Let’s say government officials want you to turn over a piece of your property to them for free. Let’s say you refuse, arguing that you have no legal requirement to do so. And let’s say the government officials then embark on a harassment campaign to intimidate you into giving them what they want.
Should that be legal? We know the Fifth Amendment protects the public’s right to keep government off their property. But is it implicit in that right that government agents cannot abuse their power to harass you?
This is the subject of a case now being argued before the U.S. Supreme Court in Wilkie v. Robbins. As R.S. Radford and Timothy Sandefur of the Pacific Legal Foundation explain in a Legal Times article, Harvey Frank Robbins is a Wyoming man who bought a ranch in 1993, “not knowing that the previous owner had agreed to give the Bureau of Land Management an easement over the land. BLM agents, however, had neglected to record the easement, so when the purchase went through, Robbins got the land free and clear.”
This clearly was the mistake of the government agents, yet they weren’t about to let Robbins off the hook when he did not accede to their request to reinstate the easement. The agents made threats against him. Justice Ruth Bader Ginsburg spoke during oral arguments “of a pattern of harassing conduct that included trespasses on this man’s lodge and leaving the place in disarray, videotaping the guests, selective enforcement of the grazing laws, a whole pattern of things, even asking the Bureau of Indian Affairs to impound his cattle.”
Rather than punish these government agents who have clearly abused their power, the federal government is asserting in the nation’s highest court the right of government representatives to act in this very manner.
In this case, the federal government claims there is no constitutional right to physically exclude the government from your property, and even if there were such a right that it would offer no protection against harassment. This government argument, Radford and Sandefur explain in an amicus brief on behalf of Robbins, is “based on a disturbing and mistaken understanding of the relationship between the American people, their government and constitutional protections of private property rights. The framers of the Constitution accorded great weight to the importance of private property as a bulwark of personal sovereignty and autonomy, which not even the power of government could breach except in limited circumstances. … If the government were allowed to retaliate against citizens who exercise their right to exclude government agents from their land, the right itself would be extinguished.”
In a society that respected individual freedom, the agents who harassed Robbins would face prosecution. Instead, they are exonerated, and the government itself arrogantly demands a right to harass individual citizens because — get this — the Constitution does not specifically forbid harassment by such officials. If the Supreme Court sides with the Bureau of Land Management, then the rule of law will be eroded, and we will all be subject to the whims of the most abusive government officials.
A decision is not expected until early summer.