John Ketcham joins Brian C. Anderson to discuss the city’s illegal-immigrant surge and the statutory basis of its right-to-shelter mandate.
Audio Transcript
Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. Joining me on today’s show is John Ketcham. John is the director of state and local policy and a fellow at the Manhattan Institute. He writes regularly for City Journal on New York public policy and other matters. His work has been published in the Wall Street Journal, the New York Post, New York Daily News, and other outlets.
Today we’re going to discuss a big problem in the city, the city’s migrant crisis and the legal basis for the city’s right to shelter, which has come into question this year as the city has struggled to house tens of thousands of newly arriving immigrants. So John, thank you very much for joining us. Glad to have you on.
John Ketcham: Thank you, Brian. Great to be with you.
Brian Anderson: So the city’s right to shelter mandate as you analyze in your recent City Journal essay, “How to Fix Gotham’s Migrant Mess,” has for decades required New York to provide immediate housing to anyone who requests it regardless of whether a person has been a resident in the city or what their income status is. So to meet this obligation, New York’s built what is basically the largest, most complex shelter system on Earth.
Yet the right to shelter does not appear expressly in the state constitution or in the city charter, at least in that language. Instead, it is rooted in today’s form, in a consent decree as you described, that goes back to 1981. So I wonder if you can describe the lawsuit that established this right to shelter in the city and how subsequent litigation has expanded that obligation.
John Ketcham: Sure. As you say, the right to shelter is not the process of a deliberative democratic process in New York. And the only other jurisdiction that does have a right to shelter is Massachusetts. There is a state statute that lays out the obligations under the right to shelter. In New York, the right to shelter has been established through a haphazard and accidental process, a series of lawsuits brought against the city by homeless rights advocates decades ago.
And it began in 1979 when Robert Hayes, a lawyer for plaintiff, Robert Callahan, who was a homeless man living in the Bowery District of Manhattan, launched a lawsuit against New York City and state. He claimed that Article 17 Section 1 of the state constitution required the city and state to provide shelter beds for these homeless men living in the Bowery.
There is no explicit text in the state constitution that says that the government, either at the state or local level, has to provide shelter. What the constitution says is that the aid, care, and support of the needy are public concerns and shall be provided by the state. So he was advocating a broad reading of this language. The trial judge agreed with him and required the city to provide 750 beds for these homeless men in the Bowery. That kicked off two years of negotiations between the city and the plaintiffs and their attorneys.
After this two-year period, they came up with what we now know as the Callahan consent decree, which lays out the city’s obligations to provide shelter for single adults. In 1984, the Consent decree’s responsibilities were extended also to apply to single women on equal protection grounds. And then in 1984, the Coalition For The Homeless, which was behind the original lawsuit in 79 with Robert Hayes, launched another suit to extend the right to shelter to families with children.
That case was called McCain v. Koch. And over the ensuing decades, 25 years of litigation, it established very minute obligations that the city had to follow four families with children. Now, that lawsuit was finally settled in 2008 under the Bloomberg administration with a separate agreement from the consent decree called the Boston agreement.
McCain, the plaintiff on that lawsuit had died during the 25 years of litigation, and so the subsequent plaintiff’s name is Boston. And so there are two agreements that the city has that lays out the obligations to provide shelter, the consent decree in 1981 that covers single adults and the 2008 settlement that covers families with children. And that is the operating framework that guides the right to shelter, as we have come to call it colloquially.
Brian Anderson: Now, this hadn’t been such a huge issue, but since the spring of 2022, the city’s seen more than 130,000 migrants arriving seeking accommodation basically for an indefinite period. The city’s doubled its shelter capacity, as you know, to provide for these newcomers. It’s putting up tent structures, it is renting out hotels, it’s converting large rooms throughout the city to dormitories, and the cost of this is growing staggering.
So this fiscal year alone, I believe, correct me if I’m wrong, it has spent more than $4 billion on the effort, and the projected total cost going forward for the next several years is $12 billion. So I guess, this right to shelter has become an extraordinary burden on the city, and is it playing a role, I think it must be, in attracting these migrants right now?
