Petitioners Brief — Richard Devillier, et al., Petitioners v. Texas

Supreme Court briefNov 13, 2023

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No. 22-913

In the Supreme Court of the United States

RICHARD DEVILLIER, ET AL.

Petitioners,

STATE OF TEXAS,

Respondent.

On Writ of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

BRIEF FOR PETITIONERS

DANIEL H. CHAREST

E. LAWRENCE VINCENT

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, Texas 75202

469-904-4550

dcharest@burnscharest.com

lvincent@burnscharest.com

ROBERT J. MCNAMARA

Counsel of Record

ANDREW H. WARD

CHRISTEN MASON HEBERT

SURANJAN SEN

INSTITUTE FOR JUSTICE

901 N. Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

Counsel for Petitioners

Additional counsel listed on inside cover

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, Texas 77004

713-533-1704

charles@irvineconner.com

Counsel for Petitioners

QUESTION PRESENTED

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?

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioners (plaintiffs in the consolidated cases

below) are 120 individuals and 5 corporate entities:

Richard DeVillier; * Wendy DeVillier; Steven DeVillier; Rhonda DeVillier; David McBride; Angela

McBride; Bert Hargraves; Barney Threadgill; Crystal

Threadgill; Barbara DeVillier; David Ray; Gary Herman; Rhonda Glanzer; Chris Barrow; Darla Barrow;

Dennis Dugat; Laurence Barron; Deanette Lemon;

Jill White; Beverly Kiker; Yale DeVillier (individually

and as personal representative of the Estate of Kyle

H. DeVillier); Charles Monroe; Jacob Fregia; Angela

Fregia; Jerry DeVillier; Mary DeVillier; Zalphia Hankamer; Larry Bollich; Susan Bollich; Sheila Marino;

William Meissner; Taylor McBride; Brian Abshier;

Kathleen Abshier; Jina Daigle; Coulon DeVillier; Halley Ray Sr.; Halley Ray, Jr.; Sheila Moor; John

Rhame; Alex Hargraves; Tammy Hargraves; William

DeVillier; Kyle Wagstaff; Allison Wagstaff; Kevin

* The lower-court opinions and caption, following the complaint,

spell the name “Devillier.” The family name is in fact spelled

“DeVillier.” This Court sometimes follows the lower court’s

spelling of proper names and sometimes chooses to correct it.

Compare Aldrich v. Wainwright, 479 U.S. 918, 918 n.* (order

denying certiorari) (“Petitioner’s last name was apparently misspelled as ‘Aldridge’ in the state-court proceedings.”), and Whitcomb v. Chavis, 403 U.S. 124, 130 n.6 (1971) (referring to “Plaintiff Rowland Allan (spelled ‘Allen’ in the District Court’s opinion)”), with Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 555

n.* (1980) (“Although respondents spell their name ‘Millhollin,’

throughout this litigation their name has been misspelled as

‘Milhollin.’ Because legal research catalogs and computers are

governed by the principle of consistency, not correctness, we feel

constrained to adhere to the erroneous spelling.”).

iii

Sonnier; Eugenia Molthen; Bradley Moon; John Roberts; Marilyn Roberts; Savanna Sanders; Robert

Brown; Tracey Brown; Josh Baker; Lee Blue; Russell

Brown; Margaret Carroll; Kevin Cormier; James Davis; Melissa Davis; Maria Gallegos; Christopher Ferguson; Angela Hughes; Robert Laird; Harold Ledoux;

Kacey Sandefur; Tifani Staner; Stephen Stelly; Randall Stout; Patti Stout; Chris Day; Calvin Hill; Michael Weisse; Julie Weisse; Eleanor Leonard; Ivy

Hamm; Claude Roberts; Bryan Olson; Caren

Nueman; Floyd Cline, Jr.; Kenneth Coleman; Haylea

Barrow; Carol Roberts; Jenica Vidrine; Charles Collier; Sharon Crissey; James Brad Crone; Heather

Coggin; James Coggin; Clovis Melancon; Leroy

Speights; Crossroads Asphalt Preservation, Inc.; Fesi

Energy, LLC; Brian Fischer; Curtis Laird; Devon

Boudreaux; Richard Belsey; Sharon Clubb; Janet

Dancer; Porter May; Cindy Perez; Cecile Jimenez;

Scott Hamric; Bruce Hinds; Tina Hinds; William Olivier; Esteban Lopez; Billy Stanley; Candace Abshier;

Sean Fillyaw; Autumn Minton; Brandon Sanders;

Rodney Badon; Charlie Carter; Myra Wellons; Jerry

Stepan; Bryan Mills; Cat 5 Resources LLC; Joan Jeffrey; Randy Brazil; Monica Brazil; Herbert Dillard;

Kerry Dillard; Southeast Texas Olive, LLC; and Gulf

Coast Olive Investments, LLC. The Respondent is the

State of Texas.

None of the petitioners has any parent corporation and no publicly held corporation holds more than

10% of the stock in any petitioner.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

PARTIES

THE

PROCEEDING

AND

CORPORATE DISCLOSURE STATEMENT ........... ii

OPINIONS BELOW................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED ..... 1

STATEMENT ............................................................. 1

SUMMARY OF ARGUMENT.................................... 8

ARGUMENT ............................................................ 11

The Constitution provides property owners

with a self-executing, judicially enforceable

right to just compensation when their property

is taken for public use. .................................. 11

A. This court’s precedent holds that the Takings Clause provides an enforceable right to

just compensation. ................................... 11

B. Text, history, and tradition all establish an

enforceable right to just compensation. .. 18

C. Federal courts can enforce the federal constitution. ................................................... 34

D. There is no reason to abandon the rule in

First English. ........................................... 38

CONCLUSION ......................................................... 44

TABLE OF AUTHORITIES

Page

CASES

Agins v. Tiburon, 598 P.2d 25 (Cal. 1979)............ 11

Aldrich v. Wainwright, 479 U.S. 918 (1986) .......... ii

Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d

704 (9th Cir. 1992)......................................... 6, 40

Backus v. Lebanon, 11 N.H. 19 (1840).................. 30

Baker v. City of McKinney, 601 F. Supp. 3d 124

(E.D. Tex. 2022) ................................................. 39

Barron ex rel. Tiernan v. Mayor of Baltimore, 32

U.S. (7 Pet.) 243 (1833) ........................... 9, 26, 27

Bell v. Hood, 327 U.S. 678 (1946) ......................... 35

Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971) ............................................................ 6

Boise Cascade Corp. v. State ex rel. Or. State Bd.

of Forestry, 991 P.2d 563 (Or. Ct. App. 1999)... 39

Borough of Duryea v. Guarnieri, 564 U.S. 379

(2011) ................................................................. 36

Bowen v. Massachusetts, 487 U.S. 879 (1988) ...... 16

Bowman v. Middleton, 1 S.C.L. (1 Bay) 252 (S.C.

Ct. Common Pleas 1792) ................................... 21

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063

(2021) ................................................................. 14

Chi., Burlington & Quincy R.R. Co. v. City of

Chicago, 166 U.S. 226 (1897) ............................ 29

City of Baytown v. Schrock, 645 S.W.3d 174 (Tex.

2022)....................................................... 39, 42, 43

City of Elgin v. Eaton, 83 Ill. 535 (1876) .............. 32

City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687 (1999) .................................. 14

Clayburg v. City of Chicago, 25 Ill. 535 (1861)..... 33

Cuyahoga River Power Co. v. City of Akron, 240

U.S. 462 (1916) .................................................. 29

Del., Lackawanna & W. R.R. Co. v. Town of

Morristown, 276 U.S. 182 (1928) ...................... 29

Dohany v. Rogers, 281 U.S. 362 (1930)................. 29

Eaton v. Bos. Concord & Montreal R.R., 51 N.H.

504 (1872) .......................................................... 32

Ex parte Young, 209 U.S. 123 (1908) .............. 36, 43

First Eng. Evangelical Church v. County of Los

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

............................................. 4, 8, 11-14, 19, 34, 43

First Union Nat’l Bank v. Hi Ho Mall Shopping

Ventures, Inc., 869 A.2d 1193 (Conn. 2005) ..... 40

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555,

555 n.* (1980) ...................................................... ii

Free Enterprise Fund v. Public Company

Accounting Oversight Board, 561 U.S. 477

(2010) ................................................................. 35

Gardner v. Vill. of Newburgh, 2 Johns. Ch. 162

(N.Y. Ch. 1816) .................................................. 22

Gedney v. Inhabitants of Tewsbury, 3 Mass. 307

(1807) ................................................................. 31

Greenway Dev. Co. v. Borough of Paramus, 750

A.2d 764 (N.J. 2000) .......................................... 39

vii

Harman v. City of Omaha, 23 N.W. 503 (Neb.

1885)................................................................... 32

Hernandez v. Mesa, 140 S. Ct. 735 (2020) .. 6, 34, 37

Hollingsworth v. Parish of Tensas, 17 F. 109

(C.C.W.D. La. 1883)........................................... 32

Hooe v. United States, 218 U.S. 322 (1910) .......... 17

Hooper v. Burgess (Md. Provincial Ct. 1670)........ 23

Horne v. Dep’t of Agric., 576 U.S. 350 (2015) ....... 19

In re Chi., Milwaukee, St. Paul & Pac. R.R. Co.,

799 F.2d 317 (7th Cir. 1986) ............................. 17

Jacobs v. United States, 290 U.S. 13

(1933) ................................................. 8, 13, 30, 39

Kelo v. City of New London, 545 U.S. 469 (2005) . 42

Knick v. Twp. of Scott, 139 S. Ct. 2162

(2019) .....................................................................

