0:00

If only life had a remote control, you could

0:02

pause or rewind. Well,

0:05

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0:07

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Brought to you by the Ad Council and

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its prediabetes awareness partners. From

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the opinion pages of the Wall Street

0:20

Journal, this is Potomac Watch. The

0:24

Supreme Court hears oral arguments in

0:26

two big cases, one on a

0:29

judge-made constitutional right to homeless camping,

0:32

and the other that could limit the

0:34

power of union complaints to strong arm

0:36

businesses into settlements. Welcome, I'm

0:38

Kyle Peterson with the Wall Street Journal. We

0:41

are joined today by my colleagues, columnists

0:43

Alicia Finley and Kim Strassl. Let's

0:46

start with the argument at the

0:48

Supreme Court on Monday. That one

0:50

was City of Grants Pass, Oregon

0:52

versus Johnson. Grants Pass is

0:55

a town of about 38,000 people

0:57

that is being blocked by the federal courts

1:00

from enforcing its ban on

1:02

homeless encampments. And here is

1:04

a piece of what it says in its brief to the justices.

1:07

The Eighth Amendment's cruel and unusual

1:09

punishments clause prohibits certain methods of

1:11

punishment. Those that are cruel and

1:13

unusual, but the Ninth Circuit has

1:15

held that the clause forbids governments

1:18

from imposing any punishment, not fines,

1:20

not short jail terms, not anything,

1:22

for camping on public property when

1:25

such conduct flows from the purported

1:27

status of being involuntarily homeless. And

1:30

here is the reply from Gloria

1:32

Johnson and John Logan to homeless

1:34

residents of Grants Pass. They say,

1:36

the challenged ordinances are not camping

1:39

regulations in any ordinary sense of

1:41

the word. By design, they define

1:43

camping so expansively that it is

1:45

physically impossible for someone without access

1:47

shelter to live in Grants Pass

1:49

without risking punishment. Alicia, what do

1:51

you make of this case and

1:53

the argument that the judges heard

1:55

on Monday? So this case

1:58

actually expands on another. case

2:00

that was also determined in the

2:02

Ninth Circuit that involved the city

2:04

of Boise, Idaho, that

2:07

was known as Martin. And in the

2:09

Supreme Court, it essentially extended the logic

2:11

there that it is, quote unquote, cruel

2:13

and unusual punishment under the Eighth Amendment

2:16

to enforce any kind of laws that

2:18

ban camping on public streets and property.

2:21

In this case, it extended to

2:23

criminal sanctions rather than nearly

2:25

civil fines or civil sanctions.

2:28

And also added that the

2:30

way to determine if somebody

2:33

is, quote unquote, involuntarily homeless,

2:35

if the number of people

2:37

who are on the streets

2:39

exceed the number of available

2:41

beds. And here, the

2:43

Ninth Circuit hilariously determined that

2:45

beds at religious shelters like

2:47

Salvation Army or those, those

2:49

really don't count as available

2:51

beds because that would violate

2:53

the establishment clauses of

2:56

the Constitution and the Supreme Court's

2:58

lemon test, requiring a strict

3:00

separation between church and state. So

3:03

those beds don't count as available. Neither

3:06

do any kind of space in the

3:08

warming shelters like during the winter, because

3:10

while those are only really open during

3:12

the winter, there were any places in

3:14

sobering centers, so places where people would

3:16

be required to stay sober, not use

3:18

drugs or alcohol. Those aren't

3:20

available because they would require people to

3:23

change their behaviors. I

3:25

cannot understand how radical this

3:27

ruling is. And

3:30

to emphasize and stress that almost

3:32

all major cities on the West

3:35

Coast and in the Ninth Circuit

3:37

jurisdiction weighed in with friend of

3:39

courts' briefs saying that this is

3:42

severely impairing our ability to

3:44

enforce public order and to keep

3:46

our streets clean. Let's listen

3:48

to a piece of the oral argument. First

3:50

here is Chief Justice John Roberts asking

3:53

a question to the attorney for Grants Pass, DeAni

3:56

Evangelis. What will

3:58

the city do if you don't prevail here? The

4:00

city's hands will be tied. It will be forced

4:03

to surrender its public spaces

4:05

as it has been. Unfortunately,

4:08

beds are going unused at the

4:10

gospel rescue mission. People are not

4:12

getting the help that they need.

