Tangle - Criminalizing homelessness before the Supreme Court.

Starting point is 00:00:00 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

Starting point is 00:01:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place where you get views from across the political spectrum, some independent thinking, and a little bit of Isaac's take. I'm your host for today, John Law. And today we're going to be talking about the homelessness case before the Supreme Court, which is the city of Grants Pass versus Johnson. Isaac's doing just a quick bit of traveling. He'll be back tomorrow. But while we're on the subject of tomorrow, we are doing a special

Starting point is 00:01:46 edition. Isaac got a chance to sit down and talk with former Congressman Ken Buck, and we are going to be releasing that for our Friday edition. Also, this Sunday, Isaac and Ari are going to sit down and talk about this past week's Tangle Live event, which took place at City Winery in New York City. We're also going to be releasing the podcast version of that event. The video version is still being edited, but we should have something to tease out for you pretty soon. And we're looking forward to everybody getting a chance to see how the evening transpired. It was a really fun event. All right, with that out of the way, let's jump into today's

Starting point is 00:02:26 quick hits. First up, Representative Donald Payne Jr., the Democrat from New Jersey, died on Wednesday at the age of 65 after suffering a heart attack earlier this month. at the age of 65 after suffering a heart attack earlier this month. Number two, 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. Number three, the United Nations is demanding an investigation after Gaza authorities said they uncovered mass graves at two Gaza hospitals that were raided by Israel. Number four, 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.

Starting point is 00:03:18 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. And number five, on Thursday, the Supreme Court will weigh whether former President Donald Trump is entitled to sweeping immunity for actions taken while president. The U.S. Supreme Court today heard arguments in the most significant case on homelessness in decades. The case looks at challenges to laws in a small Oregon town for fining homeless people up to $300 for setting up camps in public parks.

Starting point is 00:04:07 This morning, the Supreme Court appears open to allowing cities and towns to criminally punish homeless people. At issue, whether governments can ticket, fine, or possibly jail homeless people who sleep outside in public areas. The case stems from the city of Grants Pass, Oregon, which has banned anyone who sleeps in public from using a blanket, pillow, or cardboard box. Now, challengers argue that it makes it a crime to be homeless in the city in violation of the Eighth Amendment ban on cruel and unusual punishment. Meantime, the city argues the ordinance is essential to public health and safety. During court arguments, every justice did agree that the homeless problem was serious,

Starting point is 00:04:50 but differed on how and who should tackle it. During oral arguments on Monday, the Supreme Court seemed divided on the City of Grants Pass v. Johnson, a case about local and state restrictions on people camping and sleeping in public places. A reminder, this case started in July of 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' 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,

Starting point is 00:05:40 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, and today's summary of oral arguments is heavily derived from SCOTUS blog and oral arguments transcripts. The details are this. 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,

Starting point is 00:06:22 first-time violations incur a $295 fee, which increases 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 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 Grant's 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.

Starting point is 00:07:01 A large portion of oral arguments pertain 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 involuntary status. Both sides in Grant's past v. Johnson used the case to bolster their arguments, with Grant's past as 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.

Starting point is 00:07:43 Challengers argue 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

Starting point is 00:08:18 to target people who are involuntarily homeless. Sonia Sotomayor made the argument that the ordinances only impact homeless people, as grants passed 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 become instantly not homeless,

Starting point is 00:09:10 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 the left, and then Isaac's take. We'll be right back after this quick commercial break. We'll be right back after this quick commercial break. First off, we're going to start with what the right is saying. The right mostly supports the court overturning the Ninth Circuit's ruling,

Starting point is 00:09:57 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, this Supreme Court can fix the homeless crisis that the government caused. Reasonable people argue 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,

Starting point is 00:10:38 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 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 immigrants overrunning so many parts of the country.

Starting point is 00:11:22 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

Starting point is 00:12:05 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 i'd 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

Starting point is 00:12:45 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 the 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 used to the encampment way of life, I'd wrote. Cruelty reigns in encampments,

Starting point is 00:13:25 and to an unusual degree, a more civilized society would put up with them less. All right, that is it for what the right is saying, which brings us to 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.

Starting point is 00:14:08 Most of the justices seem 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

Starting point is 00:14:25 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 and 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, or one neighborhood to another, or one city to another, the board wrote.

Starting point is 00:15:01 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. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.

Starting point is 00:15:39 The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

Starting point is 00:16:14 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 Ninth 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, and not only for those who live or work near unsafe encampments, but also for homeless people themselves. That's why a broad bipartisan coalition, including leaders from big

Starting point is 00:16:51 blue cities and small red towns in the Ninth Circuit and elsewhere, is begging the Supreme Court to rule in favor of Grants Pass, the board said. The Ninth 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 Ninth Circuit and its component district courts have defined the terms of acceptable shelter so narrowly and confusingly that few places can comply. 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 Grant's past, then, is not whether

Starting point is 00:17:45 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 seem divided. The biggest surprise from Monday's arguments may be their evident reluctance to go big, Stern wrote. There's really no chance the five justices will affirm the Ninth Circuit's holding that 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 his protections against status-based crimes. They could leave room for homeless residents to mount a more limited challenge rooted in due process.