...................................14, 15, 30, 31, 33, 38, 40, 44

Lambert v. City & County of San Francisco, 529

U.S. 1045, 120 S. Ct. 1549 (2000) ..................... 44

Langford v. United States, 101 U.S. 341 (1879) ... 28

Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535

U.S. 613 (2002) .................................................. 16

Lawyer v. Hilton Head Pub. Serv. Dist. No. 1, 220

F.3d 298 (4th Cir. 2000) .................................... 40

Little Rock Junction Ry. v. Woodruff, 5 S.W. 792

(Ark. 1887) ......................................................... 20

Me. Cmty. Health Options v. United States, 140

S. Ct. 1308 (2020) .................................. 15, 16, 17

Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997) ........ 39

viii

Manning v. Mining & Mins. Div. of the Energy,

Min. & Nat’l Res. Dep’t, 144 P.3d 87 (N.M.

2006)....................................................... 14, 39, 43

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) ................................................................. 36

McClenachan v. Curwen, 3 Yeates 362

(Pa. 1802) ........................................................... 31

Miss. & Rum River Boom Co. v. Patterson, 98

U.S. 403 (1878) .................................................. 32

Mitchell v. Harmony, 54 U.S. (13 How.) 115

(1851) ................................................................. 28

N. Transp. Co. v. City of Chicago, 99 U.S. 635

(1878) ................................................................. 32

N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S.

Ct. 2111 (2022) .................................................. 18

Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557

U.S. 193 (2009) .................................................. 36

O’Connor v. Eubanks, 83 F.4th 1018 (6th Cir.

2023)................................................................... 19

Pac. R.R. Removal Cases, 115 U.S. 1 (1885) ........ 32

Payne v. Tennessee, 501 U.S. 808 (1991) .............. 41

People ex rel. Utley v. Hayden, 6 Hill 359 (N.Y.

Sup. Ct. 1844) .................................................... 30

Pumpelly v. Green Bay Co., 80 U.S. 166 (1871) ... 32

Reardon v. City & County of San Francisco, 6 P.

317 (Cal. 1885) ................................................... 32

San Diego Gas & Electric Co. v. City of San Diego,

450 U.S. 621 (1981) ........................................... 43

SDDS, Inc. v. State, 650 N.W.2d 1 (S.D. 2002)

...................................................................... 14, 39

Seaboard Air Line Ry. Co. v. United States, 261

U.S. 299 (1923) ............................................ 30, 33

Speed v. Mills, 919 F. Supp. 2d 122

(D.D.C. 2013) ..................................................... 39

Stop the Beach Renourishment, Inc. v. Fla. Dep’t

of Env’t Prot., 560 U.S. 702 (2010) .................... 14

Thayer v. Boston, 36 Mass. (19 Pick.) 511 (1837). 30

Timbs v. Indiana, 139 S. Ct. 682 (2019) ......... 18, 26

United States v. Causby, 328 U.S. 256 (1946) ...... 15

United States v. Clarke, 445 U.S. 253 (1980) ....... 13

United States v. Russell, 80 U.S. 623 (1871) ........ 28

United States v. Testan, 424 U.S. 392 (1976) ....... 15

Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365

(1926) ................................................................. 29

Vill. of Norwood v. Baker, 172 U.S. 269 (1898) .... 29

Whitcomb v. Chavis, 403 U.S. 124 (1971)............... ii

Williamson

County

Regional

Planning

Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985) .................................. 40

Young v. McKenzie, 3 Ga. 31 (1847) ..................... 21

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ............................. 1, 10, 19, 35

U.S. Const. amend. XIV ........................... 1, 9, 10, 18

STATUTES

28 U.S.C. § 1254(1) .................................................. 1

28 U.S.C. § 1292(b) .................................................. 5

28 U.S.C. § 1331 .............................................. 16, 34

42 U.S.C. § 18062 ............................................ 16, 17

42 U.S.C. § 1983 ...................................................... 4

Civil Rights Act of 1871......................................... 29

OTHER AUTHORITIES

1 Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the

Federal Government of the United States; of the

Commonwealth

Virginia

(St. George Tucker ed., 1803)............................ 23

1 William Blackstone, Commentaries ................... 20

2 James Kent, Commentaries on American Law

(2d ed. 1832) ...................................................... 31

Joseph Story, Commentaries on the

Constitution of the United States (1833)........... 31

Ann Woolhandler & Julia D. Mahoney, Federal

Courts and Takings Litigation, 97 Notre Dame

L. Rev. 679 (2022) .............................................. 29

Brief of NAACP et al. as Amici Curiae, Kelo v.

City of New London, 545 U.S. 469 (U.S. 2005),

available at 2004 WL 2811057.......................... 42

Christine Desan, Making Money: Coin, Currency,

and the Coming of Capitalism (2014) ............... 21

Cong. Globe, 39th Cong., 1st Session (1866) .. 27, 36

Dick M. Carpenter & John K. Ross, Testing

O’Connor And Thomas: Does The Use Of

Eminent Domain Target Poor And Minority

Communities?, 46 Urban Stud. 2447 (2009) .... 42

Douglas Laycock, How Remedies Became a Field:

A History, 27 Rev. Litig. 161 (2008).................. 32

Douglas W. Kmiec, The Original Understanding

of the Taking Clause Is Neither Weak nor

Obtuse, 88 Colum. L. Rev. 1630 (1988)............. 26

J.A.C. Grant, The “Higher Law” Background of

the Law of Eminent Domain, 6 Wis. L. Rev. 67

(1931) ................................................................. 22

James E. Pfander, Sovereign Immunity and the

Right to Petition: Toward a First Amendment

Right to Pursue Judicial Claims Against the

Government, 91 Nw. U. L. Rev. 899 (1997) ...... 36

James

Madison,

Amendments

the

Constitution, 12 The Papers of James Madison

196

(June

1789),

https://founders.archives.gov/documents/Madi

son/01-12-02-0126.............................................. 25

James Madison, Property, Nat’l Gazette (Mar. 27,

1792), reprinted in 14 The Papers of James

Madison 266 (Robert A. Rutland and Thomas

Mason,

eds.,

1983),

https://founders.archives.gov/documents/Madi

son/01-14-02-0238.............................................. 24

Magna Carta, cl. 28 (1215) .............................. 19, 21

Robert Brauneis, The First Constitutional Tort:

The Remedial Revolution in NineteenthCentury State Just Compensation Law,

52 Vand. L. Rev. 57 (1999) .......................... 26, 33

The Federalist (J. Cooke ed., 1961) ...................... 36

Tr. of Oral Arg. in First Eng. Evangelical Church

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

xii

O.T. 1986, No. 85-1199, (Alderson Reporting

January 14, 1987). ............................................ 13

U.S. Comm’n on Civil Rights, The Civil Rights

Implications of Eminent Domain Abuse (2014)41,

William Baude et al., General Law and the

Fourteenth Amendment, 76 Stan. L. Rev.

(forthcoming

2024)

https://tinyurl.com/298dee78 ............................ 36

William Baude, Rethinking the Federal Eminent

Domain Power, 122 Yale L.J. 1738 (2013) ....... 27

William Michael Treanor, The Original

Understanding of the Takings Clause and the

Political Process, 95 Colum. L. Rev. 782 (1995)

...................................................................... 27, 28

William Sharp McKechnie, Magna Carta: A

Commentary on the Great Charter of King

John (2d ed. 1914) ................................. 19, 20, 21

OPINIONS BELOW

The opinion of the court of appeals, Pet. App.

1a–3a, is reported at 53 F.4th 904. The opinions respecting the denial of rehearing en banc, Pet. Supp.

App. 42a–97a, are reported at 63 F.4th 416. The report and recommendation of the magistrate judge,

Pet. App. 4a–32a, is unreported. The district court’s

order adopting the report and recommendation, Pet.

App. 33a–35a, is also unreported.

JURISDICTION

The judgment of the court of appeals was entered on November 23, 2022. Timely filed motions for

rehearing were initially denied on January 11, 2023,

then denied again on March 23, 2023. The petition

was timely filed on March 17, 2023. This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides, in relevant part, “nor shall private property be taken for public use, without just

compensation.” The Fourteenth Amendment provides, in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.”

STATEMENT

This case arises out of a series of state-court inverse-condemnation suits that were removed to and

consolidated in federal district court. The gist of all

these lawsuits was the same: A Texas highway project

was causing widespread flooding across a huge swath

of rural land. JA-3–4. The flooding, the operative complaint alleges, was intentional. In reconstructing Interstate Highway 10, the Texas Department of Transportation not only raised the road but also built a

three-foot-high, impenetrable concrete dam along the

middle of it, dividing the eastbound lanes from the

westbound. JA-3. The intended effect was to keep the

south side of the highway dry in heavy rains, at the

cost of flooding the land north of the highway. JA-3–4

The dam worked. When Tropical Storm Harvey

hit Houston in 2017, water that would have normally

flowed south into the Gulf of Mexico was dammed up

on the north side of the highway—effectively creating

an enormous lake for days on end. It looked like this:

JA-13.

Harvey was not a once-in-a-lifetime flood for

these properties. A similar flood promptly happened

again—as both the property owners and Texas knew

it would. JA-28–29. Indeed, as Tropical Storm Imelda

loomed in 2019, landowner Steven DeVillier begged

the authorities to take down parts of the dam or even

let him remove parts of it with his backhoe. JA-29–30.

Texas officials refused, and the dam worked again.

The entire area flooded—and, again, did not drain for

days. The problem was not the storms. The problem

was the dam. Ibid. And, the complaint alleged, these

floods would keep happening so long as Texas maintained that dam. JA-17–18.

Alleging that this recurrent flooding worked a

taking under both the United States and the Texas

constitutions, a group of local landowners filed an inverse-condemnation suit against the State of Texas in

state district court. Pet App. 5a. Texas promptly removed the case to federal court. Ibid. Other statecourt suits followed, with other property owners making the same takings claims about the same highway

project causing the same floods. Ibid. Texas removed

those, too. Ibid. Eventually, all of the cases were consolidated into a single action governed by a single operative complaint. Pet. App. 5a–6a. The plaintiffs include farmers and ranchers whose land has been in

their families for generations.