John Ketcham: At this point, it seems unquestionable. So that migrants are communicating with their fellow citizens back home saying, “Look, we’re getting hotel accommodations, join us.” These folks are leaving desperate economic situations, and we need to recognize that there’s a great deal of poverty and suffering around the world. At the same time, this consent decree was certainly never intended to solve the world’s problems in this way, and right now the residents of New York City are paying an enormous price tag for people that were never intended to fall under this universal mandate.
The right to shelter as it exists today has no limit as to the cost to the city or its taxpayers or to the number of people that can be covered under it. So it is really a blank check, and as you say, it is indeed costing this fiscal year between $4 and $5 billion, and I’d imagine that the estimates are going to get closer to the higher end of that. It costs $383 dollars per family per night, which amounts to just shy of $140,000 dollars per year per family.
That is not sustainable when you are talking about a population of around 65,000 migrants in city shelters today, 20,000 migrants in New York City public schools. Many of these children have unique educational needs, language access services being the most obvious. Some from Latin America don’t even speak Spanish.
They speak indigenous languages that require very specialized instruction and teachers that even in a highly multilingual society like New York City, is going to be difficult to come by. Now, put the cost in context, $4 and $5 billion a year. That’s enough to fund the fire department, sanitation department and parks department combined, and it’s not that far away from the cost of the New York City police department’s annual operating budget.
So this is going to start cutting into city services, I imagine next budget cycle certainly, but even before then as the city prepares its mid-year adjustment in the middle of November. That’s when we’ll have a better sense of the cuts that are going to have to be made. Mayor Adams has called for cuts, but the city budget is not that flexible.
There are things that we cannot cut, cannot cut pension obligations, we cannot cut debt servicing. That amounts to over $30 billion a year. So the cuts are going to be more deeply felt than I think many of us realize at this point, and it’s going to come with some real political ramifications.
Brian Anderson: John, how many hotels has the city taken over? Because that’s got to have an effect on the supply of hotel rooms in the city driving up costs for tourists coming in, right?
John Ketcham: Absolutely. Right now, the city has around 200 contracts with hotel operators and other shelter providers. These contracts amount to over $5 billion dollars and they are are multi-year contracts. Now, the city says that some of them have cancellation clauses if the crisis abates in the next few years, but I don’t see that happening. Most of this capacity is going to be needed, at least if the right to shelter persists in its current form.
So take an example. The Roosevelt Hotel, the once luxury hotel that’s owned by the government of Pakistan and now leased to the city as its central migrant intake center, it costs the city over $200 million, around $225 million for three years. That’s an average cost of $200 per night. The city has since signed deals well in excess of that daily figure. These hotel operators are commanding more than they could have received in the private marketplace.
It’s providing a bonanza to them. And it’s also, as you note, reducing hotel room supply in the city, which is contributing to ever more expensive hotel stays. That is depressing tourism at a time when the city is already experiencing a rather tepid economic recovery from the pandemic and desperately needs the tax revenues that come from tourism, particularly hotel room stay taxes, hospitality taxes. This is impacting the city on multiple fronts, both on the fiscal side but also on the economic side, and the picture does not seem to be improving in the short run anytime soon.
Brian Anderson: The mayor, Mayor Adams, has certainly recognized this problem publicly. He’s calling it a crisis. He wants to relax the consent decree’s requirements and share the shelter responsibilities with counties outside of New York City. But you’re right in your essay that anything less than a substantial modification or abandonment outright of the right to shelter will be insufficient to free the city from this growing crisis, this unlimited housing obligation. The lack of clarity on the constitutional basis that underlies the consent decree does invite litigation, I think. So what strategies could the Adams administration pursue to extricate itself, or I should say extricate the city, out of this mess?
John Ketcham: Well, anytime the administration wants to change tack or pursue a path that is not according to the letter of the Consent decree, it has to go to court and ask a judge whether the court will provide consent to do so. This is no way to govern. You cannot require a government to go to court to ask permission every time it needs to make changes to its approach. But that is what this Consent decree requires.
