Amicus Curiae Brief — Ariyan Incorporated, dba Discount Corner, et al., Petitioners v. Sewerage & Water Board of New Orleans, et al.

No. 22-52

IN THE

Supreme Court of the United States

ARIYAN, INCORPORATED, DOING BUSINESS

AS DISCOUNT CORNER, ET AL.,

PETITIONERS,

V.

SEWERAGE & WATER BOARD

OF NEW ORLEANS, ET AL.,

RESPONDENTS

_______

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

_______

Amicus Curiae Brief Of The Buckeye Institute

Supporting Petitioners

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS

2049 Century Park East

Suite 1700

Los Angeles, CA 90067

(310) 312-4185

mmberger@manatt.com

JAY R. CARSON

THE BUCKEYE INSTITUTE

88 East Broad Street

Suite 1300

Columbus, Ohio 43215

(614) 224-4422

j.carson@buckeyeinstitute.org

Counsel for Amicus Curiae

The Buckeye Institute

i

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ............... 1

INTRODUCTION ................................................... 2

SUMMARY OF ARGUMENT................................. 2

ARGUMENT ........................................................... 4

I.

THE U.S. CONSTITUTION

PROVIDES A FLOOR OF

PROTECTION—STATES

CANNOT PROVIDE LESS .......................... 4

II.

STATE STATUTES AND

REGULATIONS CANNOT TRUMP

THE FIFTH AMENDMENT ........................ 6

III.

THE FIFTH CIRCUIT

DISREGARDED THE IMPORTANCE

OF THE FEDERAL CIVIL RIGHTS

ACT (42 U.S.C. § 1983) ................................ 9

IV.

WHEN THE GOVERNMENT’S

INTERESTS ARE FINANCIAL, ITS

ACTIONS MUST BE VIEWED WITH

SKEPTICISM ............................................. 12

CONCLUSION ...................................................... 14

ii

TABLE OF AUTHORITIES

CASES

Alden v. Maine,

527 U.S. 706 (1999)........................................... 13

American Legion v. American Humanist

Assn.,

139 S.Ct. 2067 (2019) (Kavanaugh, J.,

concurring) .......................................................... 5

Arkansas Game & Fish Com'n v. United

States,

568 U.S. 23 (2012)............................................... 3

Armstrong v. United States,

364 U.S. 40 (1960)............................................... 3

Bracy v. Gramley,

520 U.S. 899 (1997)............................................. 5

Burnett v. Grattan,

468 U.S. 42 (1984)............................................. 11

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021)........................................ 10

City of Boerne v. Flores,

521 U.S. 507 (1997)........................................... 13

Cohens v. Virginia,

19 U.S. [6 Wheat.] 264 (1821) .....................6, 8, 9

First English Evangelical Lutheran Church

v. County of Los Angeles,

482 U.S. 304 (1987)........................................... 13

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976)......................................12, 13

iii

TABLE OF AUTHORITIES

(continued)

Page

Knick v. Township of Scott,

139 S.Ct. 2162 (2019)........................................ 11

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972)........................................... 11

Marbury v. Madison,

5 U.S. [1 Cr.] 137 (1803) ..................................... 6

Maryland v. Louisiana,

451 U.S. 725 (1981)............................................. 6

McCulloch v. Maryland,

17 U.S. 316 (1819)...................................... passim

McNeese v Board of Education,

373 U.S. 668 (1963)........................................... 12

Mitchum v. Foster,

407 U.S. 225 (1972)........................................... 11

Mutual Pharmaceutical Co., Inc. v. Bartlett,

570 U.S. 472 (2013)............................................. 6

Nollan v. South Carolina Coastal Council,

483 U.S. 825 (1987)......................................14, 15

Simmons v. South Carolina,

512 U.S. 154 (1994)............................................. 5

United States Trust Co. v. New Jersey,

431 U.S. 1 (1977)............................................... 14

United States v. Cors,

337 U.S. 325 (1949)........................................... 14

iv

TABLE OF AUTHORITIES

(continued)

Page

United States v. Good Real Property,

510 U.S. 43 (1993)............................................. 14

United States v. Winstar Corp.,

518 U.S. 839 (1996)........................................... 13

West Virginia State Board of Education v.

