We’d guess that most people, if asked whether the courts can “do something” when the government acts beyond the authority delegated to it in the Constitution, would respond that “doing something” is exactly what courts are for. 

Bottom Line Up Front

And that is what drives our BLUF on today’s Supreme Court oral arguments in Devillier v. Texas: we’re predicting that the property owner’s arguments in will convince a majority of the Justices, and that the Court will answer the Question Presented with a “yes” –

May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?

Courts Exist to “Do Something” When Government Violates Rights, Right?

Justice Kagan, as if often the case, drove right to the heart of the matter. For the “money quote” in the transcript or audio recording, you need look no further than this colloquy between the Justice and Texas’ advocate:

JUSTICE KAGAN: But, General, do you agree with Mr. McNamara that if a state takes a person’s property and doesn’t give compensation, that state is violating the Constitution every day? It’s an ongoing violation. Do you agree with that?

MR. NIELSON: That’s not how the Court has — I — I — I believe — I certainly agree that’s a violation of the Constitution. I don’t think this Court’s cases have ever —

JUSTICE KAGAN: But that’s what I want to know. It’s an ongoing violation of the Constitution, right? I’ve taken Mr. McNamara’s property. I haven’t paid him. Every day I’m violating the Constitution, correct?

MR. NIELSON: Yes, Your Honor.

JUSTICE KAGAN: Okay. So aren’t courts supposed to do something about that?

MR. NIELSON: Yes, Your Honor. And what this Court said in Knick is, when there’s not a cause of action, which remember there wasn’t a cause of action, there were — you have — there’s no remedies.

Tr. at 46-47.

At its core, Devillier is a case about whether and how we – through the courts – enforce our rights. In this case, the right to be justly compensated when government takes property, either directly via an exercise of eminent domain, or de facto by depriving the owner of its use and enjoyment. Texas inadvertently flooded Devillier’s land, one of those “classic” inverse condemnation situations.

So Devillier asked the courts to “do something.” He sued Texas for just compensation in Texas’ own courts. Texas, not wanting to litigate in its own courts (where today it acknowledged that it could be sued for compensation), Texas removed the case to federal court, where Texas could argue that it could not be sued for compensation. 

Texas: There Are Rights, and There Are Procedures

As we detailed in our preview of the arguments, the federal court agreed with Devillier and held that in the absence of statutory authorization to sue (a “cause of action”), the courts can do nothing. To us (and the amicus brief we filed), the lack of a judicial remedy makes the limitations on sovereign power in the Bill of Rights seem more like suggestions that can be ignored — the old “Pirate’s Code” meme comes to mind — than, you know, actual rules that have to be followed. 

But that alone was not apparently enough to resolve the case, and consequently, today’s arguments were at time highly technical and law-wonky, with the Justices seemingly searching for distinctions between the concepts of (1) rights, (2) causes of actions, (3) remedies and (4) – as the advocate for the federal government injected — “obligations.” All of which go to that most fundamental of questions: what if anything can courts do if the government doesn’t honor its constitutional obligations?

First, here’s what was not disputed. We didn’t hear any disagreement that when there’s been a taking of property – something both Texas’ and the federal government’s lawyer acknowledged isn’t a question here – that there’s a fundamental requirement to provide just compensation. In short, everyone agrees there’s a right to compensation when property is taken.

The Right To Just Compensation Alone Is Not Enough

That’s all well and good, but that alone does not get you there, Texas argued. Because it addition to a right, you also need a cause of action. What that means is you need to have a legal claim, a procedural concept that is familiar to lawyers (but makes the rest of the public scratch its collective head). Texas argued that there is a cause of action to adjudicate Devillier’s claim that his federal constitutional rights have been violated, but only a cause of action under Texas law and in a Texas court. Once in federal court, his claim dies because Devillier did not raise a Texas cause of action, only a claim directly under the U.S. Constitution.

Gamesmanship, bait-and-switch, and square corners

That argument caught flak from several members of the Court because it wasn’t Devillier who chose federal court, it was Texas. In short, Texas shifted the forum from one where Texas argued it could be sued, to one where it argued it couldn’t — and then argued that Devillier could have brought his claim in a Texas court.

We think the colloquy you should pay attention to is between Justice Sotomayor and Texas’ counsel:

JUSTICE SOTOMAYOR: And Count 2 [of Devillier’s complaint] says violation of the Fifth Amendment of the U.S. Constitution.

MR. NIELSON: Yes, Your Honor.

JUSTICE SOTOMAYOR: Summarizing basically. I don’t know what else they would have had to do in Texas court if I cite that case.

