You don’t hear people discuss the 3rd Amendment to the US Constitution as often as some of the other amendments:
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.
Obviously, the intent was to prevent the government from requiring property owners to house people that they don’t wish to provide shelter to. In those days, no one could have envisioned governments forcing people to house ordinary citizens; the problem was the forcible quartering of soldiers. (BTW, the British government didn’t typically force their soldiers to be housed in occupied homes; rather they forced property owners to house soldiers in commercial property, barns, inns, etc.)
The Supreme Court recently invalidated an eviction moratorium that effectively forced homeowners to provide housing to people that were not paying rent. (Some of those people were presumably soldiers.)
Jacob Sullum at Reason points out that the reasoning behind the CDC’s regulation would have allowed for an almost unlimited control over our lives:
If the CDC’s understanding of its powers were correct, it would have the authority to make any of its frequently contentious COVID-19 recommendations, including its advice on mask wearing by K–12 students and the general public, mandatory. Rather than focus on people who move because they are evicted, it could simply decree that no one is allowed to change residences. It could require every American to be vaccinated against COVID-19. It could unilaterally impose nationwide shutdowns of businesses and order every American to stay home except for “essential” purposes. It could prescribe fines and jail sentences for people who defy those requirements, as it has with the eviction moratorium. And it could do any of these things not just in response to COVID-19 but also to control the spread of any communicable disease, including the seasonal flu and the common cold.
Where does the CDC think it gets this limitless discretion? The Public Health Service Act, which Congress approved in 1944, says “the Surgeon General, with the approval of the Secretary [of health and human services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”
This is one reason why the Constitution is so important. Congress is not authorized to pass regulations that violate the Constitution. Of course it’s not enough to have a constitution, you also need to be willing to enforce the protections it provides. New Zealand’s Bill of Rights (they don’t have a formal constitution like ours) provides for freedom of assembly, but the government recently suspended that right:
New Zealand police said officers were on Queen Street on Friday after hearing a protest was being planned, but only one person arrived with the intention of protesting, Newshub reported.
“Police have been in the area and have spoken to one person who arrived intending to attend the protest. Police spoke to the individual who was encouraged to comply with alert level four restrictions and chose to leave,” a spokesman said.
READER COMMENTS
Andrew_FL
Aug 28 2021 at 3:36pm
It is evident, and disturbing, that a great many people, possibly a majority, hear that list and say “Yes, the CDC absolutely should have the ability to do all those things”
Jake
Aug 28 2021 at 5:08pm
The Supreme Court’s decision was not about the Constitution. Rather, it solely held that Congress had not authorized the CDC to impose an eviction moratorium.*
Thus, the decision says nothing about whether the Constitution allows Congress to impose the moratorium itself (or pass a new statute giving the CDC the authority to do so). As the Court concludes: “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”
(In other cases, litigants have argued that the Constitution does not allow Congress to authorize an eviction moratorium, including on the basis of the Third Amendment, but that issue hasn’t been decided by the Supreme Court.)
*Technically it held that it was very likely that Congress hadn’t authorized the moratorium, and so let a lower court order blocking enforcement of the moratorium go into effect, but it didn’t conclusively decide the issue. This is due to the early stage of the litigation.
Jon Murphy
Aug 28 2021 at 5:30pm
I think we ought to be careful reading in that interpretation to the 3rd Amendment. My understanding is that the Court restricts the 3rd to its literal meaning: armies. There’s really only ever been one 3rd Amendment case and it was limited to the military.
More recently, there was a court case where the government required private owners to give regular access to people the owners did not want (I cannot remember the case name but I believe it was this past year. I remember Ilya Somin discussing it at Reason). The Court struck that down under the 5th Amendment; they called it a Takings. It’s probably more accurate to argue the inability to evict as a takings.
Scott Sumner
Aug 28 2021 at 10:59pm
Yes, I agree. But I do believe that the intent of the framers was that governments wouldn’t force anyone to be housed against the owner’s consent, they just never imagined an attempt being made for non-soldiers. Nonetheless, it’s reasonable for the Court to interpret the amendment as written. And as you say, the takings clause also applies.
Andre
Aug 29 2021 at 10:29am
Note, as written, the amendment says nothing about armies. And it explicitly prohibits forced quartering of a soldier during peacetime:
“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.”
Jon Murphy
Aug 29 2021 at 10:48am
Correct. A soldier is part of an army.
Zeke5223
Aug 29 2021 at 1:31pm
The case involved a California law that required farm owners to allow labor organizers onto farm land for x days a year.
The court noted this was an implied easement and therefore a taking. Fifth amendment requires just compensation for the taking.
