Former New York City mayor Ed Koch died a decade back, but a decision he made 42 years ago looms over the most significant immigration challenge in Gotham’s modern history. In 1981, Koch’s administration settled a constitutional lawsuit with homeless-rights advocates to provide shelter on demand to homeless men in the Bowery. That consent decree set in motion a legal juggernaut: the “right to shelter,” a series of court-approved agreements that purport to establish, for all time, New York City’s obligations to give immediate shelter to all who request it. The right to shelter’s judicial approval grants it the force of law. Koch’s dead-hand control over his successor Eric Adams has placed the city in an unprecedented—and increasingly disastrous—situation.

A tidal wave of asylum-seeking migrants arriving in the city, now numbering over 110,000 since the summer of 2022, are seeking accommodation for an indefinite period. Following the law has meant procuring ever more shelter capacity, at ever greater cost. The city has doubled its shelter population in a single year, adding space for about 60,000 newcomers by converting large open rooms to congregate dormitories, erecting tent structures, and securing hotel rooms through opaque, no-bid emergency contracts, sometimes with dubious partners. This fiscal year alone, the city will shell out more than $4 billion on this effort, with a total three-year price tag now estimated at $12 billion.

The more shelter capacity the city secures, the more the migrants come, sinking New York deeper into a crisis that will take years to resolve. In the best-case scenario, Adams would successfully petition the state legislature to preempt the city’s shelter mandates. But the more likely path runs through the courts. Adams has publicly questioned the right to shelter, though he has taken only half-measures in court to modify it and expand its scope to counties statewide. Why? Partly because he’s caught in the middle of national, state, and local politics and partly because any modifications that don’t run through the state legislature must receive judicial approval. Decades of litigation over the right have proven its resilience to legal challenges.

There’s plenty of blame to go around for the mess. The Biden administration has abdicated its responsibility to secure the nation’s southern border and discourage economic migrants from entering the United States under a minimally colorable claim of asylum. New York governor Kathy Hochul has equivocated, pledging $1.5 billion in state aid to New York City and offering some state facilities as temporary shelters but also trying to contain the right to shelter within the city. And Adams, though inheriting a four-decade-old legal arrangement that recognizes neither limits to shelter obligation nor its costs to the public purse, has pursued a shortsighted strategy, adding shelter capacity while begging for more federal and state money, perhaps hoping that the federal portion will come with a 2024 Biden reelection. That’s a long way off, in any case. The reality is that New York City must fend for itself.

Democrats are especially vulnerable on how they’ve handled the crisis. Despite New Yorkers’ generosity toward outsiders, an August Siena College poll revealed that 82 percent view the migrant influx as a serious problem, and 58 percent want to slow it down. Neither Biden nor Hochul wants to risk electoral pain next year by spending taxpayer dollars to subsidize those widely perceived to have overstayed their welcome. Hochul’s victorious but weak 2022 gubernatorial campaign resulted in significant Republican gains statewide; a repeat of that GOP electoral performance would undermine her authority for the rest of her term and damage her reelection chances.

For a year, Adams resisted the key action he could take to get control of the situation: set aside the city’s legal agreements underpinning the right to shelter. The administration is finally moving on that front, but the clock is ticking. “This issue will destroy New York City,” Adams told a town hall meeting on the Upper West Side in early September. “The city we knew, we’re about to lose.”

What makes New York’s right to shelter so hard to modify? It doesn’t appear expressly in the state constitution or city charter. Ordinarily, when circumstances dictate a shift in the government’s approach to a policy area, the political process provides avenues for doing so via legislation and executive action. For example, Massachusetts, the only other state with a right to shelter (though it’s limited to families with children and pregnant women) clearly defines statewide obligations in a statute.

New York’s right to shelter, by contrast, has involved courts from the start. In 1979, a homeless-rights advocate sued the city and state on behalf of homeless men in lower Manhattan’s Bowery neighborhood. In the case, Callahan v. Carey, the plaintiffs’ theory of a government obligation to offer shelter rested in part on Article XVII, Section 1 of the New York State Constitution, which says that the state and its subdivisions shall provide for the “aid, care and support of the needy.” New York Supreme Court Justice Andrew Tyler held for the plaintiffs in a terse judgment that required the city to provide 750 beds for the Bowery men. For its authority, Tyler’s ruling cited not just Article XVII but also provisions of the state Social Services Law and the New York City Administrative Code. In 1981, the parties settled the litigation through a consent decree.

The judgment approving the consent decree gave the trial court ongoing jurisdiction to enforce the agreement. It further appointed the Coalition for the Homeless as compliance monitor. When the city fails to abide by the decree’s terms, the Coalition and its counsel, the Legal Aid Society, quickly file civil proceedings against it for contempt of court. New York City’s homeless-shelter policy has emerged from this decades-long legal game of cat and mouse.

In the sea of litigation that ensued, the city took on additional shelter obligations. The consent decree covered only single homeless men, but in 1983, after an equal protection challenge, its terms were extended to single adult homeless women, too. Also in 1983, the Coalition initiated McCain v. Koch, seeking to extend the right to shelter to families with children. Three years later, New York’s intermediate appellate court sided with the plaintiffs, again on state constitutional and statutory grounds. Over two decades of proceedings followed, resulting in dozens of court orders that established the city’s specific obligations to families with children, including intake and eligibility procedures, placement times, and shelter conditions.

