In a late Tuesday night email, the administration of New York City’s mayor, Eric Adams, asked a New York supreme court justice to allow it to ignore the state’s longstanding “right to shelter” law in certain circumstances.
The request comes after weeks of mounting debate about the city’s obligation to serve 100,000 migrants bussed in from the southern border. Earlier this summer, the city struggled to find housing for migrants at an intake center in Midtown Manhattan, with some sleeping on cardboard boxes outside.
That insufficient governmental response triggered a Legal Aid Society lawsuit against the city and comments from the state’s top politicians. On 21 September, Kathy Hochul, the state governor, said that the right to shelter was “never meant to house the entire world”. One week later, Adams agreed with a Staten Island judge who called the right “an anachronistic relic from the past”. Then on 1 October, Adams’s chief advisor, Ingrid Lewis-Martin, asked the US government to “close the border”.
The Adams email argued the obligations to house are “demonstrably ill-suited to present circumstances” and limit the city’s flexibility to deal with crisis. The city asked to be relieved of the decree’s obligations if the governor or mayor has declared a state of emergency, or when a complicated algorithm concerning the daily number of single adults seeking shelter is “at least 50% greater” than the daily number before the declared state of emergency.
But what will happen if the right to shelter is rolled back, even temporarily, in New York City?
“There’s a reason why New York City doesn’t have tent encampments, and it’s not that we’re any cheaper than west coast cities,” said Kathryn Kliff, staff attorney for the Legal Aid Society. “Denver, Seattle, San Francisco, Portland, any of those places, you’re going to see a lot of people sleeping out. The reason you don’t see that here is because there is a right to shelter.”
And Robert Hayes, who runs the Community Health Network operating 14 centers in New York City, predicted: “Without right to shelter, we’ll have encampments; police actions tearing down encampments which will sprout up around the corner; the subways filled with thousands of people. The quality of life for all New Yorkers, not just those who are homeless, will go to hell in a handbasket.”
New York City’s right to shelter law is unique and a national model; only Massachusetts has a right of shelter for families and pregnant women, and Washington DC extends that right during extreme temperatures.
Dating back to the Depression, a provision of the New York state constitution stated that “aid, care and support of the needy are public concerns”. A consent decree resolving the 1981 case Callahan v Carey and various lawsuits built on that foundation. Now anyone in New York City can access guaranteed shelter with required minimum standards like 3ft between beds, access to lockers and showers, and basic toiletries. But that 40-year-old law is in jeopardy, amid a push from the city’s executive.
Josh Goldfein, a staff attorney at the Legal Aid Society’s Homeless Rights Project, had been in closed-door talks with the city for weeks.
“The response should be not to just ask to completely gut the consent decree for everyone, new arrivals and longer-term New Yorkers,” Goldfein said in comments on a Zoom call on Wednesday morning.
He continued: “The formula they proposed is confusing. I’m not sure it’s operable. There are many ways to interpret it, and it is one piece of evidence to show how thoughtless this is. What are we going to do? Set up a counter and when the right number person crosses the line, then suddenly there is no more right to shelter? That seems like not the way to operate a system that is meant to protect human beings from injury and death.”
What the Legal Aid and other advocates would like to see is more time for new measures to have an impact before rolling back such an important right. Hochul proposed a program to aid migrant resettlement throughout the state. And the federal Department of Homeland Security extended Temporary Protected Status to Venezuelans who arrived prior to 31 July, allowing them to skip the 180-day required waiting period before working.
Hayes, who was a 26-year-old lawyer in 1979 when he argued for the right to shelter in the Callahan v. Carey case that established it, said: “A right, especially a right for disenfranchised people, disappears when the government can declare it’s too hard or there’s too many people or we’re too busy. I think the mayor and the governor are competing for incoherence as a matter of policy.”
Legal Aid has a week to respond to the city’s proposal, and the city also has a week to respond after that. A judge will issue a court schedule later. Meanwhile, another deadline approaches: New York winter is coming along with months of average temperatures below 50F.
