Unsheltered

While largely undercounted by officials, the scale of homelessness in the United States appears to have grown significantly this decade. The pandemic brought eviction moratoriums, emergency hotel shelters, and a recommendation from the Centers for Disease Control and Prevention to halt removal sweeps, but those were temporary. Meanwhile, for complex reasons — but driven by structural factors like high housing prices and low wages — a majority of homeless people now live in unsheltered locales, like tents, vehicles, or shanties. Many cities and states have chosen to respond with a historic wave of sweeps, tows, bans, and new mass or outdoor shelters.

With Eric Tars as its legal director, the National Homelessness Law Center (NHLC) has served as a kind of legal conscience for the nation, hyperfocused on a mission of using the law to, according to its website, “transform fundamentally the landscape of homelessness and poverty in this country.” Founded in 1989, the nonprofit has issued reports on the nation’s growing homeless encampments and initiated the Housing Not Handcuffs campaign to draw attention to the criminalization of homelessness.

Tars’s father was born in a refugee camp during World War II — not only homeless but stateless. “He grew up in refugee camps in conditions that were, in some ways, better than what many people experience on the streets of America,” Tars says, “but with a lot of the same concerns about where he would be laying his head the next night.” This perspective within his family helped push the Georgetown University–educated attorney to take an unabashedly sympathetic point of view toward unhoused people. His analysis of the problem, however, is sophisticated and rigorous, reaching back decades to examine the New Deal and the Reagan Revolution, and weaving together racism, segregation, electoral politics, social trends, and the role of direct action.

If we would just prioritize housing as a human right, Tars argues, the U.S. wouldn’t just help hundreds of thousands — maybe millions — of houseless people. We’d improve city budgets. We’d increase public safety. And we’d transform how this nation treats people of color, our young and old, LGBTQ individuals, and those with disabilities.

Tars studied international human rights in Austria at the Institute for European Studies and the University of Vienna. He is a board member at the U.S. Human Rights Network and has also served as counsel of record in precedent-setting cases such as the 2019 Martin v. City of Boise decision of the Ninth Circuit Court of Appeals, which ruled that it is unconstitutional for cities to enforce anti-camping ordinances if there are not enough shelter beds for their homeless populations.

Tars spoke with me by phone from the NHLC’s headquarters in Washington, D.C. “I grew up with the sense that I had been given a lot of privileges just by being born into the place where I was, in suburban America, and that other children are born into very different circumstances through no fault of their own,” he told me. “So I’ve always felt like I needed to use the privilege that I have in order to advocate together with, and for, those who can’t advocate for themselves.”

 

Schmid: What’s the history behind today’s anti-homeless laws?

Tars: They very much date back to laws like the “anti-Okie” law that California had in the late 1930s, which made it a misdemeanor to knowingly bring any nonresident “indigent” person into the state, as well as to Jim Crow laws in the post–Civil War South. Anti-homeless laws come from the worst part of the American mindset. At its best, America values rugged individualism and self-reliance. But we also have this myth that if you haven’t gotten ahead, it’s always because you haven’t worked hard enough. That’s never been true, and it particularly wasn’t true during the Depression, when conditions beyond any individual’s control led to millions of people losing their jobs or their farms and moving to places where they’d heard there was more opportunity, only to discover that the people living there didn’t want to let them stay.

Income inequality is currently at the highest level it’s been since the Gilded Age. Rents continue to go up and up and up, while wages remain flat in real terms. Nowhere in the country can a person working full-time at the federal minimum wage — $7.25 an hour — afford a two-bedroom apartment. So homelessness is not the fault of individuals who are working two and sometimes three jobs just to make ends meet. It’s the systemic issues that are causing it. But this myth that it must be the individual’s fault has led to policies that punish people for living on the street rather than embrace them. In almost every city and state we see laws criminalizing basic life-sustaining acts like sheltering yourself and sleeping, sitting, or just existing in public spaces.

The better part of the American spirit is the Second Bill of Rights that Franklin D. Roosevelt proposed, in which he said that none of our countrymen should be without access to a decent home, adequate food and nutrition, and good-paying jobs. If we can come back to those better parts of our American character, we can see the same kind of success we saw from the 1940s to the 1970s, when social safety nets prevented mass homelessness.

Schmid: You mentioned Jim Crow and the Reconstruction era. How do laws passed then fit into the history of U.S. attitudes toward homelessness?

