Governing New York State Through Crises

New York’s Migration Crisis

Laurie Buonanno and Lisa Parshall (July 11, 2024)

Contemporary intergovernmental conflicts surrounding immigration echo the highly contested nature of immigration policy during the nineteenth century. While immigration was originally a state rather than federal responsibility, by the late 19th century, those states (particularly New York) struggling to vet, house, and feed those unable to support themselves, sought federal assistance. Federal oversight of immigration began in 1891, when Congress created the first Office of Immigration in the Treasury Department.  This policy shift from state to federal control is a classic example of the centralizing tendencies of federal systems during crises. Yet, immigration—and the patterns of irregular migration, economic migration, and refugees or asylum seekers—has never affected all states equally. A handful of states are at the forefront of immigration policy, sometimes in cooperation but more often in conflict with federal policy directions. Focusing on recent migration crises in New York City and State, this paper examines the changing patterns of New York’s relationship with the federal government, as driven by (and having implications for) state and national electoral politics. The paper will examine how state and municipal governments navigate migration challenges given the shifting dynamics of federalism. We further explore how states and municipalities may develop innovative intergovernmental policy solutions which can then serve as the basis for federal policy innovation and diffusion. New York’s contemporary migration crisis offers a sharp example of both the enduring aspects and changing contours of federalism, highlighting the push-pull between national, state, and local governments in an important, contemporary policy debate.

Introduction

New York City has served as an entry point and destination for the great waves of immigration. At the height of the influx in the 1850s-1890s, more than eight million people entered the United States through Castle Garden even before the federal government built the iconic Ellis Island immigrant processing center. Today the greater metropolitan area is home to over twenty million people. According to the 2022 Census estimates, 36.3 percent of the city’s 8.3 million residents are foreign born.[1] Unauthorized or irregular migration is also a long-recognized feature of New York City, where, for example, Queens County ranks 6th in the US for the number of unauthorized immigrants (Migration Policy Institute, 2023  2015-19 estimates). Yet, beginning in 2022, an influx of a new wave of asylum seekers from Central and South America—some of whom were redirected to the city by the governors of border-states like Texas and Florida–began to overwhelm New York City’s already overburdened shelter system and housing market.  Mayor Eric Adams warned that the increase in migrants to NYC alone would cost New Yorkers $12 billion by mid-2025 and “will destroy” the city (Chishti et al., 2023). On October 7, 2022, Mayor Eric Adams issued Emergency Executive Order No. 224–declared a state of emergency “based on the arrival of thousands of individuals and families seeking asylum.”[2] This paper addresses this contemporary migrant crisis that, as one observer noted is “actually several crises in one: a humanitarian crisis, as people from around the world flee instability and poverty and make their way to New York; a housing crisis, as a city that is required to find shelter for migrants struggles to do so; and a political crisis for the mayor, whose handling of the situation has come under increasing scrutiny from fellow Democrats and from conservatives alike” (Cineas, 2023).   New York City has had its share of migration crises throughout its history, and this certainly qualifies as one of them.

But irregular migration and asylum seeking is a crisis of sorts for Upstate New York as well and could arguable be classified as a “creeping crisis.”  Several factors – the relatively porous northern border with innumerable opportunities to cross illegally (rather than at official points of entry), the “depleted workforce” on the northern border to cope with the immigrant wave on the southern border, the increased difficulty in crossing the southern border, and since 2016 Canada has permitted Mexicans to fly there with less stringent visa requirements (Ramos, 2024; Zremski, 2024)—account for the increase.  The US pressured Canada to revise its visa requirements with Mexico, which it did in February 2024. As the European Union has learned since its migration crisis of 2015-16, when attempts are made to seal one border (the Aegean Sea between Greece and Turkey), smugglers simply divert irregular migration to another border.  While it seems like a “trickle” of irregular migrations and asylum seekers circumventing official ports of entry, there has been an uptick. The U.S. Custom and Border Protection reported 16,750 (FY 2023) compared to 1,250 in FY 2021 (Zremski, 2024).   A Times Union investigation reported on a human smuggling network that is (primarily) smuggling Mexicans into the US to the tune of “thousands or even tens of thousands of dollars for each group they shuttle across the border” (Hippensteel, 2023).

            While the northern border bears watching, the more immediate crisis is the conflict between states and the federal government over migration policy– and particularly border control – re-emerge every few years, disagreements have often been dismissed as partisan one-upmanship.  Indeed, municipalities and states have often passed legislation aimed at irregular migrants only for these laws to be challenged by the federal government under the Constitution’s supremacy clause. SB 1070 represented the “vanguard” of attempts by states to “test the legal limits of greater state involvement in immigration enforcement” when Arizona enacted a number of provisions designed to 1) legitimize the ability of Arizona authorities to directly enforce federal immigration law, and 2) criminalize conduct of anyone who facilitates “the presence of unauthorized aliens” in Arizona (Manuel and Garcia, p. 2).  The US Department of Justice filed a motion in federal district court to enjoin four of the SB 1070’s provisions. Arizona persisted and asked the US Supreme Court to grant certiorari.  Several states filed amici curiae.[3]  The landmark decision in  Arizona v. United States (2012), SCOTUS (5-3) struck down all but the SB 1070 provision allowing state police to investigate an individual’s immigrant status during a stop or detention, with Justice Anthony Kennedy’s majority opinion (joined by Chief Justice Roberts and Justices Bryer, Ginsburg, and Sotomayer – Justice Elena Kagan had recused herself due to previous involvement with the case as President Obama’s Solicitor General),[4] writing that the federal government has “broad, undoubted power over the subject of immigration and the status of aliens” and this power is “well-settled.”    
             Texas is now the epicenter of border control brinkmanship since Governor Abbott SB 4 in December 2023 and was to take effect on March 5, 2024, which proposed to do what the majority of SCOTUS justices in Arizona v. the US opined a state cannot do:  allow local law enforcement agencies to arrest people suspected of being irregular migrants and authorize judges to order deportation to ports of entry along the Texan-Mexican border, regardless of country of origin (Sullivan, 2024). The US DOJ filed a lawsuit against SB 4, a federal district in Austin issued a preliminary injunction, which set off a flurry of filings and counter filings with the Fifth Circuit Court of Appeals passing the hot potato to SCOTUS, which allowed SB 4 to go into effect, within hours the 5th Circuit issued a stay while litigation continued.  A decision is expected in the summer of 2024. 
            The making of migration policy, while today manifested in tensions between red and blue states, has always been intertwined with partisan politics.  As Daniel Tichenor (2022, p. 44) has argued, Congress has only been able to agree to a major migration policy when various factions within the political parties have been able to achieve compromise.  Republicans harbor both free-market expansionists who favor restricted migrant rights but advocate for increased migration (the William Howard Tafts and Ronald Reagans) and classic exclusionists who advocate for restricting migrant rights and admission (the Henry Cabot Lodges and Pat Buchanans).  Democrats must reconcile the cosmopolitans who argued for expanded migrant admissions and expansive migrant rights (the Alexandria Ocasio Cortezs) and the Nationalist Egalitarians who have sought to restrict migrant admission while at the same time protecting the rights of migrants (the Barbara Jordans).  Nor are intergovernmental disputes new.  In fact, missing in most contemporary discussions of migrant and border control policy is an historical grounding in the federal assumption of a policy that until 1882 had been in the hands of the states. The contemporary crisis being experienced in NYC is not the first time nor is it even the most severe crisis New York has endured over migration.  Indeed, for the first one hundred years of the American republic, immigration was a state rather than a federal responsibility. 
            New York is the ideal state to explore several questions about contemporary migration policy.  To what extent are states and localities permitted to promulgate and enforce their own immigration policies? As “laboratories of innovation” should the states be given more latitude in immigration policy?  What might be the benefits of enhanced state authority? Should states be permitted to refuse to resettle refugees? Or should this decision remain firmly in the hands of the US State Department and their NGO partners? Are local and state authorities required to cooperate with the Department of Homeland Security’s immigration enforcement agencies?  How do local and state attitudes about immigration, in general, and undocumented individuals, in particular, shape cooperation between the federal government and local and state authorities? If state and local authorities refuse to cooperate with these enforcement agencies, what are the options for the federal government?  Finally, are there fruitful avenues for intergovernmental cooperation that could be mutually beneficial for NYS, local government, and the federal government?
            To answer these questions, we begin with an historical account of New York’s experiences with migration crises. The second section examines the contemporary migration crisis in New York.  The third section explores ways in which the federal government and New York State could establish new and more mutually beneficial cooperative policies around irregular migration.

