Obviously the government (state or federal) can offer subsidized housing to low-income families. We know this because it already does – states do it directly; the feds through grants to states. (And for all I know, perhaps there’s a method by which the feds directly run subsidized housing).
My question is: can the government require, as a term of the lease, conditions that they could not impose on persons who owned their homes or rented from others without government subsidy involved? For example, to facilitate the war on drugs, could a subsidized housing unit require that tenants agree in advance to a search of their apartment without a warrant, if there’s probable cause in the eyes of the building supervisor to believe that drugs are present? Could the lease prevent occupants from criticizing the housing authority in public? Could the lease forbid the possession of guns in the home for personal protection?
With regard to the Fourth Amendment question, court cases seem to indicate that a person’s residence falls under a stricter application of privacy rights - objectively a person is entitled to a considerable amount of privacy at home. Therefore a condition that tenants submit to warrantless searches would not likely pass constitutional muster. The owner of the property must retain reasonable access - that’s all.
With regard to the First Amendment issue, speech restrictions being made a condition of tenancy would not be permissible. The text of the First Amendment is particularly clear in this regard.
It becomes less clear in the matter of the Second Amendment, as reasonable regulations are clearly permissible. Whether restricting gun ownership in public housing is reasonable becomes a question very open to debate.
I don’t see why not. A lease isn’t a law, even if the government writes it. The main distinction, as I see it, is that actions against tenants for violations would be civil rather than criminal.
It’s an interesting question, and I think there’s been at least some court stuff on it, especially on the gun question. There was a case out in San Francisco, where one of the lease conditions of public housing was that individuals not have a gun in the apartment. The NRA took them to court, and I think they reached a settlement in 2009 where San Francisco agreed to drop the lease condition.
Meanwhile, at around the same time, there was an amendment added to a section 8 bill that would explicitly allow public housing residents to keep guns. I don’t know what happened about it, but the New York Times wrote a pretty strident editorial about it at the time:
In regards to warrantless searches, there have been lower court decisions finding them unconstitutional. Here’s an article by Harvey Grossman (Legal Director of the Illinois ACLU), from 1994, about how the ACLU managed to help public housing residents stop warrantless searches in Chicago:
I’m just downloading Unconstitutional Conditions: Is the 4th Amendment for Sale in Public Housing, a student note in 33 Am. Crim. L. Rev 165. It’s old (1995) but should be an interesting starting point - let me know if you want a copy.
I am assuming that bricker is aware of the relevant case law and could answer the legal question in a couple paragraphs. As far as the philosophical questions goes, I would say no.
Subsidized housing is designed to serve individuals who don’t really have free agency in signing a lease since it’s not very likely that they’re going to find affordable shelter otherwise. If they possess the means to negotitate as near-equals with the government, then they shouldn’t have housing subsidies in the first place, unless there is some exceptional condition.
Yeah, exactly. In a certain sense, it’s like charging someone crawling out of the desert $100 for a bottle of water. While libertarians might argue that the man can go elsewhere, I imagine that most of us would recognize that someone in distress may not exactly be in the best bargaining position.
Telling someone on the verge of homelessness that they can have a reasonably price home if they sign away their rights strikes me as a similar kind of exploitation.
The reason why not is that government generally cannot make surrender of one’s constituional rights a condition for receiving a generally accepted benefit. Shervert v. Verner is kind of linked to this concept.
Making religious requirements almost certainly would fail - there just isn’t a government interest there. Drugs is a lot closer call - public housing already does something similar, in that people can lose their homes because of drug activity of which they were not aware. I think it possible that a waiver of the warrant requirement would be upheld, on the basis that the government interest in maintain law and order in public housing communities was sufficient. I don’t think it should be upheld, but I think it might.
I do some eviction work involving subsidized housing. In my state, when an eviction is started, the tenant has a right to an administrative hearing to attempt to resolve the matter. Failing that, the landlord must then file an eviction action in the appropriate Court. I strongly suspect that any “drugs” seized during a search by a landlord are going to be vulnerable to motions to suppress on chain of custody and/or authenticity issues. Cops sometimes struggle with that stuff, so I would expect non-cops to make even more errors…
I have not seen any of the clauses Bricker describes in my cases. If I do, I will likely argue that said clauses are null and void under State law, because they violate the landlord-tenant act–which prohibits certain clauses in leases, and otherwise limits the power of landlords to some degree. I am not particularly confident that such an argument would prevail–but might be willing to take an appropriate case up on appeal if it happens…
I’m not sure that I can follow that reasoning. Shervert appears to deal with the right of an employee to take Sundays off. Kind a far cry from public housing.
Yes and no - the employee was fired for taking Sundays off. She was then denied unemployment benefits (this is from memory, so don’t shoot me if I am wrong). Her idea was that in order to receive unemployment benefit, she shouldn’t be required to sacrifice a religious belief. The court agreed - and held that simply because it was the government giving you something, it couldn’t require you to surrender a first amendment protected right (there freedom of religion). There are other much better Unconstitutional Conditions cases - I just cannot remember them for now.
I’m not a lawyer, but isn’t the government essentially a landlord in these situations and thus there are some things that just can not be enforced if put into a lease? Is the government exempt for landlord-tenant acts?
For example, I know a landlord can not enter an apartment based on ‘I think they’re doing something illegal…’ At best, he can go to the police who get a search warrant, if there is enough reason for a judge to issue one. Similarly, I’m quite sure no judge would enforce a lease that limited my first amendment freedoms to express my opinion of the landlord.
Unconstitutional conditions doctrine is the right category of doctrine. Good luck figuring it out through. Judges and academics are all pretty confused. I’d say the best case law is actually in the property context: Nolan and Dolan. I’ll write more if I get a sec.
That’s perfectly possible - not read those. The joys of law school - things get taught in a very odd way sometimes. We were taught Unconstitutional Conditions in a First Amendment class, so it tended to come up in the religion context.
I don’t think it is that simple, to be honest. If you signed a regular lease with these clauses, I agree it would may not be enforced. However, if you signed a lease that specifically included a clause stating:
then I think it would probably be enforced. Absent, of course, any specific legislation in your jurisdiction outlawing such clauses.
The government doing it, on the other hand, is a very different matter altogether.
I would say it’s analogous to drug testing welfare recipients. I think that’s a horrible idea and a colossal waste of money, but I haven’t seen anyone suggest that it’s unconstitutional.
Department of Housing & Urban Development v. Rucker, 535 U.S. 125 (2002).
A unanimous Court permitted a law allowing the eviction of residents who used drugs, or where drugs were used on their premises by family members or guests. So if your grandson’s friend lights up a blunt, you can be evicted. There is no requirement that you are present, or even that you are aware it is happening. There is no defense that you did not know the person was taking drugs, or that you took all reasonable precautions to prevent someone from taking drugs.
This isn’t as direct as the conditions Bricker mentioned, but it certainly shows the viewpoint of the Court towards this.