The Fifth Amendment is Self‐​Executing

Ilya Somin and Isaiah McKinney

Richard Devillier and his family owned property abutting a highway in northern Texas, alongside other property owners. Texas built a dam next to their property to keep flood waters from flowing across the highway, which would have made it impassible. But this damming to protect the highway instead flooded and damaged the Devilliers’ property. When the Devilliers and other property owners sued for the taking of their property via the flooding, their claim was dismissed because states are sovereignly immune from lawsuits.

The Devilliers had sued in state court, claiming that the state owed them compensation under the Fifth Amendment’s Takings Clause, but the state of Texas removed the case to federal court under 28 U.S.C. § 1441. Once in federal court, Texas moved to dismiss, arguing that a claim could not be brought directly under the Fifth Amendment. Texas argued that instead the Devilliers needed to bring a 42 U.S.C. § 1983 claim. Section 1983 allows individuals to sue any “person, who under color of any [state] statute, ordinance, regulation, custom, or usage” violates that individual’s constitutional rights. The catch is that although “person” has been interpreted to include municipalities, it does not include states. So if a city violates someone’s constitutional rights, that person can sue, but not if a state violates her rights.

Texas’s arguments impermissibly create an unconstitutional “Catch 22”—if the citizen sues in federal court, the government will argue that there is no federal cause of action, but if the citizen sues in state court, the government will just remove to federal court.

The federal court denied Texas’s motion, deciding that the Takings Clause—which states that “private property [shall not] be taken for public use, without just compensation”—required the payment of compensation and allowed suits to obtain compensation. Texas appealed, and the Fifth Circuit reversed the lower court, deciding in a three‐​sentence opinion that there is no federal cause of action to sue for takings against state governments.

The Devilliers and the other property owners have petitioned the United States Supreme Court for review, and the Cato Institute has filed an amicus brief in support, along with law professor Ilya Somin.

Cato’s brief explains that the Fifth Amendment is self-executing—by promising a remedy of just compensation for takings, the Constitution provides a remedy in itself. No statutory right is required to sue because the Constitution gives one. The Takings Clause is the only provision in the Bill of Rights to provide a remedy when a right is violated—therefore a separate cause of action is not required to sue for takings.

In its important decision in Knick v. Township of Scott (2019), the Supreme Court reversed Williamson County Regional Planning Commission v. Hamilton Bank (1985)—a ruling that required plaintiffs with takings claims against state and local governments to first exhaust state‐​court remedies before seeking relief in federal court. The Court recognized in Knick that this state‐​litigation requirement created another impermissible “Catch‐​22” in which plaintiffs could not “go to federal court without going to state court first; but if [they went] to state court and los[t], [their] claim[s were] barred in federal court.”

In reversing Williamson County’s atextual exhaustion requirement, Knick established the important principle that takings plaintiffs are entitled to their day in federal court.

But the Fifth Circuit’s failure to recognize the constitutional right to sue states for takings in federal court creates a lose‐​lose situation for victims of takings. By holding that Fifth Amendment takings claims against states are simultaneously removable to federal court and nonjusticiable in federal court due to the purported lack of a federal cause of action, the Fifth Circuit has effectively barred takings claims against states from both state and federal court. That holding is untenable under Knick. The Supreme Court should hear the Devilliers’ claim and reverse the Fifth Circuit’s unconstitutional decision.

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