Barnette,

319 U.S. 624 (1943)......................................... 5, 9

Youakim v. Miller,

562 F.2d 483 (7th Cir. 1977) ............................ 10

CONSTITUTIONS

U.S. Constitution, Supremacy Clause, Article

VI, Clause 2................................................ passim

U.S. Constitution, Fifth Amendment ............. passim

U.S. Constitution, Eleventh Amendment ............. 12

U.S. Constitution, Fourteenth Amendment ....10, 12

La. Const. art. XII, § 10(C) ...................................... 4

STATUTES

I.R.C., § 501(c)(3) ...................................................... 1

Federal Civil Rights Act, 42 U.S.C. § 1983 .... 10, 11,

12, 13

RULES

Rule 37.2(a) .............................................................. 1

Rule 37.6 ................................................................... 1

v

TABLE OF AUTHORITIES

(continued)

Page

OTHER AUTHORITIES

Amar, Akhil Reed, Philadelphia Revisited:

Amending the Constitution Outside

Article V, 55 U. CHI. L. REV. 1043, 1100

(1988)................................................................... 5

Kanner, Gideon, Just How Just is Just

Compensation? 48 NOTRE DAME L. REV.

786, 784 (1973) .................................................... 6

WARREN, CHARLES, THE SUPREME COURT IN

UNITED STATES HISTORY (rev. ed. 1932)............. 7

1

INTEREST OF THE AMICUS CURIAE

Amicus curiae The Buckeye Institute was

founded in 1989 as an independent research and

educational institution—a think tank—whose

mission is to advance free-market public policy in

the states.1 The staff at The Buckeye Institute

accomplishes the organization’s mission by

performing timely and reliable research on key

issues,

compiling

and

synthesizing

data,

formulating free-market policy solutions, and

marketing those policy solutions for implementation

and replication throughout the country.

The

Buckeye Institute is a nonpartisan, non-profit, taxexempt organization as defined by I.R.C. section

501(c)(3). The Buckeye Institute’s Legal Center files

and joins amicus briefs that are consistent with its

mission and goals.

The Buckeye Institute is dedicated to protecting

individual liberties, and especially those liberties

guaranteed by the Constitution of the United States,

against government interference. The Buckeye

Institute is a leading advocate of protecting private

property, and the rights associated with it,

Pursuant to Rule 37.2(a), The Buckeye Institute states that

it has obtained written consent from the Respondents to file

this amicus brief and Petitioners have filed a blanket consent

to amicus curiae briefs. Further, pursuant to Rule 37.6, no

counsel for any party has authored this brief in whole or in part

and no person other than the amicus has made any monetary

contribution to this brief’s preparation or submission. The

parties were timely notified.

1

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particularly the right to compensation when private

property is taken for public use.

INTRODUCTION

Louisiana law purports to allow the State to

condemn private property for public use and then—

in defiance of the just compensation guarantee of the

Fifth Amendment—not pay for it. That may sound

stark, but that is the reality of what happened

below.

Respondent Sewerage & Water Board took

property from the Petitioners within the meaning of

the Fifth Amendment’s Just Compensation

Clause—and then decided not to satisfy the

judgment for it. It based its action on a Louisiana

state constitutional provision allowing state

agencies to ignore lawful judgments—even (as held

by the Fifth Circuit Court of Appeals below) those

grounded in the federal constitution.

Doing so violated not only the Just

Compensation guarantee but the Supremacy Clause

that sets the United States Constitution above

“anything” to the contrary in state laws. No state

can be allowed to set itself above the United States

Constitution. Review of the Fifth Circuit decision

that allowed these constitutional violations to occur

is necessary.

