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Property Rights' Unlikely Champion in Wilkie v. Robbins:

Yesterday, in Wilkie v. Robbins, the Supreme Court held, 7-2, that a landowner cannot maintain a private cause of action for damages against federal government employees who engage in a campaign of "harassment and intimidation aimed at extracting an easement across public property." The dissent maintained that the Court majority failed to safeguard the "bedrock constitutional right" protected by the takings clause of the Fifth Amendment, which provides that private property cannot be taken for public use without just compensation. If government agents may retaliate against a private landowner who does nothing more than assert his constitutionally protected property rights, and face no legal consequence, property rights will be less secure.

The constitutional guarantee of just compensation would be worthless if federal agents were permitted to harass and punish landowners who refuse to give property without it. The Fifth Amendment, therefore, must be read to forbid government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to uncompensated taking.
Perhaps the most interesting thing about this passage is that it was authored by Justice Ruth Bader Ginsburg, and joined by Justice Stevens. Both were in the Court's majority in Kelo v. New London, and both have voted fairly consistently against the Fifth Amendment takings claims over the past decade. Yet in Wilkie v. Robbins, Justices Ginsburg and Stevens were most sympathetic to the claims of the aggrieved property owner.

See here for Ilya's and my prior posts on the Wilkie case.

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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.

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Barring Bivens Actions for Property Owners:

What makes Wilkie v. Robbins a difficult case is that Robbins is seeking the extension of a judicially created cause of action to cover his circumstances, when a legislatively authorized remedy would be preferable. As the majority framed the central issue:

The first question is whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights, in addition to the discrete administrative and judicial remedies available to a landowner like Robbins in dealing with the Government's employees.
For those who view Bivens and its progeny as Warren Court judicial activism, this is a tough pill to swallow. However much they may wish to protect private property owners from federal bureaucrats, they have no interest in broadening the range of Bivens actions available in federal court. This is the explicit basis for Justice Thomas' dissent. Joined by Justice Scalia, Thomas denigrated Bivens as "a relic of the heady days in which this Court assumed common-law powers to create causes of action," and argued that Bivens and its progeny should be limited 'to the precise circumstances that they involved.'"

If one accepts Justice Thomas' premise that Bivens was wrong and should be limited, then it is obvious that Robbins' claim should fail. Yet Justice Souter's majority opinion is not willing to go this far. Instead, it seeks to maintain the more difficult position that Bivens actions are fully legitimate, but that the Robbins' specific claims are not the sort for which a Bivens-like action should be available. Bivens actions are disfavored, Justice Souter suggests, and there are many reasons, such as the potential availability of other avenues of relief, that can counsel against allowing such actions to proceed.

The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease.
Set alongside Justice Ginsburg's dissent, I do not find Justice Souter's arguments all that convincing. The claim that a deliberate campaign of harassment intended to extort a constitutionally protected property interest is not distinguishable from a government official's "legitimate zeal on the public's behalf in situations where hard bargaining is to be expected" rings hollow. Under what circumstances would legitimate "hard bargaining" by a federal employee include the repeated commission of illegal and tortuous acts, and harassment that extended to efforts to videotape a landowner's guests "even while the guests sought privacy to relieve themselves." I am very sympathetic to the need for line-drawing, lest the approval of a Bivens action produce a rash of meddlesome litigation, but the facts alleged in this case are far from any reasonable line demarcating what actions should be redressable.

Justice Souter's majority opinion eases the way to this result with a muted account of the facts that led to Robbins' suit. In an early footnote Souter says the Court details the facts "in the light most favorable to Robbins" because the case arose on an interlocutory appeal from the denial of the federal employees' motion for summary judgment. Yet as the recitation of the facts in Justice Ginsburg's dissent makes clear, the Souter majority soft-pedals key aspects of the BLM officials' conduct, and ignores others. This serves the rhetorical purpose of downplaying the injustice suffered by Robbins, easing the way for the Court's denial of an avenue for relief, but it also misrepresents the facts for purposes of the appeal.

If an individual should be able to seek money damages against government officials that violate his Fourth Amendment rights, it seems hard to maintain that there is no cause of action for the extended, deliberate campaign of intimidation and harassment of a property owner who has done nothing more than assert his constitutionally protected property rights. Robbins had remedies for some of the actions taken by the BLM, but not all. Moreover, many of the actions, by themselves, would not be worth the cost to challenge. It is only when the BLM officials' actions are taken together that they become something worth fighting over. But under Wilkie, that is precisely what landowners in Robbins' position cannot do.

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Wilkie and the "War on the West":

Any backlash against the Supreme Court's Wilkie v. Robbins decision is likely to come from the West. Robbins' claims resonate in the West in a way it may be difficult for landowners in other parts of the country to appreciate. In many western states government ownership of land is the norm, and private property interests are inexorably intertwined with the interests and authorities of various federal agencies. Approximately one-half of the land west of the Mississippi is owned by the federal government, and in some states the proportion of federal ownership exceeds 80 percent. To complicate matters, in many areas federal ownership forms a patchwork across the landscape, intermingling with private and state land. For this reason, ranchers like Robbins cannot operate without coming into constant contact with federal officials. This de facto dependence on federal lands is difficult for non-westerners to appreciate, and makes western landowners in the West particularly vulnerable to the sort of bureaucratic malfeasance alleged in this case.

