Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated

No. 23-175

In The

Supreme Court of the United States

____________________

CITY OF GRANTS PASS,

Petitioner,

v.

GLORIA JOHNSON AND JOHN LOGAN,

ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED,

____________________

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION and

CALIFORNIA BUSINESS PROPERTIES

ASSOCIATION IN SUPPORT OF PETITIONER

____________________

MARK MILLER

Counsel of Record

Pacific Legal Foundation

4440 PGA Blvd., Ste. 307

Palm Beach Gardens, FL 33410

(561) 691-5000

Mark@pacificlegal.org

Counsel for Amici Curiae

Pacific Legal Foundation and

California Business

Properties Association

i

QUESTION PRESENTED

In Martin v. City of Boise, 920 F.3d 584 (9th Cir.

2019), the Ninth Circuit held that the Cruel and

Unusual Punishments Clause prevents cities from

enforcing criminal restrictions on public camping

unless the person has “access to adequate temporary

shelter.” Id. at 617 & n.8. In this case, the Ninth

Circuit extended Martin to a class wide injunction

prohibiting the City of Grants Pass from enforcing its

public-camping ordinance even though civil citations.

That decision cemented a conflict with the California

Supreme Court and the Eleventh Circuit, which have

upheld similar ordinances, and entrenched a broader

split on the application of the Eighth Amendment to

purportedly involuntary conduct. The Ninth Circuit

nevertheless denied rehearing en banc by a 14-to-13

vote.

The question presented is:

Does the enforcement of generally applicable laws

regulating camping on public property constitute

“cruel and unusual punishment” prohibited by the

Eighth Amendment?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ..................................... iii

IDENTITY AND INTEREST OF

AMICI CURIAE ....................................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 5

I. The Rise of Modern Homelessness Parallels

Rise in Land Use Regulation ................................ 5

A. Modern Homelessness Starts in 1970s and

Doubles Between 1984 and Today................... 5

B. Modern Land Use Restriction Schemes Come

of Age Between 1970s and Today, as the

Homeless Crisis Developed Alongside ............ 7

1.

Zoning ........................................................ 8

2.

Local and State Land Use

Permitting Demands ............................... 11

3.

Environmental Regulations .................... 13

C. That the Housing Crisis Contributes to the

Homelessness Crisis Is Undeniable .............. 15

II. Recognizing a Positive Right to a Public Space to

Sleep Would Represent a Sea Change in This

Court’s Jurisprudence and Make the Homeless

Crisis Worse ......................................................... 19

CONCLUSION.......................................................... 24

iii

Table of Authorities

Page(s)

Cases

Anderson Creek Partners, L.P. v.

Cnty. of Harnett,

876 S.E.2d 476 (N.C. 2022) ................................. 13

Buchanan v. Worley,

245 U.S. 60 (1917) ............................................. 8–9

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ............................................... 1

DeShaney v. Winnebago County Dep’t of

Soc. Servs, 489 U.S. 189 (1989) ..................... 21–22

Harris v. McRae,

448 U.S. 297 (1980) ............................................. 21

Jackson v. City of Joliet,

715 F.2d 1200 (7th Cir. 1983) ............................. 19

Johnson v. City of Grants Pass,

50 F.4th 798 (9th Cir. 2022),

amended and superseded on

den’l of reh’g en banc,

72 F.4th 868 (9th Cir. 2023) ............ 3–4, 19–20, 22

Koontz v. St. Johns River Water

Management District,

570 U.S. 595 (2013) ............................................. 12

Lindsey v. Normet,

405 U.S. 56 (1972) ............................................... 22

Murr v. Wisconsin,

582 U.S. 383 (2017) ............................................... 1

Nollan v. California Coastal

Commission,

483 U.S. 825 (1987) ......................................... 7, 11

iv

Pakdel v. City and Cnty. of

San Francisco,

594 U.S. 474 (2021) ............................................... 1

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................... 1

Sackett v. Environmental Protection

Agency (Sackett II),

598 U.S. 651 (2023) ............................................... 8

Sheetz v. County of El Dorado,

84 Cal. App. 5th 394 (2022),

cert. granted, 144 S. Ct. 477

(Sept. 29, 2023) .................................................... 12

Suitum v. Tahoe Reg’l Planning Agency,

520 U.S. 725 (1997) ............................................... 1

Village of Euclid v. Ambler Realty,

272 U.S. 365 (1926) ............................................... 9

Youngberg v. Romeo,

457 U.S., 102 S.Ct. .............................................. 22

United States Constitution

U.S. Const. amend. V................................................ 22

U.S. Const. amend. VIII ....................1, 4–5, 19, 22, 24

U.S. Const. amend. XIV .................................. 8, 21–22

Statute

Or. Rev. Stat. Ann. § 195.530(2) .............................. 23

v

Other Authorities

2023 Annual Homeless Assessment

Report to Congress, U.S. Dep’t of

Housing and Urban Development

Office of Community Planning and

Development,

https://www.huduser.gov/portal/sites

/default/files/pdf/2023-AHAR-, Part1.pdf ....................................................................... 6

