Eviction Moratorium

Is the CDC's Eviction Moratorium a Third Amendment Violation?

The Third Amendment Lawyers Association argues in a recent amicus brief that the federal eviction ban requires landlords to quarter soldiers.

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Defenders of the often-overlooked Third Amendment to the U.S. Constitution are springing into action to defeat what is arguably the biggest threat to their cause in decades: the federal government's eviction moratorium.

Last week, the Centers for Disease Control and Prevention (CDC) issued a ban on evicting non-paying tenants living in counties with a substantial number of COVID-19 cases provided that those tenants sign financial hardship declarations.

In response, the Alabama Association of Realtors and the Georgia Association of Realtors—who already sued over the previous, nearly identical CDC eviction ban that expired on July 31—filed an emergency petition last week in the U.S. District Court for the District of Columbia asking that the new moratorium be set aside.

Rallying to the side of the realtors was the normally idle Third Amendment Lawyers Association (ÞALA), which filed an amicus brief in the case on Friday.

"Ordinarily, the eviction process would play out in the courts. The CDC eviction moratorium prevents this," wrote the ÞALA. "Plaintiffs are being forced to house individuals, i.e. quarter them, without their consent. Given the size of the population at issue, some of these tenants are bound to be soldiers."

That, the group argues, violates the Third Amendment's express prohibition on quartering soldiers in private homes in times of peace without the consent of the owner.

This is a novel claim, to say the least. The Third Amendment, as ÞALA notes in its brief, is the "runt piglet" of the Bill of Rights and is rarely invoked in normal litigation.

That's certainly true for the legal challenges to the CDC's eviction moratorium. Plaintiffs have generally stuck to more common legal arguments, including that the agency's order goes beyond the powers given to the CDC by Congress, and/or that it violates the Fifth Amendment's prohibition on taking property without just compensation.

Despite the creativity of ÞALA's argument, there's reason to doubt that the CDC's eviction order will fall on Third Amendment grounds.

"My first-glance interpretation of 'quartering' is that it refers to the government placing a soldier in some house, not some house being rented, in his private capacity, by someone who happens to be a soldier," Eugene Volokh, a law professor at the University of California, Los Angeles, wrote at The Volokh Conspiracy. "So if my tenant happens to be a soldier, and he forfeits my initial consent by failing to pay his rent (and thus breaching the lease agreement), his continuing to live in my 'house' doesn't involve his 'be[ing] quartered.'"

Whether or not ÞALA's argument sways any judges, its brief is a reminder of just how many different ways the Constitution protects the rights of property owners. Among those protections is the right to exclude people from your property, be they delinquent renters or unwelcome redcoats.

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  1. Cuomo just announced he’s resigning. While still denying everything.

  2. No. It’s not a ‘third amendment’ violation. It’s a violation of its authority. The CDC has no authority to become the nation’s landlord.

    1. I mean, Jesus, why the tortured arguments about obscure amendments that don’t really apply here. This is a clear overstepping of authority by a non-legislative body. The CDC is there to advise congress and the president as to how to deal with the Broad Street Pump.

      Now, if CONGRESS passed a law which forbade evictions, then maybe we could get into why the law was unconstitutional… which yes, MIGHT be a 3rd amendment violation.

      1. Because (a) it’s a small, insignificant, probably hobby/party group of lawyers who I would guess figure they may as well throw in their three cents worth, and (b) the more the merrier as far as evicting this evil regulation.

        1. Exactly. These days, who knows what arguments will persuade a judge? They don’t seem to take the obvious readings of the US Constitution (and often state constitutions) seriously, so why not get as clever as they are and pull shit out of your ass?

          1. Does this involve a string with knotted-in little balls?

        2. I think they have the right idea, and I even think their weird, esoteric, Old English character in the acronym is kinda neat! It gives a chance to explain themselves. (And at least they aren’t naming kids with obscrantism like Elon Musk.)

