Robbins v. BLM: Supreme Court's Impact on Rights & Property Owners, Study notes of Remedies

Download Robbins v. BLM: Supreme Court's Impact on Rights & Property Owners and more Study notes Remedies in PDF only on Docsity! Death by a Thousand Cuts: Constitutional Wrongs Without Remedies After Wilkie v. Robbins Laurence H. Tribe* I. Introduction Many constitutional violations are discrete events: FBI agents con- duct a warrantless wiretap; a judge enjoins the publication of an article criticizing a political leader; a public school principal fires a teacher for expressing his doubts about the Darwinian theory of evolution; a public school teacher leads her class in a group prayer; a government agency takes private property and refuses to pay just compensation. For these kinds of well-defined and bounded violations, some legal remedy is almost always available to the vic- tim—whether in federal court, in state court, or before an administra- tive agency subject to judicial review. Other constitutional violations consist of an episodic series of small events—events that in isolation may verge on the trivial. But—as the metaphor ‘‘death by a thousand cuts’’ suggests—a series of small harms, in unison or in sequence, can add up to one very large harm indeed. This article explores the problems raised by those constitutional wrongs that consist of such patterns of behavior. It does so through a close examination of the Supreme Court’s recent decision in Wilkie v. Robbins,1 a case that addressed precisely the sort of pattern that, viewed as a whole, can render unconstitutional the conduct involved, and the plan to engage in it. I should disclose at the outset that I represented the respondent, a cattle rancher named Frank Robbins, pro bono before the Supreme *Carl M. Loeb University Professor, Harvard University. For excellent research assistance with this article, I thank Emily Gumper, Harvard Law School J.D. 2007, and Daniel Gonen, Harvard Law School J.D. 2007. For any errors, I of course have myself to blame. 1 127 S. Ct. 2588 (2007). A : 97901$CH11 09-10-07 06:09:11 Page 23Layout: 97901 : Start Odd 23 CATO SUPREME COURT REVIEW Court, working with the Harvard Law School Supreme Court Litiga- tion Clinic. His case involved a pattern of harassment, intimidation, and threats by federal employees who demanded that he grant an easement to the public. The pattern involved federal government officials who sought to wear down his resolve in insisting that the government either negotiate a purchase of the easement or take it through eminent domain and pay him just compensation. But this article is about more than just one Supreme Court case. It is about property rights in general because, after Robbins, government offi- cials have a blueprint for obtaining private property without having to pay for it. All they need do is single out a property owner and gradually bring the government’s vast regulatory and other powers to bear on the owner’s shoulders, making it clear that the resulting burden will be lifted if—but only if—the owner will simply ‘‘give’’ some valuable property interest to the government.2 More broadly, however, this article also addresses constitutional rights generally, exploring the future viability of constitutional tort suits against fed- eral officials under the Supreme Court’s Bivens line of cases.3 I argue that the Supreme Court’s decision in Robbins dealt a severe and unjustifiable blow both to individual rights—including, but not lim- ited to, rights of private property—and to the role of Bivens remedies in implementing those rights, thus making them real. The Court’s Bivens analysis in Robbins acknowledged that both state and federal avenues of relief could well prove inadequate in the kind of situation Robbins faced—and did indeed prove inade- quate to protect Robbins from the cumulative harm he was made 2 All of us are potentially subject to an almost unthinkable degree of government intrusion into our lives and businesses, much of it lawful when engaged in for lawful purposes. One need only imagine having a police officer constantly hovering over one’s shoulder ready to impose a fine any time one jaywalks, drives over the speed limit, fails to stop fully at a stop sign, or takes an improper deduction on one’s tax return to understand the damage that government officials could do once they set their minds to it. It simply cannot be the case that, when the government sets out to invoke all of its powers against an individual for the demonstrable purpose of getting that individual to waive a clearly established federal constitutional right, and when that individual is able to prove that, but for this forbidden purpose, those powers would not have been invoked, no remedy is available from the federal courts unless Congress has expressly enacted one. Yet that appears to be the result after Robbins, at least when the right is one that attaches to private property. 3 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). A : 97901$CH11 09-10-07 06:09:11 Page 24Layout: 97901 : Even 24 Constitutional Wrongs Without Remedies After Wilkie v. Robbins property rights are thus once again relegated to ‘‘the status of a poor relation’’ of many other constitutional guarantees.8 The remainder of this article proceeds as follows. Part II discusses the factual background of Robbins and the legal arguments on both sides. Part III then explores the Robbins opinion with regard to its implications for property and other individual rights. Part IV focuses on the Robbins Court’s Bivens analysis and discusses the Court’s willingness to allow wrongs without remedy. Part V focuses on how the Court exceeded thoroughly settled limits on its exercise of interlocutory appellate jurisdiction by reaching the Bivens issue in this case rather than deciding simply whether the conduct by Bureau of Land Management (BLM) officials that Robbins had alleged and sought to establish at trial violated a clearly established constitu- tional right against retaliation for the exercise of one’s Fifth Amend- ment property rights. Part VI then briefly concludes the article. II. The Background of the Litigation: Oh, Give Me a Home Where the Bureaucrats Roam . . . ‘‘Your Easement Or Your Life!’’ A. The Factual Background of the Case In the early 1990s, a Wyoming office of the federal Bureau of Land Management (the BLM) was on a mission to obtain an easement over a portion of the South Fork Owl Creek Road cutting across the High Island Ranch, a privately owned cattle and guest ranch in Hot Springs County, Wyoming. Driven by a wholly legitimate desire to increase already existing access to the national forest abutting the ranch, the BLM was able to convince the ranch’s then-owner, George Nelson, to grant the U.S. government a public easement over the Owl Creek Road in exchange for a right of way over a portion of a nearby road on federal land. In a bungle that initiated the chain of events ultimately leading to this lawsuit, the BLM failed to record the easement Nelson had granted. Shortly afterward, Nelson sold his ranch to Frank Robbins, 8 See James W. Ely Jr., ‘‘Poor Relation’’ Once More: The Supreme Court and the Vanishing Rights of Property Owners, 2004–05 Cato Sup. Ct. Rev. 39 (2005) (arguing that the Supreme Court’s recent Takings Clause jurisprudence threatens the promise of Justice Rehnquist’s declaration in Dolan v. City of Tigard, 512 U.S. 374, 392 (1994), that the Takings Clause should not be ‘‘relegated to the status of a poor relation’’). But see infra text accompanying notes 114–25. A : 97901$CH11 09-10-07 06:09:11 Page 27Layout: 97901 : Odd 27 CATO SUPREME COURT REVIEW who was completely unaware of the government’s easement. Under the applicable Wyoming law, the BLM’s failure to record meant that Robbins took title free of the government’s Nelson easement. Upon realizing their embarrassing mistake, BLM officials called Robbins and ‘‘demanded an easement to replace Nelson’s.’’9 When Robbins proved willing to negotiate a fair price but ‘‘unwilling to capitulate’’ to the BLM’s ‘‘unilateral demands’’10 that he provide the easement free of charge, the BLM officials, apparently just as unwilling to accept the consequences of their own mistake and pursue one of the legally available means for obtaining the easement,11 instigated a campaign of actions designed, as one former BLM employee reported, to ‘‘bury’’ Robbins.12 It quickly became apparent that this was no idle threat. BLM officials embarked on a scheme to ‘‘get . . . [Robbins’s] permits and get him out of business,’’13 engaging in a pattern of egregious misconduct consisting of both independently illegal actions and demonstrable abuses of lawful authority, substan- tiated by ‘‘ample evidence’’14 on the summary judgment record.15 9 Wilkie v. Robbins, 127 S. Ct. 2588, 2593 (2007). 10 Id. at 2609 (Ginsburg, J., concurring in part and dissenting in part). Robbins was informed by one of the BLM officials that ‘‘the Federal Government does not negoti- ate.’’ Id. at 2593. 11 The BLM’s legal options for acquiring that kind of property interest in privately owned land amounted to just three: First, the agency could acquire the property through donation by, purchase from, or exchange with a willing seller or donor. Second, the agency could take the property through eminent domain, but only if certain statutory conditions were met and with the permission of the attorney general. See infra note 145. Third, BLM regulations permit the agency to require an ‘‘applicant for a right-of-way’’ across federal lands, ‘‘as a condition of receiving the right of way, to grant the United States an equivalent right of way that is adequate in duration and rights.’’ It appears that the arrangement the BLM had orchestrated with Nelson relied on those BLM regulations but did not meet their ‘‘equivalence’’ condition, see Brief for the Respondent at 4, Wilkie v. Robbins, 127 S. Ct. 2588 (2007) (No. 06-219) (hereinafter Resp’t Br.), but nothing in Robbins’s claim depended on that failure. Another BLM regulation provides that an applicant for a permit for grazing on federal lands may be required to accord the BLM limited administrative access across private lands for the ‘‘orderly management and protection of the public land,’’ but that proviso could not furnish a legal basis for obtaining the general access to the road demanded by the BLM. See Resp’t Br. at 1-2 (citations omitted). 