Tars: We have a racialized notion of poverty in this country. Many anti-vagrancy, anti-panhandling, and anti-loitering laws were passed in the immediate aftermath of Emancipation. The intention was to make it a crime for formerly enslaved people not to have a job. Then they could be tasked back into slavery using a loophole in the Thirteenth Amendment, which says that slavery is abolished except as a condition of incarceration. So if you made it a crime for formerly enslaved people simply to exist in public spaces without a job, you could get them back into the fields picking cotton. Many of the anti-homeless laws that we see — particularly across the South, but in other areas as well — come from that era. They continue to have the same effect now that they did back then, which is to disproportionately imprison Black people, Indigenous people, and other people of color.

Schmid: You’ve spoken of a “right to housing.” But terms like “housing” and “shelter” can be difficult to define.

Tars: That’s the beauty of using the internationally defined standard of the human right to adequate housing. The right to housing does not mean that every American can have a single-family home with a white picket fence provided to them free of charge tomorrow. It means that every American should have an adequate place to live, which means it can’t be temporary or unaffordable. You need to have legal rights as a tenant and the ability to protect those rights through a right to counsel. The location must have access to hospitals and fire services and not be in a food desert. There are so many things that go into making housing adequate.

But the housing might be more communal than we’re used to in the U.S. It could mean bringing back single-room-occupancy rentals — hotel-type situations with common cooking facilities and shared bathrooms. As long as each resident has a door to lock and the common spaces are well maintained, that could be part of the solution. We’ve lost that lowest-income housing, which is one reason we see more and more people living on the streets.

Schmid: What about the connections between homelessness and stagnant wages?

Tars: The biggest cause of homelessness in America is the lack of affordable housing. And housing is less affordable because over the past forty years wages have not kept pace with the rising costs of rent and homeownership. I mentioned the cost of a two-bedroom apartment being out of reach. In the U.S. today many people are paying 30, 40, even 50 percent of their income on rent each month. When they get some sort of shock to their finances — whether it’s an emergency medical bill, a broken-down car, or a missed paycheck — it puts them right on the street.

There’s also this concept called “network impoverishment,” where it’s not only you who are financially stretched thin, but everyone in your network. Then, when a shock comes, nobody you know can tide you over with rent money or help you fix your car. That’s why communities of color are far more vulnerable, and the people in them are far more likely to go directly into homelessness rather than get a helping hand that keeps them housed.

Also, when people are desperate for any income at all, it allows employers to keep their wages artificially low. So it’s both the low wages causing homelessness, and the threat of homelessness causing the low wages.

Schmid: Besides network impoverishment, what factors make people of color more likely to become homeless?

Tars: One is the racialized view of public assistance. Even though, over time, more white people have been helped by affordable-housing programs, people of color are seen as the ones who get those benefits. This goes back to President Reagan’s racist trope of the welfare queen, which was never true to begin with, but it cemented a racialized image of the beneficiaries of welfare programs, including public housing. When President Roosevelt launched many of the federal public-housing programs back in the 1930s, it was seen as something for everybody, and it was well funded — or, at least, adequately funded. You would see these housing projects open with great fanfare, and the news coverage celebrated “average” Americans — meaning white Americans — gaining access to the housing they needed. Families who lived there gained a foothold in a community with access to decent schools and other services and infrastructure that enabled them to then get into the middle class and out of public housing, exactly the way the program intended.

But as more people of color entered public housing, views of it became racialized, and the resources diminished. Public housing was no longer maintained as well, and then we got into a self-perpetuating cycle of more white people moving out of it and more people of color moving in, which led to fewer resources and more run-down buildings, until the system as a whole was viewed as a failure. Reagan alleged that public housing was failing because of the people who were living there, not because of the systemic neglect, and blaming tenants became an excuse for further systemic neglect.

Schmid: We know how ripples in the economy can force more people into homelessness — the pandemic being a recent example. Are there ripples that could push people back into adequate housing?

Tars: That’s a tough question. I think there once were, when our housing markets and labor markets were balanced in favor of workers and not corporations. Now it’s increasingly difficult for that to happen, because the benefits of economic ripples are so disproportionately captured by the top 1 percent. Look at the recovery from the recession of 2007–2009. That recession was caused by the housing bubble, which was caused by mortgages being bundled into these exotic financial products for investors. When the bubble burst, millions of Americans lost their homes to foreclosure, and many of those homes were bought up by the very venture capitalists who’d caused the housing bubble in the first place, who then turned them into rental properties and put them on the market again.