Despite deliberately using those farms,

ranches, and homes as a sprawling stormwater-detention pond, Texas argued that none of the plaintiffs

had a claim under the Fifth Amendment. Having removed the cases to its chosen federal forum, Texas

moved to dismiss them, arguing (in relevant part)

that the property owners were not entitled to sue directly under the Fifth Amendment. Pet. App. 12a.

Takings claims, said Texas, could be brought only under 42 U.S.C. § 1983. And since Texas cannot be sued

under that statute, it could not be sued for violating

the Fifth Amendment at all. Ibid.

This, said the magistrate judge, was “pretzel

logic” that would allow states to take private property

without any compensation and leave property owners

with no federal constitutional remedy. Id. at 15a. It

would “eviscerate[] hundreds of years of Constitutional law in one fell swoop.” Ibid.

The magistrate also observed that this Court

has consistently treated Takings Clause claims differently—in part because that Clause expressly dictates

a remedy—and has repeatedly reaffirmed that the

Clause “creates a substantive right to just compensation that springs to life when the government takes

private property.” Ibid. (citing First English Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304, 315 (1987)). He invoked this Court’s holding

in First English 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” and that this remedy does not depend on “[s]tatutory recognition” for

its existence. Id. at 16a (quoting First English, 482

U.S. at 315).

The magistrate noted that courts nationwide

have followed this Court’s directions and recognized

the very Fifth Amendment cause of action that Texas

said was forbidden. Id. at 17a. In keeping with all of

this authority, the magistrate held that the Takings

Clause provides a mandatory remedy for takings and

that property owners may sue to enforce that remedy.

Ibid.

Finally, the magistrate noted the significance

of Texas’s decision to remove this case. Id. at 17a–18a.

It was true, the magistrate conceded, that federal

courts “rarely hear federal takings claims against a

state. Id. at 17a. But this was because states rarely

make the tactical decision to affirmatively invoke federal-question jurisdiction by removing an inverse-condemnation claim. That decision had consequences,

and so this particular federal claim was properly adjudicated in federal court. Id. at 17a–18a; cf. id. at

20a–21a (noting that Texas conceded that removal

waives its Eleventh Amendment immunity from suit).

The district court adopted the magistrate’s report and recommendation in its entirety and denied

Texas’s motion to dismiss. Id. at 34a. Texas then successfully sought leave to appeal that order under 28

U.S.C. § 1292(b), asking the Fifth Circuit to resolve

whether property owners may sue under the Takings

Clause without invoking § 1983. 1 Pet. App. 37a.

The Fifth Circuit reversed. The panel opinion

(as amended by a panel-rehearing order) disposed of

the case in a single substantive sentence: “Because we

hold that the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings

claims against a state, we VACATE the district

1 The federal remedy matters here because Texas has suggested

below that a different test determines whether government action was sufficiently intentional to be a taking under the State

constitution. See Pet. 4 n.4.

court’s decision and REMAND for further proceedings.” 2 Id. at 2a (footnote omitted). In reaching this

conclusion, the panel cited none of this Court’s Takings cases. Instead, it relied on two cases: Hernandez

v. Mesa, 140 S. Ct. 735 (2020), which declined to allow

a Bivens 3 cause of action in the context of a cross-border shooting, and Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 1992), which asserts (also

without reference to this Court’s Takings cases) that

the Takings Clause provides “no cause of action directly under the United States Constitution.” Pet.

App. 2a n.1. The Fifth Circuit denied rehearing en

banc, id. at 41a, and the property owners petitioned

this Court for certiorari.

Then the Fifth Circuit denied rehearing en

banc again, this time with three opinions respecting

the denial. Pet. Supp. App. 42a–97a. Two judges from

the original panel filed solo concurrences giving different explanations of the panel’s one-sentence per curiam holding. Judge Oldham, joined by Judges Smith,

Elrod, Engelhardt, and Wilson, dissented.

The lead concurrence asserted that the federal

courts lack power to hear Takings Clause claims absent a “jurisdictional grant such as 42 U.S.C. § 1983.”

2 The original panel opinion vacated the district court’s opinion

“for want of jurisdiction” and remanded the case “with instructions to return this case to the state courts.” Pet. Supp. App. 76a

(emphases omitted). The panel struck the quoted language after

Texas correctly observed that the absence of a cause of action did

not deprive the court of jurisdiction and that the property owners’ other claims remained properly pending in the district court.

Ibid.

3 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

Pet. Supp. App. 45a (Higginbotham, J., concurring).

In that concurrence’s view, the right course would be

for takings claims to be litigated solely in the state

courts unless eventually reviewed in this Court. Ibid.

Another concurrence offered a different theory.

Id. at 51a (Higginson, J., concurring). Rather than

sounding in jurisdiction, it argued that this case is

about whether to engage in “some kind of judicial genesis to bring the [Takings Clause] remedy into being.”

Id. at 54a n.1. Relying heavily on this Court’s recent

Bivens decisions, it argued that only the legislature

can determine the availability of just compensation

under the Takings Clause. Id. at 56a–57a. Since Congress has not provided a cause of action against the

States, it said, no remedy against the States exists.

Ibid.

Judge Oldham dissented. Id. at 64a. The dissent correctly recognized that the panel’s holding rendered “federal takings claims non-cognizable in state

or federal court.” Ibid. In short, the panel’s holding

that federal Takings claims could be brought solely

under § 1983 both extinguished the Petitioners’

claims on the merits and rendered the Takings Clause

a “dead letter” throughout the Fifth Circuit. Id. at

78a–79a.

On the merits, the dissent surveyed two hundred years of history demonstrating that “the Takings

Clause afforded a remedy for uncompensated takings

separate and apart from any statute.” Id. 80a–84a.

And, like the magistrate judge, the dissent stressed

that this Court has, consistent with this history, repeatedly asserted that the Takings Clause is “self-executing,” and claims for just compensation exist

without any need for “[s]tatutory recognition.” Id.

85a–86a (citation omitted).

SUMMARY OF ARGUMENT

The question presented is whether property

owners can invoke their right to just compensation

under the Takings Clause without a statutory cause

of action like § 1983. And that question is easy because this Court has already held that the Takings

Clause gives property owners the right to sue for compensation, even without statutory recognition of that

right.

This case can begin and end, then, with First

English Evangelical Church v. County of Los Angeles.

482 U.S. 304 (1987). That case held, as this Court had

long recognized, that suits for just compensation do

not need “[s]tatutory recognition” because they are

“founded upon the Constitution of the United States

itself.” Id. at 315 (quoting Jacobs v. United States, 290

U.S. 13, 16 (1933)). That holding resolves this case. To

be sure, Congress has authorized many suits for damages under § 1983. But Congress cannot by inaction

negate a right founded upon the Constitution itself.

This Court has repeatedly reaffirmed First

English’s core holding that the Constitution itself authorizes lawsuits seeking just compensation. And the

basic principle articulated in First English—that a legal obligation to pay money necessarily implies the

right to sue to have that money paid—is uncontroversial. It is the rule that governs the Fifth Amendment’s

clear command to pay money. It is also the rule that

governs statutory commands to pay money. It is,

across the board, the rule.

And it is a rule that finds further support in

text, history, and tradition. Text is easy: The Constitution explicitly requires the payment of just compensation. Only one other remedy (habeas corpus) even

warrants mention. Whatever the status of constitutional remedies generally, surely the Constitution secures at least the remedies it expressly provides.

History counsels no different. The right to

prompt cash compensation for the taking of property

dates at least to the adoption of Magna Carta in 1215.

And the right grew only stronger from there. As confirmed by commentators from St. George Tucker to

James Madison himself, the reason the Fifth Amendment textually requires a remedy is that it was meant

to require a remedy. That remedy is designed to ensure that the government pays—is forced to pay—

when it seizes private property.

The historical case grows stronger still with the

ratification of the Fourteenth Amendment. By the

mid-nineteenth century, federal and state courts routinely entertained claims for just compensation. And

the Takings Clause was specifically invoked as a reason for adopting the Fourteenth Amendment. John

Bingham, a primary architect of that Amendment,

held up this Court’s decision in Barron ex rel. Tiernan

v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833),

which refused to apply the Takings Clause to the

States, as a reason that the Constitution should be

more protective of federal rights.

This historical record is unrefuted. The enforceable right to prompt compensation is central to the

Fifth and Fourteenth Amendments’ protections of

individual rights. Texas has mustered no authority to

the contrary.

More broadly, Texas misconceives the nature of

this case. It is not about the judiciary’s power to create

a cause of action to enforce one part of the Constitution or another. It is about whether the Constitution

itself substantively requires compensation. If it does

(and it does), then courts must enforce that command,

with or without legislative recognition of the claim.

Finally, stare decisis counsels in favor of retaining the First English rule. Lower courts have applied

it without any difficulty in the decades since this

Court’s decision. Moreover, a contrary rule would effectively eliminate just-compensation claims against

the States. The premise of the dueling concurrences

below was that federal takings claims, important

though they are, belong in state court. Even setting

aside this Court’s rejection of that premise, the consequence of a ruling for Texas is not that claims for compensation under the Fifth Amendment will proceed in

state court. It is that they will not proceed. State

courts entertain federal just-compensation claims because this Court, in First English, held that the Constitution commands them to. If this Court instead

held that the Constitution did not require recognition

of just compensation claims—if those claims were cognizable only through a legislative vehicle like

§ 1983—then state courts would follow that instruction too. Inevitably, decisions about compensation—

about what constitutes a taking, about how much

compensation is “just,” and about whether compensation will be paid at all—would be litigated exclusively

under state law, on whatever terms a state chooses.

But the Constitution promises property owners a federal remedy for takings. And this Court has consistently held that property owners have one. There is no

reason for the Court to change course now, and the

judgment below should be reversed.

ARGUMENT

The constitution provides property owners

with a self-executing, judicially enforceable

right to just compensation when their property

is taken for public use.

A. This court’s precedent holds that the

Takings Clause provides an enforceable right to just compensation.

