Riverhead state of emergency on migrants: Legal questions surround it, experts say

Executive orders declaring pre-emptive "states of emergency" to block motels and other facilities from accepting New York City migrants are legally "problematic" and might run afoul of federal law, legal experts said this week.

On Tuesday, Riverhead Town became the latest GOP-led municipality to issue an executive order preventing New York City from sending asylum-seekers to their locale. The executive orders have been issued by more than a dozen towns, cities and counties across the state.

Riverhead Town Supervisor Yvette Aguiar said she issued the order after two hotels in the town, and a third location that houses homeless and disabled people, expressed interest in signing a one-year contract with the city to accept migrants. Aguiar has declined to identify the locations.

In recent months, tens of thousands of migrants have arrived in New York City, many on bus trips arranged by the governors of border states such as Texas. Mayor Eric Adams has said the city is struggling to find space to house the migrants and has sought help from other municipalities, which have largely rejected his requests. 

Constitutional-law professors contend it's extremely difficult for states and localities to regulate immigration issues in a way that does not conflict with federal laws.

"These measures are at least constitutionally problematic," said Pete Spiro, a professor at Temple University who specializes in immigration and constitutional law. "They interfere with the right to travel — a right that extends to noncitizens. These counties are looking to offload any burden presented by these noncitizens onto other localities. It's a cornerstone of our constitutional system that states and localities can't erect obstacles to internal freedom of movement."

But Spiro cautioned there's a "tremendous level of turbulence in constitutional rules applying to how states and localities can act on matters relating to immigration, especially where undocumented immigration is involved."

Town: Order is limited

Riverhead Town attorney Erik Howard said there's “misconstruction” about what the town’s order does.

1. “It’s very limited in scope and it is intended to say facilities that have a defined use by our building department continue to be used for those purposes — not for the purposes of long-term housing solutions for migrants or asylum-seekers that are being exported from New York City,” Howard said at a town board meeting Tuesday. “It doesn’t say anything about the quality of person they are. It doesn’t say anything like that.”

A dozen counties across the state, including Rockland and Orange, declared states of emergency to prevent Adams from sending them migrants. They cite a state law allowing county executives to establish states of emergency in the "event of a disaster, rioting, catastrophe, or similar public emergency."

Rockland and Orange last week were granted temporary restraining orders blocking Adams from sending them asylum-seekers while the New York Civil Liberties Union responded with a federal civil rights lawsuit, contending the orders violate the Constitution by restricting the rights of the migrants to travel and reside across the state.

NYCLU's stance

Amy Belsher, the NYCLU's lead attorney on the case, said the orders also violate federal and state discrimination laws.

"New York State has, for a long time, recognized the right to intrastate travels for people to move freely or reside in any place that they would like to," Belsher said. "These orders very clearly on their face restrict that right. And they also have the right to do that free of discrimination under the Equal Protection Clause [of the 14th Amendment.]"

Ilya Somin, a professor at George Mason University who teaches constitutional law, federalism and migration rights, said the orders could also violate federal housing and discrimination laws that "bar discrimination based on national origin."

Tiffany Graham, who teaches constitutional law at Touro Law School, said it's unclear that municipalities have a sufficiently strong legal justification for blocking the migrants, particularly as New York City has pledged to pay for their housing.

"Especially these counties across the state where no immigrants have even shown up yet from New York City," Graham said. "And so there are genuine questions here about whether or not what these county executives are doing will be sustained under the Constitution."

Graham suggests the executive orders also could violate the Equal Protection Clause, which protects classes of people from government "animus." 

“It is not necessarily clear whether a court would find that protections against animus cover undocumented immigrants,” she said. "But if animus is found, a court would likely say that, even though their rights under the Equal Protection Clause are lesser, that they do have that much protection."

With Tara Smith

By Robert Brodsky

robert.brodsky@newsday.com@BrodskyRobert

Robert Brodsky is a breaking news reporter who has worked at Newsday since 2011. He is a Queens College and American University alum.