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Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:

I was going to write a post about Wilkie v. Robbins, the case currently before the Supreme Court that addresses the important question of whether it is permissible for government agencies to retaliate against citizens for exercising their constitutionally protected property rights. But co-conspirator Jonathan Adler has beaten me to it. I do, however, want to add a point to Jonathan's analysis: The very need to address this issue is a sign of the second class status of property rights.

For most other constitutional rights, there is already well-established Supreme Court precedent holding that it is unconstitutional for the government to punish people for exercising those rights. For example, prosecutors cannot punish defendants for exercising their Fifth Amendment right to remain silent. Government officials are forbidden to harass citizens for exercising their free speech rights or their rights to practice their religion. The actions that the federal Bureau of Land Management officials allegedly took to punish Frank Robbins for refusing to give the BLM an easement over his land would clearly be unconstitutional if used to punish him for exercising virtually any other constitutional right. As R.S. Radford and Tim Sandefur point out:

[BLM] agents ordered Robbins to sign over the easement, and when he refused, they grew belligerent. "The federal government doesn't negotiate," one official told him. Instead, they promised that Robbins' refusal would "come to war" and that they would give him a "hardball education." Then they began a vendetta against him that would last to the present day.

They cancelled his right of way over government-owned land, repeatedly harassed the guests at his ranch, cited him for minor infractions while letting similar violations by his neighbors go unnoticed, and brought him up on criminal charges of interfering with federal agents during their duties. The jury acquitted him after deliberating for less than 30 minutes.

If the BLM did the same thing to punish Robbins for exercising his First Amendment right to criticize the agency, his Fourth Amendment right to be free of unreasonable searches and seizures by the BLM, or his right to engage in religious practices that the BLM disapproves of, the unconstitutionality of the agency's actions would be unquestionable. Everyone agrees that these rights would be worthless, or at least gravely impaired, if government could punish people for exercising them. The same point applies to citizens' constitutional right to avoid uncompensating takings of their property in violation of the Fifth Amendment.

Note that this issue is separable from the question of the substantive scope of constitutional property rights. Even if you believe that the scope of constitutional property rights should be very narrow, there is still good reason to forbid the government from punishing people for exercising those (admittedly narrow) rights.

UPDATE: I recognize that, as explained in the SCOTUS Blog, there are two other issues in the case unrelated to the one I focus on here. That, however, doesn't undermine my main point.

UPDATE #2: Some commenters are fixated on the specific facts of this case and on the question of whether Robbins behaved badly. However, as with most Supreme Court cases, the important issues are not the specific details of this case, but the broader legal rule that will be established. If the BLM wins on the issue addressed in the post, ALL constitutional property rights will be denied protection from government retaliation, not just those belonging to owners who behave obnoxiously in some way. Moreover, as a procedural matter, the only issue before the Supreme Court is that of whether or not Robbins' case against the BLM should be dismissed on summary judgment (i.e. - without going to trial). At that stage of the proceedings, courts are required to view the facts in the "light most favorable" to the party that is seeking a trial, in this case Robbins. If the true facts are different from what Robbins claims they are, the BLM will have a chance to prove that in a trial. The only question before the Supreme Court is that of whether a trial is unnecessary because the BLM had a legal right to act as it did, even if Robbins' version of the facts is true.

Related Posts (on one page):

  1. Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:
  2. Is Property Protected from Government Retaliation?
liberty (mail) (www):
However, Communist China is now offically respecting property rights. The world is turning inside out.
3.20.2007 6:48pm
Duffy Pratt (mail):
Whenever someone goes against the wishes of government, and the government decides to play hardball in retaliation, there could be an argument that the retaliation of the government violates the person's "liberty" rights under the Due Process clause. I don't think that argument would fly, so I also don't think you could have retaliation for standing on your 5th Amendment "property" due process rights. So, I think for your argument to be correct, there must be some other source for the property rights you assert. The Takings clause? I don't think that would work here, because there hasn't been any taking or attempted taking.

