Over the full year that New York City has struggled to house an overwhelming number of recent border-crossers—now at 57,200 migrants in city shelters, more than double the pre-Biden shelter population—Mayor Eric Adams still hasn’t questioned the principal factor attracting migrants here: Gotham’s decades-old agreement that everyone in the city has a right to shelter. Last week, though, a state judge provided a new motive on the part of a much broader constituency (beyond just city residents) to question this supposedly ironclad right: a reminder that the right to shelter, ambiguous as it is, is a state responsibility. Governor Kathy Hochul should view this new risk threatening state residents and taxpayers as an opportunity to question the right to shelter itself.

Last Friday, after images of adults camped outside of Midtown’s Roosevelt Hotel were beamed around the world, the Legal Aid Society (the advocacy group that defends the right to shelter) and city officials stood before a judge to determine how New York can meet its purported obligations. The conference proceedings weren’t made public, but in the telling of Legal Aid Society attorney Josh Goldfein, State Supreme Court judge Erika Edwards gave the city a safety valve of sorts: the state. Edwards told city officials to outline how the state could help—not just by providing money, but by providing physical locations, including private hotels and housing outside of New York City. The judge will consider the request, and the state’s response, on August 16.

Edwards’s directive points out how strange and convoluted New York’s right to shelter is—and how, unchallenged, it poses hidden liabilities for New Yorkers well beyond city limits. The right to shelter arises from a 1979 lawsuit brought by the Coalition for the Homeless that sought to guarantee shelter for homeless men. The Coalition’s lawyers asserted that the state constitution provided such a right, through its declaration that the “aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions.” That same year, the state supreme court agreed.

But the state’s highest court, the court of appeals—not the supreme court, despite its name—never got a chance to rule. Instead, in 1981, the city and state entered into a consent decree, under which the city agreed to “provide shelter and board to each homeless man [who meets] the need standard to qualify for the home relief program established in New York State” or to any man needing “temporary shelter” because of “physical, mental or social dysfunction.”

The right to shelter, then, has never been confirmed by the state’s highest court. If it were a right, it would be enumerated as such under the state constitution. In the original lawsuit, the governor of New York, Hugh Carey, was a named defendant, as well as the city’s mayor, Ed Koch. In the 1981 settlement, neither the state nor the city acknowledged the right to shelter: the settlement explicitly says that the city would provide shelter to adult men “without final adjudication or any issue of fact or law therein, and without . . . admission by any party . . . with respect to any issue.”

At the time, these distinctions between state and city responsibility didn’t matter much. After its 1975 municipal-debt default, New York City was itself under state receivership, the city budget guaranteed by a state-appointed board. It was thus Albany, not the city, that agreed to spend city tax resources on homeless shelter. The 1981 agreement also states that “the commissioner of the New York State Department of Social Services agrees to reimburse the New York City Human Resources Agency for the operation of a shelter facility or shelter facilities referred to in this judgment,” paying half the cost, while acknowledging, somewhat contradictorily, that “nothing in this judgment can or does obligate the legislature of the State of New York to appropriate funds.”

The liability seemed small and wasn’t contrary to the then-mayor’s policy goals. At the time, the city and state spent about $11.3 million annually ($40 million in today’s dollars) on bare-bones shelter; the new burden imposed by the settlement seemed so small that the agreement references specific “Bowery Lodging Houses” by name. Koch, moreover, wanted “dysfunctional” men off of the public streets; the same year, he sought state approval to hold homeless adults for 72 hours “for purposes of simply giving them a bath and medical attention and doing what is necessary to put them into short-term reasonable physical condition without their consent.”

Forty-two years ago, when they agreed to the right-to-shelter regime for troubled New York street vagrants, Koch and Carey could never have contemplated that it would cover an indefinite number of people, men, women and children, and from around the world, no less—people who had not even spent one night in New York City before becoming eligible for private shelter. Over the ensuing four decades, though, subsequent court cases expanded the meaning of “dysfunctional” adult men to cover, essentially, everyone. The city began renting whole apartments and tourist- and business-quality hotel rooms rather than relying on the communal shelters and indigent-serving rooming houses named in the 1981 agreement. State funding did not keep pace. In fiscal year 2019, of the nearly $2.1 billion spent on homeless services, only $180 million came from the state; the remainder came from Washington ($700 million) and the city itself ($1.2 billion).

Now the migrant crisis has overwhelmed a system not built for it. The city is spending $4.1 billion on shelter this year, with just $600 million of that figure coming from Washington and $700 million from the state. The city is housing migrants in nearly 200 emergency shelters, mostly hotels, including mid-scale tourist hotels all over core Manhattan that would otherwise be contributing to the city’s economy and tax base.

Still, Mayor Adams won’t acknowledge that the city cannot guarantee shelter to all newcomers. Instead, he has taken two half-measures, still being adjudicated in court. First, the city has asked the court to modify the shelter agreement so that “the obligations to provide shelter to both homeless adults and to adult families”—people without children—“shall be stayed when the city of New York . . . lacks the resources and capacity to establish and maintain sufficient shelter sites.” Second, the city has asked adult migrants to reapply for shelter after 60 days.

Neither of these steps addresses the issue. On the first: Who decides when the city “lacks the resources”—the court? Theoretically, New York could slash every other aspect of its city budget, from fire protection to public pools, and turn over every one of its estimated 125,000 hotel rooms to migrants; it could also raise property taxes to pay for new costs. On the second, asking people to reapply for shelter after 60 days does nothing, when, after the 60 days are up, they can still prove, as they likely can, that they have nowhere else in America to go. They will simply become eligible for a new shelter placement every 60 days.

The only way to address the problem is to reconsider the right to shelter itself—not at the city level, but at the state level. One way or the other, the state’s top court should decide: Does the state, under the state constitution, have an obligation to provide shelter to the entire world, or doesn’t it? Does every single one of the state’s “subdivisions,” from Sag Harbor to Scarsdale, bear this same obligation? And will lawmakers from around the state agree with the court’s eventual interpretation? If not, they could propose a constitutional amendment to clarify the constitution’s language on the “needy.” New York’s founding fathers, in their wisdom, created transparent political and constitutional avenues through which to decide big questions; we need not depend on a four-decade-old midlevel court ruling to set our future course.

Governor Hochul should raise this issue herself, and soon, though her legal team would likely counsel against it. Why take the chance of enshrining a constitutional right that remains ambiguous, and risk more state spending on such an expanded right?

If Hochul doesn’t confront the problem, though, state residents and taxpayers likely will end up paying for a de facto right to shelter anyway, with “city” shelter residents dispersed throughout the state. Judge Edwards’s directive was a warning that she understands New York State’s implied constitutional obligation here. New York State taxpayers and residents soon will spend untold billions on a phantom right conjured up four decades ago under circumstances that don’t apply to today’s reality. It’s up to the governor to ask the state’s highest court, its lawmakers, and, potentially, its voters what they believe is the state’s explicit constitutional obligation to the “needy.”

Photo by Alexi Rosenfeld/Getty Images


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