Now they’re bundling together those rental contracts into new, exotic financial products that are almost certain to lead to the next bubble and crisis. Because corporations bought all that housing, the number of homes available for sale is lower across the country. And despite all these rental properties, there still isn’t enough rental stock out there, especially at affordable levels. So rental prices are going up. And as rental prices go up, it makes it almost impossible for renters to save up a 20 percent down payment on a house — especially when housing prices have been so high.

There should have been a ripple of new homeownership during the recovery from the last recession, which would have made many more people’s housing situations stable, but because of the financialization of housing, we haven’t seen it. Housing is becoming a commodity rather than a basic human right. I just saw a statistic about Philadelphia, which used to have relatively high rates of homeownership, but now only about half of the city’s residents own their homes. That’s a long-term trend that has consequences throughout the city’s population. More of its residents have less housing stability and are more subject to the whims of landlords.

I think something like 2 percent of landlords in Philly own more than 50 percent of the rental units. So the rental stock has become concentrated among big corporate owners. Whereas mom-and-pop landlords are often willing to work out a payment plan and figure out if there’s anything they can do to keep somebody in housing, the big corporate owners are unlikely to negotiate. If the rent check doesn’t come in, the eviction notice goes out the next day.

I think the Build Back Better Act was an attempt to create a ripple that could have provided really deep benefits to the American public. The housing provisions of the act, in particular, would have targeted the most needy. But it didn’t pass. So we’re continuing to deal with the negative ripples of the pandemic, and we’ve lost the flood walls that the eviction moratorium and the expanded child tax credit of 2021 provided. Reinstituting one or both of those could provide a positive ripple effect, but right now we don’t have either. So I think we’re already seeing a lot more evictions, and a lot more homelessness as a result.

We could have built on successes during the pandemic and continued going in that direction, but now I’m afraid we’ve missed that window. We’re on the downslope of that tipping point, and things are going to get a lot worse before they hopefully get better.

Schmid: Since the NHLC began tracking laws and ordinances that criminalize homelessness in 2006, you’ve seen an increase in every category, from laws against camping or sleeping or sitting in public to statutes forbidding panhandling, loitering, or living in a vehicle. What are you most concerned about right now?

Tars: We are at a tipping point. In some ways the pandemic showed us the best of what we can do. The Centers for Disease Control and Prevention put out COVID guidelines saying that, for public-health reasons, homeless encampments shouldn’t be broken up unless people could be given individual hotel rooms. The Federal Emergency Management Agency provided funding to get people into hotel rooms, and we saw tens of thousands move off the streets and into dignified spaces where they could start focusing on finding jobs and permanent housing. We saw emergency rental assistance prevent homelessness for tens of millions of people, because there was a recognition that housing is a key component of public health.

But people have tired of the pandemic. They’re tired of the things that we’ve been doing to help, even though we haven’t solved the underlying problems that led to homelessness and housing instability prior to the pandemic. Now, with all of the pandemic programs having expired, we are already seeing a dramatic increase in homelessness — and in unsheltered homelessness in particular: people living in encampments or in their vehicles or in highly visible public locations. Unfortunately unsheltered homelessness often leads to more-punitive laws and tougher enforcement, rather than more compassion for our fellow citizens.

We could have built on successes during the pandemic and continued going in that direction, but now I’m afraid we’ve missed that window. We’re on the downslope of that tipping point, and things are going to get a lot worse before they hopefully get better.

Schmid: The improvised structures and areas in which unsheltered people live can become dirty, dangerous, or fire hazards. Where should local officials set the bar for encampment cleanups?

Tars: The National Homelessness Law Center doesn’t bring cases or litigation against cities to protect the rights of people to sleep on the streets. People sleeping outdoors is not a win for the Law Center, for the city, or for the unhoused people themselves. Our goal is for cities not to need to outlaw encampments, because nobody’s sleeping on the streets in the first place. A lot of communities use the criminal-legal system as a crutch to avoid having difficult conversations about providing adequate housing in their community. They can hide the costs of their failure in increases to the police budget and the jail budget. Since those are “for public safety,” they’re more popular to fund than affordable housing.

