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

No. 22-913

In the Supreme Court of the United States

____________________

RICHARD DEVILLIER, ET AL.,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

____________________

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, NATIONAL FEDERATION OF

INDEPENDENT BUSINESS SMALL BUSINESS

LEGAL CENTER, INC., AND MANHATTAN

INSTITUTE IN SUPPORT OF PETITIONERS

____________________

KATHRYN D. VALOIS

Pacific Legal Foundation

4440 PGA Blvd., Suite 307

Palm Beach Gardens, FL 33410

ELIZABETH MILITO

ROB SMITH

NFIB Small Business

Legal Center, Inc.

555 12th Street, NW

Suite 1001

Washington, DC 20004

DEBORAH J. LA FETRA

Counsel of Record

ROBERT H. THOMAS

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

Counsel for Amici Curiae

Additional counsel listed on inside cover

ILYA SHAPIRO

TIM ROSENBERGER

Manhattan Institute

52 Vanderbilt Ave.

New York, NY 10017

i

Question Presented

May a person whose property is taken without

compensation seek redress under the self-executing

Takings Clause even if Congress has not codified a

cause of action?

ii

Table of Contents

Question Presented...................................................... i

Table of Authorities ................................................... iii

Interest of Amici Curiae ............................................. 1

Introduction and Summary of Argument .................. 2

Argument .................................................................... 5

I.

The Text of the Fourteenth Amendment

Binds “the States” ............................................ 5

II. Self-Executing Constitutional Rights Do Not

Need Legislative Recognition of a Remedy ... 11

III. The Fifth Circuit Deprives Property Owners

of Any Forum for Constitutional

Takings Claims .............................................. 16

A. The Takings “Catch-22” Resurrected ......... 16

B. The Constitution Elevates Judicial

Protection of Property Rights Over

Government Gamesmanship ...................... 19

Conclusion ................................................................. 21

iii

Table of Authorities

Page(s)

Cases

Alden v. Maine,

527 U.S. 706 (1999) ............................................... 7

Allen v. Cooper,

140 S.Ct. 994 (2020) ............................................ 16

Angelle v. State,

34 So.2d 321 (La. 1948) ....................................... 17

Ariyan Inc. v. Sewerage & Water Bd. of

New Orleans,

143 S.Ct. 353 (2022) .......................................... 1−2

Ariyan, Inc. v. Sewerage & Water Bd. of

New Orleans,

29 F.4th 226 (5th Cir. 2022) ................................ 17

Arkansas Game & Fish Comm’n v.

United States,

568 U.S. 23 (2012) ................................................. 1

Arrigoni Enters., LLC v.

Town of Durham,

136 S.Ct. 1409 (2016) ......................................... 19

Barron v. Mayor and City Council of

Baltimore,

32 U.S. (7 Pet.) 243 (1833) ................................ 6−7

Benton v. Maryland,

395 U.S. 784 (1969) ............................................. 11

Biden v. Nebraska,

143 S.Ct. 2355 (2023) .......................................... 19

Blanchette v. Conn. Gen. Ins. Corps.,

419 U.S. 102 (1974) ............................................... 4

iv

Boom Co. v. Patterson,

98 U.S. 403 (1878) ................................................. 6

Bradshaw v. Rogers,

20 Johns. 103 (N.Y. Sup. Ct. 1822) ....................... 9

Brown & Gay Eng’g, Inc. v. Olivares,

461 S.W.3d 117 (Tex. 2015) ................................. 18

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021) ............................................ 1

Cent. Va. Cmty. Coll. v. Katz,

546 U.S. 356 (2006) ............................................. 16

Chicago, B. & Q.R. Co. v.

City of Chicago,

166 U.S. 226 (1897) ................................... 9−10, 14

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999) ............................................. 16

City of Northglenn v. Grynberg,

846 P.2d 175 (Colo. 1993) .................................... 20

CPS Energy v. Elec. Reliability Council

of Texas,

671 S.W.3d 605 (Tex. 2023) ........................... 17−18

Davis v. Burke,

179 U.S. 399 (1900) ..................................... 2−3, 13

Dolan v. City of Tigard,

512 U.S. 374 (1994) ............................................... 8

Embury v. King,

361 F.3d 562 (9th Cir. 2004) ................................. 5

Esposito v. S.C. Coastal Council,

939 F.2d 165 (4th Cir. 1991) .............................. 15

v

Fin. Oversight and Mgmt. Bd. for Puerto

Rico v. Cooperative de Ahorro y

Credito Abraham Rosa,

143 S.Ct. 774 (2023) .............................................. 2

First English Evangelical Lutheran Church

of Glendale v. Los Angeles Cnty.,

482 U.S. 304 (1987) ............................. 3, 14−15, 19

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ....................................... 12, 15

Folsom v. City of New Orleans,

109 U.S. 285 (1883) ............................................. 17

Franklin v. Gwinnett Cnty. Pub.

Schools,

503 U.S. 60 (1992) ............................................... 15

Hall v. McRaven,

508 S.W.3d 232 (Tex. 2017) ................................. 18

Health & Hosp. Corp. of Marion Cnty. v.

Talevski,

599 U.S. 166 (2023) ......................................... 7, 12

Home Tel. & Tel. Co. v. City of Los

Angeles,

227 U.S. 278 (1913) ............................................... 7

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ............................................... 1

Johnston v. Rankin,

70 N.C. 550 (1874) ................................................. 9

Kirby Forest Indus., Inc. v.