4:14

The city is under an injunction

4:16

here, and it's unable

4:18

to rely on these basic

4:20

ordinances. And the Ninth

4:23

Circuit's decisions give cities, like Grants

4:25

Pass, no guidance about how they

4:27

can navigate this very challenging area.

4:30

The Ninth Circuit has effectively

4:33

imposed a municipal

4:35

code under the Ninth Circuit's

4:38

Martin rule to regulate what the

4:40

city can do in its public

4:42

spaces. And here's that

4:44

same attorney tangling with Justice Sonia

4:46

Sotomayor. We think that it is

4:48

harmful for people to be living

4:51

in public spaces on streets and

4:53

in parks, whatever bedding materials. And

4:55

humans are living in those conditions.

4:57

We think that that's not

5:00

compassionate and that there's no safety in the

5:02

house. Oh, it's not, but neither is providing

5:04

them with nothing to alleviate

5:06

that situation. This is a

5:08

difficult policy question, Justice Sotomayor.

5:11

It is. Where do we put them as every city,

5:14

every village, every town lacks

5:18

compassion? And Pass is

5:20

a law identical to this. Where

5:23

are they supposed to sleep? Are they supposed

5:25

to kill themselves, not sleeping? So

5:28

this is a necessity defense, as I

5:31

mentioned, under Oregon law is available. States

5:34

are able to address these concerns.

5:36

This is a complicated policy

5:39

question. Kim, I guess I come out sort

5:41

of where that attorney does that. Maybe this

5:43

is a question for people in those

5:45

cities, for people in those states.