1. The easiest way to answer the question presented is to recognize that the Court already has. In

First English Evangelical Church v. County of Los Angeles, the Court squarely held that the just-compensation requirement of the Takings Clause was “selfexecuting” and that “[s]tatutory recognition was not

necessary” for Takings claims because they “are

grounded in the Constitution itself[.]” 482 U.S. 304,

315 (1987).

First English is exactly on point. There, the

plaintiff church sought damages caused by a Los Angeles ordinance that prohibited it from building any

structure on its property, which (the church alleged)

deprived it of its property’s entire value. Id. at 308.

The trial court struck allegations about the deprivation of property because California law did not authorize a damages remedy for regulatory takings.

Ibid. (citing Agins v. Tiburon, 598 P.2d 25 (Cal.

1979)). A property owner could sue to invalidate a law

through declaratory relief or mandamus, but damages for the time before that declaration were unavailable. Ibid. California’s Agins rule had long been

controversial, and this Court had repeatedly granted

certiorari to address it, only to find (for procedural

reasons) that it could not resolve the constitutional

question. Id. at 311. When the property owner in First

English appealed, then, the California Court of Appeal held that Agins still controlled: It interpreted the

complaint as “one seeking damages for the uncompensated taking of” the church’s property, which meant

it had to be dismissed “because the United States Supreme Court has not yet ruled on the question of

whether a state may constitutionally limit the remedy

for a taking to nonmonetary relief[.]” Id. at 309 (quotation marks omitted).

This Court then answered that question, holding that a damages remedy for takings is mandatory,

whether authorized by state law or not. The Court’s

analysis began with the text of the Takings Clause,

which “does not prohibit the taking of private property, but instead places a condition on the exercise of

that power.” Id. at 314. Put differently, the just-compensation requirement “is designed not to limit the

governmental interference with property rights per

se, but rather to secure compensation in the event of

otherwise proper interference amounting to a taking.”

Id. at 315.

Beyond the Clause’s plain text, this Court

noted that it had already, for decades, recognized that

suits for just compensation do not require “[s]tatutory

recognition” because they are “founded upon the Constitution of the United States” itself. Id. at 315

(quoting Jacobs v. United States, 290 U.S. 13, 16

(1933)). In other words, “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 . . . .’” Ibid. (quoting United States v. Clarke, 445 U.S. 253, 257 (1980)).

First English resolves this case. Here, this

Court is told that plaintiffs can sue for a taking only

if they can “shoehorn” their claims into § 1983. BIO

16. But in First English, the property owners did not

fit their claims into § 1983 at all: Not only was that

statute not pleaded in the complaint, it had “never

been mentioned in” the lower courts. Tr. of Oral Arg.

in First English, O.T. 1986, No. 85-1199, p. 22:2–3 (Alderson Reporting January 14, 1987), available at https://www.supremecourt.gov/pdfs/transcripts/1986/85-1199_01-14-1987.pdf. The arguments

in First English are the arguments here. There, this

Court was told that “‘the Constitution does not, of its

own force, furnish a basis to award money damages

against the government.’” 482 U.S. at 316 n.9 (quoting

Brief for United States as Amicus Curiae 14). Here, it

has heard the same, that “there is no cause of action

directly under the United States Constitution to sue

for a taking.” BIO 15 (quotation marks omitted).

There, this Court easily pronounced these arguments

“refute[d]” by a century of American caselaw. 482 U.S.

at 16 n.9; see also id. at 315–16 (collecting cases). It

should do the same here.

2. The basic principle behind First English

runs throughout this Court’s Takings Clause jurisprudence. After all, this Court has “never tolerated” a

rule under which “the government [can] appropriate

private property without just compensation so long as

it avoids formal condemnation.” Cedar Point Nursery

v. Hassid, 141 S. Ct. 2063, 2076 (2021). Similarly, the

Court has reaffirmed First English by name, noting

that “[w]hen the government condemns property for

public use, it provides the landowner a forum for seeking just compensation, as is required by the Constitution.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714 (1999) (emphasis added)

(citing First English). And the Court has emphasized

that “First English . . . reject[s] the view that the Constitution ‘does not, of its own force, furnish a basis for

a court to award money damages against the government[.]’” Knick v. Twp. Of Scott, 139 S. Ct. 2162, 2172

(2019). This understanding of First English’s holding

is widespread and uncontroversial. See, e.g., Stop the

Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot.,

560 U.S. 702, 740–41 (2010) (Kennedy & Sotomayor,

JJ., concurring in part) (“[T]he Court subsequently

held that the Takings Clause requires the availability

of a suit for compensation against the States [in] First

English[.]”); accord Manning v. Mining & Mins. Div.

of the Energy, Min. & Nat’l Res. Dep’t, 144 P.3d 87,

90–91 (N.M. 2006) (citing First English as holding

that the “compensation remedy is required by the

Constitution”); SDDS, Inc. v. State, 650 N.W.2d 1, 9

(S.D. 2002) (recognizing that First English means

“the [compensation] remedy does not depend on statutory facilitation”).

These cases also make clear that the compensation remedy is mandatory no matter which government entity takes property. In Knick, for example,

this Court invoked Jacobs for the idea that “no matter

what sort of procedures the government puts in place

to remedy a taking, a property owner has a Fifth

Amendment entitlement to compensation as soon as

the government takes his property without paying for

it.” 139 S. Ct. at 2170. And that entitlement arises

every time property is taken by any government: “Although Jacobs concerned a taking by the Federal Government, the same reasoning applies to takings by the

States.” Id. at 2171.

Indeed, the consistently reaffirmed self-executing remedy provided by the Takings Clause undergirds the entire existing structure of federal takings

law. Takings claims against the federal government

proceed under the Tucker Act, but the Tucker Act is

“only a jurisdictional statute; it does not create any

substantive right enforceable against the United

States for money damages.” United States v. Testan,

424 U.S. 392, 398 (1976). Put differently, the Tucker

Act “provides a waiver of sovereign immunity and a

grant of federal-court jurisdiction, but it does not create any right of action.” Me. Cmty. Health Options v.

United States, 140 S. Ct. 1308, 1332 (2020) (Alito, J.,

dissenting). The “right of action” that federal Takings

claims invoke under the Tucker Act is the self-executing Fifth Amendment recognized by First English and

other decisions. United States v. Causby, 328 U.S.

256, 267 (1946) (“If there is a taking, the claim is

‘founded upon the Constitution’ and within the jurisdiction of the Court of Claims to hear and determine.”). Petitioners here have everything a Tucker

Act plaintiff has: (1) the absence of sovereign

immunity, 4 (2) a grant of federal-court jurisdiction

under 28 U.S.C. § 1331, and (3) exactly as much of a

cause of action as any takings plaintiff who invokes

the Tucker Act.

And the rule is not unique to takings. First

English does not announce a surprising interpretive

principle that applies only to the Fifth Amendment.

Rather, it reflects simple logic: A law “commanding

the payment of a specified amount of money . . . impliedly authorizes (absent other indication) a claim

for damages in the defaulted amount.” Bowen v. Massachusetts, 487 U.S. 879, 923 (1988) (Scalia, J., dissenting). As this Court recently reaffirmed, the creation of a legal “right to receive money” will “typically

display an intent to provide a damages remedy” to collect the obligated funds. Me. Cmty. Health, 140 S. Ct.

at 1328 n.12 (2020). Anything else would render the

underlying legal obligation “meaningless.” Ibid.

Maine Community Health is instructive here.

That case concerned an aspect of the Affordable Care

Act that sought to mitigate insurance companies’

risks in participating in the newly created federal

healthcare exchanges. Id. at 1315–16. As part of the

mitigation, Congress provided that profitable plans

“shall pay” a certain amount to the government, while

the government in turn “‘shall pay’” an amount to

plans that lost money. Id. at 1316 (quoting 42 U.S.C.

4 Petitioners do not concede that a State could ever invoke sovereign immunity in the face of a superior constitutional obligation to pay just compensation, but in all events Texas has waived

its immunity here under Lapides v. Bd. of Regents of Univ. Sys.

of Ga., 535 U.S. 613, 624 (2002).

§ 18062). Those terms created an obligation by the

government to pay money. Id. at 1320–21. And, since

the statute was “fairly . . . interpreted as mandating

compensation by the Federal Government[,]” that

mandate was judicially enforceable through the

Tucker Act. Id. at 1328.

It would be odd indeed if the compensationmandating language of the Affordable Care Act created a judicially enforceable right when the compensation-mandating language of the Constitution itself

did not. But of course (as the Court acknowledged),

that is not the case. The Takings Clause does not explicitly say that property owners can file lawsuits, but

the mandatory nature of the Clause gives property

owners the right to enforce it. Id. at 1328 n.12. 5 In

Maine Community Health, this Court treated that

5 The dissent in Maine Community Health Options relies on Hooe

v. United States, 218 U.S. 322 (1910), as having “rejected the argument that a takings claim could be based ‘exclusively on the

Constitution[.]’” 140 S. Ct. at 1334 & n.3 (Alito, J., dissenting)

(quoting Hooe, 218 U.S. at 335). But Hooe does not reject Takings

claims based on the Constitution wholesale. It rejects the claim

in that case because the government action at issue went beyond

the scope of congressional authorization. Hooe, 218 U.S. at 334.

So the Court held that “[t]he taking of private property by an

officer of the United States for public use, without being authorized . . . to do so by some act of Congress, is not the act of the

government.” Id. at 336. And that much is true: “Authorized acts

of the government may be takings . . . but unauthorized or mistaken ones are torts for which the officer alone is answerable

(unless immune).” In re Chi., Milwaukee St. Paul & Pac. R.R.

Co., 799 F.2d 317, 326 (7th Cir. 1986) (Easterbrook, J.). Hooe establishes that the plaintiff in Hooe should lose, not that every

plaintiff who invokes the Fifth Amendment’s guarantee of just

compensation should lose as well.

proposition as uncontroversial. The same conclusion

follows here.

