Trump’s National Guard Stunt May Finally Give the Third Amendment Its Moment

Is it legal for Donald Trump to seize control of the National Guard to assist ICE over the objections of state government? Probably not. Despite what the current Supreme Court might say, the Tenth Amendment isn’t just for forced birthing after all. Is it legal to send in the Marines? Even more probably not. But Elon Musk publicly posted that Donald Trump is in the Epstein files so now we’ve got to have martial law to change the headlines. Sorry, that’s just how the world works!

Trump’s current justification for the move — though it’s worth noting this administration plays whack-a-mole with legal arguments all the time, so this may not last — is that protesting ICE disappearing people from their workplaces amounts to a “rebellion or danger of rebellion.” The specific statutory justification, for now, falls short of the full fall of Weimar wet dream that is the Insurrection Act. As is, the troops can only support ICE and not actively police protests.

Either way though, it still seems that the LA protests fall well short of a rebellion since most rebellions notably boast less line dancing.

However, it’s exciting times for law professors already working on their next final.

Silly meme… assuming we’ll still have “Constitutional Law” by next semester.

But buried just beneath this top line Constitutional crisis is another one that law students joke about but never seriously thought might come up in their lifetimes.

THIRD AMENDMENT AVENGERS ASSEMBLE!!!

The Third Amendment, of course, reads that “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.” It’s been such a wildly uncontroversial provision that the Supreme Court has never explicitly touched on it. The closest any court has come to fleshing out the scope of the amendment is Engblom v. Carey, where the Second Circuit ruled that state corrections officers living in state housing couldn’t be kicked out and replaced by the National Guard just because they were striking. And even that decision is more about who owns the right to the “house.”

Despite laying low for a couple centuries, the Third Amendment was made for this moment.

For now, the National Guard troops that Trump called up are sleeping on the floor. That might be good enough for Trump who already seized control of the units without bothering to figure out where they would sleep. Will the government try to press the issue and commandeer better space for them? The Third Amendment faithful are ready for that fight.

Everyone’s pretty cocky about this subject right now, but they might not fully appreciate the right-wing’s growing antipathy toward the Third Amendment, which they’ve decided no longer matters because a rent moratorium happened under the Biden administration. Really makes sense the less you think about it.

This isn’t just a conspiracy… it made its way into a brief by a bunch of landlords angry about the eviction freeze. The argument was, and is, quite stupid. But it should give everyone pause that the echo chamber Trump lives in has already started normalizing the idea of ignoring the Third Amendment.

And Trump stoked Third Amendment doubters during his first term when he fancied more and more military presence in response to police brutality protests following the murder of George Floyd. Nothing came of it at the time as active-duty forces were never deployed and the government found places to put up the Guard, but it got critics agitated about the practice and his apologists geared up with excuses. The closest the country’s come to a full-blown Third Amendment dispute happened in Washington D.C. when Trump placed a Utah National Guard contingent called up in response to the Floyd protest in a hotel booked to house Guard units called up for COVID response. The Mayor demanded the troops outside the scope of the hotel contract leave. Trump blathered about it, but ultimately the Utah troops moved hotels without anyone ever explicitly pushing the Third Amendment issue.

But the pump was primed and the issue might become ripe sooner rather than later.

ICE agents are not, technically speaking, soldiers. But when does law enforcement become militarized enough to count as a soldier? The history and tradition of the amendment would seem more concerned with guaranteeing the right to exclude government personnel from your property, having been conceived as a direct response to the British quartering acts compelling the owners of “inns, livery stables, ale houses, victualing houses,” etc. to let Redcoats crash on their couch.

And it’s as important as ever, because no one wants JD Vance on their couch.

As long as AC Hotel remains an outlier, the Trump administration will probably just shuttle its personnel to another hotel. But if more lodging establishments follow their lead, this is exactly the administration that could test Third Amendment waters.

This is all, of course, bad news for America’s most successful advocacy group according to The Onion.

Well, it was a good run.

The post Trump’s National Guard Stunt May Finally Give the Third Amendment Its Moment appeared first on Above the Law.