Upcoming Conference | 2019 Re-Wire Policy Conference, Dec 10, 2019 Register

Boldt: Sorry, housing is not a federal or state constitutional right…yet

Jim Boldt, President of Duckabush Communications/Public Affairs, wrote the following commentary for the Wire about HB 1591.

Photo courtesy of Eric Fredericks via Flickr.

(Note: It is the intention of this post to explain, not to pass judgment on any citizen. Except, maybe the Seattle City Council and the King County Council.)

Solutions to homelessness

Yes, there is a growing number of people without housing. And, yes there are reasons. And no, the Legislature has not yet examined all of them in the flood of bills which have been introduced this session.

Seattle and King County should be a test case, a laboratory (if we may) for government solutions to a major social issue: homelessness.

With a joint expenditure of $200 million a year, the problem, or situation, gets worse, or more prevalent every minute. One would think that the combined brain power of Seattle and King County policy boards have unintentionally created a magnet for homeless folks. We know that is not their intent. Who would gain from more and more people being pushed into homelessness or actually traveling to the area for the plethora of benefits now offered with well intentions? Really? Would you move to Seattle for homeless benefits?

Do not create a “right.” Do not write checks you cannot cash. Be careful.

From the quality of the drafting of legislation this session, it is apparent that lobbyists, lawyers, and staff have not had time to review the Code Reviser’s guidelines for drafting legislation. This is certainly the case with HB 1591. Unless the sponsors actually wanted to create a “right” for housing or shelter for citizens and others, 1591 has wondered into head-on traffic.

Under Part II of the drafting guidelines, drafters are warned of the economic and policy consequences of the Legislature granting new rights. It states in part (and focus on (b) (i)):

(b) DO NOT

(i) Do not refer to “rights” unless you intend the courts to provide a remedy. By discussing “rights” while creating a social welfare or licensing program, you might unintentionally make the state legally obligated to an individual who believes he or she should benefit, rather than simply creating the program to improve the lot of state residents generally. If you do list some rights, but do not intend to create a cause of action, state that no cause of action is created.

  • Do not state “ensure” unless you mean “guarantee.” If you intend to guarantee something, state what will happen if the guarantee fails. If you do not, the courts may fill that vacuum by ruling that a cause of action for damages was implied. (emphasis added)

HB 1591 states in the intent section: “(3) The legislature intends with this act to recognize that all persons have the right to survive in public as defined in section of this act and to prohibit discrimination based on housing status.” (emphasis added)

It’s right there, “a right to survive in public.” So what does survive mean, what will it cost? Survive is defined in the definition section, section 2 of the bill.

Section 2, sub (8), 

“8) “Survive” means the conduct of necessary, life-sustaining activities in a nonobstructive manner that includes, but is not limited to, sitting, standing, leaning, kneeling, squatting, sleeping, lying down, eating, and sheltering oneself.”

A court will rule it is a “right”

The drafting of HB 1591 is either totally coincidental, or someone is very clever, because the intent section establishes a right to “survive”, and then defines “survive” to include “shelter.”

As mentioned in the Code Reviser’s warning, a court reading and listening to the explanation of the committee and floor debate will rightly be led to conclude that a right to shelter has been granted. It must be administered, paid for and maintained. A great humanitarian goal, a goal of civilized societies.

In America, we have the right to pursue this kind of “happiness.” It is not granted, yet.

Be careful, Legislature. Your goals are worthy and well-intended. Your bill drafting is either sloppy, or the entry to very expensive new human right.

You are about to grant a new human right to shelter.