In the last half of 2024, more than 100 cities “banned people from sleeping outside even if they have nowhere else to go.” The timing was not random. Earlier in the year, the Supreme Court decided, in City of Grants Pass v. Johnson, that local governments can criminalize homelessness despite the Eighth Amendment’s bar on cruel and unusual punishment. The Ninth Circuit, in Martin v. Boise, had previously struck down an anti-camping ordinance, reasoning that when there are not enough beds in area shelters, such a law punished the homeless for their very status because humans must sleep somewhere. Grants Pass reversed course and gave local governments a green light to punish the homeless in the hopes of pushing them out of their jurisdiction.
Elected officials, Democrats and Republicans alike, took note – California Governor Gavin Newsom issued an executive order requiring state agencies to clear homeless encampments on state land. For advocates committed to the recognition of the shared humanity of all persons, including the unhoused, Grants Pass was and is an unmitigated disaster, a decision that shows just how far removed the justices are from the lived experiences and struggles of the most vulnerable.
Nevertheless, a possible ray of light can be seen, if one squints, in Gorsuch’s decision and, especially, in the oral argument. One of the arguments advanced by the conservative justices for reversing Martin was that homeless individuals could call upon ‘necessity’ as a defense in the event that cities wrongly punished them for unavoidable human activities. Reading necessity quite broadly, the justices seemed to feel that there was no reason to block municipal governments in the way the Ninth Circuit had because the necessity defense would protect people from prosecutorial abuse.
Though the justices arguably overstated necessity’s doctrinal reach – and the opinion itself includes necessity only in passing as almost an excuse for the cold-heartedness of the holding – the case raises an important question: what would it mean if the law embraced this more robust understanding of necessity? In a forthcoming article, I argue that the Grants Pass-form of necessity would empower those whose basic needs are unmet to assert their rights against private property owners, threatening their exclusionary rights and thus forcing a political reckoning with the problems of extreme poverty in a way that standard pleas for more welfare spending have repeatedly failed.
Defending the Welfare State
For the past fifty years, progressive messaging on poverty has not been working. It is no secret that those struggling with extreme poverty in the United States often find it difficult to obtain decent shelter and adequate food, even though both food and shelter are basic human needs. Yet the political will to help the most vulnerable is lacking.
This is in part because the poor are blamed for their condition and fault is allowed to deflect attention from the basic demands of our shared humanity. Poverty debates tend to involve a fight between those who believe people are poor because they made bad choices (conservatives) and those who emphasize structural causes (liberals). Conservative rhetoric succeeded in moving the discussion from what should be done to help those with the greatest needs to concerns about welfare dependency and the need to incentivize both work and family planning among the poor. Even though the rhetoric far outstrips reality, fault allows those with privilege to look the other way when they encounter the hardships faced by poor people.
For too long, the left has largely been in a defensive posture when it comes to supporting the poor. With the notable exception of the Affordable Care Act, antipoverty advocates have largely had to focus on preserving as much of New Deal and War on Poverty programs as they can. The political will just has not been there for more funding towards things like universal basic income, public housing, or even for ensuring that food stamp assistance is enough to last an entire month. With the claim that tax-and-transfer options are the most efficient way of addressing equity concerns, while not concerning themselves with whether politicians actually adopted such transfer policies, law and economics scholars provided intellectual cover to the assertion that generally the law should not trouble itself with matters of poverty or inequality. Reagan’s view that government lost the War on Poverty became the popular view, despite the fact that welfare provides invaluable support to millions of people every year. Today’s battles involve questions such as whether it is appropriate to attach work requirements to Medicaid or to require drug testing of those receiving food stamps; long gone is the hope that government funding could eradicate childhood poverty or provide decent housing for everyone.
Calls to increase funding, even when accompanied by beautifully written accounts of the harms of poverty, too often go unheeded. If all that was needed for the country – specifically for the property-owning and voting public – to take seriously the needs of poor families was compelling and heartbreaking stories, then Matthew Desmond’s Pulitzer-prize winning book Evicted: Poverty and Profit in the American City should have done the trick. But neither it nor Andrea Elliott’s Invisible Child: Poverty, Survival & Hope in an American City, also a Pulitzer-prize winner and a moving account of how homelessness affects children, succeeded in radically altering the Overton window when it comes to increased spending on social welfare.
But the new necessity may open new space for antipoverty advocates. In part, both as a rhetorical and legal matter, necessity is not about fault. A hungry child should have access to food even if his or her parents made bad choices in high school; people should have a right to sleep—on public or private land—if they are unhoused and they have no other option. The immediacy of need, coupled with a moral commitment to life itself, requires that basic needs required to sustain human life be addressed even if fault is part of the backstory. Necessity therefore sidesteps the fault arguments that President Clinton famously embraced when he ended “welfare as we know it” by making assistance a privilege, not a right.
The current political environment cannot be escaped through ordinary politics – absent a national crisis, it is incredibly unlikely that there will be any increase in social welfare assistance during the second Trump administration. But the new necessity could help free up political space. Namely, by changing the antipoverty calculus for property owners themselves.
Necessity as a Threat to Private Property
The idea that necessity can excuse otherwise prohibited conduct is not new. It finds expression throughout the law school curriculum, though it often centers on those caught out at sea who have no choice but to do something illegal, such as use someone else’s dock, in order to escape death. While discussions of homeless encampments tend to focus on the use of public parks or other public areas such as overpasses or sidewalks, claims of necessity – as exemplified by the private boat dock – are not limited to public land. The interests of private parties, in land and in goods, are equally vulnerable to the necessity-based claims of those without adequate food or shelter.
Most of the time the demands that strong property rights impose on non-owners (like the unhoused) are ignored or glossed over, with owners enjoying a default expectation that others will respect their exclusionary rights and that the state will protect those same rights. A robust version of necessity complicates things for owners by making their property less, not more, secure, and making them vulnerable to the claims of those seeking to fulfill their basic needs.
Ever since the New Jersey Supreme Court observed that, “Property rights serve human values. They are recognized to that end, and are limited by it,” a strain of progressive property theory has sought to integrate this observation with the doctrines animating the field. But for our purposes, it is enough that “human values,” in this case a robust form of necessity, could destabilize the exclusionary rights of owners. The new necessity doctrine, by opening up the possibility that those with property could be required to suffer the needs-based claims of those lacking food or shelter, arguably offers a way out of the political cycle of begging for additional social welfare funding and then being disappointed when it never materializes.
Necessity forces the public and those with private wealth to recognize that so long as public spending does not adequately address their basic needs, the poor have valid claims to public, as well as private, land. Such claims threaten the ordinary expectations of the owners and, as a result, might help change the political landscape such that everyone, not just those sleeping on sidewalks or uncertain about where their next meal will come from, better recognizes the importance of proactively ensuring access to basic needs and putting an end to homelessness and food insecurity.
