If New York’s mayor truly wanted to help the immigrants arriving in the city, he would supply them with shelter and services, instead of trying to cut them off.
A bus with migrants coming from Texas arrives at Port Authority Bus Terminal on August 25, 2022 in New York City.(John Smith / VIEWpress)
New York City Mayor Eric Adams and New York Governor Kathy Hochul seem to be going out of their way to prove that Texas Governor Greg Abbott is right about the hypocrisy of Democrats on immigration. The operating theory of Abbott and a host of conservatives is that liberals wax poetic about human rights and dignity when helping new Americans is somebody else’s problem, but turn into rank protectionists when desperate migrants are dropped off at their front door.
Toward that end, for the past year and a half, Abbott has been busing migrants to New York, Chicago, and other big cities run by Democratic mayors. The stunt is ghoulish. It involves treating people—human beings who are already vulnerable and living on the margins of existence—as political footballs to be punted around the country. Abbott puts these people on a bus and sends them thousands of miles away, into cities they are wholly unfamiliar with, all to make blue-city mayors squeal as people in need of shelter and services descend on their already overstretched social safety nets.
And squeal they do. Every time a busload of migrants disembarks at Port Authority, Adams and Hochul whine like stuck pigs. They don’t seem to appreciate that complaining about the Abbott charade all but ensures it will continue. The only currency of value in MAGA-world is “owning the libs,” and every time Democrats react it only strengthens the conservative proposition that liberals are hypocrites whose commitments to human rights don’t extend to their own backyards.
Adams has been trying to figure out a way to make Texas stop. Last week, his administration filed a lawsuit against the bus companies transporting these immigrants in an attempt to recoup some of the money New York City has spent trying to provide for their needs. The lawsuit is enthusiastically supported by Governor Hochul.
From where I sit, this lawsuit is an embarrassment. Politically, it proves Abbott’s point. Socially, it treats sheltering and serving human beings as “damages” that the city should be compensated for. And legally, hoo boy, trying to bank a shot at Texas off of bus companies involves the kind of novel, untested, and probably unconstitutional legal arguments that would make former New York City Mayor Rudolph Giuliani proud.
The city claims it is entitled to $708 million from the bus companies for the cost of caring for 33,600 people they transported to New York at the behest of Texas. To make this the bus companies’ problem, New York has dug up a law passed in 1941, Section 149 of the New York Social Services Law, which makes it a crime to bring a “needy person” into the state. Specifically, the law says: “Any person who knowingly brings, or causes to be brought, a needy person from out of the state into this state for the purpose of making him a public charge, shall be guilty of a misdemeanor.”
First of all, this law is absolute, utter trash. It’s a straight-up “anti-pauper” law, one of those old-school inventions designed to keep poor people out of New York City. It’s the kind of law you pass when you are worried about Black people migrating from the South into Harlem, or Italian people migrating to the lower East side from steerage. Their resurrecting a 1940s law criminalizing public charges to deal with a 2024 problem should tell you all you need to know about how desperately Adams and Hochul are flailing about as they try to avoid the issue instead of solve it.
It shouldn’t come as a galloping shock that this old, decrepit law is probably also unconstitutional. That’s because in 1941, in a case called Edwards v. California, the Supreme Court explicitly ruled that laws criminalizing the transportation of poor people violated the Commerce Clause and the constitutional right to travel. California had a law similar to New York’s—banning the transportation of “paupers”— but the court ruled that states could not “exclude indigents.”
New York’s version of the law has not been tested since that Supreme Court ruling. Even though New York has never used the law as Adams is trying to use it now, there’s no earthly reason to think that it’s any more constitutional today than it was 80 years ago.
New York does make a secondary legal argument in the lawsuit that is slightly more compelling. At the end of the year, Adams issued Executive Order 538, which requires charter bus companies to coordinate with city officials before dropping off immigrants from out of state. It mandates 32 hours of notice, passenger lists, and specifies certain drop-off times. That makes sense just from a social services perspective: Dropping off hundreds of people with no place to stay in the middle of the night is just another ghoulish thing Abbott has done to maximize the human suffering of the people he’s using. But the bus companies have responded to Adams’s order by dropping people off just outside the city limits and buying them train tickets. There may be a legal violation there, albeit not one that nets New York City $700 million or makes the transports stop.
The problem Adams is facing is that what Abbott is doing is cruel and cynical but almost certainly legal. As far as we know, all 33,600 of those people went on those buses voluntarily. Some, we know, were even paid to go. (In this way, Abbott’s ongoing antics can be distinguished from the one Ron DeSantis pulled, in which he effectively kidnapped people and sent them to Martha’s Vineyard.) That Texas would rather spend state funds shipping people out of state for a political stunt, instead of providing services to them in Texas, is a moral failure of Abbott and the people in Texas who vote for him, but it’s not illegal.
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If anybody is in danger of violating the law, it’s Adams and Hochul—not with this lawsuit but with one of their backward policy ideas. For more than 30 years, the New York State Constitution has been interpreted to include a “right to shelter.” It’s supposed to guarantee that the government provides shelter to anyone who needs it. Recently, however, Adams has been suggesting that those provisions need to be revisited. Hochul, for her part, acts like the right to shelter is just a New York City rule, when it arguably applies to the whole state and should mean that people bused to the city are eligible to be housed in the surrounding counties (like mine, in Westchester) and the state as a whole. New York State isn’t as vast as Texas, but it’s plenty big. We have the space and the money to stop treating people as problems; we just don’t have the political will.
Which brings everything back to the core issue: Nobody actually wants to help. Texas wants to score political points; New York wants to punt the football back; the federal government is paralyzed—mainly because Republicans in Congress would rather use immigrants to make white voters afraid than help them—and the Biden administration basically uses the same detain-and-deport strategies that the Trump administration used.
The whole situation reminds me of the ancient siege of Alesia. During the Gallic wars, Julius Caesar pushed Gallic general Vercingetorix back into the fortified town and laid siege, building his own wall around the Gallic defenses. With food running low, Vercingetorix sent the town’s women, children, and sick outside the town and toward Caesar’s lines, in the hope that the Romans would take them and provide for them. Caesar refused. Both armies watched as the people slowly starved to death between the two fortifications.
Future historians will be horrified at how we treated each other. Texas and New York are two states with a combined wealth that dwarfs whole countries’. And yet they act like finding warm beds and hot meals for 30,000 people is an insurmountable crisis. Our leaders have failed us.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.