by Timothy Sandefur
Today's decision in Wilkie v. Robbins is a terrible disappointment, and proof once again of the double standards that the Supreme Court applies to property owners as opposed to the government. It's little wonder that home and business owners across the nation believe that their property rights are treated—as the Court itself once put it—as a "poor relation" to other constitutional protections.
One of the important questions in the Robbins case was whether the Fifth Amendment protects a property owner from government retaliating against him when he refuses to give up his land to the government for free. Before Frank Robbins bought his land in Wyoming, the former property owner had executed a deed giving the government an easement over the property. But the government failed to record the deed before Robbins bought the property unaware of it. And that naturally meant that the deed was no longer valid. Rather than negotiating fairly with Robbins, however, the government began a vendetta against him, demanding that he give up his property for no money, and harassing him until he would do so. They bullied him, broke into his property, drove away his customers, threatened him, brought frivolous legal prosecutions against him, and generally made his life hell in the way that only government can do. He filed a lawsuit arguing that this violated his right to say "no" to the government—a right guaranteed by the Fifth Amendment's reference to private property rights. The Pacific Legal Foundation filed this brief in support of Robbins.
But today, the Supreme Court held that Robbins could not recover because the government was simply engaged in hard-nosed "bargaining" with him, and that it had the authority to do so even where those tactics were particularly harsh.
You know how it is—your property has some minor infraction, perhaps, and a government agent decides to make things hard for you by coming down hard on you for it and every other minuscule violation of obscure rules, until you finally can't take it anymore. As Justices Ginsburg and Stevens put it in their dissenting opinion today, the property owner suffers "death by a thousand cuts."
But Justice Souter, who wrote the majority opinion, held that the property owner cannot defend himself in such cases, because the government was only "bargain[ing] hard." The government was acting "as one owner among the rest (albeit a powerful one)," and "[j]ust as a private landowner, when frustrated at a neighbor's stubbornness in refusing an easement, may press charges of trespass every time a cow wanders across the property line or call the authorities to report every land-use violation, the Government too may stand firm on its rights and use its power to protect public property interests."
Yet if any private neighbor did engage in the sort of tactics engaged in here, Robbins would have a cause of action—probably several—for harassment, intimidation, and threats. It's safe to say that if a big corporation—say, IBM or Microsoft or ADM—were harassing people in this way, Justice Souter would be far more sympathetic to the plaintiff who brought such charges. Yet because it is the government—supposedly acting in the public interest—Robbins is not allowed to sue.
The real reason for Souter's conclusion is clear: because government intimidates and abuses property owners so often that allowing such lawsuits would overwhelm the courts: allowing an "action to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations." To allow citizens to sue government agents who are "unduly zealous in pressing a governmental interest affecting property [that is Souter's euphemism for stealing land from innocent American citizens] would invite an onslaught of [lawsuits]."
This argument is often used to bar American citizens from asserting their rights, and in other cases, Justice Souter is roundly against it. Just today, in fact, in the Hein case, Justice Souter rejected the view that allowing taxpayers to sue government for spending its money to support religious institutions would open the door to too many lawsuits. There, in footnote 1 of his dissent, he wrote,
If these claims are frivolous on the merits, I fail to see the harm in dismissing them for failure to state a claim instead of for lack of jurisdiction. To the degree that the claims are meritorious, fear that there will be many of them does not provide a compelling reason, much less a reason grounded in Article III, to keep them from being heard.
But when it comes to property rights, Souter is far less solicitous.
Another example of the double standard comes in Souter's rejection of what he calls "the 'too much' standard." That is, Souter says that Robbins "says that defendants simply demanded too much and went too far," and "[a] 'too much' kind of liability standard (if standard at all)" would be "endlessly knotty to work out."
And yet Justice Souter has shown no such concern when confronted with the infamous Penn Central standard—which is the rule that (supposedly) allows property owners to demand compensation from the government whenever its land-use regulations "go too far." For decades now, property owners have complained that this standard is unworkably vague and that it virtually always allows government to get away with terrible infringements on the rights of home and business owners. In fact, the Supreme Court has never compensated property owners under the Penn Central "goes too far" test. But Justice Souter has followed the vague Penn Central test repeatedly (e.g., Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 643-44 (1993)) because, of course, it allows courts an easy route to ignore the rights of property owners.
The bottom line after the Robbins case is this: federal agents have virtually unlimited power to abuse their otherwise legitimate powers to harass property owners in order to demand that they hand over their land to the government. Given what Judge Janice Rogers Brown once called "the pervasively regulatory state, [filled with] thousands of petty malum prohibitum 'crimes'—many too trivial even to be honestly labeled infractions [but which] are nevertheless public offenses for which a violator may be arrested," People v. McKay, 27 Cal.4th 601, 632 (2002) (Brown, J., dissenting), it will be extremely easy for officials to pester landowners by bringing prosecutions over every minor and insignificant infraction against the land use laws. After such constant petty annoyance, property owners may finally just give up their land to the government. In this way, Robbins may prove ultimately to be worse than Kelo.
Ironically it was Justices Ginsburg and Stevens—who are no friends of property rights, usually—who saw through this ruse. In their dissent in Robbins, they wrote,
Taking Robbins' allegations as true, as the Court must at this stage of the litigation, the case presents this question: Does the Fifth Amendment provide an effective check on federal officers who abuse their regulatory powers by harassing and punishing property owners who refuse to surrender their property to the United States without fair compensation? The answer should be a resounding "Yes."
I am reminded at such times of Frederick Douglass' comments on the Civil Rights Cases: "0 for a Supreme Court of the United States which shall be as true to the claims of humanity as the Supreme Court formerly was to the demands of slavery…! O consistency, thou art indeed a jewel!"