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Life, Liberty . . .
And the protection of property.


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What can be done to stop a presidential appointee who views himself as above the rules? Can the president fire him? A Seattle court heard motions on such a case this week. What began as a seemingly trivial property-rights dispute has quickly become a constitutional quagmire. The judge is demanding answers on the limits of presidential power, on whether the government must compensate property owners for regulations restricting their property’s use, and on the power of international government agencies.

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Retirees Shirley and Herbert Leus’s retirement home sits on lot that is adjacent to the U.S.–Canadian border in Blaine, Wash. Their backyard was beginning to erode into a drainage ditch that runs with the border. The Leus built a four-foot-high retaining wall in order to save their land, making sure they were in compliance with local requirements for doing so. It never dawned on the Leus that their retaining wall would lead an ideological battle over private property, much less what is going on now.

The ideological debate became focused on whether an international commission, the International Boundary Commission (IBC), could simply come onto their property, remove their wall and then send them the bill. The thought that an international commission could simply order the wall removed at the expense of the owners was beyond anything that the couple had anticipated.

The IBC claims authority to enter and take the Leus’s private property under a treaty between the United States and Canada. According to Schornack and his Canadian counterpart, the treaty gave them absolute authority over a strip of land extending ten feet on either side of the border.

To Schornack, the dispute is largely one of too much fealty to property rights. “I’m not an ideologue,” he said, “and it seemed to me that I was being demanded to adopt the ideology of the Justice Department.” He claims that the Justice Department lawyers “are on basically a mission to pare back what they see as government intrusion into private property.” The problem? That treaty the IBC relies upon for its authority does not actually authorize the regulation of that 20-foot-wide zone. Even so, Schornack and the IBC set a deadline for the Leus to remove their retaining wall, otherwise the IBC would do it themselves.

Then, the controversy escalated to soap-opera proportions with the Departments of State and Justice as well as the White House opposing the IBC’s ultimatum and President Bush finally stepping in a few weeks ago and firing the U.S. representative on the commission. The IBC claims that this is the first time that a president has ever fired such a commissioner.

For his part, the fired commissioner, Dennis Schornack, claims that once appointed to his $135,000-a-year job, he has the job for life and cannot be fired, nor is there any ultimate higher authority that can review his decisions. Unlike every other agency, which has to rely on the Justice Department for legal representation, Schornack went out and hired his own private attorneys, whom he felt he could trust. That change in heart by Schornak — unwilling now to support the position of the United States — changed the course of the entire case.

Despite the fact that the IBC claims to be authorized to regulate and control the use of private property within the United States, Schornack and the IBC actually argue that they are not a government agency and are therefore not subject to the laws of the United States, much less the Fifth Amendment of the Constitution. The Justice Department unsuccessfully tried to negotiate a compromise that considers the couple’s private-property complaints. But the commission says that, as an international commission, and therefore not bound by the Constitution or the authority of the President, it was not obligated to negotiate with U.S. citizens at all.

As the U.S. attorney’s office in Seattle noted Wednesday, the argument is “breathtaking” in its scope. If the court upholds Schornack’s claims, he could commit criminal acts in the name of the commission and not be held liable for his actions.

In the specific case involving the Leus, under normal circumstances, any government agency that has authority to regulate private property would provide some sort of notice — whether it’s in the form of notifying individual property owners of their subjective status, or even by filling a notice with local planning commissions to give notice when those property owners attempt to make improvements to their property. Obviously, neither happened here.

As a result, the Leus have been subjected to overreaching governmental regulation from a governmental entity with no apparent authority to regulate private property. Given that there exists 5,525 miles of U.S.–Canadian border, and national security is an ever-increasing concern, both private property owners and citizens alike should hold the government accountable for irresponsible exercises of authority over them.

The whole process has been quite an education for the Leus: “[Schornack] was so rude, and so abrupt, standing and telling me he had the power to take the wall down and that if I got a lawyer, he’d win.” Brian Hodges, the attorney with the Pacific Legal Foundation who is representing the Leus, noted, “It’s stranger than fiction. Commissioner Schornack’s hardheaded approach unfortunately justifies people’s worst fears about government.”

For Americans, government agencies abusing private-property rights is nothing new. However, it seems that these disputes will increasingly arise over international issues — most likely due to varying consideration given to private property rights. Unfortunately, while Americans debate among themselves whether property owners should be compensated for regulations that diminish the value of their property, many of the most basic protections Americans take for granted are not recognized by other countries.

It will be a few weeks before even the most basic questions in this case are answered, but ultimately the ramifications could be long felt. The judge has already removed the Department of Justice as one parties in the case, claiming they are not an indispensible party because they do not represent the IBC — presumably because Judge Pechman does not believe the IBC is an agency of the United States. This implies that the judge might be sympathetic to Schornack’s case. Yet, even a partial win for Schornack’s notion of an unchecked international bureaucracy would be bad news for more than just basic property rights.

Sonya D. Jones is an attorney in Bellevue, Washington. John R. Lott Jr. is the author of Freedomnomics and a senior research scholar at the University of Maryland.



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