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

Supreme Court briefDec 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

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENT

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

AARON L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

NATALIE D. THOMPSON

KATELAND R. JACKSON

SARA B. BAUMGARDNER

Assistant Solicitors

General

J. ANDREW MACKENZIE

Assistant Attorney General

QU E S TIO N P RE SE N TE D

Ordinarily, when private litigants attempt to

vindicate a federal constitutional right by seeking

damages in a federal court, they must identify a cause of

action created by Congress. Most commonly, they may

sue the “person” who “subjects, or causes [them] to be

subjected” to a constitutional deprivation under

42 U.S.C. §1983. Such a claim is not available, however,

against a State because a sovereign State is not a

“person” within the meaning of §1983. Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989). Here,

however, Petitioners sued the State of Texas for

damages without identifying a federal statute creating a

cause of action. The question presented is:

Whether the Fifth Amendment’s Takings Clause, as

incorporated against the States through the Fourteenth

Amendment’s Due Process Clause, impliedly creates a

cause of action by which private parties may sue a State

for damages.

(I)

TABLE OF CONTENTS

Page

Question Presented........................................................... I

Table of Authorities ........................................................ IV

Introduction....................................................................... 1

Statement .......................................................................... 3

I. Petitioners’ Consolidated Suits and the

District Court’s Ruling ......................................... 3

II. Texas’s Interlocutory Appeal ............................... 4

Summary of Argument ..................................................... 9

Argument......................................................................... 13

I. The Takings Clause Does Not Create Its

Own Cause of Action ........................................... 13

A. The Takings Clause’s Text Does Not

Create a Cause of Action .............................. 14

B. The Constitution’s Structure Is

Incompatible with an Implied Takings

Cause of Action .............................................. 17

C. Historical Practice Confirms that the

Takings Clause Does Not Create a

Cause of Action .............................................. 22

D. The Fourteenth Amendment Also

Does Not Create a Cause of Action for

Takings ........................................................... 26

E. Separation-of-Powers Principles Bar

Judicial Creation of a Takings Cause of

Action.............................................................. 28

II. Petitioners’ Arguments Are Unpersuasive ....... 32

A. Petitioners Mistake Texas’s Position ........... 32

B. Petitioners Misunderstand Precedent ......... 34

C. Petitioners Misread the Constitution .......... 41

D. Petitioners Misinterpret History ................. 42

III

E. Petitioners’ Policy Arguments Fail .............. 45

Conclusion ....................................................................... 46

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

Alexander v. Sandoval,

532 U.S. 275 (2001) ............................................. 2, 28, 30

Allen v. Cooper,

140 S. Ct. 994 (2020) ..................................................... 46

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

New Orleans,

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

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) ........................................... 21, 22, 34

Azul-Pacifico, Inc. v. City of Los Angeles,

973 F.2d 704 (9th Cir. 1992) .......................................... 6

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

140 S. Ct. 2335 (2020) ................................................... 21

Barron v. Baltimore,

32 U.S. (7 Pet.) 243 (1833) ........................................... 13

Bd. of Tr. of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) ....................................................... 27

Beekman v. Saratoga & Schenectady R.R.,

3 Paige Ch. 45 (N.Y. Ch. 1831) .................................... 16

Meyers ex rel. Benzing v. Texas,

410 F.3d 236 (5th Cir. 2005) ........................................ 32

Bivens v. Six Unknown Named Agents of

Fed. Bur.of Narcotics,

403 U.S. 388 (1971) ................................. 8, 11, 27, 28, 30

Bowen v. Massachusetts,

487 U.S. 879 (1988) ....................................................... 39

Brown v. De La Cruz,

156 S.W.3d 560 (Tex. 2004) ............................................ 5

Page(s)

Cases (ctd.):

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) ................................................... 33

Chi., B. & Q.R. Co. v. City of Chicago,

166 U.S. 226 (1897) ....................................................... 20

Church of Scientology of Cal. v. IRS,

484 U.S. 9 (1987) ........................................................... 25

Cincinnati Soap Co. v. United States,

301 U.S. 308 (1937) ....................................................... 18

City of Baytown v. Schrock,

645 S.W.3d 174 (Tex. 2022) ............................................ 5

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ......................................................... 5

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999) ................................................. 39, 40

Collins v. Yellen,

141 S. Ct. 1761 (2021) ................................................... 21

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004) ................................................. 36, 37

Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 75 (2001) ..................................................... 2

Custiss v. Georgetown & Alexandria Turnpike Co.,

10 U.S. (6 Cranch) 233 (1810) ...................................... 17

Cuyahoga River Power Co. v. City of Akron,

240 U.S. 462 (1916) ....................................................... 40

Del., L. & W. R.R. Co. v. Town of Morristown,

276 U.S. 182 (1928) ....................................................... 40

Dohany v. Rogers,

281 U.S. 362 (1930) ....................................................... 40

Page(s)

Cases (ctd.):