Western landowners are also more likely to view Uncle Sam as an undesirable neighbor (apart from any federal subsidies they may receive). In the private sphere, adjoining landowners often accept minor indignities and trespasses without conflict, much as passersby rarely come to blows after brushing by one another on a busy street. Private landowners have a strong incentive to get along with their neighbors, as the benefit when other landowners reciprocate. Relations with the federal government are not quite the same, however. If federal officials decide to adopt a "zero-tolerance" approach, they can make life very difficult for an individual landowner at little cost to themselves. Given the need for rights of way, easements, and access to federal lands, there is ample opportunity for bureaucratic mischief through arbitrary actions. If an agency cancels permits or takes other actions without sufficient justification, he may be able to win his rights back through an administrative appeal, but there is no real remedy against a campaign of harassment and intimidation of the sort Robbins alleged.

Perhaps unintentionally, one effect of the Wilkie opinion may be to increase tensions and hostility between private landowners and federal agencies in the West. Federal officials now know they have less to fear from litigious landowners and may feel emboldened to act more aggressively in pursuing federal interests. Private landowners may also learn that any time they fail to press any legal claim against the government, they are undermining their ability to obtain relief. As the majority notes:

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 relief is now only available for the individuals parts, rather than the whole.

Robbins waited to sue until it was clear he faced a "death by a thousand cuts," at which point he sought relief for the entire harassment campaign. With this avenue closed, the only option for Robbins and other landowners in his position is to litigate and appeal each and every federal action, no matter how piddling or small, that is potentially adverse to the landowner's interests. Indeed, the potential for administrative relief for some of the actions about which Robbins complained was one of bases for the majority's holding. Now that the Court has completely a landowner's ability to seek relief for a series of deliberate actions, there could be an escalation of legal conflict between landowners and government agencies, and it is hard to see how this would be in anyone's interest.

In his majority opinion, Justice Souter details all the instances in which Robbins could have filed administrative actions, appeals, or other claims, but failed to do so. I doubt Robbins, or similarly situated landowners, will be likely to exercise such forbearance in the future. They will lawyer up instead, lest they suffer Robbins' fate. Given the majority's professed concern that allowing Robbins' claim would unleash a waive of similar federal lawsuits, this is quite an ironic twist.

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"Legitimate" and "Illegitimate" Government Motives in Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:

In Wilkie v. Robbins, Justice Souter's majority opinion denied the plaintiff a damage remedy for the government's attempts to harass him into giving up his property rights without compensation, despite the fact that the latter is an obvious violation of the Takings Clause of the Fifth Amendment.

As Jonathan Adler points out, Souter has a hard time distinguishing this case from other instances of government retaliation for exercising a constitutional right where he believes that a Bivens damage remedy is acceptable. He claims that the key difference is the motive for the government's action:

[U]nlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands.

Thus, seeking to acquire land is a "legitimate" government purpose, while punishing an individual for antigoverment speech is not. The problem is, however, that constitutional rights regulate not only the ends that government may pursue, but also the means that it can use to achieve them. In Wilkie, the government's desire to acquire an easement onto Mr. Robbins' property was not in and of itself unconstitutional. However, the effort to achieve this purpose by using coercion and harassment to force the owner to give up the easement without compensation was an unconstitutional means to an otherwise legitimate end.

To take up Souter's First Amendment analogy, it is perfectly legitimate for government officials to try to stimulate public support for their policies. It is not legitimate, however, for them to use the suppression of opposing speech as a means to this end. If they punish antigovernment speakers for their speech, Justice Souter surely would not deny the victims a damage remedy simply because the government's ultimate purpose (increasing public support for its policies) was not in itself unconstitutional. Yet he fails to draw the obvious parallel conclusion in the property rights context. For that reason, his opinion realizes my fear that a victory for the government in this case would reinforce the second-class status of constitutional property rights.

Souter further argues that the government's actions were just an instance of "hard bargaining" to achieve a legitimate end. Government agents repeatedly trespassed on the Robbins' property and harassed his customers (including, as Justice Ginsburg points on in her dissent, videotaping female customers in the act of relieving themselves). Justice Souter himself, while ignoring some critical facts, described the Bureau of Land Management's actions as a a massive six year long campaign against Robbins amounting to "death by a thousand cuts." If the BLM had engaged in the same kind of "hard bargaining" in order to get Robbins to stop criticizing BLM policy or to consent to an otherwise illegal search of his house, Justice Souter and his colleagues in the Wilkie majority would not think of denying him a damage remedy (at least not because the government's ultimate purposes were "legitimate"). Here too, the second class status of property rights rears its ugly head.