          As long as they aren’t wearing boots over their heads, maybe this battle for individual rights has a chance.

      2. Over the years I’ve found that many people–not just Leftists–want to maintain the overall impression that the government’s power is almost unlimited except for a few tiny exceptions.

      3. Because of the way the system works – you have to shotgun it from multiple sides, simultaneously, hoping one of the attempts works.

      4. There have only been two SCOTUS cases on the third amendment in history. The poor guys in the Third Amendment Lawyers Association are gonna take acting they can get.

      5. Well, the CDC acts under the authority of Congress, just like the other alphabet soup Administrative agencies. And if the CDC is ordering the quartering of troops in violation of the Third Amendment, Congress needs to do their job and call them on the carpet.

        Look, libertarians have been their own worst enemies for too long. Don’t do this when there’s a chance to roll back the edicts of Emperor Geritol.

      6. Well, there is legislation upon which the CDC is basing this.

        Is the moratorium authorized by 42 USC 264. 42 CFR 70.2, and related code/regulation/legislation? Probably not.

        Even if the moratorium is authorized by the above, has it reached the point of a 5th Amendment taking? Probably so, particularly so given that the landlords don’t have access to the rental assistance funding without action by their asshole, dead beat, stimulus-laden, unemployment-flush tenants.

        But we don’t have any analysis of this from the SCOTUS because Kavanaugh is a naive dumb shit and neither the majority nor the minority penned an opinion given it was just a denial of relief from stay.

        But “they don’t have the authority” because they aren’t “legislative” is certainly the en vogue buzz words of the masses who don’t realize Kavanaugh’s concurring opinion is just dicta for now. I’m not very impressed by any analysis that doesn’t attack the legislative basis alleged by the CDC and/or advance a cogent constitutional violation. But plenty of y’all lap that shit up, so by all means do you.

    2. The CDC has no authority to become the nation’s landlord.

      Congress has given alphabet executive agencies legislative, executive and judicial powers.

      I agree that they don’t have authority. But they have the power. And as far as they’re concerned, there’s no difference. Shit, as far as most people are concerned, there is no difference between power and authority. We’re expected to obey cops who are referred to as “authorities” even when they aren’t enforcing the law.

      I guess authority vs power is like natural rights. “Fuck you, that’s why” means people with power will abuse it, and if you don’t like it you can pound sand.

      1. It’s high time that people respond to: “Fuck You That’s Why” with a paraphrase from The Virginian: “When you call me a slave, smile!” Maybe followed with some of Gary Cooper’s back-up if they press further than words.

        As for Natural Rights, the Natural Universe is all that exists, so any Rights we have are necessarily Natural. And to paraphrase the old beer commercial jingle: “What’s More Natural Than…Natural Rights?”

    3. The point is to redefine everyone as a soldier so they can be charged with mutiny, desertion, etc if they get uppity – and be forced to wear a mask when mask gets redefined as part of the soldiers uniform.

      We’re All in the Army Now

      1. Or the Civilian Climate Corps/greenshirts.

      2. I’ve always said it: Libertarians are Soldiers in the Army of the Lurid!

    4. Both floor wax and dessert topping, or in this case, both banana peel and Syrup of Epicac.

      It both violates the CDC’s authority and it violates the Third Amendment.

      The fact that the Third Amendment is rarely evoked (along with the Ninth and Tenth Amendments) does not mean these Amendments don’t exist and are not The Supreme Law of the Land. In fact, I think freedom-loving people have been negligent in not evoking them even more.

    5. More a 4th Amendment violation since it’s an unreasonable seizure of property and a clear violation of private property rights. Can throw in the 9th and 10th Amendments as well

  3. Bastards stole my idea

    1. flattery.

  4. Ha ha. It’s so bad that it violates even the Third Amendment.

    1. It’s fun to get the complete set. I thought we might get one with the national guard housing fiasco in DC earlier in the year.

