Almost lost in the clamor of recalls and crime is the problem of encampments in Oakland, including single-person sites that can be the dirtiest of all.
Actually, it was encampments, as well as crime, that inspired us to start the Coalition for a Better Oakland four years ago. Over the past year or so, the focus has shifted towards crime—with good reason. But encampments and filthy individual sites remain horrible problems.
I suppose we gave up hope some time ago that Oakland government would deal with encampments. We did our best to persuade it to. Seneca Scott actually sued the city. But that case led to nothing, and now it seems we’ve all begrudgingly accepted tents as the new normal. To some extent, though, this lacuna about homelessness reflects a larger legal reality: next Monday, April 22, the U.S. Supreme Court will hear a case that is the most important concerning homelessness in the nation’s history. Everyone, it seems—states, cities, lower courts--is awaiting the outcome with bated breath.
The case is Johnson v. Grants Pass. Its jurisprudential history is long and complicated, but in summary, the case is about whether cities have the right to restrict homeless people from camping anywhere they want. Is it cruel and unusual punishment (i.e. does it violate the Constitution’s Eighth Amendment) to roust them? Lower courts have ruled that, yes, it is unconstitutional to compel homeless people to move on. The city of Grants Pass, Oregon, has challenged that decision, and it is that case that SCOTUS will consider next week.
No one knows how the Court will rule. It’s tempting to think that the conservative Justices, who form the majority, will side with Grants Pass, since it’s the kind of local decision conservatives always say they prefer. But you never know. It’s also possible that the Court’s decision will be a narrow one, meaning that both sides can claim a partial victory. What is of interest to us here in Oakland is this: If the Court gives cities an opening to get tough on encampments, will Oakland crack down on this problem, which has been bad for years and is getting worse? Or will Oakland indulge in a form of nullification—the constitutional theory that jurisdictions, including cities, can ignore judicial decisions they disagree with?
It’s not hard to imagine that Mayor Sheng Thao and Carroll Fife, Nikki Bas, Rebecca Kaplan, Dan Kalb and the other radical socialists on the City Council will engage in nullification. That’s despite the fact that Dr. King, whom they claim to idolize, in his “I Have a Dream” speech strongly denounced nullification. There are many ways to nullify a Court decision. A government can challenge it with constant, petty legal appeals (as Donald Trump is doing in his multiple court cases) that take forever to resolve, in the hope that the politics of the thing may change. Or a government can simply ignore the court ruling altogether and wait for someone to come along and sue it. One thing we can depend on for sure is that Oakland will not do anything to roust camps or clean them up, since this is ideologically forbidden to them. And it would be very difficult for anyone to force them to.
I mean, if Oakland refuses to comply with a SCOTUS decision, there are only two higher political powers that could challenge the city: California state government and the U.S. government. Concerning the latter, I highly doubt if Joe Biden or his Justice Department are prepared to step into that quagmire, especially in an election year. That leaves Gov. Newsom and his Justice Department, led by Attorney General Rob Bonta. They could, in theory, sue Oakland, but would they? Bonta is a pretty lefty guy, and it would be out of character for him to act in a way that would be contrary to homeless people and their supporters, who also are his supporters.
What I’m afraid of is Oakland deciding to ignore SCOTUS and getting away with it. If that happens, homeless people in other cities will flock here, and if you think encampments are bad now, just wait. Of course, this all depends on exactly how SCOTUS rules (the actual decision won’t come until June). But I do predict SCOTUS will give cities at the very least some opportunity to regulate and clean up encampments. When Oakland refuses, it will have, in essence, declared war on the Federal government. How ironic, in that MAGA has done exactly the same thing, putting both cults in the same crazy car of insurrection.
Steve Heimoff