What I don't get in this case is why the Feds didn't stick by the easement even after the sale. Surely some court would have held that the trivialities of the state property law couldn't stand as an obstacle to the Feds keeping their easement rights. If the states can prevent the Feds from keeping what is rightfully theirs, wouldn't that be an end to the Federal government. cf McCullogh
3.20.2007 6:51pm
Ilya Somin:
Whenever someone goes against the wishes of government, and the government decides to play hardball in retaliation, there could be an argument that the retaliation of the government violates the person's "liberty" rights under the Due Process clause

Not true. Only a relatively narrow range of actions fall within the scope of Due Process liberty rights, as defined by the Courts.

In any event, this case has nothing to do with the Due Process Clause. The right at issue is the right to avoid an uncompensated taking in violation of the Takings Clause. No one doubts that such an uncompensated taking occurs if the government tries to acquire an easement over a private property owners' land, without paying compensation for it.
3.20.2007 6:54pm
magoo (mail):
You say -- "I recognize that, as explained in the SCOTUS Blog, there are two other issues in the case unrelated to the one I focus on here."

There aren't "two other issues" in the case. There are two, and only two, issues in the case: 1) Is there a RICO claim, and 2) is there a Bivens claim.

On 1, those arguing against RICO based on these facts would be making precisely the same arguments if the case involved any other constitutional provision, which thoroughly undercuts your "second-class right" contention. As for Bivens, again, it's simply untrue to say Bivens has been extended to every constitutional right except rights under the Takings Clause. If the court rules against Robbins, it will be because of its reluctance to extend Bivens generally, not because of your second-class right theory.
3.20.2007 6:55pm
Timothy Sandefur (mail) (www):
Prof. Somin--

Note that Justice Breyer's comments in oral argument show how eager he is to preserve the double-standard with regard to property rights. (The others, too, but especially Justice Breyer.) "Is there a threat lurking in that conversation?" he asked. "The number of Government actions that affect criminal charges and so forth are tiny compared to the number of governmental actions that affect people's property. Virtually, I mean, the number of Governemnt actions affecting how people use their property, it's the whole series of law books." This he seems to consider good reason for ignoring the violations of these rights. In simpler language, government tramples on property rights so extensively that it would just take too much work to require government to respect these rights, so we should continue to look the other way.

Well, at least that's consistent with Justice Stevens' decision in Tahoe-Sierra: since it would cost too much to pay people for violating their property rights, we just don't have to pay.
3.20.2007 7:01pm
Duffy Pratt (mail):
I since read the case. It looks like there is some right to exclude others from your property under the Fifth Amendment (not entirely clear if its from the Takings Clause, or some more general theory of emanations of the right to privacy permeating the document). Allowing an action to redress retaliation seems a small step.

I still don't understand why the Feds didn't simply argue that they can't be bound by the Wyoming Recording Statute.

Suppose in this case that BLM had simply withdrawn this guy further access to Federal Lands (which is what most of their retaliation was), and didn't go further by trespassing and filing trumped up charges. Do the Feds also have the right to exclude people from Federal propery, for whatever reason they want (including playing hardball with someone who refuses to recognize an easement that the Feds had possessed but not recorded)?

It looks to me like the Feds were being real jerks here. But I wonder if there is anything else that we don't know that underlies this easement. For example, did the guy actually know about the easement but insisted on standing on his rights because the Feds hadn't recorded it? My guess is that there is more to this than meets the eye.
3.20.2007 7:07pm
Ilya Somin:
There aren't "two other issues" in the case. There are two, and only two, issues in the case: 1) Is there a RICO claim, and 2) is there a Bivens claim.

Incorrect, there is also a third issue of whether the Fifth Amendment of its own accord (independent of any statute) forbids government retaliation for use of property rights. This is separate from the question of whether individual federal agents can be sued for danages under Bivens. See the SCOTUS blog post I linked to in the original post.

As for Bivens, again, it's simply untrue to say Bivens has been extended to every constitutional right except rights under the Takings Clause. If the court rules against Robbins, it will be because of its reluctance to extend Bivens generally, not because of your second-class right theory.

