New York City’s got it all wrong with its ‘right to shelter’

Mayor Adams has done everything he can to house tens of thousands of migrants in hotels and tents, only to tank his approval rating.

Voters see what he can’t see: He cannot house the world.

Adams is failing, because he’s doing everything but the obvious: move to end New York City’s spurious “right to shelter.”

The right to shelter, under which the city is housing 59,300 migrants, isn’t a right at all.

This fake right, which has persisted for more than four decades, now imperils New York City’s ability to provide public services, such as fire protection and garbage collection.

No ‘right’

The right to shelter is allegedly rooted in the state constitution.

In 1981, after advocates for homeless men asserted this right in a state-court lawsuit, the city, under then-Mayor Ed Koch, signed a “consent decree.”

The city pledged to provide shelter to men suffering “physical, mental or social dysfunction.”

This narrow mandate, which at the time cost about $40 million in inflation-adjusted dollars, has expanded to include everybody, and will cost at least $4 billion this year.

One problem: the term “right to shelter” appears nowhere in the state’s constitution. The constitution does feature a bill of rights, listing items such as religious liberty, and the right to organize a labor union.

“Shelter” is not among these rights.

If voters wanted a right to shelter, it wouldn’t be that difficult to enact.

The constitution’s bill of rights does feature one new addition, a two-year-old provision that “each person shall have a right to clean air and water.”

How did this environmental right get there? State lawmakers followed the procedure to amend the constitution, twice voting to put the question to the public, and the public approved it in the 2021 election.

There is a section in the constitution about the “needy,” and this is what homeless advocates have used in court.

But this passage reads only that “subject to the limitations on indebtedness and taxation, nothing in this constitution . . . shall prevent the legislature from providing for the aid, care and support of the needy.”
This weak language is hard to construe as a right (especially since it isn’t in the “rights” section of the constitution).

And the state’s highest court, the Court of Appeals, never ruled that this right exists. The Koch administration and successive administrations just gave up, operating as though this phantom right is real.

What are my rights?

New York City doesn’t have a right to shelter, because cities don’t have rights at all.

When you think of your rights, you think about your right to speak freely, your right to worship. These rights are safeguarded in the US Constitution’s Bill of Rights, and the New York State Constitution echoes many.

Which government doesn’t list and safeguard basic rights?

Local government. The city’s charter is 216 pages long, yet doesn’t list or safeguard individual rights.
That’s because city governments have no sovereignty.

Because it has no sovereign power to infringe upon your rights, you do not need the city charter to safeguard your rights.

The federal and state constitutions safeguard your rights, by contrast, because the federal and state governments are sovereign, and thus are powerful enough to enact laws that could infringe upon your freedoms.

For example, both the federal and state government have the power to charge you with a felony and imprison you. You thus have protection from this power, via your constitutional rights to a grand jury and jury trial.

New York City’s has no comparable power. It is a creation of the state. Without the backing of state government, the city can do little to tyrannize you.

Yes, city police can arrest and incarcerate you — but only under state law, governed by the state constitution and administered by district attorneys and judges who are state officials.

The city couldn’t even issue you a speed-camera ticket before Albany allowed it to do so.

The City Council and the mayor fool people into thinking local government has more power. But when the City Council recently “decriminalized” a bunch of small crimes, like public urination, the council did not actually decriminalize them. Only the state can do that. The city just stopped enforcing them.

Likewise, although the city has a “human rights law,” the law has no constitutional standing. If the city violates your rights, your recourse is in state or federal court.

This fact has implications for the supposed right to shelter: If there were such a right, it would be a statewide one.

Within a sovereign jurisdiction, rights are universal. The state constitution does not say, “You have a right to religious liberty, except in Scarsdale, which opted out of it.”

What aren’t my rights?

Your constitutional rights have something in common: they aren’t entitlements to anything of material value.

For example, you have a federal right to bear arms, but the government doesn’t give you a gun.
Government programs, like Social Security and food stamps, are not constitutional rights. (Nope, not even after you’ve paid for years).

The closest New York state comes to providing a material right comes with the constitutional requirement for the legislature to “maintain and support . . . free common schools” where “all the children of this state may be educated.”

But this is not framed as an individual right; it is the provision for a common civic activity.

Safety-net programs, from Medicare to housing vouchers, aren’t rights, because enshrining such programs in the federal or state constitution would be contradictory to representative democracy.

Such programs cost money, and it’s a tenet of American democracy that today’s lawmakers cannot bind future voters to spend future money.

Today’s congresswoman cannot bind her colleague 50 years from now to spend $5 trillion a year on Medicare, for example.

This is because spending is a democratic tradeoff. The more we spend on Medicare, the less we have for infrastructure.

Lawmakers must make spending decisions every year, through the budget.

If the founders of New York or the US had said, back in 1777 and 1791 respectively, that we had a right to, say, retirement security, they would have sharply reduced future lawmakers’ role in the annual budget process. Most of this year’s budget would have been decided centuries ago.

There’s another constraint on transforming safety-net programs into rights: debt limits.

Economies suffer recessions, which reduce tax revenue. In a recession, for either the US or state government to make good on, say, a “right” to Medicaid or a housing voucher, the government would have to borrow.

Washington does, of course, borrow copiously.

But New York does not.

The state constitution requires an annual balanced budget. It severely restricts borrowing, requiring lawmakers to submit bond issuances “to the people,” via general election, for a vote.

Because of these constraints, if tax revenues decrease, a right to a social program would force lawmakers to immediately raise taxes or cut other programs.

Lawmakers might make such decisions, anyway. But if social spending were a constitutional right, they would have no choice.

What about the city?

If the city wants to assume a state “right to shelter” and spend money to secure that right, even if the federal and state governments do not, what’s stopping it?

Lots of things. Just as New York City has no independent power to tyrannize you, it has little independent power to tax you or spend your money.

Because the city is a creature of the state, it is required to balance its yearly budget. The state constitution further limits how much, and for what, the city can borrow. The city cannot borrow for annual operating deficits.

The state also limits the city’s ability to levy taxes. The only tax the city can impose, without approval, is property tax. City income and sales taxes are levied by the state for the city’s use.

So the city can’t guarantee a right to shelter, because it has no autonomous way to secure the fiscal resources it would needed.

Put it all together — and see how it doesn’t go together:

• Cities don’t guarantee rights.
•  Federal and state rights are not rights to something material, like safety-net programs.
• That’s because enacting such rights would require permanent spending obligations — which elected officials cannot institute.
• New York City, under state law, wouldn’t be able to raise taxes, run deficits or borrow money to make good on any right to an entitlement, like a “right to shelter.”

An impossible decree

The four-decade-old consent decree that made “shelter” into a “right.” Without creating any competing rights, the decree would force the city to prioritize sheltering migrants above providing basic services.

Mayor Adams must move in state court to end the consent decree. To win, he would have to argue — albeit decades belatedly — that the city, in signing the decree, improperly exceeded its limits to tax, spend and borrow.

But so far, Adams has been sticking to his May statement: “We are in no way seeking to end the right to shelter.”

He will continue to fail to do the impossible until he stops attempting the impossible.

Nicole Gelinas is a contributing editor to the Manhattan Institute’s City Journal.