United States,

467 U.S. 1 (1984) ................................................. 15

vi

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) ............................ 1, 3, 19, 20

Koontz v. St. Johns River Water Mgmt. Dist.,

570 U.S. 595 (2013) ............................................... 1

Lapides v. Bd. of Regents of Univ. Sys.

of Ga.,

535 U.S. 613 (2002) ......................................... 5, 19

Maine Cmty. Health Options v.

United States,

140 S.Ct. 1308...................................................... 11

Malloy v. Hogan,

378 U.S. 1 (1964) ................................................. 10

Mapp v. Ohio,

367 U.S. 643 (1961) ............................................. 10

Marbury v. Madison,

5 U.S. 137 (1803) ..................................... 12−13, 15

Ex parte Martin,

13 Ark. 198 (1853) ................................................. 9

McDonald v. City of Chicago,

561 U.S. 742 (2010) ......................................... 9−10

Minn. v. Murphy,

465 U.S. 420 (1984) ............................................. 13

Mitchum v. Foster,

407 U.S. 225 (1972) ............................................... 7

In re Mt. Washington Road Co.,

35 N.H. 134 (1857)................................................. 9

Murr v. Wisconsin,

137 S.Ct. 1933 (2017) ............................................ 1

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ........................................... 1, 8

vii

Pakdel v. City and Cnty. of San Francisco,

141 S.Ct. 2226 (2021) ............................................ 1

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................... 1

Parham v. Justices of the Inferior Court

of Decatur Cnty.,

9 Ga. 341 (1851) ..................................................... 9

Penn Central Transp. Co. v.

New York City,

438 U.S. 104 (1978) ............................................... 8

PennEast Pipeline Co., LLC v.

New Jersey,

141 S.Ct. 2244 (2021) .......................................... 10

People v. Platt,

17 Johns. 195 (N.Y. Sup. Ct. 1819) ....................... 9

Pumpelly v. Green Bay Co.,

80 U.S. 166 (1871) ................................................. 6

Sinnickson v. Johnson,

17 N.J.L. 129 (1839) ............................................ 14

Stop the Beach Renourishment, Inc. v.

Fla. Dep’t of Env. Prot.,

560 U.S. 702 (2010) ............................................... 8

Suitum v. Tahoe Reg’l Plan. Agency,

520 U.S. 725 (1997) ............................................... 1

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ............................................... 8

Tanzin v. Tanvir,

141 S.Ct. 486 (2020) ............................................ 14

viii

TrinCo Inv. Co. v. United States,

140 Fed.Cl. 530 (2018)....................................... 6−7

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023) ............................................... 1

In re Venoco LLC,

998 F.3d 94 (3d Cir. 2021) ................................... 10

Ex parte Virginia,

100 U.S. 339 (1879) ............................................... 7

Wallace v. Jaffree,

472 U.S. 38 (1985) ............................................... 11

Yearsley v. W.A. Ross Constr. Co.,

309 U.S. 18 (1940) ............................................... 11

Constitutions

La. Const. art. XII, § 10(C) ....................................... 17

U.S. Const. amend. V.................2–3, 10–11, 13, 15–16

U.S. Const. amend. XI .......................................... 5, 18

U.S. Const. amend. XIV ...............3–5, 7–10, 12, 14–15

U.S. Const. amend. XIV, § 1 ................................... 3, 7

U.S. Const. amend. XIV, § 5 ........................... 3, 11−12

Statutes

28 U.S.C. § 1491(a)(1) ................................................. 4

Civil Rights Act of 1871,

42 U.S.C. § 1983 ........................................ 4, 12, 18

Other Authorities

Amar, Akhil Reed, The Bill of Rights:

Creation and Reconstruction (1998) ..................... 8

ix

Beaton, Laura D., & Zinn, Matthew D.,

Knick v. Township of Scott: A Source of

New Uncertainty for State and Local

Governments in Regulatory Takings

Challenges to Land Use Regulation,

47 Fordham Urb. L.J. 623 (2020)........................ 19

Berger, Eric, The Collision of the

Takings and State Sovereign

Immunity Doctrines,

63 Wash. & Lee L. Rev. 493 (2006) ..................... 15

Blackstone, William,

1 Commentaries ..................................................... 9

Cooley, Thomas M., A Treatise on the

Const. Limitations Which Rest upon

the Legislative Power of the States of

the American Union (1868) ................................... 9

Grant, Eric, A Revolutionary View of the

Seventh Amendment and the Just

Compensation Clause,

91 Nw. U. L. Rev. 144 (1996) .............................. 16

Kobach, Kris W., The Origins of

Regulatory Takings: Setting the

Record Straight,

1996 Utah L. Rev. 1211 ......................................... 6

Story, Joseph, 2 Commentaries on the

Constitution of the United States

(Thomas M. Cooley ed., 4th ed.,

Boston, Little, Brown, & Co. 1873)

(1833) ................................................................. 6, 9

Struve, Catherine T., Turf Struggles: Land,

Sovereignty, and Sovereign Immunity,

37 New Eng. L. Rev. 571 (2003) .......................... 15

x

Thomas, David A., Finding More Pieces for

the Takings Puzzle: How Correcting

History Can Clarify Doctrine,

75 U. Colo. L. Rev. 497 (2004) ............................. 20

1

Interest of Amici Curiae 1

Pacific Legal Foundation (PLF) is a nonprofit, taxexempt corporation organized for the purpose of

litigating matters affecting the public interest in

private property rights, individual liberty, and

economic freedom. Founded 50 years ago, PLF is the

most experienced legal organization of its kind. PLF

attorneys have participated as lead counsel in

numerous landmark United States Supreme Court

cases generally in defense of the right to make

reasonable use of property and the corollary right to

obtain just compensation when that right is infringed.

