A contagious failure of imagination has spread through the highest elected offices in New York, Denver, Philadelphia, Los Angeles, and Washington, D.C.
As Texas and Florida gleefully traffic thousands of desperate migrants across the country — using them as political pawns and depositing them on the streets of Democrat-run cities — state leaders seem to have thrown their hands up and braced for their homeless-shelter and financial systems to crumble. Solving this problem should not be difficult.
Putting an end to this political stunt is not at cross purposes with caring for the migrants: both goals must be part of any solution.
Let’s start first with principles. Each state has a legitimate interest in enforcing the law. There are at least three ways the migrant-trafficking scheme runs afoul of them.
First, states have a legitimate interest in making sure people are not brought there under false pretenses. It is obvious migrants are still being lied to and misled to get aboard buses to cities with acute housing shortages, where the likelihood of ending up on the streets is high. Each state has laws against deceptive practices that cause local harm.
Second, states have a legitimate interest in getting vital information about the migrants — names, family details, disability and accommodation needs, health and medical data — before the buses arrive and with ample time to make appropriate arrangements. That is called public planning. The intentional absence of it causes mayhem (not unintentionally, a company involved in the scheme is literally called “Mayhem Solutions”). When someone causes mayhem, states have a phrase for that: public nuisance. States can and do enforce those laws.
Third, federal law is in play. Federal law makes it a crime to transport undocumented non-citizens within the United States. In 2022, Texas reportedly stopped screening to determine whether migrants were lawfully in the country and seeking asylum. Instead, it rushes migrants, including those arriving illegally, onto buses. The transport of these migrants across state lines violates federal law, too, and the “receiving” states can each find partners to enforce it.
Stopping Texas’ and Florida’s political stunt is not rocket science. We have courts. The blue states should go to court and get injunctions against the bus companies. (To show appropriate compassion, officials could ask courts to enter an order with advance notice, so that any bus already on the road does not get caught in a squeeze.) Once the injunctions are served on the bus companies, they risk civil and criminal penalties if they persist. Their CEOs could be hauled to jail.
These are not the only viable legal theories. What is remarkable is that a year into the crisis — with billions spent while applying figurative “Band-Aids on bullet holes” — none of the impacted states or cities have gone to court to stop the scheme, even as some raise the specter of financial doom.
Officials should be empathetic toward the migrants. And the desire, embraced particularly in New York, to do their fair share is laudable. But it cannot come at bottomless and inflated costs being shifted from, for example, Texas to New York, and without any real health and safety planning. The situation is intentionally unsustainable and patently un-American.
In New York City, more than 150,000 migrants — many of whom were bused from Texas to New York — have arrived since the spring of 2022. Consequently, migrants currently make up the majority of the city’s shelter population, which in June surpassed 100,000, more than double the maximum occupancy. The influx has already prompted the city to spend more than $2.1 billion, open dozens of emergency shelters and erect massive tents where thousands of people are now staying. City officials expect the cost of care for tens of thousands of migrants to exceed $12 billion by 2025.
The situation has been characterized in the most dire terms. Top officials in New York, for example, publicly voiced concern that “this issue will destroy New York City.” It was fair for them to demand federal intervention, but the hope cannot spring eternal here. If the federal government had any thought to enforce a public-planning process for migrant transportation, it would have happened long ago.
Officials’ hands are not tied, they are sitting on them. The buses can be made to stop until — at a minimum — a process is implemented to ensure that transported migrants are safe, not being misled or deceived, and receiving states get advance notice to allow adequate public planning. Now is the time for officials to turn to the courts to halt the buses until common sense (or the federal government) can prevail.
Walden is a litigator at Walden Macht & Haran LLP, with a commitment to pro bono and good government work.