“No need to ask, he’s a smooth operator…”

Here’s the amicus brief we just filed in a case we’ve (obviously) been paying close attention to.

This is Devillier v. Texas, the case in which the Supreme Court is considering what does the it mean when it describes the Just Compensation Clause as “self-executing?” Do you need statutory authorization in order to bring a takings or just compensation claim, or can you sue directly under the Constitution? Does it matter that Congress has adopted a statute which authorizes damages suits against local governments (“persons”), but has not expressly done so against states qua states?

We say no and our brief explains why.

Note that there’s no Eleventh Amendment issue here, because Devillier filed his federal claims in a Texas court, and it was the State of Texas that removed it to federal court (thus forfeiting any 11A claim, because the State chose the federal forum).

We won’t go into a lot of detail here, because you can read it yourself (or you can read our post on the cert grant). Here’s the Summary of Argument from our brief:

The courts don’t need Congress’s permission to enforce the self-executing constitutional right to just compensation. A civil right is self-executing “if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.” Davis v. Burke, 179 U.S. 399, 403 (1900). Compensation for a taking is just such a right. The plain text of the Fifth Amendment itself supplies the rule for how the right is protected, and how it is enforced: takings of private property require compensation. This Court has said so—many times. See, e.g., First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 482 U.S. 304, 316 n.9 (1987) (the Just Compensation Clause “of its own force furnish[es] a basis for a court to award money damages against the government.”); Knick, 139 S.Ct. at 2172 (citing First English as holding that a “property owner acquires an irrevocable right to just compensation immediately upon a taking”).

Congress may enforce the Fourteenth Amendment by creating causes of action and remedies. U.S. Const. amend. XIV, § 5 (“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”). Because the Fourteenth Amendment’s plain text applies to the states as states, Congress could create a statutory cause of action for deprivations of life, liberty, or property by a state. U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any person of … property, without due process of law”). But Congress need not have done so for Richard Devillier to seek compensation from Texas for a taking, because the Fifth Amendment itself specifies the remedy, and the absence of legislation does not prohibit courts from enforcing the self-executing constitutional right to just compensation.

Statutory authorization may be necessary for other civil rights claimants to sue, but not Just Compensation claimants, because with one possible exception, no right listed in the Bill of Rights other than the right to Just Compensation is self-executing. That Congress created a general civil cause of action for “persons” claiming deprivations of “rights, privileges, or immunities secured by the Constitution and laws”—Civil Rights Act of 1871, 42 U.S.C. § 1983—is of no moment here. For example, Congress has never legislatively established a cause of action for just compensation against the federal government, and owners whose property is alleged to have been taken seek compensation directly under the Constitution. The Tucker Act does not create a cause of action for compensation or money damages; it only assigns jurisdiction over constitutionally based takings claims to the Court of Federal Claims and the Federal Circuit. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded … upon the Constitution”). In federal takings, the self-executing Just Compensation Clause recognizes the right and provides the remedy. Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 126 (1974). If the lack of a statutory cause of action does not stand in the way of holding the federal government to the Just Compensation Clause’s requirements, it similarly does not stand in the way of the same claim against a state. Our constitutional order cannot countenance neutering a right and remedy expressly recognized by the text of the Constitution, on the grounds that Congress has not acted.

The Fifth Circuit acknowledged Texas’ obligation to comply with the Fifth and Fourteenth Amendment’s plain requirements. But by divorcing liability from the constitutionally mandated remedy, the court below engaged in a clever, but not compelling, Texas two-step. First, the Fifth Circuit acknowledged that states cannot effect uncompensated takings. Yet the court concluded that Congress must affirmatively provide a statutory remedy before property owners may pursue compensation claims against a state—even in the state’s own courts. Petitioners sued Texas in a Texas court, alleging that the state’s deliberate flooding of their land effected a taking requiring compensation under the Fifth and Fourteenth Amendments. Texas eliminated any possible Eleventh Amendment issues that may have been lurking by removing the case to federal court. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 622–23 (2002); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (“Allowing a State to waive immunity to remove a case to federal court, then ‘unwaive’ it to assert that the federal court could not act, would create a new definition of chutzpah.”) (citation omitted). By requiring that Congress first recognize a cause of action for just compensation, the Fifth Circuit ensured that Devillier’s federal civil rights cannot be enforced in any court.

This Court should reaffirm that the Just Compensation Clause is self-executing and hold that property owners need not rely on a statutory cause of action where compensation is mandated by the Fifth and Fourteenth Amendments. The Constitution itself provides the cause of action, rendering the need for a statute unnecessary.

Our colleagues at the Institute for Justice (who represent the petitioner) filed the merits brief earlier in the week (well worth your time reading it, by the way, and bravo to them for identifying this case and bringing it to the Court’s attention).

Special shout-out to our law firm colleagues (and self-executing Just Compensation mavens) Deb La Fetra and Kady Valois for this brief.

Stay tuned here, or follow along on the Court’s docket.

Brief Amicus Curiae of Pacific Legal Foundation, Nat. Fed. of Ind. Bus. Small Bus. Legal Center, Inc., and…