B. Text, history, and tradition all establish an enforceable right to just compensation.

There are good reasons First English came out

the way it did. In determining the scope of a constitutional right, this Court looks to both “text” and “history.” E.g., N.Y. State Rifle & Pistol Ass’n v. Bruen,

142 S. Ct. 2111, 2130 (2022). The same holds true for

determining the scope of rights protected under the

Fourteenth Amendment, where the Court asks

whether a right is both “fundamental to our scheme

of ordered liberty” and “deeply rooted in this Nation’s

history and tradition.” Timbs v. Indiana, 139 S. Ct.

682, 687–89 (2019). The right to receive just compensation—and to have that compensation awarded by a

court if necessary—passes this test with points to

spare.

1. Begin with the text. The Constitution mentions exactly two remedies: habeas corpus and just

compensation. In determining what remedies are

mandated by the Fourteenth Amendment, those are a

good place to start. And, for purposes of this case, to

end. Cf. Pet. Supp. App. 93a (Oldham, J., dissenting)

(noting that the special treatment of these rights

“suggests these two rights—even if not all others in

the Constitution—have special protections against

congressional abrogation or dereliction”). The Constitution specifically requires the just-compensation

remedy, and that means the just-compensation remedy is specifically required.

And the just-compensation right is different in

a second way too. As this Court has recognized, the

text of the Takings Clause sets it apart from the rest

of the Bill of Rights because it “does not prohibit the

taking of private property [for public use], but instead

places a condition on the exercise of that power.” First

English, 482 U.S. at 314. Unlike other, purely prohibitory parts of the Constitution, the Fifth Amendment

tells us exactly what must happen when property is

taken: Just compensation must be paid. If government must pay just compensation, it follows that

courts of competent jurisdiction may order it to pay

when it hasn’t.

2. Although the Court could stop with the text,

history leads to the same conclusion. See Pet. Supp.

App. 80a–84a (Oldham, J., dissenting); cf. O’Connor

v. Eubanks, 83 F.4th 1018, 1029 (6th Cir. 2023)

(Thapar, J., concurring) (noting Judge Oldham’s

“thoughtful opinion . . . collecting over a century of

Supreme Court cases suggesting plaintiffs have a

cause of action directly under the Takings Clause[.]”).

A. The right to prompt compensation dates at

least to the signing of Magna Carta in 1215. See

Horne v. Dep’t of Agric., 576 U.S. 350, 358 (2015) (citing Magna Carta, cl. 28 (1215), in William Sharp

McKechnie, Magna Carta: A Commentary on the

Great Charter of King John 329 (2d ed. 1914)). But

Magna Carta established neither the government’s

power to take property nor the government’s obligation to pay for it. Instead, Magna Carta’s rights-protecting innovation was the demand for immediate

payment.

At the time of Magna Carta, there was no question the crown had the power of “purveyance”—that

is, the right to “bu[y] up provisions and other necessaries . . . at an appraised valuation, in preference to

all others, and even without consent of the owner.” 1

William Blackstone, Commentaries *287. “Purveyance,” in other words, was an early species of what is

now called eminent domain: Property was taken,

without the owner’s consent, at an appraised value.

Little Rock Junction Ry. v. Woodruff, 5 S.W. 792, 793

(Ark. 1887) (“[Eminent domain] bears a striking analogy to the king’s ancient prerogative of purveyance,

which was recognized and regulated by the twentyeighth section of magna charta.”).

Purveyance was particularly important to the

functioning of government because English kings

found themselves “compelled by their administrative

duties and induced by the pleasures of the chase to

move constantly from district to district.” McKechnie,

supra, at 329. When the court came to town, it had

the right to acquire provisions at market rates to ensure “that the work of government should not be

brought to a standstill for want of supplies.” Id at 330.

The controversy arose not over whether payment was due but when. “In theory . . . the provisions

seized were to be paid for at the market rate[,] but

practice tended to differ lamentably from theory.”

Ibid. And delayed payments were a major cause of

these lamentations: “Payment was often indefinitely

delayed or made not in coin but in exchequer tallies.”

Ibid. Exchequer tallies were a kind of proto-IOU: long

sticks used to record debts owed from the crown to

particular subjects. After carving a series of marks

into the stick, the king’s servants would split it

lengthwise, giving half to the creditor and keeping the

other to store with the treasury against eventual redemption. It was a simple, difficult-to-forge system for

authenticating government debts. See Christine Desan, Making Money: Coin, Currency, and the Coming

of Capitalism 173–85 (2014).

It was also unworkable for King John’s barons.

Because an exchequer tally could be authenticated

only with the other half, the sticks were mostly useful

to offset the holder’s future tax debt: To the extent

they could be sold for cash, they sold at a steep discount from their face value. Id. at 185.

Magna Carta sought to fix this problem. Most

notably, Clause 28 provided (in translation) that “[n]o

constable or other bailiff of ours shall take corn or

other provisions from any one without immediately

tendering money therefor, unless he can have postponement thereof by permission of the seller.”

McKechnie, supra, at 386 (emphasis added). The

heart of Clause 28, then, was not to ensure that property was not seized without payment—that had been

settled long before. The heart of Clause 28 was to ensure that seizures of property were paid for promptly.

This principle traveled with the colonists to the

New World, where courts held that the legislature

could take only the property that it paid for. See Bowman v. Middleton, 1 S.C.L. (1 Bay) 252, 252 (S.C. Ct.

Common Pleas 1792) (declaring that it would be

“against common right, as well as against Magna

Charta, to take away the freehold of one man, and

vest it in another . . . without any compensation”);

Young v. McKenzie, 3 Ga. 31, 41–45 (1847) (holding

that the just-compensation principle dates to Magna

Carta and is an inherent limit on the power of all governments, whether or not their constitutions contain

a just-compensation clause).

Judges, including the young nation’s most influential jurists, routinely grounded this principle in

universal natural law. In 1816, for example, New

York’s Chancellor James Kent held that a court sitting in equity could enjoin enforcement of a statute

that allowed for the diversion of a stream without

compensation. Gardner v. Vill. Of Newburgh,

2 Johns. Ch. 162, 166 (N.Y. Ch. 1816). Chancellor

Kent did not question the legislature’s power to divert

the stream, but held that “to render the exercise of

[that] power valid, a fair compensation must, in all

cases, be previously made to the individuals affected,

under some equitable assessment to be provided by

law.” Ibid. This requirement, explained Chancellor

Kent, “is adopted by all temperate and civilized governments from a deep and universal sense of its justice” and flowed from authorities, ranging from Grotius and Pufendorf to the Fifth Amendment itself,

which was “absolutely decisive of the sense of the people of this country.” Id. at 166, 167. 6

And Chancellor Kent was not alone. Other

early courts also held both that laws seizing property

without compensation were void and that the officials

6 Chancellor Kent’s opinion does not cite the New York bill of

rights because there was none: New York was, at the time, one

of four states that had not adopted some sort of express declaration of rights. J.A.C. Grant, The “Higher Law” Background of the

Law of Eminent Domain, 6 Wis. L. Rev. 67, 69–71 (1931).

doing the seizing owed damages. See, e.g., Hooper v.

Burgess (Md. Provincial Ct. 1670), reprinted in 57 Archives of Maryland, Proceedings of the Provincial

Court 1666–1670, 7 at 571, 574 (J. Hall Pleasants ed.,

1940) (holding that an uncompensated seizure of cattle was “Contrary to the Act of [Parliament] of Magna

Charta” and awarding the plaintiff compensation of

“Forty Five Thousand Nyne Hundred & Fifty poundes

of Tobaccoe”). For at least some 800 years, then, the

basic common-law principles undergirding American

law have recognized that a taking must be paired

with just compensation.

b. But even these common-law principles were

insufficient for the Framers, who recognized that the

government all too often shirked its legal obligation to

pay for what it took. In the words of St. George

Tucker, the earliest commentator on the Fifth

Amendment, the Just Compensation Clause “was

probably intended to restrain the arbitrary and oppressive mode of obtaining supplies for the army . . .

as was too frequently practiced during the revolutionary war, without any compensation whatever.” 1

Blackstone’s Commentaries: With Notes of Reference,

to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth

of Virginia 305–06 (St. George Tucker ed., 1803).

Or take the word of the Fifth Amendment’s

drafter, James Madison. As Madison himself noted in

7 The relevant Proceedings of the Provincial Court of Maryland

have

been

digitized

and

are

available

https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/0

00001/000057/html/am57--574.html.

his essay Property, the constitutional protection

against uncompensated takings was essential to the

constitutional order:

Government is instituted to protect

property of every sort. . . . If there be a

government then which prides itself in

maintaining the inviolability of property; which provides that none shall be

taken directly even for public use without indemnification to the owner, and

yet directly violates the property which

individuals have in their opinions, their

religion, their persons, and their faculties; nay more, which indirectly violates

their property, in their actual possessions, in the labor that acquires their

daily subsistence, and in the hallowed

remnant of time which ought to relieve

their fatigues . . . such a government is

not a pattern for the United States.

James Madison, Property, Nat’l Gazette (Mar. 27,

1792), reprinted in 14 The Papers of James Madison

266, 266–268 (Robert A. Rutland and Thomas A.

Mason,

eds.,

1983).

available

https://founders.archives.gov/documents/Madison/0114-02-0238. In other words, the Constitution’s plan of

ordered liberty centered on respect for property rights

and specifically on the right to just compensation

when that property is taken. This was not a wise

policy to be implemented by the legislature; it was a

command that had been ratified by the People.

Madison’s essays also made clear that the

promises of the Constitution would be enforced by the

federal judiciary. Critics of the Bill of Rights observed

that rights protections in state constitutions had not

prevented governments from sometimes violating

those rights. True enough, Madison acknowledged,

but that was why the federal Constitution created federal courts:

If [these rights] are incorporated into the

constitution, independent tribunals of

justice will consider themselves in a peculiar manner the guardians of those

rights; they will be an impenetrable bulwark against every assumption of power

in the legislative or executive; they will

be naturally led to resist every encroachment upon rights expressly stipulated

for in the constitution by the declaration

of rights.

