Under the takings clause of the Fifth Amendment, may a person whose property is taken without compensation file a court claim even if the legislature has not provided them with a cause of action?
This case asks the Supreme Court to decide whether the Takings Clause allows a person whose property is taken without compensation to seek redress in court even if the legislature has not provided them with a cause of action. The Petitioners Devillier, et al. argue that the Takings Clause permits individuals to seek redress in court, as the Constitution implicitly bestows the procedural right when granting the substantive right to just compensation. The Petitioners further argue that both the constitutional text and the historical context of the just-compensation right support the recognition of such a right. On the other hand, Respondent State of Texas contends that the Takings Clause on its own does not establish a cause of action, asserting that Congress must provide such authorization before individuals can seek relief in court. The Respondent also argues that neither the text nor the historical background of the just-compensation right indicates an implied cause of action, pointing out that properties have historically been compensated through direct intervention by Congress for over a century. The outcome of this case has significant ramifications for the balance between state and federal court power, judicial and legislative power, and the substantive rights of property owners against the states.
Questions as Framed for the Court by the Parties
Whether a person whose property is taken without compensation may seek redress under the self-executing takings clause of the Fifth Amendment even if the legislature has not affirmatively provided them with a cause of action.
In 1956, the Federal Aid Highway Act allocated billions of dollars to the states to construct an interstate highway system. Devillier v. Texas at 2. One of these highways is Interstate Highway 10 (“IH-10”) which passes through Texas into California. Id. The Texas Department of Transportation installed a 32-inch concrete traffic barrier on the centerline of the highway to prevent flooding on the south side of the freeway during heavy rainfall. Id. However, this barrier stopped rainfall that would normally travel through the freeway into the Gulf of Mexico. Id. In 2017 and 2019, Hurricane Harvey and Tropical Storm Imelda caused significant flooding on the north side of the barrier, submerging multiple properties. Id. at 2–3. After the storms, a group of over 70 individuals and four limited liability companies (“Devillier”) whose properties were affected by the storms filed four lawsuits against the State of Texas (“Texas”) alleging that their properties were destroyed because of the barrier on IH-10. Brief for Respondent, State of Texas at 3.
Devillier filed their lawsuits in Texas Southern District Court (“District Court”) alleging that Texas took their property in violation of the Texas Constitution and the Fifth Amendment. Devillier at 1. The Fifth Amendment provides that no “private property [shall] be taken for public use, without just compensation.” U.S. Const. Amend. V. While the Takings provision applies only to the Federal Government, the Fourteenth Amendment says no “State [shall] deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV. This clause applies the Fifth Amendment’s Takings provision to the states as well. Devillier at 3.
Texas then removed the case to federal court because cases about constitutional amendments are important federal questions. Id. at 1. Shortly after that, the judge combined all the claims under one lawsuit. Id. Texas argued that Devillier’s combined lawsuit should be dismissed because Devillier did not bring a claim under the correct statute. Id. at 3–4. Texas contended that the Fifth Amendment does not provide an avenue to bring a federal Takings claim. Id. Instead, Texas asserted that the claim must be brought under 42 U.S.C. § 1983. Id. at 4. Section 1983 allows a federal claim against a person who deprives a citizen of a constitutional right. Id. However, the Supreme Court has ruled that a State is not a “person” for the purposes of § 1983, so Texas contended that Devillier’s Takings claim should not proceed. Id.
The District Court disagreed with Texas and ruled that Devillier did not need to bring a Takings claim under § 1983. Id. at 4. The District Court explained that the Supreme Court and several appellate courts have implied or ruled that a citizen may sue directly under the Fifth Amendment for just compensation. Id. at 4–5. The appellate courts have ruled that the Takings clause arises directly from the U.S. Constitution, so it is the strongest right and therefore can be used to bring a claim. Id. at 5. Based on those rulings, the District Court did not dismiss Devillier’s lawsuit. Id. at 11.