New York First Migration Crisis

A perennial problem in US migration policy. has been that immigration has never affected all states equally.  While some states, particularly in the South, sought more immigration in the late 19th and early 20th century to counter labor shortages brought about by the Great Migration, comparatively few immigrants were interested in living in the South. Therefore, despite efforts of some states to federalize immigration, southern congressmen vehemently opposed federal control, partly from jealousy over the rapid industrialization of the North being fueled by cheap labor from Eastern and Southern Europe and former slaves and their children in the Great Migration and partly because they bridled at federal monies being spent on what they perceived as exclusively benefitting the North at the expense of the South. New York State was bearing the brunt of unregulated immigration and a lack of federal help because it was the major immigrant receiving port. New York, as the other ports receiving immigrants, attempted to regulate the landing of paupers, felons, and people with contagious diseases.
            Naturally states had attempted to control immigration years before immigration policy was federalized.  Indeed, the American colonies (unsuccessfully) attempted to stop the practice of Great Britain dumping felons and paupers in America.[5]  Prohibitions against permitting convicts entry to the states were already established from the earliest years of American independence when states enacted statutes forbidding the transportation of felons from foreign countries doing so with encouragement from the Confederation Congress (Neuman, 1993, p. 1842).[6]  Accordingly, in 1833 New York passed  a law forbidding the landing of convicts (Neuman, 1993, p. 1843). 
            Another early concern was that of poverty and disability (Neuman, 1993, p. 1846) European “pauperism” gave rise to the earliest “public charge” laws.  Provisions for dealing with immigrants who were public charges were typically contained in the poor laws.  In 1788, the New York Legislature passed a poor law that included a provision that ship masters submit a report to the NYC mayor “the names and occupation of every person” brought into the port and if they failed to report anyone, the master of the ship would be fined 20 pounds for “every person so neglected to be reported.”[7] The law further stated that anyone harboring an unreported person would need to pay five pounds. Meanwhile, the master or ship company was required to “enter into a bond with sufficient surety that the passenger would not become a charge” and required the vessel to send the person back “to the place from whence he or she came” who the mayor or his representative determined is likely to be a public charge (Neuman, 1993, p. 1854). New York’s focus changed from requiring a pauper be returned (which was very difficult to enforce) to requiring the vessel’s agents to bond emigrants who were likely to become charges before they landed (1797 statute), but by 1799 New York began demanding bonding for all foreign passengers “to indemnify the city against risk that the passenger would become chargeable within two years” (Neuman, 1993, p. 1854).   But the catalyst for public charge sections in the State’s poor laws arose over reports of “pauper dumping” by towns and parishes in England who paid the passage for paupers to travel to the U.S.  New York City’s mayor and other public officials appealed to the U.S. president to impress upon foreign consulates that the dumping of Europe’s criminals and paupers would not be tolerated.  In the absence of federal action, New York attempted to protect itself from this cost shifting with passage of “An Act concerning Passengers in Vessels Coming to the Port of New York” (aka “The New York Passenger Act of 1824”) to require additional details about the persons being landed and to apply stiffer penalties for non-reporting (Abbott, 1925).[8]  A shipmaster, when fined for not making the required report, challenged New York’s law as unconstitutional on the grounds that New York was attempting to regulate foreign commerce. Although NY’s Circuit Court (southern district) agreed with the shipmaster, in New York v. Miln, 36 U.S. 102 (1837) the Supreme Court sided with New York, reasoning that people were not goods, and therefore could not be considered commerce.   New York was acting properly under its police powers .[9]   As immigration through the Port of New York increased exponentially (from 11,501 in 1829 to 114,000 in 1846), New York struggled to control the costs of immigration enforcement and clearance.[10]  To cover some of the costs of the new immigration control and support system, in 1847 New York began to require bonds for likely charges, disabled, and sometimes single mothers, and imposed a one dollar head tax on all passengers who were not bonded (Neuman, 1993, p. 1856).[11] Significantly, in 1847 New York established the board of Commissioners of Emigration, volunteers who counted among their numbers members of emigrant aid societies serving in an ex officio capacity.  The board worked to protect immigrants–help them find shelter and work–and its members were generally favorable to immigrants and ensuring their human rights (whereas in Massachusetts the focus was on keeping immigrants to a minimum).  This head tax was also used to shift the cost of quarantine (called “lazaretto”) by levying a head tax on the passengers and crew of ships entering the port of New York to support the Marine Hospital (located on Staten Island) for quarantining ailing immigrants (Neuman, 1993, p. 1862).[12] Indeed, states enacted quarantine policies with the cooperation and encouragement of the federal government, while SCOTUS affirmed the state’s primacy of authority in matters of public health. 
            When in 1848, the Supreme Court (5-4) reversed the Miln decision by invalidating head taxes in two cases that were argued together:  Smith v. Turner (originating in New York) and Norris v. Boston the balance between federal and state control became a crucial issue, especially to states with ports, New York attempted to circumvent the SCOTUS decision with a “voluntary” head tax.[13] New York was absolutely desperate for money to run a proper immigration clearing system.   The Port of New York was teaming with boarding houses  and “private hospitals” whose primary business was to defraud immigrants (Kapp, 1870).[14]  The problem was not confined to New York City, but extended up through the Hudson River and across the State with “canal boat-runners were, if possible, still more hungry and rapacious than the boarding-house scalpers in New York” (Kapp, 1870, p. 89).  A “voluntary” head tax would now be used to fund the Commissioners of Emigration of the State of New York who would oversee and improve the system.  Now the State, in a noble attempt to end the fraud-ridden free-for-all tolerated in the past, placed public charges under the care of the Commissioners–who in New York included leaders of immigration protection societies–and empowered the Commissioners to help immigrants find work.  The Commissioners leased Castle Garden (in 1855), an abandoned fort in lower Manhattan, establishing it as the “Emigrant Landing Depot” (Kapp, 1870, p. 108).  Castle Garden modeled what a government immigration authority should do and how a clearing center should function in a nuts to bolts operation from debarkation to sending immigrants to their train or boat connections, finding employment, and ensuring their safety. But New York’s wrap-around approach cost money and the voluntary head tax was crucial to its operation as self-funding rather than being an excessive burden on New York’s taxpayers.  The budgeting mechanism for this system fell apart with the Supreme Court’s ruling in Henderson v. Mayor of New York (1875), which completed the reversal of Milne it had initiated in the Passenger Cases, by interpreting New York’s head tax and bonding requirements as interference with commerce rather than as a police power.  In writing the majority opinion, Justice Miller pointed out, “The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco…We are of opinion that this whole subject has been confided to Congress by the Constitution;  that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national;  that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been a matter of contest and complaint, may be effectually and satisfactorily settled.”
            Thus began a new phase of frustration for New York, whose taxpayers were saddled with the costs of being the major port for immigrant debarking, but without the ability to offset the administrative costs incurred by immigration landing and control, quarantine, and supporting (and protecting) indigent immigrants.  New York pleaded to the President and Congress for relief, but to no avail.  Tichenor (Tichenor, 2002, pp. 68-69) explained, “The legislatures and immigration boards of New York and other Northeastern states lobbied Congress with petitions and reports urging federal relief from the costs of administration and immigrant care…but Congress turned a deaf ear to Northeastern officials clamoring for a national response to the economic and social burdens of European immigration.” In an act of “brinkmanship,” New York’s Board of Emigration Commissioners threatened in 1881 to shut down Castle Garden and cease all regulatory activities unless federal action was forthcoming” (Tichenor, 2002, p. 69). Congress responded with the Immigration Act of 1882, which was crafted from state statutes (mainly New York’s), and established federal restrictions based on those pioneered by the states by banning admission to: “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge” (Tichenor, 2002, p. 69).   The new legislation provided funding for the states–in essence, the U.S. Treasury Department (in charge of importation of goods, so why not people!) “contracted out” the enforcement of federal immigration law to the states. The Immigration Act of 1891 established the Federal Bureau of Immigration within the Treasury Department (Migration Policy Institute, 2013). Ellis Island was built in 1892 and became the busiest immigration station in the US (Anbinder, 2016). The admission of immigrants had become a federal responsibility.

