The Big Apple’s Big Pickle
The Pickle
New York City finds itself in a pickle partly of its own making (with co-credit going to the Biden Border Disorder). The pickle is the result of the collision of an unstoppable force — per the Washington Post, “the nearly 100,000 migrants [who] have arrived in New York City seeking shelter” since the spring of 2022 — with an immovable object — a utopian (turned dystopian) 1981 consent decree requiring NYC to “provide shelter and board to each homeless man [since expanded to woman and families] who applies … [and] meets the need standard to qualify for the home relief program established in New York State; or by reason [of] physical, mental or social dysfunction is in need of temporary shelter”.
New York City’s migrant crisis gets worse by the month. This May, the New York Times reported that:
The city has struggled to find places to house migrants, opening more than 150 sites to house the newcomers, including 140 hotels. Migrants have also been housed in a cruise ship terminal in Brooklyn and in tents on Randall’s Island. A plan to place migrants in school gyms was quickly reversed last week after protests.
As to the gyms, Gabriela Vizhnag, mother of a third grader, explained that she is “‘not racist or anti-immigrant’ because she herself immigrated from Mexico. But she opposed the plan to house people in a school gym with no available showers and only two bathrooms. ‘It is not good for the children and it is not humane for the migrants’”.
Politico reported that month that NYC “now has more migrants in the [shelter] system than more established New Yorkers. And while the city’s budget office initially pegged the cost at $4.3 billion through next summer, officials said that figure will likely increase.”
In June, the New York Post reported that “More than 54,800 asylum seekers are currently staying at one of the city’s 188 emergency shelter sites set up to cater for the migrant influx.”
Just recently, National Public Radio reported that “The arrival of [the] migrants has brought New York City’s resources to the brink. The city’s largest intake center … is filled to capacity and people are being forced to sleep on the sidewalk, sometimes for days at a time, as they wait to be processed.”
And Breitbart now reports that the city is even considering housing migrants in Manhattan’s Central Park. Has anyone asked Central Park’s rats their opinion? Where are they supposed to go? The New York Post has reported the observation of Melanie Sloan (the mother of actress Scarlett Johansson) that “Central Park is overrun with huge fat rats … I saw a man on a bench in the rambles swatting them unsuccessfully with a rake.” The West Side Rag reported that Manhattan’s “Upper West Side’s rat population appears to be surging, with rodents proliferating in parks and playgrounds — even making some play areas off-limits to kids.”
New York City’s migrant crisis has driven Mayor Eric Adams to distraction. The mayor has exclaimed in exasperation that “We need help, and it’s not going to get any better. From this moment on, it’s downhill. There is no more room.” Back in May, he laid it all out on the line:
Given that we’re unable to provide care for an unlimited number of people and are already overextended, it is in the best interest of everyone, including those seeking to come to the United States, to be upfront that New York City cannot single-handedly provide care to everyone crossing our border … Being dishonest about this will only result in our system collapsing.
Mayor Adams is now firmly in President Biden’s doghouse for daring to point out the human cost of his fellow Democrat’s immigration policies. The New York Times reported that Adams “has taken nearly every opportunity in recent weeks to publicly blame Mr. Biden or his administration for the influx of migrants to New York from border states … . His eagerness to point a finger at the White House has infuriated top Biden aides.” Adams has gone so far as to proclaim that “The president and the White House have failed New York City on this issue.” In other words, Mayor Adams has admitted that you can beat City Hall, or at least you can if you are Biden’s Border Disorder.
Other New York Democrats and migrant advocates have had to grudgingly admit that New York City’s crisis is real, at least in fiscal terms. The Washington Post reports that “New York Governor Kathy Hochul does not dispute the city needs more money, saying ‘it is far more expensive than anyone had imagined.’” The Center for American Progress, which aims to “change the country” through “bold, progressive ideas”, admits that cities and states on the receiving end of Biden’s migrants are “bearing a severe funding burden” and that supporting “asylum-seekers” involves “high costs”. Of course, CAP’s solution is more “funding and resources … especially at the federal level.” As Barrett Strong and the Beatles once sang, “Money (That’s What I Want)”.