12 Joint Appendix at 49, 52, Wilkie v. Robbins, 127 S. Ct. 2588 (2007) (No. 06-219) (plaintiff’s third amended complaint, ¶ 42) (hereinafter Joint Appendix). 13 Robbins, 127 S. Ct. at 2594. 14 See Robbins v. Wilkie, No. 98-CV-201-B, 2004 WL 3659189, at *6 (D. Wyo. Jan. 20, 2004) (district court’s order denying defendant’s motion for summary judgment). 15 It is settled that, on an interlocutory appeal from a decision refusing to grant officers summary judgment on the basis of qualified immunity, the district court’s evaluation of the factual proof as to its denial of summary judgment is binding on each appellate court to consider the matter. Johnson v. Jones, 515 U.S. 304, 313–20 (1995). A : 97901$CH11 09-10-07 06:09:11 Page 28Layout: 97901 : Even 28 Constitutional Wrongs Without Remedies After Wilkie v. Robbins The agents’ independently unlawful actions included intention- ally trespassing on Robbins’s land,16 inciting a neighbor to ram a truck into Robbins while he was on horseback,17 breaking into his guest lodge,18 filing trumped-up felony charges against him without proba- ble cause,19 and pressuring other government agents to impound Robbins’s cattle without cause.20 The officials’ actions that might have been lawful in other circumstances but were unauthorized as means to the unconstitutional and thus illegal ends to which they were put here—the extraction, without any payment or exchange, of an easement to which the government had no colorable claim21— included canceling the right-of-way previously negotiated with Nel- son that was to have run with the land;22 filing doubtful administra- tive charges against Robbins and selectively enforcing others,23 and then relying upon these charges to deny Robbins the recreational use and grazing permits essential to his cattle drive business;24 refusing to 16 Robbins, 127 S. Ct. at 2594. 17 Joint Appendix, supra note 12, at 49, 67. 18 Wilkie v. Robbins, 127 S. Ct. 2588, 2596 (2007). 19 Joint Appendix, supra note 12, at 55–56, 68–71; Resp’t Br., supra note 11, at 6–7. 20 Robbins, 127 S. Ct. at 2596. 21 It is necessary to note here the government’s persistent (and persistently mislead- ing) characterization of the defendants as engaged throughout the entirety of the case in ‘‘attempt[s] to secure a reciprocal right of way over private land intermingled with public lands.’’ Cert. Pet. at 10–11, Robbins v. Wilkie (No. 98-CV-201-B) (emphasis added). In support of this strain of argument, the government relied on the authority it had invoked under the BLM regulations in its dealings with Nelson to require an ‘‘applicant for a right-of-way’’ across federal lands, ‘‘as a condition of receiving the right of way, to grant the United States an equivalent right of way that is adequate in duration and rights.’’ Id. at 3. However, as Justice Ginsburg noted in dissent, in its reliance on those regulations, the BLM was at best ‘‘on shaky legal ground,’’ Robbins, 127 S. Ct. at 2609 (Ginsburg, J., dissenting in part), given that Robbins was not himself an applicant for a right-of way, and no law required Robbins to make up for the BLM’s neglectful loss of the first easement. Id. In any event, even assuming the stability of that legal ground, the ground surely caved in by the end of the first year of the BLM’s eight-year campaign, when it cancelled the right-of-way it had negotiated with Nelson. 22 Id. at 2594. BLM officials cancelled the right-of-way in 1995, at the same time canceling whatever dubious argument they may have had for claiming, as they nonetheless continued to do throughout this litigation, that they were merely engaged in attempts to ‘‘secure a reciprocal right of way.’’ 23 Id. at 2595. The Court noted that ‘‘[o]ne Bureau employee, Edward Parodi, was told by his superiors to ‘look closer’ and ‘investigate harder’ for possible trespasses and other permit violations.’’ Id. at 2594. 24 Id. at 2595–96. A : 97901$CH11 09-10-07 06:09:11 Page 29Layout: 97901 : Odd 29 CATO SUPREME COURT REVIEW grounds, and the court denied the motion.33 After discovery, the defendants moved for summary judgment on qualified immunity. The district court denied that motion and defendants appealed that decision. After properly determining that it had interlocutory appel- late jurisdiction to decide the qualified immunity issue under Mitch- ell v. Forsyth’s extension of the collateral order appeal doctrine to orders denying qualified immunity on legal as opposed to factual grounds,34 the court of appeals affirmed, holding that Robbins had ‘‘a clearly established right to be free from retaliation for exercising his Fifth Amendment right to exclude the Government from his private property,’’35 reasoning that ‘‘[b]ecause retaliation tends to chill citizens’ exercise of their Fifth Amendment right to exclude the Government from private property, the Fifth Amendment prohibits such retaliation as a means of ensuring that the right is meaningful.’’36 In addition, the court of appeals—without pausing to consider whether it was acting within its appellate jurisdiction over the defen- dants’ interlocutory appeal of the district court’s qualified immunity decision—entertained the defendants’ argument that the Bivens claim was precluded by the APA and/or the FTCA, and reinstated its holding from the first round of appeals that neither the APA nor any other source of law precluded Bivens relief for violations unrelated to final agency action. The solicitor general, representing the BLM agents, then petitioned for certiorari on the RICO question, the Bivens question, and the qualified immunity question (couched in terms of the existence of a clearly established anti-retaliation right in property rights cases), in that order. The Supreme Court granted certiorari on all three questions. In its eventual decision on the merits, however, the Court did not answer the one question (qualified immunity) without which the case could not have reached it at all in this pre-trial, interlocutory posture. Bypassing that question, and remaining silent on the exis- tence of any anti-retaliation right for property owners, the Court held that, even if such a right had been clearly established, and even 33 The district court dismissed other claims for violations of the Fourth and Fifth Amendments. Those claims are not addressed here. 34 472 U.S. 511, 528–30 (1985). 35 Robbins v. Wilkie, 433 F.3d 755, 765–67 (10th Cir. 2006). 36 Id. at 766. A : 97901$CH11 09-10-07 06:09:12 Page 32Layout: 97901 : Even 32 Constitutional Wrongs Without Remedies After Wilkie v. Robbins if the defendants had knowingly violated it and thus were entitled to no immunity from trial or from liability for damages, they were nonetheless entitled to escape trial altogether inasmuch as the Bivens doctrine gave Robbins no cause of action against the officers who had made good on their threat to ‘‘bury’’ him for standing firm on his Fifth Amendment rights.37 C. The Fifth Amendment Right Not to Have One’s Property Taken by the Government Without Receiving Just Compensation The constitutional claim at the heart of Robbins is one that may at first seem novel to many students of the Takings Clause, but it is, in fact, central to the constitutional protection of private property— and, indeed, to the effective protection of every constitutional right that takes the form of recognizing in individuals an entitlement to choose, within defined constraints, among possible courses of conduct. Obvious examples are the right to choose what to say, whether and how to pray, whether and when to end a pregnancy, and what to do with one’s private property—whether to donate it to the public gratis, or sell it to the public for a fair price.38 In the protection of private property in particular, modern Takings Clause jurisprudence is generally divided into physical takings and regula- tory takings. The claim in Robbins falls into neither camp. It is not a physical takings claim because the BLM never actually claimed to have acquired an easement across his land; and it is not a regulatory takings claim because Robbins never alleged that any legislative or administrative enactment had deprived him of all economically beneficial use of his land or of any distinct bundle of property rights in that land. The thrust of Robbins’s claim was that the BLM agents engaged both in unlawful exercises of their otherwise legitimate regulatory powers and in entirely illegitimate acts—independently illegal acts performed under color of their office but outside their delegated authority—in order to coerce him into relinquishing his property 37 Wilkie v. Robbins, 127 S. Ct. 2588, 2604–05, 2608 (2007). 38 The option of simply holding onto the property forever, or until the public offers whatever extortionate price one might choose to charge, is understood to be beyond the rights that the Takings and Just Compensation Clauses confer whenever exercise of the ‘‘takings’’ or ‘‘eminent domain’’ power is legislatively authorized. A : 97901$CH11 09-10-07 06:09:12 Page 33Layout: 97901 : Odd 33 CATO SUPREME COURT REVIEW without the government being forced actually to ‘‘take’’ it and thereby incur an obligation to pay just compensation. Had it suc- ceeded, this strategy would have accomplished a literal transfer to the government (with no pretense of compensation) of what are unquestionably compensable property rights in a way that would have entirely circumvented the just compensation requirement by making a ‘‘taking’’ of any variety—either literal or regulatory— unnecessary. For the government would never need to exercise its eminent domain power to take property or its lawmaking power to enact regulations that so affect property uses as to constitute a de facto taking—either of which might force it to pay—if it were free instead to leverage the myriad ways in which its powers can be brought to bear on an individual or on any other rights-bearing entity, and use that leverage to force a property owner into surren- dering the owner’s property free of charge. The point is one that could as easily be made with respect to essentially any right of choice protected by the federal Constitution. If a constitutional provision or principle prohibits abridgment of a right that takes the form of a choice someone is entitled to make— for instance, a right to freedom of speech or to the free exercise of religion, or a right to be free from compelled self-incrimination— then government may escape whatever preventive or remedial regime protects persons from deprivation of that right if it is free simply to induce