The Genesis of Contemporary Conflicts between Albany and Washington

Of course, conflicts between New York and the federal government over migration did not end with the establishment of Ellis Island.  Over the years there have been periodic flare ups. One that informs the recent stand off between Governor Abbott (Texas) and Governor DeSantis (Florida) and Illinois (Chicago), New York (New York City) and some other municipalities stem from a movement that began in the 1980s as a church-based movement to offer sanctuary for Central Americans, particularly El Salvadorans and Guatemalans fleeing civil war and the right-wing death squads that were killing anyone suspected of aiding the left-wing guerillas. While these asylum seekers were literally fleeing for their lives, the Immigration and Naturalization Service (INS) (now, the USCIS, Customs and Border Protection, and ICE) were refusing to recognize their asylum claims and deporting them back to Central America despite clear evidence they had been tortured or there was a well-founded fear they would be tortured or killed upon their return (New York Times, 2017).  In the meantime, President Reagan insisted Central Americans were economic migrants and not political refugees meriting asylum at a time when his administration was supporting right-wing military governments in El Salvador and Guatemala that were committing atrocities on their citizens.  While the 1980s asylum crisis was resolved to the extent that conditions improved in Central America and the INS began accepting asylum claims of Central Americans, sanctuaries morphed from faith based to communities at the end of the George W. Bush Administration and continued into the Obama Administration as ICE stepped up efforts to deport undocumented immigrants.  Importantly, Section 133 of the 1996 Immigration and Reform Control Act of 1996 (IIRIRA) established the 287(g) program.  Section 287(g) in effect “deputizes” local and state law officers to carry out immigration work by negotiating memorandums of agreement (MOAs) with local and state law enforcement agencies.    DHS began rapidly expanding the 287(g) program in 2006.  This proved extremely problematic for ICE because, of course, policing is a local and state function.  The federal government needs to be able to “co-opt” some of the 750,000 municipal, county, and state police (as compared to approximately 5,000 DHS “enforcement and removal officers”) if it is to be able to deport large numbers of irregular migrants. With the George W. Bush’s Administration launching of “Secure Communities,” a voluntary program established through executive action which used fingerprint data to the FBI to check immigrant status of arrestees in local police custody, ICE stepped up taking custody of irregular immigrants from local jails (surging from 75,000 in 2006 to 188,000 in 2011).  ICE’s aggressive enforcement, however, created an increasingly untenable situation in which the immigrant community distrusted and became uncooperative with local police forces. There were also numerous accusations of racial profiling and lawsuits because localities had held American citizens.   When cities, counties, and states requested changes to Secure Communities, the Bush Administration refused.  NYC was the first to drop out of the program, soon other localities and states followed so that by 2015 over 360 local jurisdictions (326 counties and 32 cities) – home to 5.9 million or 53 percent of irregular migrants – had passed laws and ordinances to “limit or bar cooperation in transferring arrestees to ICE custody” (Rosenblum, 2015).  
            The Obama Administration responded by replacing Secure Communities (ended November 24, 2014) with the Priority Enforcement Program (PEP) (rolled out July 215), which directed ICE to focus on “targeting individuals convicted of significant criminal offenses or who otherwise pose a threat to public safety” (U.S. Customs and Immigration Enforcement, nd, archived page).  Furthermore, the Obama Administration began to “scale back” the 287 (g) program. Donald Trump revived the Secure Communities program (EO January 25, 2017) and discontinued PEP. During the Trump administration DHS expanded 287(g) MOAs, especially on the southern border and began targeting sanctuary cities, especially NYC and Los Angeles, threatening to withhold funds for infrastructure projects and for various programs.  
            New York has faced other seemingly partisan based conflict over state power to issue drivers’ licenses and their use as identification when the New York State Legislature passed the Driver’s License Access and Privacy Act (Green Light Law) in 2019 permitting any New Yorker who passed the required tests to obtain a driver’s license regardless of “citizenship or lawful status in the United States.”  The Trump Administration retaliated by suspending New Yorkers from “certain Trusted Traveler Programs like Global Entry” (US DHS, 2020) because the legislation forbade the NYS Department of Motor Vehicles (DMV) from sharing records with the federal government because NYS feared the Trump Administration’s DHS would use the DMV database to target undocumented migrants living in NYS (Fink, 2020). Inevitably, NYS lost when in August 2020 the NYS legislature amended the Green Light Law to allow the DMV to share records “as necessary for an individual seeking acceptance into a trusted traveler program, or to facilitate vehicle imports and/or exports.”
            As we can see, many of these conflicts are as much partisan as they are intergovernmental and interregional, a pattern that repeated itself in the creeping crisis of 2022 that became a full-blown crisis by 2023. Politicians in red states tick off a long list of grievances–sanctuary communities, drivers’ licenses for unauthorized migrants, failure to participate in 287 (g) programs, and not requiring employers to use E-Verify (although Texas does not require E-Verify for private employers and the legislature has consistently failed to pass such legislation).[15]   Without evidence, they argue that these practices lure migrants across the southern border, but leave the states on the border with the costs of dealing with homeless, hungry, and in their scenario, criminal migrants.