5:48

What is the best way to deal with the problem

5:50

of homelessness? I find myself

5:52

scratching my head trying to figure out

5:54

how Justice Sotomayor thinks that that's

5:56

going to be decided by these nine judges at

5:58

the Supreme Court. Yeah, I think there's

6:01

a couple of things to address here. I mean,

6:03

first of all, I just would like to drill

6:05

into the illogic of what

6:07

Sonia Sotomayor was saying there, when

6:09

she's saying there's no place to

6:11

go. And I want to

6:14

underline one thing that Alicia said when

6:16

she was making the point about how

6:18

radical this is, is that to believe

6:20

the argument that's being put forward by

6:22

advocates for be homeless, you

6:25

have to actually buy into that

6:27

argument that this is entirely an

6:30

involuntary state and that there really

6:32

is no option. But as

6:34

Alicia pointed out and as the attorney

6:36

pointed out for Grants Pass, there are

6:38

beds available. There are lots of beds

6:40

available. When people say that

6:42

the homeless should be able to have

6:44

a place to stay, we need

6:46

to be very clear about what they're actually

6:48

saying. They're saying they should have a bed,

6:51

but they should also not be subject

6:53

to any rules whatsoever. They shouldn't have

6:55

to be asked to deal

6:58

with a drug or alcohol abuse

7:00

situation. They shouldn't have to be asked

7:02

to maybe take part in a program

7:05

that would try to get them back

7:07

on track into regular housing with a

7:09

job. They should be able

7:11

to just simply either have that bed or

7:13

camp on the street, no matter what

7:16

kind of consequences there are for the

7:18

broader community. So that's

7:20

one argument, which is just simply the

7:22

fallacy of the claim that this is

7:24

involuntary, because it also doesn't get to

7:26

the fact that there are many people

7:28

who prefer to not go into

7:31

shelter. They want to be living on the

7:33

street. And that is something that the homeless

7:35

community has long told us that we're meant

7:37

to respect the fact that if they don't

7:39

want to be housed, then why should they

7:41

have to be housed? The question then becomes,

7:43

why should the rest of the community have

7:45

to have them on public property when there

7:48

are other alternatives? But you bring

7:50

up another question, Kyle, which was a

7:52

big focus of many of the justices

7:54

and the questions, which was the complexity

7:57

of this and also the dueling obligations

7:59

of... city officials. There are lots

8:01

of things that money must be

8:03

spent on in the name of civil

8:06

society and many of them are also

8:08

very important too. Justice John Roberts said,

8:10

are we really going to make the

8:12

decision here at the Supreme Court about

8:14

whether or not a community

8:16

like Grants Pass has to spend its

8:19

money on more shelter beds or

8:21

whether or not it's going to fix its lead

8:23

pipe problem. I mean, not saying Grants Pass has

8:25

one, but for example, or give

8:27

out food assistance to people or for

8:30

instance, more health care dollars. So

8:33

it's a very complex question also about who

8:35

decides how many beds there are and how

8:37

does that work. And that I think the

8:39

Supreme Court in some ways, just at a

8:41

very broad level, many of

8:43

the justices were pointing out the ridiculousness

8:46

of the notion that nine people sitting

8:48

in Washington can sort out the homeless

8:50

situation in a place like Grants Pass.

8:53

Hang tight. We'll be right back in a minute. If

8:56

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8:58

could pause or rewind. Well, life doesn't

9:00

always give you time to

9:02

change the outcome, but prediabetes does take the

9:05

one minute risk test today at do I

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have prediabetes.org brought to you by the ad

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9:15

back. A couple other thoughts that I

9:17

would throw out here. Here is the

9:19

full text of the eighth amendment. Excessive

9:21

bail shall not be required nor excessive

9:23

fines imposed nor cruel and

9:26

unusual punishments inflicted. And

9:29

so the idea that you can

9:31

read into that some sort of

9:33

prohibition on making camping in

9:35

public illegal if there is not

9:37

a certain number of shelter beds

9:39

defined in a certain way, it

9:41

strikes me as pretty atextual. And

9:43

I get that not everyone on

9:46

the Supreme Court is a textualist first, but

9:48

it seems to me that a majority of

9:50

those justices probably are. Another

9:53

is that my understanding is that these kinds

9:55

of laws, at least are often used as

9:57

a way of giving cities

9:59

some leverage to get people into drug treatment

10:01

programs and so forth. If it's Kim described

10:03

before the break, they don't want to do

10:06

that. If they kind of like being on

10:08

the streets and they don't want to quit

10:10

using whatever substances they might be abusing, these

10:12

kinds of ordinances are one way to get

10:14

them the help that they need instead of

10:17

just allowing them to

10:19

continue existing on the

10:21

streets or in public parks. Another

10:23

thought, and Alicia you mentioned this a

10:25

minute ago, is the remarkable cross-partisan

10:29

support here for Grants

10:31

Pass' position, the mayor of San Francisco.

10:33

I think Governor Gavin

10:35

Newsom, California's governor, who is no

10:37

conservative, has been backing up Grants

10:39

Pass here. But there is a

10:42

brief by a different set

10:44

of states. This is Maryland, Illinois,

10:46

Massachusetts, Minnesota, New York, and

10:48

Vermont, another set of blue states

10:51

that is going against Grants Pass.