Texas then appealed the District Court’s decision to the Fifth Circuit Court of Appeals (“Fifth Circuit”). Devillier v. State at 1. The Fifth Circuit disagreed with the District Court and ruled that Devillier was not able to bring a Takings claim directly under the Fifth Amendment. Id. The Fifth Circuit voted not to rehear the case, and the United States Supreme Court granted Devillier certiorari on September 29, 2023. Brief for Petitioner, Richard Devillier, et al. 6.
IMPLIED RIGHT OF ACTION
According to Devillier, the Takings Clause is self-executing, rendering Congress’ affirmative recognition unnecessary. Brief for Petitioner, Richard Devillier, et al. at 11. In Devillier’s view, First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, a Supreme Court case holding the destruction of property value constitutes “taking,” clarified that the federal Constitution mandates compensation for property taken. Id. at 12. Devillier also contends that First English confirmed that the Constitution’s just-compensation requirement aims to ensure compensation for justified takings, rather than limit government intervention. Id. Devillier further asserts that a new cause of action does not require Congress’ recognition to bring a suit to a court, as this right is grounded in the Constitution, not statutes like the Tucker Act, which waives some of the government’s sovereign immunity. Id. Furthermore, Devillier contends that regardless of the counterparty being the state or federal government, the Constitution allows individuals to seek just compensation against the government entity in question. Id. at 14.
Addressing concerns about the Court potentially overstepping its power by creating a private right of action, Devillier argues that such a move aligns with the Court’s role in enforcing the Constitution. Brief for Petitioner at 34–35. According to Devillier, federal courts that grant implied causes of action are interpreting the Constitution rather than making unjustified inferences. Id. at 35, 37. Devillier emphasizes that the Court is obligated to enforce the Constitution, ensuring uncompensated individuals have their day in court. Id. at 37. Devillier also posits that disallowing the pursuit of damages would lead to more adverse outcomes, limiting courts to granting costlier equitable remedies such as injunctive relief. Id. at 38.
Texas counters that the Fifth Amendment is unlikely to include an implied cause of action without Congress’s consent. Brief for Respondent, State of Texas at 20. Texas points out the omission of US-party suits from the Court’s original jurisdiction and notes that the Takings Clause originally only applied to the federal government. Id. Therefore, Texas concludes that there is no forum to pursue Takings Clause claims without a Congressionally established lower court under Article III of the federal Constitution. Id. Additionally, Texas insists that the Supremacy Clause and the Court’s interpretation of it should apply to the Takings Clause. Id. at 21.
Texas asserts that cases like Jacobs et al. v. United States, an eminent domain case in the Supreme Court, never addressed the issue of an implied cause of action. Brief for Respondent at 36. Regarding First English, Texas claims that the issue was never raised at the state level initially. Id. Texas also points out that the Jacobs court addressed the amount of just compensation required under the Fifth Amendment in a Tucker Act suit, not the availability of the cause of action under the Constitution Id. at 38. Furthermore, Texas contends that Devillier neglects to acknowledge that the Tucker Act would immunize the government from potential compensation obligations. Id. at 43. Texas maintains that the Tucker Act was legislated well before the Erie case, allowing federal courts more leeway in creating the cause of action, as common law was understood to provide causes of action. Id. at 44.
TEXT AND HISTORY OF JUST-COMPENSATION RIGHTS
Devillier asserts that the text of the Constitution explicitly necessitates damages as a remedy, even in the absence of Congressional endorsement. Brief for Petitioner at 18. Devillier argues that, unlike other constitutional clauses, the Takings Clause uniquely specifies what must occur rather than what should be prohibited. Id. at 19. Devillier contends that the Constitution’s explicit reference to compensation empowers competent jurisdiction courts to order the government to pay when it fails to do so. Id.