In 2008, the administration of Michael Bloomberg settled the McCain litigation, reaching a “final, permanent, enforceable” agreement with Legal Aid over family-based shelter, known as the Boston settlement. Therefore, the 1981 consent decree does not govern Gotham’s duties to families with children (mostly single mothers), which today account for more than 70 percent of the migrant population in the shelter system. For families that demonstrate that they lack alternative housing, the Boston settlement requires New York City to provide shelter facilities “that are safe, sanitary and decent as defined by applicable law.”

The law has been unclear from the start about the obligations of the state and its counties. Though the Callahan suit and judgment were made against New York State and City, the consent decree placed express obligations only on the city defendants. The city’s decision to settle Callahan, rather than appeal, was one of short-term political and legal expediency—the Koch administration believed that it would ultimately lose the case. At the time, however, New York City was largely controlled by the state, thanks to its long receivership following the 1975 municipal fiscal crisis, thus raising the question of whether the consent decree’s terms should apply to the state defendants, too.

The Adams administration has sought court permission to relax the consent decree’s requirements and broaden shelter obligations to counties outside the city, but it has stopped short of litigating the merits of whether Article XVII guarantees a right to shelter. In June, it sued 30 state counties to keep them from using emergency orders to stop buses of migrants from the city. These efforts suffered a setback when the Manhattan court allowed changes in venue, requiring city lawyers to travel to courtrooms around the state to proceed with the suits, and raising the possibility of inconsistent results in different locations. As a result, in mid-September, the city dropped most of these suits. On October 3, the administration’s lawyers filed a court motion, following up on a request from May, that seeks to relieve the city from the consent decree’s requirements when the governor or mayor declare an emergency and the number of shelter applicants has grown by at least 50 percent over the two-year period prior to the emergency declaration.  During an August hearing on the more modest May request, the state trial court judge chastised New York State over its lackluster response.

Governor Hochul has fired back. After Attorney General Letitia James refused to represent the state in the legal spat with the city—presumably because she believes in a statewide right to shelter—Hochul retained separate counsel. In August, her attorney, Faith Gay, responded to the city law department in a letter arguing that the state has offered ample support in resources, expertise, and facilities, instead redirecting blame toward New York City for mismanaging critical aspects of its migrant effort. As the crisis escalated, Hochul repeatedly denied the existence of a statewide right to shelter, all while reasserting the city’s commitments. But in late September, the governor changed tack, calling for an end to the citywide right to shelter.

At bottom, the widespread confusion about the scope, reach, and responsibilities of the right to shelter stems from the lack of clear legislation defining statewide shelter duties, or a definitive ruling by New York’s Court of Appeals. Very little, therefore, can be said about the constitutional basis underlying the original consent decree. In essence, New York City has, over 42 years, built the largest and most complex shelter system on earth on a legal foundation that it merely believes exists.

What, then, can Gotham do to free itself of the right-to-shelter albatross around its neck? Anything less than a substantial modification or abandonment of the right will be insufficient.

State preemption of the city’s shelter agreements could provide a fast and comprehensive solution. Case law, including from the Court of Appeals, makes clear that the state legislature has broad authority under Article XVII to define the scope of public benefits for the “needy.” This wouldn’t necessarily require that the government get out of shelter provision, however, as legislation can replace the status quo with a narrower set of obligations on counties and the city alike.

For example, lawmakers could define as needy those who are most likely to end up on the street without shelter, such as those with severe mental-health or substance-abuse issues, and those at risk of domestic violence or human trafficking. It could also subject shelter to means testing, requiring that applicants exhaust other possible housing options and available resources before they receive long-term shelter. In the short run, these changes would deter continued migration and allow the city to release migrants gradually from shelters without the fear of lawsuits. Republicans in the Assembly have called for a special legislative session to address the migrant crisis, something Governor Hochul has not ruled out.

Politically, however, preemption faces a tough road. Progressives insist that the solution is to integrate migrants, such as by giving them housing vouchers and work authorization. State Senator Jessica Ramos of Queens, a leading contender to challenge Adams from the left in the 2025 Democratic primary, joined city council socialists in excoriating the mayor for “divisive and xenophobic rhetoric” after he raised the crisis’s potential to destroy New York City.

In court, meantime, the Adams administration has two nonexclusive paths ahead. It has already begun pursuing judicial approval to exclude migrants from the consent decree’s requirements, though without doing the same for the 2008 Boston settlement. It could go one big step further by simultaneously seeking a high-court declaration that Article XVII does not, in fact, require the state or city to provide shelter.

Success here will be a tall order, especially after this year’s changes to the Court of Appeals. A staunch progressive now occupies the chief judge’s chair, and a reliable judicial liberal has filled his former seat. Chief Judge Rowan Wilson has written fiery opinions, often in dissent, favoring more expansive civil rights and stronger constitutional protections for criminal defendants. A jurist willing to confer habeas corpus on Happy, the Bronx Zoo elephant, as Wilson did in a 2022 dissent, would likely be amenable to the claim that a decades-old right to shelter should stand.

