Advocates are concerned that the memo presages a White House effort to ramp up institutionalization.Aaron Schwartz/CNP/Zuma
On Thursday, the Department of Justice quietly released a memo pertaining to the landmark 1999 disability civil rights case Olmstead v. L.C., which curtailed states’ power to institutionalize people diagnosed with mental illnesses, and related federal civil rights laws. That precedent, the Trump administration memo argues—in conjunction with federal civil rights and disability rights statutes—increases homelessness, a claim that likely signals a push to expand institutionalization in restrictive psychiatric facilities.
The administration’s claims, according to University of Michigan law professor Sam Bagenstos, are not rooted in fact.
“It’s just absurd,” says Bagenstos, general counsel for the Department of Health and Human Services and the Office of Management and Budget during the Biden administration, calling the Olmstead decision “one of the most effective tools in combating homelessness” by encouraging states to augment mental health and housing services outside institutions.
More concerning is the fact that the White House instructed the Justice Department to produce the document, which Bagenstos says “suggests we might potentially be seeing an executive order” directing DOJ and the Department of Health and Human Services to roll back rules meant to avoid institutionalization. The memo, however, does not change laws itself.
“This administration is trying to take away one of the most fundamental rights that people with disabilities have fought for,” said George Washington University law professor Alison Barkoff.
In December, for instance, the Department of Justice reached an agreement with South Carolina to expand supportive services for people with psychiatric disabilities to reduce rates of institutionalization.
Bagenstos describes the White House move as “part of the incredibly punitive approach toward homelessness and mental illness that Trump has taken from the beginning of his administration,” including a July executive order that called for unhoused people with mental health conditions to be forced into long-term care settings in contravention of Olmstead and disability civil rights laws.
“Their interpretation is completely inconsistent with virtually all courts,” says Barkoff, a DOJ special counsel on Olmstead enforcement during the Obama administration.
Barkoff and Bagenstos are both concerned that the memo presages a White House effort to ramp up institutionalization—one that could, ironically, also increase homelessness—by chipping at the Olmstead legal framework. The White House did not immediately respond to a request for comment on its plans for Olmstead enforcement, or lack thereof.