10:53

And they make kind of a

10:55

fascinating argument, which is that this

10:58

is not really a restriction

11:00

on the ability of cities

11:02

to deal with the homeless

11:04

problem because they argue, Alicia,

11:06

that cities could restrict the

11:08

sites of encampments, they

11:10

could limit fires and so forth, they

11:12

could provide security for these places, and

11:14

then they have this line, a town

11:17

near Sacramento gives camp residents $20 gift cards in

11:20

return for begging their trash,

11:23

saving the town thousands in

11:25

public cleaning costs while maintaining

11:27

a working relationship between the residents

11:29

and town authorities. And so

11:31

kind of an amazing argument to my

11:33

eye, Alicia, they're saying that Grants Pass

11:35

is just not being creative enough in

11:38

trying to solve this homelessness problem. Well

11:40

I think this is a little bit of the

11:42

pot calling the kettle black. These states, Illinois, New

11:44

York in particular, but some of the others that

11:47

signed on to this brief, Maryland

11:49

and Massachusetts, are not exactly paragons of

11:51

clean streets. They're homeless people all

11:53

over New York City

11:55

subways and lying on the

11:57

streets. Some of them aren't

11:59

dangerous. but many of them are mentally

12:01

ill, addicted to drugs, and do pose

12:03

a public threat. And they, these cities

12:06

have, well, they also, they've tried to

12:08

deal with these numerous ways and tried

12:10

to provide shelter, but it hasn't worked.

12:12

And the same is true in California,

12:14

which has undertaken perhaps the

12:16

biggest experimentation or experiment with

12:19

this housing first policy that

12:21

Governor Newsom has rolled out,

12:23

which is basically you need

12:25

to provide housing for anyone

12:27

who's homeless. And you can't

12:29

attach any kinds of strings or conditions, which is

12:31

what these other states argue in their

12:33

amicus briefs is that, well, if

12:36

only these cities provided cool housing

12:38

first, and they didn't attach these

12:40

difficult conditions of providing them to

12:43

stay sober or follow certain behavior

12:45

rules, then they wouldn't have homeless

12:47

problems, which is just a hooey, because

12:49

if you look at California, it's done

12:51

that. In fact, there was a state

12:54

auditor report that came out a couple

12:56

weeks ago that showed that the state has

12:58

spent $24 billion basically

13:00

on this housing first policy. And

13:02

what has gotten in result? Well,

13:04

homelessness has increased by more than

13:06

a third since 2013. And

13:09

now again, some of that is

13:11

because of Prop 47 would decriminalize

13:14

any kind of use of drugs

13:16

and shoplifting and such, and made it

13:18

easier for a lot of people to just stay

13:20

out on the streets. But a lot

13:22

of that, by the way, has also

13:24

to do with this Ninth Circuit ruling

13:27

that has made it harder for the

13:29

city leaders to leverage any kind of

13:31

criminal penalties or civil

13:34

citations for lying on

13:36

the streets or camping out on

13:38

sidewalks, parks or whatnot, and force

13:41

them into treatment, as you first

13:43

noted. This has been the housing

13:45

first policy that Newsom and some

13:47

other liberal states have championed. It

13:50

has been a terrible failure. And

13:53

we keep seeing that in Santa

13:55

Monica is now paying $1 million

13:57

per housing unit to put up

13:59

homeless people. They're spending billions

14:01

of dollars when the real problem

14:03

is again the incentives and other

14:06

policies that encourage homelessness. Kim,

14:08

do you think the writing is on the

14:11

wall here, not only because of this coalition

14:13

across the aisle in support of the City

14:15

of Grants Pass here, but because we have

14:17

a pretty textualist Supreme Court that is going

14:20

to be looking at the actual words of

14:22

the Eighth Amendment. And I

14:24

doubt that they will find some sort of protection for public

14:26

camping in it. I don't know about you. Yeah,

14:29

I agree with that. I think there's

14:31

a number of reasons for it, not

14:33

just that they are textualists, not just

14:35

the complexity argument. But I

14:38

think that there was a creeping understanding

14:40

here too that behind the push

14:42

for this and the homeless advocates who

14:44

are arguing this case, and you heard

14:47

this word a lot in the oral

14:49

arguments, was that they want to essentially

14:52

create what they call a new status

14:54

of people, which is the

14:56

homeless community, and that that

14:58

status provides you or requires

15:01

that you be given certain things

15:03

as a result, constitutionally as it

15:05

were. And I

15:08

think that there's a wariness about that.