the rights-holder ‘‘voluntarily’’ to relinquish the right, either by threatening to inflict injury by independently unlaw- ful means unless the right is relinquished (‘‘your right or your life!’’), or by threatening to withhold some privilege or benefit that govern- ment is entitled to condition upon other forms of forbearance on the part of the privilege-seeker but not upon sacrifice of the right in question.39 39 The Fifth Amendment’s Takings Clause, like its Self-Incrimination Clause but unlike, say, the First Amendment’s Free Speech Clause or the First Amendment’s Free Exercise of Religion Clause, has long been understood to give the government a clear but costly path along which it may extract what it wants from someone: If you want someone’s property for a legitimate public use such as increasing access to a national forest, use eminent domain and pay the owner just compensation; if you want the psychological ‘‘property’’ held in someone’s mind for a legitimate public purpose such as law enforcement or legislative oversight, swear the person in as a witness and give that witness immunity from criminal prosecution based on his answers or their fruits. Rights to insist that the government pursue the constitutionally designated path if it wishes to obtain one’s property or one’s testimony are uniquely A : 97901$CH11 09-10-07 06:09:12 Page 34Layout: 97901 : Even 34 Constitutional Wrongs Without Remedies After Wilkie v. Robbins In Robbins, the retaliation issue was front and center in that the BLM was indisputably (on the record before the Court) retaliating against Robbins precisely for refusing to surrender his property without compensation and thus waive his Fifth Amendment right. Given that this property right would seem perfectly suited to, and inadequately protected without, an effective remedy against just this kind of circumvention, it is worse than ironic that the Robbins Court displayed no sensitivity whatever to the need for such a remedy. I say ‘‘worse than ironic’’ because, as is well known, the Supreme Court has spent much of the past few decades in a largely unsuccess- ful effort to delineate the situations in which government regulation of property uses amounts to a taking.48 Yet in Robbins the Court turned its back on what amounts to a far more blatant form of government interference with private property rights—a form that cannot be tolerated at all if such rights are to be meaningfully pro- tected. The BLM’s strategy of acquisition through coercive acts that fall short of the direct application of physical force to wrest posses- sion or ownership from a property holder could be used in any number of situations in which government officials want to avoid the procedural or substantive constraints of the eminent domain process. After Robbins, this kind of shadowy end run around the Takings Clause appears not to trigger any form of legal redress.49 (‘‘Retaliation is thus akin to an ‘unconstitutional condition’ demanded for the receipt of a government-provided benefit.’’). 48 See, e.g., Richard A. Epstein, The Seven Deadly Sins of Takings Law: The Dissents in Lucas v. South Carolina Coastal Council, 26 Loy. L.A. L. Rev. 955, 966 (1993); Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles Part I— A Critique of Current Takings Clause Doctrine, 77 Cal. L. Rev. 1299 (1989); Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. Cal. L. Rev. 561, 566 (1984); Jed Rubenfeld, Usings, 102 Yale L.J. 1077, 1081 (1993). For developments in the Supreme Court’s modern regulatory takings jurisprudence, see Keystone Bituminous Coal Ass’n v. Debenedictus, 480 U.S. 470 (1987); Hodel v. Irving, 481 U.S. 704 (1987); First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard, 512 U.S. 374 (1994); Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Tahoe- Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002); and Lingle v. Chevron U.S.A., 544 U.S. 528 (2005). 49 Unless the defendant is a state government official. Presumably, a property owner would have a cause of action against such an official under 42 U.SC. § 1983 (2000). See infra text accompanying notes 87–88. A : 97901$CH11 09-10-07 06:09:12 Page 37Layout: 97901 : Odd 37 CATO SUPREME COURT REVIEW D. An Analysis of the Government’s Arguments in Robbins The solicitor general, arguing for the BLM officials before the Supreme Court, offered several arguments for the surprising claim that no cognizable Fifth Amendment right was involved in Robbins. First, the solicitor general argued that the Fifth Amendment right to just compensation is ‘‘owed by (and can be violated only by) the government itself, not by federal officials in their individual capacity.’’50 But the notion that the Fifth Amendment’s property clauses are uniquely directed against the government does not with- stand even the most elementary look at the constitutional text. The First Amendment, for example, commands that ‘‘Congress shall make no law . . . abridging the freedom of speech,’’51 yet an individual public official can clearly be liable for violating an individual’s free speech rights. In contrast, the Fifth Amendment uses the passive voice in declaring ‘‘nor shall private property be taken. . . .’’52 If one of these amendments had been uniquely directed at the government, surely it would be the First and not the Fifth. More fundamentally, it is a staple of our jurisprudence that the Constitution’s rights- securing strictures are directed not only at government in the abstract, but also at the human agencies and entities through which government brings power to bear upon individuals.53 For the govern- ment to question that foundational principle at this late date ought to have been an embarrassment. Unsurprisingly, the Court did not take up (or even respond to) the invitation to do so. Second, the solicitor general argued that the Constitution’s text ensures that the only remedy for a Takings Clause violation is an award of just compensation—that is, payment to the owner of the fair market value of the taken property—and that the injunctive and declaratory relief and consequential damages Robbins sought were thus constitutionally unavailable for a Takings Clause violation.54 50 Brief for the Petitioners at 29, Wilkie v. Robbins, 127 S. Ct. 2588 (2007) (No. 06- 219) (hereinafter Pet’r Br.). 51 U.S. Const. amend. I (emphasis added). 52 Id. amend. V (emphasis added). 53 See, e.g., Ex Parte Young, 209 U.S. 123 (1908); Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278 (1913). 54 See Pet’r Br., supra note 50, at 43 (‘‘[A] plaintiff may not sue individual government employees for a taking; his sole remedy under the Fifth Amendment is to seek just compensation under the Tucker Act once a taking has occurred.’’). A : 97901$CH11 09-10-07 06:09:12 Page 38Layout: 97901 : Even 38 Constitutional Wrongs Without Remedies After Wilkie v. Robbins According to this argument, Robbins could have had no Fifth Amendment claim unless and until the government actually acquired an easement across his property—something it never suc- ceeded in acquiring—and, even then, he could have sued only for the fair value of the easement, not for the considerably larger amount of damages he suffered as a result of the BLM officials’ campaign of harassment. But a plurality of the justices, including two who were in the majority in Robbins,55 had previously rejected the counter- intuitive notion that a property owner can assert no Takings claim unless and until property has been taken and just compensation has been denied. In City of Monterey v. Del Monte Dunes at Monterey,56 the plurality observed that, when government repudiates its duty to provide just compensation, ‘‘either by denying just compensation in fact or by refusing to provide procedures through which compen- sation may be sought, it violates the Constitution. In those circum- stances the government’s actions are not only unconstitutional but unlawful and tortious as well.’’57 The normal rule that a plaintiff in tort can recover any damages that naturally flow from the injury would then apply. And constitutional torts should be no different in this regard.58 The plurality in Del Monte Dunes observed that the fact that, in most Takings Clause claims, the proper measure of damages will turn out to equal the amount of just compensation ‘‘is neither surprising nor significant.’’59 This is so because in most tak- ings claims—where the government simply takes some property without paying for it—the only injury is the loss of the property taken. In contrast, if government officials showed up at some unsus- pecting person’s home, forcibly removed its inhabitants, smashed 55 The plurality consisted of Justices Kennedy and Thomas, both of whom were in the majority in Robbins, as well as the late Chief Justice Rehnquist and Justice Stevens, the latter joining Justice Ginsburg’s dissent in Robbins. 56 526 U.S. 687 (1999). 57 Id. at 717. 58 See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986) (‘‘[W]hen § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts.’’); Smith v. Wade, 461 U.S. 30, 48–49 (1983) (same); Carey v. Piphus, 435 U.S. 247, 257–58 (1978) (same). 59 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 718 (1999). A : 97901$CH11 09-10-07 06:09:12 Page 39Layout: 97901 : Odd 39 CATO SUPREME COURT REVIEW ‘‘specific source of concern during the revolutionary era’’— ‘‘[u]ncompensated seizures by the military.’’68 The same concern with military impressments during the Revolu- tionary War was probably the main motivating factor behind the Fifth Amendment’s Property Clauses.69 Professor William Treanor, who has written the most extensive scholarly account of the historical background of the Property Clauses, cites two pieces of historical evidence for this proposition. First, in a 1778 essay, John Jay denounced ‘‘the Practice of impressing Horses, Teems, and Carriages by the military, without the Intervention of a civil Magistrate, and without any Authority from the Law of the Land.’’70 Second, St. George Tucker, the ‘‘author of the most prominent constitutional law treatise in the early republic,’’ who provided the ‘‘only more or less contemporaneous statement of why the [Takings] clause was passed,’’71 wrote that the clause ‘‘was probably intended to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practised during the revolutionary war.’’72 Other scholars have endorsed the view that the Property Clauses were chiefly aimed at preventing the unauthorized seizure of property by executive branch officials.73 68 Treanor, supra note 66, at 831. 