Opinion: Constitutional amendment guaranteeing “right to housing” advantages courts, could validate draconian housing decisions

San Franciscan constitutional/land use law professor Christopher Elmendorf questions the effectiveness of proposed ACA 10 to mitigate local housing problems. Specifically, he critiques the amendment's lack of clear instructions and points out potential consequences of granting judges undue control over housing policy. Elmendorf's comments on Twitter excerpted below.

I'm sometimes asked what prohousing policies I do not support. Here's one: ACA 10, the "Housing as a Human Right" constitutional amendment....

tl;dr: If you want judges to make good decisions in housing cases, give them normative guidance and (better yet) expend your political capital on appointments--not on a new constitutional amendment that licenses judges to do pretty much anything....

ACA 10 doesn't touch the process for appointing / removing judges. It just gives whoever happens to be serving on the courts a free hand to control all aspects of state housing policy, including budgets, tenant protections, and land-use....

The text of ACA 10 provides very little guidance. It instructs state actors to use "all appropriate means" to "progressively achieve the full realization of the right...."

The Bill Analysis envisions that judges will:

- superintend taxes & spending on subsidized housing

- remove barriers to housing production - protect tenants from "forced evictions" (but aren't all evictions forced, by definition?)

- ensure "culturally adequate" housing...

The backgrounder from ACLU et al. goes further, suggesting that judges use the amendment to:

- mandate rent control & other tenant protections

- control infrastructure & service provision

- redistribute income

- curtail "speculation" in real estate...

But again, the *text* of the amendment is silent on all of this. So the practical effect of the amendment would be to let judges impose, "progressively," whatever housing policies they care to impose....

Might judges decide that single-family homes are the only "culturally adequate" form of housing in existing neighborhoods of single-family homes? I doubt it, but this is the sort of ridiculous argument that ACA 10 invites.

This thread originally appeared on Twitter. Read the whole thing here.

Read exclusive local perspectives on ACA 10 here and here.

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Jax OliverComment