Brief of the Chamber of Commerce of

the United States of America as

Amicus Curiae for Petitioner,

Sheetz v. County of El Dorado,

No. 22-1074, 2023 WL 8188403

(Nov. 20, 2023) ..................................................... 12

Cohen, William & Danelski, David J.,

Constitutional Law: Civil Liberty

and Individual Rights

(Foundation Press, 3d ed. 1994) ................... 20–21

Cox, Adam B. & Samantha, Adam M.,

Unconstitutional Conditions

Questions Everywhere: The

Implications of Exit and Sorting for

Constitutional Law and Theory,

5 J. Legal Analysis 61 (2013) .............................. 13

Eide, Stephen, Homelessness in

America: The History and Tragedy of

an Intractable Social Problem

(Rowman and Littlefield 2022) ............................. 6

vi

Glaeser, Edward & Gyourko, Joseph,

The Economic Implications of

Housing Supply, Journal of

Economic Perspectives, Vol. 32,

No. 1 (Winter 2018),

https://pubs.aeaweb.org/doi/pdfplus/1

0.1257/jep.32.1.3 .................................................. 12

Gray, M. Nolan, Arbitrary Lines: How

Zoning Broke the American City and

How to Fix It (Island Press 2022) ............... 4, 7–11

Hernandez, Jennifer, Green Jim Crow:

How California’s Climate Policies

Undermine Civil Rights and

Racial Equality,

The Breakthrough Institute (2021),

https://thebreakthrough.org/journal/

no-14-summer-2021/green-jim-crow ................... 13

Hershkoff, Helen, Positive Rights and

State Constitutions: The Limits of

Federal Rationality Review,

112 Harv. L. Rev. 1131 (1999) ............................ 20

Homelessness and Housing, A Human

Tragedy, A Moral Challenge:

A Statement Issued by the

Administrative Board of the United

States Catholic Conference

(Mar. 24, 1988),

https://www.usccb.org/issues-andaction/human-life-anddignity/housinghomelessness/upload/homelessnessand-housing.pdf ................................................. 2–3

vii

Horowitz, Alex, et al.,

How Housing Costs Drive Levels of

Homelessness, Pew Charitable

Trusts (Aug. 22, 2023),

https://www.pewtrusts.org/en/resear

ch-andanalysis/articles/2023/08/22/howhousing-costs-drive-levels-ofhomelessness ................................................. 17–18

Kahlenberg, Richard D.,

Excluded: How Snob Zoning,

Nimbyism, and Class Bias Build The

Walls We Don’t See (Public Affairs

Hatchette Press 2023) ....................8, 10–11, 23–24

Kiel, Katherine A., Environmental

Regulations and the Housing

Market: A Review of the Market,

Cityscape: A Journal of Policy

Development and Research,

Volume 8, Number 1 (2005) .......................... 14–15

Lind, Diana, Brave New Home: Our

Future in Smarter, Simpler,

Happier Housing

(New York: Bold Type Books 2020) ...................... 8

Murphy, Joseph & Tobin, Kerri,

Homeless in the U.S.: a historical

analysis, American Education

History Journal Annual 2014

(Vol. 41, Issue 1-2) ................................................. 6

National Coalition for the Homeless,

History of Homelessness 1929–1980,

https://nationalhomeless.org/tbthistory-of-homelessness-1929-1980/ ..................... 6

viii

President Barack Obama Housing

Development Toolkit (Sept. 2016),

https://obamawhitehouse.archives.go

v/sites/whitehouse.gov/files/images/H

ousing_Development_Toolkit%20f.2.

pdf ........................................................................ 17

President Donald J. Trump Executive

Order Establishing a White House

Council on Eliminating Regulatory

Barriers to Affordable Housing

(June 25, 2019),

https://trumpwhitehouse.archives.go

v/presidential-actions/executiveorder-establishing-white-housecouncil-eliminating-regulatorybarriers-affordable-housing/ ......................... 16–17

The Report of President Reagan’s

Commission on Housing (1982),

https://www.huduser.gov/Publication

s/pdf/HUD-2460.pdf ............................................... 5

Rothstein, Richard, Under Color of Law:

A Forgotten History of How Our

Government Segregated America

(Liveright Publishing Corp. 2017) ........................ 9

Sandefur, Timothy, The Permission

Society: How the Ruling Class Turns

Our Freedoms into Privileges and

What We Can Do about It

(Encounter Books 2016) ................................ 10–11

ix

Sunding, David, Response to

Environmental Regulations and the

Housing Market: A Review of the

Literature by Katherine A. Kiel,

Cityscape: A Journal of Policy

Development and Research,

Volume 8, Number 1 (2005),

https://www.huduser.gov/periodicals/

cityscpe/vol8num1/res6.pdf ................................. 14

Taylor, Mac, Perspectives on Helping

Low-Income Californians Afford

Housing, California Legislative

Analyst’s Office (2016),

https://www.lao.ca.gov/Reports/2016/

3345/Low-Income-Housing020816.pdf.............................................................. 7

U.S. Housing and Urban Development,

“A Report to the Secretary on the

Homeless and Emergency Shelters”

(Apr. 23, 1984) ................................................... 6, 8

Usman, Jeffrey Omar, Good Enough for

Government Work: The

Interpretation of Positive Rights in

State Constitutions,

73 Alb. L. Rev. 1459 (2010) ................................. 20

Versteeg, Mila, et al., The New

Homelessness, 113 Cal. L. Rev. __

(forthcoming 2025),

https://papers.ssrn.com/sol3/papers.c

fm?abstract_id=4718929 ..................................... 19

x

The White House, President Biden

Announces New Actions to Ease the

Burden on Housing Costs

(May 16, 2022),

https://www.whitehouse.gov/briefingroom/statementsreleases/2022/05/16/president-bidenannounces-new-actions-to-ease-theburden-of-housing-costs/ ..................................... 16

Wolf, Michael Allan, The Zoning of

America, Euclid v. Ambler

(University Press of Kansas 2008)........................ 9

1

IDENTITY AND INTEREST

OF AMICI CURIAE 1

Pacific Legal Foundation (PLF) is a nonprofit

corporation organized for the purpose of litigating

matters affecting the public interest. One of its

signature issues is property rights. PLF attorneys

have participated as lead counsel in several cases

before the U.S. Supreme Court in defense of these

rights. See, e.g., Cedar Point Nursery v. Hassid, 594

U.S. 139 (2021); Pakdel v. City and Cnty. of San

Francisco, 594 U.S. 474 (2021); Murr v. Wisconsin, 582

U.S. 383 (2017); Palazzolo v. Rhode Island, 533 U.S.

