Supreme Court Issues Narrow Takings Clause Ruling in DeVillier v. Texas [updated]

The Court allows takings suit against Texas to proceed under state law, but doesn't resolve question of whether the Takings Clause is "self-executing."

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In DeVillier v. Texas, the Supreme Court issued a narrow ruling in an important Takings Clause case. Richard DeVillier and other property owners whose land was damaged by flooding caused by actions of state agencies will be able to proceed under a Texas state law cause  of action. But the Court did not resolve the issue of whether the Takings Clause is "self-executing" - allowing property owners whose land has been taken to bring cases in federal court even in the absence of a specific federal statute authorizing it.

The Supreme Court decision does, however, overturn the extremely dubious Fifth Circuit US Court of Appeals ruling dismissing the plaintiffs' case. At least for the moment, it also negates Texas' Catch-22 attempt to get rid of the case by removing it to federal court (DeVillier originally filed his claim in state court), and then getting it dismissed on the grounds that there is no federal cause of action available.

Here are some key passages from the unanimous Supreme Court ruling written by Justice Clarence Thomas:

The Takings Clause of the Fifth Amendment states: "nor shall private property be taken for public use, without just compensation." We have explained that "a property owner acquires an irrevocable right to just compensation immediately upon a taking" "[b]ecause of 'the self-executing character' of the Takings Clause 'with respect to compensation.'" Knick, 588 U. S., at 192 (quoting First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315 (1987)). Texas does not dispute the nature of the substantive right to just compensation. This case presents only a question regarding the procedural vehicle by which a property owner may seek to vindicate that right.

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead,constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose… DeVillier argues that the Takings Clause is an exception. He relies on First English Evangelical Lutheran Church of Glendale v. County of Los Angeles to assert that the just-compensation requirement of the Takings Clause is "self-executing" and that "[s]tatutory recognition [is] not necessary" for takings claims because they "are grounded in the Constitution itself." 482 U. S., at 315 (internal quotation marks omitted). In other words, the Takings Clause creates by its own force a cause of action authorizing suits for just compensation.

The cases that DeVillier cites do not directly confront whether the Takings Clause provides a cause of action for just compensation. First English itself proceeded under a state-law cause of action….

That said, the absence of a case relying on the Takings Clause for a cause of action does not by itself prove there is no cause of action. It demonstrates only that constitutional concerns do not arise when property owners have other ways to seek just compensation. Our precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause.

But, this case does not require us to resolve that question. The question presented asks what would happen if a property owner had no cause of action to vindicate his rights under the Takings Clause. It would be imprudent to decide that question without satisfying ourselves of the premise that there is no cause of action….

The premise that Texas left DeVillier with no cause of action to obtain the just compensation guaranteed by the Takings Clause does not hold. Texas state law provides a cause of action by which property owners may seek just compensation against the State. As Texas explained at oral argument, its state-law inverse-condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause….

This case therefore does not present the circumstance in which a property owner has no cause of action to seek just compensation. On remand, DeVillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law.

One issue that seems unclear is whether, on remand, DeVillier and the others will be able to pursue the Texas law "cause of action" in federal court, or whether they must do so in state court. If the latter, could Texas once again remove the case to federal court and then once again argue the case must be dismissed because there is no proper federal cause of action? To my mind, the requirement that "DeVillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law" seems to preclude the possibility of their being removed and dismissed for procedural reasons. But perhaps I am missing something here. I wish the Court were more clear on that point.

Perhaps the Catch-22 problem will not recur in this case, either because the substantive takings issues will now be fully litigated in federal court, or because the plaintiffs will be able to pursue their claims in state court and Texas will not try to remove again, or such attempts at removal will be rejected. But it could easily arise in other cases.

It would have been better if the Supreme Court had simply ruled that the Takings Clause is self-executing. The  Clause makes no distinction between "legal" and "equitable" remedies for violations, or between "offensive" and "defensive" uses of the constitutional right in question. Instead, the presumptive remedy - "just compensation" - is built right into the text. Such a clear textual command overrides any possible implicit law-equity distinction. And it would be perverse if state or federal governments could negate the Takings Clause simply by failing to enact a specific statute to enforce it. Even if previous Supreme Court precedents don't squarely decide this issue, several - including First English - strongly imply that self-execution is the rule. As Justice Thomas notes, the 2019 Knick decision specifically refers to  "'the self-executing character' of the Takings Clause 'with respect to compensation.'"

In addition, even if property owners are allowed to pursue claims in state court, it is important for victims of violations of federal constitutional rights to have access to federal courts, as well, a principle upheld by the Supreme Court's important Takings Clause ruling in Knick v. Township of Scott (2019).

I discussed the self-execution and Catch-22 issues at stake here in greater detail in the amicus brief I filed in this case, together with the Cato Institute.

UPDATE: The Institute for Justice - the public interest law firm representing DeVillier - indicates to me that their understanding of the Court's ruling is that the case will remain in federal court upon remand, and will not have to be refiled in state court.