SUMMARY OF ARGUMENT

1. The Takings Clause’s Just Compensation

requirement is categorical and unconditional. It’s

simple and unadorned language provides, “Nor shall

private property be taken for public use, without just

3

compensation.” U.S. Const., amend. V. Those words

carry the same meaning today that they carried

when they were written with quill and ink and

affirm the equitable premise that “[w]hen the

government physically takes possession of an

interest in property for some public purpose, it has a

categorical duty to compensate the former owner.”

Arkansas Game & Fish Com'n v. United States, 568

U.S. 23, 31 (2012). As this Court has repeatedly

said, the Just Compensation provision of the

Takings Clause is “designed to bar Government from

forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by

the public as a whole.” Id. (quoting oft-cited

language from Armstrong v. United States, 364 U.S.

40, 49 (1960). Cash may not heal all wounds, but it

is a substitute that is both constitutionally

mandated and acceptable.

2. When our founders drafted the Constitution,

they were concerned that the diffusion of power

under the defunct Articles of Confederation left the

central government with a serious power deficit.

Indeed, this Court noted that the Constitution was

adopted in order to convert the Confederation from

a mere “alliance into an effective Government.”

McCulloch v. Maryland, 17 U.S. 316, 404 (1819). To

remedy the acknowledged weakness, they declared

directly—in what has become known as the

Supremacy Clause—that “This Constitution . . .

shall be the supreme Law of the land; and the

Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const., art. VI,

cl. 2; emphasis added. Here, Louisiana has thumbed

4

its corporate nose at the Supremacy Clause. It has

purported to declare in its state constitution that its

state government need not pay its debts unless and

until it is ready, see La. Const. art. XII, § 10(C), even

if those debts are protected by the United States

Constitution. That cannot be allowed to stand.

ARGUMENT

I.

THE U.S. CONSTITUTION PROVIDES A

FLOOR OF PROTECTION—STATES

CANNOT PROVIDE LESS

Our Constitution provides a baseline of minimal

protection to all the rights of all citizens, with

individual states having the discretion to provide

more, but never less protection. Simmons v. South

Carolina, 512 U.S. 154, 174 (1994); see West Virginia

State Board of Education v. Barnette, 319 U.S. 624,

638 (1943). Justice Kavanaugh explained it this way

recently: “the Constitution sets a floor for the

protection of individual rights. The constitutional

floor is sturdy and often high, but it is a floor. Other

. . . government entities generally possess authority

to safeguard individual rights above and beyond the

rights secured by the U.S. Constitution.” American

Legion v. American Humanist Assn., 139 S.Ct. 2067,

2094 (2019) (Kavanaugh, J., concurring).

Thus, if there is a role for state courts and state

laws, this is it: providing more protection than the

U.S. Constitution mandates. As Professor Akhil

Amar summarized it, “the federal constitution

5

stands as a secure political safety net—a floor below

which state law may not fall.”2

As this Court plainly expressed it, “The American

people have declared their Constitution and the laws

made in pursuance thereof to be supreme.”

McCulloch, 17 U.S. at 432.) Beyond that, as the

Court classically held in Marbury v. Madison, 5 U.S.

[1 Cr.] 137, 177 (1803), it is the Court’s job to see that

other levels of government remain true to the

Constitution. That would include protecting the

rights of property owners from the depredations of

state and local government. Here, that is done by

providing protection against state agencies and

officials, regardless of what state law might

otherwise say. U.S. Const., art. VI, cl. 2. “It is basic

to this constitutional command that all conflicting

state provisions be without effect.” Maryland v.

Louisiana, 451 U.S. 725, 746 (1981); Mutual

Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. 472,

480 (2013).