69 Id. at 835. 70 John Jay, A Hint to the Legislature of the State of New York (1778), in 1 John Jay: The Making of a Revolutionary, Unpublished Papers 1745–1780, at 461 (Richard B. Morris ed., 1975); id. at 462 (‘‘[It is] the undoubted Right and unalienable Priviledge of a Freeman not to be divested . . . [of] Property, but by Laws to which he has assented. . . . Violations of this inestimable Right by the King of Great Britain, or by an American Quarter Master; are of the same Nature. . .’’). 71 Treanor, supra note 66, at 836. 72 Id. at 831–32 (quoting 1 William Blackstone, Commentaries with Notes of Refer- ence to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia 305–06 (St. George Tucker ed., 1803)). 73 See, e.g., Robert Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 Vand. L. Rev. 57, 103 (1999); Andrew S. Gold, Regulatory Takings and Original Intent: The Direct, Physical Takings Thesis ‘‘Goes Too Far,’’ 49 Am. U. L. Rev. 181, 214 (1999); Matthew P. Harrington, Regulatory Takings and the Original Understanding of the Takings Clause, 45 Wm. & Mary L. Rev. 2053, 2067 (2004) (‘‘[A]n examination of the history leading up to the inclusion of the Compensation Clause in the constitutional text reveals the clause was less about concerns with land use regulation or confiscation than it was about military impressments.’’). A : 97901$CH11 09-10-07 06:09:12 Page 42Layout: 97901 : Even 42 Constitutional Wrongs Without Remedies After Wilkie v. Robbins This history suggests that the Framers, while primarily concerned with military seizures accompanied by the use or threat of physical violence, would have been just as disturbed by the unauthorized acts of executive officials who used subtler forms of coercion and intimidation in an effort to obtain private property gratis. It also seems likely that the Framers would have considered those property owners who resisted military impressments and endured injury as a result to have suffered a clear constitutional violation. The solicitor general also argued that there was no anti-retaliation principle implicit in the Fifth Amendment, unlike the First, because the Just Compensation Clause itself provides an incentive to assert Fifth Amendment rights, leaving no reason to worry about a ‘‘chill- ing effect’’ against assertion of the underlying right.74 According to the solicitor general, it is the concern with such a chilling effect alone that justifies the existence of a freestanding retaliation claim in the First Amendment context.75 But it has long been settled that an unwarranted burden on the exercise of a federal constitutional right need only penalize exercise of that right—it need have no deterrent effect at all—in order to be deemed unconstitutional per se.76 And as far as chilling effect is concerned, the fact that Robbins had been invoking his Fifth Amendment rights for a dozen years in numerous forums and managed to hold out to the bitter end as he faced continued retaliation hardly means that the great majority of prop- erty owners would be similarly willing—or able—to stand on their rights while their lives were made to collapse around them. If others in Robbins’s shoes—others who have either shallower pockets or softer spines—are not to be chilled into caving to their governmental tormenters, those who would torment them until they succumb must surely be confronted with the counter-threat that nothing short of a Bivens remedy, limited by the appropriately crafted rules of qualified immunity, can provide. 74 See Pet’r Br., supra note 50, at 14. 75 See id. 76 See Memorial Hospital v. Maricopa County, 415 U.S. 250, 257–58 (1974) (holding that the fact that there was no evidence that a durational residency requirement for free non-emergency health care did not actually deter anyone from exercising his or her right to travel did not save the restriction from strict scrutiny). A : 97901$CH11 09-10-07 06:09:12 Page 43Layout: 97901 : Odd 43 CATO SUPREME COURT REVIEW The solicitor general argued, finally, that allowing Robbins’s Fifth Amendment claim to go forward would unleash a flood of litigation that would cripple federal land management,77 an argument on which the Court seized and expanded.78 There are several responses to this floodgates concern. The first is the basic point made by Justice Harlan in his Bivens concurrence: That the violation at issue attacks the Constitution itself surely implies that concerns about spawning too many lawsuits should never suffice to stay the Court’s hand in framing an otherwise necessary and appropriate federal damages remedy.79 Second, it is unreasonable to imagine that adding Fifth Amend- ment actions to the long list of claims the solicitor general trumpeted as already being available to (albeit insufficient for) an individual such as Robbins—state tort suits, APA actions, and First Amendment suits where the retaliation is against those petitioning the govern- ment for just compensation or other redress80—would make a quali- tative difference in overall litigation burdens. Third, the Court has already developed an elaborate jurisprudence of causation, burden shifting, criteria of seriousness, and the like in First Amendment retaliation cases,81 in right to travel claims,82 in Title VII claims,83 in Batson challenges,84 and under 42 U.S.C. § 1983,85 all of which would be available here. Fourth, and finally, if upholding a Bivens cause of action for viola- tions of the identical Property Clauses of the Fifth and Fourteenth 77 See Reply Brief for the Petitioners at 11, Wilkie v. Robbins, 127 S. Ct. 2588 (2007) (No. 06-219). 78 See Robbins, 127 S. Ct. at 2604. 79 See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 410–11 (1971) (Harlan, J., concurring). 80 See Pet’r Brief, supra note 50, at 27, 40. 81 See, e.g., Hartman v. Moore, 126 S. Ct. 1695, 1704 (2006); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). 82 See Starns v. Malkerson, 401 U.S. 985 (1971), summarily aff’g 326 F. Supp. 234 (D. Minn. 1970) (upholding one-year residency requirement for reduced, instate tuition rate); cf. Sosna v. Iowa, 419 U.S. 393 (1975) (upholding one-year residency requirement for divorce). 83 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 84 See Batson v. Kentucky, 476 U.S. 79 (1986). 85 See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 n.1 (1983). A : 97901$CH11 09-10-07 06:09:12 Page 44Layout: 97901 : Even 44 Constitutional Wrongs Without Remedies After Wilkie v. Robbins that, in extreme instances such as many of those involved in Robbins, could not otherwise lawfully have been imposed for any reason. In Robbins, the Court did the ‘‘inconceivable’’ in effectively holding that federal officials may, without incurring any risk of liability, burden individuals without limit until they surrender their Fifth Amendment right not to have their property taken without just compensation. That holding unquestionably leaves private property rights in worse shape than the Court found them, although it is difficult to be precise about the extent of the damage. On the one hand, the Court did not purport to decide whether the official actions taken in this case were so clearly unconstitutional as to make quali- fied immunity unavailable; indeed, it did not decide whether those actions were unconstitutional at all. Rather, the Court considered only ‘‘whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights,’’91 an undertaking that pro- ceeds on ‘‘the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees.’’92 But, on the other hand, the path that the Court chose came perilously close to contradicting that assumption—in part by its seeming indifference to the fact that its approach left the ‘‘constitutionally recognized interest’’ it assumed had been ‘‘adversely affected’’ worth very little.93 At its root, the Court’s reasoning in refusing to recognize Robbins’s cause of action for damages rested on the view that recognizing claims of the kind he advanced would entail unworkable line-draw- ing along a spectrum of government behavior, at one end of which lies good-faith negotiation within the terms of government’s regula- tory authority and at the other end of which lies unconstitutional coercion. Delineating the bounds of unconstitutional conduct, the Court claimed, would involve an inquiry into whether the official action merely ‘‘went too far’’ and was thus simply ‘‘too much.’’ The Court contrasted the typical retaliation claim it had recognized in the past as instead ‘‘turn[ing] on an allegation of impermissible 91 Robbins, 127 S. Ct. at 2597. 92 Id. at 2598 (emphasis added). 93 Id. A : 97901$CH11 09-10-07 06:09:12 Page 47Layout: 97901 : Odd 47 CATO SUPREME COURT REVIEW purpose and motivation’’ and thus as being susceptible of ‘‘definite answers’’ to a more simple ‘‘what for’’ question:94 A judicial standard to identify illegitimate pressure going beyond legitimately hard bargaining would be endlessly knotty to work out, and a general provision for tortlike liabil- ity when Government employees are unduly zealous in pressing a governmental interest affecting property would invite an onslaught of Bivens actions.95 But, however close cases are to be resolved, the Court was wrong not to see the conduct of the BLM agents in this case as falling so manifestly on the wrong side of the line as to pose no close question at all. The source of the Court’s myopia on this point appears to have been its evident determination to follow the government’s lead in characterizing the BLM’s ongoing campaign of coercion as nothing more than a ‘‘continuing process in which each side has a legitimate purpose in taking action contrary to the other’s interest.’’96 But this version of the facts, as Justice Ginsburg’s dissent shows convinc- ingly,97 simply cannot be squared with the district court’s findings— by which the Court was bound—that the coercive and punitive steps the BLM agents took would not have occurred but for Robbins’s insistence on his rights under the Takings Clause and would have 94 Id. at 2601. To the degree that the Court’s concern was with delineating the difference between permissible persuasion and forbidden coercion, see id. at 2601–04, it was treating as distinctive to this property context a problem that is in fact ubiqui- tous, and one that comes down to defining the baseline of threats and offers that are to be allowed in the Government’s dealings with individuals, whether on a one-off basis or continuously. See also infra text accompanying notes 114-25, discussing the Court’s ineffective attempt to distinguish property-based relationships between the government and its private neighbors—relationships implicating the rights of private landowners to just compensation—from relationships between the government and its employees or between the government and private citizens generally—relation- ships implicating the rights of private individuals to such liberties as freedom of expression. 