See, e.g., Tyler v. Hennepin Cnty., 598 U.S. 631 (2023);

Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021);

Pakdel v. City and Cnty. of San Francisco, 141 S.Ct.

2226 (2021); Knick v. Twp. of Scott, 139 S.Ct. 2162

(2019); Murr v. Wisconsin, 137 S.Ct. 1933 (2017);

Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.

595 (2013); Palazzolo v. Rhode Island, 533 U.S. 606

(2001); Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S.

725 (1997); Nollan v. California Coastal Comm’n, 483

U.S. 825 (1987). PLF also routinely participates in

important property rights cases as amicus curiae. See,

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

Arkansas Game & Fish Comm’n v. United States, 568

U.S. 23 (2012). Additionally, PLF attorneys have

extensive experience with the question here, having

recently advocated for the Just Compensation

Clause’s self-executing nature several times. See, e.g.,

Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans,

1 No counsel for any party authored this amicus brief in whole or

in part, and no person or entity, other than amici, their members,

or counsel, made any monetary contribution to the preparation

or submission of this brief.

2

143 S.Ct. 353 (2022); Fin. Oversight & Mgmt. Bd. for

Puerto Rico v. Cooperative de Ahorro y Credito

Abraham Rosa, 143 S.Ct. 774 (2023).

The National Federation of Independent Business

Small Business Legal Center, Inc. (NFIB Legal

Center), is a nonprofit, public interest law firm

established to provide legal resources and be the voice

for small businesses in the nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business, Inc. (NFIB),

which is the nation’s leading small business

association. NFIB’s mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

D.C., and all 50 state capitals, the interests of its

members.

The Manhattan Institute for Policy Research (MI)

is a nonpartisan public policy research foundation

whose mission is to develop and disseminate ideas

that foster greater economic choice and individual

responsibility. MI’s constitutional studies program

aims to preserve the Constitution’s original public

meaning. To that end, it has historically sponsored

scholarship regarding quality-of-life issues, property

rights, and economic liberty.

Introduction and Summary of Argument

The courts don’t need Congress’s permission to

enforce the self-executing constitutional right to just

compensation. A civil right is self-executing “if it

supplies a sufficient rule by means of which the right

given may be enjoyed and protected, or the duty

imposed may be enforced.” Davis v. Burke, 179 U.S.

3

399, 403 (1900). Compensation for a taking is just

such a right. The plain text of the Fifth Amendment

itself supplies the rule for how the right is protected,

and how it is enforced: takings of private property

require compensation. This Court has said so—many

times. See, e.g., First English Evangelical Lutheran

Church of Glendale v. Los Angeles Cnty., 482 U.S. 304,

316 n.9 (1987) (the Just Compensation Clause “of its

own force furnish[es] a basis for a court to award

money damages against the government.”); Knick, 139

S.Ct. at 2172 (citing First English as holding that a

“property owner acquires an irrevocable right to just

compensation immediately upon a taking”).

Congress may enforce the Fourteenth Amendment

by creating causes of action and remedies. U.S. Const.

amend. XIV, § 5 (“The Congress shall have the power

to enforce, by appropriate legislation, the provisions of

this article.”). Because the Fourteenth Amendment’s

plain text applies to the states as states, Congress

could create a statutory cause of action for

deprivations of life, liberty, or property by a state. U.S.

Const. amend. XIV, § 1 (“nor shall any State deprive

any person of … property, without due process of

law”). But Congress need not have done so for Richard

Devillier to seek compensation from Texas for a

taking, because the Fifth Amendment itself specifies

the remedy, and the absence of legislation does not

prohibit courts from enforcing the self-executing

constitutional right to just compensation.

Statutory authorization may be necessary for other

civil rights claimants to sue, but not Just

Compensation claimants, because with one possible

exception, no right listed in the Bill of Rights other

than the right to Just Compensation is self-executing.

4

That Congress created a general civil cause of action

for “persons” claiming deprivations of “rights,

privileges, or immunities secured by the Constitution

and laws”—Civil Rights Act of 1871, 42 U.S.C.

§ 1983—is of no moment here. For example, Congress

has never legislatively established a cause of action

for just compensation against the federal government,

and owners whose property is alleged to have been

taken seek compensation directly under the

Constitution. The Tucker Act does not create a cause

of action for compensation or money damages; it only

assigns jurisdiction over constitutionally based

takings claims to the Court of Federal Claims and the

Federal Circuit. See 28 U.S.C. § 1491(a)(1) (“The

United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim

against the United States founded … upon the

Constitution”). In federal takings, the self-executing

Just Compensation Clause recognizes the right and

provides the remedy. Blanchette v. Conn. Gen. Ins.

