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Leave it to Trump to breathe life into the most anachronistic corner of the Constitution

 
Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

[Regarding this story: DC mayor Muriel Bowser takes on Trump, sparks Third Amendment debate with call to remove troops from capital]

Leave it to Trump to breathe life into perhaps the most anachronistic corner of the Constitution.

The Third Amendment prohibits the government from forcing people to house soldiers in peacetime. There are no Third Amendment cases, period. It’s simply never come up, so I have no reliable way to analyze what might happen here if litigation ensues, and it suddenly seems like it might.

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The facts are mostly straightforward: National guard troops are being housed in DC hotels and DC’s mayor wants them out, citing the Third Amendment, with the unique twist that DC is not a state, so it’s often the case that federal law fills in the gaps where state law might apply in an otherwise identical circumstance in, say, New York.

And we can already see that playing out during these protests, with Trump essentially acting as governor of DC, except that he controls the US military. There are also a number of odd federal/state distinctions inherent to the national guard not worth exploring here because so far as DC is concerned, they’re all federal.

Setting aside how the ever-peculiar nature of DC’s lack of statehood impacts the Third Amendment question, the originalists, I imagine, would argue that the hotels aren’t “homes” and that “consent” was given.

But when you consider how the other amendments, notably the second, have been consistently extended to modern times through generous interpretations, you might then argue that the Third Amendment stands for the more general proposition that the federal government cannot force the temporary housing of any occupying military unit. That is: it’s less about prohibiting the government from imposing on particular homeowners than it is about prohibiting the government from using the military to occupy sovereign jurisdictions.

By that interpretation, the Third Amendment works in conjunction with the Posse Comitatus Act (prohibiting the government from using the military to enforce domestic policies) and Insurrection Act (providing the opportunity for limited exceptions to the Posse Comitatus Act’s general prohibition against military involvement in domestic affairs) by prohibiting US military forces from occupying territory, as a military force (obviously distinguished from bases and camps), within the United States.

Actual language: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

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