Devillier supports that argument with historical precedents, citing the Magna Carta’s establishment of the principle of immediate payment, which found success in early American courts as common law. Brief for Petitioner at 19–21. According to Devillier, early American courts generally deemed laws seizing property without compensation as void, asserting that the Founding Fathers intended the Takings Clause to imply a cause of action Id. at 22–26. Devillier also highlights Madison’s assertion that the constitutional protection against uncompensated takings was essential to the constitutional order, suggesting an implied new cause of action. Id. at 24–26. Devillier further argues that the history of takings litigation nationwide confirms the enforceability of the just-compensation right, with property owners relying on suits against public entities as a remedy Id. at 27–33.
Devillier further argues that history points to the same conclusion. Brief for Petitioner at 19. For instance, Devillier points out that after the principle of immediate payment was established in the Magna Carta, it was successfully settled in the early American courts as common law. Id. at 19–21. Devillier argues that early American courts generally held that laws seizing property without compensation were void based on this principle. Id. at 22–23. Devillier further contends that the Founding Fathers intended the Takings Clause to imply a cause of action. Id. at 24–26. For instance, Devillier asserts that Madison’s comment that the constitutional protection against uncompensated takings was essential to the constitutional order demonstrates that he intended the Takings Clause to create an implied new cause of action. Id. Lastly, Devillier contends that the history of takings litigation in courts nationwide confirms that the just-compensation right is enforceable. Id. at 27. Devillier contends that early federal courts clarified the just-compensation right is founded upon the Constitution, not statutes. Id. at 28–30. Therefore, Devillier argues that property owners could demand just compensation based on this right. Id. at 28. Devillier further explains that this role of compensation shifted over to the judicial branch, leading property owners to rely on suits against public entities as a remedy. Id. at 33.
Contrarily, Texas argues that a structural reading of the Constitution does not establish an implied takings cause of action against the States. Brief for Respondent at 17. According to Texas, the Founding Fathers intended Congress, as the entity closest to the people, to control government finances, and granting a cause of action not provided under the Fifth Amendment would undermine Congress’ appropriation power Id. at 17–19. Texas asserts that the Constitution prevents courts from granting a monetary remedy without Congressional authorization. Id. at 19. Under the Separation of Power principle, Texas contends that the judicial branch should refrain from creating an implied Constitutional cause of action if the executive branch might be better equipped for the task, especially since alternative remedies already exist, and Congress only granted a cause of action against local government, not the state Id. at 28–30.
Texas counters Devillier’s argument by asserting that compensation until the nineteenth century was facilitated not through litigation but through Congress’ immediate cash payment, indicating that a new cause of action was not created through the Constitution but through Congress’ delegation power. Brief for Respondent at 23, 25. Texas emphasizes that only after the Tucker Act in 1887 did Congress delegate its power to compensate property to the courts Id. at 25. Texas argues that the right to sue requires Congress’ delegation, as seen in the Tucker Act, a Congress-made statute providing courts with jurisdiction to adjudicate takings-claim cases. Id. at 43. Furthermore, Texas dismisses Madison’s comment about the constitutional protection against uncompensated takings, asserting that it does not indicate an intention to imply a cause of action, as the Constitution empowers but does not mandate Congress to create lower courts for takings litigation. Id. at 44. Lastly, Texas contends that takings litigation at state courts is irrelevant, as state laws do not implicate the U.S. Constitution's Takings Clause. Id. at 44–45.
UNPREDICTABLE SYSTEMWIDE CONSEQUENCES
Ilya Somin and Cato Institute (“Somin and Cato”), in support of Richard Devillier, assert that ruling that the Fifth Amendment is not self-executing would negate a fundamental constitutional right. Brief of Amici Curiae Ilya Somin and Cato Institute, in Support of Petitioners at 11. Somin and Cato argue that state governments would be free to seize private property without compensation because they could not be challenged in either state or federal court. Id. The Chamber of Commerce of the United States of America (“Chamber of Commerce”) adds that negating the right to just compensation would cause instability and unpredictability for property rights. Brief of Amicus Curiae Chamber of Commerce of the United States of America, in Support of Petitioners at 10. Chamber of Commerce continues by asserting that a decision in favor of Texas has the potential to chill innovation on a national scale, affecting intellectual property and trade secrets, as well as many other sectors in the nation such as carbon sequestration, mineral rights, and property covenants. Id. at 17, 19–21. No property owner, Chamber of Commerce explains, would be willing to invest in any property if the government could easily seize their hard work without compensation. Id. at 10.