Corps., 419 U.S. 102, 126 (1974). If the lack of a

statutory cause of action does not stand in the way of

holding the federal government to the Just

Compensation Clause’s requirements, it similarly

does not stand in the way of the same claim against a

state. Our constitutional order cannot countenance

neutering a right and remedy expressly recognized by

the text of the Constitution, on the grounds that

Congress has not acted.

The Fifth Circuit acknowledged Texas’ obligation

to comply with the Fifth and Fourteenth

Amendment’s plain requirements. But by divorcing

liability from the constitutionally mandated remedy,

the court below engaged in a clever, but not

compelling, Texas two-step. First, the Fifth Circuit

5

acknowledged

that

states

cannot

effect

uncompensated takings. Yet the court concluded that

Congress must affirmatively provide a statutory

remedy before property owners may pursue

compensation claims against a state—even in the

state’s own courts. Petitioners sued Texas in a Texas

court, alleging that the state’s deliberate flooding of

their land effected a taking requiring compensation

under the Fifth and Fourteenth Amendments. Texas

eliminated any possible Eleventh Amendment issues

that may have been lurking by removing the case to

federal court. Lapides v. Bd. of Regents of Univ. Sys.

of Ga., 535 U.S. 613, 622–23 (2002); Embury v. King,

361 F.3d 562, 566 (9th Cir. 2004) (“Allowing a State to

waive immunity to remove a case to federal court,

then ‘unwaive’ it to assert that the federal court could

not act, would create a new definition of chutzpah.”)

(citation omitted). By requiring that Congress first

recognize a cause of action for just compensation, the

Fifth Circuit ensured that Devillier’s federal civil

rights cannot be enforced in any court.

This Court should reaffirm that the Just

Compensation Clause is self-executing and hold that

property owners need not rely on a statutory cause of

action where compensation is mandated by the Fifth

and Fourteenth Amendments. The Constitution itself

provides the cause of action, rendering the need for a

statute unnecessary.

Argument

I.

The Text of the Fourteenth Amendment

Binds “the States”

Until the ratification of the Fourteenth

Amendment, the Just Compensation Clause

6

restricted only the federal government. Barron v.

Mayor and City Council of Baltimore, 32 U.S. (7 Pet.)

243 (1833). Property owners seeking compensation for

a taking of their property by a state or its

instrumentalities were forced to look exclusively to

state constitutions for the remedy. Id. at 249 (“Had

the people of the several states, or any of them …

required additional safe-guards to liberty from the

apprehended encroachments of their particular

governments; the remedy was in their own hands”);

see also Pumpelly v. Green Bay Co., 80 U.S. 166, 176–

77 (1871) (“This requires a construction of the

Constitution of Wisconsin; for though the Constitution

of the United States provides that private property

shall not be taken for public use without just

compensation, it is well settled that this is a limitation

on the power of the Federal government, and not on

the States.”); Boom Co. v. Patterson, 98 U.S. 403, 407

(1878) (applying Minnesota’s just compensation

clause to a compensation claim removed to federal

court). The view was that state courts applying state

law were adequate to protect fundamental rights

against intrusion by the state itself. Kris W. Kobach,

The Origins of Regulatory Takings: Setting the Record

Straight, 1996 Utah L. Rev. 1211, 1265. “[M]any

prominent jurists regarded the Takings Clause of the

U.S. Constitution as essentially a reference to the

various notions of compensation, property, and public

use in the common law of takings.” Id. (quoting 2

Joseph Story, Commentaries on the Constitution of the

United States 547 (Thomas M. Cooley ed., 4th ed.,

Boston, Little, Brown & Co. 1873) (1833) (“This is an

affirmance of a great doctrine established by the

common law for the protection of private property.”)).

See also TrinCo Inv. Co. v. United States, 140 Fed.Cl.

7

530, 534 (2018) (noting that until 1855 there was no

federal judicial forum for trying takings cases.).

But the Civil War laid bare the notion that states

could be entrusted with policing their own protection

of fundamental civil rights. The Fourteenth

Amendment’s Due Process Clause overruled Barron

and held states—in their capacity as states—to the

same standards as the federal government. See U.S.

Const. amend. XIV, § 1 (“nor shall any State deprive

any person of life, liberty, or property, without due

process of law”) (emphasis added). The Amendment

“‘fundamentally altered the balance of state and

federal power’” by “requir[ing] the States to surrender

a portion of the sovereignty that had been preserved

to them by the original Constitution.” Alden v. Maine,

527 U.S. 706, 756 (1999) (citation omitted). Its

provisions “were intended to be, what they really are,

limitations of the power of the States[.]” Ex parte

Virginia, 100 U.S. 339, 345 (1879). “[A] State cannot

disregard the limitations which the Federal

Constitution has applied to her power. Her rights do

not reach to that extent.” Id. at 346. The Fourteenth

Amendment thus worked a “sea change” enhancing

“federal protections for individual rights against state

infringements.” Health & Hosp. Corp. of Marion Cnty.

v. Talevski, 599 U.S. 166, 176 (2023).

Ratification of the Fourteenth Amendment

inherently limited state power over individual rights.

Mitchum v. Foster, 407 U.S. 225, 238–39 (1972)

(recognizing the role of the Amendment in elevating

“the Federal Government as a guarantor of basic

federal rights against state power”); Home Tel. & Tel.