Mayor Adams has warned that “the system is buckling and we want to prevent it from collapsing.” Thus, he has been pleading with the city courts to modify the consent decree. The New York Times reported in May that:
In a letter to … the deputy chief administrative judge for New York City Courts, the city’s lawyers asked for changes to the 1981 consent decree … to allow it to deny shelter to homeless adults and adult families if it “lacks the resources and capacity to establish and maintain sufficient shelter sites, staffing, and security to provide safe and appropriate shelter.”
Politico reported that “administration officials said th[is] legal maneuver was designed to preserve shelter for those already here and hinted that it could discourage asylum-seekers from traveling to New York in the first place.” Wow, that seems positively Abbottian and DeSantisian!
Of course, NYC progressives are having none of it. The New York Times reported that:
Shahana Hanif, co-chairwoman of the City Council’s Progressive Caucus and chairwoman of the Immigration Committee … cautioned that the city must not demonize asylum seekers.
“I think it is a real mistake for this mayor to navigate welcoming asylum seekers as a crisis instead of focusing his attention on building an infrastructure that says, New York City is a safe city for you and a sanctuary city for all of us,” Ms. Hanif said.
Where do we go from here? The New York Post reported in July that Judge Erika Edwards has indicated that “both the administration and Legal Aid were currently in the process of trying to negotiate an agreement.” A Legal Aid lawyer said that “If it’s not resolved, then we’ll have to come back to the judge and then the judge will have to make a decision”.
Hold the Pickle, Hold the Lettuce, 1996’s Welfare Reform Law Don’t Upset Us!
Could 1996’s much vilified Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) offer NYC an escape hatch from the consent decree? Very possibly, at least in part.
One of PRWORA’s goals was to reset federal law regarding the eligibility of aliens, both legal and illegal, for federal, state, and local public benefits, guided by principles including that “It is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits.”
PRWORA generally provides that aliens are “not eligible for any State or local public benefit” unless they are 1) “qualified aliens”; 2) “nonimmigrants” (i.e., aliens with a temporary visa or status); or (3) aliens “paroled into the United States … for less than one year”. As PRWORA defines qualified aliens as lawful permanent residents, asylees, refugees, and certain other aliens including those “paroled into the United States … for a period of at least 1 year”, all paroled aliens are exempt from the eligibility restrictions.
PRWORA does allow a state to provide public benefits to otherwise ineligible aliens should the state enact legislation specifically providing for such eligibility:
A State may provide that an alien who is not lawfully present1 in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible … only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.
As far as I am aware, the State of New York has not enacted legislation making such aliens eligible for state or local public benefits (other than for eligibility for low-cost health insurance under the “Healthy NY” program).
So, could Mayor Adams argue that NYC can (and indeed must) disregard the consent decree’s shelter and board mandates as violative of federal law? Surely, the U.S. Congress’ plenary power over immigration under the U.S. Constitution provides for the supremacy of federal law in this instance. PRWORA could very possibly offer Mayor Adams and New York City a path out of their pickle, or at least allow them to bite off a big chunk of it. If so, Mayor Adams can thank 1996’s Republican House and Senate for passing PRWORA and President Bill Clinton’s act of “triangulation”2 in signing it into law.
But there are two potholes in the way.
Pothole No. 1: Parole
Pothole No. 1 is that aliens granted parole are exempt from PRWORA’s disqualification for state and local public benefits. And half or more of Biden’s migrant have been granted parole … by the Biden administration.
My colleague Andrew Arthur recently testified before the House Judiciary Committee and the House Oversight and Accountability Committee, explaining that:
the administration has been releasing border migrants encountered by CBP [U.S. Customs and Border Protection] either on their own recognizance under section 236(a) of the INA [Immigration and Nationality Act] with “Notices to Appear” … the DHS charging documents placing aliens into removal proceedings [before Department of Justice immigration judges] … or on parole.”
Arthur’s examination of the available data indicates that during the Biden administration (through this June) CBP has released on parole about 707,000 aliens apprehended along the border and released about 741,000 on their own recognizance (even though federal law requires that they be detained). Thus, about half of CBP releases from custody have been through parole.