Where cities should draw the line is on conducting a sweep of an encampment without providing an adequate alternative place for those people to go. That’s the standard set by the Martin v. Boise decision, and the fact that communities were objecting to that line is really mind-boggling. People have to sleep. They have to shelter themselves from the elements. If you force them to move and don’t provide an adequate alternative place for them, they’re going to improvise a new solution, probably one that the community won’t like any more than the first. It’s in everybody’s interest for a city to provide an alternative — and not some undignified communal shelter with a lot of judgment, but a place you would feel good about sending your mother, father, brother, or sister, because people experiencing homelessness are the mothers, fathers, brothers, and sisters of other people.

Schmid: You mentioned Martin v. Boise. You worked on that landmark 2019 case in the Ninth Circuit Court of Appeals, which has appellate jurisdiction over seven western states, Alaska, and Hawaii. Can you talk about what the Martin v. Boise decision said and why it’s important?

Tars: The Martin v. Boise decision stands for the very simple principle that punishing a homeless person for undertaking basic, life-sustaining activities like sleeping or sheltering themselves — when there’s no adequate alternative accessible to them — is cruel and unusual under the Eighth Amendment to the Constitution. We didn’t bring that case because we’re trying to put limits on what cities can do; we’re actually trying to open them up. Martin v. Boise provides an opportunity for cities to take steps that will end homelessness, rather than continue to push around and harm homeless individuals, which costs communities more than it would to simply provide housing.

Before this decision, when a business owner said, “There’s a homeless encampment on the corner that’s scaring away my business, and I want it gone,” an elected official had two choices: They could provide adequate housing for all those people, but that would cost a lot up front, and they would have to fight zoning battles with neighborhood associations who don’t want affordable housing in their backyard, and by the time ground was being broken, the politician would have been voted out of office. Or the official could pass a quick law saying it’s illegal for that encampment to be there, then hide the costs of that in increases to the jail budget and the police budget. This would at least satisfy that individual constituent, even though it did nothing to solve the problem and actually made it worse, because now the individuals in that encampment would have criminal records and need to pay fines and fees — yet another barrier to saving up first and last month’s rent and security deposit.

The Martin v. Boise decision takes some of the heat off that elected official. It allows them to say to that constituent, “Look, I agree that encampment should not be there on your corner, but the courts have told me I can’t just force those people to move if I don’t have somewhere else for them to go. So if we want that encampment off the corner, we’ll have to work together to come up with housing for them. And it turns out it only costs one-half to one-third as much to provide housing as it would to keep cycling those people through the courts and the jails. So the good news is, your taxes could go down as a result of this solution, because we’re not simply using increased law-enforcement spending as a proxy for public safety.”

That’s what we hope the decision will do for communities. We’ve seen that kind of conversation going on in the Ninth Circuit, where it’s legally binding — like in Los Angeles, where it served as part of the backdrop to passing the United to House LA measure, which raises money from sales of mansions to provide affordable housing and fund initiatives to reduce homelessness. But we’ve also seen the influence of this decision in legislation and public policy outside of the Ninth Circuit. When the decision came down in 2019, the Trump administration was looking at a policy of rounding up people experiencing homelessness under threat of arrest and putting them into camps. Once they saw the Ninth Circuit decision, they backed off those plans. So that was an immediate impact. I know that for tens of thousands of people experiencing homelessness right now, they are sleeping more soundly without the fear they will be roused by a police officer saying, “Time to get up and move along.”

Schmid: What were some highlights of the Martin v. Boise proceedings for you?

Tars: One of the things that touched me most happened back in 2015, when the case was called Bell v. Boise and it was down at the district-court level. We got the Department of Justice (DOJ) to submit a brief supporting our position that criminalizing sleeping and camping in the absence of alternatives is cruel and unusual under the Eighth Amendment. Even though that wasn’t the formal ruling in the case, it was a clear indication of where the DOJ thought the ruling should go, and, as a result of that, a number of communities immediately put moratoriums on enforcing their anti-camping ordinances and started looking at alternatives.

A couple of months later I was in Portland, Oregon, to meet with some local advocates, including people who were experiencing homelessness, and after the meeting one of the gentlemen approached me. He knew I worked at the NHLC, but he didn’t know my role in the case, and out of his bag he pulled a tattered folder. Inside were crisp, clean copies of the DOJ statement and a report that we had made to the UN Human Rights Committee — which was partly what had led the DOJ to get involved. This man said, “I just want you to know that these statements, these documents, have meant everything to me.” He told me he hadn’t gotten a single good night’s sleep since becoming homeless more than five years earlier, but when the DOJ brief came out and Portland stopped enforcing its anti-camping laws, he was finally able to rest easy. “It gave me my humanity back,” he said. He was tearing up, and I told him how meaningful it was for me to hear that, because I had worked on that report and helped get the DOJ involved. Then he just opened up his arms, and said, “May I?” and I said, “Absolutely.” There we were, crying in each other’s arms.