The Bivens issue (whether individual federal agents can be sued for damages for violating a particular constitutional right) is separate from the more general issue of whether it is unconstitutional for government to retaliate against citizens for exercising those rights. The latter can be true even if a Bivens action for damages is unavailable. And the latter IS clearly true for most if not all individual constitutional rights other than property rights.
3.20.2007 7:10pm
Dick Schweitzer (mail):
Why can't focus be made on "Rights in, or rights to" Property, rather than on the inference that property (the concept) is a right?
3.20.2007 7:42pm
Justin (mail):
I disagree with Professor Somin's formulation, and believe that this is an attempt to raise property rights far and above all other constitutional rights. I think his dismissal of Duffy Pratt's point is both incorrect and (being incorrect) proves my argument. If the government harrasses someone for all sorts of reasons - including for failure to plea guilty to a crime (a constitutional right, no?) - and Robbins wins, then unless we create "property rights nexus" exception that puts property rights on a pedestal, we truly are putting the determined decision to protect one's property rights above one's determined decision to protect one's liberty interest. The lower court assumes, but does so incorrectly, that similar fact patterns involving the First Amendment would go the same way - as a practical matter, if not a legal one, that's incorrect.

Prediction (FWIW): Either 7-2 or 8-1, with Thomas and maybe Scalia dissenting. Outside shot at 9-0.
3.20.2007 8:03pm
Ilya Somin:
If the government harrasses someone for all sorts of reasons - including for failure to plea guilty to a crime (a constitutional right, no?) - and Robbins wins, then unless we create "property rights nexus" exception that puts property rights on a pedestal, we truly are putting the determined decision to protect one's property rights above one's determined decision to protect one's liberty interest

If the other "Reasons" for which government harrasses you is your exercise of a constitutional right, then absolutely you will win, in virtually all cases.

The lower court assumes, but does so incorrectly, that similar fact patterns involving the First Amendment would go the same way - as a practical matter, if not a legal one, that's incorrect.

It is pretty clearly correct both legally and practically. Can you cite any cases that show otherwise? Are there any cases (that haven't since been overruled) where government punished people for exercising a First Amendment right and the courts failed to hold that the government's actions violate the Constitution?
3.20.2007 8:42pm
SeaLawyer:
Ilya

The very need to address this issue is a sign of the second class status of property rights.


I am no lawyer but you find very few people more passionate about property rights then myself, but what I see this in case is an example of "if you act like an a**hole you will get treated like one." That is exactly what happened to Robbins. He wanted full access to BLM land, but did not want the BLM and the public to be able to use a road over which a segment crossed his property to access BLM land.
3.20.2007 9:53pm
Jamesaust (mail):
"I still don't understand why the Feds didn't simply argue that they can't be bound by the Wyoming Recording Statute."

It unclear to me what the reasoning would be for this argument.

For Wyoming and many other States (but not the original 13, or Texas, or Hawaii) all land began, legally, as U.S. government land. Throughout U.S. history, Congress, under Art. IV, sec. 3, cl. 1 of the Constitution had to admit new States. As a condition for admission, States (pre-States, really) were forced to give up complete control over lands retain by the U.S., a/k/a, "public lands." But that has nothing to do with land given up that is then purchased, or an easement to land purchased, back. There, the U.S. is no different than any other land owner. The State is sovereign over its lands and controls the recording of purchases.

Only on three types of land does the U.S. maintains sovereignty: 1. navigable waters reserved expressly before admission [Pollard v. Hagan, 1845], 2. land under such waters held for the "public trust" [Illinois Centr. R.R. v. Illinois - 1892], and 3. Art. 1, sec. 8, cl. 16 land, including like authority ("exclusive legislation") over all places purchased for erecting forts, buildings, etc. "by the consent of the legislature of the state."

All other land within a state must comply with the recording statute of the state. Even reserved land - the vast treasure trove of "public lands" - is effectively recorded at the time of statehood.
3.20.2007 11:11pm
Duffy Pratt (mail):
Suppose Robbins did not have land the government had access to. Instead, he offered a service for hire. The government wants to hire him. He refuses, because he only wants to work for private citizens. In response to his refusal, the government does everything that is done in this case.

