Cruel and Unusual Loophole: Local Level Criminalization of Being Unhoused

Local government is big government. Its allotted power affects every single American. The United States’ municipal governments employ around 14 million people, more than federal and all state governments combined. [1] These mass political bodies are primarily governed by Home Rule or Dillon’s Rule, and evolving legal limitations of both theories define local government authority. [2] The recent Supreme Court decision in City of Grants Pass v. Johnson removes a barrier for local governments looking to expand power, creating a political body that can maneuver legal challenges presented by the Cruel and Unusual Punishment Clause through Home Rule favorability.

The legal flexibility allowed under Home Rule, without the proper constitutional guardrails, can lead to exploitative policy, like the criminalization of being unhoused. Local autonomy should have clear constitutional boundaries to prevent this excessive bloat of power.[1] 

The Tenth Amendment defines state power as control over functions not enumerated as federally obtained or prohibited, but within these powers, the Constitution does not mention how municipalities are delegated power. This ambiguity largely subjects local governments to the whim of state statutes. There are two flagship theories adopted by state governments that outline local government autonomy: Dillon’s Rule and Home Rule. Some states unilaterally subscribe to Dillon’s Rule, while others offer a more hybrid approach implementing both. [3]

Dillon’s Rule is the stricter of the two, requiring local governments to derive power from explicit state statute. [4] Dillon’s Rule was first implemented after the Iowa Supreme Court decision Clinton v. Cedar which established local governments as inflexible extensions of state politics. [5; 6] In Justice Dillon’s eyes, local governments were “political subdivisions” of states, necessitating Iowa local governments obtain powers through clearly defined state statutes. [7] Dillon’s Rule would become the unofficial moniker of states adopting similar standards of municipal incorporation following the decision. [8] Dillon’s Rule, whether implemented by courts or state statutes, generally outlines three power provisions for local governments: powers expressly granted by the state, powers necessarily and fairly implied from the grant of power, and powers crucial to the existence of local government. [9]

Shortly after Clinton v. Cedar Rapid, Missouri established Home Rule in 1875. [10] Home Rule is more nebulous in its application, but broadly embraces the principle that local, state, and federal governments each have defined, interacting, and some unique authority. [11] Home Rule allows local governments to exercise greater autonomy as long as it does not conflict with existing law, establishing a “system of quasi-dual sovereignty within the states.” [12] In some cases, Home Rule can mean state legislatures are prohibited from passing laws that encroach on pre-defined local authority. [13] In other cases, local authority is derived from legal areas where the state or federal government has not covered:

Each move away from Dillon’s Rule devolved power from the state to the city, which would seemingly evince an increased faith in the capability of cities… Home Rule is the doctrine that licenses most cities’ very existence: it is for modern cities what the Tenth Amendment is for the states. [14][2] 

Understanding Home Rule as a quasi-Tenth amendment is a relevant concept. Similar to how the Tenth Amendment defines power for states, Home Rule affords municipal autonomy to the point of encroachment of existing law, either state, federal, or, as argued in City of Grant Pass v. Johnson, constitutional provision.

Oregon is a Home Rule state and has been considered one since a “1973 state law granted all counties power to exercise broad ‘home rule’ authority” [15]. Such legal authority allowed the city of Grants Pass, Oregon to structure its municipal code to criminalize public encampments, restricting “activities such as camping on public property or parking overnight in the city’s parks.” [16] The Ninth Circuit Court of Appeals originally ruled that Grants Pass’ municipal code violated the Eighth Amendment's Cruel and Unusual Punishments Clause. [17] The Supreme Court, taking up Grant Pass’ petition for certiorari, found the Ninth Circuit Court’s reliance on the Cruel and Unusual Punishments Clause to be an insufficient basis for limiting Grant Pass’ municipal authority. [18]

The court, in order to make this distinction, distanced City of Grants Pass v. Johnson from the 1962 decision in Robinson v. California. [19] This decision found that, under the Cruel and Unusual Punishment Clause, “...California could not make ‘the ‘status’ of narcotic addiction a criminal offense.’” [20] The Plaintiff, Johnson, raised that Grants Pass criminalized the "status” of being unhoused, supported by Justice Sotomayor in the dissenting opinion. [21] However, Justice Gorsuch, in the court’s majority opinion, argued Grants Pass does not criminalize the "status” of being unhoused. Rather, Grants Pass criminalizes broad acts not necessarily prescribed to any one status: "Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building." [22]