The Takings clause is probably the least appreciated but most important clause in the constitution. See Richard Epstein’s book on takings (which was considered radical at the time but has become more main stream in judicial thinking as SCOTUS has given teeth to the takings clause)
Michael
Aug 28 2021 at 7:02pm
It is worth noting that the case just decided by the Supreme Court was a statutory interpretation case, not a constitutional one.
https://www.justsecurity.org/wp-content/uploads/2021/08/21A23.pdf
Indeed, the Supreme Court opinion stated this explicitly: “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”
Congress could pass a law tommorow (it won’t, tomorrow or ever), granting the CDC authority to impose an eviction moratorium and it would be allowed by the Supreme Court.
The law was passed in 1944. The intent behind the law, at the time, was to give CDC broad powers to control the spread of infectious disease. The reason why it did not specify in explicit detail what powers it intended to grant to CDC was because it wanted CDC to be able to react to unforeseen circumstances.
That column is poorly argued.
This law had been on the books since 1944, 75 years before we had a Covid-19 pandemic. Not once since then had CDC tried to “unilaterally impose nationwide shutdowns of businesses […] to control the spread of any communicable disease, including the seasonal flu and the common cold.” Yet there has never been a nationwide shutdown of businesses to deal with the common cold. I wonder why the author of the piece thinks that is that case, if it is something we should all be afraid of.
MarkW
Aug 29 2021 at 8:48pm
I wonder why the author of the piece thinks that is that case, if it is something we should all be afraid of.
That nothing like this had ever been done before (indeed that nobody ever before thought that something like this was even conceivable), is NOT an argument for why this unprecedented power grab is OK. When the government asserts a power, one would at the very least expect them to be able to explain what the limits on that power are. If the government could do anything it deems necessary to control the spread of a communicable disease under this standard, what could it NOT do? The government was not able to articulate any limit on the power it claimed to have under this law. That’s crazy. ‘Trust us, it’s just this once — we’ll never do anything like it again. Probably.” is not a constitutional principle.
Lizard Man
Aug 30 2021 at 1:36am
It would have been nice for the SC to state what limits the CDC had overstepped. Otherwise it doesn’t become judicial law, but rather an arbitrary decision by the court.
MarkW
Aug 30 2021 at 7:16am
If we had sane politics and a sane polity, the law as it stands would be just fine. Everybody could trust that such broad powers would only be used in exceptional and exigent circumstances
Do you recognize that you are making an argument against having a written constitution containing any limits on government power whatsoever? The founders who wrote the constitution never, for a minute, assumed that those who had great power would never abuse it and only use it sensibly and disinterestedly only in ‘exceptional and exigent circumstances’. They assumed that broad, unchecked powers would inevitably be abused and that, therefore, constitutional limits were essential. Such concerns are wired into the DNA of the U.S. republic.
But even if there were no constitution and no bill of rights, this decision would be correct because the law, as written, authorizes the Surgeon General to perform only “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”
The point of including the list of very specific possible actions (‘fumigation’) is to limit the scope of “and other measures”. Otherwise the law would have simply authorized the Surgeon General to take any action he deemed necessary . Nobody involved in the passing of the law envisioned that it was intended to grant the Surgeon General the power of becoming a ‘sanitary dictator’ who could rule by decree.
Lizard Man
Aug 30 2021 at 3:16pm
Britain seems to be doing alright without a constitution. And even some of the founders believed that the US form of government would only work if the members of the polity were “moral and religious.”
Also, I disagree about “other measures”. If the intent of the legislators were to limit the actions of the CDC to only those specified, it is very stupid of them to mention anything other than those actions specified. If you want to limit someone’s actions, you tell them “do x, y, and z.” You don’t say, “oh, you can also do “other things” as well”.
MarkW
Aug 30 2021 at 9:10pm
Alright? Is this kind of thing alright with you (I’m guessing the answer is, sadly, ‘Yes’)? Arrests for offensive Facebook and Twitter posts soar in London
As I said, the intent wasn’t to limit the actions to only those specified, but to limit them to those comparable to those specified. Otherwise (as I said), they’d have listed no actions at all but rather authorized the Surgeon General to take any and all actions that he deemed justified. Which they did not do, and could not have done (it would not be constitutional to create ‘sanitary dictator’ with unlimited powers by law. Congress simply cannot authorize the Surgeon General to override the Bill of Rights in any way he sees fit).
Jerry Brown
Aug 28 2021 at 8:04pm
As far as I know, a military draft is not unconstitutional. And that is far more invasive than saying some of your property rights to a housing unit you don’t live in personally are temporarily suspended. You get drafted into the army in a war you might get killed. There’s really no compensation for that available. Missed rental payments in an emergency can be compensated for in the future. I don’t see what is such a big deal about this.
