State Constitutions Have a Role to Play in the Housing Crisis

Homelessness jumped by an astonishing 18 percent last year — to the highest level on record at more than 770,000 people — capping decades of rising housing insecurity that accelerated during the pandemic. The population of homeless and housing insecure Americans will only continue to grow as ever-broader communities are subject to climate disaster and its attendant impacts on available and affordable housing. After thousands of homes were destroyed in the still-burning Los Angeles fires this month, for example, rent gouging caused market rents to increase at previously unimaginable rates. 

With progress at the federal level chronically stalled by extreme partisanship, states may be best positioned to confront the crisis of affordability, availability, and access. Some have already begun taking steps to sustain and increase access to suitable shelter — including through state constitutional amendment.

State constitutions are an important, and still underused, source of authority for improving housing access. A state constitution represents the government’s orientation towards, and relationship with, the people; its framework should organize authority in a way that demonstrates a state’s commitment to important issues impacting residents. Under conditions of housing scarcity, states can address concerns about the ability to attain and afford housing by introducing amendments that will make stable, sustainable housing more accessible to more people.

In this past election, the number of housing-related ballot measures to amend state constitutions and laws showed the electorate’s clear interest in state-initiated reform of this critical resource and infrastructure to abate the national housing emergency. In particular, voters passed amendments to make homeownership more affordable through property tax recalculation or reform. Efforts to create more sustainable affordability for tenants were not as successful.

States have broad authority to levy property taxes, a power situated within state constitutions. Amendments to state constitutions can change property tax assessment schemes and create new exemptions tailored to address the crisis of affordability among working- and middle-class homeowners. In 2024, amendments to adjust property tax calculation were passed in Florida, Georgia, and Wyoming. In Colorado and New Mexico, constitutional amendments creating new property tax exemptions for military veterans were approved by voters. Only North Dakota’s Measure 4, which would have largely ended the imposition of state and local property taxes based on the assessed value of a property, failed to pass.

Reducing property tax assessments can make owning a home more affordable, allowing communities historically excluded from homeownership to purchase property. However, critics argue that these reforms lead to decreased revenue for public services, potentially resulting in less housing over time without addressing the entrenched racial and economic inequities of the existing system. Amendments to state constitutions could institute other tax reforms, such as the “mansion tax,” that maintain funding for government projects, including affordable housing expansion, by increasing the tax rate on the highest value homes and real estate transactions.

State constitutions can also address issues of affordability and access in rental housing by incorporating “home rule” for housing regulation into constitutions, granting local governments the authority to further regulate housing. Home rule can give localities — which are best equipped to consider housing issues in their communities — the ability to create and enforce housing codes and implement rent regulation.

Rent regulation is a form of price control that limits the amount of rent that a property owner may charge a tenant for use of a dwelling. While the real estate industry, a natural opponent of price restrictions on rental property, argues that rent regulation limits housing supply and leads to reduced housing quality, studies show that rent regulation does not limit housing supply — and may even increase the availability of housing. Rent regulation, in its many forms, can make housing affordable and sustainable, allowing community members to remain in their homes and neighborhoods without fear of displacement. Despite its benefits to communities, most states preempt or prohibit rent regulation, and even states that authorize rent regulation limit its implementation by restricting locality-driven home rule.

For instance, the California Supreme Court has ruled that localities’ police power, derived from the state’s constitution, provides local governments with authority to implement rent control. California maintains one of the most open systems of rent regulation in the country. Still, it retains state-wide limits on rent control from the Costa-Hawkins Rental Housing Act of 1995, which limits the type of housing covered by rent control, sets an initial occupancy date as a standard for coverage to attach, and allows landlords to set a market-rent rate when a new tenant moves in.

This year, Proposition 33 would have repealed Costa-Hawkins, allowing localities greater latitude to regulate rent and creating deeper tenant protections within their jurisdictions. The ballot measure failed. With greater political will, a similar amendment to the California Constitution granting home rule to localities would create an opportunity for meaningful affordability for more California renters.

Amending a state constitution to allow localities greater power to regulate housing within their jurisdiction extends to oversight over housing conditions. Opponents of expansive local housing regulation argue that this power is appropriately reserved for state governments. An explicit grant of authority would allow localities to clarify regulations and support residents in times of crisis.

For example, a 2022 city ordinance in Laramie, Wyoming, created the Rental Housing Code, which mandates rental unit registration and greater habitability standards for rental housing within the city of Laramie than is directed by the state. In adopting the code, Laramie reacted to a decline in habitable housing, which tends to occur in hot rental markets with limited supply. Opponents of the code seek to preempt it, proposing a bill that would grant sole regulatory authority over residential landlord-tenant matters to the state. If Wyoming’s constitution were found to delegate police power to regulate housing to local governments, Laramie code and other home rule laws and policies that could lead to greater and more habitable homes would have a better chance of survival.

The lack of affordable, available, and habitable homes across the country — from California to Florida to Wyoming — demands solutions. State constitutions may be our best hope to stem the growing tide of housing insecurity.

Caryn Schreiber is the director of the Civil Legal Services Clinic and an assistant professor at the University of Wyoming College of Law.

Suggested Citation: Carly Schreiber, State Constitutions Have a Role to Play in the Housing Crisis, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 17, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-constitutions-have-role-play-housing-crisis