    2. For years, I heard it said in libertarian circles that government has violated every Amendment of The Bill of Rights except the Third. Now, the government has even crossed that Rubicon.

      Now’s the time to get out the chipped plates, Dixie Cups, Joy Buzzers, Whoopie Cushions, plastic dog crap, and mattresses with sharp, broken springs for our new house guests!

      Learn to make cold, rare steaks and warm potato salad, raw egg ice cream, and maybe scrape a little wilt off the lettuce and cabbage! Prepare every disgusting, creepy-crawly dish that made Baylen Linnekin into the F. Lee Bailey of food!

      Maybe you and your partner(s) can obtain a Weed Eater, a live chicken, a peach cobbler, and some Cool Whip and suddenly decide to get your Ray Stevens freak on in the rubber sheets while your unwanted guests are visiting and trying to sleep in the next room! Maybe even offer the guests a place in the festivities!

      Be the Host, Hostess, and HostX with the Most/Mostest/MostXXX!

  5. >>Given the size of the population at issue, some of these tenants are bound to be soldiers

    would have gone with a citizenry-is-militia-is-soldiers angle

    1. Most of them probably own guns, so not a stretch.

    1. I’m waiting for the Babylon Bee to step up.

    2. This is the only Onion article I’ve ever read with a fluttering of the patriotic heart and all-due dead seriousness!

      Where do I sign up for the National Anti-Quartering Association and The Citizen’s Committee for the Right To Drink???

      And there’s nothing wrong with wanting to protect “cottages, livery stables, and haylofts” and “hearthstones” and “chickens and livestock” and “private stores of salt, brandy, candles, and vinegar!” There’s plenty of hobby farmers out there! Damnit, not everybody’s a part of the pod-dwelling, bug-eating, app-using, “Shaaaaaaring Economy!” Tell all the Neo-Cons and the Military-Industrial Complex to go get their own!

  6. Looks like the Republic is sliding fast into shithole status. I look forward to 6 trillionish in new spending to pay off and cement an authoritarian socialist Democrat majority in D.C. Eviction bans, climate mandates, medical passports, violent felons run the cities, capital flight.

    At least there’s no mean tweets.

    1. This whole “quartering troops” violation of the Third Amendment may be the strawman that breaks a herd of camel backs.

      Every one of us who is grown-up has had to deal with fleabag room-mates; parasitic, sponging “friends” and relatives; and neighbors who make noises, drink, drug, fight, have all-night “visits” from “clients,” and get the cops called on them on the regular.

      If government is going to stop evictions, force us to live with all this shit, and limit our ability to build or buy new housing and move away, this is a prescription for a Civil War Version Infinity!

      And speaking of that, anything like zoning, building codes, land use planning, and government land ownership that prohibits development effectively forces us to quarter together in clumps and, yes, eventually that means “quartering troops” in private homes. So all of that is Unconstitutional under the Third Amendment and the Fifth and Fourteenth too.

  7. If the tenants are collecting payments from the government (Social Security, disability, unemployment, welfare, etc.) they are on the government payroll and are essentially the same as soldiers, regardless of enlistment status.

  8. The 3rd Amendment specifies “no Soldier”. Presumably that prohibition would extend to Marines, Sailors and Airmen. What about Federal Marshals? Can the FBI help themselves to your hospitality? Could you be ordered to host illegals?

    I think the 3rd Amendment Should be interpreted as:
    The Federal Government cannot force you to accommodate “guests” in your home against your will.

    1. I used to work with a guy who had spent time in Cuba.

      According to him, you must pick up hitchhikers or be reported.

      If someone knocks on your door and asked for shelter, you feed and shelter them or be reported.

      Everyone is a comrade.

      1. Damn! Every Cuban home is like Doctor Zhivago Arms Hotel over there?

        And you can’t even get away from it on the roadside in your 1950’s tin-can, bubble-gum, and bailing-wire junkmobile?

        They really do believe in their own Commie bullshit in Cuba!