606 (2001); Suitum v. Tahoe Reg’l Planning Agency,

520 U.S. 725 (1997).

PLF participation in this case would continue a

long history of PLF emphasizing the right to

reasonably use private property for housing; the

denial of this right is a source of the rising homeless

population in cities like Grants Pass that has

motivated the novel interpretation of the Eighth

Amendment by courts below. PLF’s experience with

restrictive land use laws will assist the Court in

understanding and deciding the question presented.

California Business Properties Association

(C.B.P.A.) is a commercial real estate trade

association that serves as the legislative and

regulatory advocate for property owners, tenants,

Pursuant to Rule 37.3, Amici provided timely notice to all

parties. Pursuant to Rule 37.6, Amici affirm that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to find the

preparation or submission of this brief. No person other than

Amici, their members, or their counsel made a monetary

contribution to its preparation or submission.

1

2

developers, retailers, contractors, land use attorneys,

brokers, and other professionals in the commercial

real estate industry. With over 10,000 members,

C.B.P.A. is the largest consortium of commercial real

estate professionals in California.

C.B.P.A. is the designated legislative advocate for

the International Council of Shopping Centers (ICSC),

NAIOP of California, the Commercial Real Estate

Developers Association (NAIOP), the Building

Owners and Managers Association of California

(BOMA), the Retail Industry Leaders Association

(RILA), the Institute of Real Estate Management

(IREM), the Association of Commercial Real Estate –

Northern and Southern California (ACRE), the

National Association of Real Estate Investment

Trusts (NAREIT), AIR Commercial Real Estate

Association, and the California Association for Local

Economic Development (CALED).

C.B.P.A. is the recognized voice of all aspects of

the commercial, industrial, and retail real estate

industry in California. Its members range from some

of America’s largest retailers and commercial property

owners and tenants to individual and family-run

commercial real estate interests. C.B.P.A. supports

the reversal of this decision because the homeless

crisis in California is negatively impacting its

members’ business properties and the lower court’s

decision is making the problem worse.

SUMMARY OF ARGUMENT

“Political authorities . . . and, in general, public

opinion all recognize that a situation in which . . .

human beings lack adequate housing is a serious

problem.” Homelessness and Housing, A Human

3

Tragedy, A Moral Challenge: A Statement Issued by

the Administrative Board of the United States

Catholic Conference at ¶ 13 (Mar. 24, 1988). 2 As that

statement from nearly 40 years ago recognizes, this

country’s politically elected leaders have a

responsibility to the electorate to properly remedy a

homeless crisis that faced our country then and has

worsened in the years since. Cf. Johnson v. City of

Grants Pass, 72 F.4th 868, 935 (9th Cir. 2023)

(“Homelessness is caused by a complex mix of

economic, mental-health, and substance-abuse

factors, and appears to resist any easy solution. In

recent years, state and local governments have taken

a variety of steps intended to ameliorate the crisis[.]”)

(Smith, S.J., statement upon denial of reh’g en banc).

That the problem has worsened cannot be

gainsaid. Although homelessness has existed in the

country at least since the mid-1800s, before the 1970s

homelessness generally ebbed and flowed with the

economy. But by 1984, federal officials estimated the

number of homeless in the country to be between

250,000 and 350,000, despite the economy roaring to

life following the recession of 1981–82. That number

pales compared to the number of homeless today. Last

year, the federal government estimated that the

number of Americans without a place to stay for the

night has about doubled.

Growing homeless populations encroaching on

public and private property, and the resulting

conflicts among people who use or own those spaces,

2 https://www.usccb.org/issues-and-action/human-life-and-

dignity/housing-homelessness/upload/homelessness-andhousing.pdf.

4

have driven the problem toward courts to resolve. The

Ninth Circuit has created a rule purportedly grounded

in the Eighth Amendment that ties the hands of local

policymakers to adopt reasonable laws to move

persons or encampments or try other ways to abate

disorder in their communities. As the Petitioner and

numerous amici have effectively argued, the

constitutionality of the lower court’s rule is untenable.

See Brief for Petitioner at 4 (explaining that the Ninth

Circuit “misread” and “stretched” Eighth Amendment

precedent to reach a result not grounded in the

Amendment’s “text, history, or tradition”); Brief of

Amicus Curiae The County of Orange, California, in

Support of Petitioner at 3–4 (describing how the Ninth

Circuit created an “unpredictable and uncertain legal

minefield for public entities” with its Martin and

Grants Pass decisions).

It must be added, however, that a key source of

the growing homeless population is the lack of

affordable housing in many if not most American

cities today. Pervasive and increasingly restrictive

land use laws are the principal cause of housing

shortages throughout the country at all price points.

“As a result of tightening” laws that prohibit private

property owners and builders from supplying needed

housing, “beginning in the 1970s, median housing

prices have dramatically outpaced median incomes

. . . facilitat[ing] acute housing shortages[.]” See M.