Eastport Steamship Corp. v. United States,

372 F.2d 1002 (Ct. Cl. 1967) (en banc)........................ 43

Egbert v. Boule,

596 U.S. 482 (2022) ....................................... 2, 7, 8, 9, 28

Erie R,R. Co. v. Tompkins,

304 U.S. 64 (1938) ................................................... 43, 44

First English Evangelical Lutheran Church of

Glendale v. Los Angeles County,

482 U.S. 304 (1987) ..........9, 12, 34, 35, 36, 37, 38, 39, 45

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976) ....................................................... 27

Franchise Tax Bd. of Cal. v. Hyatt,

139 S. Ct. 1485 (2019) ................................................... 20

Free Ent. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) ....................................................... 41

Gedney v. Inhabitants of Tewksbury,

3 Mass. 307 (1807) ........................................................ 45

Gomez-Perez v. Potter,

553 U.S. 474 (2008) ....................................................... 33

Gutersloh v. Texas,

25 F.3d 1044, 1994 WL 261047 (5th Cir. 1994) ............ 4

Haywood v. Drown,

556 U.S. 729 (2009) ................................................... 5, 29

Hernandez v. Mesa,

140 S. Ct. 735 (2020) ........................................... 6, 28, 30

Hooe v. United States,

218 U.S. 322 (1910) .................................................. 25-26

Idaho v. Coeur d’Alene Tribe,

521 U.S. 261 (1997) ....................................................... 41

VII

Page(s)

Cases (ctd.):

INS v. Chadha,

462 U.S. 919 (1983) ....................................................... 14

Jacobs v. United States,

290 U.S. 13 (1933) ......................................................... 38

Jennings v. Rodriguez,

538 U.S. 281 (2018) ....................................................... 29

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) ......................... 7, 9, 30, 33, 39, 45

Kohl v. United States,

91 U.S. 367 (1875) ......................................................... 26

Lake County v. Rollins,

130 U.S. 662 (1889) ....................................................... 17

Langford v. United States,

101 U.S. 341 (1879) ................................................. 19, 26

Lib. of Cong. v. Shaw,

478 U.S. 310 (1986) ....................................................... 23

Livingston v. Mayor of N.Y.,

8 Wend. 85 (N.Y. Ch. 1831) ......................................... 17

Lombardo v. Pa. Dep’t of Pub. Welfare,

540 F.3d 190 (3d Cir. 2008) .......................................... 32

Lynch v. United States,

292 U.S. 571 (1934) ....................................................... 19

M‘Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................ 21, 22

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ........................................ 42

McClenachan v. Curwen,

6 Binn. 509 (Pa. 1802) ................................................... 45

VIII

Page(s)

Cases (ctd.):

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................................. 10, 27

Me. Cmty. Health Options v. United States,

140 S. Ct. 1308 (2020) .......................... 1, 7, 15, 38, 43-44

Monell v. Dep’t of Soc. Servs. of City of N.Y.,

436 U.S. 658 (1978) ....................................................... 36

N.Y. Trust Co. v. Eisner,

256 U.S. 345 (1921) ....................................................... 22

Off. of Pers. Mgmt. v. Richmond,

496 U.S. 414 (1990) ..................................... 18, 19, 22, 25

Patchak v. Zinke,

583 U.S. 244 (2018) ................................................. 20, 44

People ex rel. Utley v. Hayden,

6 Hill 359 (N.Y. Sup. Ct. 1844) .................................... 44

Reeside v. Walker,

52 U.S. (11 How.) 272 (1850) ....................................... 18

Schillinger v. United States,

155 U.S. 163 (1894) ........................................... 19, 25, 26

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

261 U.S. 299 (1923) ....................................................... 40

Seila Law, LLC v. CFPB

140 S. Ct. 2183 (2020) ................................................... 24

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ....................................................... 44

Stroud v. McIntosh,

722 F.3d 1294 (11th Cir. 2013) ............................... 31-32

Tarrant Reg’l Water Dist. v. Gragg,

151 S.W.3d 546 (Tex. 2004) ............................................ 4

Page(s)

Cases (ctd.):

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021) ................................................... 14

Trant v. Oklahoma,

754 F.3d 1158 (10th Cir. 2014) .................................... 31

United States v. Great Falls Mfg. Co.,

112 U.S. 645 (1884) ....................................................... 25

United States v. Hudson,

11 U.S. (7 Cranch) 32 (1812) ........................................ 20

United States v. Mitchell,

463 U.S. 206 (1983) ........................................... 23, 25, 26

United States v. Sherwood,

312 U.S. 584 (1941) ................................................. 19, 25

United States v. Testan,

424 U.S. 392 (1976) ....................................................... 43

Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926) ....................................................... 40

Village of Norwood v. Baker,

172 U.S. 269 (1898) .................................................. 40-41

Webster v. Doe,

486 U.S. 592 (1988) ............................................. 2, 26, 42

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ................................................. I, 5, 30

Williams v. United States,

289 U.S. 553 (1933) ................................................. 10, 18

Williamson Cnty. Reg’l Planning Comm’n

v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985) ....................................................... 39

Page(s)

Cases (ctd.):