Starting point is 00:18:35 All right, that is it for what the right and the left are saying, which brings us to Isaac's take. Just a reminder that this is Isaac's opinion and I am reading it in the first person. 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 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 have said, the Supreme Court really isn't an ideal place to solve this.

Starting point is 00:19:15 What works in Grants Pass is not necessarily what is 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. 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 Grant's Pass

Starting point is 00:20:00 have to walk a fine line. If broadly exercised, there's a good chance this policy puts a large number of homeless people into a cycle of debt, fines, and jail that ensures that 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 Grant's past, but I suspect these local officials are sincerely trying to respond to a genuine crisis in a way that's good for their community. And while I believe they are wrong on the merits of the policy, I don't think that

Starting point is 00:20:44 their actions are unconstitutional. The oral arguments over whether Grant's past 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

Starting point is 00:21:18 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

Starting point is 00:21:57 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 punishment 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

Starting point is 00:22:39 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. We'll be right back after this quick break. All right, that is it for Isaac's take, which brings us to your questions answered. This question comes from John in Metropolis, Illinois. John asks, 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 the newsletter about

Starting point is 00:23:25 Biden's 2025 budget proposal that Social Security is barreling toward insolvency and is one of the primary drivers of our debt and deficit, and its resolution is one of the very few ways to reduce the current debt and deficit. So Isaac says, 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. So, having said that, how can I say that Social Security is a primary driver of our deficit and debt? Three reasons. First, the Social Security Administration's 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 Social

Starting point is 00:24:20 Security Administration'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 number 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 also has never failed to pay back that money with interest, but those interest payments are also part of the federal budget, meaning that they're also partial drivers of future deficits. Social security recipients are ultimately beneficiaries of those loans, providing justification for why the government should account for the social Security Administration in the unified budget.

Starting point is 00:25:06 Third, speaking of Social Security beneficiaries, the amount they are entitled to receive outweighs the amount being drawn from payees. Put differently, Social Security is running a deficit and it has been for a while. Either that deficit is addressed or the SSA will become insolvent, meaning we'll have to find other ways to pay for it. Unless we make adjustments to Social Security, that insolvency would have an impact on the appropriated budget. 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,

Starting point is 00:25:49 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. All right, next up is our under the radar section. 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 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

Starting point is 00:26:40 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 this story, and there's a link in today's episode description. All right, next up is our numbers section. 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 is 138, according to an amicus curiae brief filed to the Supreme Court. The estimated number of people in the U.S. who experienced homelessness on a given night in 2022 was 582,462, according to the Department of Housing and Urban Development.

Starting point is 00:27:27 The estimated number of homeless people in the U.S. on any given night in 2023 is 653,104, a 12% annual increase. Of those experiencing homelessness, the percentage that were categorized as unsheltered, defined as living in public or private space not designated for regular sleeping or accommodation for people, is 39%. The available number of year-round beds designated for homeless people in the U.S. in 2023 is 1,112,545. The percentage of homeless people who are sheltering in an urban area in 2023 is 59%.

Starting point is 00:28:06 The percentage of people in urban areas in the U.S. who said they noticed an increase in homelessness in their communities in 2023 is 57%, according to a poll by BPC Morning Consult. The percentage of Americans who viewed homelessness as a serious problem at the national level in 2023 is 85%. All right, and last but not least, our have a nice day story. Most of us are lucky to have a gym buddy who will go the extra mile for us. Brooke Smith-Sanders' 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

Starting point is 00:28:48 with a surrogate when they were ready to have kids. After two unsuccessful attempts, Brooke's CrossFit buddy, Don Crawley, stepped up, successfully carrying Brooke's twins to term at the age of 47. I'm adopted. Someone gave me a chance from birth, said Crawley. I wanted to repay that in any way I could.

Starting point is 00:29:07 Good News Network has the story, and there's a link in today's episode description. All right, everybody, that is it for today's episode. As always, if you want to support our work, you can go to readtangle.com and become a member. As I mentioned at the top, tomorrow's Friday edition is going to be a special interview with former Congressman Ken Buck. On Sunday, we're going to be releasing the podcast version of our live event that happened this past week. All this is to say that we have a lot of ideas and concepts and fresh content that we want to bring you. And the best way you can support that is by signing up for a membership. And if you already have one, spread the word to some friends about Tangle. We really appreciate all the emails of support that we've been getting lately, and we want to keep this content going for you.

Starting point is 00:29:58 We'll be back here tomorrow with that special interview. Have a great day, everybody. Peace. The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager. Music for the podcast was produced by Diet75. And if you're looking for more from Tangle, please go to readtangle.com and check out our website. We'll see you next time. becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting

Starting point is 00:31:25 a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca.

Tangle - Criminalizing homelessness before the Supreme Court.

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