James Madison, Amendments to the Constitution

(June 8, 1789), 12 The Papers of James Madison, supra, at 196–210, available at https://founders.archives.gov/documents/Madison/01-12-02-0126.

short, Madison viewed the right to compensation as

foundational to the constitutional order, and he

viewed the federal judiciary as essential to the protection of that right.

These views were given life in the Fifth Amendment, which identifies an affirmative right to just

compensation. This is reflected not only by Madison’s

public writing, but also by the constitutional models

available to him at the Framing. Madison would have

been familiar with “the Vermont Constitution of 1777,

the Massachusetts Constitution of 1780 and the

Northwest Ordinance of 1787, each of which provided

for an affirmative right to compensation once property was taken.” Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak nor

Obtuse, 88 Colum. L. Rev. 1630, 1661 & n.161 (1988)

(explaining why this Court so easily rejected the

United States’ position in First English). In other

words, the Fifth Amendment was not unique—it was

part of a widespread shift away from the idea of just

compensation as a legislative obligation and towards

the idea of just compensation as a judicially enforceable right. Robert Brauneis, The First Constitutional

Tort: The Remedial Revolution in Nineteenth-Century

State Just Compensation Law, 52 Vand. L. Rev. 57,

107 n.220 (1999) (“[T]he proliferation of just compensation clauses may have been due to a [] general loss

of faith in legislatures.”).

This self-executing right was made applicable

against the States through the Fourteenth Amendment. 8 Indeed, John Bingham, who drafted the relevant section of that Amendment, explained the importance of adding substantive rights protections by

citing this Court’s decision in Barron ex rel. Tiernan

v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833),

which had held the Takings Clause did not bind the

8 This Court has generally held that the Bill of Rights is applica-

ble to the States via the Fourteenth Amendment’s Due Process

Clause. See Timbs v. Indiana, 139 S. Ct. 682, 687 (2019). As

Members of this Court have observed, the correct vehicle for protecting substantive rights is likely the Amendment’s Privileges

or Immunities Clause. See id. at 691 (Gorsuch, J., concurring);

ibid. (Thomas, J., concurring). As in Timbs, “nothing in this case

turns on that question,” and Petitioners are entitled to prevail

under either constitutional provision. Ibid. (Gorsuch, J., concurring).

States. Cong. Globe, 39th Cong., 1st Session 1089–90

(1866); see also id. at 1090 (“By the decisions read, the

people are without remedy. . . . [T]he State Legislatures may by the direct violations of their duty and

oaths avoid the requirements of the Constitution.”).

In other words, one of the avowed purposes of the

Fourteenth Amendment, as identified by its primary

architect, was to ensure that States could not take

property for public use without just compensation.

c. The history of takings litigation in American

courts further confirms that the just-compensation

right is enforceable.

Begin with federal court. There are, of course,

few early federal cases about the Takings Clause.

This is in part because the Takings Clause did not apply to the states 9 and in part because the federal government for nearly a century relied on the states’ eminent-domain powers to take the land it needed. 10 But

mostly there are few early federal cases about the

Takings Clause because there was no general federalquestion jurisdiction until 1875 and no Tucker Act jurisdiction until 1887. Instead, early takings claims

against the federal government were resolved directly

by Congress. To be clear, this did not mean the compensation was discretionary: “While Congress was the

forum for takings claims, it did not have discretion to

deny takings claims mandated by the Takings

Clause.” William Michael Treanor, The Original Understanding of the Takings Clause and the Political

9 See Barron, 32 U.S. (7 Pet.) at 243.

10 See William Baude, Rethinking the Federal Eminent Domain

Power, 122 Yale L.J. 1738, 1762 (2013).

Process, 95 Colum. L. Rev. 782, 794–95 n.69 (1995);

see also ibid. (acknowledging that the early preference for legislative rather than judicial resolution of

takings claims may not reflect the original understanding of the Fifth Amendment).

Even with the jurisdictional limits, this Court

confirmed that compensation was mandatory, not discretionary. In Mitchell v. Harmony, for example, the

Court noted that the military could confiscate private

property in times of great need but that “[u]nquestionably, in such cases, the government is bound to

make full compensation to the owner.” 54 U.S. (13

How.) 115, 134 (1851). And the Court criticized the

limited jurisdiction of the Court of Claims, “regret[ting] that Congress ha[d] made no provision by

any general law for ascertaining and paying this [required] just compensation.” Langford v. United

States, 101 U.S. 341, 343–45 (1879) (discussing Court

of Claims’ lack of jurisdiction over takings). It even

stretched the point sometimes, converting claims

about takings (over which the Court of Claims had no

jurisdiction) into claims about contracts (over which

it did). Take United States v. Russell, in which this

Court held that a claim by plaintiffs whose steamboats had been commandeered during the Civil War

actually sounded in contract because the constitutional just-compensation requirement meant that

taking the boats came with an implicit promise to pay

for them. 80 U.S. 623, 630 (1871). 11

11 Again, the Tucker Act remedied the jurisdictional barrier to

Takings Clause claims, but it did not provide a right of action.

Once this Court recognized that the Takings

Clause had been incorporated against the states, federal courts had jurisdiction over more takings claims.

See Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 238–41 (1897). And they used it.

Strikingly, this Court’s post-incorporation Takings

cases did not invoke the Civil Rights Act of 1871. Instead, they appear to have been predicated directly

upon the Constitution. See Vill. of Norwood v. Baker,

172 U.S. 269, 277 (1898) (“The plaintiff’s suit proceeded upon the ground, distinctly stated, that the assessment in question was in violation of the fourteenth amendment . . . . It has been adjudged that the

due process of law prescribed by that amendment requires compensation to be made or secured to the

owner when private property is taken by a state, or

under its authority, for public use.”); accord Dohany

v. Rogers, 281 U.S. 362 (1930); Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Del., Lackawanna & W. R.R. Co. v. Town of Morristown, 276 U.S.

182 (1928); Cuyahoga River Power Co. v. City of Akron, 240 U.S. 462 (1916); see also Ann Woolhandler &

Julia D. Mahoney, Federal Courts and Takings Litigation, 97 Notre Dame L. Rev. 679, 681 (2022) (noting

that the Civil Rights Act of 1871 “played little role in

takings cases, which were generally pursued as

claims under diversity jurisdiction or under the federal question statute”).

Not only did litigants not invoke the Civil

Rights Act, this Court repeatedly reminded them that

That right of action, the same right advanced here, already existed. See pp. 15–16, supra.

they didn’t need to. Their right to compensation

flowed from the Constitution, not legislative grace.

The cases are admirably clear: “Just compensation is

provided for by the Constitution and the right to it

cannot be taken away by statute.” Seaboard Air Line

Ry. Co. v. United States, 261 U.S. 299, 304 (1923).

“[T]he right to recover just compensation for property

taken by the United States for public use . . . rest[s]

upon the Fifth Amendment.” Jacobs v. United States,

290 U.S. 13, 16 (1933). The constitutional guarantee

of a remedy meant “[s]tatutory recognition was not

necessary.” Ibid.

The history of Takings litigation under state

law tells a similar story. As this Court has noted, at

the founding, property owners whose land was invaded by government officials could obtain an injunction against an ongoing invasion but generally sued

in trespass for backward-looking damages rather

than suing directly for just compensation. Knick, 139

S. Ct. at 2176. But state courts made clear that compensation was a duty. People ex rel. Utley v. Hayden,

6 Hill 359, 360 (N.Y. Sup. Ct. 1844) (holding that

mandamus is the appropriate remedy when appraisers refuse to undertake duty to assess damages for

taking); Backus v. Lebanon, 11 N.H. 19, 27 (1840) (remitting the case “to the common pleas” with directions to accept the report of the committee assessing

damages); Thayer v. Boston, 36 Mass. (19 Pick.) 511,

515–16 (1837) (allowing action directly against city

for damages caused by highway project). Contemporary commentators agreed that the “provision for

compensation . . . in American constitutional jurisprudence[] is founded in natural equity, and is laid down

by jurists as an acknowledged principle of universal

law.” 2 James Kent, Commentaries on American Law

339 (2d ed. 1832); accord 2 Joseph Story, Commentaries on the Constitution of the United States § 1784

(1833) (“[H]ow vain it would be to speak of [the administration of justice] when all property is subject to

the will or caprice of the legislature, and the rulers.”)

To be sure, sometimes colonial courts found

that nothing had been taken because the original land

grant had reserved some property to the Crown.

McClenachan v. Curwen, 3 Yeates 362, 373 (Pa. 1802)

(denying compensation for land taken for roadbuilding because “compensation [had] been originally

made in each purchaser’s particular grant” for the

building of public roads). But courts uniformly made

clear that compensation for takings was mandatory—

and that, even if a particular court was not the correct

forum for an initial claim for compensation, it would

stand ready to hear a claim should compensation

truly be denied. See Gedney v. Inhabitants of Tewsbury, 3 Mass. 307, 310 (1807) (“The regular course for

the plaintiff in this case is to move the Court of Sessions for an order of payment, upon which he may

take out his warrant of distress. Should they deny the

motion, he may apply here for another remedy, which

will not probably be refused.”).

In the early part of the nineteenth century,

then, property owners could vindicate their absolute

right to compensation through two paths. A suit in equity could enjoin the uncompensated taking, while a

suit at law invoking one of the common-law forms of

action (usually trespass) provided for damages. Cf.

Knick, 139 S. Ct. at 2176. But, then, in the middle of

that century, states abolished the forms of action. Cf.

Douglas Laycock, How Remedies Became a Field: A

History, 27 Rev. Litig. 161, 171 (2008) (noting that the

abolition of the forms began in 1848). As a result,

courts rapidly embraced suits that look just like modern inverse-condemnation cases. This Court’s statelaw cases from that era confirm as much. Most famously, in Pumpelly v. Green Bay Co., this Court explained the “settled principle of universal law that the

right to compensation is an incident to the exercise of

[the] power” to take private property. 80 U.S. 166, 178

(1871). And Pumpelly was not an outlier. See Pac.