Ex parte Young,

209 U.S. 123 (1908) ....................................................... 41

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................................... 8, 28

Constitutional Provisions, Statutes, and Rules:

U.S. Const.:

amend. IV ...................................................................... 27

amend. V.......................... I, 1, 4-15, 17, 20, 22, 24, 26-45

amend. XIV .................I, 1, 2, 4-11, 13, 26, 27, 29, 32, 45

art. I, §8, cl. 1 ................................................................ 18

art. I, §8, cl. 18 ........................................................ 15, 21

art. I, §9, cl. 2 .......................................................... 12, 41

art. I, §9, cl. 7 ................................................................ 18

art. III, §2, cl. 1-2.......................................................... 20

5 U.S.C. §704 ....................................................................... 39

28 U.S.C. §1257 ................................................................... 35

42 U.S.C. §1983 .....................I, 5-8, 11, 29, 32, 36, 37, 39, 40

N.Y. Const. of 1821, art. VII, §7 ....................................... 16

Tex. Const. art. I, §17 .......................................................... 1

Act of Mar. 3, 1887, ch. 359, 24 Stat. 505.......................... 25

An Act for the Relief of Samuel Tibbetts,

ch. 391, 15 Stat. 427 (1868)........................................... 27

An Act for the relief of the corporation of Rhode

Island college, ch. 24, 6 Stat. 40 (1800) ...................... 24

An Act for the relief of John Coles, ch. 7, 6

Stat. 51 (1804) ............................................................... 24

An Act for the relief of Thomas Jenkins

and Company, ch. 20, 6 Stat. 2 (1790) ....................... 24

Page(s)

Constitutional Provisions, Statutes, and Rules (ctd.):

An Act for the relief of William Robinson,

and others, ch. 26, 6 Stat. 146 (1815) ......................... 24

An Act to authorize the making of a Turnpike

Road from Mason’s Causeway, to Alexandria,

ch. 31, 2 Stat. 539 (1809) .............................................. 17

An Act to compensate the corporation of

trustees of the public grammar school and

academy of Wilmington, in the state of

Delaware, for the occupation of, and

damages done to, the said school, during

the late war, ch. 21, 6 Stat. 8 (1792) ........................... 24

Other Authorities:

ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF

LEGAL TEXTS (2012) .................................................... 30

BLACK’S LAW DICTIONARY (11th ed. 2019) ............... 35, 41

Br. for the United States as Amicus Curiae

Supporting Appellee, First English Evangelical

Lutheran Church of Glendale v. Los Angeles

County, 482 U.S. 304 (1986) (No. 85-1199) ................ 37

Charles E. Schamel, Untapped Resources: Private

Claims and Private Legislation in the Records

of the U.S. Congress, PROLOGUE, Spring 1995,

https://www.archives.gov/publications/

prologue/1995/spring/private-claims-1.html ............. 23

Douglas Laycock, How Remedies Became a

Field: A History, 27 REV. LITIG. 161 (2008) ............. 42

THE FEDERALIST (Clinton Rossiter ed., 1961)

No. 58 (James Madison).............................................. 18

No. 81 (Alexander Hamilton) ...................................... 19

XII

Page(s)

Other Authorities (ctd.):

James Madison, Amendments to the Constitution,

June 8, 1789, Founders Online, NAT’L

ARCHIVES, https://founders. archives.gov/

documents/Madison/01-12-02-0126............................. 44

Oral Arg. Tr. 22, First English Evangelical

Lutheran Church of Glendale v. Los Angeles

County, 482 U.S. 304 (No. 85-1199) (1987) ................ 36

T.R. FEHRENBACH, LONE STAR: A HISTORY

OF TEXAS AND THE TEXANS (1968) ............................. 45

WILSON COWEN ET AL., THE UNITED STATES

COURT OF CLAIMS: A HISTORY (1978) .................. 25, 26

Wilson Cowen et al., The United States Court

of Claims, A History, 216 CT. CL. 1 (1978) .......... 22-23

INT RO D U C TIO N

The State of Texas takes property rights extremely

seriously. Indeed, the Texas Constitution goes beyond

the U.S. Constitution by providing that “[n]o person’s

property shall be taken, damaged, or destroyed for or

applied to public use without adequate compensation

being made, unless by the consent of such person.” Tex.

Const. art. I, §17 (emphasis added). Texas courts also

decide takings claims and award full compensation under

both the U.S. Constitution and the more protective

Texas Constitution.

This case therefore is not about property rights.

Instead, it is about the separation of powers. To date,

Congress has not seen fit to create a cause of action to

enforce the Fourteenth Amendment—and by extension

the Takings Clause of the Fifth Amendment—against

the States. That is presumably because the States are

appropriately resolving takings disputes. Tellingly,

Petitioners do not identify any State that refuses to

provide just compensation for a taking.

Nonetheless, although they were free to (and did) sue

Texas under a state cause of action, Petitioners ask the

Court to hold that the U.S. Constitution itself creates a

federal cause of action. Their argument does not

withstand scrutiny. No one disputes that the Fifth

Amendment “did not expressly create a right of action

when it mandated just compensation for Government

takings of private property for public use.” Me. Cmty.

