Justice Department Shameless
In Diminishing Citizen Rights

No one would ever mistake Attorney General Janet Reno for Goldilocks of nursery story fame, but in two recent filings Reno's attorneys have taken what can only be characterized as a Goldilocks approach to the ability of citizens to sue for the loss of Constitutional rights. It would appear that for Reno's attorneys, no argument is too absurd to use to frustrate the ability of federal courts to perform their most important function: determining the meaning of the Constitution.

The government’s filings come in two momentous cases that have drawn the attention of the national media, one involving the ability of the government to set aside federal land for religious purposes, the other involving the ability of federal officials to award government contracts on the basis of race. While these cases have earned national headlines, the outrageous filings by federal lawyers have gone unnoticed.

In BearLodge Multiple Use Association v. Babbitt, climbing guide Andy Petefish seeks to overturn the National Park Service ban on commercial climbing on Devils Tower in northeastern Wyoming during the month of June, a ban imposed to set aside the nation's first national monument for religious worship by certain Native Americans. Since Petefish, like thousands of fishing guides, ski instructors and others associated with the tourism industry, earns most of his annual income during a few months, the June ban was devastating.

That's his own fault, argued Reno's attorney. Moreover, since he has chosen his particular "lifestyle," subsisting throughout the year on what he is able to make in the summer, his income is too meager to allow him to challenge the government’s violation of his First Amendment rights.

While stunning, that is not the most egregious of the arguments put forth by Reno's attorney. In documents filed with the Wyoming federal district court, the U.S. attorney indicated that the government would present evidence that a lifting of the ban on climbing would result in "cultural genocide." That argument drew a stinging rebuke from the judge, as did the government’s assertion that the decision by noncommercial climbers not to climb due to threats by the Park Service to close Devils Tower permanently could be characterized as "voluntary."

In the second case, Adarand v. Pena, Randy Pech challenges the ability of federal officials to use his race to deny him government contracts on which he is low bidder. Adarand is the case in which the U.S. Supreme Court issued its landmark ruling on race-based decisionmaking a year ago. Now back in federal district court in Colorado, Pech asserts that awarding contracts on the basis of race violates the Constitution's equal protection guarantee.

In Adarand, federal lawyers argue that since Pech receives contracts that enable his small, family-owned company to be successful, the fact that he is denied other contracts because of his race is irrelevant. The clear implication is that Pech makes too much money to argue that his civil rights have been violated.

Taken together, these two cases paint a remarkable picture of just who, according to Reno's lawyers, can ask a federal court to determine whether constitutional rights have been violated. In their view, such a person's annual income must not be "too little" (Petefish) or "too much" (Pech), but must be "just right." Goldilocks would be proud.

While the Wyoming and Colorado federal courts hearing these two cases will likely reject this Goldilocks approach to Constitutional law, it is unlikely that the courts will criticize the government for making the argument. One of the reasons government lawyers raise such arguments is to signal potential litigants that the federal government will do all in its power to overwhelm their adversaries, dramatically increasing the cost, in time and money, of fighting the government, not to mention the frustration level. The other reason is that, like Goldilocks' thievery from the three bears, they can get away with it!

(Before anyone is tempted to take issue with Pendley’s depiction of Justice Department lawyers as "Janet Reno’s attorneys," it should be noted that when it came into office in 1993, the Clinton administration replaced every U.S. district attorney in the nation with its own hand-picked appointees. That remarkable step, never taken by any other administration in U.S. history, was apparently intended to derail a number of criminal investigations and prosecutions of political allies; indeed, a Clinton appointee to the Little Rock, Ark. district was almost successful in burying what later became the Whitewater probe. Today’s Justice Department is without a doubt staffed by "Janet Reno’s attorneys." — Ed.)