because otherwise they end up in court. In this way, the Ninth Circuit judges have failed to do their most basic job in the Martin and Grants Pass cases. They’ve made the law less, not more, clear.

Governor Gavin Newsom of California threw his hands up in response to these two Ninth Circuit decisions. On X (formerly Twitter), he wrote: “On homelessness . . . California has made record investments — $15.3 bil. But federal courts block local efforts to clean street encampments — even when housing and services are offered. Courts must also be held accountable. Enough is enough.”

Governor Newsom is right. The Ninth Circuit’s unworkable and confusing rule prevents local and state elected officials from addressing the crisis in a way that protects the public — including homeless men and women. There is a place for judges to intervene when constitutional rights are being violated. But here, the constitutional rights being violated involve the property rights of home and business owners adjacent to these homeless camps, who live in fear and see their properties deteriorating and businesses failing through no fault of their own.

The Supreme Court must take this case and recognize that the rule of law allows local and state elected leaders to reasonably address the health, safety, and welfare of the public when faced with a crisis like this.

This op-ed was originally published in Issues & Insights on October 2, 2023.