Wilkie v. Robbins and the Future of Constitutional Property Rights:

Yesterday's Supreme Court decision in Wilkie v. Robbins is deeply troubling because it suggests that, at least in some cases, there is no remedy for property owners seeking to protect themselves against government retaliation for the exercise of their constitutional property rights. The Court refused to give the plaintiff a damages remedy for the government's violation of his constitutional rights even though it admitted that there was no other adequate remedy available.

As I explained in this post, the facts of the case are as follows: The Bureau of Land Management (BLM) allegedly launched an extensive campaign of harrassment against Wyoming rancher Robbins because of his refusal to grant the BLM an easement across his property without compensation.

Under the Fifth Amendment, government coercion to force Robbins to give up the easement without compensation is a clear violation of the Takings Clause. Because the case is at the "summary judgment" stage (before going to trial), the court must assess all factual claims in the light most favorable to Robbins, because the only issue currently in question is whether the BLM should win even if Robbins' factual claims are accurate.

Nonetheless, the Supreme Court majority refused to grant Robbins a damages remedy against the BLM. This is not in and of itself especially troubling. There are other ways to prevent violations of constitutional rights. For example, the Court majority noted that Robbins could file tort suits against the BLM agents. The problem is that the majority itself admits that those other remedies are inadequate in this case:

Robbins's argument for a [damage] remedy that looks at the course of dealing as a whole, not simply as so many individual incidents, has the force of the metaphor Robbins invokes, "death by a thousand cuts..." It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one's lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals,lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts.

Yet the majority still denies Robbins his request for a damage remedy. This violates one of the most basic principles of constitutional law: the idea that for every constitutional right there must be an adequate remedy. As the Court put it in an obscure little case called Marbury v. Madison:

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

The Wilkie majority violated this principle because of a fear that allowing "action[s] for damages 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."

Justice Ginsburg devastates this argument in her powerful dissent. As she points out, most other government regulations affecting property do not in fact have an impermissible retaliatory motive of the sort Robbins alleged. Moreover, the majority's parade of horribles has not occurred in the case of actions against state governments, despite the fact that damage remedies have long been available for unconstitutional retaliatory action against property rights by state officials.

I would add two points to Ginsburg's analysis. First, under current Supreme Court doctrine, a regulation does not violate the Takings Clause merely because it "affect[s] property interests." In order to qualify as a taking, the action must involve physical occupation of the property by government agents (what the BLM sought to achieve in this case), or the elimination of virtually all of the property's economic value through government regulatory action (see Lucas v. South Carolina Coastal Council). Most other regulations are not takings even if they substantially impair property values. Thus, if Robbins had won this case, government officials need only fear damage suits in cases where they try to punish property owners for refusing to let them physically occupy their property or totally destroy its economic value.

Second, even if the majority's parade of horribles had some real validity, that still isn't enough to justify the Court's decision. By the Court's logic, citizens should be denied remedies for the violation of their constitutional rights any time setting up a cause of action for a remedy would burden the government "too much." However, the whole point of making the Constitution the supreme law of the land is to ensure that adherence to the Constitution trumps ordinary policy considerations, including considerations of cost. Protecting constitutional rights against violation is by definition a higher legal priority than making it more convenient for the government to operate its regulatory schemes.

If protecting a constitutional right really is too burdensome for the government, the proper solution is a constitutional amendment curtailing the right in question - not a judicial decision refusing to protect the right because the Court believes that doing so would inconvenience the government too much.

Justin (mail):
My original post on the topic:

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 harasses 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.

I was off by a little. Ginsburg and Stevens attempted to use the case as a vehicle to try to extend Bivens, and Thomas and Scalia used this as a vehicle to try to kill Bivens. I also missed the pragmatic reasoning that differs this case from Bivens. But I don't think I was that far off - predicting a case to extend Bivens in front of a court this conservative was always wishful thinking, and it has nothing to do with property rights.
6.27.2007 2:17am
Chico's Bail Bonds (mail):
"By the Court's logic, citizens should be denied remedies for the violation of their constitutional rights any time setting up a cause of action for a remedy would burden the government 'too much.'"