95 Id. at 2604. 96 Id. at 2603 n.10. 97 See Wilkie v. Robbins, 127 S. Ct. 2588, 2609–11 (2007) (Ginsburg, J., concurring in part and dissenting in part) (noting that the ‘‘full force of Robbins’ complaint’’ is ‘‘not quite captured in the Court’s restrained account of his allegations’’ and providing a more ‘‘complete rendition’’); see also id. at 2614–15 (taking exception to the Court’s ‘‘dubious characterization’’ of the government action in Robbins’s case as involving a ‘‘perfectly legitimate’’ objective). A : 97901$CH11 09-10-07 06:09:12 Page 48Layout: 97901 : Even 48 Constitutional Wrongs Without Remedies After Wilkie v. Robbins ceased the moment Robbins agreed to waive those rights and to drop his demand for just compensation.98 Just as problematic, and ultimately even more puzzling, is the concession in Justice Souter’s opinion for the Court that ‘‘Robbins does make a few allegations, like the unauthorized survey and the unlawful entry into the lodge, that charge defendants with illegal action plainly going beyond hard bargaining.’’99 Those actions stand- ing alone, the Court’s opinion suggests, would give rise to a Bivens cause of action for unconstitutional retaliation—because, ‘‘[i]f those were the only coercive acts charged, Robbins could avoid the ‘too much’ problem by fairly describing the Government behavior alleged as illegality in attempting to obtain a property interest for nothing.’’100 Really? Why in the world, if a pattern of independently unlawful actions solves the ‘‘too much’’ problem, is the problem not solved just as well where, as in Robbins’s case, officials not only act in independently unlawful ways but also abuse their lawful authority? How could it possibly be the case that the addition of actions taken in abuse of regulatory authority can render independently unlawful conduct less rather than more subject to redress by an action for damages? The only explanation the Court offers is to assert that ‘‘defendants’ improper exercise of the Government’s ‘regulatory powers’ is essen- tial to [Robbins’s] claim.’’101 Even if that were so, and even if ‘‘the bulk of Robbins’s charges [went] to actions that, on their own, fall within the Government’s enforcement power,’’102 it would be flatly false to say, as the Court inexplicably does, that ‘‘Robbins’s challenge, therefore, is not to the object the Government seeks to achieve. . . .’’103 For, without any doubt, Robbins’s challenge is precisely to ‘‘the object 98 See Robbins v. Wilkie, No. 98-CV-201-B, 2004 WL 3659189, at *6 (D. Wyo. Jan. 20, 2004) (holding that evidence that ‘‘[d]efendants did intend and agreed to extort and punish [Robbins]’’—including evidence of ‘‘[d]efendants’ alleged motive and intent, threats, lies, trespass, disparate treatment and harassment’’—compelled denial of defendants’ summary judgment motion). 99 Robbins, 127 S. Ct. at 2603. 100 Id. 101 Id. 102 Id. at 2604. 103 Id. at 2601. A : 97901$CH11 09-10-07 06:09:12 Page 49Layout: 97901 : Odd 49 CATO SUPREME COURT REVIEW Even accepting the Court’s strained version of the facts of the case and of the character of the claim Robbins had made, its refusal to recognize a cause of action for a pattern of retaliation through the manifest abuse of official regulatory authority in a manner intention- ally calculated to circumvent the Constitution’s protections for pri- vate property is deeply problematic. Especially noteworthy is the Court’s frankly lame attempt to contain the reach of its holding to the property context. In particular, it would be impossible to say with any confidence how the Court will apply Robbins in dealing, for example, with a pattern of official retaliation for someone’s exer- cise of the First Amendment right to criticize government action. Justice Souter’s opinion for the Court describes ‘‘the standard retalia- tion case recognized in our precedent’’ as one in which ‘‘the plaintiff has performed some discrete act in the past, typically saying some- thing that irritates the defendant official,’’ so that the question in the ensuing Bivens action against that official becomes ‘‘whether the official’s later action against the plaintiff was taken for a legitimate purpose’’ such as ‘‘firing to rid the workplace of a substandard performer,’’ or instead ‘‘for the purpose of punishing for the exercise of a constitutional right.’’114 As the Court’s opinion envisions the matter, in such a ‘‘standard case’’ the ‘‘plaintiff’s action is over and done with, and the only question is the defendant’s purpose.’’115 The Court then contrasts Robbins by noting that, in this case, ‘‘the past act or acts (refusing the right-of-way without compensation) are simply particular steps in an ongoing refusal to grant requests for a right-of-way.’’116 Because ‘‘[t]he purpose of the continuing requests is lawful (the Government still could use the right-of-way),’’117 ‘‘we are confronting a continuing process in which each side has a legiti- mate purpose in taking action contrary to the other’s interest.’’118 But exactly the same thing could arise in a First Amendment context, with a government agency or agent engaging in an ongoing series of retaliatory steps to punish an individual for his ongoing protests and to bring such constitutionally protected protests to an 114 Id. at 2602–03 n.10. 115 Id. at 2603 n.10. 116 Id. 117 Id. 118 Id. A : 97901$CH11 09-10-07 06:09:12 Page 52Layout: 97901 : Even 52 Constitutional Wrongs Without Remedies After Wilkie v. Robbins end. It is only the Court’s transparent manipulation of the level of generality at which it describes the ‘‘purpose of the continuing requests’’ by the BLM agents in Robbins—that purpose obviously ceases to be lawful once one recognizes it not simply as the acquisi- tion of a useful right-of-way but as the circumvention of the Just Compensation Clause with respect to that right-of-way—that enables the Court to distinguish between retaliation claims pressed by property owners under the Fifth Amendment and retaliation claims pressed by government employees or private citizens under the First Amendment.119 Although the Court accuses Robbins of ‘‘chang[ing] conceptual gears [to] consider the more abstract concept of liability for retalia- tory or undue pressure on a property owner for standing firm on property rights,’’120 it is in fact the Court that changes conceptual gears by describing the purpose of such retaliation as the legitimate one of acquiring an easement but not describing the purpose of retaliation against an employee or citizen for standing firm on his free speech rights as the legitimate one of reducing hostility and strife. The Court also changes conceptual gears when it transforms a claim of retaliation for the exercise of a constitutional right into a claim of ‘‘retaliation, probably motivated by spite,’’121 leading it to the odd conclusion that Robbins was arguing ‘‘that the presence of malice or spite in an official’s heart renders any action constitution- ally retaliatory, even if it would otherwise have been done in the name of legitimate hard bargaining,’’122 something the Court rightly noted ‘‘is not the law of our retaliation precedent.’’123 But that was never Robbins’s argument. On the contrary, he asked only for the right to ‘‘be placed in no worse a position than if he had not engaged in the [constitutionally protected] conduct’’124 of refusing to give up 119 Id. 120 Id. at 2604. 121 Id. at 2603 n.10. 122 Id. 123 Id. 124 Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287 (1977) (enunciating retaliation standard for First Amendment cases). A : 97901$CH11 09-10-07 06:09:12 Page 53Layout: 97901 : Odd 53 CATO SUPREME COURT REVIEW an easement without just compensation—invoking the very princi- ple that the Court in Robbins reiterated as controlling retaliation claims.125 B. The Background Principle of Unconstitutional Conditions in Robbins The Court’s decision was also particularly unsettling when consid- ered in light of the Court’s application of the doctrine of unconstitu- tional conditions—long invoked with regard to a broad range of constitutional rights126—to the specific context of the Takings Clause. In both Dolan v. City of Tigard127 and Nollan v. California Coastal Commission,128 the Court invalidated the state’s conditioning of a discretionary grant of a development permit upon the property owner’s provision of a property interest to the state.129 Thus, under the unconstitutional conditions doctrine as developed in the context of the Takings Clause, the government ‘‘may not require a person to give up a constitutional right—here, the right to receive just compensation when property is taken for public use—in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.’’130 Whatever the limits of the doctrine, it clearly affords the government no defense where, as in Robbins’s case, the government demanded not only that Robbins give up his right to just compensation in exchange for a ‘‘discretionary benefit,’’ like a grazing or special use permit, but also as a condition of his incontestable entitlement to conduct his business free from the scourge of false criminal charges, illegal tres- pass on his land, and continued harassment of his business and 125 Wilkie v. Robbins, 127 S. Ct. 2588, 2603 n.10 (2007). 126 See, e.g., Mem’l Hospital v. Maricopa County, 415 U.S. 250, 256 (1974) (right to interstate travel); cf. Harman v. Forssenius, 380 U.S. 528, 542 (1965) (Twenty-Fourth Amendment); Zablocki v. Redhail, 434 U.S. 374, 387 & n.12 (1978) (right to marry). 127 512 U.S. 374 (1994). 128 483 U.S. 825 (1987). 129 In Nollan, a state agency included the granting of a public easement as a condition in granting homeowners the right to build an addition to their home. Nollan, 482 U.S. at 827–28. In Dolan, a city required a business owner who wanted a land-use variance in order to expand her store and pave the parking lot to dedicate a portion of her land to the public. Dolan, 512 U.S. at 379–80. 