Can NYC make bus companies pay $700 million for transporting migrants?

The Adams administration’s lawsuit against bus companies transporting migrants from Texas to New York City left some advocates and attorneys scrambling to brush up on an obscure section of state social services law on Thursday.

The new lawsuit from Mayor Eric Adams’ administration seeks to recoup north of $700 million from 17 bus companies that they say have participated in Texas Gov. Greg Abbott’s “bad faith” plan to transport more than 33,600 migrants from Texas to New York City, arguing that those bus companies should be responsible for the cost of sheltering and caring for the people they brought here.

Underpinning the city’s argument is Section 149 of the state Social Services Law, which states, in part, that “any person who knowingly brings, or causes to be brought, a needy person from out of the state into this state for the purpose of making him a public charge …  shall be obligated to convey such person out of the state or to support him at his own expense.” 

The law, which several people closely following the city’s response to the migrant crisis said they hadn’t heard of until Thursday, does not appear to have been brought up publicly by Adams before as a potential approach to cover the costs of sheltering tens of thousands of migrants who have come into the city’s care since last spring. (Under the city’s right to shelter mandate – which the administration is trying to change – the city is required to provide shelter for those who seek it.)

Spokespeople for the mayor didn’t comment on why this legal argument is only now being pursued, when New York City has struggled to care for new arrivals for going on two years. The city has said, however, that Texas has increasingly blocked coordination on the busing of migrants in recent months, and helped evade a recent executive order aimed at limiting the arrival of buses.

Several attorneys said the statute does seem, on its face, to describe what the city alleges Abbott is doing – busing migrants out of Texas to shift the costs of migration to sanctuary cities and force a change in immigration policy at the southern border. But the law in question, which The New York Times reported hasn’t been enforced since 1941, could pose constitutional challenges. That was Abbott’s immediate response on Thursday. “Every migrant bused or flown to New York City did so voluntarily, after having been authorized by the Biden Administration to remain in the United States. As such, they have constitutional authority to travel across the country that Mayor Adams is interfering with,” Abbott said in a statement on Thursday, mentioning both constitutional rights to travel and interstate commerce. 

Several attorneys have also said the lawsuit could face those constitutional barriers. The lawsuit seems to have anticipated some of this, arguing that Abbott’s plan is “not part of a human-centered initiative to help individuals vindicate a constitutional right to travel within the United States.”

Two other attorneys who City & State spoke to credited the Adams administration for a “creative” legal strategy, saying that the suit may have merit and shouldn’t be viewed as a purely political move. “At the base of it is something that, at first blush, really does have some applicability to the situation,” said one attorney familiar with state social services law. “This is not off the wall.” 

The law firm Paul, Weiss is bringing the suit against the bus companies along with the city’s corporation counsel. Steve Banks – the former Department of Social Services commissioner who now works at Paul, Weiss and is opposing the city in the separate effort to change the right to shelter – is working on the suit. 

Civil rights attorney Norman Siegel, who has pushed the city to get more creative in its legal approach – including by arguing that the right to shelter is a statewide responsibility – said that this would be a “case of first impression,” meaning that it presents a new legal issue that’s not been decided. “That’s good, in some ways, because you’re then looking at it fresh and new,” he said. “I think the circumstances here, and the facts, will be for the benefit of New York City.”

Whether the court agrees is a huge “if.” If it does withstand a motion to dismiss, the amount that the city is seeking to recoup – $708 million – could be challenged given scrutiny of the city’s migrant contracts and allegations that the city is paying more than it needs to.

The lawsuit cites 19th century case law determining there must be “bad faith” at play to recover costs. Much of the suit suit works to argue that the bus companies – and not just Abbott – are acting with “bad faith” and “evil intent.” Asked why Abbott or the state of Texas was not sued directly, City Hall cited “sovereign immunity,” which generally prevents the government from being sued without its consent.

Gov. Kathy Hochul, who stated her support of the lawsuit in a press release on Thursday, called the mayor’s action “spot on” at an unrelated event on Friday. “I do support what the mayor is doing, because what has happened is a violation of New York state law,” she said

The Legal Aid Society declined to comment on the legal strategy but said in a short statement, “We support any efforts that will help ensure the safety and well-being of new arrivals to our city.”

Others have argued that this lawsuit is not a long-term solution. “This lawsuit is just another tactic in the Adams administration’s grab bag of ineffective approaches that have nothing to do with creating lasting change,” New York Immigration Coalition Executive Director Murad Awawdeh said in a statement. “The mayor needs to stop complaining that the city is at a breaking point and scapegoating immigrants. He should instead be implementing solutions like expanding and streamlining immigration legal services.”