Scalia and Thomas are exceptions to this generalization about the majority justices. They would abolish Bivens damage remedies almost entirely, whether the rights violated by the government are property rights or not. The Thomas-Scalia approach is, in my view, deeply flawed. However, it does have the virtue of treating property rights and other rights the same. All would be underprotected to more or less the same degree. If time permits, I hope to do a more thorough critique of the Thomas-Scalia position in a later post.

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Shortcomings of the Thomas-Scalia view of Wilkie v. Robbins and Damage Remedies for Violations of Constitutional Rights:

As promised in my last post, I will now critique the Thomas-Scalia view of Wilkie v. Robbins. The two most conservative Supreme Court justices categorically reject the principle - most clearly established in the 1971 case of Bivens v. Six Unknown Federal Agents - that federal courts may sometimes exercise the power to order the government to pay damages in order to remedy the violation of a constitutional right. As explained in Thomas' concurring opinion (joined by Scalia):

The Court correctly concludes that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), does not supply a cause of action in this case. I therefore join its opinion. I write separately because I would not extend Bivens even if its reasoning logically applied to this case. "Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action." Correctional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (SCALIA, J., joined by THOMAS, J., concurring). Accordingly, in my view, Bivens and its progeny should belimited "to the precise circumstances that they involved." Malesko, supra, at 75.

Thomas and Scalia believe that Bivens was wrongly decided, and its reach should be limited as much as possible. As I noted in my previous post, the Thomas-Scalia view - unlike Justice Souter's majority opinion - has the virtue of treating property rights the same as other constitutional rights. All will receive the same (sometimes inadequate) level of protection.

But that is about the only virtue of the Thomas-Scalia view. In other respects, it is seriously flawed.

The most fundamental duty of the federal courts is to overrule and remedy governmental violations of the Constitution. In some cases, an award of damages is the only adequate remedy available, or even the only possible remedy of any kind. Consider, for example, the case of an innocent man victimized by an unconstitutional search or seizure. The standard remedy of the exclusionary rule is useless to him - at least if he is going to be acquitted anyway. The only feasible way to compensate him for the violation of his rights is an award of damages.

In some cases, other remedies are available, but they are not sufficient to fully remedy the violation of the victim's rights. The Wilkie majority opinion concedes (and Thomas and Scalia do not dispute) that this was true in Wilkie itself. In such situations, it is axiomatic that the courts have a duty to provide a remedy that fully compensates the victim for the violation of his constitutional rights. Any other approach is both unjust to the victim and provides poor incentives for the government by allowing it to avoid bearing the full cost of its actions.

Justices Thomas and Scalia seem to believe that judicial decisions ordering a damages remedy somehow constitute judicial policymaking in a way that decisions ordering other kinds of remedies do not. I agree that damage remedies are sometimes unwise and often inferior to other available remedies. However, I don't see why a damage remedy is inherently more "activist" or more intrusive on the powers of the political branches than alternative remedies such as injunctive relief or facial invalidation of a statute - remedies that Thomas and Scalia consider to be perfectly legitimate. In many cases, an injunction or invalidation of a statute will actually constrain the political branches more than damage payments do.

Some defenders of the Thomas-Scalia position argue that the choice of remedy for rights violations by federal agents should be left up to Congress. If Congress provides an adequate remedy by statute, perhaps the courts should indeed defer to it even if the judges would personally prefer some other remedial scheme. Often, however, Congress will provide either an inadequate remedy or no remedy at all. Congress often cannot be trusted to provide adequate remedies for violations of constitutional rights for exactly the same reasons that it cannot be trusted to refrain from enacting policies that cause rights violations in the first place. The institution of judicial review is necessary precisely because the legislative and executive branches will often be tempted to exceed constitutional limits on their authority. That temptation applies to both rights violations and remedies. Indeed, a legal regime under which the government can get away with refusing to remedy violations of constitutional rights is little different from one without any constitutional limits on government power at all.

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My Legal Times Article on Wilkie v. Robbins:

I have just published an article in the Legal Times on the Supreme Court's important, but largely overlooked, property rights decision in Wilkie v. Robbins. Here's a brief excerpt:

Lost in all the attention devoted to the Supreme Court's more high-profile end-of-term cases was an important property rights decision issued on June 25: Wilkie v. Robbins . . .

In the short run, the main effect of Wilkie is to ensure that some property owners will not have adequate remedies for violations of their constitutional rights by federal government officials. This is a potentially serious problem in Western states . . . where the federal government has extensive landholdings and disputesbetween federal agents and local property owners periodically lead to violations of constitutional rights.

More broadly, Wilkie reinforces the long-standing second-class status of constitutional property rights. In previous cases..., the Court often defined the scope of property rights in a much more restrictive way than is usually applied to "noneconomic" rights such as freedom of speech and religion. In Wilkie, it ensured that even indisputable violations of constitutional property rights will be compensated less adequately than violations of other individual rights.

The article was partly based on several VC posts that I wrote about Wilkie. See here, here, and here.

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