Nolan Gray, Arbitrary Lines: How Zoning Broke the

American City and How to Fix It 3 (Island Press 2022).

This issue is non-partisan. Recent former

Presidents from both sides of the aisle and the current

President have recognized the role government

officials have played in creating the housing crisis

5

that puts housing out of reach for many of the

homeless. And the problems created by modern land

use restrictions has been known for decades. See The

Report of President Reagan’s Commission on Housing

at xv (1982) 3 (recognizing that “government

regulations [must] be simplified [to] lower[] the cost of

housing.”).

This brief urges more respect for property rights

to help cure the social ill of homelessness through the

ingenuity of entrepreneurs and the market in

providing low-cost housing. That will happen only if

government planners step out of the way. Yet, the

Ninth Circuit’s rule would encourage even more

planning and control by the government over where

people live and what gets built. What is needed is

more freedom in land use.

The Ninth Circuit’s rule, if adopted by this Court,

would create a new, heretofore unknown Eighth

Amendment right to sleep on public property, which

would put new demands and responsibilities on local

and state governments. That mistake would put even

more power into the hands of government planners

who are themselves in part responsible for the

homeless crisis giving rise to this case.

ARGUMENT

I.

The Rise of Modern Homelessness

Parallels Rise in Land Use Regulation

A. Modern Homelessness Starts in 1970s

and Doubles Between 1984 and Today

Although homelessness existed in the country at

least since the mid-1800s, before the 1970s

3 https://www.huduser.gov/Publications/pdf/HUD-2460.pdf.

6

homelessness ebbed and flowed with the economy. See

Joseph Murphy and Kerri Tobin, Homeless in the U.S.:

a historical analysis, American Education History

Journal Annual 2014 (Vol. 41, Issue 1-2). But in the

1970s a “trend of chronic homelessness began to

present itself,” National Coalition for the Homeless,

History of Homelessness 1929–1980, 4 and the

“modern homeless era got going around 1980.”

Stephen Eide, Homelessness in America: The History

and Tragedy of an Intractable Social Problem at ix

(Rowman and Littlefield 2022); see also id. at 37 (“the

era of modern homeless replaced the skid row era

around 1980.”).

The federal government estimated America’s

homeless population to be between 250,000 and

350,000 nationwide in 1984. Id. at 41 (citing U.S.

Dep’t of Housing and Urban Development, “A Report

to the Secretary on the Homeless and Emergency

Shelters,” at 18 (Apr. 23, 1984). Fast forward to 2013,

and the federal government estimated the homeless

population to be approximately 610,000 individuals.

See The 2013 Annual Homeless Assessment Report to

Congress, U.S. Dep’t of Housing and Urban

Development Office of Community Planning and

Development at 6. HUD estimated that it grew to

approximately 653,000 in 2023. See the 2023 Annual

Homeless Assessment Report to Congress, U.S. Dep’t

of Housing and Urban Development Office of

Community Planning and Development at 2. 5 Over 40

years then, the federal government estimates that the

https://nationalhomeless.org/tbt-history-of-homelessness-19291980/

5 https://www.huduser.gov/portal/sites/default/files/pdf/2023AHAR-Part-1.pdf.

4

7

homeless population in the country doubled. And

while the homeless were increasing, so too were the

country’s restrictions on land use.

B. Modern Land Use Restriction Schemes

Come of Age Between 1970s and Today, as

the Homeless Crisis Developed Alongside

The massive growth in homelessness has

paralleled growth in the number, complexity, and

expense of land use regulations. Restrictions on

building housing, especially lower-cost housing, have

often come in the guise of zoning reform. See Gray,

Arbitrary Lines at 180 (more detailed zoning during

and after the 1970s “block[ed] new housing

construction, perpetuating a housing shortage that

has shoved millions of people into precarious financial

situations . . . and, in extreme cases, homelessness.”).

But other ways to regulate the use of land developed

or accelerated in the 1970s as well. In coastal zones

with the most acute housing shortages, permitting

schemes drove up the cost of new homes and tested

the bounds of the constitution. See, e.g., Nollan v.

California Coastal Commission, 483 U.S. 825, 837

(1987). That phenomenon continues today. See Mac

Taylor, Perspectives on Helping Low-Income

Californians Afford Housing, California Legislative

Analyst’s Office at 6 (2016) (“state and local policies

limit[] the number of housing projects that are

permitted”). 6 Moreover, the federal government began

overreaching its regulatory authority and steadily

impairing the right to use property in a non-nuisance

manner, including for housing, under the guise of

environmental protection. See, e.g., Sackett v.

6 https://www.lao.ca.gov/Reports/2016/3345/Low-IncomeHousing-020816.pdf.

8

Environmental Protection Agency (Sackett II),

598 U.S. 651, 660 (2023) (EPA blocks building of a

single house under misapplication of Clean Water Act

for nearly 20 years).

1. Zoning has limited housing supply

Local and state officials regulate the way we use

our property through land use codes that apply to

nearly all populous areas throughout the country.

Gray, Arbitrary Lines at 35 (“most local governments

adopted zoning many decades ago”). State planners

set out how local officials may restrict the private use

of land, and most communities of even modest size

have enacted complicated and restrictive expensive

land use schemes regulating which parcels may

contain housing and what type. Id. at 37.

Thus, government “gatekeepers” decide for us as

Americans in most cities and towns where and how we

can live, work, and recreate. See Richard D.