Would the outcome really be different because the "right of freedom of contract" got overruled?
3.20.2007 11:16pm
Ilya Somin:
Would the outcome really be different because the "right of freedom of contract" got overruled?

As a matter of fact it would be. The government might be in violation of various statutes, but Robbins would not have a constitutional (as opposed to merely statutory) right to compel the government to stop or to pay compensation.
3.21.2007 12:01am
J. F. Thomas (mail):
I would also point out that prosecutors often constantly use threat of trial on a more serious charge to extract a plea on a lesser charge. It happens every day. Doesn't that amount to the same thing?

It is beyond belief that Robbins didn't know about the easement. The seller had the duty to reveal it to him even if it hadn't been properly recorded (and apparently it was the seller's delay in getting it properly signed that caused it not to get recorded). Sounds like the two colluded to pull a fast one on the Feds.
3.21.2007 12:01am
Ilya Somin:
I am no lawyer but you find very few people more passionate about property rights then myself, but what I see this in case is an example of "if you act like an a**hole you will get treated like one." That is exactly what happened to Robbins.

The implications of this case, like most Supreme Court cases, go far beyond the specific facts of what happened to Robbins. The government is arguing that NO constitutional property rights are protected from government retaliation, regardless of wehether the owner acted like an "a-hole" or not. Moreover, people who exercise other constitutional rights are protected from retaliation regardless of whether or not they acted like "a-holes" or not. The same should apply to property rights.
3.21.2007 12:04am
Duffy Pratt (mail):
Jamesaust:

The Property Clause (Art. 4 Sec. 3) gives the U.S. full legislative jurisdiction over all property it owns, no matter when or how it was acquired. Any residual jurisdiction the states have over that property is by favor of Congress.

You may be right about respecting State recording statutes, but there is no reason the Federal government would have to respect those statutes on its land.
3.21.2007 12:08am
Ilya Somin:
I would also point out that prosecutors often constantly use threat of trial on a more serious charge to extract a plea on a lesser charge. It happens every day. Doesn't that amount to the same thing?

No, the government has no preexisting legal right to harrass or punish you without trial. On the other hand, they do have a preexisting right to file criminal charges (at least if they have enough evidence to indict). To the extent that there is a contradiction here, the right to threaten suspects with stronger charges is an anomaly relative to every other nonproperty constitutional right. Certainly, it is illegal for the government to retaliate against people for exercising First Amendment rights, 4th Amendment rights, privacy rights, etc.
3.21.2007 12:11am
J. F. Thomas (mail):
To the extent that there is a contradiction here, the right to threaten suspects with stronger charges is an anomaly relative to every other nonproperty constitutional right.

So in other words, even though you said I was wrong, I am actually right.

Since I am on a roll I will also point out that government can certainly retaliate against people for exercising First Amendment rights. For instance, members of the military are restricted from participating in partisan political activity.
3.21.2007 12:47am
Ilya Somin:
Since I am on a roll I will also point out that government can certainly retaliate against people for exercising First Amendment rights. For instance, members of the military are restricted from participating in partisan political activity.

I don't see much of a roll here. As for speech in the military, government can punish it (to some extent) because members of the military are held to have fewer First Amendment rights than other citizens due to their status as government employees of a special sort - not because they have the same rights, but can be punished more for exercising them.

In any event, are you seriously claiming that government has the power to punish people for exercising any and every constitutional right? If not, what makes property rights different from other rights?
3.21.2007 12:53am
Justin (mail):
Ilya, I think both Thomas's and my point is that not all bad actions give rise to actionable claims, Bivens is a *very* limited right of recovery (despite arguments made by liberals to the contrary), and its that same Kelo irony coming up and haunting liberterians who sided with conservatives as they eviscerated all the other rights in the Constitution, so that when they came for Property rights, the precedent was already clear.
3.21.2007 1:13am
Ilya Somin:
I think both Thomas's and my point is that not all bad actions give rise to actionable claims. Bivens is a *very* limited right of recovery