Regardless, pursuing this fight on all fronts offers substantial upside and limited downside. In a 1961 case, System Federation No. 91, Railway Employees’ Department v. Wright, the Supreme Court explained that “parties cannot, by giving each other consideration, purchase from a court of equity a continuing injunction,” and suggested that a court’s authority to adopt a consent decree derives from the law upon which the decree is meant to enforce, not from the agreement itself.

But even if the Court of Appeals finds that some constitutional right to shelter exists under Article XVII, the city can make a strong case in favor of setting its current arrangements aside. In a 1992 case, Rufo v. Inmates of Suffolk County Jail, the Supreme Court majority opinion stated that consent-decree modifications “may be warranted when changed factual circumstances make compliance with the decree substantially more onerous.” If New York’s situation doesn’t satisfy that language, what would?

There’s little doubt that the Coalition and Legal Aid will fight fiercely to retain as much of the right to shelter as possible. Whether it could stand without a constitutional basis is unclear. Statutes, regulations, and court decisions might be interpreted to provide an independent, nonconstitutional basis for the right to shelter. If so, this would make the constitutional question necessary but not sufficient to end the city’s obligations.

The Callahan and McCain decisions, among others, have cited not only the state constitution but also, as noted earlier, the state Social Services Law and the city Administrative Code. Statutes and rules enacted over the last four decades have further stipulated the conditions for homeless shelters and rules for those residing in them. And this May, the city council unanimously passed a Homeless Bill of Rights. Though the law expressly does not confer new rights, it does require that those residing in shelters must be given a statement of rights—foremost among them, the right to shelter. One could construe this provision as an independent city duty to offer shelter.

After 42 years, the city’s right to shelter has also generated substantial incentives for social-services groups and shelter providers. Billions of dollars are tied up in multiyear contracts to provide shelter in hotel rooms and converted apartment buildings across the city. Homeless-rights advocates will contend in court that the city agreed to settle the litigation without a Court of Appeals ruling, negotiated deals after years of deliberations, and should be held to its word.

Other important questions arise from the legal technicalities of modifying the consent decree versus the judicially approved Boston settlement. Both have elements of contract and judicial decision, but consent decrees involve ongoing court oversight over the judgment, while civil settlements are generally treated as private contracts that don’t necessitate a court’s continuing jurisdiction. Would the same standards for modification apply, despite the formal differences? Could New York City succeed on one but fail on another? If, for example, the consent decree were invalidated, that would not displace the city’s obligations to families with children under Boston. The Coalition and Legal Aid will not acquiesce to meaningful curtailments of either agreement.

The city, therefore, will need to turn to traditional defenses for breach of contract, such as impracticability, arguing that the migrant crisis—something no party could have foreseen—makes continued performance extremely and unreasonably difficult. This is a high bar to meet, given New York’s over $111 billion annual budget, its proven ability to expand shelter capacity, and its decades-long history as a sanctuary city.

A key to solving the city’s migrant crisis is to scrap legal agreements based on a decades-old settlement that requires New York to provide shelter to anyone who arrives in the city seeking it. (SPENCER PLATT/GETTY IMAGES)

These legal fights could drag on for years—potentially as the shelter population keeps swelling. New York City should pursue all available options. Though money alone won’t fix the problem, Mayor Adams is surely right that Gotham cannot be left holding the bag for Washington’s failures in managing the southern border, or for an ill-defined provision in the state constitution.

City finances cannot sustain billions in unexpected and unpredictable expenses for much longer. Unlike most of the rest of the U.S., New York City has barely recovered all the jobs it lost since the Covid-19 pandemic struck, making municipal services particularly vulnerable to crowd-out by new multiyear, multibillion-dollar liabilities. If the political climate does not allow for funding before the 2024 election, the mayor should seek federal grants for non-migrant-related programs to fill budget gaps while he litigates the right to shelter.

Finally, the crisis should prove to New York leaders the dangers of government by consent decree. Preventing past agreements from constraining the flexibility of future governments requires strict limitations on their use. The mayor or city council should convene a charter commission to explore how to incorporate such limits in the city charter. For example, consent decrees could be made subject to mandatory sunsetting, city council approval, and modification through ordinary municipal legislation.

During the dark days of New York’s decline from the 1960s through the early 1990s, its leaders routinely pinned blame not on their own decisions or the city’s structural shortcomings, but on insufficient help from Albany and Washington. Mayor Adams has a choice to make. He can continue to do what clearly hasn’t worked, pleading for money that will wind up in a bottomless pit of homeless-shelter contracts. Or he can accept a bad situation for what it is, shoulder responsibility for his role in managing it, and make the hard decision to scrap the right to shelter. New York can’t wait any longer. Adams’s legacy and, more importantly, New York’s future depend on his decision.

Top Photo: A tidal wave of asylum seekers numbering more than 110,000 has descended on New York City, which declared itself an immigrant sanctuary 42 years ago. (© BRIAN BRANCH PRICE/ZUMA, INC./ALAMY STOCK PHOTO)


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