IIRC, I remember Volokh one time argued here that there was no right to habeas in the war on terror cases because it would be too burdensome for courts to hear all those petitions.
6.27.2007 2:18am
BruceM (mail) (www):
No man of sense will believe, that [restrictions on state and federal power] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union.
--Alexander Hamilton, Federalist No. 80

Hamilton also notes that it is an "obvious consideration ... that there ought always to be a constitutional method of giving efficacy to constitutional provisions..."

We have this case that provides no remedy, and we have the Freedom From Religion case that says no standing. It's clear the government can do whatever it wants, and no constitutional violations are redressable. Using "standing" to prevent a constitutional claim has always troubled and annoyed me greatly.
6.27.2007 2:44am
Cornellian (mail):
Yet the majority still denies Robbins his request for a damage remedy. This violates one of the most basic principles of constitutional law: the idea that for every constitutional right there must be an adequate remedy.

Is that really such a basic principle? Constitutional law is filled with doctrines, including standing, political questions, sovereign immunity etc. that all result in constitutional wrongs going without a corresponding remedy.
6.27.2007 3:00am
I think it is important to note that Ilya was not arguing that every conceivable constitutional violation had a judicial remedy. Rather, I believe he was referring specifically to violations of constitutional rights unquestionably held by the individual bringing the suit (such as the constitutional right for compensation in a taking of private property, as explicitly protected by the 5th Amendment, which was held by the individual in this case). And for such cases, it is in fact a departure from standard doctrine to suggest that the courts should not craft an adequate remedy for such violations simply because it would be too costly for the government.

But as I noted before, none of this is too surprising. Recently the Court has been quite conciously packed with Justices who are pro-government authoritarians (by both "conservatives" and "liberals", and Republicans and Democrats, alike). Or to put it another way, the Court has been packed with judicial "minimalists" who are trying to "minimalize" their role in enforcing the Constitution and thus to "minimalize" their role in checking the actions of the "more democratic" branches of the government. Or to put it in still other ways, the Court is gradually rejecting the view that the courts can apply "common law" principles and methods to constitutional cases, or rejecting "Warrenism", or so on.

As is so often the case this term, at least Thomas (and Scalia) are being upfront about this: in their brief concurrence, Thomas basically says "Bivens-shmivens" and simply dumps the idea that the courts should be crafting remedies. I think at least Roberts and Alito are heading the same way (and I do not think it is paranoid of me to suspect they have other possible 5th Amendment Bivens actions in mind), but are characteristically being a bit more subtle about it--for now.
6.27.2007 7:52am
Actually, this is all covered by the Zeroth Amendment ("The Pragmatism Amendment") which reads in its entirety: "When convenient, the following will apply:".
6.27.2007 8:31am
Richard Aubrey (mail):
The BLM--or other agencies--will inevitably come down with a case of Weaver Fever and get humble.
Too bad, but that seems to be the only option.
6.27.2007 9:02am
Justin (mail):
The cycle between the belief in the infallible executive and the one which one must take arms up against amongst conservatives is fascinating. Not just involving conservatives in aggregate, but from individual conservatives themselves.
6.27.2007 10:08am
TomH (mail):
Is the striking of evidence for improper search and seizure also "too much" for the government to handle? After all, those rules are pretty complicated. Imagine having to train all of those police.
6.27.2007 10:26am
nyclerk (mail):
It's pretty rich to quote Marbury for the proposition that every violation must have a remedy. The practical import of the Marbury Court's ruling that it didn't have the authority to issue a writ of mandamus was actually that Marbury didn't have a remedy for the violation of his legal right to his judgeship. As that example shows, the lack of legal remedy for a violation of legal rights has a long pedigree; Wilkie is hardly treading new ground.
6.27.2007 11:03am
BruceM (mail) (www):
TomH: yes it is, and it's too much for everyone other than the accused to handle as well. The exclusionary rule's days are numbered. It will be overturned within the next year or two. You can bring a 1983 action for civil damages if the cops violate your 4th Amendment right and improperly take and use evidence at trial. So you can rot in prison for the rest of your life while your 1983 suit gets thrown out on official and qualified immunity grounds.
6.27.2007 11:04am
Jacob Berlove (mail):
Professor Somin,
What about the police professionalism of Hudson v. Michigan? As Justice Scalia, points out, police departments are so well maintained these days that we can be assured that any police officers who acted against the law will be severely punished departmentally. And remember, if you can jump over the tiny barrier called qualified immunity, and are willing to take risk of losing with a jury, you can even get attorney fees! Seems like the same logic should hold for government agencies. Our constitutional rights are not just paper guarantees. Government has finally learned to function so well that there is no need to charge the judiciary with inventing extra-constitutional remedies. All checks and balances on constitutional rights may be assured to come forth within the same branch of government that violated them in the first place.
6.27.2007 11:19am
Richard Aubrey (mail):
Justin. Conservatives don't believe in the infallible executive.
But from time to time, the executive does what conservatives like. So they like him. Until he does something they don't want.
Given what liberal executives do, it is possible to fall too quickly in love with a conservative executive, but we get over it.
But it is conservatives who think of the Second Amendment as something other than a constitutional guarantee you can get a deer tag.
There's a reason.
6.27.2007 11:47am
Justin (mail):