I have never claimed otherwise. But all efforts to punish people for exercising their constitutional rights DO give rise to such claims, as courts have repeatedly held outside the property rights context. Moreover, as I noted in a previous comment, not all such actions have to be under Bivens (which only regulates suits for damages against individual federal officials). My post does not even attempt to address the Bivens issue in this case, but focuses solely on the separate and broader issue of whether it is unconstitutional for government to punish citizens for exercising their constitutional property rights.
3.21.2007 1:17am
ReaderY:
Although I think the Court should provide a remedy, I think there's good reason for the Court to want to avoid creating a situation where every property dispute with the government becomes a constitutional-rights case and to ask how any remedy could be limited to fairly egregious situations. I don't see a problem with Justice Breyer's questions in that regard.
3.21.2007 1:55am
Ilya Somin:
I think there's good reason for the Court to want to avoid creating a situation where every property dispute with the government becomes a constitutional-rights case and to ask how any remedy could be limited to fairly egregious situations. I don't see a problem with Justice Breyer's questions in that regard.

There is no danger that every property dispute with the government will become a constitutional rights case if Robbins wins. Justice Breyer conflates disputes about property with disputes about constitutional property rights. The two are not coextensive. The former is a much broader category than the latter, as many statutes affect property without affecting constitutional rights. In this case, however, the government agents were allegedly punishing Robbins because of his refusal to give up his property to them without compensation - a clear violation of the Takings Clause (indeed, the clearest possible form of violation).
3.21.2007 2:03am
Ilya Hates the New Deal, That's What It Is (mail):

"If the true facts are different from what Robbins claims they are, the BLM will have a chance to prove that in a trial. The only question before the Supreme Court is that of whether a trial is unnecessary because the BLM had a legal right to act as it did, even if Robbins' version of the facts is true.

...

There is no danger that every property dispute with the government will become a constitutional rights case if Robbins wins. Justice Breyer conflates disputes about property with disputes about constitutional property rights. The two are not coextensive. The former is a much broader category than the latter, as many statutes affect property without affecting constitutional rights. In this case, however, the government agents were allegedly punishing Robbins because of his refusal to give up his property to them without compensation - a clear violation of the Takings Clause (indeed, the clearest possible form of violation)."



I take the point that even if the specific constitutional cause of action being asked for here is created, violations of property rights will still be reviewed under rational-basis scrutiny, but Breyer seems concerned that litigants will simply add to their briefs a "conspiracy to deprive me of property rights" section and thereby push an otherwise weak case past summary judgment. What would be lost is not only judicial deference toward governmental economic regulation, but the de facto immunity from suit the government has so long as it properly passes generally valid laws regulating the economy. You would have many more trials with government agents explaining their actions, which is an aid to a certain kind of populist accountability, but also shifts the presumption we have about government regulators upholding their oaths and acting in good faith. All things being equal, why would we want to force the government to go to trial more often? And, as a libertarian, why would you support the tax raise required to pay for the additional government attorneys?
3.21.2007 6:57am
J. F. Thomas (mail):
In this case, however, the government agents were allegedly punishing Robbins because of his refusal to give up his property to them without compensation - a clear violation of the Takings Clause (indeed, the clearest possible form of violation).

That's not quite true. The compensation, in the form of rights to access to federal land and maintenance of roads on federal land to benefit Robbins, had already been granted to Robbins predecessor. Robbins (and I don't believe he didn't have actual knowledge of the pending easement when he bought the property--if the prior owner didn't tell him about it, then Robbins had a cause of action against him for not revealing that material fact) tried to screw the government by still taking advantage of his transferred benefits of the easement while denying the government's theirs (caused by the foot-dragging of the prior landowner).

This certainly looks like a case of bad facts making bad law.
3.21.2007 9:41am
SeaLawyer:
J.F. Thomas

Robbins (and I don't believe he didn't have actual knowledge of the pending easement when he bought the property--if the prior owner didn't tell him about it, then Robbins had a cause of action against him for not revealing that material fact) tried to screw the government by still taking advantage of his transferred benefits of the easement while denying the government's theirs (caused by the foot-dragging of the prior landowner).


Robbins just wasn't trying to screw the government, he is screwing every single citizen of this country.
3.21.2007 10:39am
SeaLawyer:

ALL constitutional property rights will be denied protection from government retaliation, not just those belonging to owners who behave obnoxiously in some way.


