Gavin Newsome's Anti-Homeless Order Collides With Reality

Executive Tantruming Is Not A Solution

On July 25, California Governor Gavin Newsom declared war on California’s burgeoning homeless population.

Specifically, Governor Newsom issued an executive order calling for municipalities and other agencies within California to remove from public spaces all homeless encampments.

Local governments are encouraged to adopt policies consistent with this Order and to use all available resources and infrastructure, including resources provided by the State’s historic investments in housing and intervention programs where appropriate and available, to take action with the urgency this crisis demands to humanely remove encampments from public spaces, prioritizing those encampments that most threaten the life, health, and safety of those in and around them

In summary, local governments are to clear out any and all homeless encampments on public spaces, without exception.

In the press release announcing the Executive Order, Newsom framed it as an ongoing part of California’s efforts to address homelessness.

Building on California’s ongoing work and unprecedented investments to address the decades-long issue of homelessness, Governor Gavin Newsom issued an executive order today ordering state agencies and departments to adopt clear policies that urgently  address homeless encampments while  respecting the dignity and well-being of all Californians.

With the recent U.S. Supreme Court decision in Grants Pass v Johnson, local governments now have the tools and authority to address dangerous encampments and help provide those residing in encampments with the resources they need.

First, we must correct a misperception of Newsom’s about the recent Supreme Court case. Grants Pass v Johnson¹ did not provide municipalities with any new authority or tools to address homelessness. Neil Gorsuch, writing for the majority, merely affirmed existing authority and rejected federal court authority to intervene.

Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right. Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness. Robinson, 370 U. S., at 689 (White, J., dissenting). The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.

Municipalities have the same power to enforce public camping ordinances that they have always had.

However, Newsom's July 25 Executive Order also represents an escalation from the standard he himself expressed in commenting on the Grants Pass ruling when it first came down in June.

“Today’s ruling by the U.S. Supreme Court provides state and local officials the definitive authority to implement and enforce policies to clear unsafe encampments from our streets. This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities.

“California remains committed to respecting the dignity and fundamental human needs of all people and the state will continue to work with compassion to provide individuals experiencing homelessness with the resources they need to better their lives.”

In the space of a month, Newsom has gone from wanting “unsafe” encampments removed to wanting all encampments removed.

Fundamentally, as Newsome articulated in the order itself, he is doubling down on existing state policies and programs created to combat homelessness.

WHEREAS since the beginning of my Administration, the State has made unprecedented investments to address the homelessness crisis head on, investing more than $24 billion across multiple state agencies and departments, including $4.85 billion in flexible funding to local jurisdictions to prevent and reduce homelessness through Homeless Housing, Assistance and Prevention grants, $1 billion in Encampment Resolution Funding to assist local jurisdictions in providing services and supports to people living in encampments, and $3.3 billion to rapidly expand housing for persons experiencing homelessness through Homekey; and

WHEREAS the State has redoubled its commitment to holding local jurisdictions accountable to reduce homelessness, including by strengthening and enforcing requirements that local jurisdictions plan for their fair share of housing and by conditioning state homelessness funding on rigorous reporting and measurable performance metrics

However, even within his Executive Order, Newsom articulates a clear public policiy sentiment that it is dangerous homeless encampments are a threat to public health and public safety and need to be removed.

WHEREAS it is imperative to act with urgency to address dangerous encampments, which subject unsheltered individuals living in them to extreme weather, fires, predatory and criminal activity, and widespread substance use, harming their health, safety, and well-being, and which also threaten the safety and viability of nearby businesses and neighborhoods and undermine the cleanliness and usability of parks, water supplies, and other public resources;

Yet from this predicate he moves to the removal of all homeless encampments from all public spaces.

The enforcement language of his order presumes two things:

1. Gavin Newsom is presuming that all homeless encampments are a dangerous threat to public health and public safety.

2. Gavin Newsom is presuming that California municipalities have the resources to accommodate all homeless persons illegally camping on public land.

The first presumption is on its face a sweeping generalization: there can be little doubt that some homeless encampments are unsafe, unsanitary, and withal unhealthy. There is also no doubt that such encampments in particular areas—right next to a school, for example—might create a particular safety concern for the community as a whole that calls for some sort of action to be taken. It does not follow that every homeless encampment in every location is equally a threat to public safety, sanitation, and health.

This is important to understand because as even Grants Pass concedes, municipalities generally do not have all the resources needed to house all homeless individuals within their jurisdiction.

And, the court found, everyone without shelter in Grants Pass was “involuntarily homeless” because the city’s total homeless population outnumbered its “ ‘practically available’ ” shelter beds.

If there are not enough shelter beds to house the homeless currently living in encampments, where are they to go after the encampments have been cleared out?