Scott Sumner
Aug 28 2021 at 11:08pm
You said:
“As far as I know, a military draft is not unconstitutional.”
That’s debatable, indeed many people migrated to America precisely because we had no draft when the country was founded. The founders would have been absolutely horrified that Americans were drafted to fight in Vietnam–imagine George Washington’s reaction. They didn’t put that into the Bill of Rights because they couldn’t even comprehend that America’s government would eventually become that tyrannical (toward white men).
But you are correct that the courts have not ruled the draft unconstitutional. But that’s a horrible precedent to use, as it’s based on the claim that our usual rights are not available during wartime. But the CDC is claiming the right to suspend our liberties at any time, not just during war. Could the government demand that you work on a government construction project for 5 years, against your will? Could they ban you from traveling?
Jerry Brown
Aug 29 2021 at 12:05am
You often say you look at things from a Utilitarian perspective. I’m trying to do that also. Why doesn’t the CDC mandate satisfy your utilitarian leanings? Wouldn’t you agree that a temporary suspension of some property rights can be remediated whereas the costs of increased infection in this pandemic really cannot?
If you want to argue that evicting people will not increase incidence of covid to the point where more harm is done to society than the harm done to people like me through that policy, then fine- that’s an argument.
Yeah, I agree that a military draft is a miserable precedent to cite. But we have lost more people to this virus than in any war we ever had. And it isn’t over yet.
Scott Sumner
Aug 29 2021 at 2:05pm
“If you want to argue that evicting people will not increase incidence of covid to the point where more harm is done to society than the harm done to people like me through that policy, then fine- that’s an argument.”
That’s not just my “argument”, it’s obviously true. We allow football stadiums full of fans and we worry about someone catching Covid while moving from one apartment to another? That view cannot be taken seriously. The eviction moratorium is pure politics, nothing to do with public health.
MarkW
Aug 29 2021 at 8:54pm
We allow football stadiums full of fans and we worry about someone catching Covid while moving from one apartment to another?
And, even more to the point — to my knowledge, no U.S. unit of government has contemplated banning people from moving from one apartment or house to another nor from marrying or moving in with one another, nor from getting divorced or separated, etc. If such actions constituted a serious infection risk, why not?
But what’s worse is the mechanism the government chose to try to prevent evictions. The government was entirely free to budget money to subsidize rent for the needy so that evictions would not be necessary — but to place this entire burden on rental property owners with an executive action is unconscionable. I hope and expect landlords who are unable to collect back rent to win a very large ‘takings’ settlement.
Lizard Man
Aug 30 2021 at 1:40am
I am pretty sure that is what the draft is for. So yes, the federal government probably could get away with that if they really wanted to. Hopefully the powers that be don’t get it into their heads that they need to draft everyone and then use the military to achieve their DIE goals.
Mark Z
Aug 29 2021 at 1:17am
That’s not a terribly convincing argument. Nothing in the constitution says, “everything that’s less bad than the worst thing the government can do is automatically fair game.” The government can execute people. If it can do that, what can’t it to?
Regarding the utility of eviction bans: is there any good reason to believe it helps at all? Is there a good reason to believe that there are even more people who would have to move into more crowded accommodations if evicted than people who currently live in crowded accommodations who would be able to move into less crowded ones if new units were available, but aren’t because of the ban? The public health rationale itself is dubious to begin with.
Jerry Brown
Aug 29 2021 at 2:13am
Very good points. “everything that’s less bad than the worst thing the government can do is automatically fair game.” Yes I understand what you are saying.
The public health reasons that were given are very debatable. And I’m just saying they can be decided in the future while causing less harm in the present. And I’m no expert on health stuff. All I know is that this has been 18 months of crazy that I wish would end.
Andre
Aug 29 2021 at 10:33am
Jerry, I had a conversation yesterday with a friend who owns and manages a handful of properties. He’s had two deadbeat renters. Not people without money, just deadbeat renters who have taken advantage of the moratorium.
There is no practical mechanism to get people to pay.
Also, our county website and the federal government’s website pay lip service to resources being available to landlords, but if you go digging for them, as I did, you find that there is nothing there. Except in some circumstances where the landlord’s income might be very low.
The eviction moratorium is for all practical purposes theft from property owners – many of them of modest means. There is no practical way of them recovering the lost income.
Jose Pablo
Aug 29 2021 at 3:56pm
Justice should be blind. Or it used to should. The “quantity of means” of the victim cannot, by any means, qualify the “theft” that you mentioned.
