VOLOKH at mail.law.ucla.edu
Wed Dec 5 16:56:33 PST 2001
Is there some statute that authorizes the order at least in general
terms, so that the concern is one of impermissible delegation of
"prescrib[ing] the manner"? Or is there no statute at all? If the latter,
then I think I'd have to agree that this is a pretty clear violation of the
Time of War Clause (to coin a term!).
> -----Original Message-----
> From: Sanford Levinson [SMTP:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Wednesday, December 05, 2001 4:18 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Third Amendment
> Imagine that George W. Bush issued an Executive Order stating the
> "Whereas we are now engaged in a war against terrorism, and whereas it has
> been necessary to call on the reserved forces to come to the aid of their
> country, and whereas the United States does not have sufficient military
> housing for all of these members of the armed forces, and whereas the
> United States does not pay enough to allow these members to procure
> adequate housing in the private market, therefore, as Chief Executive of
> the United States, I hereby order that any homeowners whom I designate
> their homes to any such members of the armed forces who I determine need
> be quartered in their homes."
> Putting to one side that this isn't very well drafted (though, surely, no
> worse-drafted than the Executive Order establishing the possiblity of
> military tribunals), would it pass constitutional muster? I.e., is it
> truly irrelevant that Congress has not authorized any such quartering of
> troops; is the requirement of the Third Amendment that no troops be
> quartered "in time of war, but in a manner to be prescribed by law"
> satisfied by fiat pronouncement by the President?
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