The only guidance Newsom’s Executive Order provides is an anodyne instruction to “to use all available resources and infrastructure”.

Would that infrastructure be sufficient?

According to California’s own data², 394,497 individuals accessed various social services while homeless during Fiscal Year 2022-2023

Of those, 184,339 individuals were “first time” homeless (at least, first time being homeless and accessing services).

Right away, this data tells us that there is something dramatically wrong with at least the data on California’s homeless initiatives, because the Point-In-Time count of California’s homeless for FY2022-2023 found only 171,500 homeless individuals.

Further, during FY2022-2023, California successfully moved 72,241 individuals out of homelessness.

Gavin Newsom’s billion-dollar homeless initiatives succeeded in getting 72,241 people off the street, during a year when 184,339 individuals were, for whatever reason, put out on the street.

During FY2022-2023, California had more than 2-1/2 times more new homeless than people it successfully transitioned out of homelessness.

Despite all the enormous expenditures of taxpayer dollars in California, Gavin Newsom is not even managing to stem the tide of homelessness. More and more people are finding themselves out on the street in California than California is able to get them off the street.

With homelessness a growing problem within California, if Gavin Newsom proceeds to clear out all homeless encampments, California does not have anywhere near the resources to address that many homeless persons.

That reality is magnified by the fact that 9% of the people California gets off the streets wind up back on the streets at some point.

Gavin Newsom is wanting to clear out the homeless encampments but statewide California does not have the resources to address all the people whose situations he means to disrupt (or, we should say, disrupt further).

That there would be a lack of resources is undoubtedly galling to Gavin Newsom, as on his watch California has spent billions seeking to address the homeless crisis.

But solving it is a problem that has dogged Newsom since taking office. Under Newsom, the state has spent roughly $24bn to tackle the homelessness crisis. That includes at least $3.2bn in grants given to local government to build shelters, clear encampments and connect unhoused people to services.

Yet the data makes plain that even after $24 billion of taxpayer dollars have been spent, even after over $3 billion has been given to local governments to help build shelters and provide alternatives to encampments, the problem of homelessness in California continues to get worse.

Gavin Newsom’s expenditures have not produced anything resembling the desired results.

One could even say that Gavin Newsom’s expenditures on homelessness have been a colossal failure.

We should note that lack of resources is a problem in homeless initiatives nationwide. Even Governor Ron DeSantis of Florida has encountered that particular criticism in the wake of Florida’s own anti-homeless encampment initiative, HB1365, which DeSantis signed into law earlier this year.

Florida Laws On Homelessness And Social Media: Better Than Nothing? Or Worse?

On HB1365, critics have said Florida isn’t allocating enough funding to provide the resources mandated by the bill.

"We're going to need so much more funding if we're going to build up these resources," said Megan Sarmento, an outreach program manager for the Florida Harm Reduction Collective in Tampa. "Even now, how the system is, we are finding people on the streets and are unable to link them to care because of the lack of resources, including housing and detox."

The same challenge facing Grants Pass in Oregon is the same challenge facing Florida is the same challenge facing California: not enough resources are available.

As I noted in dicsussing the Florida law, the resource question is not new. The National Homelessness Law Center highlighted that issue in its 2021 study on homelessness³.

Laws that criminalize homelessness do not solve the underlying causes of homelessness. Punishing an unhoused person for sleeping outdoors does not obviate their need to sleep nor does it create a safe place for them to sleep indoors. Instead, criminalization exacerbates a person’s homelessness, often by creating additional barriers to housing and employment. Additionally, whether at the state- or local- level, enforcing criminal statutes is expensive and diverts resources that could instead be spent to solve homelessness.

Indeed, the criticism in the study of camping bans, that they are used to simply conduct homeless “sweeps” which result in, among other things, wanton destruction of a person’s property.

Camping bans are frequently enforced as an excuse to conduct sweeps of homeless encampments. These sweeps can result in arrests and the destruction of a person’s personal property, including IDs and personal documents, medicine and medical devices, and other crucial items. Enforcement of a camping ban does not suddenly result in a person experiencing homelessness having a place to live. Instead, it unnecessarily displaces a person experiencing homelessness to another public place, where they might find themselves at risk of subsequent enforcement.

However, Florida’s HB1365 at least makes an effort to address the practicalities by allowing municipalities to designate areas that may be used for public camping.

(3) A county may, by majority vote of the county's governing body, designate property owned by the county or a municipality within the boundaries of the county to be used for a continuous period of no longer than 1 year for the purposes of public camping or sleeping. If the designated property is within the boundaries of a municipality, the designation is contingent upon the concurrence of the municipality by majority vote of the municipality's governing body.

Gavin Newsom’s Executive Order makes no such provision. Exactly how Newsom’s proposed abatement of all homeless encampments does not quickly deteriorate into a cruel game of homeless “whack-a-mole” is uncertain. The Executive Order itself offers no assurance that would not happen.