Kahlenberg, Excluded: How Snob Zoning, Nimbyism,

and Class Bias Build The Walls We Don’t See 22–23

(Public Affairs Hatchette Press 2023) (“‘Government

gatekeepers . . . dictate which buildings can be built

and how they should look,’ which in turn determines

who can live where.”) (quoting Diana Lind, Brave New

Home: Our Future in Smarter, Simpler, Happier

Housing 94 (New York: Bold Type Books 2020)).

This Court knows, of course, that early forms of

zoning began during the Wilsonian progressive era,

and that racial segregation motivated its creation. See

Buchanan v. Worley, 245 U.S. 60, 70–71 (1917)

(striking down a Louisville, Kentucky, ordinance that

prohibited blacks from moving into neighborhood

blocks that were majority-white, and vice versa,

9

because it violated the Fourteenth Amendment). To

its credit, this Court quickly struck down expressly

racial zoning. But not quite a decade later the Court

approved a Euclid, Ohio ordinance that divided the

city into zones where various types of development

were allowed or prohibited, Village of Euclid v. Ambler

Realty, 272 U.S. 365 (1926). Though the Cleveland

metropolitan area zoning at the time was not

explicitly race-based, as Buchanan, there was an

undercurrent of anti-Semitic prejudice lurking below.

See Michael Allan Wolf, The Zoning of America:

Euclid v. Ambler 84 (University Press of Kansas

2008). And the decision allowed widespread zoning,

often with improper pretextual motives, to flourish.

See Richard Rothstein, Under Color of Law: A

Forgotten History of How Our Government Segregated

America 52–53 (Liveright Publishing Corp. 2017)

(explaining how in the years after Euclid, “numerous

white suburbs in towns across the country . . . adopted

. . . zoning ordinances [where] snobbishness and racial

prejudice were so intertwined . . . it was impossible to

disentangle” the two).

The era of pervasive and highly restrictive land

use regulation that Euclid ushered in has created

housing shortages, particularly at the lower end of the

market. As Gray explains:

Between 1970 and 2010, median home

values appreciated at a rate of nearly

three times median household incomes,

particularly in prospering coastal cities.

Today, half of all American renters are

rent-burdened—spending over a third of

their income on rent—and one in four

American renters is severely rent-

10

burdened—spending over half of their

income on rent. These figures have only

worsened over the course of the COVID19 pandemic, with supply shortages

driving up housing prices at the highest

rate since the crisis years of the late

1970s.

Gray, Arbitrary Lines at 52. 7 Prohibitive and

restrictive land use laws are largely responsible for

these price increases because they often “block[] new

housing altogether, whether by prohibiting affordable

housing or through explicit rules restraining densities

. . . [which] results in less housing being built.” Id.

And how does zoning do that? By turning our right

to use our property into a privilege that the

government may or may not bestow on us. See

Timothy Sandefur, The Permission Society: How the

Ruling Class Turns Our Freedoms into Privileges and

What We Can Do about It 134 (Encounter Books 2016)

(“zoning laws . . . force people to get permission from

bureaucratic agencies before they may use the

property that supposedly belongs to them[.]”). That

permission sometimes is granted, but at great cost;

moreover, sometimes the permission requires that the

housing be built at “a higher quality than residents

might otherwise require, through policies such as

minimum

lot

sizes

or

minimum

parking

requirements[,]” which drives up costs in a different

way. Gray, Arbitrary Lines at 52. If nothing else,

pervasive land use regulation “often raises housing

7 See also Kahlenberg, Excluded at 52 (“[t]here is near-universal

agreement among economists that since the 1970s, the rise of

zoning laws that forbid the construction of multi-family housing

has prevented housing supply from keeping up with demand.”).

11

costs simply by adding an onerous and unpredictable

layer of review to the permitting process.” Id. at 52–

53.

The impact of the permission requirement baked

into government control of land use can be illuminated

by considering an analogy:

Imagine if there were a law that only

1,000 cars could be sold per year in all of

New York. Those 1,000 cars would go to

whoever could pay the most money for

them, and chances are you and everyone

you know would be out of luck . . . [t]his

doesn’t happen . . . because Ford and

General Motors don’t have to ask

government permission to increase the

number of cars or SUVs that their

factories produce. By contrast, all

changes to housing supply require

explicit

approval

from

local

governments.

Kahlenberg, Excluded at 53 (internal quotations

omitted).

2. Local and State Land Use

Permitting Demands

Besides zoning, local and state government

officials also restrict property rights by imposing

costly financial conditions on the development of

property. See Nollan v. California Coastal

Commission, 483 U.S. 825, 837 (Justice Scalia likened

one such demand to “an out-and-out plan of

extortion”); Sandefur, The Permission Society at 146

12

(comparing local land use permitting schemes to

“payoffs”). 8

The increasing use of the leverage government

has in the permitting process to exact land and money

as a condition of homebuilding has also driven up

costs and reduced housing supply. As economists

Edward Glaeser and Joseph Gyourko have explained,

until the 1960s in the United States, homebuilding

booms corresponded to economic booms. See Edward

Glaeser & Joseph Gyourko, The Economic

Implications of Housing Supply, Journal of Economic

Perspectives, Vol. 32, No. 1 (Winter 2018) at 3-30. 9

But, beginning in the 1960s, increasing reliance upon

land use regulation, including the use of permitting

fees to obtain the right to build, drastically reduced

the production of housing and increased housing

prices, especially along the coasts. Id.

Local and state governments have become more

and more reliant upon the fees they exact through

building permit conditions, see, e.g., Sheetz v. County

of El Dorado, 84 Cal. App. 5th 394 (2022), cert.

granted, 144 S. Ct. 477 (Sept. 29, 2023). Koontz v. St.