Co. v. City of Los Angeles, 227 U.S. 278, 287 (1913)

(adopting as the “theory of the Amendment” that “the

8

Federal judicial power is competent to afford redress

for [a] wrong” that violates the Fourteenth

Amendment); Akhil Reed Amar, The Bill of Rights:

Creation and Reconstruction 268 (1998) (noting that a

leading proponent of the Amendment stated it was

adopted in part to protect “citizens of the United

States, whose property, by State legislation, has been

wrested from them”).

In the very first case “incorporating” a right

acknowledged in the Bill of Rights against a state

under the Fourteenth Amendment’s Due Process

Clause—the Just Compensation Clause 2—this Court

recognized that the Fourteenth Amendment limits the

states, not just its officials, instrumentalities, and

agencies:

But it must be observed that the prohibitions

of the [Fourteenth] amendment refer to all the

instrumentalities of the state,—to its

legislative, executive, and judicial authorities,

—and, therefore, whoever by virtue of public

position under a state government deprives

another of any right protected by that

amendment against deprivation by the state,

‘violates the constitutional inhibition’ … This

must be so, or, as we have often said, the

constitutional prohibition has no meaning[.]

2 See Dolan v. City of Tigard, 512 U.S. 374, 383 (1994); Penn

Central Transp. Co. v. New York City, 438 U.S. 104, 122 (1978);

Nollan, 483 U.S. at 827; Stop the Beach Renourishment, Inc. v.

Fla. Dep’t of Env’t Prot., 560 U.S. 702, 717 (2010). Tahoe-Sierra

Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302,

306 n.1 (2002) (The Just Compensation Clause “applies to the

States as well as the Federal Government.”).

9

Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S.

226, 233–34 (1897) (emphasis added). Initially, this

Court in Chicago established that property rights

established the foundation of the Constitution as a

whole:

The requirement that the property shall not

be taken for public use without just

compensation is but “an affirmance of a great

doctrine established by the common law for

the protection of private property. It is

founded in natural equity, and is laid down as

a principle of universal law. Indeed, in a free

government, almost all other rights would

become worthless if the government

possessed an uncontrollable power over the

private fortune of every citizen.”

Id. at 236 (citing 2 Story, Const. § 1790; 1 William

Blackstone, Commentaries 138, 139 (1765); Thomas

M. Cooley, A Treatise on the Const. Limitations Which

Rest upon the Legislative Power of the States of the

American Union *559 (1868); People v. Platt, 17

Johns. 195, 215 (N.Y. Sup. Ct. 1819); Bradshaw v.

Rogers, 20 Johns. 103, 106 (N.Y. Sup. Ct. 1822); In re

Mt. Washington Road Co., 35 N.H. 134, 142 (1857);

Parham v. Justices of the Inferior Court of Decatur

Cnty., 9 Ga. 341, 348 (1851); Ex parte Martin, 13 Ark.

198, 206 (1853); Johnston v. Rankin, 70 N.C. 550, 555

(1874)). More recently, McDonald v. City of Chicago,

561 U.S. 742, 760 (2010), also noted that “in holding

that due process prohibits a State from taking private

property without just compensation, the Court

described the right as ‘a principle of natural equity,

recognized by all temperate and civilized

governments, from a deep and universal sense of its

10

justice.’” (citing Chicago, B. & Q.R. Co., 166 U.S. at

238). In McDonald, this Court explained that it

“abandoned ‘the notion that the Fourteenth

Amendment applies to the States only a watereddown, subjective version of the individual guarantees

of the Bill of Rights,’ stating that it would be

‘incongruous’ to apply different standards ‘depending

on whether the claim was asserted in a state or federal

court.’” McDonald, 561 U.S. at 765 (quoting Malloy v.

Hogan, 378 U.S. 1, 10–11 (1964)).

Thus, ratification of the Fourteenth Amendment

reduced state power to the extent necessary to ensure

that all Americans could seek judicial vindication for

violation of constitutional rights. See, e.g., In re Venoco

LLC, 998 F.3d 94, 110 (3d Cir. 2021) (“State sovereign

immunity is a critical feature of the U.S. Constitution,

but it is not absolute. When they ratified the

Constitution, states waived their sovereign immunity

defense in bankruptcy proceedings[.]”). Because the

Fifth

Amendment

explicitly

provides

for

“compensation” and the states consented to the

language of the Fifth and Fourteenth Amendments,

the states thus consented to a mechanism that is

“inherent in the constitutional plan.” PennEast

Pipeline Co., LLC v. New Jersey, 141 S.Ct. 2244, 2262

(2021).

Thus, the incorporated Bill of Rights protections

“are all to be enforced against the States under the

Fourteenth Amendment according to the same

standards that protect those personal rights against

federal encroachment.” Malloy, 378 U.S. at 10. Cf.