15:10

You actually had John Roberts on the

15:12

court said, are we really talking about

15:14

a status here versus a situation of

15:16

conduct? And there was a

15:18

lot of discussion about the fact that this choice

15:21

was involved in this. That

15:23

does make things a little bit different than

15:25

declaring a status on a certain sort of

15:27

issues that truly are beyond their

15:30

control. And there's an

15:32

almost slippery slope argument here to be

15:34

made that if you're going to go

15:36

down the road of declaring a whole

15:39

new status of a community and certain

15:41

rights that they must be afforded, what

15:44

else could you read into the

15:46

Constitution that would also require government

15:49

to provide certain things or give up

15:52

all of its other ability to engage

15:54

in public safety and

15:56

other duties that it had.

15:59

So I guess you could. You can argue that that's

16:01

a textualist reading, but also a

16:03

concern about if you decide to

16:05

abandon that textualism, where things lead

16:07

and the chaos that could come.

16:09

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Journal, this is Potomac Watch. Welcome

17:03

back. Let's turn to the oral argument

17:05

at the court then on Tuesday. This

17:07

was a case called Starbucks versus McKinney.

17:10

And I gather that this has to do with whether

17:12

the National Labor Relations Board gets a shortcut

17:15

in federal court when it wants an

17:17

injunction after a union

17:19

complaint. And let's listen

17:21

to the piece of the oral argument.

17:24

This is Justice Katanji Brown Jackson asking

17:26

a question of Lisa Blatt, the lawyer

17:28

arguing for Starbucks. They have

17:30

only asked for this kind of injunction

17:32

in a very, very

17:34

small number of cases. 20,000

17:38

complaints are filed with the board. 700

17:41

results in board action. And

17:43

of those 700 that the board is investigating

17:45

and doing and determining, they've asked this for

17:48

this kind of injunction 14 times. So

17:51

I mean, I appreciate that maybe

17:53

the standards we need to look at

17:55

and I understand four factors versus two factors, but

17:57

this is not sounding like a huge problem. Well,

18:01

restraint is not a basis for deference and

18:03

whether or not it's a huge problem,

18:05

what petitioner wants is just a level playing

18:08

field, the normal injunctive factors that agencies

18:10

and private parties should get. So even if

18:12

the board only sought one injunction, can

18:15

you please hold that the four factors apply? Alicia,

18:17

what's your read of this case and maybe the place to

18:19

start is with what was the complaint

18:22

that was lodged against Starbucks? So

18:24

what happened here is SEIU

18:27

worker affiliate called Workers United

18:29

has been seeking to unionize

18:31

and organize a bunch of its

18:33

stores across the country. And I would just

18:36

point out this is a pretty radical

18:38

progressive union and they've been

18:41

pretty out front in

18:43

terms of the anti-Israel protests. But

18:45

that aside, what happened

18:48

at Starbucks in Memphis, Tennessee

18:50

is six Starbucks employees wants

18:53

their plans to unionize the store. And

18:55

when stores closed, these employees unlocked

18:58

the door and let in a

19:00

news crew, a local news crew

19:02

without the management authorization to interview

19:04

some workers to kind of draw attention

19:06

to the union cause. Now

19:09

this essential break in violated

19:11

the company policy and

19:13

Starbucks fired several workers who were

19:15

responsible. So what did the union

19:17

do? Well, they filed a complaint

19:20

with their friends at the NLRB

19:22

and claimed that firing the workers

19:24

constitute an unfair labor practice because

19:26

they were retaliating against their right

19:28

to engage in concerted activity. These

19:31

NLRB regional directors are generally very

19:34

sympathetic to the unions, issued

19:36

an administrative complaint and then

19:38

petitioned a federal judge for an

19:41

injunction ordering Starbucks to

19:43

reinstate the employees and expunge

19:45

an unrelated discipline citation for

19:47

one of them. And

19:49

then among other things require that essentially

19:52

would have hemmed Starbucks in in

19:54

various respects. And

19:57

as it happens, the district court ruled in...