Working at the national level, as I do, I often don’t get to see that direct impact. My work takes decades, and often the people who benefit will never know my name. So it was wonderful to make that connection.

Schmid: For Martin v. Boise to work in practice will require coordination among homeless people, police, and shelters. Is this happening?

Tars: The point of Martin v. Boise is to get us out of this assumption that the criminal-justice system is a legitimate way of dealing with homelessness. Communities that look at Martin v. Boise as a limitation are going to be frustrated, while the ones that look at it as an opportunity to finally find long-term solutions are going to enjoy its greatest benefits.

If you want a model of what a successful approach to Martin v. Boise might look like, look at Finland. They have adequate amounts of supportive housing, and they don’t have homeless people on the streets. So they don’t need to enforce the laws criminalizing homelessness in the first place.

It’s hard to find a perfect example in the U.S., but in Philadelphia police and homeless-outreach workers have been partnering in responding to any call that potentially involves a homeless person. A 911 dispatcher will send a law-enforcement officer and a social-service worker, and the social-service worker will approach first, because they’re trained in crisis de-escalation. The ideal is that the homeless person never needs to get involved in the justice system. The law-enforcement officer is there as backup but not as the first responder. That’s a positive model. It’s not a perfect model. It’s worked in some cases, and in other cases police will still sweep an entire encampment.

During the pandemic we saw many communities working on creating new shelters or using federal funding to get people into hotels — like California did through Project Roomkey, which provided unhoused people with private rooms — following the spirit of Martin v. Boise if not always the letter. For example, right after the Ninth Circuit decision came down, the city of Modesto, California, canceled a planned sweep of a homeless encampment in one of their parks. They ultimately worked with the people living in the encampment to move them to a sanctioned tent village with access to sanitation and porta-potties and things like that. Meanwhile the city worked to build a permanent indoor shelter, and once that facility opened up, the people were able to move there. The capacity is limited, so it isn’t a permanent solution, but the community took a constructive approach.

Schmid: What about less-successful models?

Tars: Places that have experienced failure are trying to do the least they can rather than rethink their approach to homelessness. They are rewriting their ordinances to try to bring them into compliance, but in the meantime they continue using the police as their primary response to street homelessness. In a number of cases courts are finding that these communities are coming up short of what Martin v. Boise requires. For example, in Chico, California, after the Paradise wildfire, there was initially a high degree of sympathy and support for those who’d been displaced by that disaster. But people’s memories are short, and some displaced people weren’t able to find housing. The encampments in Chico increasingly were harassed by individuals and by the community. So the city proposed creating an encampment at the airport — literally on the tarmac, with very limited shade and access to restrooms. It was an inhospitable place, particularly in summer. And a judge basically said, “When Martin v. Boise talked about providing an alternative, this is not what it envisioned.”

The city government has come to a settlement where it is working on creating a large-scale tiny-home community in partnership with people with lived experience of homelessness, and there are restrictions on when the city will be able to enforce its anti-homelessness laws. It’s not a perfect solution, but it has a lot of good features.

Schmid: California is considering requiring its law-enforcement officers to record housing status during stops. Should already-busy officers have to do that?

Tars: They should do it, and one of the reasons that they’re busy is because they are unfairly tasked with being our frontline response to homelessness. To gather housing-status data is a minor administrative burden — they are already having to record race, gender, and other demographic information — but it will give us a lot of data we don’t have right now.

In places where we do have this data, we know that half, or even more than half, of people in jail on any given night are there primarily because they are homeless. This costs our communities a tremendous amount of money. If we can start collecting this data in more communities, it will help us make the case that we’re misusing our police officers.

Individuals don’t become law-enforcement officers because they want to harass people who are just trying to survive. They go to the police academy because they want to ensure the safety of the entire community. But where there is heavy enforcement of laws against low-level “crimes” of survival, it eats up a lot of officers’ time and resources, and the rates of violent crime and unsolved crimes are actually higher in those communities. It’s keeping them from doing the work they’re hired to do, which is to prevent violent crime and ensure public safety in other ways. Law-enforcement officers aren’t trained in crisis intervention and de-escalation techniques the way social workers and other outreach personnel are. Their lack of training sets them up for potential viral-video incidents. The officer’s badge and uniform and the gun at their hip alone can escalate the situation and lead a homeless person who feels threatened to do something they’ll regret. Collecting this data is a win for the entire community, but law-enforcement officers in particular have a vested interest in showing the work that they’re doing, so they don’t have to be doing it anymore.