Akhil Reed Amar, Philadelphia Revisited: Amending the

Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1100

(1988) (emphasis added). See Bracy v. Gramley, 520 U.S. 899,

904 (1997) (“the Due Process Clause . . . establishes a

constitutional floor”); see also Gideon Kanner, Just How Just

is Just Compensation? 48 NOTRE DAME L. REV. 786, 784 (1973):

“it seems safe to say that the Constitution—or at least the Bill

of Rights—was the product of the framers’ fear of an

overreaching government, and their desire to protect

individual citizens from governmental excesses. . . . [T]he

purpose of the . . . Bill of Rights [] was to protect the people

from the government, not vice versa.”

2

6

As this Court held more than a century ago, “The

Constitution and laws of a State, so far as they are

repugnant to the Constitution and laws of the

United States, are absolutely void.” Cohens v.

Virginia, 19 U.S. [6 Wheat.] 264, 380-81 (1821).

Moreover, “where this repugnancy exists, that

authority which is supreme must control, not yield

to that over which it is supreme.” McCulloch, 17

U.S. at 426. See also 1 CHARLES WARREN, THE

SUPREME COURT IN UNITED STATES HISTORY 14-15

(rev. ed. 1932) (noting that “a supremacy of the

Constitution and laws of the Union ‘without a

supremacy in the exposition and execution of them

would be as much a mockery as a scabbard put into

the hands of a soldier without a sword in it.’”

(quoting James Madison).

II.

STATE STATUTES AND REGULATIONS

CANNOT TRUMP THE FIFTH AMENDMENT

It should go without saying that a state cannot

enact statutes or regulations that conflict with the

U.S. Constitution. It should, but it is evidently

necessary to say aloud because the Fifth Circuit

seemed to have little trouble holding that this

Louisiana provision could run roughshod over the

private property rights involved here.

The Constitution is clear:

“This Constitution . . . shall be the supreme

law of the land; and the Judges in every

State shall be bound thereby, any Thing in

the constitution or Laws of any State to the

7

Contrary notwithstanding.” U.S. Const.,

art. VI, cl. 2 (emphasis added).

The founders of this republic understood

history—particularly the problems that arose

because of the amorphous nature of the national

governmental structure.

Early on, this Court

concluded that the Supremacy Clause was adopted

in order to ensure that the central government did

not suffer from the weaknesses that undercut the

earlier attempt at union under the Articles of

Confederation, acknowledging that “the conflicting

powers of the General and State Governments must

be brought into view, and the supremacy of their

respective laws, when they are in opposition, must

be settled” McCulloch, 17 U.S. at 405:

“The American States, as well as the

American people, have believed a close

and firm Union to be essential to their

liberty and to their happiness. They have

been taught by experience that this Union

cannot exist without a government for the

whole, and they have been taught by the

same experience that this government

would be a mere shadow, that must

disappoint all their hopes, unless

invested with large portions of that

sovereignty which belongs to independent

States.

Under the influence of this

opinion, and thus instructed by

experience, the American people, in the

conventions of their respective States,

8

adopted the present Constitution.”

Cohens, 19 U.S. at 380-81.3

What Louisiana seeks to establish in this case is

the primacy of the State’s desire to avoid paying a

constitutionally mandated judgment.

Such a

conclusion, as this Court held in Cohens, “would

prostrate . . . the [federal] government and its laws

at the feet of every State in the Union.” Id. at 385.

The Court would not allow it then. Nor should it

now. To do so would make the clear words of the

Just Compensation Clause of the Fifth Amendment

“empty and unmeaning declamation.” McCulloch,

17 U.S. at 433.

McCulloch was both clear and forceful about

how the Supremacy Clause permeated all provisions

of the Constitution. It referred to that provision as

“a principle which so entirely pervades the

Constitution, is so intermixed with the materials

which compose it, so interwoven with its web, so

blended with its texture, as to be incapable of being

separated from it without rending it into shreds.”

McCulloch, 17 U.S. at 426 (emphasis added).

Indeed, when individual rights are incorporated into

the Constitution (through the Bill of Rights), they

become part of the Constitution and thus are

This Court was keenly aware of the deficiencies of the

Articles of Confederation, noting pointedly how national

directives “were habitually disregarded [as being] a fact of

universal notoriety. With the knowledge of this fact, and under

its full pressure, a convention was assembled to change the

system.” Id. at 388. A key part of that change was the

Supremacy Clause. Id. at 381.