130 Dolan, 512 U.S. at 392; see also Nollan, 483 U.S. at 836–37. A : 97901$CH11 09-10-07 06:09:12 Page 54Layout: 97901 : Even 54 Constitutional Wrongs Without Remedies After Wilkie v. Robbins C. Caught Between a Rock and a Hard Place: Distinguishing Between a ‘‘Taking’’ and a ‘‘Giving’’ Robbins served as an ideal case in which to condemn the govern- ment’s strategy of circumventing the Takings Clause precisely because it was a case in which the strategy failed. Had the govern- ment been successful, it would have had a powerful argument that no ‘‘taking’’ had occurred because Robbins had merely been ‘‘per- suaded’’ to give up his property—in other words, that there had been a ‘‘giving’’ for which just compensation is not required. That is what made the solicitor general’s argument that, because no taking occurred, no property right was violated and no remedy was consti- tutionally required, so disingenuous. But, although the Court did not advert to, much less embrace, the solicitor general’s inverted form of argument, it also unfortunately said nothing to reject it. Notably, the explicit rejection of just this upside-down argument was central to the Supreme Court’s analysis in the analogous situa- tion of guilty pleas induced by the death penalty provision of the Lindbergh Anti-Kidnapping Act.136 In United States v. Jackson137 the Court struck down the portion of the Act that authorized the death penalty because the Act made that penalty available only in cases tried by a jury—i.e., only in cases in which the accused refused to plead guilty and refused to waive his Sixth Amendment right to a jury trial. The Court reasoned that this scheme put in place an unjustified and therefore impermissible penalty on the exercise of the constitutional right to trial by jury.138 Subsequently, the Court made plain that entering guilty pleas under the influence of this problematic statutory scheme would not in itself enable those who had done so to assert that their pleas were coerced by their fear that they risked being sentenced to death if they went to trial and insisted on a jury.139 Far from representing a retreat from Jackson, the Court’s decision to uphold those guilty pleas and the life sentences to which they led underscored the linchpin of Jackson’s analysis: It was the very fact that the structural defect in the Lindbergh Act’s capital 136 P.L. No. 73-232, 48 Stat. 781 (1934) (codified as amended at 18 U.S.C. § 1201 (2000)). 137 390 U.S. 570 (1968). 138 Id. at 583. 139 See Brady v. United States, 397 U.S. 742, 746, 758 (1970) (holding a Jackson- induced waiver ‘‘voluntarily and intelligently made’’). A : 97901$CH11 09-10-07 06:09:12 Page 57Layout: 97901 : Odd 57 CATO SUPREME COURT REVIEW punishment scheme could not be cured post hoc—by rejecting as coerced those waivers of the right not to plead guilty and of the right to demand a jury that the scheme induced—that required the Court to strike the scheme down on its face rather than upholding it and waiting to invalidate particular applications of its punitive structure as products of forbidden coercion.140 In other words, it was the fact that the statutory scheme was structured to penalize, without adequate justification, the assertion of Sixth Amendment rights, cou- pled with the inability to cure the problem case-by-case, that ren- dered the Act unconstitutional on its face. Consistent with that theory, those who had surrendered their rights when the statutory scheme was applied to them (before having been facially invalidated) were presumed to have done so voluntarily. Just so, if Robbins had suc- cumbed to the threats made against him rather than standing his ground while his business was essentially destroyed, the govern- ment could have argued that, whatever pressure the BLM had applied to Robbins, he had relinquished the easement voluntarily and could not claim it had been ‘‘taken.’’ D. The Problem of Unauthorized Takings Even if Robbins could somehow have established that his relin- quishment of the easement under the government’s unrelenting pressure amounted to an involuntary taking rather than a voluntary ‘‘giving,’’ neither the Just Compensation Clause nor the Tucker Act141 would have allowed Robbins to recover for what would nonetheless have amounted to an unauthorized taking of his property by executive branch officials. For the Supreme Court has long held that the taking of property by executive officials without congressional authoriza- tion cannot subject the United States to liability for just compensa- tion.142 Because Congress and Congress alone possesses the power of the purse, the executive branch must not be permitted to accomplish 140 See Jackson, 390 U.S. at 583 (‘‘The power to reject coerced guilty pleas and involuntary jury waivers might alleviate, but it cannot totally eliminate, the constitu- tional infirmity in the capital punishment provision of the Federal Kidnaping Act.’’). 141 28 U.S.C. § 1491 (2000). This Act waives the federal government’s sovereign immunity for certain types of claims, including takings claims. 142 See, e.g., Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 127 (1974); United States v. N. Am. Transp. & Trading Co., 253 U.S. 330, 333 (1920) (per Brandeis, J.); Hooe v. United States, 218 U.S. 322, 335–36 (1910). A : 97901$CH11 09-10-07 06:09:12 Page 58Layout: 97901 : Even 58 Constitutional Wrongs Without Remedies After Wilkie v. Robbins what would in effect be a congressionally unapproved appropriation of public money by the expedient of seizing private property and leaving the aggrieved owner to bring a claim for just compensation against the United States.143 This point has special relevance here because the BLM officials had no source of legislatively granted authority for the pattern of conduct they employed in their pursuit of the easement from Rob- bins—the same easement that they had originally acquired from the prior owner of Robbins’s ranch but had negligently lost through their failure to timely record it. Congress entrusted the BLM with limited authority to acquire property interests through statutorily provided means beyond outright purchase from or exchange with a willing seller—specifically, via eminent domain if it makes a show- ing of necessity to ‘‘secure access to public lands,’’144 or as a condition imposed on an applicant for a right-of-way across federal land.145 And even if the requisite showing of necessity could have been made, Congress conferred no statutory authority on BLM officials to harass and threaten a property owner in order to acquire a property interest from him gratis, outside the eminent domain process. Because the actions of the BLM officials thus clearly amounted to an unauthorized attempt to obtain private property from its rightful owner, Robbins could not have sought compensation from the United States itself, under the Tucker Act or otherwise, had the BLM officials succeeded in their scheme of constitutional circumvention— a feature of the case about which the Court in Robbins was oddly silent but one that plainly gave it its particular poignancy. E. The Implications of Robbins for the Future of Property (and Other Fifth Amendment) Rights: The Shortest Cut The unavailability of a claim for just compensation against the United States means that in a case like Robbins, the remedy ‘‘is Bivens 143 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952); id. at 631–32 & n.2 (Douglas, J., concurring). 144 43 U.S.C. § 1715(a)(2000). It is doubtful that such a showing would have been possible on the facts in Robbins, especially given the stringent way in which the necessity requirement has been defined and policed. See United States v. 82.46 Acres of Land, 691 F.2d 474, 477 (10th Cir. 1982). In general, takings by the federal govern- ment must be effectuated through condemnation proceedings initiated by the attorney general that afford property owners significant substantive and procedural protec- tions, as well as an important measure of political oversight and accountability. See 40 U.S.C. §§ 3111–3118; Fed. R. Civ. P. 71A. 145 See supra note 11. A : 97901$CH11 09-10-07 06:09:12 Page 59Layout: 97901 : Odd 59 CATO SUPREME COURT REVIEW violated the Constitution.153 And the Court avoids embracing the government’s remarkable suggestion that the conduct at issue in Robbins could not have violated the Fifth Amendment because no actual taking occurred. At the same time, the Court equally carefully avoids rejecting that astonishing suggestion, steering clear of the Fifth Amendment issue altogether and confining its ruling to the further demolition of what little remains of Bivens. Whatever the Court’s reasons for reaching out to dispose of the case on that basis, the result can only encourage others to engage in violations similar to those committed by the BLM agents in this case. Robbins obviously gives federal officials a green light in this respect unless and until Congress enacts a specifically applicable cause of action for damages against such officials. And even at the state level, where the availability of damages relief under 42 U.S.C. § 1983 might theoretically discourage some state actors from doing essentially what the BLM agents did here, that deterrence is certainly weakened by the Court’s apparent reluctance to condemn the con- duct involved here as flatly unconstitutional. For state actors bent on circumventing the just compensation requirement can hardly avoid noticing the Supreme Court’s studious avoidance of a holding condemning what the BLM agents did to Frank Robbins as a clear violation of the Constitution. And at least some such state actors might well conclude that, if any of them were to get hammered in a § 1983 action for acting just as the BLM officials did, the Court would come to the rescue by finding the retaliatory tactics at issue not clearly enough unconstitutional to overcome qualified immunity. IV. Robbins and the Jurisprudence of Wrongs Without Remedies Looking back after reading the Court’s opinion, one must conclude that the introduction to the Court’s decision on the merits said it all. ‘‘The first question’’ before it, the Court says at the outset, ‘‘is whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights. . . .’’154 By describing the anti-retaliatory 153 Wilkie v. Robbins, 127 S. Ct. 2588, 2604 (2007) (‘‘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.’’). 