It really comes down to empathy, and there are forces in this country that are trying to stop that empathy from growing by making people worry about their own well-being to the exclusion of others’ well-being.

Schmid: New York City has a right-to-shelter law, and, according to the most-recent prepandemic federal count, roughly 95 percent of that city’s homeless people are sheltered. In Los Angeles, by contrast, only 28 percent sleep in shelters. Does the right-to-shelter law help drive this stark difference?

Tars: Definitely. New York City has recognized it has a duty to at least provide some basic form of shelter to citizens. But a right to shelter is not the same as a right to adequate housing. Also, the shelter system in New York is not providing dignity and safety for many of the people living in it, which is why there is still an unsheltered population in New York City.

Similar dynamics exist in Los Angeles. There are some shelters doing a good job but also many others where people just don’t want to go. They’d rather be on the streets than be subjected to the dehumanization, the trauma, the lack of safety, and the terrible health conditions inside some LA shelters.

There are better ways of addressing the issue than you’ll find in Los Angeles or in New York City. In Scotland, for example, citizens have the right to adequate housing. If you present yourself as homeless to the housing agency there, they give you immediate accommodations in a semiprivate “bed-and-breakfast,” as they call them. Then, within ninety days, they are legally required to move you into a permanent accommodation that’s appropriate for your family size and your other health, disability, or safety needs. There are a lot of benefits to doing it that way. They don’t have this giant shelter system like in New York City.

The downside of right-to-shelter laws has been that people are staying in the shelter system for years at a time while awaiting permanent housing, and the shelter system is really inefficient and costs more than just providing housing. The requirement to maintain that basic access to shelter has prevented some communities from being able to explore the longer-term housing options homeless people want. You don’t see so-called housing resistance among homeless people, but you do see lots of shelter resistance when people go into a shelter and find that it’s not conducive to their mental health, their physical health, their dignity, or their safety. I would actually argue that it’s the shelters that are people resistant, and not the other way around.

When Section 8 or public-housing wait lists open up, there are lines around the block. When you don’t see those lines of people waiting to get into a shelter, it tells you more about what’s being offered than about the people who are or aren’t trying to access it.

Schmid: How does having a conservative majority on the Supreme Court affect legal advocacy for unhoused people?

Tars: In the case of Martin v. Boise, it was appealed to the Supreme Court, and we advocated for the Supreme Court not to take the case — it didn’t — because even though it would have been great if Martin v. Boise had become the law of the entire land, we weren’t going to take a chance with the conservative majority if we didn’t have to.

Homelessness has a hugely disparate racial impact in our country. To be able to really address that, we need to acknowledge those disparities and take measures to affirmatively remedy them. And affirmative-action programs are under threat right now. This Supreme Court does not seem likely to acknowledge any legal distinction between people of different races, even to remedy historical discrimination. We’re trying to figure out ways for housing agencies to reduce the racial disparities that are a direct result of past federal, state, and local discrimination, but we’re not optimistic that this Supreme Court will support that. That’s a big barrier.

The other matter is voting rights. People experiencing homelessness have a very difficult time voting, and voter-suppression efforts are making it even more difficult. It’s hard to maintain ID when you’re homeless, and there’s nowhere to register to vote when you don’t have a permanent address. Kansas’s new voting law, for example, is phrased in a way that might exclude anyone who doesn’t have a physical address. And this Supreme Court seems to be taking a stance that it’s OK to exclude large numbers of citizens from voting.

Schmid: You mentioned racial disparities. The NHLC has noted that refugees, undocumented migrants, persons with disabilities, children, youth, women, LGBTQ individuals, and older people are also disproportionately homeless. Why is that?

Tars: For decades in the mid-twentieth century, if you were elderly or on a fixed income, if you were disabled, if you were working but couldn’t pay market-rate rent, there was still public housing and the housing-voucher system. These programs were never perfect, but they prevented homelessness on the scale we see today. The latter didn’t exist until the 1980s, when the Reagan Revolution cut the Department of Housing and Urban Development’s affordable-housing budget in half, and wages started stagnating. It doesn’t have to be this way. We don’t have to leave the most-vulnerable members of our society on the street, but those are the choices that we’ve made.

