Third Amendment Offers Hope in Refugee Fight

imageIn June a Federal Judge dismissed a Texas lawsuit against federal officials in an attempt to bar Syrian refugees from being settled in the state. Judge David Goodbye rejected the claim that the government failed to consult with state officials as required by the Refugee Act of 1980. The Thomas More Law Center, which specializes in states rights issues, arguing that the program violates the Tenth Amendment.

There could be a better constitutional case to be made by arguing the program violates the Third Amendment, which states:

“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.”

According to Gordon S. Wood of the Constitution Center this is the least litigated amendment in the bill of rights and the Supreme Court has never decided a case on the basis of it. Since there is little case law that means there are no precedents the courts would have to uphold. The Tenth Amendment on the other hand has been virtually interpreted out of the Constitution by the courts, being ignored in recent cases about Obamacare and gay marriage.

Even the Attorney General of Tennessee, one of the states the law center hoped would take up the lawsuit has declined. He stated that the Tenth Amendment argument is “unlikely to provide a viable basis for legal action.” Since the Constitution gives the Federal Government authority over immigration he is probably correct. A Federal Judge will probably throw out any suit on Tenth Amendment grounds by citing article 1 section 8 of the Constitution which states that Congress “shall have power to establish an uniform Rule of Naturalization”.

Now, just because we are talking about refugees, and the amendment specifies soldiers, shouldn’t automatically disqualify this argument. Law scholars have been giving the amendment closer scrutiny in regards to many constitutional issues not involving quartering soldiers, including its possible use in blunting government surveillance of its citizens.

This wouldn’t be the first time judges have departed from the plain text of the Bill of Rights. After all they have found rights and interpretations of law in the “penumbra” of the Constitution. One such right, the right to privacy, was discovered in the penumbra’s of the Fifth and Ninth Amendments.

The principle the amendment encodes, that the federal government cannot force the people to “quarter” persons in their “home” or state without their consent is what matters. Since the government cannot force people to quarter citizens why should they be able to force people to quarter non citizens?

With all the concerns involved with these refugees, including the potential of terrorists being amongst them, we need the states to use all of the tools available to them. The Third Amendment could be the tool that enables them to stop this federal overreach.

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