The Third Amendment Lawyers Association (ÞALA) Opposes Eviction Moratorium

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.

Comments

[loki13]

"Still, it's an interesting argument ..."

No, not really. If by "interesting," you mean, "silly and a waste of time and resources," then sure. Otherwise, ugh.

To paraphrase the instant argument, "To the extent some attorneys formed a group as a joke because of the lack of utility of the Third Amendment, and to the extent that the Court has a sense of humor, this Court should ignore this and not sanction anyone involved. Peace out."

[JonFrum]

No reason to say more than that. It lacks even perverse cleverness.

[Bob from Ohio]

"not sanction anyone involved"

Its just an amici brief. Likely the judge will never even se it. Nobody is getting sanctioned.

[loki13]

I was being facetious and trying to follow the same structure as their argument.

After all, you really have to work at it to get sanctioned- you know, file claims that were dismissed in other courts, file RICO claims based on a TIME article, refuse to check allegations, that sort of thing. 🙂

[ducksalad]

They'd have a better case if the 3rd Amendment didn't have a loophole for quartering "in a manner prescribed by law".

Of course it's questionable whether the CDC action is authorized by law, and whether it's overbroad delegation, but Congress could "fix" both problems with an express and specific authorization.

[Bill Poser]

If Congress were to enact an express and specific authorization, what would be its constitutional basis? Would it be another arguably dubious application of the Commerce clause?

[dwb68]

"We need a place to house all these National Guard members we brought in to enforce the lockdown."

See also: Sydney Australia

Or brought in for rioting, looting, ...

Or brought in to enforce the law because the police have been defunded...

Serious question: does the third amendment apply to parking garages and hotels where the military might be housed during events like the Jan 6th riots. I mean presumably the owners had to give consent, and get paid rent.

But the main reason the 3rd amendment has not been litigated much is that by the time the Federal Government is housing members of the organized militia in your property, without your consent, or compensation, a whole lot of other shit has gone wrong. They have more than likely suspended the 1st, 2nd, 4th, 5th, and 6th too.

[dwb68]

Has to be with the Owners consent, consult your pocket constitution.

[Bill Poser]

I wonder if the plaintiffs can argue that preventing the eviction of soldiers is "quartering" along the same lines as it was held that racially restrictive covenants are unenforceable because enforcement by the courts constitutes government action?

[Aktenberg78]

Shelley v. Kramer was moronic, results based reasoning.

[Gasman]

from 2A discussions, isn't everyone a member of the militia?
Sounds like quartering might be true all around then.

[Dan Schiavetta]

Indeed! Good catch.

[rsteinmetz]

Is this the first case invoking the 3rd amendment?

[LawTalkingGuy]

No. There is in fact a real Third Amendment case that actually involved quartering.

https://en.wikipedia.org/wiki/Engblom_v._Carey

[Commenter_XY]

That was an interesting read. One might try suing under the third principle the circuit court defined (the one about control of property).

[ReaderY]

Why shouldn’t people get to determine their own military status? It’s an important part of many people’s personal identities. Why should people not accept people’s own perceptuins of their military affiliation, including rank?

This country has numerous 5-star generals trapped in privates’ and civilians’ bodies. Why shouldn’t they be entitled to reclaim their natural real identities? And that’s a SIR if you address me.

[JohnW in Md]

Good idea. BTW, my personal pronoun is "chief".

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Good call. Chiefs outrank even admirals, except Nimitz of course.

[Brett Bellmore]

Even Admiral Nimitz doesn't outrank an ordinance technician at a dead run.

[dwb68]

I am El Presidente, Commando in Chief of the Inner Planets and Lower Erogenous Zones.

[Don Nico]

do they also get special pronouns?

[ME2R]

And I’m think too that maybe the squatters are just identifying as being renters because ppl who don’t pay aren’t really renters are they? Is the government by its mandate the true renter?