Health Options v. United States, 140 S. Ct. 1308, 1328

n.12 (2020) (cleaned up); see Pet.Br.17. Nor does anyone

dispute that for nearly a century after the founding,

“takings claims against the federal government were

resolved directly by Congress.” Pet.Br.27. It thus defies

constitutional text and history to litigate a federal

(1)

takings claim without a federal takings statute. Indeed,

Justice Scalia lampooned the concept as one that “[n]o

one would suggest.” Webster v. Doe, 486 U.S. 592, 613

(1988) (Scalia, J., dissenting). Similar analysis applies to

the Fourteenth Amendment, which creates no cause of

action and was ratified during the same era in which

takings claims were resolved by Congress rather than

courts. Nothing in its text, structure, or history suggests

that the Fourteenth Amendment deprives States of the

same authority possessed by Congress regarding how to

satisfy their just-compensation duty. To borrow

Petitioners’ phrase (at 8), these points alone should

“begin and end” the Court’s analysis.

Yet Petitioners urge “one last drink,” Alexander v.

Sandoval, 532 U.S. 275, 287 (2001), from the “heady days

in which this Court assumed common-law powers to

create causes of action—decreeing them to be ‘implied’

by the mere existence of a statutory or constitutional

prohibition,” Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

75 (2001) (Scalia, J., concurring). “[I]mplying

constitutional causes of action,” however, “is ‘a

disfavored judicial activity.’” Supp.Pet.App.51a (quoting

Egbert v. Boule, 596 U.S. 482, 491 (2022)). And the Court

should be especially reluctant to create a new cause of

action here. It is one thing for a federal court to recognize

a new federal cause of action against the federal

government. That, at least, represents a single sovereign

governing its own affairs. It is something else entirely

for a federal court to create a federal cause of action

against the States, which are separate sovereigns.

Enforcing the Constitution as written would not leave

aggrieved property owners without recourse. Because

the Takings Clause is self-executing, as soon as a taking

occurs, a State is obligated to provide just compensation.

And, in Texas, property owners can bring state causes of

action. Since 1887, the federal government has largely

satisfied its duty through the Court of Federal Claims.

The key point, however, is that the Constitution

empowers legislatures—both state and federal—to

choose how to provide just compensation, whether

through statutory causes of action, special bills,

executive tribunals, or legislative courts. And because

state courts are courts of general jurisdiction, they often

also can resolve takings claims by enjoining

uncompensated takings or under common-law causes of

action. Petitioners could have pursued—and, in fact, did

pursue—such an alternative avenue to relief.

Applying those principles here, Petitioners are

correct (at 8) that the “question is easy”: Unless and until

Congress creates a federal cause of action for takings

claims against the States, no such federal cause of action

exists. Petitioners may prefer such a cause of action, but

the Constitution does not entitle them to one.

ST ATE ME N T

I. Petitioners’ Consolidated Suits and the District

Court’s Ruling

This case concerns four state-court lawsuits,

involving more than 70 plaintiffs, filed in two Texas

counties along an interstate highway. Because “[t]he gist

of all these lawsuits was the same,” they were “removed

to and consolidated in federal district court.” Pet.Br.1-2.

Removal allowed the cases to proceed in the same forum

(something that could not happen in state court) with a

single, consolidated complaint. JA.1-48. Petitioners did

not object to removal.

According to the operative complaint, Petitioners

own property north of the interstate in Chambers and

Jefferson Counties. Pet.App.4a; JA.7. They allege that

during a hurricane and a subsequent tropical storm, a

concrete barrier that divides traffic between lanes on the

interstate acted as a dam that caused their properties to

flood. JA.8-11, 15.

Claiming that the flooding damaged their real and

personal property, JA.14-16, Petitioners sued the State

of Texas for inverse condemnation under the Fifth

Amendment’s Takings Clause and its counterpart in the

Texas Constitution, JA.3-5. Petitioners also asserted

federal-law claims under both the procedural and

substantive aspects of the Due Process Clause. JA.42-46.

Texas law provides an inverse-condemnation cause of

action. See, e.g., Tarrant Reg’l Water Dist. v. Gragg, 151

S.W.3d 546 (Tex. 2004) (adjudicating such a claim). As

the Fifth Circuit has observed, “the courts of the State

of Texas are open to inverse condemnation damage

claims against state agencies on the basis of the Fifth

Amendment, as applied to the states through the

Fourteenth Amendment, as well as on the basis of the

Texas Constitution and laws.” Gutersloh v. Texas, 25

F.3d 1044, 1994 WL 261047, at *1 (5th Cir. 1994) (per

curiam). Petitioners nevertheless attempted to invoke a

federal cause of action that, in their view, derives from

the Takings Clause itself.

Once the lawsuits were consolidated in the Southern

District of Texas, Texas moved for judgment on the

pleadings as to Petitioners’ Fifth Amendment takings

claims on the ground that Congress has not enacted a

cause of action as applied to the States. ROA.1199-1219.

