(Spoiler alert: we think the answer is "yes" -- see below)
Delving into the latest Supreme Court opinion related to the Affordable Care Act, lawprof Josh Blackman (who recently wrote about bump stock takings), now asks a broader question: Is there an express cause of action under the Takings Clause? More pointedly he writes about a question that takings mavens often think about (but on which there are few guideposts):
[I]s 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....What would have happened if the Congress never enacted the Tucker Act in 1887? Could the federal government take property without paying "just compensation"?
He points out that the majority opinion in the recent ACA case said no (see here, note 12 on page 25), or here:
Justice Alito's dissent (see top of post) also touches on the takings question.
It's a good one. Best we can say is that the question has not been directly addressed by the Supreme Court. Closest it got was a case brought (Brott v. United States, yes, pun intended) by our Federal Takings colleagues in the Sixth Circuit seeking compensation for a federal taking, and demanding a jury trial. District Court said no, as did the Sixth Circuit. So the property owners drummed up a cert petition. Well, as you know, the Supreme Court didn't take the case up (even though we filed an amicus brief). In that brief, we offered our thoughts on the subject.
If you want to skip the below, here's the short story: Congress has provided a remedy for property owner who claim that the federal government has taken their property and want compensation, the Tucker Act. The Supreme Court has held that when Congress makes a remedy available, you can't sue directly under a constitutional provision. But the Tucker Act does not allow for a jury trial, and property owners have a right to a jury trial. In short, the Tucker Act is unconstitutional, and property owners may sue directly in an Article III court:
The government does not enjoy its usual sovereign immunity when it takes property, either affirmatively or inversely, and this Court has repeatedly confirmed that the Just Compensation Clause is “self-executing.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315 (1987) (“We have recognized that a landowner is entitled to bring an action in inverse condemnation as a result of ‘the self-executing character of the constitutional provision with respect to compensation.”).But what does this mean, exactly? Even as the Sixth Circuit recognized that property owners have a right to compensation that springs from the Constitution itself and the right to sue does not depend upon a waiver of sovereign immunity, it held that Congress is not compelled to provide an Article III forum to vindicate that right. Or indeed, any forum at all. Thus, even if the forum Congress created―the Article I non-jury Court of Federal Claims (CFC)―is not constitutionally adequate, well, that’s good enough. In the words of the Sixth Circuit, “[t]he Fifth Amendment details a broad right to compensation, but does not provide a means to enforce that right. Courts must look to other sources (such as the Tucker Act and the Little Tucker Act) to determine how the right to compensation is to be enforced.” Brott v. United States, 858 F.3d 425, 432-33 (6th Cir. 2017). That is sovereign immunity by another name.
Professor Blackman promises to offer his take on the issue in an upcoming post. We'll provide notice here when he does. We look forward to his analysis.