The New York City Crisis

The contemporary recent crisis began in April 2022 when the Republican governor of Texas began sending busses and planes with immigrants from the Southern border northward in a media-generating protest against the Biden Administration’s federal immigration policy and a not so subtle attack on NYC’s friendly attitude toward irregular migration.  Abott and other Republicans have long argued that sanctuary communities act as magnet, drawing irregular migrants across the southern border. In an executive order to the Texas Division of Emergency Management, Governor Greg Abott directed that migrant who “have been processed and released by the federal government into Texas communities” be given transportation at the state expense.[16] The destinations targeted Washington DC, New York City, Philadelphia, Chicago, Denver, and Los Angeles in an effort to antagonize Democratic officials. The excuse of “sanctuary cities” was in itself disingenuous because in the first place no one is quite sure what a sanctuary jurisdiction is other than a community that has pledged it will not cooperate with federal immigration agent detainers (county and state level) and in cities where local officials will not ask a person’s immigration status (Lee & Preston, 2017). Indeed, there are at least five states that limit local police cooperation with federal immigration agents (New York State is not one of them), at least 630 counties with non-cooperation policies, and it is anyone’s guess which cities do not cooperate, whether they have used the term “sanctuary” or not (Lee & Preston, 2017).For example, Buffalo, New York has not declared itself a sanctuary city nor has Erie County, but neither will ask immigration status for the reason many jurisdictions do not–they worry it will make irregular migrants go underground and thereby make them vulnerable to be victimized by criminals and also less likely to report crimes.  Therefore, selecting these “high profile” cities can rightly be decried as a political stunt–one with particularly cruel consequences for the many of those persons transported who were asylum seekers, legally processed and awaiting their immigration hearing dates, duped into “voluntarily” agreeing to the transport under false promises of awaiting shelter and jobs. Texas had not coordinated their arrival with the destination cities, taking political “glee” in the additional burden inflicted as those cities scrambled to process and shelter the new arrivals (Neukam, 2022).  Republican governors in southern border states have consistently blamed Democrats–whether at the local, state, or federal level–for irregular crossings. At the local level, municipalities and counties are blamed for “pulling” irregular migrants across the southern border by declaring themselves sanctuary communities (not that many) or (the majority) quietly refused to cooperate with the U.S. Immigration and Customs Enforcement (ICE) in the enforcement of federal immigration laws.   At the federal level, Governor Abbot was embroiled in a conflict with Biden’s DHS over the State’s installation of a concertina-wire barrier and buoys in the Rio Grande while he was bussing asylum seekers to New York City.  In January 2024, the U.S. Supreme Court issued a 5-4 ruling permitted federal officials to cut or remove parts of the concertina wire barrier, overruling an injunction placed on its removal by the (conservative) U.S. Court of Appeals for the Fifth Circuit (Liptak, 2024).[17]
            But in an important illustration of all politics is NOT local, Texan Republicans, led by their three-term governor (as of 2024) were lashing out against the Biden Administration, which Republicans (rightly) see as an (if not, the) Achilles heel in a rematch between Joe Biden and Donald Trump in 2024.  Make America Great Again (MAGA) mobilized the Republican Party’s white working class and rural (fly over counties) base to move the ever-present nativist undercurrent on the American political right (present since the Alien & Sedition Acts promulgated by the Federalist Party) back to the surface. Along with “Lock her Up” (taking aim at Hillary Clinton, Trump’s opponent in the presidential contest), “Build the Wall” reverberated in stadiums and arenas at Trump during his successful 2016 presidential campaign (Davis & Shear, 2019).  Since the 2016 presidential contest, Republicans have proudly captured the “tough on border control” policy space in the minds of the American electorate, even if Democratic Party presidents have built more walls and fences along the Southern border than have Republicans (citation needed).  As one headline read, “G.O.P. Gets the Democratic Border Crisis it Wanted” (Weisman, 2023).  Arguably, migration has become the most highly contested issue between red and blue states since civil rights of the 1950s and the Great Society programs of the 1960s replete with echoes of the “reverse freedom riders” who boarded NYC-bound buses in the 1960s, the organizers having lied to them that jobs awaited them when they stepped off the buses in New York City.  New York, one of the “Big Three” Democratic states (see Chapters 2 & 3) and NYC, the cultural and financial center of the nation, are the city and state Republican governors love to hate. New York Mayor Eric Adams rose to the challenge, taking efforts to greet the arrivals and pledging that the City and the State would do all it could to ensure a “smooth” transition, including plans to enroll migrant students in city schools. Announcing “Project Open Arms,” Adams promised that New York intended to “provide these families with the dignity that the Texas governor failed to do (Brown & Bamberger, 2024).[18]

In an op-ed in the New York Post, Abbott taunted the Mayor in return. “Adams talked the talk about being a sanctuary city—welcoming illegal immigrants into the Big Apple with warm hospitality,” he wrote. But “talk is cheap” (Abbott, 2022). The Adams administration fired back at Abbott’s claim of New York’s pretend sanctimony, suggesting that the Governor invest in a dictionary because true “hypocrisy’ is claiming you love America and then decrying the words on the Statue of Liberty” (Hogan et al., 2022). The public feuding between the Governor and Mayor put New York City even more squarely at the forefront of Abbott’s plan to discredit Democrats on the national stage. The buses continued arriving.

In addition to Texas’s effort targeting NYC, the fact is the City is a natural draw for many of the would-be asylum seekers. New York’s multicultural population has always made the city a magnet for newcomers and officials there not only provided a more favorable reception to their arrival.  Significantly–and a pattern we see echoed in other federal systems (such as the EU), where one seeks asylum matters.  So, despite uniform asylum policy in both the EU and the US, it is much easier to win asylum in Germany than Greece and in New York than Texas.  Specifically, the federal immigration courts located in New York have a much higher rate of granting approval than in Texas, and asylum seekers have an easier time finding legal assistance, especially from the many nonprofit legal assistance societies.
            Figure 14.1, for example, shows the percentage of cases granted asylum for the cities of New York and Houston between fiscal years 2001 and 2024. Over the timespan, New York City immigration judges granted asylum in 69.6 percent of the cases relative to Houston judges granted asylum in only 12.2 percent of the cases. The difference in representation matters greatly to the outcome. In New York 90.9 percent of all asylum cases (all years total) were provided representation; in Houston the number was 78.3 percent. However, 16.4 percent of asylum seekers without representation in Houston were granted asylum (relative to only 8.2 percent in New York) suggesting perhaps that immigration judges there made more allowance for the lack of formal legal representation in the hearings.

Figure 14.1 New York City vs. Houston:  Percent of Asylum Granted Cases (FYs 2001-2004)

Data source: Transactional Records Access Clearinghouse, Syracuse University, https://trac.syr.edu/.

