In October 2023, the mayor asked the judge presiding over the decree to suspend its terms when the number of single adults seeking shelter exceeded a certain limit. Mayor Eric Adams’ lawyers argued that the decree’s “onerous terms are demonstrably ill-suited to present circumstances and restrain the city at a time when flexibility to deal with the emergency is paramount. The [decree] — entered over 40 years ago under far different circumstances
— has become outmoded and cumbersome in the face of the present migrant crisis.”
In March 2024, after months of negotiation supervised by the judge, the city and the lawyers for the Callahan plaintiffs agreed to modifications of the decree. The court approved a
24-page “Stipulation” that permits City officials to decline to provide shelter to most single adult migrants who have resided in a shelter for 30 days. The amendments—for the first time–allow the city to assess the financial resources and other housing options of applicants for shelter. The amendments are temporary, however: they are effective only until 45 days after the mayor withdraws his order of a “state of emergency.”
Massachusetts is different
The Massachusetts emergency housing assistance program has roots in the “emergency assistance” program enacted in 1983. In 2009, the Legislature placed responsibility for the housing program with the Executive Office of Housing and Livable Communities. The program authorizes temporary emergency assistance shelter “as necessary to alleviate homelessness when such family has no feasible alternative housing available,” for “needy families with children and pregnant women with no other children.”
Crucially, the Legislature has made clear that the program is “subject to appropriation;” it has repeated this limitation in each budgetary line item funding the program. Indeed, in 2023, the Legislature—in an express attempt to foreclose a judicial role in the operation of the program—provided that, “in the event of a deficiency, nothing in this item shall give rise to or shall be construed as giving rise to any enforceable right or entitlement to services in excess of the amounts appropriated in this item.”
Executive and legislative activity continued into the fall and early winter of 2023. Faced with extraordinary demands on the program, the EOHLC filed emergency regulations intended to prioritize eligible household applicants for emergency assistance shelter. In November 2023, the Superior Court denied a request for an injunction against the regulations.
This spring, the Fiscal 2024 supplemental budget enacted by the Legislature and signed by the governor addressed the shelter program in several ways. First, the Legislature appropriated $251 million in additional funds. Second, the Legislature imposed a nine-consecutive-month limit on the length of stays of certain persons in the program. The Legislature created certain “hardship” exceptions that might support a short extension of a stay in a shelter, but made clear that these were exceptions to the rule against indefinite stays. Third, the act imposed on executive branch agencies detailed reporting requirements concerning the program, presumably to inform further legislative appropriation and modification.
These legislative and executive actions—and the decision of the Massachusetts judiciary not to intervene in 2023—show how the Commonwealth has retained democratic control over its shelter policy. A majority vote of the two houses of the Legislature, and the signature of the governor, modified the Massachusetts law. A judicial imprimatur was not necessary. In contrast, in New York, the city, state, and their citizens lack democratic control over the same policy; their previous officeholders have ceded authority over the policy to the New York judiciary.
The weaker position of New York officials underscores the antidemocratic potential of consent decrees that bind state and local governments.
Consent decrees often limit the statutory powers of a mayor or governor granted by the Legislature or Constitution. As in New York, each exercise of discretion conferred on the executive by statutory law may become subject to the approval of the court. The result is a diminution of executive and legislative authority within the policy sphere.
Second, consent decrees may affect future budget decisions. Funds are not infinite. Legislative bodies—state and municipal— exist to make choices among competing public needs. A consent decree may have the effect of re-ordering priorities for legislative appropriations.
Third, consent decrees can distort democratic processes in another way: public officials—though nominally the defendants in a lawsuit—may agree or not strongly oppose a consent decree, in the hope of achieving a policy goal and budgetary support that they could not obtain through normal political channels.
As commentators have dryly put it, public officials who face political and budgetary constraints on their preferred actions may “win by losing” the court case, entering a consent decree that may require an increase in their budgets or dictate a (quietly desired) change in their policies. In such cases, the nominal defendants in the suit may forfeit the prerogatives of the political branches over the policy in question. They may welcome the corresponding expansion of the powers of the judiciary at the expense of the powers of the executive and legislative branches.
Fourth, consent decrees may tempt collusion between advocacy groups and executive officials who wish to bind future mayors, governors, and other policymakers. As the Supreme Court has stated, “States and localities depend on successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources. Where officials inherit overbroad or outdated consent decrees that limit their ability to respond to the priorities and concerns of their constituents, they are constrained in their ability to fulfill their duties as democratically elected officials.”
Elections should matter. Successors in office—like New York Mayor Adams—will always confront new, unforeseen crises. Successors may bring fresh views to new crises and old problems. Judicial control of an institution or a public policy may hinder the choices of successor officials and thus frustrate the will of their electorates.
Finally, consent decrees in public law litigation often involve the judicial branch in matters generally left to the expertise of executive branch officials. The protracted litigation and negotiation of changes in the 1981 New York decree demonstrate that the judiciary may not be a body well suited to address a housing crisis caused in part by a rising tide of immigration.
As New York limps on, shackled by an improvident, 40-year-old consent decree, Massachusetts retains the legislative and executive freedom to address its own ongoing crisis. Massachusetts residents—whatever their views of sound future policy—should be thankful for that freedom.
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