The Biden administration has also been granting parole on a mass scale to aliens before they enter the U.S., pursuant to DHS Secretary Alejandro Mayorkas’ “lawful pathways”. As I have written, Secretary Mayorkas seems intent on facilitating the entry into the U.S. of all who want to come. He stated that “We are building lawful pathways for people to come … without resorting to the smugglers.” Translation: Foreigners who don’t qualify under our generous-to-a-fault immigration laws (over a million green cards served most every non-pandemic year) no longer need to break our laws to come to the U.S. He and President Biden have decided to conscript parole to fulfill an agenda of, as Center for Immigration Studies Executive Director Mark Krikorian has observed, stigma removal, the conversion of as much of the population of illegally entering economic migrants as it can into persons supposedly fleeing persecution or violence or harm of one sort or another.
The “lawful pathways” boil down to the Biden administration’s unlawful appropriation of the parole power to achieve goals the administration could never get the American people or Congress to agree to. What is parole? The Immigration and Nationality Act of 1952 granted the attorney general the power to “in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States”. The House Judiciary Committee at the time made clear that:
[The parole] authority should be surrounded with strict limitations … to permit the Attorney General to parole inadmissible aliens into the United States in emergency cases, such as the case of an alien who requires immediate medical attention before there has been an opportunity for an immigration officer to inspect him, and in cases where it is strictly in the public interest to have an inadmissible alien present in the United States, such as, for instance, a witness or for purposes of prosecution.
Over 40 years later, however, the House Judiciary Committee bemoaned the fact that “In recent years … parole has been used increasingly to admit entire categories of aliens who do not qualify for admission under any other category in immigration law, with the intent that they will remain permanently in the United States. This contravenes the intent of [the parole statute].”
I have written extensively about the executive branch’s abuse of parole. But such abuse has only gotten worse during the Biden years. As to turning parole into a “lawful pathway”, the administration operated under a veil of relative secrecy for Mexican and Central American beneficiaries before the 2022 elections (as my colleague Todd Bensman uncovered). Post-election, DHS publicly announced “additional safe and orderly processes” that “will provide a lawful and streamlined way for qualifying nationals of Cuba, Haiti, Nicaragua, and Venezuela … to seek advance authorization to travel to the United States and be considered, on a case-by-case basis, for a temporary grant of parole.”
According to my calculations, the Biden administration has, at the very least, paroled 1,075,664 aliens through this February. But DHS is now using its “CBP One” scheme to, as the White House describes it, allow inadmissible aliens of any nationality “located in Central and Northern Mexico seeking to enter the United States lawfully through a U.S. port of entry [to use] the CBP One mobile application for scheduling an appointment to present themselves for inspection and to initiate a protection claim”. As Arthur testified:
the administration has refused to publish any statistics on the number of inadmissible alien applicants for admission at the ports who have been paroled or otherwise released into the United States … since June 2022 … . CBS News [reported] in mid-July … that some 130,000 aliens who used what it termed the “CBP One app process” had been paroled into the United States as of June 30.
Thus, all told, it seems that at least half, if not more, of Biden’s migrants ending up in New York City have been granted parole and are thus exempt from PRWORA’s disqualification from receiving state and local public benefits. However, that still leaves a huge number who have not been paroled and therefore subject to disqualification. New York City could presumably screen migrants seeking city-provided shelter to determine who are parolees and who are not and hence who are eligible for state or local benefits pursuant to PRWORA and who are not.
Pothole No. 2: Short-Term Shelter
But there still remains pothole No. 2. PRWORA provides that certain types of state and local public benefits are excluded from its restrictions on alien eligibility. These excluded benefits include:
Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the [Secretary of Homeland Security], in [his] sole and unreviewable discretion after consultation with appropriate Federal agencies and departments, which (A) deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient’s income or resources; and (C) are necessary for the protection of life or safety. [Emphasis added.]
I presume that the term “short-term shelter” encompasses the sort of shelter included in the consent decree’s shelter mandate. Does this foreclose NYC’s use of PRWORA to neuter the consent decree? Not so fast. Even as to short-term shelter, PRWORA provides that the secretary of Homeland Security has sole and unreviewable discretion as to whether to consider it an excluded benefit. Maybe no secretary has ever made shelter an excluded benefit, or maybe one of President Trump’s secretaries or acting secretaries delisted it?
