Is there an express cause of action under the Takings Clause?

Can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdiction? (And a connection to the bumpstock litigation)

Today the Supreme Court decided Maine Community Health Options v. United States. This 8-1 decision held that the ACA's "Risk Corridors" provision created an obligation to pay insurers for their losses, even if Congress subsequently repealed the appropriation. I have only followed this ACA issue from a distance. It does not implicate any of the core constitutional issues I've written about in two--and soon, three--books.

The case turned on some of the nuances of the Tucker Act. Justice Sotomayor's majority opinion explains this important statute:

The United States is immune from suit unless it unequivocally consents. United States v. Navajo Nation, 556 U. S. 287, 289 (2009). The Government has waived immunity for certain damages suits in the Court of Federal Claims through the Tucker Act, 24 Stat. 505. See United States v. Mitchell, 463 U. S. 206, 212 (1983). That statute permits"claim[s] against the United States founded either upon theConstitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U. S. C. §1491(a)(1).

In this case, the Plaintiffs brought suit in the Court of Federal Claims, pursuant to the Tucker Act. But is it possible to sue the federal government for an unconstitutional taking, without relying on the Tucker Act? That is, does the Takings Clause itself create an express cause of action.

In Footnote 12, the majority said it does not:

By the dissent's contrary suggestion, not only is a mandatory statutory obligation to pay meaningless, so too is a constitutional one. After all, the Constitution did not "expressly create . . . a right of action," post, at 3, when it mandated "just compensation" for Government takings of private property for public use, Amdt. 5; see also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315–316 (1987). Although there is no express cause of action under the Takings Clause, aggrieved owners can sue through the Tucker Act under our case law. E.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016– 1017 (1984) (citing United States v. Causby, 328 U. S. 256, 267 (1946)).

Two observations. First, Justice Alito's dissent (p. 3) did not say "the Constitution did not 'expressly create . . . a right of action.'" The majority mischaracterized the dissent. Justice Alito said nothing about the Constitution. He was talking about federal law. He wrote:

The Tucker Act, 28 U. S. C. §1491, under which petitioners brought suit, provides a waiver of sovereign immunity and a grant of federal-court jurisdiction, but it does not create any right of action. See, e.g., United States v. Navajo Nation, 556 U. S. 287, 290 (2009). Nor does any other federal statute expressly create such a right of action.

This error should be corrected before the opinion is formally published.

Second, the citation to Monsanto isn't directly on point. Here is the relevant passage from the 1984 decision:

Equitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking. Larson v. Domestic & Foreign Commerce Corp. (1949). The Fifth Amendment does not require that compensation precede the taking. Hurley v. Kincaid (1932). Generally, an individual claiming that the United States has taken his property can seek just compensation under the Tucker Act, 28 U. S. C. § 1491. United States v. Causby (1946) ("If there is a taking, the claim is `founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine"); Yearsley v. Ross Construction Co. (1940).

Monsanto did not hold that "there is no express cause of action under the Takings Clause." That issue was not decided. Did Justice Sotomayor's footnote reach an unresolved constitutional ruling? I am not enough of an expert on the Tucker Act to opine. But based on my reading, the Court extended the ruling from Monsanto. And it did so without any analysis. Moreover, this ruling was not necessary to the Court's holding: the plaintiffs did rely on the Tucker Act. And Justice Alito didn't say anything about the Constitution? I suspect the Justices may have buried a "time bomb" here.

Let's put aside the footnote for a moment. Is the Court correct as a matter of first principles? What would have happened if the Congress never enacted the Tucker Act in 1887? Could the federal government take property without paying "just compensation"? People could still petition Congress for "just compensation." Indeed, that history probably explains why the Court of Claims was created in 1855 as an Article I court.

Imagine if Congress repealed the Tucker Act. Would people be forced to go back to Congress? Or would the federal courts find that the Takings Clause, standing by itself, creates an express cause of action for damages? Let me state the question differently. Is it possible to sue the federal governments for "just compensation" without relying on the Tucker Act's jurisdiction?

This question has some bearing on my writings about the bump stock litigation. See Parts I, II, III, and IV. Today, the government filed its new motion to dismiss in that case. Here is a relevant excerpt:

This Court does not "need to assess whether the final rule is a correct interpretation of [18 U.S.C. § 922(o)] in deciding whether there was a compensable taking." Mem. Op. at 13. Plaintiff does not challenge the Rule itself, but instead, has pleaded a claim for compensation under the Little Tucker Act. See Compl. ¶ 48. This approach is consistent with precedent under the Tucker Act mandating that, "for the Court to possess jurisdiction over a takings claim, the 'claimant must concede the validity of the government action which is the basis of the taking claim.'" Jackson v. U.S., 143 Fed. Cl. 242, 247 (Fed. Cl. 2019) (quoting Tabb Lakes v. U.S., 10 F.3d 796, 802 (Fed. Cir. 1993)). Because "the grant of jurisdiction" in the Tucker Act "is practically identical to that" of the Little Tucker Act, Kipperman v. McCone, 422 F. Supp. 860, 868 (N.D. Cal. 1976), this Court should conclude that the validity of the Rule is not placed at issue in Plaintiff's takings claim

But what if the the claimant does not "concede the validity of the government action," and for that reason seeks compensation? That is, the Plaintiff alleges that he is due compensation precisely because the government lacked the enumerated power to seize and destroy his property. In other words, the executive branch did not have the requisite constitutional authority to seize the devices in the first place.

The long-awaited fifth installment is still in the works. It will address the following question: can a plaintiff seek compensation for an unconstitutional taking, without relying on the Tucker Act's jurisdiction--if not under the Takings Clause, perhaps under some theory of tort.