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Healey’s move to cap Mass. shelter capacity amid migrant influx invites criticism, legal questions

At the Massachusetts State House, Governor Maura Healey provided an update on the state’s emergency family shelter system.Suzanne Kreiter/Globe Staff

Governor Maura Healey’s announcement Monday that the state can no longer guarantee shelter for homeless and migrant families immediately sounded alarm bells for legal experts, advocates, and lawmakers, who questioned whether the move effectively discontinues Massachusetts’ decades-old right-to-shelter law and exposes the state to possible litigation.

“She is putting up the white flag,” said Norman Siegel, longtime civil rights lawyer and former executive director of the New York Civil Liberties Union who has advocated for an expansion of New York’s right-to-shelter law. “The governor of Massachusetts is not leading; she is doing the opposite.”

Healey made the announcement after her administration spent months scrambling to accommodate the influx of migrant families that has pushed Massachusetts’ shelter system to the brink.

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She said the state will stop adding more shelter units, and on Nov. 1 will limit the number of people housed in the system. In a presentation to shelter providers Monday, state officials said they do not have enough units or money to safely expand capacity beyond 7,500 families, which they expect to hit by month’s end. As of Tuesday, there were 7,023 families in the system, nearly 3,300 of whom are in hotels or motels.

Under a 1983 law, the state guarantees emergency housing for eligible families and pregnant women. Healey said she is not seeking to end the law, but rather acknowledging the state is reaching its capacity to shelter families.

“We do not have enough shelter space, service providers, or funding to continue to safely or responsibly expand,” Karissa Hand, a Healey spokesperson, said Tuesday.

The Monday announcement left advocates and civil rights lawyers confounded. On one hand, the governor said she remains committed to the right-to-shelter law; on the other, she is implying the state won’t provide shelter to eligible people once the shelters hit 7,500 families, instead creating a wait list with plans to triage families, some experts say.

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“You really can’t have it both ways,” said Oren Sellstrom, litigation director at Boston-based Lawyers for Civil Rights. “People are very concerned around how imposing an artificial cap goes against . . . what the state has stood for for the last 40 years.”

Laura Massie, a senior attorney at Greater Boston Legal Services, said Healey’s announcement spurred “a moment of panic” in her office, which provides free legal services to low-income people in the Boston area. Massie said that the law is “pretty clear” the state is obligated to provide shelter to eligible families, and that by turning people away, “they would not be in compliance with the existing state statute.”

“These are kids who have no safe place to go. That is why they are going to a shelter,” Massie said, noting that temperatures are dropping and winter is coming. “It’s horrifying to contemplate.”

Healey’s move also sowed confusion in the Legislature, where lawmakers are weighing her request for an additional $250 million to the shelter system. House Speaker Ron Mariano on Tuesday called it “an interesting question” when asked if Healey could legally limit shelter system capacity. He said he has no plans to amend or suspend the right-to-shelter law directly.

“It’s a law that was in existence for 40 years. I’m not about to change it,” the Quincy Democrat said. “I don’t know if she has the authority to cap [the number of families]. What happens if someone shows up, what does she do? We haven’t got a clear answer for that.”

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Massachusetts is not the only state facing such questions. In New York, changes to New York City’s right-to-shelter law are being hashed out in court — a path some warn Massachusetts could be headed down.

New York Governor Kathy Hochul and New York City Mayor Eric Adams are pushing to relax the city’s obligation, which requires officials to provide emergency housing to anyone who asks for it, including individuals. (Massachusetts’ law only applies to expecting parents or families with children.)

Unlike Massachusetts, New York’s provision operates under a consent decree, meaning any changes must be hashed out in court.

In May, the city asked a judge for permission to deny shelter to homeless adults and families if it “lacks the resources and capacity” to do so. Then earlier this month, Adams asked a judge to allow the city to suspend the mandate to provide shelter to single adults when there is a state of emergency. New York state filed a court document in support of the city’s request.

The Legal Aid Society, which filed the lawsuit that led to the original right to shelter rule in New York, and the Coalition for the Homeless contend the city’s request would “gut” protections for homeless people.

Local leaders around the country, including many Democrats, have repeatedly pleaded for federal action from the Biden administration and Congress, saying states and cities alone cannot absorb the costs of the crisis. Healey and state lawmakers have called for federal officials to set up congregate sites to house immigrants, and state officials have argued the federal government’s long backlog of applications for work permits is a key obstacle preventing migrants from exiting shelters and living independently.

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But there are limits to what the Biden administration can do without Congress, which has struggled to address immigration for years and is operating without a House speaker and hamstrung from approving funding.

In defending her ability to set limits on the program, Healey’s office argued that not only was the right-to-shelter law passed during a different era, but the current statute makes it “subject to appropriation” — in other words, the state is required to follow it only as long as it has enough funding.

Healey aides on Tuesday said that with an “unlimited rate of shelter expansion,” the state would exhaust the $325 million allocated for the system by mid-January, just halfway through the budget cycle. By capping the number of families in the system, state officials believe that money could last “several more months,” though exactly how long is unclear.

Jay Kaufman, a former state representative who chaired the Legislature’s revenue committee, said the “subject to appropriation” language is common in state law, and effectively gives the Healey administration “an out, from a legal point of view,” should they argue there isn’t the money there to support the mandate.

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“The question for all of us is a political one. Should they take the out?” Kaufman said. Healey, he said, is arguing the state can no longer guarantee housing, even though she signed a $1 billion tax package that includes relief for an array of taxpayers, including high-income earners.

“At the end of the day, a budget is more than a collection of numbers. It’s a statement of our values,” he said. “They have decided that [giving] tax breaks that serve the wealthiest among us is more important than sheltering the poorest.”

State Representative Peter Durant, a Spencer Republican who has pushed for repealing the right-to-shelter law or limiting the guarantee of shelter to US citizens, said that if Healey does indeed cap the number of families placed in the system — and can no longer guarantee shelter — the Legislature needs to ensure “there’s some teeth behind it and it has the law behind it.”

“We should be codifying it into law,” Durant said of limiting capacity. Without it, “then we’re possibly opening ourselves up to a lawsuit.”


Samantha J. Gross can be reached at samantha.gross@globe.com. Follow her @samanthajgross. Matt Stout can be reached at matt.stout@globe.com. Follow him @mattpstout.