Of course people who are vulnerable — whether it’s because they’re elderly or disabled or Black or Indigenous or a person of color or LGBTQ — are going to be the ones most deeply and immediately impacted. I know we can do better as Americans, but we have to stop “othering” these individuals and blaming them for their circumstances, and instead recognize that they are our fellow citizens. They deserve the basic necessities of life and a dignified existence.

It really comes down to empathy, and there are forces in this country that are trying to stop that empathy from growing by making people worry about their own well-being to the exclusion of others’ well-being. If the pandemic has shown us anything, it’s that we really are all in this together. That’s what motivated the emergency rent assistance and the eviction moratorium and other steps that were taken during the pandemic — because politicians on the Left and the Right recognized that people needed to be able to stay home, which meant they needed a home to stay in. But as the pandemic continues to wane, this push toward a more selfish approach is taking hold again.

Schmid: Representative Cori Bush of Missouri has proposed an Unhoused Bill of Rights, and the NHLC has advocated for housing as a human right. Are such outcomes politically feasible?

Tars: The fact that politicians are taking these steps shows that they are feasible. The idea that housing is a human right resonates with three-quarters of Americans. We recently polled Californians and found that the majority there — including the majority of Republicans — support amending the state constitution to recognize housing as a human right. And when you see Cori Bush sleeping out on the steps of the U.S. Capitol in 2021, calling on the White House to reinstitute the eviction moratorium — and ultimately getting the administration to put that moratorium back in place, despite what the courts were saying — it shows the message is broadly resonant.

It’s not a foreign concept. This is as American as apple pie, dating back to FDR and the 1930 and 1940s. The key difference is that back then, FDR was able to convert popular sentiment into actual legislation and adequately funded programs. That’s the challenge we face now, and it’s not easy. We saw Build Back Better fizzle. And I’m particularly worried about the messaging coming from the right-wing punditocracy, blaming the Housing First concept for the failures of the current system and saying that since Housing First hasn’t solved homelessness, it must not be working, even though it has relieved homelessness for millions. The reason we haven’t ended homelessness is because more people are becoming homeless than are finding their way out of it.

I’m worried that we’re going to lose what limited common ground we have between the parties on this issue, and it’s going to make finding solutions more difficult. Unfortunately, with former president Trump demonizing unhoused people in recent speeches — and Tucker Carlson making evidence-based approaches like Housing First as politically toxic on the Right as critical race theory — even those fiscal conservatives who know that housing costs less than criminalization are being cowed from speaking the truth. That’s why we need to establish the government’s duty to create the conditions by which every American can have a long-term place to live. Public housing, Section 8, inclusionary zoning, market regulations, tenants’ right to counsel, eviction moratoriums — all of those things can go into making housing a right, as important as the right to a fair trial, the right to an attorney, and many other rights that we all take for granted.

Schmid: Property laws are among our strongest, yet few scenes epitomize what’s broken in the U.S. like people living in tents or vehicles while vacant homes number 16 million, according to the 2020 census. What, if anything, can be done about this?

Tars: We’ve seen what can be done through the leadership of groups like Moms 4 Housing in Oakland, which found properties owned by investment firms that were letting them sit vacant while there were tens of thousands of people experiencing street-level homelessness in the Bay Area alone. Moms 4 Housing in Oakland said that the human right to housing overrides investors’ right to make a profit, so they were just going to move families into the empty properties. [Laughs.]

If squatters taking over property is scary to other residents, then there are legal, regulated ways of making sure those properties are lived in. First, it would be useful to know how many empty properties there are. New York has either passed or been looking at legislation to require the counting of these properties. In some places nonprofit groups are doing informal counts. Second, you can put penalties like a vacancy tax on owners who leave buildings empty, so that investors aren’t encouraged to keep some properties vacant to drive up prices on others, or just to sit on properties and wait for the market to turn around. Housing isn’t just another commodity. If there are vacant homes and homeless people, those two should be put together in some way.

Schmid: Title V of the McKinney-Vento Homeless Assistance Act allows the government to use surplus federal buildings to help people experiencing homelessness. The Law Center says this capability is “underutilized,” providing only about five hundred buildings nationwide. What can be done to change that?

