Since 2022, about 170,000 asylum seekers have arrived in New York City from southern border states, leaving state and local authorities responsible for their care. As the city deals with intense financial fallout, Mayor Eric Adams has assailed Texas governor Greg Abbott, who continues to send migrants from his state to New York as part of a larger campaign against Democrats. Adams has also called out the federal government over what he says is a lack of assistance to manage the crisis.
Earlier this month, Adams announced that he was filing a lawsuit against 17 Texas charter-bus companies used by the state to transport asylum seekers to New York City, citing a little-known state law to allege that the companies are financially responsible for the care of the migrants they brought to the city. The city is looking to recoup approximately $708 million. Abbott has called the legal action “baseless.”
Last week, I spoke to Aaron Reichlin-Melnick, policy director of the American Immigration Council, about the chance that Adams’s suit will be successful, what other recourse he has to stem the flow of migrants, and what the Biden administration can and can’t do about it.
Eric Adams’s lawsuit claimed that bus companies violated New York State law by not financially providing for the care of the migrants once they got here. How likely is this argument to be successful?
Very unlikely, largely because the Supreme Court struck down a nearly identical California law 80 years ago.
Can you tell me more about that particular case?
The law that Eric Adams is invoking is what used to be known as a poor law, which were laws designed to prevent indigent people from coming into various states and becoming public charges. These laws last saw large-scale invocation during the Dust Bowl, when hundreds of thousands of Okies left the southern plains to travel to California and other places when their farming lifestyles died out. California tried to invoke a poor law that was virtually the same as the one New York has on its books and prosecuted a man named Edwards who came to California, bringing his brother-in-law from Texas. His brother-in-law was unemployed and did not have a job, and so was eligible for temporary assistance when he came into California.
As a result, Edwards was prosecuted and convicted of a misdemeanor for bringing in a person to the state who was indigent. And the Supreme Court said [in Edwards v. California] that this violates the fundamental right of travel within the United States, and it said very clearly that states may not turn away migrants and shut their doors to the needy. So, in many ways, that’s exactly what Eric Adams is trying to do here. The Supreme Court later reinforced that in a case known as Shapiro v. Thompson, from 1969. The Court could not have been more clear. They wrote, “The purpose of inhibiting migration by needy persons into the state is constitutionally impermissible.”
Though he wasn’t named in the suit, Governor Greg Abbott unsurprisingly pushed back against the lawsuit, saying that all the migrants transported by Texas did so voluntarily and that Adams would be interfering with their legal right to travel across the country. Does he have a point?
For once, I find myself in agreement with Greg Abbott. While Abbott has certainly used these buses as a tool to push his political viewpoints and target where migrants are going, migrants are voluntarily getting on them. They’re not being forced onto them. I think it’s really helpful to understand — the background here is that when most migrants cross the border, they know where they want to go. And if they have any resources, they have to buy their own tickets. So if you go to any of the shelters along the border after migrants are released, you will see queues of people lining up to get help with figuring out the process for purchasing a plane ticket or bus ticket, often with the financial assistance of friends and family who are already here.
But there are also thousands of migrants who don’t know anybody here, who have run out of money, who have lost everything and are crossing the border with nothing but the clothes on their backs. And, for those people, the prospect of a free bus that goes to New York City is fantastic and is in very high demand. And so we’ve seen these buses be very popular among the migrants themselves because it is a way in which they can get to a location that they have heard is better than simply being stuck in a border town.
In your opinion, is there any potential legal recourse that Adams and the city could take against Abbott’s actions?
Certainly, on a moral basis, I think there’s a lot of arguments that Abbott has weaponized migrants. Even if you think that the buses themselves are helpful, the ways in which Texas has essentially interfered with local organizations that had been giving a heads-up to receiving communities about when buses might arrive has really made the situation worse. But legally, I don’t see any reason why Abbott would be mandated by law to tell people that a bus is showing up. For example, I don’t think that the city of New York gets a notification every time a bus full of tourists shows up, or a plane arrives from Europe with a large group on it here to take a night out on the town. People fly or are bussed into New York every single day, and they are not obligated to tell the mayor when they get there.
Nevertheless, New York is definitely facing a lot of strain, in part because the federal government hasn’t really stepped in to provide the kind of coordination role that would help share the burden among the various cities. When we look at other cities around the country, there are many places that are losing population and that are desperate for workers and for people who can show up and help reverse this population loss. But migrants generally aren’t going there because they don’t know where these places are and the buses aren’t going there. So, we’ve long been calling for the federal government to play a more active coordination role. If there’s a city that says, Hey, we really need people, then help migrants get set up there for a few months and maybe figure out whether they want to stay. Instead, because the federal government has been taking a very hands-off role, it’s really been left up to each individual city to figure it out for themselves.
