Bush Administration: No Freedom From Government Harassment

The latest property rights case to hit the U.S. Supreme Court is a doozy. Quick background: Harvey Frank Robbins bought a piece of land in Wyoming. The previous owner had agreed in principle to give the federal government an easement over the land. But the government agents neglected to record the easement, so Robbins obtained the land without it. The federal government came back to reclaim the easement, and Robbins refused.

In the Legal Times Tim Sandefur explains what happened next:

"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.

After enduring years of such treatment, Robbins sued, arguing, among other things, that the BLM agents had violated his Fifth Amendment right to exclude others from his property.

The 10th Circuit ruled for Robbins, but the federal government appealed. Conservatives in particular should take note of the stunning argument from U.S. Solicitor General Paul Clement:

"No court," said Solicitor General Paul Clement in his brief, has "ever recognized a constitutional right against retaliation . . . in the context of property rights."

As Sandefur notes, this is a truly astonishing (and revealing) argument. Clement is basically arguing that there is no right against the government harassing you for asserting your constitutionally-protected rights.

But every right is a "right against retaliation." That's sort of the whole point. A citizen of the most repressive regime on earth can still criticize the government, assemble with anti-government activists, and practice his religion. What separates free societies from oppressive ones is what happens to him afterward.

(Via Cato-at-Liberty.)