SCOTUS agrees to hear important case about homelessness

January 23, 2024 | By MARK MILLER
scotus 2

Earlier this month, the Supreme Court agreed to hear a critical case about homelessness called City of Grants Pass v. Johnson.

I wrote about this last week, and Fox News published my opinion. In this op-ed, I write:

The plight of the homeless calls out to anyone with a heart. Drug and alcohol addiction, mental illness, and the outsized cost of housing have driven a sharp uptick in the number of homeless living in tents and makeshift camps in public places.

The spiraling crisis—in all our big cities but particularly in the West—has led to cities and homeless advocates disagreeing about what the government can or should do to solve the problem versus what it must do as a matter of federal constitutional law. That latter question is now before the Supreme Court in a case called City of Grants Pass v. Johnson. The Court granted the case for review earlier today and will hear arguments in the case later this year. At stake is a very basic question: does the Constitution demand that the government do something for each of us proactively, or does it rather state what the government cannot do to us?

What that means is this: Do cities owe the homeless a bed or place to sleep, as homeless advocates argue? Or can cities fine and remove the homeless from city streets in the name of public order without providing them with some version of a public homeless shelter, as the Oregon city of Grants Pass and other cities argue? I explain that those countervailing arguments speak to the underlying constitutional fight in this case, which is the difference between negative rights and positive rights.

Negative rights say what the government cannot do to you. Think freedom of speech: pursuant to the First Amendment, the government cannot censor you. Or property rights: the government cannot take your property except for public use and only upon the payment of just compensation, as per the Fifth Amendment. Or the right to life: the government cannot take your life from you without due process, as set out in the Fifth and Fourteenth Amendments.

On the other hand, the concept of constitutional positive rights means you have a constitutional right to government action. Before this Grants Pass case, you would struggle to think of a constitutional example of a positive right because that is not how the Constitution works. But the Ninth Circuit’s decision says the Eighth Amendment protects a positive right: the right to a place to sleep for the involuntarily homeless.

The Supreme Court has consistently rejected the idea that the Constitution requires the government to do something for us, even though the facts may draw upon our sympathies, like in Grants Pass. This is true as far as it goes. But in fact, the Supreme Court does not always adhere to the Constitution’s understanding of negative versus positive rights.

That the Court sometimes fails to protect negative rights leads to much of the work PLF undertakes for the ordinary Americans it represents. For example, the heavy-handed regulations we face in our businesses and careers violate the negative rights protected by the Fourteenth Amendment, but the current Court ignores this. We have a negative right to use our property and earn a living free from government interference. We do not ask the government for special treatment of our right to earn a living or manage a business—we want it to leave us alone. Yet the Supreme Court has failed to recognize that its approval of onerous economic regulations fails to stick to the negative/positive right ideal that it assiduously adheres to elsewhere.

The Court recently turned away a fantastic opportunity in the economic regulation field to follow the negative/positive rights paradigm in the case of Ursula Newell-Davis. Ms. Newell-Davis is a Louisiana mother, person of color, and social worker who planned to provide reliable and affordable respite care for parents who needed assistance caring for their high-needs children.

To receive a state license to provide these needed services, Louisiana required Ursula to get approval from competitors already practicing in that respite care field. But why would competitors ever approve the entry of a new competitor into their market? That barrier to entry made no sense, and it fundamentally misunderstands the proper role of government. The Court chose to turn down Ursula’s case, a case in which Louisiana’s countenance of this regulatory scheme amounted to a violation of her negative right to earn a living free from government interference.

Ursula did not want the government to do anything for her. She wanted the government to get out of her way. But the Court failed to take up her case and, in doing so, failed to follow the positive/negative rights distinction that it obeys elsewhere.

Ursula’s case was brought to the Court by PLF, and we will continue to bring cases like hers to the Court unless and until it course-corrects in cases like hers. That the Court got that case wrong is reason enough to think that it could also get Grants Pass wrong, too.

That is why PLF filed an amicus brief in Grants Pass asking the Court to grant review and correct the Ninth Circuit’s failure to follow the principle of positive/negative rights that lies beneath much of the individual rights-based litigation in our courts. Now that the case has been granted, we will file a merits-stage amicus brief. That amicus brief will speak to how the high-cost-of-housing crisis our nation faces contributes to homelessness, and the brief will set out what cities should do to lower the cost of housing.

Following that advice, the homeless crisis should also be lessened, because housing will become more affordable. We drive prices down by increasing the supply—in this case, of housing. And by making housing more affordable, more people can move off the streets. Is it a magic bullet? Certainly not. But it’s a good start.

Finally, I should note that in writing about negative versus positive rights, neither I nor PLF intends to give short shrift to the way the Grants Pass case takes a number of public policy crises our nation faces—drug addiction, mental health decline, and the high cost of housing, to name the three most pertinent—and adds them together into the more attention-getting public policy crisis that each of them contributes to the overwhelming homeless situation on our city streets and in our public parks.

To resolve this case, I predict the Court will have to grapple with each public policy crisis, both at oral argument and in the Court’s majority opinion, before reaching its ultimate conclusion.