[JohnW in Md]

The acronym "ÞALA" was chosen using the Old English character, the Thorn "Þ", which is pronounced as the "th" digraph. Due to shortcuts of typographers, the thorn was substitute with a "Y" in signage, such as "Ye Olde Shoppe". To avoid confusion with Tenth Amendment advocates, but retaining the elegance of a true acronym, the thorn was chosen to represent the digraph in "Third". It also serves as a reminder that ÞALA will serve as a thorn in the side of anyone who attempts unlawful quartering.

[Krayt]

And Ye Olde Shoppe is pronounced "the", not yee, as it's just the th letter dropped from English.

How many Dungeon & Dragons games get this wrong...

[sparkstable]

I get that it is a long Hail Mary of an argument. But I think you dismiss it too soon in your reasoning.

You essentially argue that a private tenant t who violates the contract happens to be a soldier, it isn't gov quartering ergo, the moratorium is not quartering.

However... if the gov prevents you from enforcing your property rights claim against someone who is a soldier, then it is not *only* a private actor who just happens to be a soldier violating your property rights. It is occurring *precisely because* the gov has demanded that it be so. It does become a conflict between landlord and Gov, where the otherwise private citizen who happens to be a soldier, becomes a third party (just as a soldier would be in a case of clear and obvious violation of the quartering act).

There may well be arguments that the moratorium does not run afoul of the quartering act, but that the soldier in question being a soldier by happenstance *once the gov becomes involved* does not seem the right place to discount the argument.

[Aladdin's Carpet]

Sure, he happens to be a solider. But the solider isn't acting as an officer of law, he is acting as a private individual renting a property.

Its the same idea that a police officer, off duty, does not automatically have all the rights of police officers just because that's his day job.

Also ignoring the fact that a contract was signed explicitly allowing the tenant to stay in that place ... sure the tenant violated that contract, but it seems nowhere near what quartering would be as defined in the 18th century.

[Aladdin's Carpet]

I'm just spitballing, I assume I haven't scratched the surface of everything wrong with this.

[Sarcastr0]

Oh, come on.

[Bob from Ohio]

Aren't evictions of the military already prevented/restricted/delayed by the Soldiers and Sailors Relief Act [called something else now]?

Foreclosures are I know. Local rules here require an affidavit about military service.

[Sidney r finkel]

If one takes this seriously (which one should not but some will) it is sad that members of the legal profession, some of whom may have been educated in the law at the expense (partially given the high cost of even state law schools) of the public would have so little to do for the public benefit that they would undertake the endeavor to protect the public from the 'quartering' of soldiers.

See looking at their website one must conclude that this is a giant spoof. So the further sad part is that the legal profession is so poorly thought of by the general public that this spoof is taken seriously.

Consider the following silliness:

"The acronym "ÞALA" was chosen using the Old English character, the Thorn "Þ", which is pronounced as the "th" digraph. Due to shortcuts of typographers, the thorn was substitute with a "Y" in signage, such as "Ye Olde Shoppe". To avoid confusion with Tenth Amendment advocates, but retaining the elegance of a true acronym, the thorn was chosen to represent the digraph in "Third". It also serves as a reminder that ÞALA will serve as a thorn in the side of anyone who attempts unlawful quartering."

Sigh!

[Aktenberg78]

Yet a lawyer's group like Lambda Legal whose raison d'etre is ensuring that a man can bareback another man and ejaculate disease into his lower intestine is all good?

[Rev. Arthur L. Kirkland]

You can’t have a conservative blog in modern America without junior high school-level homophobia.

Well, that and the autism.

[Sebastian Cremmington]

The 3A is about chopping up soldiers into 4 pieces in a house without the consent of the homeowner…the British are an evil and vicious people.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

They have to be hung and drawn first, no?

[Sebastian Cremmington]

It’s inside the house where things gets messy.

[Dr. Ed 2]

"a landlord was privileged to enter upon his land and recover it by force, using violence if necessary"

A retired big-city cop once told me that a lot of "home invasions" were actually landlords seeking to evict a tenant without going through the court process. My guess is that we will see a lot more of that now.

It actually is cheaper -- $2000-$3000 in cash to a couple of street toughs to "encourage" the tenant to move out versus this???

I also suspect that more than a few buildings will catch fire. Amazing the accuracy of those random bolts of lightning....