MR. NIELSON: It –

JUSTICE SOTOMAYOR: They said, I’m suing you in Texas court. You’re the one who removed to federal court.

MR. NIELSON: Yes, Your Honor.

JUSTICE SOTOMAYOR: This seems to me like a totally made-up case because they did exactly what they had to do under Texas law. It’s you who are telling me — it’s almost a bait and switch — that you wanted to get to federal court to basically have a class action and you couldn’t do it in state court, so — but you had to fight something, which I don’t know what you’re fighting because you’re telling me that Texas lets them have a cause of action under the Fifth Amendment.

MR. NIELSON: Yes, Your Honor. There’s no bait and switch here, I want to be clear on that, no bait and switch.

JUSTICE SOTOMAYOR: Well, you’re the one who removed.

MR. NIELSON: We removed, and they didn’t come back and say, oh, no, you misunderstand what we’re saying. Instead, every step along the way, they have doubled down all the way going to cert, you know, seek certiorari review from this Court. So, if we misunderstood what they were saying –

JUSTICE SOTOMAYOR: So, if — if they go back down and say to the district court, this has been remanded to the district court, all we want is just compensation under the Texas Constitution and the Fifth Amendment under that case that you’re mentioning, that’s okay and you’re not going to resist that?

MR. NIELSON: We — we — we would not resist that, Your Honor.

Tr. at 63-64.

Another colloquy — this time with Justices Kavanaugh and Gorsuch — is even more stark. There, Texas’ advocate recognized that as a matter of “first principles” (are there any other kind, we ask) there’s a right to compensation when the government has taken property, and that failing to pay it violates the Constitution, but tough beans property owner because procedurally we just don’t know how to “get there.” See Tr. at 58.

To us, this is very extreme position to take, especially coming from a government lawyer. After all, we thought that the old “turn square corners” rule is particularly apt in constitutional cases. See Niz-Chavez v. Garland, 593 U.S. ___ (2021) (“If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”). Recognizing a right, but shrugging your shoulders (indeed, actively playing removal games) isn’t exactly what we’d hope our government would do, is it?  

Texas sought to cut this off right out of the gate, when it started by touting how good it is about property rights:

MR. NIELSON: Mr. Chief Justice, and may it please the Court:

The Court will be hard-pressed to find any government more committed to property than Texas. The Texas constitution is more protective than the federal Constitution, and Texas courts under a Texas cause of action adjudicate takings claims under both constitutions.

Tr. at 38.

A staunch protector of property rights, just not here. 

The claim that we-care-about-property-rights-just-not-here didn’t go over all that well, as the above-quoted passages show.

A couple of other distinct threads were present. 

What About First English?

Much of the case turns on what the Court meant when all those decades ago (“38 years ago” as Chief Justice dryly retorted, getting the date exactly right) in First English when it adopted Justice Brennan’s San Diego Gas & Electric dissent and held that no state court properly limit the remedy for a taking to injunction (ordering the government to stop the taking). The Just Compensation Clause is “self-executing” and mandates that even if the government backs off of the taking, it is obligated to provide compensation for the time during which it did take the property.

When the federal government’s advocate attempted to argue otherwise, Chief Justice Roberts was having none of it. After all, he seems to get particularly incensed when the government fails to remain consistent in its arguments over cases, and over time (see the “square corners” vibe above). Thus, the Chief was all over the government’s lawyer:

CHIEF JUSTICE ROBERTS: — brief that you filed in First English 38 years ago, you argued that the Constitution does not of its own force furnish a basis for a court to award money damages against the government.

Now, in the decision in First English, Justice Rehnquist rejected the idea “that the Constitution does not of its own force furnish a basis for the court to award money damages against the government.”

Now it seems to me that the question turns on basis. And what you seem to be saying is it created a general theory of what the government had to do, but that doesn’t mean that anybody could take that and recover compensation. They have to go get an injunction or they — they can’t proceed at all because there’s no cause of action?

MR. KNEEDLER: Yes, Your Honor.

CHIEF JUSTICE ROBERTS: I mean, are you just rearguing the point that the Court rejected?

Tr. at 70-71.

The lawyers for Texas and the federal government also seemed to be swimming against the tide when they argued that “self-executing” didn’t mean that the Just Compensation Clause “of its own force” provides the cause of action. All you can get, the government lawyers argued, is an injunction.

Chief Justice Roberts disagreed, pointing to the more recent opinions he authored in Knick and Cedar Point.

MR. NIELSON: Well, we would make the same argument in state or federal court that there is no federal cause of action directly under the Fifth Amendment. That is not –

CHIEF JUSTICE ROBERTS: Well, but that’s what was rejected in — in the two cases that I read you, Cedar Point and Knick.