By the end of December 2023, over 150,000 migrants had arrived in NYC since the spring of 2022, placing a severe strain on its capacity to process, house, and assimilate the influx. New York City is the only municipality in the nation that has a “right to shelter” policy. The policy, instituted as a legal settlement in 1981 and subsequently expanded to include a wide category of individuals, including families and immigrants, obligates the city to provide shelter to all homeless persons upon request. Migrants coming across the Southern border, particularly those with children, were encouraged to make their way to New York City both by Texas officials anxious to shift responsibility and New York officials who took a welcoming stance in defiance of Abbott’s strategy. But as one migration scholar noted, “in the early stages, we should probably not have actively encouraged shelter. News of the welcome mat certainly spread among immigrant circles….” (quoted in Cineas, 2023). The spate of new arrivals, including the influx of asylum seekers who had fled due to economic hardship, quickly overwhelmed New York’s already overburdened shelter system. In 2023, New York City’s homeless rates reached their highest since the Great Depression (Coalition for the Homeless, 2023). The number of people entering the shelter system swelled to over 100,000 by June 2023.[19] Complicating matters were federal policies that prohibited asylum seekers from obtaining Employment Authorization Document (EAD) for six months, delaying their ability to gain the financial independence necessary to forgo welfare and housing assistance.  This situation was somewhat alleviated when President Biden extended TPS status to Venezuelans, enabling them to apply for work permits immediately.  Nevertheless, with fierce local resistance to the expansion, conversion and construction, “shelters remain[ed] inequitably distributed, disproportionately concentrated in the city’s lowest-income communities” that were hardest pressed to accommodate the added pressures (Smith & Bhat, 2022). For a city still in recovery from the economic fallout of the pandemic, the situation quickly turned into a full-blown crisis and New York’s mayor began sounding the alarm.

New York City’s Response

Within weeks of the first buses arriving, New York City officials recognized that the existing shelter system was not adequate to the challenge. Adams announced the opening of new Humanitarian Emergency Response and Relief Centers to handle the needs of the many asylum seekers, explaining that this was not a “an everyday homelessness crisis, but a humanitarian crisis that requires a different approach.”[20] By February, 2023 (six months into the crisis), New York had opened its seventh such emergency center, one specifically to accommodate the number of asylum seekers with families.[21] On the basis of the unique situation, his administration began to publicly question the city’s obligations under the right to shelter policy as it applied to the new migrant arrivals. To handle the demand, Adams announced a new strategy: the city would resettle immigrants to municipalities around the state. The targets would be “pre-vetted” as welcoming, but Adams warned reporters not to “ask me which cities” out of fear of them “running to the cities and stopping us from getting asylum-seekers there,” adding, “so, we’re not telling you” (Coltin, 2023c).
            Adams requested federal emergency assistance through FEMA seeking reimbursement of some of the estimated $4.3 billion cost. Escalating his criticism of the Biden Administration, called for easing of the waiting period restricting work: “These are real numbers. This is what it costs to do this. So what we’re saying to the White House, the Biden-Harris team, if you would allow people to work, it would take some of the pressure off of the city of New York and other cities” (Coltin, 2023a).[22] When federal funding came, it was for $30 million—Adams had asked for $350 million (Anuta, 2023). The migrant crisis was not referenced in Hochul’s 2023 state-of-the-state address, but her executive budget sought $1billion in state assistance that was approved by state legislators.

After pushback against plans for sheltering migrants in converted public school settings, Adams issued an emergency order dispensing with the city rule that individuals (and families) must be in a shelter ninety-days prior to becoming eligible for city-funded housing vouchers, moving them more quickly out of shelters and into permanent housing. In August, he ramped up pressure on the state and federal governments to assist the city in meeting its legal obligation to provide shelter for the new arrivals. In addition to more budgeting assistance for the now staggering estimated costs of $12 billion, Adams requested Albany to force other New York localities to provide shelter and long-term housing solutions (Jeffry C. 2023 Mays, 2023). When more than thirty counties enacted emergency measures refusing to house migrants, Adams filed a legal suit and called on the governor to use her emergency powers to override county authority. Counter suits from neighboring Rockland and Orange counties were rejected by a federal judge, prompting county executives to rely on emergency executive orders, citing their own housing crises and concerns over potential rise in crime (Reisman, 2023). 

Mayor Adams has also introduced legal action seeking to modify the right to shelter obligations, portraying the severity of the crisis as unprecedented for the city and asking for an exemption when the city “lacks the resources and capacity to establish and maintain sufficient shelter sites, staffing, and security to provide safe and appropriate shelter” (Jeffrey C. Mays, 2023)(Mays 2023). Adams suspended some of the regulations to allow sheltering of families in group-setting accommodations without the imposition of a nightly deadline (Fitzsimmons & Newman, 2023).

In November 2023, Adams announced significant cuts to the city’s budget, maintaining that “no city should be left to handle a national humanitarian crisis largely on its own, and without the significant and timely support we need from Washington, D.C., today’s budget will be only the beginning”(Fitzsimmons, 2023). At a town hall in Brooklyn Adams advised New Yorkers: “The problem is D.C. has abandoned us and they need to be paying their costs to this national problem…We need to mobilize together to tell the U.S. government…New York should not be going through this. And I tell people all the time… ‘don’t yell at me, yell at D.C. We deserve better as a City’” (Beeferman, 2023). Adams accompanied his lamentations with a nonspecific call for New Yorkers to engage in public protest. By December, Adams had made no less than ten trips to the capitol to express his frustration, before coming to the “cold reality that help is not on the way in the immediate future…. it is clear that for the time being, this crisis is going to be carried by the cities” (Coltin, 2023b). A few days later, he announced across the board cuts in the city budget, including the funding of migrant services, laying blame on the migrant costs as the federal government “defunding” New York (Mena, 2023). On the budget cuts, Adams declared it a “disaster” and the “most painful exercise I’ve ever done” (Fitzsimmons, 2023).  Critics accused Adams of deliberately pitting the cost of migrants against other city services, fearful that his escalating rhetoric would fuel backlash against the vulnerable community. But as a problem for which he “could not see an ending to,” Adams warned that the “This issue will destroy New York City” (Fitzsimmons, 2023).

By year’s end and following the example of Chicago, Adams issued an emergency order prohibiting buses from dropping off migrant arrivals without at least 32 hours’ notice or outside of a limited, daytime window (Emergency Executive Order No. 538, December 27, 2023). The move aligned Adams with other big city mayors but further strained an already shattered relationship with the Biden Administration. Governor Abbott and busing contractors circumvented the order by dropping passengers off at locations in New Jersey (Ngo et al., 2024). Adams, in turn, recommended more municipal executives enact similar orders barring busing. At least one New Jersey official chartered buses to return the migrants to the Southwest—creating a spiraling crisis with the migrants in the middle of political theater. Adams threatened legal retaliation, chastising the Texas governor for deliberately “disrupting municipalities” (quoted in Donaldson 2024). New Jersey’s governor noted that without coordination between municipalities, trying to manage the crisis of processing arrivals and seeing to their needs was a federalism nightmare, likening it to holding back a tide wherein “if we plug only one hole in the dike another hole would crop up in another municipality” (quoted in Ngo et al., 2024).