The same way that saying “mainly ugly people” by no means qualify the sentence “he disfigured people as a hobby” or saying “mainly unhealthy people” does not qualify the sentence “he killed people”
Jens
Aug 29 2021 at 9:14am
Constitutions are often formulated very abstractly and fundamental rights can compete with one another. So there is usually a lot of room for conflict.
The Third Amendment is very specific (“soldiers quartered in (privately) owned houses”). There should be little to interpret or argue about what that means. And there should be practically nothing to generalize about. In many modern constitutions sentences like that are rare.
And so the reference to NZ is miles away from that. The NZ Bill Of Rights Act has a abstract language that positively demands interpretation.
Basic constitutional rights can and must be restricted. The German constitutional law knows the term “Schranke” (“barrier”,”limit”) for this. Especially when basic rights come into conflict with one another, the legislature has no choice but to restrict (some) basic rights if it wants to fulfill its constitutional mandate (!) to protect (other) basic rights.
In Germany, for example, the basic right to exercise one’s profession freely (Art. 12 GG) can be restricted on three levels. The more fundamental this level is, the less the legislature may restrict this right.
For example, nobody should be subjectively forbidden in principle to pursue a profession (one is not born into a profession or prevented from doing so by birth). But the objective form of required training and qualification and the exercise of the profession may be regulated very precisely and elaborately.
New Zealand jurisprudence and legislation may have drawn some inspiration here and there.
But the fact that there is a hierarchy of levels for alarm levels and restrictions indicates that there too – depending on the infection situation – different levels of interventions are allowed.
That actually reads to me like a constitutionally completely normal and in principle unobjectionable drafting of the law and means that the right of assembly (like very other right) may also be restricted at high alarm levels.
A permanent, total and uncontrollable suspension of a constitutional right would of course be something that endangers the core of this right and is unconstitutional (Basic stuff, first semester continental law school).
Whether the alert level is right and whether a restriction may also mean a total ban or a permit with conditions must be given (a condition could of course also simply be a postponement) are topics that can be addressed and which will probably also be discussed by New Zealand lawyers somewhere.
And it is probably precisely this limit of proportionality that is also the point at which the CDC regulations failed. But regardless of this, a restriction of basic constitutional rights does not automatically mean unconstitutionality.
Perhaps a charitable interpretation of all of this is that there are very different understandings of what constitutions (or comparable texts) are.
Perhaps there are states that only want a constitution with clear, concrete sentences, but which at some point actually no longer have any application cases. And there are states with constitutions with abstract languages that are in need of interpretation and which can also respond to new challenges. But then it is unfavorable to simply speak of “constitution” in both cases.
Mark Z
Aug 31 2021 at 12:07am
I don’t think all understandings of what a constitution is are equal. IMO, a constitution’s (or any law’s) usefulness is inversely proportional to how abstract it is. A more vague constitution is, simply put, less of a constitution. A constitution that vaguely prohibits violating people’s rights without specificities is just an empty piece of paper. The way to deal with new challenges is to amend the constitution, not leave it open-ended so politicians can reimagine their powers on the fly. This is because, whatever legal rights people should have, they should at least have the benefit of knowing what rights they have or don’t have, rather than having to constantly wonder how their plans today might be suddenly upended by future political fads.
Michael
Aug 29 2021 at 9:36am
This was not a constitutional case, it was a statutory interpretation case. In its opinion allowing the lower court judgment against the moratorium to tke effect, SCOTUS stated:
https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf
What the court decided here was not that the eviction mortorium was unconstitutional, but that in ordering it, CDC exceeded the authority granted to it by Congress.
The piece quoted here notes that the law under which CDC imposed the moratorium was passed in 1944 for the purpose of allowing CDC to issue regulations to prevent the spread of comminicable diseases. I’ll further note that the authority granted was indtnded to be broad such the CDC could address situations that could not be anticipated by Congress ahead of time.
But the piece quoted here includes a truckolad of hyperbolic slippery-slope nonsense.
Taken literally, the above quote includes the far-fetched claim that the CDC could legally (at least until SCOTUS appeared to narrow its authority this week) have announced that it was going to impose a nationwide SARS-Cov2 vaccination mandate in order to control the spread of the common cold or seasonal flu [2 different viral infections that would be completely unaffected by a SARS-Cov2 vaccine].
I’ll grant that the author probably did not intend to make that claim, but those he did intend were nearly as far fetched. The CDC has the authority to decree that no one is allowed to change residences in order to slow the spread of the common cold? No, it absolutely does not. This is a 75 year old law and the common cold has been soreading around the US for each and every one of those 75 years, yet the CDC has never attempted anything remotly comparable to what the author suggests, whether to address the common cold, seasonal flu, or any other infectious disease known at the time.