Tars: In addition to huge numbers of vacant private properties, we also have at least a hundred thousand empty federal- and state-government buildings that could be put to public use. Title V of the McKinney-Vento Act requires the federal government to make its vacant properties available to homeless-service providers for free. Unfortunately the Department of Health and Human Services, which administers the program, has put unnecessary bureaucratic barriers in the way of homeless-service providers, like requiring them to put together an application in ninety days that proves committed funding for operating programs for years to come for a property they don’t even own yet. And it requires that the properties be fully ready for use within three years, despite the fact that affordable-housing developments typically take five years to complete.

We’re working with the Biden administration right now to remove some of those barriers. We need tweaks to the legislation as well. There’s hope on the horizon for improved use of this program. It could be a great tool, because it doesn’t cost anything. In fact, it relieves the government of providing upkeep on these properties.

Schmid: I’d like to ask you a question taken from the Law Center’s comments on the draft strategic plan of the U.S. Interagency Council on Homelessness: What would a progressive realization of the right to housing look like?

Tars: It doesn’t have to look like anything revolutionary. We have many programs in place domestically that, with adequate funding, could do the job. The right to housing could be realized through public housing and vouchers. In practice, we would need additional protection for people who use those vouchers; discrimination against them is a major barrier, and many have not been able to rent in areas that would give them better housing and educational opportunities, among other things.

But it could also be done in other ways. The successful expansion of the child tax credit in 2021, making it fully refundable, set a good example for what a renter’s tax credit could look like: Renters wouldn’t have to get a voucher and figure out where they could use it. The government wouldn’t have to construct new public-housing units. Everyone could continue to rely on the private housing market, but renters could be assured they wouldn’t have to pay more than 30 percent of their income on rent each month. In an ideal system, if an individual loses their job, they could report that to the federal government, and then the federal government could instantly adjust the amount of money that’s going into their bank account each month to prevent that person from being evicted.

Or if there’s a natural disaster, rather than waiting for Congress to approve disaster-housing vouchers, you just figure out who has been displaced and get the money into their bank accounts so they can get a motel. Something like that could be revolutionary. If we’d had this system set up before the pandemic, we wouldn’t have needed the CARES Act or an eviction moratorium. As it was, the administration side of our public-housing system was so decimated it wasn’t able to get benefits out to people quickly enough. We had to wait for HUD to create its regulations, and for the Department of the Treasury to do this and that.

But if we’d had a renter’s-tax-credit system set up in advance, then the aid would have just gone out to people whose income had decreased because of the pandemic. They could have gotten the benefits in their bank account and continued to pay rent.

Schmid: Many grassroots groups, nonprofits, and even some governments have supported sanctioned encampments or villages, but you’ve expressed concerns about them. Is it about making sure these spaces are “adequate” and “decent,” as the NHLC’s 2017 Tent City USA report suggests, or something else?

Tars: I’m concerned we are accepting the existence of encampments in our communities, and, as a moral matter, we shouldn’t. We are the richest country in the world. We have more than enough resources — and more than enough vacant properties — to adequately house every American. But rather than trying to get people indoors, our communities are giving up and saying, “We’ll just legalize encampments and let them live there.” We’re acquiescing to the creation of shantytowns in the wealthiest country in the world. It normalizes this wealth divide, where a very few people are hoarding huge amounts of wealth while millions don’t even have the ability to keep a roof over their head. That’s my concern.

I think that legalized encampments can be a useful harm-reduction tool if used as a transitional step — if you create the encampment with an explicit plan for how you’re going to get everybody from that encampment into housing within a limited period of time, and you make it an attractive facility such that people will go there without the threat of arrest. But if you don’t have that plan, then you’re kicking the can down the road and setting it up to fail. And if you need to coerce people with threats of arrest, that’s not consistent with harm-reduction principles. Just as public housing stopped being adequately funded and those buildings began to deteriorate, and then public sentiment turned against them, the encampments may look like nice-enough facilities at first, but if you don’t get people out and into permanent housing, eventually people will say, “This hasn’t solved the problem of homelessness,” and they’ll stop funding it and let it deteriorate. And these miserable shantytowns are going to become permanent features of American cityscapes. I don’t think we should accept that.

This is why I don’t trust former president Trump or extremist groups like the Cicero Institute when they propose creating mass encampments of “high-quality tents.” They want you to think they care about the people experiencing homelessness, but then they take away funding from permanent housing; they promote using heavy law enforcement to force people into the encampments; and they explicitly waive liability for camp operators in all but the most-extreme cases. So you know they aren’t talking about a harm-reducing model. They’re talking about mass internment of America’s most-vulnerable poor populations. That we’re even discussing this should frighten us all.