             In December, citing implementation and reporting problems with subcontractors, City Comptroller, Brad Lander revoked the mayor’s emergency power to contract for migrant services without prior authorization—an action which Adams protested as impairing the necessity of flexibility to respond to the evolving needs. By January, Mayor Adams backed away from some of the budgetary cuts to police, sanitation, and education, citing improved tax revenues and lower-than-anticipated costs for migrants. Some critics saw the shift as evidence of political posturing: “The mayor’s gambit was that the White House would so freak out at the prospect of New York, the nation’s biggest and highest-profile city, descending into (more) lawlessness and litter over the election year that it would pony up unlimited billions for our no-bid migrant-contract spending, no questions asked” (Gelinus, 2024). In “conjuring the crisis,” then backing away with a sunnier than anticipated budget proposal for 2024, Adams was accused of creating a voter “whiplash” with “fiscal experts say the sudden shift was a direct result of a series of decisions the administration took — at least one of which was unprecedented — that first made the fiscal situation appear worse in November and then better in January” (David, 2024). Other actions by his administration suggest the mayor’s fatigue in managing the crisis. January 2024 began the first eviction of asylum seekers under Adams 60-day rule (instituted first for adults, then expanded to families). He also instituted curfews around migrant centers that imposed strict check in and check out times as a response to complaints by shelter-adjacent residents of migrant panhandling. Adams defended these measures by explaining, “we lived up to what is expected of New Yorkers: Being humane and stabilizing children and families,” He offered that “if we could just close the front door, we could get through this, but we can’t close the front door” (quoted in Yi & Sundaram, 2024)(quoted in Yi and Sundaram 2024).  But immigration advocates complained that the purpose of the new regulations “is to make conditions unbearable, compelling migrants to leave the shelter system or the city altogether” (Yi & Sundaram, 2024).The disruption of eviction and reapplication rules on the education of migrant children who would be forced to move and relocate schools was viewed as particularly traumatic. The optics of evicting migrant families in the midst of a winter storm heightened pressure on city and state officials to expedite the Migrant Relocation Assistance Program–a program to assist migrant families in finding housing in upstate communities (Donaldson, 2024).  By January of 2024, only about 100 families resettled to upstate communities.

Adams’ handling of the migrant crisis contributed to his low approval ratings—ratings that by December 2023, were the lowest recorded since Quinnipiac began tracking mayoral approval (Quinnipiac University Poll, 2203). Among the issues of highest disapproval were the mayor’s handling of homelessness (72 percent disapproval) the migrant crisis, the city budget (66 percent disapproval on both items) and crime (60 percent disapproval rating) Quinnipiac University Poll 2023). As the single most urgent issue facing the state, 25 percent of respondents ranked affordable housing, 25 percent crime, 16 percent immigration, and 12 percent homelessness. Perceived difficulty in his managing the various crises had made him vulnerable to political challenges, including primary challenges by former governor, Andrew Cuomo (who had been testing the waters), Scott Stringer (former city comptroller and 2021 mayoral candidate).  

The Intergovernmental Blame Game and Political Ramifications

As with many crises, New York City’s migrant crisis triggered a cascade of intergovernmental blame and finger pointing. While the relationship between Governor Hochul and Mayor Adams has been far more harmonious than past rivalries between these two powerful positions, disagreement on the issue has created something of a wedge. Governor Hochul, responding to opposing pressures of upstate interests, pointed to the increased assistance already provided in the state budget. Perhaps having learned from her housing plan rollout) expressed an unwillingness to force other localities to take on the burden. In the state’s view, the “right to shelter” is an obligation imposed primarily upon the city per the consent decree. Hochul, in turn, went to the federal government, publicly appealing to the Biden Administration for federal financial assistance, the reimbursement for state national guard costs, the expedition of work permits for migrants (something that would require federal legislation), and the use of federal facilities for their sheltering. In a state address she maintained that the “crisis originated with the federal government, and it must be resolved by the federal government.”
            The Biden Administration initially refused to sign off on the use of the Floyd Bennett Airfield in Brooklyn as an emergency shelter before reversing course. Although initiated at the request of the Governor, not all Democrats were supportive, particularly those representing the district who were unhappy that a “national” issue had become a “local issue” (Calder & Sedacca, 2023). The initial federal response was to reinforce the resources already made available and to offer a list of recommendations that would “equip the city to take additional steps to improve the migrant operations and maximize the value of our continued partnership….” (Secretary of Homeland Security, Alejandro Mayorkas (quoted in Cordero, 2023).

            Adam’s decrying of federal abandonment received support from an unlikely source. In a 2023 editorial, former governor Andrew Cuomo wrote: “It is an absurd development that cities across the country are being made to shoulder the operational burden and financial costs of managing the migrant population. There is no legal, moral or practical explanation. Congress writes the immigration laws, and the federal executive branch sets policy. It has created this crisis. To ignore the consequences is a total abrogation of Washington’s responsibility” (Cuomo, 2023). In Cuomo’s view, “cities are the economic engines for their metropolitan regions. New York City is the golden goose for New York State. Historically, Democratic federal administrations have understood this and pursued ‘urban agendas.” What happened? We are effectively abandoning cities at a time when they need real help.” He warns “as cities go, so goes the country” (Cuomo, 2023). Implicit in Cuomo’s agreement, of course, is the suggestion that should he challenge Adam’s in a mayoral race, he would be more aggressive and successful in wrangling federal support for the city.

            New York’s budget may receive another boost in state aid. Hochul’s budget proposal for FYE 2025 promises $2.4 billion from the state, to cover a variety of costs and the funding for around 3,000 beds.[23] The state, in turn, plans to continue lobbying the federal government. Hochul has made her case in Washington. Federal legislators may not be willing to approve additional aid at the same time that New York has substantial funding in its reserves (the rebuilding of which was agenda priority for Hochul) and no clear plan as to how to close the future state budget gaps that are looming. It is certain that House Republicans would not support federal assistance to cities to deal with the migrant crisis, preferring instead to leverage it in favor of border security and in opposition to a budget deal to keep the government funded. Given the state’s own fiscal pressures, the pledge “speaks to the political urgency of the crisis for Democrats who will be forced to defend their party’s handling of immigration in a presidential election year” (Ashford 2024). [LB1] Indeed, New York City’s migrant crisis is center stage in the polarized politics of the 2024 elections. As a political war between Red and Blue state leaders that has also revealed fissures within New York state politics and between New York state Democratic leaders and the Biden Administration—an election year reality guaranteed to wreak havoc for the Democratic.