Johns River Water Management District, 570 U.S.

8 See also Brief of the Chamber of Commerce of the United States

of America as Amicus Curiae for Petitioner, Sheetz v. County of

El Dorado, No. 22-1074, 2023 WL 8188403 *10–11 (Nov. 20,

2023) (“In modern America, the diversity of these exactions is

limited only by the creativity of the human mind . . . developers

often encounter conditions that bear vanishingly little

relationship to the activity being permitted or its impact,

including situations in which an approval of a project has been

conditioned on paying for public art, providing daycare centers,

or establishing ‘ride-share programs[.]’” (internal citations

omitted)).

9 https://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.32.1.3.

13

595, 612 (2013); see also Adam B. Cox & Adam M.

Samantha, Unconstitutional Conditions Questions

Everywhere: The Implications of Exit and Sorting for

Constitutional Law and Theory, 5 J. Legal Analysis

61, 69 (2013) (noting that the expansion of the

“welfare state” requires the government to fund the

concomitant increase in services). All of these novel

and expanding permitting fees tend to raise the cost

of housing. See Anderson Creek Partners, L.P. v. Cnty.

of Harnett, 876 S.E.2d 476, 506−06 (N.C. 2022) (noting

that these permitting fees for building are often

passed along to the purchaser).

3. Environmental Regulations

Most property regulation occurs at the local and

state level, as the zoning and permitting examples

above set out. This includes environmental

regulation, which like zoning and permitting drives

up the price of housing and contributes to

homelessness. See Jennifer Hernandez, Green Jim

Crow: How California’s Climate Policies Undermine

Civil Rights and Racial Equality, The Breakthrough

Institute (2021) (California’s “climate-based housing

policy accelerates the displacement of communities of

color from urban employment centers . . . San

Francisco, Oakland, and Los Angeles . . . boast shiny

new

residential

towers

alongside

soaring

homelessness

rates

and

declining

minority

populations.”). 10 But federal power has a substantial

impact on land use, too, and restricts homebuilding.

Studies of housing market impacts since the

1970s, when implementation of many of the federal

10 https://thebreakthrough.org/journal/no-14-summer2021/green-jim-crow.

14

environmental laws that impact land use began—the

Endangered Species Act, the Clean Water Act, the

Clean Air Act, among others—demonstrate that

“environmental regulations do increase the price of

housing.” Katherine A. Kiel, Environmental

Regulations and the Housing Market: A Review of the

Market, Cityscape: A Journal of Policy Development

and Research, Volume 8, Number 1 at 204 (2005).

Indeed, “[e]nvironmental regulation is a significant

hurdle in the development process.” David Sunding,

Response to Environmental Regulations and the

Housing Market: A Review of the Literature by

Katherine A. Kiel, Cityscape: A Journal of Policy

Development and Research, Volume 8, Number 1 at

277 (2005). 11

Environmental regulations often block the

building of housing, and when they do not block the

building of housing entirely, they tend to increase the

cost of housing that does get built. They do this by:

•

requiring the land user to “establish that all

practicable steps have been taken to avoid

and minimize adverse impacts” on the

environment, which usually means fewer new

houses than the property would otherwise

allow;

•

creating out-of-pocket costs the property

owner would not otherwise bear, including

the need to hire outside experts, such as

attorneys and biological consultants, to

navigate the permitting process, and the need

11https://www.huduser.gov/periodicals/cityscpe/vol8num1/res6.p

df.

15

to redesign the project based on the outcome

of the review process; and

•

delaying completion of the project which cost

potential purchasers “who must live in a

suboptimal location for some period of time,

and also to developers and landowners who

must wait for receipt of project revenues.”

Sunding at 278.

These governmental demands to obtain

permission to use one’s property “makes it more

difficult . . . to purchase homes in those areas [most

impacted by environmental laws. The issue becomes

one of affordability.” Kiel, Environmental Regulations

at 204. In other words, because fewer houses are built

and because the ones that are built include costs not

tied to the cost of building or genuine nuisance-like

harms, it has become difficult to meet the demand for

housing at all price points.

C. That the Housing Crisis Contributes to

the Homelessness Crisis Is Undeniable

Observers across the political spectrum recognize

that the prohibitive land use regulation raises the cost

of housing and creates shortages.

For his part, President Biden has recognized that

regulatory barriers to productive land use have

created the housing crisis:

Today’s rising housing costs are years in

the making. Fewer new homes were built

in the decade following the Great

Recession than in any decade since the

1960s—constraining housing supply and

16

failing to keep pace with demand and

household formation.

***

Exclusionary land use and zoning

policies constrain land use, artificially

inflate prices, perpetuate historical

patterns of segregation, keep workers in

lower productivity regions, and limit

economic growth. Reducing regulatory

barriers to housing production has been

a bipartisan cause in a number of states

throughout the country.

The White House, President Biden Announces New

Actions to Ease the Burden on Housing Costs (May 16,

2022). 12

Both President Trump and President Obama,

however, went further than that statement from the

Biden Administration, in that they both connected the

housing crisis to the homeless crisis. President

Trump’s Administration recognized that federal,

state, local, and tribal governments “regulatory

barriers” including “overly restrictive zoning and

growth management controls[,] . . . overly burdensome

wetland or environmental regulations . . .

cumbersome and time-consuming permitting and

review procedures . . . and inordinate impact or

developer fees[,]” increased “the costs associated with

development.” See President Trump’s Executive

Order Establishing a White House Council on

Eliminating Regulatory Barriers to Affordable

12 https://www.whitehouse.gov/briefing-room/statementsreleases/2022/05/16/president-biden-announces-new-actions-toease-the-burden-of-housing-costs/.

