Everyone check your 2026 Bingo cards because we’re not even a week in, and we’ve already got a Third Amendment controversy brewing in Minnesota! A Hilton Hotels franchisee allegedly refused to house ICE forces sent to the state as part of the administration’s most recent anti-immigration surge and rather than accept the private entity’s right to refuse service to anyone… the Department of Homeland Security put them on blast.
We’ve gone two centuries without a Third Amendment challenge — the provision barring the government from forcing people to house troops in peacetime — because we’ve lived in a stable democracy governed by officials and a Supreme Court more or less committed to maintaining the rule of law. But since that’s all gone out the window, we could finally see the Third Amendment’s historic streak as the only member of the Bill of Rights team to duck the Supreme Court all these years.
The second Trump administration first raised the prospect of a Third Amendment fight last year, when the White House sent troops into American cities dead set against a domestic invasion. While the Court put those National Guard deployments on hold, the administration is still sending its forces into cities to harass immigrants — or, more accurately, to harass anyone that ICE thinks might look enough like an immigrant to satisfy the Kavanaugh Stop standard.
ICE officers dispatched to Minnesota need a place to stay and tried to book rooms at a Hampton Inn, part of the Hilton Hotels chain, only to have those reservations canceled by the hotel. Given that other hotels housing Trump’s surges around the country have faced protests, the hotel likely made the prudent business decision to honor its existing guests by not forcing them to wade through a picket line every morning.
Rather than accept this exercise of free market capitalism, the Department of Homeland Security opted to go full Government Karen and demanded to speak to a manager.
ONE STAR. WOULD NOT DEMAND QUARTER HERE AGAIN.
By “This is UNACCEPTABLE,” they mean “this is, of course, well within your rights under the Constitution that we have taken an oath to preserve, protect, and defend.”
Hilton Hotels, for its part, showed all the backbone of an elite law firm and caved immediately.
We have been in direct contact with the hotel, and they have apologized for the actions of their team, which was not in keeping with their policies. They have taken immediate action to resolve this matter. Hilton’s position is clear: Our properties are open to everyone and we do not tolerate any form of discrimination.
ICE is not a protected class, so Hilton is conceding that it does not believe in refusing service to anyone, subject to anti-discrimination laws. Remember this interpretation of “discrimination” the next time they try to throw you out for throwing a kegger in your room.
After the Hampton Inn supposedly resolved the matter, a conservative hidden camera operation showed up at the hotel claiming to be booking rooms for the Department of Homeland Security, only to be told that the hotel management still has a policy against renting to DHS at this time. At least in the edit posted online, the person attempting to make the booking said he was using his “personal” email and that “they’d” need rooms, presumably to keep themselves just outside the range of impersonating a federal officer.
In any event, Hilton corporate accepted the video’s claims and issued another follow up.
The Department of Homeland Security is not commandeering hotel rooms (yet!), but the Third Amendment, patiently sitting on the constitutional bench since 1791 like the Constitution’s third string QB, finally gets called up.
Discussing the case, Professor Kreis quipped:
He’s only half-kidding in that he doesn’t think it would stand up in court, but that it really is worthy fodder for a law review piece.
The Third Amendment was meant to prohibit troops from taking rooms, not renting them out. Assuming the government is still willing to pay, there shouldn’t be a case. But here we have an independently owned and operated business refusing to rent rooms, at any rate, to a customer. If the government just dropped money on the desk and kicked in room doors, it’s hard to say that wouldn’t violate the spirit of the thing. Hilton, as the franchise licensing entity, can tell the hotel’s management to rent to ICE or lose its branding. But in this instance, Hilton is doing this because the federal government is using its pressure and implied threats to compel Hilton to lean on the hotel.
Jawboning became a hot topic of conversation when right-wing anti-vaxxers and conspiracy theorists accused the Biden administration of improperly coercing social media platforms to censor public health misinformation. At that time, the government’s take was that they merely passed along information and left the ultimate decision up to the private companies. Technically, DHS is doing the same here… though if you’re comparing “please consider that these Lysol injection stories will cost lives” to “we’re taking the position that if you don’t comply you’re aiding and abetting murderers and rapists” you’re not really evaluating in good faith.
But it’s the fuzziness of this “Third Amendment jawboning” argument that makes it a potential candidate for a real court case, depending on how this all shakes out. If the local management sticks to its guns and then loses its franchise rights, they have as good a claim as any that the government cost them real money when it leaned on Hilton.
Is it really a First Amendment case? A tortious interference with contract case? Either would probably work out better for the hotel if it got to that point. But if this really did end up in court… we’re begging you to at least throw the Third Amendment claim in there because it’s certainly colorable.
Do it for the sake of our Bingo cards.
The post Homeland Security & Hilton Introduce Us To Third Amendment Jawboning! appeared first on Above the Law.