The migrant issue has become politically and rhetorically fused with New York’s budgetary and housing crises. Its pressures have exacerbated fissures within the Democratic party (between federal and state, between state and city officials, and between the progressive and mainstream caucuses of the state legislature). The migrant crisis has also given election year fodder to Republicans who ramped up messaging linking migration to ongoing concerns over city and state crime rates and the perceived loss of local control.[24] Polling indicates that most New Yorkers support the right to shelter (Kim, 2024) and studies document the positive economic impact of migrants.[25] Yet, polling in advance of the special election for NY-3rd congressional district (covering most of Nassau County), shows immigration remains as a top concern for voters (Rosoff 2024). New York City’s migrant crisis has thus created political peril for elected leaders as public opinion remains largely opposed to immigration support for current state leadership is soft (Honan and Zeche 2023). These crises are playing out in advance of the 2024 congressional races—the New York outcome of which is critical to control of the U.S. House of Representatives—and thus will have national ramifications (Fandos, 2023).  Thomas Suozzi, a Nassau County congressman representing the 3rd Congressional District, demonstrated the ability of Democrats to pivot on border control and asylum issues. Republicans failed to beat Suozzi on the migrant issue in the special election for this seat.  He talked tough on border control and migrants as have Congressional Democrats (led by Senator Schumer) and President Biden—for the first time delinking border control from overall immigration reform.

Avenues for State-Federal Cooperation in Migration Policy

Most of the “cooperation” in migration matters has been driven by the federal government’s lack of enforcement capabilities.  Yet there are several avenues for more “positive” cooperation between Albany and Washington and between Albany and NYS’s regions.  This section begins with two areas in which the federal government has sought State cooperation–enforcement and employment verification–but each of these programs has been driven by Washington rather than characterized by genuine federal-state cooperation.  We consider ways in which these programs could become more cooperative, with more State involvement in their conceptualization and implementation.  We then consider ways in which new avenues of intergovernmental cooperation could develop.

New York’s Participation in Existing Programs

Expansion of the 287 (g) Programs in New York State

New York permits jurisdictions to participate in the 287 (g) program, but only one entity – the Rensselaer County Sheriff’s Office – has an MOU with DHS (the jail enforcement model) (ICE and Rensselaer, 2020).  There is no reason that New York municipalities and counties could not work more closely with developing constructive 287 (g) MOUs, especially as these are the result of congressional legislation, not executive action.  Increased New York cooperation could help shape these programs in an image that is more compatible to New York’s needs. 

Employment Verification

The 1986 Immigration Reform and Control Act (IRCA) prohibits employers from knowingly hiring, recruiting or referring undocumented immigrants for work in the United States.  The law also applies if the employer discovers an employee is undocumented after being hired. Despite passage of the IRCA, irregular migration continued and had the unintended effect of creating an industry for the manufacturing of fraudulent documents.  In addition to including employer sanctions for hiring undocumented migrants, Congress strengthened employment verification under the 1996 Illegal Immigration Reform and Individual Responsibility Act (IIRIRA) with electronic pilot programs.  In 1997, E-Verify started out as a pilot program in the five states with the highest unauthorized immigration (which included New York).  It was launched nationwide in 2004. Today, E-Verify is a USCIS-administered program that verifies employment electronically (completely internet based).  While mandatory for federal employment and some federal contracts (where an E-Verify clause is included), E-Verify is largely voluntary.[26]  However, over 20 states require employers to participate in E-Verify, although which employers must use the system varies in states.  So, for example, some states require all or must employers to use E-Verify, some require public employers or companies that contract with the state, some have local municipality E-Verify requirements.   New York’s general municipal law allows municipalities to require E-Verify.   California has banned municipalities and state agencies from requiring E-Verify use as a condition in a contract for the purposes of preserving a business license.[27]  New York can benefit from more emphasis on E-Verify and demonstrate goodwill with federal authorities.

New Avenues for Cooperation

Perhaps the most interesting ways in which states can become more involved in immigration policy are in precisely those areas the federal government has failed to develop policy.  There are three central areas for federal-state cooperation: jobs, relocation, housing, and integration.

Job Placement

New York State’s Department of Labor initiated a pilot program in 2023 attempting to match asylum seekers with jobs throughout the state.  There is also potential for executive action for expediting work permits for asylum seekers  (The Capitol Pressroom, 2023a, 2023b).

Relocation

The European Union and EU member states have worked to build matching systems that do just that – match migrants with communities and jobs where they can thrive.  This is particularly important amidst reports that asylum seekers refuse to leave New York City for fear of the unknown in other parts of New York State.(See Donaldson, 2024for interfor iinterviews with irregular migrants, particularly Venezuelans, who refuse opportunities to relocate to Upstate communities.) Governor Hochul had the executive power to require counties to accept their fair share of asylum seekers and perhaps demonstrated weakness by not challenging those counties that passed laws forbidding migration resettlement in their jurisdiction, especially as legal experts suggest such laws violate NYS’s Constitution. There could be a key-type system in which counties, based on ability to absorb (typically the major factor is population), would be expected to take in a certain number of migrants (receiving the state pledge per migrant). These would be the conditions irregular migrants would need to accept if they are to obtain housing and other support from New York’s Office of Temporary and Disability Assistance.

Affordable Housing

Affordable housing and shelter provided to irregular migrants is a hot-button issue in European cities such as Amsterdam where affordable housing is at a premium.  This situation is tied to the rise of the far right in last fall’s Dutch elections.  This situation, therefore, needs to be handled carefully. If irregular migrants do not have family and friend with whom to shelter, they should be relocated to areas with more affordable housing in New York State.  

Integration
Migrant integration is a haphazard endeavor in the United States.  In New York  it is handled by a dizzying number of nonprofit agencies.  It is likely that a permanent Office for New Americans, perhaps within OTDA, would be responsible for coordinating relocation within the State, housing, and integration services.

Conclusions

The federal government entered into the “immigration business” 100 years after the republic’s establishment.  It did so during a period of mass immigration from European countries when the challenge was to enforce entrance at (primarily) seaports.  When the federal government did assume responsibility, much of its policies were in fact those that New York had pioneered as the largest immigration receiving port in the United States.  But the new era of immigration requires more federal-state cooperation both in enforcement and in social and economic services.  Migration flows shift in unexpected ways, but there are reports of an increase in irregular crossings between Ontario and Quebec and New York State. This would not be surprising given the history of irregular migration between the adjacent Canadian provinces and New York State during periods of tight border control at legal ports of entry.
            Furthermore, the federal government established asylum and refugee policies on a different trajectory and in response to a different set of circumstances (the refugee crisis after WW2), without considering a role for the States.  As the global refugee crisis continues unabated and the land borders experience increased pressure from asylum seekers, those States with experience settling and integrating asylum seekers can be valuable partners with the federal government in revising migration policy development and implementation.  Importantly, this is no longer a policy area where States can be policy “takers” and not policy “makers.”

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[1] The total U.S. foreign-born population is 45 million out of 332 million US population (13.6%).  This is the highest percentage since the peak of 14.8% in 1890.

[2] https://www.nyc.gov/office-of-the-mayor/news/224-003/emergency-executive-order-224.

[3] Alabama, Florida, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, and Virgina jointly filed a Proposed amici curiae brief while several Latin American countries filed an amicus brief supporting the US federal government’s position.

[4] Justice Alito agreed that the SB 1070’s alien registration was prohibited, but not the other provisions in question.  Justices Scalia and Thomas dissented, writing separate opinions that they would have upheld SB 1070. 

[5] Benjamin Franklin proposed shipping rattlesnakes to England in return. (See Felons and Rattlesnakes, 9 May 1751).

