Could New York City’s right to shelter apply statewide?

New York City is running out of room to shelter migrants. That common refrain from Mayor Eric Adams has only gotten louder as the number of asylum-seekers arriving from the southern border since last spring nears 100,000.

To meet the need, the city has opened almost 200 emergency shelters around the city, according to the administration, including large-scale humanitarian relief centers. Around 1,500 migrants who initially arrived in the city have since been relocated to a handful of upstate counties, but attempts to relocate a larger number of asylum-seekers have been thwarted by several dozen counties and localities issuing executive orders to block that from happening. (The Adams administration has sued, asking for those orders to be thrown out.)

The tool that has required New York City to provide shelter to as many asylum-seekers as it has is the right to shelter, a mandate that stems from a 1979 court decision that found that a right to shelter for homeless men existed under the state constitution. A 1981 consent decree that established the right to shelter mandate in New York City was subsequently extended to include women and families with children.

But the Adams administration says that the city is running out of space to provide shelter. Dozens of migrants slept outside of the intake center at the Roosevelt Hotel in Manhattan for several nights earlier this month for an apparent lack of shelter beds – though the Daily News recently reported that hundreds of beds in the city’s main shelter system were open at the time.

As the number of asylum-seekers arriving in New York City grows, the city is increasingly turning to makeshift shelters. On Tuesday, the city opened a large tent shelter outside the Creedmoor Psychiatric Center in Queens that can sleep 1,000 people.

Citing its strained resources, the Adams administration moved in May to modify the consent decree that established the right to shelter, asking for relief from the mandate for adults in the event that the city runs out of resources to provide for them. The city and state are currently in court on that issue with the Legal Aid Society. 

After asylum-seekers slept outside the Roosevelt, a state Supreme Court judge told the Hochul administration that the state must do more to address the influx of migrants and ensure that New York City can continue to comply with the right to shelter mandate. The city submitted a list of requests for state assistance last week, and the state is due to respond to that on Tuesday.

Some advocates and elected officials have pointed to another idea – expanding the right to shelter beyond New York City. This could relieve the pressure on New York City alone to find shelter for the tens of thousands of migrants in its care.

New York City Comptroller Brad Lander has said several times in recent months that the right to shelter that exists in New York City should actually be a statewide responsibility. In other words, other localities should be responsible to provide safe shelter to those in need, in the same way that the city is. That’s not just an aspirational “should,” Lander and other proponents of this idea say, but a legal argument that goes back to the mandate’s origins.

“Rather than seeking permission to gut the right to shelter, the city should ask the court instead to clarify that this right, grounded in the New York state constitution, applies to all municipalities and counties across the state,” Lander said in a statement on July 19, following a decision by the administration to have adult asylum-seekers reapply for shelter after 60 days in the shelter system. “That’s the fastest way to increase shelter capacity and secure more support from Albany without turning our back on who we are.”

The argument that the right to shelter is grounded in the state constitution goes back to the 1979 lawsuit brought against the city and state, known as Callahan v. Carey. That lawsuit, brought by Coalition for the Homeless co-founder Robert Hayes on behalf of homeless men who could not find shelter in New York City, argued that a right to shelter existed under Article XVII of the state constitution, which reads: “The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.”

But Callahan v. Carey was settled as a consent decree in 1981, and some argue that the courts never really settled the main constitutional question in the lawsuit. The consent decree explicitly states that New York City must provide shelter and board for each homeless man who applies for it, but it doesn’t extend that mandate to the whole state. (It does, however, establish that the state bears some responsibility for reimbursing the city for the costs of providing shelter.)

Kathryn Kliff, a staff attorney at the Legal Aid Society, said recently that the organization’s position is that the right to shelter should apply statewide. “At this point, the consent decree doesn't require them to provide the physical space like it does the city, but the underlying constitutional mandate is still what it is – that the state has a responsibility to provide the care and support of the needy,” Kliff said.

Civil rights attorney Norman Siegel has argued for several months that the right to shelter should be clarified as a statewide responsibility. Siegel pointed to an initial ruling in Callahan v. Carey in 1979, prior to the consent decree, in which a statewide responsibility was mentioned. The initial ruling states that the homeless men in the Bowery section of Manhattan – where plaintiff Robert Callahan was living – are entitled to board and lodging. But it went on to say that “there is no reason why these homeless and indigent men cannot be lodged and fed at institutions wherever available in the State, and it is incumbent on those public officials responsible for caring for the needy to find such lodgings.”

Siegel pointed to that language as key, and said that New York City should be making the case in court that the right to shelter is a statewide obligation. “Rather than wanting to limit Callahan, they should be saying that the state should be required within 30 days to provide a plan to hold the other 57 counties in the state for their legal obligation under Callahan v.  Carey,” Siegel said. “And if we did that, then the court could explicitly say that the Callahan decision does apply to all 62 counties in the state.”

But Gov. Kathy Hochul has made it clear that she doesn’t see the right to shelter as a statewide responsibility. “This is going to come down to a very sophisticated constitutional question,” Hochul said during a press gaggle last week. “We brought in outside constitutional experts to assist with managing this because we believe, and I'm convinced, that the right to shelter is the result of a consent decree undertaken by the city of New York and Legal Aid Society back in 1979. The state is not a party to that, so the right to shelter does not expand to the whole of the state.”

Spokespeople for Adams did not respond to a request for comment about whether they plan to argue that the right to shelter should apply statewide. The city’s requests for assistance from the state have not been made public over the last week, as many of the discussions between the judge, the city, the state and Legal Aid attorneys have been happening behind closed doors.