Mapp v. Ohio, 367 U.S. 643, 655–56 (1961) (“[I]n

extending the substantive protections of due process

to all constitutionally unreasonable searches—state

11

or federal—it was logically and constitutionally

necessary that the exclusion doctrine … be also

insisted upon … To hold otherwise is to grant the right

but in reality to withhold its privilege and

enjoyment.”); Wallace v. Jaffree, 472 U.S. 38, 49 (1985)

(describing as an “elementary proposition of law” that

“when the Constitution was amended to prohibit any

State from depriving any person of liberty without due

process of law, that Amendment imposed the same

substantive limitations on the States’ power to

legislate that the First Amendment had always

imposed on the Congress’ power.”) (footnote omitted);

Benton v. Maryland, 395 U.S. 784, 795 (1969) (“Once

it is decided that a particular Bill of Rights guarantee

is ‘fundamental to the American scheme of justice,’ the

same constitutional standards apply against both the

State and Federal Governments.”) (citation omitted).

II.

Self-Executing Constitutional Rights Do

Not Need Legislative Recognition of a

Remedy

It is not a necessary prerequisite for Congress to

create a cause of action and a judicial remedy when

the Constitution itself recognizes the remedy which is

thus “self-executing.” See Yearsley v. W.A. Ross

Constr. Co., 309 U.S. 18, 21 (1940) (“[I]f the authorized

action ... does constitute a taking of property for which

there must be just compensation under the Fifth

Amendment, the Government has impliedly promised

to pay that compensation and has afforded a remedy

for its recovery….”); Maine Cmty. Health Options v.

United States, 140 S.Ct. 1308, 1328 n.12 (“Although

there is no express cause of action under the Takings

Clause, aggrieved owners can sue through the Tucker

Act under our case law.”). Applied here, this means

12

that although Congress has the power to enforce the

Fourteenth Amendment, 3 where (as here) it has not

done so and the constitutional right is “selfexecuting,” the absence of legislation does not bar a

court from enforcing the right. In short, Devillier does

not need Congress’ permission to sue Texas—in Texas’

own courts, no less—to recover just compensation as

guaranteed by the Fourteenth Amendment. This

Court should hold that property owners have a selfexecuting federal constitutional right to just

compensation when government takes their property,

and they may sue to enforce that right against the

State of Texas in a Texas court (or in federal court if

Texas removes it). Notwithstanding Congressional

failure to adopt a statute like section 1983 that creates

a just compensation remedy against the states, Texas

cannot immunize itself from the minimal

requirements of the U.S. Constitution.

This Court has long recognized that the existence

of a right means there must be a remedy: “The

government of the United States has been

emphatically termed a government of laws, and not of

men. It will certainly cease to deserve this high

appellation, if the laws furnish no remedy for the

violation of a vested legal right.” Marbury v. Madison,

5 U.S. 137, 163 (1803). Marbury explains that this

standard traces to English legal tradition, as Lord

Blackstone noted, “it is a general and indisputable

See U.S. Const. amend. XIV, § 5 (“The Congress shall have

power to enforce, by appropriate legislation, the provisions of this

article.”). Pursuant to this section, Congress may enforce

constitutional guarantees, notwithstanding sovereign immunity,

by legislating a damages remedy for a state’s violation of the

Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 448–

49, 456 (1976); Health & Hosp. Corp., 599 U.S. at 175.

3

13

rule, that where there is a legal right, there is also a

legal remedy, by suit or action at law, whenever that

right is invaded.” Id.

The constitutional provision is “self-executing”

when it “supplies a sufficient rule by means of which

the right given may be enjoyed and protected, or the

duty imposed may be enforced,” as compared with

non-self-executing provisions that “merely indicate[]

principles, without laying down rules by means of

which those principles may be given the force of law.”

Davis v. Burke, 179 U.S. at 403 (citation omitted). 4

Here, the Fifth Amendment explicitly commands

payment of just compensation when government

takes property for public use. It is the only explicit

civil remedy provided in the text of the Constitution.

This is a “sufficient rule” as evidenced by courts’

ability to apply it since the earliest days of the United

States. By contrast, other constitutional provisions

recognizing fundamental rights do not condition the

right on a remedy expressed in the Constitution. For

example, if a government abridges First Amendment

rights, the text of the Constitution doesn’t prescribe

4 This Court does not always require that Constitution explicitly

detail the remedy in order to deem a provision self-executing. For

example, Minn. v. Murphy, 465 U.S. 420, 434–35 (1984), held

that because the Fifth Amendment provides that no person “shall

be compelled in any criminal case to be a witness against

himself,” U.S. Const. amend. V, the provision is self-executing if

the government threatens to penalize someone if he refuses to

speak; the person may rely directly on the Constitution to refuse

to answer questions where the answers might incriminate him

in future criminal proceedings or to seek exclusion of answers

extracted in that circumstance. However, the clause otherwise is

generally

considered

non-self-executing,

although

the

“execution” depends on an individual’s affirmative claiming of

the privilege rather than a government waiver. Id. at 425.

14

what a court can do about it. See, e.g., Tanzin v.

Tanvir, 141 S.Ct. 486, 489, 491–92 (2020) (Religious

Freedom Restoration Act of 1993 provides private

right action seeking damages to redress Federal

Government violations of the right to free exercise

under the First Amendment).