20:00

of the unions actually as typically

20:03

happens under a two-part

20:05

test rather than the Supreme

20:08

Court's traditional four-part test for seeking

20:10

a preliminary injunction. In the

20:12

standards that usually apply for almost every

20:14

case, when a party seeks a

20:17

preliminary injunction you have to demonstrate that

20:19

you're likely to see the succeed on

20:21

the merits that you will suffer irreparable

20:23

harm in the absence of preliminary reason.

20:26

There's a balance of equity tips in your

20:28

favor and then injunction is in the public

20:30

interest. Now the Sixth

20:33

Circuit going back decades set

20:35

a more lenient standard for the

20:37

NLRB and said that while the

20:39

NLRB merely must show that there

20:41

is reasonable cause to believe that

20:43

unfair labor practices have occurred and

20:45

injunctive relief is just improper. Now

20:47

this again is far easier

20:49

to meet for the NLRB than the

20:52

four-part test and really

20:54

use the equities or tips the

20:57

scales in favor of the NLRB.

20:59

So the district court judge deferred

21:01

to the NLRB and Starbucks

21:04

ended up contesting this in an

21:06

administrative proceeding that continues actually to

21:08

this day and actually also saw

21:10

legal discovery to show that the

21:12

NLRB was

21:15

kind of acting in concert with

21:17

the union and what did the

21:19

NLRB or general counsel do? Well

21:22

then she actually accused Starbucks of

21:24

committing an unfair labor practice act

21:26

by subpoenaing some records and

21:28

all this just goes to show how

21:31

the due process rights of employers are

21:33

really violated by this

21:35

anomalous two-part standard that the Sixth

21:37

Circuit has created. And the

21:39

importance of this is that if

21:42

a lower standard allows union complaints

21:44

to get easier junctions within

21:46

the jurisdiction of the Sixth Circuit

21:49

that makes settlements and so forth much

21:51

more likely because it gives these labor

21:53

unions more leverage against

21:55

the employers that they're complaining about.

21:58

And Kim by the way if this is a

22:01

Sixth Circuit rule only. It seems like the

22:03

Supreme Court is maybe overdue in stepping in

22:05

and cleaning up what they call a circuit

22:07

split, which is a different of interpretation of

22:09

the law that is reigning in one area

22:12

of the country versus the rest of the

22:14

country. Yeah, absolutely. And one that

22:16

has given the NLRB just way

22:18

too much power because what happens

22:20

is essentially under this standard, the

22:23

lower courts when you have these

22:25

end up having to defer to

22:27

the board allegations, even if those

22:29

allegations are later contradicted, and injunctions

22:33

also interfere with the kind of

22:35

day-to-day operations of an employer's ability

22:37

to do their work. They, you

22:39

know, often they, again, they have

22:42

to rehire back employees at expensive

22:44

levels, and these things can

22:46

stay in effect as well until

22:48

the NLRB has time to fully

22:50

adjudicate the case, and that can

22:52

take absolutely years. And so what

22:54

the NLRB does is uses these

22:56

injunctions as a bludgeon against companies

22:58

to get them to simply settle

23:01

and not see the cases all the way

23:03

through, and they actually brag about this. The

23:05

agency does them. I think half of all

23:07

cases with injunctions since 2010 have

23:10

resulted in settlements, and they're proud of

23:12

that fact. They say, you know, injunctions

23:14

are a strong catalyst for settlement. So

23:17

it's clear that they're using them and abusing

23:19

them, and this situation is

23:21

giving them the power in certain

23:24

situations to really beat on

23:26

corporations in a way that just isn't

23:28

allowed in some other places. So it

23:31

would be great to put them in

23:33

place, especially because there are dozens of

23:35

other federal agencies that are required to

23:38

follow the traditional injunctive relief standard, and

23:40

there seems to be no reason whatsoever

23:42

why the NLRB has this carve-out in

23:44

this one district. Thank you, Kim

23:47

and Alicia. Thank you all for

23:49

listening. You can email us at

23:51

pwpodcastatwsj.com. If you like the show,

23:53

please hit that subscribe button, and

23:55

we'll be back tomorrow with another

23:57

edition of Potomac Watch.