Mayor Adams has made extensive efforts to accommodate tens of thousands of migrants in hotels and tents, but these actions have had a negative impact on his approval ratings. Voters recognize a fundamental truth that the mayor fails to see: it is impossible to provide housing for the entire world. Rather than addressing the obvious solution of ending New York City’s questionable “right to shelter,” Adams continues to struggle in his attempts.
The so-called right to shelter, which allows the city to house 59,300 migrants, is not an actual right at all. It is a fabricated entitlement that has been in place for over four decades. This misguided policy now jeopardizes the city’s ability to deliver essential public services such as fire protection and garbage collection.
The notion of a right to shelter is allegedly based on the state constitution. In 1981, advocates for homeless men claimed this right in a lawsuit, leading then-Mayor Ed Koch to sign a “consent decree.” This decree committed the city to provide shelter for men experiencing “physical, mental, or social dysfunction.” However, this limited mandate, which initially cost around $40 million (adjusted for inflation), has expanded to include everyone and will now cost at least $4 billion this year.
The problem lies in the fact that the term “right to shelter” does not appear anywhere in the state constitution. The constitution includes a bill of rights, which guarantees rights such as religious liberty and the right to form labor unions. However, “shelter” is not among these enumerated rights. If there were a genuine desire for a right to shelter, it could be established through the constitutional amendment process. Recently, the constitution was amended to include a provision guaranteeing the right to clean air and water. This addition resulted from a carefully followed procedure, involving two rounds of public voting and approval in the 2021 election.
Homeless advocates have relied on a section of the constitution that addresses assistance for the “needy” in their legal arguments. However, this section simply allows the legislature to provide aid, care, and support to those in need, with certain limitations. The language used does not assert a right, especially since it is not found in the section of the constitution that deals with rights.
Contrary to popular belief, New York City does not possess a right to shelter. Municipalities, including the city, do not possess inherent rights. When we think of rights, we traditionally think of fundamental freedoms such as freedom of speech and freedom of religion. These rights are protected by the US Constitution’s Bill of Rights, and the New York State Constitution echoes many of these protections. However, local governments, including the city, do not have the sovereign power to infringe upon these rights. Therefore, the city charter, which is 216 pages long, does not need to explicitly safeguard individual rights.
In contrast, the federal and state governments have the sovereignty needed to enact laws that could infringe upon individual freedoms. For example, these governments have the ability to charge individuals with felonies and imprison them. Constitutional rights, such as the right to a grand jury and jury trial, protect individuals from abuses of this power. New York City lacks comparable powers. It exists as a creation of the state and has little capacity to tyrannize individuals. City police can make arrests and incarcerate individuals, but only under state law and under the jurisdiction of state officials.
The City Council and the mayor may give the impression that local government possesses more power, but this is misleading. When the City Council recently “decriminalized” certain minor offenses, such as public urination, it was not actually decriminalizing them. Only the state has the authority to do so, and the city simply stopped enforcing these offenses. Similarly, while the city has a “human rights law,” it does not hold constitutional standing. If the city violates an individual’s rights, the recourse is in state or federal court.
To further complicate matters, if a right to shelter were to exist, it would be a statewide right. Within a sovereign jurisdiction, rights are universally applied. The state constitution does not state, for example, that individuals have the right to religious liberty except in specific areas that have opted out of it.
Constitutional rights do not guarantee entitlements to material possessions or benefits. They protect fundamental freedoms and limit the power of the government to infringe upon those freedoms. Government programs like Social Security and food stamps are not constitutional rights. Enshrining such programs in the federal or state constitution would contradict the principles of representative democracy. These programs require financial resources, and future lawmakers should have the flexibility to make spending decisions based on the needs and priorities of their time.
New York State’s closest approximation to a material right is the constitutional requirement for the legislature to provide free education for all children in the state. However, this provision is not framed as an individual right; it is a provision for the common civic activity of education.
Safety-net programs, including Medicare and housing vouchers, are not rights because they involve significant costs and future spending commitments. In a democratic system, current lawmakers cannot bind future generations to spend money on specific programs. The allocation of funds is a democratic tradeoff, and lawmakers must make spending decisions annually through the budget process.
The constraints imposed on safety-net programs by debt limits and the need for balanced budgets further demonstrate why such programs cannot be considered constitutional rights. During economic recessions, tax revenues decrease, making it difficult for the government to fulfill financial obligations tied to constitutional rights. While the federal government can borrow to address such challenges, New York State is bound by a constitutional requirement for an annual balanced budget. The state heavily restricts borrowing and typically requires voter approval for bond issuances. Thus, a right to social programs would force immediate tax increases or cuts to other services during times of economic hardship.
As a creation of the state, New York City faces similar limitations on its ability to assume a right to shelter independent of the federal and state governments. The city is mandated to balance its budget each year, and the state constitution imposes restrictions on the extent and purpose of the city’s borrowing. The city cannot borrow to cover operating deficits. Overall, the city possesses minimal independent power to tax or spend funds without state authorization.
In light of these constraints, it becomes clear why the city’s attempts to accommodate migrants under the guise of a right to shelter have faced significant pushback from New Yorkers. The fundamental principles of constitutional rights, the limitations of local government, and the economic realities of providing social programs all contribute to the complexity of this issue.
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