Hotel dispute with Trump administration tests rarely cited constitutional rights

WASHINGTON (CN) — Hilton Hotels found itself in a public relations pickle this week as the Department of Homeland Security targeted one of its Minneapolis locations, following reports that its staff had cancelled room reservations booked by U.S. Immigration and Customs Enforcement agents descending on the city.

The brief standoff, amplified by right-wing influencers painting the hotel staff as political activists, fizzled after Hilton severed ties with the franchisee operating the Hampton Inn Lakeville.

But Homeland Security’s public pressure raised questions about whether a federal agency could compel Hilton to accommodate its officers — and whether doing so might conflict with a rarely-cited constitutional protection against the government quartering troops in private homes.

The Third Amendment to the U.S. Constitution holds that “no soldier, shall, in time of peace be quartered in any house, without the consent of the Owner, nor in a time of war, but in a matter to be prescribed by law.” The constitutional right has been historically interpreted to shield anyone who has general control over access to a property.

The Department of Homeland Security made no attempt to force the Minneapolis Hilton to house federal agents, and the General Services Administration removed the former Hampton Inn from its approved government lodging programs altogether this week.

Even if the agency had taken such a step, legal experts said it would be difficult to argue the Third Amendment justified hotel staff canceling ICE room reservations, given the amendment’s limited historical jurisprudence. Still, they noted that the amendment is widely understood to protect privacy and could serve as a constitutional check on the Trump administration’s efforts to expand federal power.

The Third Amendment would apply only if the Department of Homeland Security had tried to compel the hotel to provide rooms, said Leonard Niehoff, a University of Michigan Law School professor.

“Even at that juncture, we could expect a disagreement about whether the Third Amendment — which historically was focused on invasions of private homes — comes into play,” Neihoff told Courthouse News.

The Third Amendment has been rarely cited in U.S. litigation. Widely viewed as noncontroversial, it has never been the primary basis of a Supreme Court ruling and has appeared prominently in only one landmark lower court case.

Its best-known application came in the 1982 case Engblom v. Carey, where the Second Circuit held that states could not quarter National Guard troops in privately owned housing during peacetime.

In Engblom, which challenged housing National Guard soldiers in prison staff dorms during a strike, the court ruled the Third Amendment’s protections extend beyond homeowners to tenants and others who control access to a property, such as the prison correctional officers.

Austin Sarat, a political scientist and professor at Amherst College, told Courthouse News that litigants might be able to lean on the ruling in Engblom to challenge an agency such as DHS forcing a hotel to accommodate federal agents, but that such an argument would still be “a leap and a stretch.”

“It’s a commercial establishment,” said Sarat. “On what grounds would they say, we’re not going to have troops here? I think they can make a Third Amendment claim and say that it doesn’t have to be a home, but any kind of interest in property. But it feels to me like it’s a bit of a stretch.”

Niehoff said there are “good arguments” that the Third Amendment could apply if Homeland Security tried to exert federal authority over the Minneapolis Hilton, noting that other rights — such as the Fourth Amendment’s ban on unreasonable searches — have been interpreted to apply beyond private homes.

He added that any such move by DHS could also implicate the Fifth Amendment’s “takings clause,” which limits the government’s ability to seize private property and requires compensation for its use.

For now, it appears unlikely the Homeland Security dispute with the shuttered Minnesota Hilton will produce a landmark Third Amendment ruling. However, as the Trump administration deploys more federal agents and National Guard troops to U.S. cities, a challenge could still emerge.

Sarat wasn’t so sure. “I don’t foresee it,” he said. “The federal government owns lots of buildings and properties all around the country, and I can’t imagine that, if push comes to shove, the federal government isn’t going to be able to quarter ICE agents or anyone else.”

He also opined that there were “plenty” of hotels, motels and other accommodations around the country run by people sympathetic to the administration who he said could be “enlisted” if such a need arises.

But Sarat added that there was a narrow avenue for litigants to possibly invoke the Third Amendment in a future case.

“The way in which it could happen is if the federal government wants to assert that they can put these troops wherever they want them … and really pushes that to the limit, then I could imagine you’d have some kind of arguments about the Third Amendment,” he said. “But it’s kind of a thin read.”

Though a Third Amendment argument against the federal government forcing a hotel to accommodate federal agents might be fraught, experts said there is something to be gleaned from the spirit of this little-remembered constitutional right—and how its historical interpretation as providing a right to privacy can be applied to the current moment.

“The Third Amendment was an effort to limit the sovereignty and sovereign prerogatives of the king,” said Sarat. “The Third Amendment had a political purpose to it, and that political purpose was to say that there are certain places which, no matter how important your need — you being the king — your remit doesn’t go.”

Sarat pointed to the Supreme Court’s majority opinion in the landmark case Griswold v. Connecticut, in which then-Justice William Douglas pointed to the Third Amendment as one constitutional protection which, in a general sense, shielded privacy rights. The professor contended that Douglas had extrapolated a principle from the amendment beyond its bare text.

“There’s an anti-sovereignty principle that goes well beyond property,” Sarat said. “And to the extent that one might believe that the current administration takes a very enlarged view of the prerogatives of the federal government, then the anti-sovereignty principle of the Third Amendment speaks to our current age. In Stephen Miller’s world, it may be that there’s a belief that whatever the federal government needs to do, the rest of us have to accommodate. In that sense, the anti-sovereignty principle of the Third Amendment has some resonance today.”

Meanwhile, in the case of DHS’ ire over room cancellations at the hotel in Minnesota, Sarat forecast that any remedy would more likely be political, rather than legal. “That’s just mobilizing public pushback against the desire of ICE to use whatever this property is.”

Neihoff concurred. “At this juncture, it appears we have someone who has been declined a room for lawful reasons,” he said. “From my perspective, the government’s option is to do what anyone else can do under the same circumstances: complain to management.”

And for now, it appears Homeland Security has taken that approach — and succeeded.

A work crew was seen outside the former Minneapolis Hilton on Thursday, removing its Hampton Inn signage. Hilton said in a statement earlier this week that the franchisee took “immediate action” to resolve the cancellations issued to ICE agents.

Everpeak Hospitality, which owns the former Hampton Inn, said in a separate Monday statement that the cancellations highlighted by DHS were “inconsistent with our policy of being a welcoming place for all.”

“We do not discriminate against any individuals or agencies and apologize to those impacted,” the statement read. “We are committed to welcoming all guests and operating in accordance with brand standards, applicable laws and our role as a professional hospitality provider.”

The Minnesota hotel scuffle comes as the Trump administration this week surged federal law enforcement to Minneapolis, the latest U.S. city to face a heightened federal presence as President Donald Trump undertakes his long-promised mass deportation operation.

Federal agents in Minneapolis have come under intense criticism after an ICE officer on Wednesday shot and killed a 37-year-old woman in her car. The Trump administration has attempted to brand her a “domestic terrorist” and accused her of attacking federal agents with her car, though video footage of the shooting calls those claims into question.

Follow @BenjaminSWeiss