154 Id. at 2597 (emphasis added). A : 97901$CH11 09-10-07 06:09:12 Page 62Layout: 97901 : Even 62 Constitutional Wrongs Without Remedies After Wilkie v. Robbins Bivens damages action invoked in these circumstances by Robbins as ‘‘new,’’ a Court that had for years displayed a dwindling inclina- tion to respect the spirit of Bivens, much less to extend its letter, made clear what its answer would be. And—as we shall shortly see—by describing the Bivens question as properly before it at all on this purely interlocutory appeal from a qualified immunity dis- missal, a Court that had previously taken care at least to respect the boundaries Congress had set on the appellate jurisdiction of the Supreme Court (and of the federal circuit courts) to review non- final judgments of the federal district courts left no doubt that its eagerness to cut back on Bivens exceeded even its fidelity to those jurisdictional boundaries. The Robbins Court described its decision to reject a damages rem- edy for retaliatory violations of the Fifth Amendment by federal agents as based on ‘‘the reasonable fear that a general Bivens cure would be worse than the disease.’’155 Justice Souter’s opinion, how- ever, suggests so strong an antipathy to the Bivens cause of action as to call into question any meaningful distinction between the Court’s purported application of Bivens, on the one hand, and Justice Thom- as’s avowal, on the other, that he ‘‘would not extend Bivens even if its reasoning logically applied to this case.’’156 If, as I develop below, the Bivens line of cases exhibits a basic schizophrenia with regard to the Court’s view of the federal judiciary’s authority and responsi- bility to fashion remedies for violations of the federal Constitution, its ruling in Robbins suggests a stubborn refusal to accept treatment. To appreciate the degree to which the Court’s decision represents a nearly pathological insistence on retaining the appearance of the judicial responsibility that Bivens recognized while simultaneously seeking any excuse not to exercise that responsibility, it is necessary to provide a brief overview of what one commentator has aptly dubbed ‘‘Bivens’s non-doctrine.’’157 A. The Bivens Framework In Bivens v. Six Unknown Named Agents,158 the Court held that the victim of a Fourth Amendment violation by federal officials could 155 Id. at 2604. 156 Id. at 2608 (Thomas, J., joined by Scalia, J., concurring). 157 Gene R. Nichol, Bivens, Chilicky, and Constitutional Damages Claims, 75 Va. L. Rev. 1117, 1128 (1989). 158 403 U.S. 388 (1971). A : 97901$CH11 09-10-07 06:09:12 Page 63Layout: 97901 : Odd 63 CATO SUPREME COURT REVIEW recover damages against the officials in federal court even though Congress had not provided a statutory vehicle for such redress. In Davis v. Passman,159 and Carlson v. Green,160 the Court held that Bivens’s reasoning required recognition of damages remedies for Fifth Amendment and Eighth Amendment violations by federal officials, respectively, and reiterated that under Bivens the victims of constitu- tional violations by federal officials are presumptively entitled to recover damages in federal court unless either (1) ‘‘defendants dem- onstrate ‘special factors counselling hesitation in the absence of affir- mative action by Congress’’’ or (2) ‘‘defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.’’161 Both Davis and Carlson stressed that alternative remedies devel- oped by Congress would not preclude relief under Bivens unless those remedies were ‘‘equally effective’’ and Congress expressly declared that they were meant to supplant the Bivens remedy of an action for damages. Both of these glosses on the ‘‘adequate alterna- tive’’ exception to the presumptive availability of Bivens relief were rejected by the Court in Bush v. Lucas.162 In Bush, the Court denied a Bivens remedy to a federal civil service employee who alleged that he had been discharged for protected speech in violation of the First Amendment. Noting that Congress could indicate its intent to preclude the Bivens remedy ‘‘by statutory language, by clear legisla- tive history, or perhaps even by the statutory remedy itself,’’163 the Court reasoned that a Bivens remedy was implicitly precluded by Con- gress’s design, in the civil employment context, of an ‘‘elaborate remedial system that has been constructed step by step, with careful 159 442 U.S. 228 (1979). In Davis, the Court held that the plaintiff, an assistant to the defendant Congressman, could recover damages for violation of her right to equal protection under the Fifth Amendment when she was terminated on the basis of her gender. 160 446 U.S. 14 (1980). In Carlson, the Court held that a prisoner could recover damages against individual prison officials for neglect of his medical needs despite the availability of relief against the government under the FTCA, reasoning that Congress had not expressly declared the FTCA remedy to supplant the Bivens remedy and that the Bivens remedy was a more effective deterrent. 161 Carlson, 446 U.S. at 19 (citing Bivens, 403 U.S. at 397, and Davis, 442 U.S. at 245–47). 162 462 U.S. 367 (1983); see id. at 380–90. 163 Id. at 378 (emphasis added). A : 97901$CH11 09-10-07 06:09:12 Page 64Layout: 97901 : Even 64 Constitutional Wrongs Without Remedies After Wilkie v. Robbins crafted remedial scheme provided adequate alternative relief or (2) the Constitution’s grant to Congress of special policy-making authority over a particular field precluded judicial intervention with- out specific congressional invitation. B. The Beginning of the End for Bivens With its decision in Schweiker v. Chilicky,174 the Court began to dismantle this scheme, substituting in its place an essentially unprin- cipled search for any factor that would allow it to shirk the judicial responsibility recognized in the earlier cases. In Chilicky the Court held that the denial of Social Security disability benefits pursuant to a policy inconsistent with the Fifth Amendment Due Process Clause does not give rise to a cause of action for money damages because of the elaborate remedial scheme Congress had constructed to redress erroneous benefits termination. The Court’s reliance on its earlier holding in Bush was unpersuasive, for in Chilicky there was no evidence that the congressional scheme, which aimed only to remedy erroneous benefits determinations caused by mistake or oversight, was intended to address the distinct problem posed by cases, like Chilicky, in which the deliberately adopted procedure for termination was itself alleged to be unconstitutional. Indeed, the decision in Chilicky left the victims with no remedy other than the reinstatement of their missed benefits even where the unconstitu- tional cutoff of their disability payments had resulted in death or grave illness.175 The Court’s decision in Chilicky drew considerable scholarly criticism, with at least one commentator observing that Chilicky inaugurated ‘‘an open-ended balancing approach whereby judges attempt to decide whether a damages claim serves the public good.’’176 Fulfilling that prognosis, the Court in Robbins openly adopted just such an approach. C. The Bivens Issue in Robbins The Robbins Court did not hold—nor could it plausibly have said—that a Bivens remedy was precluded in light of other adequate remedies available in that case. Indeed, the remedies available to Robbins plainly constituted no targeted ‘‘elaborate remedial scheme 174 487 U.S. 412 (1988). 175 For a fuller discussion of Chilicky, see Tribe, supra note 169, at 485 n.134. 176 Nichol, supra note 157, at 1150. A : 97901$CH11 09-10-07 06:09:12 Page 67Layout: 97901 : Odd 67 CATO SUPREME COURT REVIEW constructed step by step,’’177 but were merely a hodge-podge of the generically available forms of administrative relief provided under the broad terms of the Administrative Procedure Act, state tort law remedies,178 and defenses to criminal charges.179 If it was a stretch for the Chilicky Court to find that the existing Social Security benefits remedial scheme precluded a Bivens remedy, it would have been an even more extreme deformation in Robbins’s case. In truth, if the ‘‘remedies’’ available to Robbins sufficed to render Bivens unavail- able, then most of the ink spilled in the long line of Bivens cases could have been saved, for remedies of the sort available to Robbins were ubiquitous in those cases. To leave no doubt about how far it was going in cutting into Bivens, the Court in Robbins expressly conceded—as we have already seen—that, while individual remedies may have been available for many of the numerous harms Robbins suffered, these did not amount to a remedy for the cumulative effect of the BLM’s long campaign of harassment. The Court thus seemed fully cognizant of what it was leaving unremedied when it acknowledged that ‘‘[i]t 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.’’180 And the Court was nothing but realistic when it conceded Robbins’s point that ‘‘[a]gency appeals, lawsuits, and criminal defense take money, and endless battling 177 Bush v. Lucas, 462 U.S. 367, 388 (1983). 178 State tort law remedies were potentially available in Bivens and were specifically held not to preclude recognition of a damages action. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394–95 (1971). For an argument that the Court’s decision in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), portended reconsideration of even that basic principle, see Daniel Meltzer, The Supreme Court’s Judicial Passivity, 2002 Sup. Ct. Rev. 343, 361 (noting that ‘‘[i]f the Bivens decision once seemed, as a general matter, to extend constitutional tort remedies against federal officials as broadly as 42 U.S.C. § 1983 does against state and local officials, and to confirm the authority of federal courts to fashion appropriate remedies for violation of federal constitutional rights, Malesko suggests that the future may look different’’). 179 See Wilkie v. Robbins, 127 S. Ct 2588, 2600 (2007) (describing the ‘‘forums of defense and redress open to Robbins’’ as ‘‘a patchwork, an assemblage of state and federal, administrative and judicial benches applying regulations, statutes and common law rules’’). 