Adams has been consistent in saying that the city needs more federal assistance and has particularly criticized the White House on the migrants issue. What can they do beyond the coordination and logistical stuff you mentioned?
The crucial thing to understand is that once a migrant leaves DHS custody, it’s a free country and they can largely go wherever they want. ICE or DHS can set conditions on people. They could set an order of supervision that limited someone to a specific geographical area, but generally speaking, once somebody’s out of DHS’s hands, the federal government really only cares if the person is following their federal obligations. Are they showing up to ICE check-ins? Are they going to their court hearings? Are they complying with the terms of their release? And that can occur in any location in the country. The Biden administration has actually very little power right now because Congress hasn’t given it the power to do this broader federal coordination role.
Definitely there are things that the administration could be doing to lead on this issue. We have asked the Biden administration to lead on a national level in migrant response since day one. So far, they haven’t done that. But, at the same time, there’s a lot that they can’t do because it would require Congress, things like reimbursing city governments. The only funding that’s available for that is funding that Congress has provided. Most recently, in the fiscal year 2023 budget, Congress provided $800 million to the shelter and services program to support city and state governments and local nonprofits that are assisting with migrant response. But any funding beyond that would also have to come from Congress. The Biden administration can’t simply reimburse the city for something. You have to have statutory authorization to do that. And right now, the only authorization comes through this single $800 million pot of funding, the shelter and services program.
So when you hear people saying things like “Why doesn’t the president issue an executive order for work permits?” — that’s not really a feasible option?
This is a great example of the limitations of federal authority. In order for someone to be eligible for a work permit, they have to fall within a certain legal category. There is no general executive authority to simply grant permits willy-nilly. For most people coming to the border, the only way in which they would be able to apply for a work permit is if they filed an asylum application. But, thanks to a 1996 law, the government is actually barred from issuing them to people until 180 days after they file an asylum application. And that’s written into the law. The Biden administration can’t waive that. It would be illegal to give an asylum applicant a permit before 180 days. So, that means that many people crossing the border have literally no choice. The only way in which they are able to get a permit is waiting six months after they file an asylum application.
For others, there is parole and Temporary Protected Status. These are alternate means by which people could potentially gain a permit. But there, the issue is often that not everybody is getting parole. Parole right now is largely only being granted to people who are coming in legally through ports of entry, and Temporary Protected Status is only granted to nationals of specific countries — for example, the DHS secretary authorized TPS for Venezuela last year. And there the issue is often about processing capacity. The administration has done a really good job of speeding up work-permit adjudications at U.S. Citizenship and Immigration Services. But nevertheless, there’s backlogs of tens of thousands of applications and many people have to wait months to get a work permit. So, there’s no way that the president could simply sign an executive order and suddenly give one to every migrant. It just doesn’t work that way.
Congress is currently in the middle of negotiations on changes to immigration and border policy. What can we expect to emerge from those talks?
Right now, we’re taking a hard look at what Senate negotiators are discussing, and it’s hard to see a positive future coming out of those talks. The White House has agreed to significant concessions already, including the possible restart of something like the Title 42 pandemic health expulsions. In other words, an authority that would permit DHS to simply turn away migrants at the border, rather than process them for asylum after they cross. The problem with that is that we have three years of data that showed us what happened under Title 42. And while last December hit a record for the highest number of border apprehensions, the previous record was set in December 2022 when Title 42 was already in effect. So, we actually know for a fact that restarting border expulsions is not going to stop people from crossing the border, because when border expulsions were in effect, people were still crossing the border.
The other policies that have been discussed could potentially help in some ways. An agreement could include $14 billion for the Biden administration to respond to migration, which does include $1.4 billion for supporting state and local governments. So that would certainly help. And there would be an investment in asylum officers, so more people could be screened rapidly. But at the end of the day, the policy changes that are under discussion are not the ones that are going to solve this crisis. If anything, they could theoretically make it worse. We do know that they would have very little long-term impact on border crossings. Of course, that is even presuming that they are passed into law. As we are seeing over the last week or two, opposition in the House of Representatives to any kind of immigration bill that is not the hard-line, GOP “Secure the Border Act” is growing, and it’s very possible that even if the Senate does narrowly pass some kind of compromise, that it dies in the House.
This interview has been edited for length and clarity.