The district court denied Texas’s motion but allowed an

interlocutory appeal. Pet.App.35a.

II. Texas’s Interlocutory Appeal

A. On appeal to the Fifth Circuit, Texas argued that

Petitioners lack a federal cause of action to sue a State

for compensation under the Fourteenth Amendment

based on an alleged Fifth Amendment taking.

Pet.App.2a. Again, the State did not dispute that the

Texas Supreme Court, which is a common-law court, has

recognized a cause of action to seek compensation for a

taking. Id. (citing, inter alia, City of Baytown v. Schrock,

645 S.W.3d 174, 178 (Tex. 2022)); see Brown v. De La

Cruz, 156 S.W.3d 560, 563 n.14 (Tex. 2004) (recognizing

that it can be “proper” for Texas’s “common-law courts

to create causes of action when federal tribunals should

not”). But Texas explained that “[f]ederal courts, unlike

state courts, are not general common law courts,” City of

Milwaukee v. Illinois, 451 U.S. 304, 312 (1981), and the

U.S. Constitution itself does not create a cause of action

for use in either state or federal court, Tex.Br.23-29.

Texas further explained that Petitioners could not

identify any federal statute authorizing them to sue a

State to enforce the Takings Clause. After all, unlike

local governments, States are not “persons” within the

meaning of 42 U.S.C. §1983—regardless of whether the

claim is pursued in state or federal court. Will, 491 U.S.

at 71; accord Haywood v. Drown, 556 U.S. 729, 735 (2009)

(requiring state courts to adjudicate §1983 claims on

equal terms). The question thus was whether, despite the

absence of a federal statutory cause of action, Petitioners

could pursue an implied federal constitutional cause of

action. Texas argued that that under foundational

separation-of-powers principles, the answer to that

question must be no.

B. The Fifth Circuit agreed with Texas that no such

implied constitutional cause of action exists, holding 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.” Pet.App.2a. The Fifth Circuit cited Hernandez v.

Mesa for the proposition that “a federal court’s authority

to recognize a damages remedy must rest at bottom on a

statute enacted by Congress.” 140 S. Ct. 735, 742 (2020).

It also noted that, even before Hernandez, the Ninth

Circuit had held that “a takings plaintiff has ‘no cause of

action directly under the United States Constitution.’”

Pet.App.2a (quoting Azul-Pacifico, Inc. v. City of Los

Angeles, 973 F.2d 704, 705 (9th Cir. 1992)). 1

C. The Fifth Circuit later denied rehearing en banc.

Supp.Pet.App.43a. Concurring in that denial, Judge

Higginbotham, who had been on the panel, explained

that because neither the Takings Clause nor §1983

provides a right of action in federal court for a takings

claim against a State, “[t]he pathway for enforcement in

takings by the state is ... through the state courts to the

Supreme Court.” Id. at 44a. He further explained that

“[t]he Supreme Court of Texas recognizes takings claims

under the federal and state constitutions,” thus

“fulfilling the State’s obligations under the Takings

Clause for takings by the [S]tate.” Id. at 44a, 45a; see also

id. at 49a (noting that Texas has allowed such claims for

more than a century). Judge Higginbotham also noted

recognizing an implied cause of action for alleged takings

“would reflect a distrust of the state courts” even though

state judges, who “deal[] with state property interests on

The Fifth Circuit initially concluded that the absence of a cause

of action under §1983 deprived the court of jurisdiction.

Supp.Pet.App.69a. As Texas explained at the rehearing stage, the

absence of a cause of action is a merits issue, not a jurisdictional

issue. The Fifth Circuit agreed. Pet.App.2a. Petitioners’ federal

takings claims were thus dismissed on the merits, but their state

takings claims and their federal Due Process Clause claims remain

pending in district court.

a daily basis,” “take the same oath to faithfully apply the

law as do federal judges.” Id. at 48a.

Judge Higginbotham further explained that the term

“self-executing,” as used, for example, in Knick v.

Township of Scott, 139 S. Ct. 2162, 2172 (2019), “speaks

only to the completeness of the claim itself”—that is,

“the point at which a takings claim is ready for a court.”

Supp.Pet.App.46a. The term thus signifies nothing about

which forum should hear a takings claim or whether the

Takings Clause creates a federal cause of action. Rather,

whether there should be a federal cause of action to

enforce the Takings Clause is a question that the

Constitution deliberately leaves to “Congress,” which

“wrote §1983” but declined to allow suits against the

States. Id. at 50a.

Judge Higginson, another panel member, also wrote

separately to further explain why the federal judiciary

has no authority to recognize “an implied cause of action

in the Fifth and Fourteenth Amendments for [takings]

claims.” Id. at 51a. He noted that just “[t]hree terms

ago,” every Justice of this Court “agreed that ‘the

Constitution did not expressly create a right of action

when it mandated just compensation for Government

takings of private property for public use.’” Id. (quoting

Me. Cmty. Health Options, 140 S. Ct. at 1328 n.12).

