In the 19th Century, when railroads were being built across the West, the federal government granted significant land and benefits to the railroad companies. The Great Railroad Right-of-Way Act of 1875 allowed the government to give railroad companies easements to build tracks — that is, a right to use sections of another’s property without legally owning it. The Brandt family eventually acquired land in Wyoming that came with pre-existing railroad easements.

In 2001, the owner of the easement formally abandoned all claims to it, presumably returning the property to the Brandts. But the government wanted that land. In 2006, it sued for title to the former easement land on the theory that the government retained a residual claim to it after the railroad abandoned it. The Brandts argue that the government has no such right and that taking their land requires just compensation under the Fifth Amendment’s Takings Clause.

Although this may seem like a small, unique problem, the scope of the Old West’s railway system was huge and those old easements criss-cross the land of thousands of property owners. In 1983, Congress amended the National Trails System Act to allow the government to take abandoned railroad easements and turn them into land for public recreation and “railroad banking.” Landowners have been fighting the taking of their property under the Trails Act ever since, claiming, as here, that the government’s original grant to the railroads contained no residual right of possession for the government.

Indeed, two federal courts of appeals, the Seventh and Federal Circuits, have held that the government didn’t retain any residuary rights. In the Brandts’ case, however, the Tenth Circuit held otherwise. This circuit split is untenable. Over 5,000 miles of abandoned track has been taken by the government since the Trails Act, and about 10,000 property owners are currently fighting in federal courts to hold onto their property.

Of course, given the possible benefits of not having to pay compensation to landowners, the government has responded to these claims by being aggressively litigious, reaching into its endless war-chest of taxpayer-provided resources to challenge the landowners on every tiny point. As the Federal Circuit said, the government’s behavior is “puzzling” in that it is “foregoing the opportunity to minimize the waste both of its own and plaintiffs’ litigation resources, not to mention that of scarce judicial resources,” but also by advancing arguments “so thin as to border on the frivolous.”

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Thomas Perez, the assistant attorney general for civil rights who personifies both the Peter Principle and this administration’s flouting of the rule of law, is due this week for a vote in the Senate Health, Education, Labor, and Pensions Committee on his nomination to be Labor Secretary. If senators who understand how destructive he is don’t do more than simply vote against him, they will have missed a key opportunity not just to stop a bad nominee, but to score easy political points too.

Quin Hilyer provides a useful recap of Perez’s nefarious dealings:

• Interference with the Supreme Court case of Magner v. Gallagher, getting the City of St. Paul to dismiss its appeal to prevent what would’ve been a sharp (and probably unanimous) rebuke to the federal government regarding its use of “disparate impact” racial theories in housing policy, to the detriment of minorities and poor people everywhere;
• Refusal to comply with subpoenas from the U.S. Commission on Civil Rights;
• Dismissal of the Justice Department’s already-won prosecution of the Black Panthers for voter intimidation during the 2008 election;
• Repeatedly stating and running a department dedicated to the proposition that voting rights and other civil rights law don’t protect white people;
• Willfully misleading and lying to Congress under oath several times;
• Racial abuse of the New York fire department, to the detriment of public safety and qualified minority applicants;
• Hiring for “career” (non-political appointee) slots only attorneys who have demonstrable left-wing credentials—making Alberto Gonzales’s politicized-hiring foibles look like the model of civil service administration;
• Trampling on religious liberties to the point that the Supreme Court unanimously rejected his arguments in Hosanna-Tabor v. EEOC regarding the “ministerial exception” to employment laws;
• Conducting government business from a personal email account as much as 1,200 times (!) and now refusing to comply with congressional subpoenas to release those emails; and
• Unrelated to him personally, being nominated to lead a cabinet department whose jurisdiction overlaps with an independent agency, the National Labor Relations Board, that was improperly constituted via illegal recess appointments and has continued to issue rulings even after the government lost its case unanimously at the D.C. Circuit.

About the only thing that The Talented Mr. Perez has going for him is that his performance at his confirmation hearing wasn’t the complete disaster that Defense Secretary Chuck Hagel’s was at his (a low bar). In short, if there is ever a reason not to simply defer to the president in his choice of cabinet members or to make political hay rather than simply have a quiet vote, this is it. 

Over at the Guardian, Glenn Greenwald reacts to Senator Lindsay Graham’s call to keep Tsarnaev out of the criminal justice system and treat him as an “enemy combatant”:

It is bizarre indeed to watch Democrats act as though Graham’s theories are exotic or repellent. This is, after all, the same faction that insists that Obama has the power to target even US citizens for execution without charges, lawyers, or any due process, on the ground that anyone the president accuses of Terrorism forfeits those rights. The only way one can believe this is by embracing the same theory that Lindsey Graham is espousing: namely, that accused Terrorists are enemy combatants, not criminals, and thus entitled to no due process and other guarantees in the Bill of Rights. Once you adopt this “entire-globe-is-a-battlefield” war paradigm - as supporters of Obama’s assassination powers must do and have explicitly done - then it’s impossible to scorn Graham’s views about what should be done with Tsarnaev. Indeed, one is necessarily endorsing the theory in which Graham’s beliefs are grounded.

It’s certainly possible to object to Graham’s arguments on pragmatic grounds, by advocating that Tsarnaev should be eventually Mirandized and tried in a federal court because it will be more beneficial to the government if that is done. But for anyone who supports the general Obama “war on terror” approach or specifically his claimed power to target even US citizens for execution without charges, it’s impossible to object to Graham’s arguments on principled or theoretical grounds. Once you endorse the “whole-globe-is-a-battlefield” theory, then there’s no principled way to exclude US soil. If (as supporters of Obama’s terrorism policies must argue), the “battlefield” is anywhere an accused terrorist is found and they can be detained or killed without charges, then that necessarily includes terrorists on US soil (or, as Graham put it, using one of the creepiest slogans imaginable: “the homeland is the battlefield”)….

[I]t is worth noting that the US government previously did exactly what [Graham] advocated. In 2002, US citizen Jose Padilla was arrested on terrorism charges on US soil (at Chicago’s O’Hare International Airport), and shortly before he was to be tried, the Bush administration declared him to be an “enemy combatant”, transferred him to a military brig, and then imprisoned him (and tortured him) for the next 3 1/2 years without charges, a lawyer, or any contact with the outside world. That was the incident that most propelled me to start political writing, but it barely registered as a political controversy.

So as extremist as Graham’s tweets may have seemed to some, it was already done in the US with little backlash. That demonstrates how easily and insidiously extremist rights assaults become normalized if they are not vehemently resisted in the first instance, regardless of one’s views of the individual target.

Let’s recall that the police did not bypass the Bill of Rights with Oklahoma City bomber, Timothy McVeigh.  Before his execution, McVeigh got a lawyer, trial, and an appeal.  That’s our law–and there’s no fiddling with it.  And experience tells us there are very good reasons for placing limits on police questioning.  For related Cato work, go here and here.