MR. NIELSON: With respect, Your Honor, I don’t read either of those cases as saying there is a federal cause of action.

Tr. at 46. 

To us, when you are arguing with the author of a judicial opinion what that opinion says, you are invariably going to lose that argument.

Rogue State

Finally, the other major thread that emerged was what everyone referred to as the “rogue state” hypothetical. As Texas’ lawyer put it, “let’s assume some state says, we’re just not going to do that [pay compensation after a taking.” Tr. at 53. Then what?

First, this isn’t really a hypothetical because we don’t have too look too far for two real-world examples of this. Right next door to Texas, Louisiana government do this on what seems like a semi-regular basis. See for example, where a municipal port authority exercised its eminent domain power to take a ship repair facility. After trial and a bunch of appeals, the court ultimately entered a judgment for just compensation that the municipality owed millions to the (former) property owner. Did the municipality pay up? Nope. There’s a provision in the Louisiana Constitution that the state and its political subdivisions can’t be forced to pay civil judgments. And here, the municipality didn’t pay for years. A federal district court held this wasn’t a problem. After arguments in the Fifth Circuit during which the judges kept pressing the government’s lawyer for why her client had not paid compensation, the case not surprisingly settled.

In another case — this time an inverse condemnation claim — same thing. The trial court entered a compensation judgment against a Louisiana municipality, which eventually exhausted all of its appeals. But then it didn’t pay the ordered compensation. It didn’t have to, unless and until it felt like it. The owner filed a federal lawsuit, arguing that the delay in compensation violated the U.S. Constitution. But unfortunately, the Supreme Court denied our cert petition. (we filed this cert petition, which unfortunately was denied). 

In the Devillier arguments, both Texas and the federal government argued that the solution to the rogue state problem isn’t a judicial order ordering the payment of just compensation for a taking. Rather, the remedy is limited to injunction. See above discussion of First English on that. On that issue, it was Justice Kagan who again supplied your moment of clarity, when she asked Texas’ lawyer about the supposed injunction remedy:

JUSTICE KAGAN: So to say, well, look, you can sue for an injunction but you can’t sue for payment just doesn’t understand the nature of this right.

MR. NIELSON: Well, so our first-line argument is, you know, the way the United States did it for a hundred years is correct. But, if the Court disagrees with that, if the Court says, you know what, actually –

JUSTICE KAGAN: So, General, I kind of agree with that. Your best argument is like what happened between the time of the Constitution and, you know, someplace in the late 19th Century.

But suppose that I’m not such an originalist and I don’t really care about that.

(Laughter.)

MR. NIELSON: Sure. All right. So that’s the answer I’m going to say. So, if we — if a court says we read First English and it requires not just a substantive relief, it requires some sort of judicial proceeding, which we don’t think is consistent with the history, but let’s assume, Texas does it. Texas provides a cause of action for which they can bring a federal takings claim.

So even if that is true, which we don’t believe as our first-line argument is correct, Texas still wins.

Tr. at 51-52.

Bottom Line

Let’s wrap up. Here’s some final thoughts at what might come out of this, and what a decision here might mean.

  • This case presents the Court with yet another opportunity to clear away some of the games-playing and procedural hurdles that the government (with the acquiescence of the the courts) puts up in property rights cases. The trend in recent times at the Court has been to view these hurdles with a lot of skepticism. Continues the Court’s direction in clearing procedural hurdles. Yes, like in a lot of civil litigation against the government, the Court is going to tolerate a fair degree of procedures, but only if these are “modest” (see, e.g., Pakdel) and serve the purpose other than making it difficult for the plaintiff. Here, we don’t think that the Court is all that keen on cementing a distinction between “rights,” “remedies,” and “causes of action.”
  • Relatedly, this case also seems like a good opportunity for the Court to remind everyone that property rights are not second-class constitutional and civil rights, and that their inclusion in the Bill of Rights means something. Devillier’s lawyer started off his argument with this, stating, “[t]he question presented in this case is resolved by the text of the Fifth Amendment, which, unlike any other provision of the Constitution, imposes on the government a — an explicit duty to pay money.” Tr. at 3. Just so.
  • The Justices didn’t seem to be at all focused on what a decision in this case leaves for future resolution. Issues such as whether a state enjoys sovereign immunity from just compensation claims in federal court. We think the Court will rightly leave that and other issues for later cases.

Now we wait.

Update: here’s lawprof Ilya Somin’s take on the arguments: “Oral Argument in Devillier v. Texas Suggests Victory for Property Rights Likely” (Volokh)