Justice Gorsuch attempted to separate related unhoused actions from the "status” of being unhoused, and, in doing so, expanded municipal authority practicing the more autonomous Home Rule. In the legal vacuum of the majority opinion’s logic, municipalities could criminalize, say, the act of swimming, without criminalizing the status of being a swimmer. This applies to any businessman, student, or other person who may offhandedly swim without embodying the status of swimmer. However, unhoused policy is a far more consequential political instantiation than swimming, especially because the status of being unhoused is often involuntarily assumed[3] . The swimming hypothetical serves to demonstrate the absurdity of Gorsuch’s reasoning and the potential outcomes of unfettered local governments. [23]

The majority opinion, while granting the separation of status and related acts, also broadly diminishes the legal weight of the Cruel and Unusual Punishments Clause in policy creation. They stated that the clause focuses instead on the "method or kind of punishment" imposed after a criminal conviction, not if the government could criminalize the behavior in the first place. [24] Gorsuch argued that the formulation of law is not governed by the Eighth Amendment, but instead the amendment concerns limiting criminal convictions of existing law. This schism, in conjunction with the aforementioned rhetorical separation of status and related acts, legally permits a host of new local government power expansions under Home Rule.

Home Rule is a theory from the Progressive Era in the late 19th century, almost exclusively shaped by the policy aims of various reformers. [25; 26] Home Rule’s progressive history cannot be understated: its affording of local political autonomy helped to champion progressive causes when states failed to do so. However, without sufficient legal barriers, Home Rule can also give local governments the autonomy to enact overreaching legislation, where, in the case of City of Grants Pass v. Johnson, include ordinances intended to criminalize being homeless. [27] To check Home Rule, constitutional provisions for the limits of local government power are necessary to limit such overextensions.

In fact, there is precedent where the Supreme Court curbed local government autonomy. In Reed et al. v. Town of Gilbert, Arizona et al., the court found a municipality in violation of the First Amendment. [28] The town of Gilbert restricted the usage of directional signs, which was a limitation found to be a content-based restriction, violating the Freedom of Speech Clause. [29] This ruling, with regard to Home Rule, established boundaries for municipalities, further defining a restricted area of autonomy. [30] All following municipalities governed by Home Rule then needed to establish a new First Amendment autonomous guardrail, a demarcated legal limit to local autonomy given by the Constitution. This existing limitation of local governments serves to contradict the Cruel and Unusual Punishments boundaries under City of Grants Pass v. Johnson. With the vacuous quality of Home Rule, where power is created in the absence of rulings and statutes restricting legal ability, the courts must create guardrails to define limitations to ordinance creation. Instead, under Grants Pass, local governments can now create ordinances in new legal frontiers with a weakened Eighth Amendment.

In essence, local governments afforded the necessary autonomy under Home Rule, supported by the reasoning of City of Grants Pass v Johnson, can create ordinances that criminalize a person’s status, as long as such ordinances do not explicitly illegalize status and only outline prohibited actions. This ruling provides a legal loophole to Robinson that local governments looking to expand power can exploit when creating unhoused policy, making the subtle distinction of illegalizing actions of being unhoused rather than being unhoused itself. Additionally, Gorsuch in the majority opinion of Grants Pass, casts doubt on the Eighth Amendment’s ability to limit the creation of laws at all, potentially opening a legal line of defense for municipalities looking to expand power on even more fronts. [31]

The Supreme Court in City of Grants Pass v. Johnson showed its favorability to Home Rule by legitimizing Grants Pass’ unhoused policy through the narrow lens of the Eighth Amendment. Under a strict Dillon’s Rule state, unless the explicit power was granted by Oregon or somehow federally derived, Grants Pass would have been unable to criminalize being unhoused. This is not to say, however, that Dillon’s Rule should be the favorable legal interpretation of courts- Dillon’s Rule overemphasizes state authority to the point of relegating municipalities to “political subdivisions” and was ruled with private sector interests at heart: "Judge Dillon’s formulation reflected a laissez-faire constitutionalist view of American government…concerned with the conceptual boundary between the public and private spheres. To the extent public regulation had any role, Dillon felt it was best exercised by the centralized state government, where in his estimation the ‘men best fitted by their intelligence’ would govern responsibly." [32]

Home Rule can be an effective tool for progress, but when left unchecked, it can bloat beyond reasonable authority. The Supreme Court, in deciding to overturn the The Ninth Circuit Court of Appeals in The City of Grants Pass v. Johnson, strengthened the nebulous legal recognition of local governments expanding ordinances into constitutional territory under Home Rule. Now, the Cruel and Unusual Punishment Clause no longer serves as a restricting variable in unhoused policy.