17

Housing (June 25, 2019). 13 These regulatory barriers

to development “[are] a primary determinant of

homelessness, and research has directly linked more

stringent housing market regulation to higher

homelessness rates.” Id.

Meanwhile, President Obama acknowledged that

cities with the highest regulatory barriers to housing,

those barriers described as “zoning, other land use

regulations, and lengthy development approval

processes,” caused an increase in homelessness.

President Barack Obama Housing Development

Toolkit at 2, 11 (Sept. 2016). 14

Casual observers often attribute the homeless

crisis to mental illness and drug addiction before they

consider the cost of housing, contrary to the

observations of Presidents Trump and Obama. But

nonpartisan researchers confirm that Presidents

Trump and Obama are on the right track, explaining

that attributing the growth in homelessness primarily

to drug addiction or mental illness underappreciates

the role of housing shortages. See Alex Horowitz, et

al., How Housing Costs Drive Levels of Homelessness,

Pew Charitable Trusts (Aug. 22, 2023). 15 As Horowitz,

et al., explain:

A large body of academic research has

consistently found that homelessness in

13 https://trumpwhitehouse.archives.gov/presidentialactions/executive-order-establishing-white-house-councileliminating-regulatory-barriers-affordable-housing/.

14https://obamawhitehouse.archives.gov/sites/whitehouse.gov/fil

es/images/Housing_Development_Toolkit%20f.2.pdf.

15 https://www.pewtrusts.org/en/research-andanalysis/articles/2023/08/22/how-housing-costs-drive-levels-ofhomelessness.

18

an area is driven by housing costs,

whether expressed in terms of rents,

rent-to-income ratios, price-to-income

ratios, or home prices . . . housing costs

explain far more of the difference in rates

of homelessness than variables such as

substance use disorder, mental health,

weather, the strength of the social safety

net, poverty, or economic conditions.

Id. So: housing shortages increase homelessness, and

the various regulatory regimes impacting the ability

to build, including but not limited to zoning,

permitting abuses, and environmental regulations,

are a principal driver of housing shortages. The

country has all but ceded the right to use one’s

property to land use planners, and one consequence of

this decades-long error is plain to see in this case.

To increase housing supply for those at all levels

of income, including the homeless, land use

regulations should be drastically simplified where

they cannot reasonably be eliminated. Or put another

way, the way to address the homeless crisis is to take

away power from the government planners so that

Americans can build more housing more cheaply, free

of unreasonable government regulations on land use.

But that is the opposite of what the Respondents seek

in this case. What the Respondents ask is both wrong

as a matter of policy and, as discussed below,

constitutional rights.

19

II. Recognizing a Positive Right to a Public

Space to Sleep Would Represent a Sea

Change in This Court’s Jurisprudence and

Make the Homeless Crisis Worse

The Ninth Circuit resolved this case by fashioning

what some say amounts to the first federal

constitutional positive right this country has ever

known. See Mila Versteeg, Kevin L. Cope, Gaurav

Mukherjee, The New Homelessness, 113 Cal. L. Rev.

__ (forthcoming 2025) 16 (“the U.S. Constitution . . .

lacks . . . any . . . commitment to positive social-welfare

rights . . . [but] this began to change” because of the

Ninth Circuit’s creation of “the first true federal

constitutional social right . . . [for the homeless] to

camp on public lands”) (emphasis added); see also

Jackson v. City of Joliet, 715 F.2d 1200, 1203–04 (7th

Cir. 1983) (setting out that the Constitution protects

negative rights, or rights that the government cannot

interfere with, versus positive “liberties” or rights,

which require the government to provide “basic

governmental services”). The Petitioners label what

the Ninth Circuit created “a right to public camping,”

Petition for Writ of Certiorari at 6; or, put another

way, it is a right requiring the government to provide

a public space for camping unless the city makes

available adequate shelter to that homeless

individual. Johnson v. City of Grants Pass, 50 F.4th

798 (9th Cir. 2022), amended and superseded on den’l

of reh’g en banc, 72 F.4th 868.

If affirmed by this Court, the Ninth Circuit’s

holding: (i) would represent a sea change in this

Court’s individual rights jurisprudence; and (ii) would

16 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4718929.

20

worsen, not improve, the homeless crisis, because it

would force the government to get even deeper into

the morass of planning and providing for Americans’

lives. But the Eighth Amendment does not require it.

The Ninth Circuit panel tried to downplay the

significance of its novel conclusion, id. at 896 (“our

decision is narrow”), but the decision—if upheld by

this Court—would be very significant. Lurking

underneath the surface of the case and that holding is

an age-old philosophical issue—the difference

between negative and positive rights. See Helen

Hershkoff, Positive Rights and State Constitutions:

The Limits of Federal Rationality Review, 112 Harv.

L. Rev. 1131, 1133 (1999) (“[e]ndorsing a view of the

Federal Constitution as a ‘charter of negative rather

than positive liberties,’ the [Supreme] Court has

resisted acknowledging any ‘affirmative right to

government aid, even where such aid may be

necessary to secure life, liberty, or property interests

of which the government itself may not deprive the

individual.’”) (citation omitted).