Because of the foundational nature of the Just

Compensation Clause’s protection of property rights,

“[t]he legislature may prescribe a form of procedure to

be observed in the taking of private property for public

use, but it is not due process of law if provision be not

made for compensation.” Chicago, B. & Q.R. Co., 166

U.S. at 236 (emphasis added). That is, liability alone

cannot fulfill the constitutional mandate—there must

be compensation: “the right to compensation was an

incident to the exercise of the power of eminent

domain; that the one was so inseparably connected

with the other that they may be said to exist, not as

separate and distinct principles, but as parts of one

and the same principle.” Id. at 238 (citing Sinnickson

v. Johnson, 17 N.J.L. 129, 145 (1839)). After

considering other early federal cases in the same vein,

this Court concluded, “private property is taken for

the state or under its direction for public use, without

compensation made or secured to the owner, is, upon

principle and authority, wanting in the due process of

law required by the fourteenth amendment of the

constitution of the United States[.]” Id. at 241.

When the states were subjected to the Fourteenth

Amendment and thus, the incorporated “selfexecuting” Just Compensation remedy, property

owners harmed by a state taking acquired a right to

file a claim for compensation, notwithstanding the

lack of enabling legislation. First English, 482 U.S. at

15

316 n.9; see also Esposito v. S.C. Coastal Council, 939

F.2d 165, 173 n.3 (4th Cir. 1991) (Hall, J., dissenting);

Catherine T. Struve, Turf Struggles: Land,

Sovereignty, and Sovereign Immunity, 37 New Eng. L.

Rev. 571, 573–74 (2003) (“[T]he Fifth Amendment’s

Just Compensation Clause also appears to furnish an

exception to the prohibition on damages relief.”); Eric

Berger, The Collision of the Takings and State

Sovereign Immunity Doctrines, 63 Wash. & Lee L.

Rev. 493, 519 (2006) (“[T]he straight textual argument

seems to require the government to provide money

damages [for a taking], notwithstanding otherwise

applicable

sovereign immunity

bars.”).

The

Constitution provides that property owners must be

compensated when government takes private

property for public use. 5 It does not say “except for

states.”

Relying on Marbury, this Court in Franklin v.

Gwinnett Cnty. Pub. Schools, 503 U.S. 60, 69 (1992),

held that when a statute authorizes a private right of

action “to enforce a federal right and Congress is silent

on the question of remedies, a federal court may order

any appropriate relief.” The Title IX plaintiffs in that

case could recover monetary damages although the

statute was silent on that point. Id. at 64–65. If

legislation creating remedy against Fourteenth

Amendment-violating states waives sovereign

immunity, id.; Fitzpatrick, 427 U.S. at 456, then a just

compensation remedy embedded directly in the

5 The Constitution itself requires payment of just compensation

for a taking, as distinguished from other payments, say, for outof-pocket costs, that may be reimbursed as a matter of legislative

grace. Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 6 and

n.7 (1984).

16

Fourteenth Amendment itself must have the same

effect. It makes no sense to allow recovery to plaintiffs

with self-executing statutory claims that lack a

mandated remedy while withholding recovery from

plaintiffs with a self-executing constitutional claim

that explicitly describes the remedy owed. See also

Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 373–78

(2006) (Bankruptcy Clause provides a constitutionally

grounded exception to sovereign immunity); Allen v.

Cooper, 140 S.Ct. 994, 1003 (2020) (“the Bankruptcy

Clause itself did the abrogating” because “the States

had already ‘agreed in the plan of the Convention not

to assert any sovereign immunity defense’ in

bankruptcy proceedings”) (quoting Katz, 546 U.S. at

377); City of Monterey v. Del Monte Dunes at Monterey,

Ltd., 526 U.S. 687, 752 (1999) (Souter, J., concurring

in part) (“A State’s untoward refusal to provide an

adequate remedy to obtain compensation, the sine qua

non of an inverse condemnation remedy under

§ 1983, … is not damages for tortious behavior, but

just compensation for the value of the property

taken.”); Eric Grant, A Revolutionary View of the

Seventh Amendment and the Just Compensation

Clause, 91 Nw. U. L. Rev. 144, 199 (1996) (“It is a

proposition too plain to be contested that the Just

Compensation Clause of the Fifth Amendment is

‘repugnant’ to sovereign immunity and therefore

abrogates the doctrine[.]”).

III.

The Fifth Circuit Deprives Property

Owners of Any Forum for Constitutional

Takings Claims

A. The Takings “Catch-22” Resurrected

The Fifth Circuit’s approach acknowledges that

property owners asserted a federal constitutional

17

right but held that they have no remedy—in any court,

state or federal—until Congress first creates one. The

effect on property owners within the Circuit is

devastating—often

depriving

them

of

any

compensation even for acknowledged takings. For

example, Louisiana state courts employ the same

distinction between liability for a taking and a claim

for just compensation that the Fifth Circuit applied

below. That is, although a waiver of sovereign

immunity is not necessary to sue Louisiana

governments for takings, Angelle v. State, 34 So.2d

321, 323 (La. 1948) (state constitution’s just

compensation clause is “self-executing” and not

subject

to

sovereign

immunity),

Louisiana

governments have not waived immunity from

enforcement of resulting judgments. La. Const.

art. XII, § 10(C). This leaves property owners without

their property and without any way to recover their

owed just compensation, a constitutionally deficient

and unjust result. See Ariyan, Inc. v. Sewerage &

Water Bd. of New Orleans, 29 F.4th 226, 232 (5th Cir.

2022) (“[W]e understand the Plaintiffs’ frustration.

They have succeeded in winning a money judgment.

Without any judicial means to recover, they are

compelled ‘to rely exclusively upon the generosity of

the judgment debtor.’”) (quoting Folsom v. City of New

Orleans, 109 U.S. 285, 295 (1883) (Harlan, J.,

dissenting).