I think SCOTUS was wrong to shift CDC’s authority back to Congress, although it might have been right to find the CDC exceeded its statutory authority, albeit for a different reason: that CDC’s issuance of the moratorium as a response to Covid-19 was pretextual – that its real intended purpose was social welfare as opposed to disease control. That argument would have been very convincing in June (the first time it got to SCOTUS) though it is less so today.
As to whether an eviction moratorium constitutes a taking, I think that question is currently working its way through the courts. I don’t think the current judgment against CDC’s ability to issue a moratorium moots tht question, since (presumably) many landlords have suffered financial losses that won’t go away merely because the CDC can no longer issue and enforce the moratorium today. I would expect it to be demed the kind of taking that can be ameliorated by financial compensation and that landlords will eventially be compensated.
Mark Bahner
Aug 31 2021 at 7:09pm
I certainly don’t read it that way! The way I read it is presumably the way it was intended to be read, which was that the CDC could mandate mandatory flu vaccinations (to control the spread of the flu), as well as mandating mandatory SARS-Cov2 vaccinations (to control the spread of COVID-19).
Maurizio Gagliardi
Aug 29 2021 at 10:36am
How does this apply to jury duty thru Zoom? The courts have a lot of rules that I must adhere to during these proceedings. Some of which are impractical. I believe it’s unfair to us the jurors and the accused.
Scott Sumner
Aug 29 2021 at 2:02pm
Michael, Yes, I know that the SCOTUS did not rule the regulation unconstitutional; it is my personal view that the regulation is unconstitutional. I may be wrong, but the evidence for this claim is far stronger than the evidence for the claim that anti-abortion laws are unconstitutional.
I think you are misunderstanding the Reason article; they are not saying the CDC has the power to regulate the common cold, or force people to not move to new houses, they are saying that the logic of defenders of the CDC has that implication. I think we all agree that this interpretation would be absurd. I happen to think the eviction moratorium was also absurd. In other words, the CDC’s powers are not unlimited, and certainly do not include ideas like moratoriums on eviction.
Lizard Man
Aug 30 2021 at 1:54am
The broad and indefinite authority that Congress granted to the CDC doesn’t seem absurd, but rather is necessary to deal with a situation like a pandemic of a novel virus.
It does seem absurd for the CDC to broadly exercise its authority to fight the spread of long established, endemic diseases.
If we had sane politics and a sane polity, the law as it stands would be just fine. Everybody could trust that such broad powers would only be used in exceptional and exigent circumstances. But the US isn’t really a country with much trust anymore. Conservatives would cite Robert Putnam’s research, I think.
robc
Aug 30 2021 at 9:39am
At this point (I would argue as of last September – which may make it long standing too, YMMV), covid is endemic.
Mark Z
Aug 30 2021 at 12:44pm
The distinction between a new disease and an endemic one isn’t clear cut. Every year there are new flu variants, which is why we need to come up with new vaccines every year. Under an interpretation that allows unlimited CDC powers to combar covid, I see no reason it couldn’t do the same thing seasonally with the flu. They could still say it’s an (annual) emergency measure.
Also, it’s at best highly debatable that giving the CDC unlimited power is ” necessary to deal with a situation like a pandemic of a novel virus.” Not many of the policies the CDC has ordered or even advised has been unambiguously helpful.
Jon Murphy
Aug 30 2021 at 1:43pm
Therein lies the famous Madisonian problem: if men were angels…
The point of a Constitution that limits sweeping powers for a government, even in times of emergency, is that there is never likely to be a “sane” politics and polity. There will always be those tempted to misuse and abuse the power. Thus why it is limited.
Law exists not for the “sane” but for the “insane”.
Lizard Man
Aug 30 2021 at 3:26pm
Lincoln violated the constitution, and publicly acknowledged doing so. The Roman Republic flourished for hundreds of years with the institution of periodic dictatorship.
The Romans were able to repeatedly go from brief periods of “tyranny” back to a form of constitutional government, and it seems that at the very least the states of the Union were able to return to constitutional government after the US civil war. Current Americans seem to be incapable of doing this, while prior generations were capable of it.
robc
Aug 30 2021 at 5:45pm
Lincoln should have been impeached and removed from office.
Of course, I think that of nearly every US President. Maybe not William Henry Harrison, not sure he had time to commit and impreachable offense.
Mark Bahner
Aug 31 2021 at 6:57pm
It’s amazing to me how some of the most fundamental aspects of the Constitution are routinely violated without any real discussion.
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