R.R. Removal Cases, 115 U.S. 1, 5–6 (1885); Miss. &

Rum River Boom Co. v. Patterson, 98 U.S. 403 (1878);

N. Transp. Co. v. City of Chicago, 99 U.S. 635 (1878);

Hollingsworth v. Parish of Tensas, 17 F. 109

(C.C.W.D. La. 1883).

State courts show the same pattern, recognizing that the entity itself was the appropriate defendant in cases demanding just compensation. The New

Hampshire Supreme Court, for example, held that a

property owner whose land was flooded by a railroad

project could recover damages even though no statute

provided him with a just-compensation remedy.

Eaton v. Bos. Concord & Montreal R.R., 51 N.H. 504,

517 (1872). The Eaton court also expressly rejected

the idea that any suit for damages had to be framed

as a trespass. Just-compensation claims did not need

to fit into “the old forms of action” that had been abolished “in a large proportion of the States.” Id. at 520–

21. See also, e.g., Reardon v. City & County of San

Francisco, 6 P. 317, 325 (Cal. 1885); Harman v. City

of Omaha, 23 N.W. 503, 503 (Neb. 1885); City of Elgin

v. Eaton, 83 Ill. 535, 536–37 (1876) (“[F]ailing to provide compensation for the damages, the city became

liable to an action,” as “the right to recover damages

was given by the constitution[.]” (citing Clayburg v.

City of Chicago, 25 Ill. 535 (1861))). In short, by the

mid-nineteenth century, courts nationwide had converged on the remedy for government takings: suits

directly against public entities, based directly on constitutional just-compensation guarantees. They did

this routinely, without any suggestion “that their

holding was novel.” Brauneis, supra, at 110.

The history is clear. Since at least Magna

Carta, property owners have been entitled to prompt

cash payments when their property is taken for public

use. That entitlement was originally entrusted to the

legislature, which had to pay when land was taken.

But the responsibility for enforcing the right to compensation shifted over time to the judiciary—and this

shift was exemplified by the Fifth Amendment itself.

By the time the Fourteenth Amendment was ratified,

the shift was complete: Jurisdictions nationwide recognized direct lawsuits for just compensation against

governments that took their property. Suits like this

one.

This Court’s just-compensation cases square

with this history now—and they have squared with it

for generations. One hundred years ago, this Court

said the compensation right “is provided for by the

Constitution and . . . cannot be taken away by statute.” Seaboard Air Line, 261 U.S. at 304. Four years

ago, it said that “in the event of a taking, the compensation remedy is required by the Constitution.” Knick,

139 S. Ct. at 2172. And in between the two, it held

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 . . . .’” First English, 482 U.S. at 315.

It should say the same thing here.

C. Federal courts can enforce the federal

constitution.

Ultimately, Texas, like the concurring opinions

below, makes this case unnecessarily complicated.

Texas’s brief in opposition to certiorari, just like the

concurrences, asks whether this Court should create

a cause of action to enforce the Takings Clause. But

this is the wrong question. Instead, this case asks the

simple question of whether federal courts can enforce

the federal Constitution. And of course they can.

To be sure, federal courts need jurisdiction to

hear constitutional claims—but, here, they have it.

The complaint asserts that the defendants are required to pay just compensation under the Fifth

Amendment, as applied through the Fourteenth

Amendment. JA-36. That is a claim arising under federal law, and, notwithstanding Judge Higginbotham’s

suggestion below that § 1983 is needed to confer “jurisdiction,” 28 U.S.C. § 1331 gives the federal courts

jurisdiction. Contra Pet. Supp. App. 44a–45a (Higginbotham, J., concurring).

And once a court has jurisdiction, it may issue

orders enforcing the obligations of the Constitution.

Doing this does not require the court to invoke a

power to “freely create[] implied private causes of action for damages[.]” Hernandez v. Mesa, 140 S. Ct.

735, 750 (2020) (Thomas, J., concurring); cf. Pet.

Supp. App. 54a n.1 (Higginson, J., concurring) (arguing that allowing a cause of action for just compensation requires an act of “judicial genesis”). Instead,

Petitioners’ argument is that, for all the reasons explained above, the Fifth Amendment (as applied

through the Fourteenth) creates a judicially enforceable obligation to pay just compensation. If that is true,

the question is not whether the Court should infer a

cause of action. The question is whether the scope of

the constitutional right includes a judicially cognizable right to compensation.

On questions like that—questions about the

meaning of the Constitution—this Court has never

deferred to the legislature. Neither has it refused to

enforce the Constitution without legislative permission. Just the opposite. In Free Enterprise Fund v.

Public Company Accounting Oversight Board, for example, the government objected that “‘petitioners

[had] not pointed to any case in which this Court has

recognized an implied private right of action directly

under the Constitution to challenge governmental action under the Appointments Clause or separation-ofpowers principles.’” 561 U.S. 477, 491 n.2 (2010). The

Court rejected this argument as all but absurd. Of

course there was such a “right to relief as a general

matter.” Ibid. And of course this Court has long “sustain[ed] the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution.” Ibid. (quoting Bell v. Hood, 327 U.S. 678, 684

(1946)).

This insistence that courts have the power to

enforce the law is foundational to American law. “The

very essence of civil liberty certainly consists in the

right of every individual to claim the protection of the

laws whenever he receives an injury. One of the first

duties of government is to afford that protection.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803). And that duty is not just of government, but

specifically a duty of the courts. Indeed, “[i]n Great

Britain, the king himself [was] sued in the respectful

form of a petition, and he never fail[ed] to comply with

the judgment of his court.” Ibid. 12 Consistent with

this principle, this Court has repeatedly held that federal courts may enforce constitutional commands,

from Ex parte Young, 209 U.S. 123, 149 (1908),

through Bell v. Hood and Free Enterprise Fund. These

cases all recognize the Courts “duty ‘as the bulwar[k]

of a limited constitution against legislation encroachments.’” Nw. Austin Mun. Util. Dist. No. 1 v. Holder,

557 U.S. 193, 206 (2009) (quoting The Federalist No.

78, at 526 (Alexander Hamilton) (J. Cooke ed., 1961)).

This duty is part of the constitutional design, not only

of the original Constitution but also of the Fourteenth

Amendment. After all, a major purpose of that

Amendment was “to see the Federal judiciary clothed

with the power to take cognizance of the question” of

state violations of individual rights. Cong. Globe, 39th

Cong., 1st Sess. 158 (1866) (remarks of Rep. Bingham); see also William Baude et al., General Law and

the Fourteenth Amendment, 76 Stan. L. Rev.

12 As some scholars have argued, there is historical evidence for

the proposition that the First Amendment’s Petition Clause protects a substantive right to this sort of judicial resolution of constitutional disputes. See James E. Pfander, Sovereign Immunity

and the Right to Petition: Toward a First Amendment Right to

Pursue Judicial Claims Against the Government, 91 Nw. U. L.

Rev. 899, 906–73 (1997); cf. Borough of Duryea v. Guarnieri, 564

U.S. 379, 404 (2011) (Scalia, J., concurring in the judgment in

part and dissenting in part) (acknowledging Pfander’s “detailed

historical argument” but leaving its “resolution to another day”).

(forthcoming 2024) (manuscript at 30) 13 (noting that

the first draft of Section One of the Fourteenth

Amendment was revised to ensure constitutional

rights would be judicially cognizable even if the Civil

Rights Act of 1866 were repealed).

Put differently, the Constitution itself is self-executing and, where the commands of the Constitution

are clear, this Court, not just the legislature, is required to enforce them. If the duty to pay is constitutionally required, it can be enforced by a court of competent jurisdiction. If not, not. Some rights, as a matter of text, history, and tradition, may not include a

damages remedy. At least one—just compensation—

does. The question, then, is not whether Congress has

chosen to provide a cause of action by which the Constitution may be enforced. The question is whether

the Constitution, properly understood, imposes the

duty in the first place. If the Constitution does not impose the duty, other questions may follow—like

whether Congress has provided a remedy or whether

this Court should “create[] implied private causes of

action for damages[.]” Hernandez v. Mesa, 140 S. Ct.

735, 750 (2020) (Thomas, J., concurring). But those

later questions do not arise here. Here, text and history (to say nothing of First English) give the answer:

Just compensation is mandatory, so claims for just

compensation are cognizable directly under the Constitution.

Indeed, a contrary rule would lead to preposterous results. Both the federal government (under

cases like Free Enterprise Fund) and the states (via

13 Available at https://tinyurl.com/298dee78.

Ex parte Young) can be hauled into federal court and

enjoined from taking property in violation of the Fifth

Amendment. If courts cannot enforce the duty to provide just compensation, their only option would be equitable remedies for the uncompensated taking. If

Texas is right, then, Petitioners should instead demand injunctive relief to cut culverts into the highway. Rather than simply award compensation, courts

should apparently appoint special masters to oversee

massive construction (or de-construction) projects.

But of course they shouldn’t. The Constitution

already tells us how to remedy takings for public use:

with just compensation. Since the Constitution prescribes the remedy, the most straightforward course

is for courts to enforce that remedy—not perversely

limit themselves to injunctions. This is not “inferring”

a cause of action. It is enforcing the Constitution.

D. There is no reason to abandon the rule

in First English.

As explained above, First English answered

the question presented. Texas can point to no reason

to abandon either First English or any of the cases reaffirming its holding. In deciding whether to adhere

to precedent, this Court’s stare decisis cases provide

several factors to consider, including “the quality of

[its] reasoning, the workability of the rule it established, its consistency with other related decisions,

. . . and reliance on the decision.” Knick v. Twp. of

Scott, 139 S. Ct. 2162, 2178 (2019). Each factor counsels in favor of retaining the First English rule.