As I stated at the time Florida’s HB1365 became law, at least HB1365 has the good sense to provide a capacity for local government to craft a workaround by designating specific public places as acceptable for camping, and then ensuring a modicum of safety in those places. There is at least that much flexibility within the Florida approach.

There is little to none in the California approach. Governor Newsom wants the homeless encampments gone, and so they will be gone.

Nor is there any doubt that Newsom’s intent is draconian. In the wake of his Executive Order he is now threatening to apply a stick to communities which do not toe his Executive Order’s line by withholding various funds.

Newsom called on California officials to “act with urgency to address dangerous encampments.” In a post on X, he said, “No more excuses. We’ve provided the time. We’ve provided the funds. Now it’s time for locals to do their job.”

Agencies are urged to prioritize clearing encampments after providing advance notice. While Newsom can’t force local authorities to act, his administration can apply pressure by withholding money and resources from counties and cities that fail to cooperate.

Homeless advocates within California argue that Newsom’s order merely shuffles people around rather than provides any new or substantive solutions.

"All this order does is cut off those areas and force people into the municipalities and jurisdictions where they are subject to yet another patchwork of enforcement strategies," said Shayla Myers, a lawyer who works on homeless issues with the Legal Aid Foundation of Los Angeles. "It is becoming harder and harder for people to figure out where they can go without breaking the law."

As a simple matter of basic physics and basic common sense, homeless individuals have to go “somewhere”. If there are not enough shelter beds, where do they go but out to public places? What options are left to them?

Gavin Newsom’s Executive Order does not answer those questions.

Newsom’s public commentary suggests he is not concerned with those questions. Compliance with his edict is what he wants above all else.

“I want to see results,” Newsom told reporters at a news conference on Thursday. “I don’t want to read about them. I don’t want to see the data. I want to see it.”

What manner of results will he see? That is as unclear as the expected outcomes of his Executive Order

There is no reasoned commentator on current affairs who will deny that America is facing a growing crisis of homlessness. People of all ages and from all backgrounds are struggling. They are struggling financially, and economically. They are struggling with their mental health. They are struggling with addiction and substance abuse. They are struggling with all of the above.

At the same time, there is no reasoned commentator on current affairs who will deny that many homeless encampments are clearly public safety, public sanitation, and public health hazards. The areas people are coopting into campgrounds do not have, are not designed for camping by even a single individual, let alone by large numbers of them. That such campsites can pose a safety concern if not a safety problem to the community as a whole is not a question open to any realistic debate.

Yet there are in any community a finite number of places within homeless shelters. Within those shelters there are finite resources to deal with the mental health challenges faced by many people who wind up homeless. There are certainly a finite and inadequate number of slots in substance abuse and rehab treatment centers for individuals seeking to “get clean”.

This much is always certain: the homeless are human beings. They are not a “problem”, but rather people with all manner of problems. They are people with stories as varied and as unique as the people themselves.

The homeless are people who by simple application of the laws of physics have to be “somewhere”. If all governments do is push them out of one area, they will necessarily go to another, only to be pushed out again.

Cleaning out homeless encampments when there are already not enough resources to put homeless individuals in temporary accomodations does not add to the stock of temporary accomodations. Cleaning out homeless encampments does not make the homeless no longer homeless. Cleaning out homeless encampments merely destroys what little property many of them have, and may make it even more difficult for them to get off the streets if that property includes their identification and other documents.

I do not claim to have any of the answers where homelessness is concerned. Homelessness is one of those societal challenges where all options look to be bad ones.

Homelessness is not a societal challenge that is going to disappear any time soon. It certainly is not a challenge that will be wiped clean with a stroke of Gavin Newsom’s Executive Order pen.

Gavin Newsom wants to see “results”. I have no doubt that he is not alone in that.

Having spent $24 Billion of taxpayer money on homeless initiatives, only to see the homeless population continue to explode in California, perhaps Gavin Newsom should admit that he is seeing results—he just doesn’t like the results he’s seeing.

California desperately needs a solution to its homeless crisis. Gavin Newsom’s executive tantruming, however, is not that solution.

1. City of Grants Pass v. Johnson, 603 U.S. ___ (2024)

2. California Interagency Council on Homelessness. Implementation Progress Report for Fiscal Year 22-23. California Interagency Council on Homelessness, 2023, https://www.bcsh.ca.gov/calich/documents/action_plan_2022-2023.pdf.

3. National Homelessness Law Center. HOUSING NOT HANDCUFFS 2021: STATE LAW SUPPLEMENT. National Homelessness Law Center, 2021, https://homelesslaw.org/wp-content/uploads/2021/11/2021-HNH-State-Crim-Supplement.pdf.