When the things that "conservatives like" involve torture, denial of habeus corpus, trampling on the fourth and fifth amendments, and a theory of the constitutional that leads to absolutely no (nonviolent) accountability or transparency, the idea that your personal ability to arm yourself can stop a government with the arms and technology that it has its disposal is downright absurd. At most, you can simply be a martyr, and in doing so, a nuisance and a scandal - as Waco and Ruby Ridge showed most tragically. So the "I'm gonna shoot me some federal agents" tough talk just seems me amusing to me - its clearly both unsupported huff and vastly hypocritical.

After all, you've shown absolutely no sympathy to those who would be willing to use force against the government to counter torture, the denial of habeus, trampling on the fourth and fifth amendments, and what not - those people who would do so are terrorists, traitors, and enemies of the state. But if a CONSERVATIVE does it, its noble. Such inconsistency is hardly original - I always laugh at the self pronounced "patriots" who wave the rebel flag - but it does not cease to be amusing.
6.27.2007 12:41pm
Casual Observer:
Is there any good reason why a remedy cannot be provided with a legislative enactment? Just because it might be a difficult process is certainly not a good reason. It seems to me that the landowner should spend his hours trying to influence his elected representatives to pass an appropriate law to provide a remedy. The BLM conduct in this case is sufficiently despicable that it should motivate congress to provide a remedy via legislation. Certainly, the landowner will get a lot of support - especially given how easy it is to publicize such information these days.

As appealing to emotion as this case is -- its far from a sufficient reason for the Court to engage in writing legislation.
6.27.2007 12:48pm
Richard Aubrey (mail):
Justin. The exaggerations you provide make discussing such things with you meaningless.
Over at TalkLeft, some years ago, the consensus was that anything that annoyed a prisoner was "torture". I pointed out that hauling in stuff that wouldn't raise an eyebrow at a fraternity initiation, or that wasn't as bad as soldiers endure in training, in order to punch up the numbers would bite them in the ass when the rest of the public found out how the incidents of "torture" were enumerated.
You should know that everbody knows better even if, like you, they pretend not to.
Ditto the rest of your arguments.

And the feds got humble after Ruby Ridge. They handled the supposed republic of texas nutcase and the Montana Freemen the way a law enforcement organization should. But it takes a lesson from time to time.

Adios, my friend.
6.27.2007 1:19pm
Casual Observer,

So to clarify, is it your position that there should be no remedy for a violation of your constitutional rights unless Congress enacts such a remedy through statute?

In fact, do you believe that providing common law remedies requires courts to "engage in writing legislation"?
6.27.2007 1:32pm
Casual Observer:

Absolutely it is my position that there should be no remedy for a violation of constitutional rights unless Congress enacts such a remedy through statute, or, of course, constitutional amendment. It is my position that the courts are not empowered to make up remedies out of thin air.

Secondly, if by "providing" you mean making up new, and previously unexisting, remedies - yes, I believe it requires courts to "engage in writing legislation."

So, is there any good reason why a remedy cannot be provided with a legislative enactment?
6.27.2007 2:28pm
Elliot123 (mail):

Observation shows that whatever an actor does is usually noble in the that actor's eyes. Liberals, conservatives, poets, priests, soldiers, and bums all fall victim to themselves.
6.27.2007 5:06pm