Minnesota and sixteen other states (“Minnesota et al.”), in support of Texas, counter that a decision that the Fifth Amendment provides an avenue for a Takings claim completely deviates from a long history of case law that supports States’ status as separate sovereigns. Brief of Amici Curiae Minnesota, et al., in Support of Respondent at 3. Minnesota argues that a deviation from established case law will completely undermine the states’ reliance on an unbroken line of precedent. Id. at 8, 19. Minnesota also contends that the Tucker Act, which was the previous system for filing Takings claims in federal court, is under significant doubt. Id. at 20. Under the Tucker Act, Minnesota explains, petitioners were limited to the Court of Federal Claims, but Devillier’s argument brings up questions about whether other plaintiffs can sue outside the Court of Federal Claims. Id. at 20–21. Texas contends that a decision for Devillier will force courts to deal with significantly more questions, especially questions that are better suited for the legislative branch to tackle. Brief for Respondent, State of Texas at 31–32.
Somin and Cato, in support of Devillier, assert that a ruling that the Fifth Amendment is not self-executing would foreclose federal courts from plaintiffs. Brief of Somin et al., at 11. Somin and Cato argue that this foreclosure would cause significant issues for plaintiffs who want to bring Takings claims because state courts have potential biases that federal courts do not have. Id. Somin and Cato substantiate their claim by pointing out that in most states, judges are elected for their positions. Id. Somin and Cato contend that the political nature of such judges’ positions makes it likely that they have close ties with the same politicians that are enacting the challenged legislation. Id. at 11–12. Somin and Cato further note that closing off the federal courts would have significant consequences for states like Louisiana because federal courts are the only avenue for Louisiana property owners’ Takings claims. Id. at 12. Somin and Cato explain that Louisiana does not have a state-law remedy for Takings claims, so if Louisiana property owners could not bring Takings claims into federal court, they would not have any way to protect their constitutional rights. Id.
Minnesota counter that every State has state-court remedies for Takings claims, with a wide range of procedures to protect landowners against state authorities. Brief of Minnesota et al., at 14–15. Minnesota argues that in many states, these protections provide even stronger rights than those guaranteed by the Constitution, such as protections for damaged property. Id. at 15–16. Furthermore, Minnesota asserts that a decision in favor of Devillier would completely upend many states’ established frameworks for providing compensation for Takings claims, leading to significant concerns about the separation-of-powers between the States and the Courts. Id. at 19. Minnesota notes that the Supreme Court has stated in other cases that separation-of-powers is an extremely important consideration when dealing with implied causes of actions, so the Court should remain cautious before creating them. Id. at 9. Minnesota continues by arguing that going against separation-of-powers principles would allow the Courts to cut against traditional state authority to determine procedure for damage remedies. Id. at 20.
- Niina H. Farah, Supreme Court flood case could ripple across the energy sector, POLITICO (Oct. 2, 2023).
- Jon Miltimore, A Texas Farmer's Case Heads to the Supreme Court—After the State Refuses to Compensate Him for Property It Destroyed, Fee Stories (Oct. 31, 2023).
- Courtney Pedersen, Local flood case accepted by U.S. Supreme Court, Beaumont Enterprise (Sept. 29, 2023).
- Lydia Wheeler, Supreme Court Accepts Land Fight Over Texas Highway Flooding Fix, Bloomberg (Sept. 29, 2023).