From Kelo to Grants Pass v. Johnson: Public Use for Housing for the Homeless

The Supreme Court’s 2024 City of Grants Pass v. Johnson decision allows jurisdictions to address homelessness by driving unhoused people away, and some have done so in the months since the decision. For those local governments that rise to the challenge of the homelessness crisis, various statutes and regulations, such as the Fair Housing Act, reduce the choice set of properties that can be used to provide housing for the homeless. The unintended consequence of such laws is an increase in the market power of certain owners of land suitable for such housing. This Article argues that the public-use clause should be interpreted to allow jurisdictions to use the eminent-domain power to address holdouts, including those whose behavior is endogenously created or aided by the legal system. Moreover, eminent domain should also be considered an appropriate tool to deal with owners we call “hold-inclined.” These landowners would be inclined to sell their land knowing it will be used for necessary but disfavored uses like emergency shelters, but they will refuse to sell voluntarily over concerns about damaging their reputation in the community. Allowing local governments to use the eminent-domain power to acquire land in this context solves the market deadlock. The trend toward narrow construction of the public-use clause after the 2005 landmark case Kelo v. City of New London should be regarded cautiously to avoid hampering governments’ ability to solve pressing contemporary issues like the homelessness crisis.