3

9

“supreme” over any state provision. See Barnette,

319 U.S. at 638-39.

The unifying principle is that “the Constitution

and the laws made in pursuance thereof are

supreme; that they control the Constitution and

laws of the respective States, and cannot be

controlled by them.” McCulloch, 17 U.S. at 426.

The 7th Circuit expressed the true rule with

simple elegance:

“The Constitution and the laws of the

United States are the supreme law of the

land. [Citing McCulloch.] Because of the

Supremacy Clause of the United States

Constitution, Article VI, Clause 2, states

may not enact laws or regulations which

are contrary to federal law.” Youakim v.

Miller, 562 F.2d 483, 494 (7th Cir. 1977)

(emphasis added).

The Supremacy Clause stands as a barrier to all

state laws that trench on the rights of private

property owners. The offending Louisiana law is

invalid—at least as applied here.

III.

THE FIFTH CIRCUIT DISREGARDED THE

IMPORTANCE OF THE FEDERAL CIVIL

RIGHTS ACT (42 U.S.C. § 1983)

Pursuant to the Fourteenth Amendment,

Congress acted to provide protection for rights

guaranteed by the U.S. Constitution when it enacted

42 U.S.C. § 1983. Petitioners invoked this statutory

remedy in federal court when the State of Louisiana

10

ignored its constitutional obligation to compensate

them for property taken for public use. (See App. K4.)4 They asked the federal courts to compel

Louisiana to abide by the federal constitutional

guarantee of prompt payment of just compensation

for property acquired by eminent domain. The lower

courts refused. That was error.

Section 1983 was intended to provide “a uniquely

federal remedy” Mitchum v. Foster, 407 U.S. 225,

239 (1972) with “broad and sweeping protection”

Lynch v. Household Fin. Corp., 405 U.S. 538, 543

(1972) (quoting with approval) so that individuals in

a wide variety of factual situations are able to obtain

a federal remedy when their federally protected

rights are abridged Burnett v. Grattan, 468 U.S. 42,

50, 55 (1984). The Civil Rights Act of 1871, after all,

guarantees “a federal forum for claims of

unconstitutional treatment at the hands of state

officials,” Knick v. Township of Scott, 139 S.Ct. 2162,

2167 (2019) (quoting with approval). “[T]he property

owner has suffered a violation of his Fifth

Amendment rights when the government takes his

property without just compensation, and therefore

may bring his claim in federal court under § 1983 at

that time.” Id. at 2177.

The point of involving the federal courts was not

lost on this Court. In the Court’s stirring words:

In similar fashion, this Court’s recent decision in Cedar Point

Nursery v. Hassid, 141 S.Ct. 2063 (2021) was brought under

section 1983 to preclude the application of a state regulation

that violated the Fifth Amendment.

4

11

“We yet like to believe that wherever

the Federal courts sit, human rights

under the Federal Constitution are

always

a

proper

subject

for

adjudication, and that we have not the

right to decline the exercise of that

jurisdiction simply because the rights

asserted may be adjudicated in some

other forum.” McNeese v Board of

Education, 373 U.S. 668, 674, n.6

(1963) (emphasis added; quoting with

approval).

But “decline” is precisely what the lower federal

courts did here when they were beseeched to compel

Louisiana to comply with a clear guarantee of the

U.S. Constitution.

The theory of protecting federal rights in federal

courts dates to the founding of the Republic (i.e., it

predates adoption of either the 14th Amendment or

Section 1983).

Even while upholding the breadth of Eleventh

Amendment immunity, the Court acknowledged

that the Fourteenth Amendment authorized

legislation that would allow suits against states (i.e.,

section 1983) regardless of claims of sovereign

immunity:

“We have held also that in adopting the

Fourteenth

Amendment,

the

people

required the States to surrender a portion of

the sovereignty that had been preserved to

them by the original Constitution, so that

Congress may authorize private suits

12

against nonconsenting States pursuant to

its § 5 enforcement power. Fitzpatrick v.