180 Id. at 2600–01. A : 97901$CH11 09-10-07 06:09:12 Page 68Layout: 97901 : Even 68 Constitutional Wrongs Without Remedies After Wilkie v. Robbins depletes the spirit along with the purse,’’ leading the Court, in the end, to accept as apt Robbins’s characterization of the agents’ action as ‘‘death by a thousand cuts,’’181 and to offer its own description that this was a situation in which, without doubt, ‘‘[t]he whole here is greater than the sum of its parts.’’182 The point would have been difficult to deny. For a person in Robbins’s situation, paying a fine of a few hundred dollars on an administrative trespass charge, while not an insubstantial sum, is trivial when compared with the thou- sands of dollars it would cost to contest each charge all the way up through the administrative process and the federal courts via the APA. For Robbins, winning was as good (bad) as losing. Every charge meant additional time and money spent regardless of the outcome. And for the officials bent on bleeding Robbins dry, these administrative challenges fed right into their plans. Just as the Robbins Court could not have claimed that an adequate alternative remedial scheme was available to Robbins, so it could not claim to be deferring to Congress’s special authority under the Constitution with regard to the federal government’s property own- ership rights.183 In essence, the Robbins Court has written the ‘‘special- ness’’ out of the ‘‘special factors’’ inquiry altogether by grossly mis- characterizing ‘‘Bivens step two’’184—its new term for the special 181 Id. at 2600 (citing Resp’t Br., supra note 11, at 40). 182 Id. at 2601. 183 Indeed, the Court’s (mis)characteriziation of the government’s status throughout this case as Regular Joe Landowner itself undermines any such claim. See, e.g., Robbins, 127 S. Ct. at 2602 (noting that ‘‘in many ways, the Government deals with its neighbors as one owner among the rest (albeit a powerful one)’’). The Court sought to analogize the facts in Robbins to a situation in which ‘‘a private landowner, when frustrated at a neighbor’s stubbornness in refusing an easement, may press charges of trespass every time a cow wanders across the property line or call the authorities to report every land-use violation.’’ Id. The analogy shockingly ignores the Constitution’s central premise that the government, being uniquely powerful, is uniquely in need of restraints that would be wholly out of place in our fundamental law’s treatment of private parties. On the approach suggested by Justice Souter’s opinion, one might as well say that, just as a private landowner, when frustrated at a neighbor’s political views or voting behavior, may opt to press charges of trespass every time a cow wanders across the property line even though that landowner would not otherwise be so insistently punitive, so may the government. But the law is, of course, otherwise: The Government is not free, in the way a private party would be, to withhold lenity in a manner deliberately calculated to prevent or punish constitutionally protected speech. 184 Id. at 2600. A : 97901$CH11 09-10-07 06:09:12 Page 69Layout: 97901 : Odd 69 CATO SUPREME COURT REVIEW the lengths to which the Court went to find a ‘‘special factor’’ point- ing to the result reached in Robbins, makes congressional action in the field less, not more, likely. V. Stretching Jurisdictional Limits to the Breaking Point Not only has the Court’s hesitation about fashioning monetary remedies for the victims of constitutional violations produced inco- herence in the Bivens framework; beyond that, this hesitation evi- dently motivated the Court to compromise its fidelity to jurisdic- tional limits. To see that this is so and that the Court’s avoidance of the constitutional merits simply cannot be understood as an instance of judicial modesty, one must remember that the posture of the Robbins case before the Court was an interlocutory appeal of the denial of a motion for summary judgment on qualified immunity grounds. The general rule in the federal courts, as enacted by Con- gress, is of course that litigants may appeal only from final judgments, not interlocutory rulings such as a denial of a summary judgment motion.193 To be sure, there is a set of narrow exceptions to the final judgment rule, one of which allows immediate appeals of denials of qualified immunity.194 The allowance of interlocutory appeals of pretrial denials of qualified immunity extends not only to the quali- fied immunity standard of whether the defendants violated clearly established law,195 but also to the ‘‘inextricably intertwined’’196 issues of whether any right was violated197 (i.e., whether any constitu- tional tort was committed), and ‘‘the definition of an element of th[at] tort.’’198 But the question of remedy—whether a federal suit for damages under Bivens would be an available form of relief if the conduct 193 See 28 U.S.C. § 1291 (2000); see also Will v. Hallock, 126 S. Ct. 345, 347–49 (2006). 194 See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). 195 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 196 Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995). 197 The Supreme Court has held that the proper procedure in a qualified immunity determination is to first assess ‘‘whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.’’ Conn v. Gabbert, 526 U.S. 286, 290 (1999). Thus, the issue of whether a right exists at all is properly before an appellate court on interlocutory appeal of the qualified immunity issue. 198 Hartman v. Moore, 126 S. Ct. 1695, 1702 n.5 (2006). A : 97901$CH11 09-10-07 06:09:12 Page 72Layout: 97901 : Even 72 Constitutional Wrongs Without Remedies After Wilkie v. Robbins alleged were proven and if that conduct constituted a violation of a clearly established federal constitutional rule—had never before been deemed ‘‘inextricably intertwined’’ with the logically and func- tionally distinct question whether the conduct alleged constituted such a violation as a matter of law and therefore was not entitled to qualified immunity. And, of course, it is only the supposedly inextricable entwinement of that remedy issue with the qualified immunity issue that could bring the remedy issue—i.e., the availabil- ity of Bivens relief for the sort of violation alleged—within the limited interlocutory appellate jurisdiction that permitted the court of appeals, and the Supreme Court, to hear Robbins at all in the interloc- utory posture presented. Thus, even assuming—as the Robbins Court ultimately held—that the district court was wrong in holding that a Bivens action was available to Robbins, if no question of qualified immunity had ever been raised, the defendants would presumably have had to stand trial and only then, if they lost at trial and were aggrieved by the Bivens relief granted against them, would they have been able to appeal the Bivens issue to the court of appeals and then on to the Supreme Court, where they would in the end presumably have been vindicated.199 To be sure, they would in that instance have undergone a trial that could have been avoided altogether had the district court decided at the outset—rightly, on the hypothesis that the Supreme Court’s take on the Bivens issue would have been unaffected by the intervening proceedings—that no Bivens remedy was available. But in that respect, their situation would have been identical to that of many other defendants who lose a dispositive summary judgment motion or motion to dismiss that they should in principle have won and who, if they prevail after trial—e.g., because they are found to have acted for legitimate reasons, or are found not to have done what the complaint alleged they did—are just out of luck with respect to their claim that, had the motion been correctly ruled upon in the first instance, they would have been spared the burdens of trial and not just been handed a favorable post-trial verdict. 199 Only ‘‘presumably,’’ however, because one cannot say with confidence that the Court’s Bivens calculus would remain unaffected by the district court’s trial and the circuit court’s analysis on appeal. A : 97901$CH11 09-10-07 06:09:12 Page 73Layout: 97901 : Odd 73 CATO SUPREME COURT REVIEW While there is a surface allure to the notion that a litigant should be able immediately to appeal any order denying a claim of right to prevail without trial, Congress has expressly decided that it is wiser to save all appeals for the end of a case rather than having a case bounce around repeatedly from trial court to appellate court.200 Thus, had the BLM officials not challenged the district court’s pretrial denial of their qualified immunity claim, or had that challenge been regarded as frivolous, they would not have been entitled, on any view of the settled law that survives the Robbins Court’s holding,201 to appeal in an interlocutory posture the holding that a Bivens rem- edy was available against them. The jurisdictional issue the Robbins Court therefore had to resolve as a threshold matter was whether the insertion of a qualified immunity issue into this case should have been permitted to transmute the situation into one where not only the existence of qualified immunity but also the existence of a Bivens remedy could get resolved on appeal in advance of trial. In other words, should the Bivens issue be able to take a ride on the ‘‘jurisdictional coattails’’202 of the qualified immunity issue, for pur- poses of pre-trial, interlocutory appellate review? Considering the purposes of allowing interlocutory appeals of qualified immunity denials, the answer clearly ought to have been ‘‘no.’’ The sole reason for permitting interlocutory review of the qualified immunity question is that the Court has defined qualified immunity from liability for a constitutional tort—when the prerequi- sites of such immunity are met—as conferring upon the officials involved not just freedom from the ultimate imposition of monetary liability, but also freedom from the burdens of being put on trial.203 The theory is that forcing government officials to suffer through a trial where, even on the plaintiff’s allegations and evidence, it can be authoritatively determined in advance that there was no violation of clearly established law needlessly distracts officials from their duties, chills their legitimate exercise of discretionary authority, and 200 See Will v. Hallock, 126 S. Ct. 952, 958 (2006). In Will, the Supreme Court held that federal agents who had appealed the denial of their defense of judgment bar in a Bivens action had to stand trial and await a final judgment before appealing the issue. See id. at 957. 201 See Wilkie v. Robbins, 127 S. Ct. 2588, 2597 n.4 (2007). 202 See Swint v. Chambers County Comm’n, 514 U.S. 35, 44 n.2 (1995). 203 See Mitchell v. Forsyth, 472 U.S. 511, 525–26 (1985). A : 97901$CH11 09-10-07 06:09:12 Page 74Layout: 97901 : Even 74