Is There a Right to Be Homeless?

President Trump is visiting California today to highlight homelessness. It’s rare for a president to lift up this issue. But it is also rare to consider an executive order that would forcibly remove homeless people to a large empty space, presumably some distance from a downtown area. Reportedly, the president is considering this as an option.

In response to growing camps of homeless people, cities have enacted bans on these encampments. The Ninth Circuit ruled last year against a Boise homeless camp ban.

One feature of the ban is to criminalize living in a banned encampment.

The federal judges wrote, “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

The court said if a city doesn’t have enough shelter beds available, enforcing a camping ban like Boise’s violates the constitutional ban on cruel and unusual punishment. Boise is contesting the ruling, which could end up before the Supreme Court.

President Trump’s interest in forcibly moving homeless people to a distant camp is reminiscent of the forced relocation of 117,000 Japanese Americans to camps located in the high deserts of western states. This was accomplished by an executive order from FDR. Until last year, the legal precedent upholding the forcible relocation of Americans was still good law (Korematsu v. U.S.). However, with Anthony Kennedy now retired and Brett Kavanaugh in place—a strong proponent of executive power— the overturning of that precedent could be reconsidered.