Edited by Henry Wager

[1] Sarah Andersen, Kimberly Ennis, Ross Jacobson, Dylan Maloney, Nicholas Saxon, Paul Villena, Jennifer Wenning, and Sean Wilburn “Annual Survey of Public Employment & Payroll Summary Report: 2023”, United States Census Bureau (2024), online at

https://www.census.gov/library/publications/2024/econ/g24-aspep.html (visited November 28, 2024).

[2] David Walsh, “Toward a Democratic Theory of Home Rule,” Harvard Journal on Legislation 60, (2023): 388.

[3] Travis Moore, “Dillon Rule and Home Rule: Principles of Local Governance,” Nebraska Legislative Research Office (2020), online at

https://nebraskalegislature.gov/pdf/reports/research/snapshot_localgov_2020.pdf (visited November 28, 2024).

[4] Moore, “Dillon Rule.”

[5] Moore, “Dillon Rule.”

[6] Walsh, “Toward a Democratic,” 386.

[7] City of Clinton v. Cedar Rapids and Missouri Railroad Company, 24 Iowa 455 (1868).

[8] Walsh, “Toward a Democratic,” 389, 390.

[9] Moore, “Dillon Rule.”

[10] Walsh, “Toward a Democratic,” 391.

[11] Moore, “Dillon Rule.”

[12] Walsh, “Toward a Democratic,” 392.

[13] Moore, “Dillon Rule.”

[14] Walsh, “Toward a Democratic,” 393, 394.

[15] “Home Rule,” Clatsop County Oregon, online at

https://www.clatsopcounty.gov/county/page/home-rule (visited November 28, 2024).

[16] City of Grants Pass v. Johnson, No. 23-175, slip op. at syllabus (U.S. June 28, 2024).

[17] City of Grants Pass v. Johnson, No. 23-175, slip op. at syllabus (U.S. June 28, 2024).

[18] City of Grants Pass v. Johnson, No. 23-175, slip op. at 35 (U.S. June 28, 2024).

[19] Robinson v. California, 370 U.S. 660 (1962).

[20] City of Grants Pass v. Johnson, No. 23-175, slip op. at syllabus (U.S. June 28, 2024).

[21] City of Grants Pass v. Johnson, No. 23-175, slip op. at 17 (U.S. June 28, 2024) (Sotomayor, J., dissenting).

[22] City of Grants Pass v. Johnson, No. 23-175, slip op. at 20 (U.S. June 28, 2024).

[23] City of Grants Pass v. Johnson, No. 23-175, slip op. at 3 (U.S. June 28, 2024) (Sotomayor, J., dissenting).

[24] City of Grants Pass v. Johnson, No. 23-175, slip op. at syllabus (U.S. June 28, 2024).

[25] Josh Friedland, “The Big Idea: Re-Envisioning Home Rule for the 21st Century,” Fordham Law News (2020), found online at

https://news.law.fordham.edu/blog/2020/04/24/the-big-idea-re-envisioning-home-rule-for-the-21st-century/#:~:text=It%27s%20an%20idea%20that%20really,to%20have%20formal%20home%20rule (visited November 28, 2024) 

[26] Walsh, “Toward a Democratic,” 388.

[27] City of Grants Pass v. Johnson, No. 23-175, slip op. at 14 (U.S. June 28, 2024) (Sotomayor, J., dissenting).

[28] Reed et al. v. Town of Gilbert, 576 U.S. 155 (2015).

[29] Reed et al. v. Town of Gilbert, 576 U.S. 155 (2015).

[30] Reed et al. v. Town of Gilbert, 576 U.S. 155 (2015) 

[31] City of Grants Pass v. Johnson, No. 23-175, slip op. at 8 (U.S. June 28, 2024) (Sotomayor, J., dissenting).

[32] Walsh, “Toward a Democratic,” 389, 390.