Because “a cause of action against the federal

government is not express in the Fifth Amendment,”

Judge Higginson reasoned that “if such a cause of action

exists, it must be ‘judicially created.’” Id. at 53a (quoting

Egbert, 596 U.S. at 491). Yet even assuming the existence

of an implied cause of action for takings claims against

the federal government, it would not follow that such a

judicially created cause of action should “be coextensive

with a substantive constitutional right,” let alone

“incorporated” against the States “through the

Fourteenth Amendment.” Id. at 54a. If judicially created

causes of action were incorporated alongside substantive

constitutional rights, there is no reason why claims

under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), would not also

be incorporated against the States—a proposition no one

defends. Supp.Pet.App.54a.

In rejecting Petitioners’ request for a judicially

created cause of action, Judge Higginson also reiterated

that “implying constitutional causes of action is ‘a

disfavored judicial activity’” that courts should not

undertake “if ‘there is any reason to think that Congress

might be better equipped to create a damages remedy.’”

Id. at 51a (quoting Egbert, 596 U.S. at 491). Applying that

standard, Judge Higginson explained that “by implying

a cause of action against the states in the Takings Clause

of the Fifth Amendment as incorporated by the Due

Process Clause of the Fourteenth Amendment,” the

federal judiciary would “arrogate legislative power.” Id.

at 56a (quoting Egbert, 596 U.S. at 492). And he identified

four distinct reasons to defer to Congress. First, “[a]n

alternative remedial structure already exists in state

inverse-condemnation law.” Id. (citing Ziglar v. Abbasi,

582 U.S. 120, 137 (2017)). Second, in §1983, “Congress

decided to provide a damages remedy for takings claims

against municipalities and certain local government

units, but not states.” Id. (citations omitted).

Third, “[i]mplying a judicial remedy against states

implicates federalism, and the elected legislative branch

is better equipped to balance federal and state interests

in this area” than the judiciary. Id. at 56a-57a. And

fourth, it is hard to “‘predict the systemwide

consequences of recognizing a cause of action’ under the

Fifth and Fourteenth Amendments for takings claims

against states.” Id. at 57a (quoting Egbert, 596 U.S. at

493).

Judge Higginson also responded to Judge Oldham’s

dissent from denial of rehearing, criticizing its reliance

on inapplicable cases. Id. at 57a-60a. He further

explained that the dissent’s primary cases—First

English Evangelical Lutheran Church of Glendale v.

Los Angeles County, 482 U.S. 304 (1987), and Knick—

did not resolve whether the Constitution creates a cause

of action to enforce the Takings Clause or displace the

familiar rule that federal courts do not have a free hand

to create causes of action. Supp.Pet.App.60a-63a.

D. Because it concluded that Petitioners failed to

state a claim under the non-existent federal cause of

action that Petitioners purported to locate in the Takings

Clause itself, the Fifth Circuit had no occasion to resolve

Texas’s argument that the State is entitled to sovereign

immunity with respect to any liability for such a nonexistent cause of action. Texas.Br.7-13. Nor did the Fifth

Circuit address Texas’s argument that, even assuming

an implied cause of action exists, many of Petitioners’

claims would be time barred. Id. at 19-21. No court has

yet resolved Petitioners’ takings claims under any cause

of action provided by Texas law.

SU M MA RY O F A RGU ME NT

Petitioners misstate the issue before the Court. The

decision under review did not “render[] the Takings

Clause a ‘dead letter’ throughout the Fifth Circuit.”

Pet.Br.7. And this is not a case about whether the

“People” should have “bothered to ratify the federal

Takings Clause in the first place.” Id. at 44. Neither

Texas nor the Fifth Circuit has ever disputed

Petitioners’ entitlement to just compensation if their

property has been taken, an issue yet to be litigated.

Instead, this case is about something more prosaic,

but no less important: Who decides how the sovereign

will

fulfill

its

just-compensation

obligation?

Constitutional text, structure, and history all answer

that question the same way: the legislature.

I. The Takings Clause does not create a federal

cause of action to sue the States—either by its terms or

read in the broader context of the Constitution. Instead,

the Constitution gives Congress both the responsibility

and authority to “examine and determine claims for

money against the United States.” Williams v. United

States, 289 U.S. 553, 569 (1933). Recognizing a cause of

action not expressly provided under the Fifth

Amendment would nullify Congress’s exclusive power to

appropriate funds from the federal treasury and to pay

the nation’s debts. Moreover, until 1887 (if not later),

claims for just compensation were resolved by Congress

through private bills—not by litigation. It is implausible

that the Constitution created a cause of action that no

one noticed or used. Even today, the federal government

still generally does not provide compensation through

ordinary litigation in Article III courts, but rather

through the Court of Federal Claims, a specialized

legislative court created pursuant to Congress’s power

of the purse.

Nor does the Fourteenth Amendment change the

analysis. This Court follows the “well-established rule

that incorporated Bill of Rights protections apply

identically to the States and the Federal Government.”