The situation is especially dire in Texas, which

extends sovereign immunity not only to the state, but

to any private corporation deputized as an “arm of the

state” to exercise government functions. In CPS

Energy v. Elec. Reliability Council of Texas, 671

S.W.3d 605, 628 (Tex. 2023), the Texas Supreme

Court held that a private corporation enjoys sovereign

18

immunity when authorizing legislation “‘evinces clear

legislative intent’” to vest it with the “‘nature,

purposes, and powers’ of an ‘arm of the State

government’” and because doing so satisfies the

“political, pecuniary, and pragmatic policies

underlying our immunity doctrines.” Id. (footnotes

omitted). The dissenting opinion noted that although

“‘immunity is inherent to sovereignty, unfairness is

inherent to immunity,’ especially when it is extended

to what is not inherently sovereign: purely private

entities.” Id. at 653 (Boyd and Devine, joined by

Lehrmann and Busby, JJ., dissenting) (footnote and

citations omitted). See also Hall v. McRaven, 508

S.W.3d 232, 243 (Tex. 2017) (sovereign immunity from

suit “allows the ‘improvident actions’ of the

government to go unredressed,”) (citation omitted);

Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117,

121–22 (Tex. 2015) (sovereign immunity “places the

burden of shouldering” the “costs and consequences”

of those actions “on injured individuals,” rather than

the entity that caused those consequences) (citation

omitted).

The property owners in this case exercised their

choice of forum to pursue their constitutional takings

claims against Texas in state court. Texas removed

the case to federal court, and the Fifth Circuit refused

to consider the merits, holding there is no enabling

statute and states cannot be sued under section 1983.

Consequently, in the Fifth Circuit, where can a

property owner properly raise takings claims against

the state? If the owner sues the state in federal court

seeking just compensation, the state will invoke

Eleventh Amendment immunity to get it dismissed.

And if the owner sues in state court, as the Petitioners

did here, the state defendant can simply remove the

19

case to federal court and poof! It disappears. Cf. Biden

v. Nebraska, 143 S.Ct. 2355, 2371 (2023) (rejecting

government’s “sleight of hand” to cancel student

loans). This Court should have little patience with

courts that deprive property owners of any forum to

pursue their constitutional claims.

B. The Constitution Elevates Judicial

Protection of Property Rights Over

Government Gamesmanship

Governments compound the constitutional error of

taking property without just compensation by

engaging in legal tactics designed to thwart property

owners’ attempts to vindicate their constitutional

rights. See Laura D. Beaton & Matthew D. Zinn,

Knick v. Township of Scott: A Source of New

Uncertainty for State and Local Governments in

Regulatory Takings Challenges to Land Use

Regulation, 47 Fordham Urb. L.J. 623, 625 (2020)

(urging local governments to make use of “several

tools” “to try to force claims, in whole or in part, back

into state courts”); Arrigoni Enters., LLC v. Town of

Durham, 136 S.Ct. 1409, 1409 (2016) (Thomas and

Kennedy, JJ., dissenting from denial of certiorari)

(procedural bar from federal court “inspired

gamesmanship”); Lapides, 535 U.S. at 621 (decrying

state’s manipulation of legal doctrine “to achieve

unfair tactical advantages”). In this circumstance, a

property owner’s only recourse in 49 states is to sue

for inverse condemnation. Knick, 139 S.Ct. at 2168;

First English, 482 U.S. at 316 (“the entire doctrine of

inverse condemnation is predicated on the proposition

20

that a taking may occur without such formal

proceedings.”). 6

Our nation was founded on the idea that the

government has no power to confiscate private

property for public use without compensating the

owner. This Court should treat inverse condemnation

claims as the mirror image equivalents to eminent

domain actions, such that any state’s action in taking

property authorizes litigation in any court. See City of

Northglenn v. Grynberg, 846 P.2d 175, 178 (Colo.

1993) (“Because an inverse condemnation action is

based on the ‘takings’ clause of our constitution, it is

to be tried as if it were an eminent domain

proceeding.”). The fact that governmental agencies

prefer not to pay cannot fairly limit this constitutional

protection. See David A. Thomas, Finding More Pieces

for the Takings Puzzle: How Correcting History Can

Clarify Doctrine, 75 U. Colo. L. Rev. 497, 546 (2004)

(“Predictions of doom for governmental entities

required to carry greater compensation burdens do

not ameliorate the unconstitutionality, illegality, and

moral perfidy of wrongful deprivations of private

property by irresistible public power.”).

6 In Ohio, property owners must seek a writ of mandamus

compelling the government to initiate condemnation

proceedings. Knick, 139 S.Ct. at 2168, n.1.

21

Conclusion

The decision below should be reversed.

DATED: November 2023.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

ROBERT H. THOMAS

PACIFIC LEGAL FOUNDATION

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

DLaFetra@pacificlegal.org

KATHRYN D. VALOIS

PACIFIC LEGAL FOUNDATION

4440 PGA Blvd., Suite 307

Palm Beach Gardens, FL 33410

ELIZABETH MILITO

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th Street, NW

Suite 1001

Washington, DC 20004

ILYA SHAPIRO

TIM ROSENBERGER

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

Counsel for Amici Curiae