No such luck. In the waning days of the Clinton administration, Attorney General Janet Reno (this was before the creation of DHS) issued a “Final Specification of Community Programs Necessary for the Protection of Life or Safety Under the Welfare Reform Act”, which still governs today. Attorney General Reno indeed excluded “[s]hort-term shelter or housing assistance for the homeless, for victims of domestic violence, or for runaway, abused, or abandoned children” from the state or local public benefits eligibility bar. However, and as required by PRWORA, she could only exclude these benefits from the bar to the extent that they:
deliver in-kind (non-cash) services at the community level, including through public or private non-profit agencies or organizations; do not condition the provision, amount, or cost of the assistance on the individual recipient’s income or resources … and serve purposes … for the protection of life or safety [which Attorney General Reno defined shelter and housing assistance as doing].
As Attorney General Reno emphasized, “While many shelter and housing programs are important to the protection of life or safety, each program must meet the requirements of the three-pronged test in order to be exempt under the Order.” Does the shelter that the consent decree requires NYC to provide meet the requirements of the three-pronged test or would its provision to ineligible aliens violate PRWORA?
Remember that the consent decree requires NYC to provide shelter and board to each persons who “meets the need standard to qualify for the home relief program established in New York State; or by reason to [sic] physical, mental or social dysfunction is in need of temporary shelter”.
While I have no idea what is (or was in 1981) “the need standard to qualify for the home relief program established in New York State”, I presume it likely “condition[s] the provision, amount, or cost of the assistance on the individual recipient’s income or resources”. Otherwise, it wouldn’t really be a “need standard”. Assuming this to be true, NYC would be in violation of PRWORA by providing shelter pursuant to the consent decree on this basis to ineligible aliens.
But what about the shelter mandated by the consent decree for each person who “by reason to physical, mental or social dysfunction is in need of temporary shelter”? Presumably these terms refer to individuals in need of shelter because of their own dysfunction, and thus the vast majority of Biden’s migrants would not qualify for shelter on this basis under the consent decree. I note that a recent article in the journal Progress in Neuro-Psychopharmacology and Biological Psychiatry explains that “social dysfunction” is “a common symptom of several neuropsychiatric disorders” involving “impairments in social cognition (i.e., the ensemble of mental operations that underlie social interactions …), but also by socio-demographic … and psychological … factors and by basic domain deficits, such as neurocognitive impairments”. Assuming this to be true, NYC would also be in violation of PRWORA by providing shelter pursuant to the consent decree on this basis to ineligible aliens.
It is very likely that the shelter mandated by the consent decree cannot be excluded from the state or local public benefits eligibility bar in Attorney General Reno’s “Final Specification”. Therefore, it seems that pothole No. 2 has been filled, and does not present a bump in the road for New York City in escaping from the consent decree.
Conclusion
I should note that New York State Gov. Hochul has sought a billion dollars in funding for her war against potholes in New York State in a strategy she describes as “tak[ing] us from potholes to not holes”. I know where Gov. Hochul can find the money! The Washington Post reports that she “expects to ask [state] lawmakers … to provide another $1 billion to help the city, on top of the $1 billion already allocated” for the migrant crisis. Gov. Hochul, don’t ask — just tell Mayor Adams to cry PRWORA!
End Notes
1 The Arizona Supreme Court in State ex rel. Brnovich v. Maricopa Cty. Cmty. Coll. Dist. Bd. and the Nebraska Supreme Court in E.M. v. Neb. HHS have both ruled that, as the Nebraska court put it, “[f]or the purposes of state or local public benefits eligibility … ‘lawfully present’ means” those aliens specified in PRWORA as eligible for state or local public benefits (i.e., qualified aliens, nonimmigrants, and short-term parolees).
2 Ben Smith and John Harris noted in Politico that triangulation “does indeed sound like something that in some conservative locales might still be against the law, even if rarely prosecuted when practiced by consenting adults”. But as President Obama’s White House Communications Director Dan Pfeiffer explained, it is actually the “political strategy to win favor with swing voters by pushing off the left”.