I disagree with that. I think most people are forgetting that there are 2 sets of property rights here. One is Robbins and the other is Public property. If you look at the situation out west without these types of agreements the entire system of property rights falls apart. All one has to do is look at the map and you will see this. If Robbins refuses me the ability to pass through his property why can't I refuse him the same right? What makes this so different than a 1st amendment case is Robbins speech does not limit my speech. In this case his actions limit my access to public property so he can make money on big game hunts.
3.21.2007 10:50am
William Tanksley (mail):
I still don't understand why the Feds didn't simply argue that they can't be bound by the Wyoming Recording Statute.


I'm not a lawyer, nor a law student, but my understanding was that property law is a State issue; the Feds do have to comply with it. My only support for that argument is what I know about the gift tax (as a financial planner) -- a transaction has to meet several requirements in order to be a gift, one of which is that it must be a transfer of property *under the applicable State law*. I know of some exceptions to my rule; for example, the so-called "intellectual property" area is a Federal monopoly; but this exception merely tests the rule, it doesn't break it, because "intellectual property" is the least property-like thing we've invented in a long time (I could spend a long time talking about this, but let me just say I'm not against patents, copyrights, etc.; I just don't think they're so much "property" as they are "the right to regulate other people's freedom as a reward for, and to encourage, original innovation").

...but I *do* think I'd be happier if the original Declaration had read "life, liberty, and property," rather than "life, liberty, and the pursuit of happiness." That's probably just me :-).
3.21.2007 1:16pm
Jamesaust (mail):
Duffy - I do not believe that I agree. The language you cite references the process by which the United States may create new States out of the land it owns and administering territories, not regulating land it continues to own - or as here, acquires - after statehood.

I am unaware of any case involving this clause that is not focused on the District of Colombia - see Hooven &Allison v. Evatt - 1945 - or 'overseas' territories.

In the U.S. Constitution, nowhere do the states cede their territory to the United States (although, many of the original 13 ceded their "western" lands, which today make up present-day Kentucky, Alabama, Michigan, etc.). And that principle is confirmed in the clause you cite: "and nothing in this Constitution shall be so construed as to prejudice any claims ...of any particular state." Your interpretation is incorrect precisely because it would prejudice the claims of Wyoming.
3.21.2007 3:03pm
Duffy Pratt (mail):
Jamesaust:

Look at Kleppe v. New Mexico 426 U.S. 529 and maybe at these articles:

http://www.lectlaw.com/files/con30.htm

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=294502

I don't have the facility here to do the research to support the following statements. I think it's pretty well established, however, that Congress has authority "without limitation" over federal property. That it doesn't matter how the Federal government acquired the property. And that Congress can use its Property power to enact legislation that regulates non-Federal land if the regulation would have an effect on the federal land. (In Kleppe, the court approved legislation that prohibited farmers from killing wild horses on their own land, because it was within the Property Clause power. The same reasoning has been used to uphold regulations against snowmobiling on private land in Minnesota, but I forget the case.) The way the S.Ct. has read the Property Clause, it could easily be as expansive in its reach as the Commerce Clause.
3.21.2007 5:37pm
Viscus (mail) (www):
Well...

What is more important.

Free expression or property?
Life or property?
Liberty or property?

Here is how I would rank them. Life, free expression and liberty, and finally, last and least, property.

Which doesn't necessarily mean that I think the government should win in this case. I would have to look at the casse carefully. But, I do think property rights are less fundamental than some other rights.

If someone points a gun at you, and says "your money or your life" what are you going to give them? It is common sense that property is less important than other rights.
3.21.2007 8:19pm
guest (mail):
An important response to the floodgates problem raised by Justice Breyer is that very few government actions actually involve what the Court has said amounts to a taking of property. So Robbins's claim would not unleash a floodgate of litigation challenging regulations that affect the value of property. Rather, any precedent would only apply to situations in which the government has retaliated against someone who refuses to give up their physical property (or some portion thereof) without receiving just compensation.
3.22.2007 10:24am