Bitzer, 427 U.S. 445 (1976). By imposing

explicit limits on the powers of the States

and granting Congress the power to enforce

them, the Amendment ‘fundamentally

altered the balance of state and federal

power struck by the Constitution.’ Seminole

Tribe, 517 U.S., at 59. When Congress

enacts appropriate legislation to enforce this

Amendment, see City of Boerne v. Flores, 521

U.S. 507 (1997), federal interests are

paramount, and Congress may assert an

authority over the States which would be

otherwise unauthorized by the Constitution.

Fitzpatrick, supra, at 456.” Alden v. Maine,

527 U.S. 706, 756 (1999).

When the Fifth Circuit refused to enforce the

plain words of the Just Compensation Clause

through the Supremacy Clause, it violated the plain

meaning and intent of section 1983.

IV.

WHEN THE GOVERNMENT’S INTERESTS

ARE FINANCIAL, ITS ACTIONS MUST BE

VIEWED WITH SKEPTICISM

Underlying the Court’s conclusion that

Constitutional decisions necessarily impinge on the

“freedom and flexibility” of government agencies

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 321 (1987) was

undoubtedly the Court’s repeated recognition that,

when the governmental interest is financial (as in

13

delaying

indefinitely—perhaps

forever—the

payment of compensation constitutionally due the

Petitioners), its actions must be viewed warily. See

United States v. Winstar Corp., 518 U.S. 839, 896

(1996) (“statutes tainted by a governmental object of

self-relief . . . in which the Government seeks to shift

the costs of meeting its legitimate public

responsibilities to private parties”); United States v.

Good Real Property, 510 U.S. 43, 55-56 (1993)

(admonishing that careful examination “is of

particular importance . . . where the Government

has a direct pecuniary interest in the outcome of the

proceeding”); United States Trust Co. v. New Jersey,

431 U.S. 1, 26 (1977) (“complete deference to a

legislative assessment of reasonableness and

necessity is not appropriate because the State’s selfinterest is at stake. A governmental entity can

always find a use for extra money”).

To allow the State to determine when—and even

whether—to pay a condemnation judgment that was

designed to substitute money for the property taken

leaves the property owner (now bereft of both the

property and its compensatory substitute) “to rely

exclusively upon the generosity of the judgment

debtor,” as the Fifth Circuit expressed it. 5

Bluntly, “[t]he political ethics reflected in the

Fifth Amendment reject confiscation as a measure of

justice.” United States v. Cors, 337 U.S. 325, 332

(1949). But by delaying payment indefinitely,

Shades of poor Blanche DuBois and her reliance on the

kindness of strangers in A Streetcar Named Desire.

5

14

“confiscation” is precisely what the State effectively

accomplished here.

In Nollan v. South Carolina Coastal Council,

483 U.S. 825 (1987) the Court warned government

regulators not to attempt to evade the Constitution’s

strictures through inventive wordplay. Id. at 841.

Particular care was said to be needed because “there

is heightened risk that the purpose is avoidance of

the compensation requirement . . . .” Id. at 841.

Compensation, of course, permeates this case. It

is the entire reason why the Petitioners sought the

assistance of the Fifth Amendment’s Just

Compensation Clause.

CONCLUSION

It cannot be the law that a state can enact its own

constitutional provision that allows it to evade a

guarantee established in the federal constitution.

Yet that is what the Fifth Circuit allowed Louisiana

to do. Certiorari should be granted and the result

overturned.

Respectfully Submitted,

MICHAEL M. BERGER*

*Counsel of Record

MANATT, PHELPS & PHILLIPS

2049 Century Park East, Suite 1700

Los Angeles, CA 90067

(310) 312-4000

mmberger@manatt.com

Counsel for Amicus Curiae

The Buckeye Institute