Eviction Moratorium Faced... Third Amendment Challenge?!?

Swing and a miss.

Somewhere out there, there’s a law student saying, “I’m planning to practice Third Amendment law” and everyone’s going to have a good laugh and move on with their lives. The Third Amendment, barring the quartering of troops during peacetime, has never found its way into a Supreme Court opinion and only slid into an appellate opinion for the first time in the 1980s. But there are, apparently, some lawyers who have made it their mission to stand up for the Third Amendment. Or at least one lawyer. And this “group” took aim at the eviction moratorium.

Amicus curiae, the Third Amendment Lawyers Association (“ÞALA”), hereby files their Brief in support of Plaintiffs’ Emergency Motion. The CDC moratorium on evictions has the tendency to invade the Third Amendment rights of landlords.

The Third Amendment Lawyers Association is primarily the mission of Jay Wolman, Counsel at Randazza Legal Group, who filed this amicus brief. How is the eviction moratorium a Third Amendment issue?

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.

Intriguing, but I don’t think that’s how that works. In fact, the most prominent Third Amendment case I know of was all about preventing a landlord from evicting a tenant in favor of the National Guard because the Third Amendment right vests in the tenant, not the landlord. So it would seem a leap from that case to say the landlord who leased the room to a soldier voluntarily is improperly forced to quarter them just because they temporarily can’t evict them from an apartment the landlord doesn’t live in.

In any event, this challenge is no more as the judge denied the motion as moot in an opinion that generally tracked my treatment of the matter noting that, despite what conservative law professors angling for TV hits might say, the eviction moratorium is entirely legal as of now. The only tea leaves we have from the Supreme Court on the issue is an indication that Kavanaugh is a swing vote on the question depending on the specifics of how broad the moratorium is.

So, alas, the Third Amendment continues its unbroken streak of being largely irrelevant on the day-to-day legal landscape.

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Earlier: Biden Eviction Moratorium Isn’t Illegal No Matter How Many Law School Professors Whine About It


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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