1. Begin with the decision’s reasoning. As

demonstrated above, First English reflects a century

of this Court’s precedent. First English simply applies

a rule this Court had consistently articulated since at

least Jacobs v. United States, 290 U.S. 13, 16 (1933).

See pp. 13–14, supra. And that rule has to be right.

Otherwise, a constitutional command becomes a constitutional request. Surely the Framers’ specific instructions carry more weight than that.

2. Moreover, the First English rule is perfectly

workable, as demonstrated by its consistent application in the lower courts. State courts have had no

trouble recognizing that the Fifth Amendment obligates them to hear just-compensation claims. 14 Federal courts recognize the same thing. 15 Indeed, only

two appellate courts seem to have gotten the question

wrong: The Fifth Circuit in the decision below, and

14 See, e.g., First Union Nat’l Bank v. Hi Ho Mall Shopping Ven-

tures, Inc., 869 A.2d 1193, 1197–98 & n.3 (Conn. 2005); Greenway Dev. Co. v. Borough of Paramus, 750 A.2d 764, 770 (N.J.

2000); Manning v. Mining & Mins. Div. of the Energy, Min. &

Nat’l Res. Dep’t, 144 P.3d 87, 91–92 (N.M. 2006); SDDS, Inc. v.

State, 650 N.W.2d 1, 9 (S.D. 2002); City of Baytown v. Schrock,

645 S.W.3d 174, 176 (Tex. 2022); Boise Cascade Corp. v. State ex

rel. Or. State Bd. of Forestry, 991 P.2d 563, 568 (Or. Ct. App.

1999).

15 See, e.g., Mann v. Haigh, 120 F.3d 34, 37 (4th Cir. 1997) (identifying just-compensation claims as a “situation in which the

Constitution itself authorizes suit against the federal government”); Baker v. City of McKinney, 601 F. Supp. 3d 124, 145 (E.D.

Tex. 2022) (“Accordingly, the Court holds that, because the Fifth

Amendment is self-executing, [a] claim under the Fifth Amendment Takings Clause is not dependent upon the § 1983 vessel.”),

rev’d on other grounds, 84 F.4th 378 (5th Cir. 2023); Speed v.

Mills, 919 F. Supp. 2d 122, 128 (D.D.C. 2013) (“[T]he Supreme

Court has held that takings claims can be stated directly under

the Fifth Amendment, without recourse to a statutory remedy[.]”).

the Ninth Circuit in Azul-Pacifico, Inc. v. City of Los

Angeles, 973 F.2d 704, 705 (9th Cir. 1992). But these

decisions do not prove the rule in First English is unworkable or even controversial. Each simply ignored

the issue: Neither case so much as cites First English.

That is not evidence that courts are confused by the

rule in First English. It is, at best, evidence that they

have sometimes declined to acknowledge it.

And other courts have not found this circuit

split confusing—quite the contrary. To the extent

lower courts acknowledged Azul-Pacifico before it was

cited below, it was simply to note that the Ninth Circuit had gotten it wrong. See Lawyer v. Hilton Head

Pub. Serv. Dist. No. 1, 220 F.3d 298, 302 n.4 (4th Cir.

2000) (noting that Azul-Pacifico was “in apparent conflict with First English”). If the rule in First English

presented some practical difficulties for the lower

courts, one would expect them to have emerged by

now.

3. And First English fits with this Court’s other

Takings Clause cases. Indeed, the Court reaffirmed

this just a few years ago in overruling Williamson

County Regional Planning Commission v. Hamilton

Bank of Johnson City, 473 U.S. 172 (1985). One reason to abandon the rule in Williamson County, this

Court held, was that it “conflicted with much of [the

Court’s] takings jurisprudence,” pointing specifically

to Jacobs and First English. Knick, 139 S. Ct. at 2178.

If inconsistency with First English is a reason to overrule other precedents, then that is necessarily a reason to retain First English itself.

4. Most importantly, overturning First English

would harm the reliance interests of property owners

nationwide who purchased land with the understanding that it could not simply be seized by an unaccountable state agency. “Considerations in favor of stare decisis are at their acme in cases involving property and

contract rights, where reliance interests are involved[.]” Payne v. Tennessee, 501 U.S. 808, 828

(1991).

Indeed, adopting a contrary rule here would be

wildly destabilizing—not just for takings by the

States but for takings by the United States. As discussed above, the self-executing Takings Clause is at

the heart of every single takings claim filed under the

Tucker Act. See pp.15–16, supra. To the extent Petitioners lack a “cause of action” to enforce their right

to compensation, so too do federal plaintiffs. Abandoning First English’s interpretation of the Takings

Clause would cast doubt on the continuing viability of

federal takings claims entirely. To accept Texas’s arguments is to accept that state and federal governments alike may seize property with impunity, leaving property owners to beg the legislature for recompense. Even if that regime were a wise one, it is not

the regime on which every American landowner has

come to rightfully rely.

Undermining these reliance interests and giving the government a freer hand to take property

without paying for it would harm all Americans’

rights. But the harm would not fall uniformly. Instead, it would fall disproportionately on poorer, less

politically powerful property owners. Governmental

and academic studies alike emphasize that takings

disproportionately affect disadvantaged groups. U.S.

Comm’n on Civil Rights, The Civil Rights

Implications of Eminent Domain Abuse (2014); Dick

M. Carpenter & John K. Ross, Testing O’Connor And

Thomas: Does The Use Of Eminent Domain Target

Poor And Minority Communities?, 46 Urban Stud.

2447 (2009); see also Brief of NAACP et al. as Amici

Curiae, Kelo v. City of New London, 545 U.S. 469 (U.S.

2005), available at 2004 WL 2811057. Uncompensated takings will not land at the door of those with

the power and influence to protect themselves

through the political process. They will land on the

backs of “the powerless groups and individuals that

the [Takings] Clause protects.” Kelo v. City of New

London, 545 U.S. 469, 521–22 (2005) (Thomas, J., dissenting). They will land, in other words, on the very

people whose only recourse, historically, has been to

the courts of the United States.

Indeed, as Judge Oldham noted in dissent below, abandoning the mandatory-compensation rule

effectively renders the Takings Clause a “dead letter.”

Pet. Supp. App. 78a. The ruling below left property

owners in the Fifth Circuit with two choices: They

could challenge the uncompensated taking of their

property solely under state law, abandoning their federal claims. Or they could file federal claims, subjecting their suits to removal—where the absence of an

express federal cause of action would doom those

claims. See ibid.

A similar ruling from this Court would have

even more devastating consequences. The concurring

opinions below each suggested that Takings Clause

claims should be heard in Texas state courts—which,

they hasten to add, are happy to hear them. Pet.

Supp. App. 44a–45a & n.2 (citing City of Baytown v.

Schrock, 645 S.W.3d 174, 178 (Tex. 2022)). But state

courts do not entertain federal takings claims out of

the goodness of their hearts. They entertain them because this Court has told them they must. E.g., Manning v. Mining & Mins. Div. of the Energy, Min. &

Nat’l Res. Dep’t, 144 P.3d 87, 91–92 (N.M. 2006). If

this Court says the opposite—that Takings claims are

instead impossible without a legislative vehicle—

lower courts would again follow its directive.

And that would mean the States could violate

the Constitution’s just-compensation requirement

with impunity. Yes, property owners might still have

the federally protected right to seek an injunction

against an uncompensated taking. Cf. Ex parte

Young, 209 U.S. 123 (1908). But, as Justice Brennan

observed in his dissent in San Diego Gas & Electric

Co. v. City of San Diego, enjoining an uncompensated

taking merely turns the government action up to the

moment of the injunction into an equally unconstitutional uncompensated temporary taking. 450 U.S.

621, 654–55 (1981) (Brennan, J., dissenting). 16

With no enforceable federal just-compensation

right, that taking would be remedied only to the extent state courts wanted to provide a remedy. Sometimes state courts might enforce the full scope of property owners’ federal rights under their state constitutions. Other times not. Cf. Pet. Supp. App. 78a–79a

16 San Diego Gas & Electric was one of several cases in which

this Court found it was unable to decide the constitutionality of

California’s no-compensation rule for procedural reasons. Id. at

623 (finding no jurisdiction). Justice Brennan’s dissent, of

course, ultimately carried the day when this Court reached the

merits in First English. 482 U.S. at 315.

(noting that Louisiana law does not provide an enforceable state-law takings remedy). With no federal

claim brought against the State, this Court would

have no jurisdictional basis to review those decisions.

The inevitable result, to borrow Judge Oldham’s

phrase, would be “as if the People never bothered to

ratify the federal Takings Clause in the first place.”

Id. at 78a.

But the People did ratify the Takings Clause.

And this Court, up to now, has insisted on enforcing

the rights that Clause secures. Indeed, it has squarely

rejected the idea that state courts should be primarily

entrusted with safeguarding federally guaranteed

rights under the Fifth Amendment. Cf. Knick, 139 S.

Ct. at 2169–70; see also Lambert v. City & County of

San Francisco, 529 U.S. 1045, 120 S. Ct. 1549, 1551–

52 (2000) (Scalia, J., dissenting from denial of certiorari) (noting California appellate decision that “call[s]

into question the state court’s willingness to hold

state administrators to the Fifth Amendment standards set forth by this tribunal” which “may be more

than a local and isolated phenomenon”). It should not

change course now. The judgment below should be reversed.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

ROBERT J. MCNAMARA

Counsel of Record

ANDREW H. WARD

CHRISTEN MASON HEBERT

SURANJAN SEN

INSTITUTE FOR JUSTICE

901 N. Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

rmcnamara@ij.org

DANIEL H. CHAREST

E. LAWRENCE VINCENT

BURNS CHAREST LLP

900 Jackson Street,

Suite 500

Dallas, Texas 75202

469-904-4550

dcharest@burnscharest.com

lvincent@burnscharest.com

CHARLES IRVINE

IRVINE & CONNER PLLC

4709 Austin Street

Houston, Texas 77004

713-533-1704

charles@irvineconner.com

Counsel for Petitioners

NOVEMBER 13, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.