McDonald v. City of Chicago, 561 U.S. 742, 766 n.14

(2010). The Fourteenth Amendment says nothing about

any cause of action, and—critically—was ratified during

the same period in which Congress itself resolved

takings claims through private bills. Nothing in the

Fourteenth Amendment suggests that the Constitution

treats the States less favorably than the federal

government with respect to how they may satisfy their

just-compensation obligations. And for the reasons

Judge Higginson identified, even if the Court were to

determine that judge-made doctrine demands an implied

cause of action under the Fifth Amendment, it would not

follow that such an implied cause of action would travel

with the Takings Clause via incorporation through the

Fourteenth Amendment. No one argues, for example,

that Bivens has been incorporated against the States.

At the same time, Petitioners’ theory runs headlong

into the Court’s Bivens cases. It is no secret that the

Court is reluctant to recognize implied causes of action.

But whatever one thinks of Bivens, the separation-ofpowers implications here are more severe: Bivens

involved a federal court recognizing a federal cause of

action against federal officials. Petitioners ask the Court

to create a federal cause of action against the States

themselves, which are separate sovereigns. Likewise, by

authorizing a cause of action under §1983 against local

governments but not the States, Congress signaled that

it does not want such a cause of action, presumably

because the States already provide just compensation.

The consequences of Petitioners’ theory, moreover, are

far-reaching. Not only would accepting it needlessly

disrespect state-court judges and legislators, but it

would also require the Court to engage in even more

judicial lawmaking down the road with respect to

adjacent questions, such as how this new constitutional

cause of action interacts with sovereign immunity—state

and federal—and what affirmative defenses apply.

II. Petitioners’ counterarguments are unpersuasive.

They regularly conflate the substance of the justcompensation right—which no one disputes—with the

procedural mechanisms used to vindicate those rights.

Their main thrust, for example, is that this Court says

the Takings Clause is “self-executing.” First English,

482 U.S. at 315. No one disagrees. But that statement

means only that the just-compensation requirement

imposes an obligation on the government without need

for further legislative action. It does not, as Petitioners

insist, deprive a legislature of its prerogative to select

the method for meeting the government’s obligation. Not

only is that clear from the context in which First English

used the phrase, but it is the only understanding that

comports with what the Takings Clause says and how it

has been applied since 1791. Petitioners’ suggestion that

Texas is asking the Court to overrule First English is

therefore inaccurate.

Petitioners’ contrary interpretation of the

Constitution’s text and history, moreover, elides the

fundamental distinction between substantive law and

judicial remedy. The Takings Clause creates a

substantive choice: The government must either allow

private parties to keep their property or pay them just

compensation, including for any temporary taking. The

Takings Clause does not, however, prevent legislatures

from choosing the method by which to provide just

compensation. It certainly does not bar them from

selecting long-understood methods such as state causes

of action, specialized tribunals, or private bills. And the

other constitutional provision to which Petitioners refer,

the Suspension Clause, identifies the well-established

writ of habeas corpus, which the ratifying generation

would have understood as a judicial mechanism—unlike

the Takings Clause, which the founders did not

understand to necessitate a judicial remedy.

Petitioners’ policy arguments also fail. Holding that

the Takings Clause does not create a cause of action

would not nullify its substantive guarantee. And if

someday a State were to stop paying just compensation,

Congress could respond. Moreover, causes of action

emanating from the common law or equity have been

used throughout the nation’s history to vindicate the

Takings Clause and remain available today, including in

Texas. Simply put, Petitioners may wish to litigate under

the Takings Clause rather than through the state causes

of action that Texas provides, but the Constitution does

not permit (let alone require) this Court to fashion a

federal cause of action that Congress has not enacted.

ARGU ME N T

I. The Takings Clause Does Not Create Its Own

Cause of Action.

The question before the Court is straightforward:

Does the Takings Clause, of its own force, create a

federal cause of action to pursue monetary compensation

in court? The answer is no. Nothing in the Constitution’s

text, structure, or history supports such a cause of

action. In fact, Petitioners concede that for nearly a

century after the founding, no one could seek

compensation in court in connection with the Fifth

Amendment’s Takings Clause, and that the United

States—the sole original target of the clause, see Barron

v. Baltimore, 32 U.S. (7 Pet.) 243, 250-51 (1833)—instead

provided just compensation through private bills. That

concession should be the end of this appeal because

nothing in the Fourteenth Amendment suggests that the

States have fewer options than Congress regarding how

to satisfy their constitutional duty to provide just

compensation.

Instead, under familiar separation-of-powers

principles, Congress decides whether to create federal

causes of action. That rule applies with special force

where, as here, the cause of action would apply against

the States. Congress, however, has declined to create

such a cause of action, no doubt because the States are

providing just compensation. Furthermore, if the Court

were to fashion a new federal cause of action, the need

for judicial creativity would not end with this case. None

of this proposed judicial lawmaking is consistent with—

much less compelled by—the Constitution.

A. The Takings Clause’s Text Does Not Create a

Cause of Action.