[Noscitur a sociis]

A retired big-city cop once told me that a lot of “home invasions” were actually landlords seeking to evict a tenant without going through the court process.

No, they didn't.

[Aktenberg78]

I hope so. When governments fail to protect the rights (natural rights, not liberal made up rights) of the people, those people will and are justified in taking matters into their own hands.

[Rev. Arthur L. Kirkland]

Which is more pathetic . . . The right-wing commenters fantasizing about violence that will make them relevant in modern America, or the right-wing law professors fantasizing about becoming relevant in the shaping of our national progress?

[dwb68]

Is it any more of a Hail Mary argument than Mr "It's probably unconstitutional but Nancy hooked me up with a scholar who thinks its worth a try" President Biden?

[loki13]

Yes.

Of the many arguments that you can make against the original Trump/Biden eviction order, the Third Amendment isn't one of them. Not even in the "Hail Mary" sense. It's not even a "ha ha" stupid argument.

Next, while I have always felt that the eviction order was a bad one on policy grounds (after all, there is no free lunch- money not paid by renters will mean money not paid to landlords, who have mortgages, and this tends to have a deleterious effect on the economy), it's also true that:

1. The original order was not found unconstitutional; and

2. While I might disagree with his analysis, especially from a legal realism standpoint (who is on the Supreme Court), I also have to acknowledge that Larrence Tribe isn't some random dude. I don't think that THIS COURT will care about the difference in process, but it is a responsive difference.

But yeah, I expect it to go down in flames.

[sparkstable]

If we read the Justices' ruling... the majority did find it unconstitutional but not a majority were willing to officially make that an operative ruling so as to allow a legal wiggle-room to avoid confrontation between branches. The spirit of the ruling (and thus the essence of what ethically matters) is that the order is unconstitutional. The functional part is that such a ruling was willingly not enforced (which is not the same as ruling it constitutional).

[loki13]

"The spirit of the ruling... "

Great. I love spirit! Go school spirit!

But ... that doesn't matter. Of course, even if they had found that unconstitutional (they didn't, but arguendo), this is a different order.

I suggest re-reading what I wrote. Thanks!

[dwb68]

Kavanagh said it was unconstitutional, he simply lost his nerve and said the case was imminently moot since the order was expiring.

People who say that the order was not found to be unconstitutional are playing chicken with the courts.

[loki13]

"People who say that the order was not found to be unconstitutional are playing chicken with the courts."

Read what I wrote. I know you feel very very strongly about something, but it is difficult to have a discussion about something if you don't understand what was said in your haste to make your point.

Now, if you don't want a discussion, that's cool too.

[dwb68]

Roberts and Kavanaugh are minimalists. To give you another concrete example: In Caetano v Massachusets, the SC decision did not say "Stun guns are protected by the 2nd amendment," instead they gave 3 reasons why the lower court's reasoning was already rejected. Then they gave the court a do over, and magically, now nearly every court agrees that stun guns are protected by the 2nd amendment.

In CDC, the court said it was unconstitutional without making a formal ruling (minimalism at work here). Now you could argue that technically, Kavanaugh's opinion was dicta. However, the lower courts are going to take the hint (unlike you). The case may never even get to the Supreme Court. The lower court may simply say "unconstitutional" and then the SC denies cert, letting the lower court ruling stand, also denying the Biden admin the ability to blame the Supreme Court.

[loki13]

There is no disagreement. I don't know if you are following me.

You asked the following (assumedly rhetorically):
Is this (the Third Amendment) more of a Hail Mary than Biden's Order.

And the answer is yes. Because the TA argument is ... frivolous. It is beyond frivolous. It is stupid. There are so many reasons for that.

The Biden/Tribe Order will likely go down in flames (which is what I said) for reasons of LEGAL REALISM (which is what you just said), but it is also the case that there was not a finding of unconstitutionality, and Tribe did make a major process change that addressed concerns of the Court.

You're not saying anything new here or that I don't know.

[dwb68]

The word "process" does not appear in the SC order once. https://narfocus.com/billdatabase/clientfiles/172/26/4416.pdf

I concede that 0.01% chance > .0001% chance, so maybe one is more of a Hail Mary that the other.

