Ending Crime and Disorder on America's Streets

Enumerated powers · raises concerns · severity: significant

Federal authority invoked here rests on Article II, Section 3 to take care that laws be executed, plus Article I, Section 8, Clause 1 to spend for the general welfare and Clause 18 to carry related laws into effect. Those clauses support administration of existing grant programs and federal detention law. They do not grant a general federal police power over vagrancy, camping, loitering, squatting, or the substantive standards for state civil commitment, which are reserved to the States by the Tenth Amendment. Conditioning broad discretionary grants on adoption of federal enforcement and commitment models and directing reversal of state precedents and consent decrees stretches the Spending Clause beyond South Dakota v. Dole limits and intrudes on reserved state authority.

Bill of Rights · raises concerns · severity: significant

The Order encourages expanded civil commitment, encampment removal, and enforcement of camping, loitering and drug-use prohibitions as a condition for federal grants. That implicates the Fourth Amendment protection from unreasonable seizure, the Eighth Amendment bar on cruel and unusual punishment, and the Fourteenth Amendment liberty guarantee. Supreme Court law requires strict limits on civil commitment: O'Connor v. Donaldson, Addington v. Texas, and Jones v. United States require proof of dangerousness or grave disability plus clear procedures. City of Grants Pass v. Johnson and Martin v. Boise limit punishment of involuntary homelessness. The Order contains no express requirement for counsel, hearing, clear and convincing proof, periodic review, or protection of shelter property during removals, citing instead maximally flexible standards.

Individual liberty · raises concerns · severity: significant

The Order targets liberty, movement, shelter, and bodily autonomy of unsheltered persons by promoting involuntary commitment, compelled treatment, institutional placement, and removal from public spaces. Under the First Amendment right to move and remain in public where lawful, the Fourth Amendment liberty interest, the Fifth Amendment liberty guarantee, and the Ninth Amendment retention of unenumerated liberty, the burden is on the government to show a compelling, narrowly drawn justification with individualized proof of danger or inability to care for self. A categorical policy favoring long-term institutional placement and grant-driven enforcement, without requiring individualized danger findings and least-restrictive alternatives, restricts personal sovereignty without that showing.

Decentralization · raises concerns · severity: significant

Policing of streets, camping, loitering, squatting, civil commitment standards, and operation of jails, hospitals and treatment beds are classic state police powers reserved by the Tenth Amendment. Local governments and States can and do operate commitment courts, drug and mental-health courts, shelters and encampment policies. The Order moves decision-making upward by using federal discretionary grants from Health and Human Services, Housing and Urban Development, Transportation and Justice to reward adoption of federally preferred commitment, treatment and enforcement models and to disfavor housing-first and harm-reduction models, contrary to the minimum-necessary level.

Due process and takings · raises concerns · severity: significant

The Fifth Amendment and Fourteenth Amendment Section 1 require fair notice, opportunity to be heard, non-arbitrary standards, and proof before deprivation of liberty, plus just compensation when property is taken. Sections 2 and 3 direct reversal of judicial precedents and consent decrees that limit commitment, expansion of commitment and step-down detention, evaluation for commitment under 18 U.S.C. 4248, retention of detainees for lack of bed capacity, and funded encampment removal. Without stated procedural safeguards, individualized findings, time limits, or property-preservation rules for removed encampments, the program creates a substantial risk of commitment and property loss without procedural due process and without Takings Clause compliance.