[6] Confederation Congress, “Resolved.  That it be, and it is hereby recommended to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States.”  (September 16, 1788). National Historical Publications and Records Commission (1996).  The emerging nation:  A documentary history of the foreign relations under the Articles of Confederation, 1780-1789, Volume III, p. 843.

[7] An Act for the Better Settlement and Relief of the Poor,” March 7, 1788, “Law of the State of New York, 1785 to 1788, reproduced in Abbott, E (1925, p. 104). 

[8] It was also a necessary law because the first law had been passed prior to the ratification of the U.S. Constitution.

[9] SCOTUS opinion: “The law was “intended to prevent the state’s being burdened with an influx of foreigners and to prevent their becoming paupers, and who would be chargeable as such.” The end and means here used are within the competency of the states, since a portion of their powers were surrendered to the federal government.”

[10] Immigration statistics cited by the mayor of New York City, cited in Kapp, F. (1870). Immigration and the Commissioners of Emigration of the State of New York. The Nation Press. (p. 90).

[11] The bill was subject to so much lobbying from those who benefited from defrauding immigrants, it required the Lt. Governor to break a tie in the NYS Senate ibid. (p. 95).  Thurlow Weed, the great Whig/Republican pol and William Seward’s one-time campaign manager was a major force behind the bill.  He later commented, “For an effort made to reform these great wrongs, I encountered the combined hostility of the ‘scalpers’; was threatened with personal assault, and deluged with libel suits.  On one occasion, I was required to appear, on the same day, before seven magistrates in seven different and distant towns” ibid., (p. 95).

[12] The locus of quarantine control was first debated in Congress in 1796 when a Maryland congressman proposed presidential regulation of quarantine. This evoked a debate along the usual lines (Federalists supported federal control, the states’ rights defenders opposed) and went down to defeat as it did regularly until 1878 when federal officials began to assist state officials.  Not until 1893 did federal legislation authorize federal rules for international quarantines with New York “surrendering” concurrent authority in 1921 Neuman, G. L. (1993). The lost century of American immigration law (1776-1875). Columbia Law Review, 98(8), 1833-1901. https://doi.org/10.2307/1123006

 (, p. 1865).

[13] New York’s law provided for the head tax to support the marine hospital, with any remaining funds to be allocated to the Society for the Reformation of Juvenile Delinquents (a charity operating in New York City). The latter, some of the justices contended, was unrelated to immigration and thus an improper tax on passengers and crew.

[14] Frederick Knapp’s study of the situation in New York is an important historical record of the situation “on the ground” in New York prior to the assumption of federal responsibility for immigration.  

[15] New York’s general municipal law allows municipalities to require E-Verify, but does not require all or most employers to use E-Verify.  Interestingly, Texas does not mandate the use of E-Verify for all employers.  It is required only for state agencies, state contractors and subcontractors, and in “sexually oriented” businesses. Repeated attempts in the Texas legislature to require all employers to use E-Verify to confirm immigration status have repeatedly failed, including in the 2023 legislative session. See Bill Analysis, Texas Senate Research Center https://capitol.texas.gov/tlodocs/88R/analysis/html/SB01621S.htm#:~:text=Under%20current%20Texas%20law%2C%20only,qualify%20for%20certain%20public%20contracts.

[16]  See  Letter from Greg Abbott, Governor of Texas, to W. Nim Kidd, Chief of the Texas Division of Emergency Management ( Apr. 6, 2022), https://gov.texas.gov/news/post/governor-abbott-takes-aggressive-action-to-secure-the-border-as-president-biden-ends-title-42-expulsions. .  Press Release, Office of the Texas Governor , Governor Abbott Deploys More Buses To Border A mid Migrant Surge (Sept. 22, 2023), https://gov.texas.gov/news/post/governor-abbott-deploys-more-buses-to-border-a midmigrant-surge).

[17] On the reputation of the 5th Circuit, which hears cases from federal district courts in Alabama, Mississippi, and Texas, see Vladeck, S. I. (2023, November 28). Why the Fifth Circuit keeps making such outlandish decisions. The Atlantic.  https://www.theatlantic.com/politics/archive/2023/11/fifth-circuit-conservative-supreme-court/676116/.

[18] See  https://www.nyc.gov/office-of-the-mayor/news/607-22/adams-administration-project-open-arms-comprehensive-support-plan-meet-educational.

[19] Because of the complex shelter system, accurate figures of the total shelter population are difficult to obtain. The Department of Housing Services (DHS) reports on  . The Human Resources Administration (HRA) maintains figures on those escaping domestic violence, and the Department of Youth and Community Development (DYCD) reports on juvenile shelter numbers. There is also a HIV/AIDS Services Administration (HASA) that oversees and reports on medical shelter numbers. The number of Asylum seekers staying in emergency facilities that are run by the Office of Emergency Management (OEM) and the Health + Hospitals Corporation are separately reported. See Brand (2022; 2023) for a discussion of the difficulties obtaining information regarding the total numbers sheltered in New York City.

[20] https://www.nyc.gov/office-of-the-mayor/news/695-22/mayor-adams-humanitarian-emergency-response-relief-centers-further-support-asylum.

[21] https://www.nyc.gov/office-of-the-mayor/news/113-23/mayor-adams-placement-new-humanitarian-emergency-response-relief-center-to.

[22] For information and city data on the cost of supporting asylum seekers, see  https://council.nyc.gov/budget/wp-content/uploads/sites/54/2023/12/Asylum-Seekers-Report-November-2023.pdf.

[23] Hochul’s 2024 State of the State address and accompanying policy documents were, however, criticized for failing to address the outmigration and New York City migrant crisis. An effort to be “suburb friendly.”

[24] The perception of rising levels of crime in the city and state was stoked in the aftermath of the Democrats having revoked cashless bail upon regaining control of the state senate in 2019. Against the objections of the state black and progressive caucuses, Hochul employed the budget process to force rollbacks of bail reform for more categories of offenses. Her stance recognized public concerns, particularly of suburban voters, whose critical support she needed for her reelection in 2022. The commission of violent crimes by a small number of migrants in New York City and Erie County in the summer of 2023 only fueled existing public antipathy and anti-immigration views, heightening pushback from local officials, including some Democrats.

[25] For one such study see,  https://immresearch.org/publications/new-immigrants-arriving-to-long-island-economic-projections/.

[26] For more information, see CRS Report R40446, Electronic Employment Eligibility Verification. https://blog.completepayroll.com/whats-the-penalty-for-employing-an-illegal-immigrant for list of fines.

[27] Perhaps the main reason the federal government can’t mandate E-Verify is because there are still flaws in the system.  There’s evidence that foreign-born employees generate more false positives than American born employees.  Some people also suggest that if the system were mandatory, it would increase identity fraud, especially in seeking unused or Social Security numbers.  While there have been suggestions to use biometric data (fingerprint scanners or iris scanners)- that’s obviously very controversial on privacy invasion grounds and the reason why traditional conservatives oppose making E-Verify a mandatory system.

Suggested Citation:

Buonanno, L. and Parshall, L. (2024, July 11). “New York’s Migration Crisis.” Governing New York State Through Crises Project. https://governingnewyork.com/new-yorks-migration-crisis/