When the Trump administration in January froze trillions of dollars in federal grants and loans, 22 states quickly sued to block the executive order. Now, advocacy groups are weighing similar challenges against a July 24 order that threatens to cut federal funding to cities and states that refuse to jail or institutionalize unhoused people.
But this time, the legal path may be more complicated, said Jesse Rabinowitz, a spokesperson for the National Homelessness Law Center.
“This administration doesn’t care about the Constitution,” he said during a virtual press conference hosted by the National Alliance to End Homelessness. “There are many clear violations of the right to due process — the right to many civil liberties — and the legal community is prepared to challenge many parts of this order.”
The executive order claims that most unhoused people are dangerously drug-addicted or mentally unstable. It urges states and cities to use involuntary civil commitment to funnel people into “long-term institutional settings” to “restore public order,” and it directs federal agencies to withhold grant funding for localities that don’t aggressively police public sleeping, loitering, or drug use.
The US Supreme Court’s 2024 decision in the City of Grants Pass v. Johnson case — which upheld the use of civil and criminal penalties for urban camping — might insulate the Trump administration from legal challenges over the executive order’s directives for local law enforcement crackdowns.
But the involuntary civil commitment provisions could be more vulnerable, said Georgia State University constitutional law professor Anthony Michael Kreis, because the executive order leaves a critical question unanswered: Whose responsibility would it be to determine whether people pose an imminent danger to themselves or others?
“The biggest constitutional red flag is the order to evaluate unhoused people to determine if they’re ‘sexually dangerous,’ and to encourage civil commitment — even absent evidence that a person is a danger to themselves or others,” he told Atlanta Civic Circle. “It’s a very dangerous proposition to let federal bureaucrats make determinations about future criminality.”
Erin Willoughby, an Atlanta Legal Aid housing attorney, added that the Supreme Court’s landmark decision in Olmstead v. L.C. could stymie the Trump administration’s ability to enforce elements of its new order aimed at people with disabilities. The Supreme Court’s 1999 ruling — the result of a lawsuit filed by Atlanta Legal Aid — found that forced institutionalization could violate the Americans with Disabilities Act. It said people with disabilities instead have a right to state-funded support and services in more integrated community settings.
The Olmstead decision essentially created a three-pronged test to determine whether people with disabilities have the right to state-funded care in the community, Willoughby said: “Can you do it safely? Does the potential patient object to community care? And would the provision of services [in the community] be balanced with other similarly situated individuals with disabilities?”
If the Trump administration is at all successful in pressuring states and cities to institutionalize unhoused people, she warned, it could overwhelm already strained mental health and substance-use rehabilitation facilities.
“There are no longer sufficient humane facilities in which to house these individuals, and there’s a limit on how long that [involuntary] detainment can last,” Willoughby said. “So, with this executive order, what is an appropriate amount of time to detain someone? And who’s going to decide that? These are the questions that are going to be fleshed out, invariably, by different agencies, and by different states and different service providers — and that’s going to engender a significant amount of litigation.”
At its core, Trump’s July 24 executive order aims to dismantle widely accepted and academically supported “housing-first” policies, which embrace the belief that getting people sober and mentally healthy is easier if they’re stably housed first. Instead, the Trump administration wants treatment first, even if it’s coerced, which experts call a backwards approach.
By making grant funding more competitive — conditional on compliance with the executive order — the White House seems to think it will “breed innovation” among local governments and nonprofits that provide homeless services, Willoughby said.
“When you are talking about making a better mousetrap, that may be true,” she said. “But when you are talking about providing complex treatment modalities for people with multiple challenges — physical, mental, potentially chemical — it is difficult to be both evidence-based and innovative. That’s not how science works.”
“My concern is, who decides what the evidence is?”
The new directive to institutionalize or incarcerate homeless people reflects not only the Trump administration’s disdain for the unhoused, said Kreis, the GSU professor, but also a fundamental misunderstanding of the structural drivers of homelessness, from income inequality to a lack of mental health care and affordable housing.
“The executive order is part of a broader movement that has devalued the rights of unhoused people by viewing their status as an annoyance or a character flaw, rather than a systemic problem for which the government should offer policy prescriptions,” he said. “There is an unfortunate mentality here that the law’s majesty is reflected by the fact that neither the rich nor the poor can lawfully steal bread to feed themselves.”