University of Miami Law Review
The Promotion of the General Welfare: Using the Spending Clause to End the Criminalization of Homelessness in America
The U.S. is experiencing a homelessness crisis. While the government claims that there are half a million people experiencing homelessness in this country, the actual number is likely much larger than that estimate. Rather than investing in long-term solutions to homelessness, most states and municipalities have responded to this crisis by criminalizing conduct related to homelessness—an expensive approach hat perpetuates the cycle of homelessness and causes many people experiencing homelessness to needlessly suffer as a result. While advocates have fought criminalization in the courts, a problem of this size and scale cannot be solved through litigation alone. This Note advocates that Congress could constitutionally end or substantially reduce the criminalization of homelessness by using the powers allocated to it in the Spending Clause. Notwithstanding the limitations the Court imposed on Congress’s spending power in recent cases such as National Federation of Independent Business v. Sebelius, this Note argues that Congress may attach conditions to funding earmarked for or substantially related to homelessness that would require states to reduce or end criminalization within their jurisdiction. While not ultimately a solution to homelessness in the U.S., this Note advocates that only by taking criminalization policies off the table can the U.S. move towards a humane policy towards its people experiencing homelessness.
The Promotion of the General Welfare: Using the Spending Clause to End the Criminalization of Homelessness in America,
75 U. MIA L. Rev.
Available at: https://repository.law.miami.edu/umlr/vol75/iss3/7