The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Just 6 pages, in Alabama Ass'n of Realtors v. U.S. Dep't of Health & Human Servs., filed by Jay Wolman and Marc Randazza:
Plaintiffs seek to recover possession of their properties from tenants who have failed to pay their rent. Ordinarily, the eviction process would play out in the courts. The CDC eviction moratorium prevents this. And, they cannot resort to "self-help". See, e.g., Mendes v. Johnson, 389 A.2d 781, 783 (D.C. 1978) ("Under early common law, a landlord was privileged to enter upon his land and recover it by force, using violence if necessary. However, this privilege was modified as early as 1381, when a statute was passed making such forcible entry a criminal offense. This criminal statute was accepted as part of the common law, or reenacted, by nearly all of our states.") As a result, 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. To the extent the CDC moratorium prohibits evicting a soldier, it runs afoul of the Third Amendment. This Constitutionally significant issue warrants this Court's attention.
I've got to say that I'm skeptical: 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. And I assume that if the government does rent space for soldiers, it will abide by the terms of the lease, so the continued use of the property by the soldier is going to be with "the consent of the Owner" (as expressed in the lease). 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."
Still, it's an interesting argument, and I thought our readers would enjoy seeing it. Bonus points if you understand why the amicus is called þALA.