[loki13]

Ugh. Look, this isn't a red car / green car thing. It's about articulable principles (limiting ones). Whether you agree or not, the idea that the CDC set defined parameters involving transmission and relying on the spread of a new variants a significant difference legally; the reason I refer to it as a process difference is because it's a MAJOR difference in process that matters legally (w/r/t statutory authority) with a minor difference in outcome at this time (in terms of area covered).

To put this in very clear terms:
You were establishing, I assume, your partisan bona fides with your statement. But your statement was incorrect; the Third Amendment amicus is a joke. The new Biden order may well lose (I'd certainly bet on it losing) for reasons of legal realism and the current Court , but it isn't frivolous.

[m1shu]

> I also have to acknowledge that Larrence Tribe isn’t some random dude.

I wish we could give that guy any deference. His ideas are horrible.

[SKofNJ]

Good point.

[ReaderY]

I think joke briefs shoud get immunity from frivolous process liability if they’re really, really funny. At least somewhat funny.

Even judges need a laugh every now and then. If you’re sufficiently entertaining, perhaps you should be allowed to get away with it.

Not sure this one qualifies, however.

[loki13]

Looking at the website and original announcement to form the group, it looks like one of those, "Ha ha, this is funny, no one cares about the Third Amendment, let's form a group," that they forgot, at some point, was a joke.

[NormanStansfield]

It's an amusing stretch, but this situation highlights the courts' need to rein in the commerce clause.

[Brett Bellmore]

"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."

But can you really, honestly, say it's being "rented" once he stops paying the rent? At that point it's just being "occupied", I'd argue.

[Bored Lawyer]

Always interesting to raise obscure, little used, Constitutional provisions.

When I was a young associate, my boss represented a certain New York real estate developer whose name rhymes with Rump. Once a woman sued him and claimed he had impressed her into white slavery, thereby violating her rights under the 13th Amendment. Needless to say, the case got tossed.

The associate whose office was next to mine, who was quite a wit, used to then go around and say that he was now an expert in 13th Amendment law.

[loki13]

You know how it's never RICO?

Well, every summer you'd get new summer associates. And inevitably, always, there would be one that would come up with the bright idea of pleading a prima facie tort because they couldn't come up with a cause of action when doing research.

...it's never a prima facie tort. If that's what you're pleading, you've lost.

[A_Lior]

Obligatory Onion link: Third Amendment Rights Group Celebrates Another Successful Year.

[DiversityHire]

Every year or so, I stumble back to the Volokh Conspiracy’s comment section and find that one guy who ruined it still ruining it.

[Gospace]

It is entirely possible there are some military personnel out there gaming the system and not paying rent. If a landlord is aware the tenant is active duty military- a letter to the local base commander saying "This person is attached to your base and not paying rent." should see some quick action. BAQ and VHA are allowances for paying rent- (or house payments, or whatever) if they're not paying- they shouldn't be drawing them....

I'm actually surprised I haven't seen mention of this in milblogs- seems the active duty military hasn't caught on as to how to freeload.

[Amicus]

Late to the party, as ever. My understanding is that forcible billeting was in the nature of a royal command to ensure that:
1. Royal Army personnel were quartered at a time and place convenient for army operations, and
2. Meant to offset the costs of such personnel (especially officers) for room, board, and laundry services, and required a minimum level of service quality.

There was no contract implied in billeting. The suspension of contract/lease rights in this case is just that: an inability to exercise certain rights either provided for in the lease, or, provided by law. This is way outside of my area, but I suspect this is more in line with suspension of habeus corpus than with 3rd Amendment issues.

As for the use of " þ": I could go further than the rote explanation and point out that a similar, older rune known as Thurs is used conventionally as the 3RD rune in the Futhark runic alphabets. The rune Thurs could also refer to a kind of being, a "giant" in Norse mythology. Such giants came in various forms: Ice Giants, Grendel, his mom, and TROLLS.

[The Encogitationer]

Free the U.S.A., you dumb Barrister Sons-O'-Bitches!