Negative rights say what the government cannot

do to you. See Jeffrey Omar Usman, Good Enough for

Government Work: The Interpretation of Positive

Rights in State Constitutions, 73 Alb. L. Rev. 1459,

1462 (2010) (“negative rights entail freedom from

government action. To enforce a negative right, a

citizen merely insists that the government not act so

as to impinge her freedom”). A purported

constitutional positive right, by contrast, describes

what government must do for you—what in some

other countries is called a “social right.” See William

Cohen & David J. Danelski, Constitutional Law: Civil

Liberty and Individual Rights 1081 (Foundation

21

Press, 3d ed. 1994). Positive rights, or “social rights,”

include “the rights to an adequate standard of living,

to decent education, housing, or jobs[.]” Id. Before this

case, one would struggle to think of any example of a

positive right endorsed by this Court.

This Court has consistently rejected the idea that

the Constitution requires the government to do

something for Americans, even though the facts may

draw upon our sympathies. The most famous example

occurred in DeShaney v. Winnebago County Dep’t of

Soc. Servs, 489 U.S. 189 (1989). There, the Court faced

a heartbreaking fact pattern. Joshua DeShaney, a

four-year-old, was removed by the Wisconsin state

court system from his father’s custody because his

father had abused him. Id. at 192. However, based on

the say-so of experts and the county Department of

Social Services (DSS), Joshua was returned to his

father. Id. In the end, the father abused young Joshua

so severely that Joshua fell into a coma. Id. at 193.

Joshua’s mother sued the county on her son’s

behalf and claimed Joshua had a positive

constitutional right, pursuant to the Fourteenth

Amendment, to be protected by the state from his

father. Id. The DSS’s failure to do so amounted to

violating that right. Id. The Court rejected Joshua’s

theory. Id. at 196–98. Chief Justice William

Rehnquist explained that unless someone is in

government custody (in jail, for example), they do not

have a constitutional, positive right to be protected by

the government from a private party. Id. He went on:

[O]ur cases have recognized that the Due

Process Clauses generally confer no

affirmative right to governmental aid,

even where such aid may be necessary to

22

secure life, liberty, or property interests

of which the government itself may not

deprive the individual. See, e.g., Harris v.

McRae, 448 U.S. 297, 317–318, 100 S.Ct.

2671, 2688–2689, 65 L.Ed.2d 784 (1980)

(no obligation to fund abortions or other

medical services) (discussing Due

Process Clause of Fifth Amendment);

Lindsey v. Normet, 405 U.S. 56, 74, 92

S.Ct. 862, 874, 31 L.Ed.2d 36 (1972) (no

obligation to provide adequate housing)

(discussing Due Process Clause of

Fourteenth Amendment); see also

Youngberg v. Romeo, supra, 457 U.S., at

317, 102 S.Ct., at 2458 (“As a general

matter,

a

State

is

under

no

constitutional

duty

to

provide

substantive services for those within its

border”).

Id. at 196. Importantly, Chief Justice Rehnquist

recognized that Joshua may have other legitimate

ways to sue the government for these injuries—for

example, via state negligence law—but the

Constitution does not guarantee a positive right to be

protected. Id. at 201–02. The point remains the same

whether the positive right is asserted under the

Fourteenth or Eighth Amendment, as in this case.

Much as the world sympathized with Joshua, the

Court here can similarly sympathize with the

homeless who struggle with addiction, mental illness,

and the need for more affordable housing. But that

does not mean the homeless have a constitutional,

positive right to a public space in which to sleep.

Johnson, 72 F.4th at 945 (Bress, J., dissenting from

23

denial of reh’g en banc) (“[n]ot every challenge we face

is constitutional in character.”).

Instead, like Joshua again, they may have state

law claims they can make against the government,

but they do not have a constitutional claim against it.

As the Respondent acknowledged in its Brief in

Opposition to Grants Pass’s Petition for Writ of

Certiorari, 17 the State of Oregon recently passed a law

to give the homeless the statutory right to sue if any

local ordinance addressing their act of lying, sitting,

sleeping, or keeping warm and dry on public property

is not “objectively reasonable.” Or. Rev. Stat. Ann.

§ 195.530(2). While it is not a federal, constitutional

cause of action, homeless people in Grants Pass have

a state statutory right to sue the local government for

a place to sleep.

The Constitution and this Court’s jurisprudence

compels this Court to reverse the lower court decision.

And besides being the correct application of this

Court’s precedents, that result also would avoid a rule

that would encourage government planners to take

even more control over the location, type, and volume

of housing made available in our cities. Kahlenberg,

Excluded at 236. To address the homeless crisis,

elected government leaders on both sides of the aisle

should read the writing on the wall:

The government-sponsored walls that

divide us do enormous harm—blunting

opportunity,

making

housing

unaffordable,

damaging

the

environment, segregating us by race and

class, and doing significant injury to our

17See Respondents’ Brief in Opposition at 35.

24

fragile democracy. It is time to recognize

the [government-imposed] walls that

separate us, and then proceed to tear

them down.

Id. (emphasis added). A positive right to shelter for

hundreds of thousands of homeless persons means

more government involvement in the planning of

housing. This Court should reject the claim that the

Eighth Amendment demands it. One hopes local and

state governments may respond instead with policies

respecting property rights and the demand for more,

lower-cost housing nearly everywhere today.

CONCLUSION

The Court should reverse.

DATED: March 2024.

Respectfully submitted,

MARK MILLER

Counsel of Record

Pacific Legal Foundation

4440 PGA Blvd., Ste. 307

Palm Beach Gardens, FL

33410

(561) 691-5000

Mark@pacificlegal.org

Counsel for Amici Curiae

Pacific Legal Foundation

and California Business

Properties Association