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.