Now, it’s worth noting that the Adams administration has sought to modify the consent decree insofar as whenever there’s a declared state of emergency at the city or state level, then the right to shelter obligations would not apply under the Consent decree. But it is not seeking to modify the civil settlement, that’s the Boston Agreement, or undermine the constitutional basis of the right to shelter, the original basis of the 1979 lawsuit.
So in that case, the city’s response has been relatively tepid. Even if it does secure this concession to put aside the Consent decree during emergencies, it will not affect its obligations for families with children. Now, families with children comprise over 70 percent of the migrant population in New York City right now, and they take a disproportionate share of hotel rooms as well, which are very expensive. So the administration I think has to change tack in two fundamental ways.
One, it has to go to Albany and say, look, “This is a state constitutional matter. The city should not be the only one bearing it.” So the state legislature should preempt the city’s agreements, the consent decree, and the Boston settlement, and provide an alternative arrangement. That does not mean that the government at the city or state level gets out of shelter provision entirely. So the advocates can rest assured that the government could still be part of this service provision.
Instead, the state legislature should pass a law that provides highly vulnerable populations with a right to immediate shelter. For example, those with severe mental health illness, those with severe substance abuse problems, those at risk of domestic violence, those at risk of human trafficking.
They are much more similarly situated to the original population that the Consent decree was intended to protect, and it would not therefore cover economic migrants that have rather tenuous claim on federal asylum anyway. So doing that at the state legislative level would be the only comprehensive and quick solution.
Barring that, and the politics are going to be difficult given the composition of the state legislature, the Adams administration should go to court and say, “We want to set aside the entire right to shelter root and branch for single adults and for families with children because we want to challenge the constitutional underpinnings of the right to shelter. We will litigate the case all the way up to the court of appeals.” Now, it might lose that case, but it would put the onus onto the state to provide more for what is purportedly a state constitutional right that should not be borne by the city and its taxpayers exclusively.
Brian Anderson: I guess the responsibility here is that of the federal government in controlling the southern border. You really do have the potential for a nearly unlimited supply of migrants unless that border is regulated more aggressively. What’s your view of the possibilities of that? Thus far the Biden administration has not done a great job of, to put it mildly, of protecting the border from illegal crossings.
John Ketcham: You’re absolutely right. This is a federal responsibility. The Biden administration has basically abdicated its responsibility because it knows how vulnerable it makes Democrats ahead of next year’s elections. This is a losing issue for Democrats, and I don’t see them finding a way to thread the needle to fix this problem of a porous southern border and the rather weak claims of asylum that many newcomers have made in order to gain entry to the U.S.
A Siena College poll in August found that 82 percent of New Yorkers, now we have always been very generous to newcomers in New York, but 82 percent thought that the migrant crisis was a serious or very serious issue, and lest we forget that immigration drove much of the angst that propelled the outcome of the 2016 election. President and his allies in Congress know that they risk playing with fire if they exceed to progressives’ demand, which are to make the country and the city more welcoming, such as by providing housing assistance to migrants.
Of course, that’s just going to incentivize more to come here, and I think it’s a political loser as well. So I don’t see any action happening at the federal level between now and the federal election. That only means that New York City and state have to take action here. The onus is on Governor Hochul and Mayor Adams to do what’s right in the interest of New York residents.
Brian Anderson: Thanks, John. That’s a very illuminating walkthrough of this very grave problem in New York City. John’s recent essay is called, “How to Fix Gotham’s Migrant Mess.” It’s in our latest issue. And don’t forget to check out his other work on the City Journal website. That’s at www.city-journal.org. We’ll link to his author page in the description, and you can find him on X as well @JKetcham91. You can also find City Journal on X @CityJournal and on Instagram @CityJournal_MI. As usual, if you like what you’ve heard on this 10 Blocks, please give us a nice rating on iTunes. Thanks very much, John Ketcham, always great to talk.
John Ketcham: Thank you, Brian. Appreciate the opportunity.
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