        If only everybody pulled their investment money, credit, and tourist funds, that place would collapse and would be as bad off as Haiti.

    2. Don’t forget Coast Guards and Merchant Marines. And Reserves and National Guard. Not to mention the countless Intel agancies that have cropped up post-9/11. (Hell, I shouldn’t have even mentioned them.)

  9. If a dignitary comes to your part of town, and the Secret Service come in to search your house and to set up a post on your property, that should actually be a 3rd Amendment violation.

    1. Yes! Exactamundo! You get this perfectly!

  10. Next weird amendment hot take: Jury duty is an illegal poll tax in violation of the 24th amendment, since they pull names from the voter rolls and then pay them nowhere near what their time is worth.

    1. Bring it on! Make jurors voluntary and maybe even professional! (Have to work the bugs out of that one, but it may be possible!)

    2. Has the 24th Amendment been incorporated? If not, it doesn’t apply to the states.

  11. Didn’t think about the 3rd amendment. It’s a clear violation of the takings clause of the 4th amendment. It’s a clear violation of the 10th amendment. And a clear violation of the 14th amendment as it deprives of property without due process.

    1. Get the checklist going! If somebody has the resources and stoneage to litigate on all these grounds, maybe we can Live The Dream in our lifetime.

  12. Does this involve a string with knotted-in little balls?
    http://www.hupcfl.com

    1. I was askng for a friend.

  13. Eugene Volokh, a law professor at the University of California, Los Angeles, wrote at The Volokh Conspiracy. “So if my tenant happens to be a soldier, and he forfeits my initial consent by failing to pay his rent (and thus breaching the lease agreement), his continuing to live in my ‘house’ doesn’t involve his ‘be[ing] quartered.'”

    I get about the same level of analysis and insight from my barber. That’s apparently the state of legal scholarship at UCLA these days.

  14. Sooner or later a toxic (not to say explosive) combination of factors are going to come together, e.g., a grinning, taunting tenant who is not paying his rent and cannot be evicted, and a landlord (mortgagor) who is on the verge of losing his property to a mortgagee, the latter a protected class not being made to sacrifice in the same way that unprotected individual landlords are. Add to the mix that the mortgagor is elderly, or perhaps has received an unfortunate diagnosis that guarantees his departure from this veil of tears in relatively short order.

    I would not want to be the tenant when this combination of “chemicals” is mixed, as criminal laws and penalties cease to have much deterrent effect on behavior at some point “near the end”. Nor would the prosecutor want me on the jury trying the landlord for whatever his “offense”.

    1. As the old meme says: “The older you get, the less the threat of ‘Life in prison’ becomes a deterrent”.

  15. Soon the housing market in the entire USA will be like California.
    Feature, not bug

    1. If you live in Calipornia, you must not be poor, because. “Movin’ On Up” becomes less and less of your reality if you are.

  16. While usually argued on Second Amendment issues, this founder’s expression of intent should also apply to the Third Amendment:
    “I ask sir, what is the militia? It is the whole people except for a few politicians.” – George Mason (father of the Bill of Rights and The Virginia Declaration of Rights).
    A clear reading of his interpretation of whom the word “Militia” includes, it would seem you and I, along with everyone else [” … except for a few politicians … “] are included by default.

  17. Add just a little “penumbra”, and the 3rd amendment *does* exclude the unwanted quartering of *anyone*, to wit:

    A) All adults being forcibly quartered are by default militia.
    B) If the CDC is granted this power grab, then “pandemic” would become a way to end-run the 3rd amendment.
    C) Does it really matter if the unwanted resident is a soldier? What if the federal government forced landlords to house FEMA agents or the like?

    ‘C’ brings up a better motive for the lawyers’ association: There have been so few landmark 3rd amendment cases that *anything*, even if it fails its overt objective, could prompt the courts to make a statement that clarifies the meaning and reach of that amendment. Such clarification could breathe life into future property-rights cases.

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