The “[s]eparation of powers”—both horizontal and

vertical—“was not simply an abstract generalization in

the minds of the Framers: it was woven into the

document that they drafted in Philadelphia in the

summer of 1787.” TransUnion LLC v. Ramirez, 141

S. Ct. 2190, 2203 (2021) (quoting INS v. Chadha, 462 U.S.

919, 946 (1983)). Because the requirement to respect the

Constitution’s division of authority applies to courts

every bit as much as to the political branches, this Court

“start[s] with the text of the Constitution” when

determining what claims courts can resolve. Id.

The Takings Clause states in full: “nor shall private

property be taken for public use, without just

compensation.” U.S. Const. amend. V. This language

unambiguously prohibits the federal government from

taking private property for public use without providing

“just compensation.” But that is all it says. Nothing in

the Clause tells the federal government how it must go

about providing that just compensation. The Takings

Clause speaks neither to lawsuits nor to the forum in

which any such lawsuits may be brought. It also says

nothing about private bills, specialized commissions, or

legislative courts. Instead, on its face, the Takings

Clause merely creates a constitutional duty to pay just

compensation should private property be taken for

public use.

Accordingly, as Judge Higginson noted, the Court

has recognized that “the Constitution did not expressly

create a right of action when it mandated just

compensation for Government takings of private

property for public use.” Supp.Pet.App.51a (quoting Me.

Cmty. Health Options, 140 S. Ct. at 1328 n.12 (cleaned

up)). Even Petitioners acknowledge (at 17) that “[t]he

Takings Clause does not explicitly say that property

owners can file lawsuits.”

Because the Takings Clause does not direct how the

federal government must satisfy its duty to provide just

compensation, Congress gets to decide. A duty to

provide just compensation carries with it, of course, the

power to do so, and the Necessary and Proper Clause

empowers Congress “[t]o make all Laws which shall be

necessary and proper for carrying into Execution ... all

... Powers vested by this Constitution in the Government

of the United States.” U.S. Const. art. I, §8, cl. 18.

Congress thus can choose to satisfy the Takings Clause’s

just-compensation requirement by creating a federal

cause of action—as Petitioners would prefer. But

Congress can equally choose to use private bills,

specialized tribunals, executive action, or other

appropriate means.

This plain-text reading, moreover, is not a new one—

it’s what the words have always been understood to

mean. As a court explained with respect to the New York

Constitution of 1821, which used the same language as

the U.S. Constitution’s Takings Clause, see N.Y. Const.

of 1821, art. VII, §7:

The mode of ascertaining damages by commission

has been adopted by the legislature in a great

variety of cases; and I can see nothing in the

provisions of the constitution which render such a

course exceptionable. It was well known to the

framers of the new constitution that such had

been the practice in relation to the assessment of

damages for private property taken for the Erie

and Champlain Canals, and for a great number of

turnpike roads, as well as for other public uses.

When, therefore, the constitution provided that

private property should not be taken for public

uses without just compensation, and without

prescribing any mode in which the amount of

compensation should be ascertained, it is fairly to

be presumed the framers of that instrument

intended to leave that subject to be regulated by

law, as it had been before that time; or in such

other manner as the legislature, in their

discretion, might deem best calculated to carry

into effect the constitutional provision, according

to its spirit and intent.

Beekman v. Saratoga & Schenectady R.R., 3 Paige Ch.

45, 75 (N.Y. Ch. 1831). Put another way, where a

constitution “direct[s] that private property should not

be taken for public use without just compensation[,] but

sa[ys] nothing as to the manner in which such

compensation should be ascertained,” it follows that the

ratifiers “intended to leave that subject to the discretion

of the legislature, to be regulated in such manner as

might be prescribed by law.” Livingston v. Mayor of

N.Y., 8 Wend. 85, 102 (N.Y. Ch. 1831).

And contrary to Petitioners’ thesis, there were other

well-understood methods to compensate for a taking.

For example, in Custiss v. Georgetown & Alexandria

Turnpike Co., 10 U.S. (6 Cranch) 233 (1810), the Court

addressed a non-judicial inquisition of 24 jurors to assess

the compensation owed to owners whose property was

taken for “the making of a turnpike road.” An Act to

authorize the making of a Turnpike Road from Mason’s

Causeway, to Alexandria, ch. 31, 2 Stat. 539 (1809). Chief

Justice Marshall refused to interfere with the process

required by the statute because “[t]he law asks not the

intervention of the court, and requires no exercise of

judicial functions.” Custiss, 6 Cranch at 237.

The Constitution’s text thus speaks for itself. The

Takings Clause creates a duty of just compensation but

is silent about how Congress must satisfy that duty. And

it says nothing at all about any constitutional cause of

action. Because the “text of [this] constitutional

provision is not ambiguous,” the Court should not

“search for its meaning beyond the instrument.” Lake

County v. Rollins, 130 U.S. 662, 670 (1889).

B. The Constitution’s Structure Is Incompatible

with an Implied Takings Cause of Action.

Nor does a structural reading of the Constitution

support an implied takings cause of action. Rather, such

a reading underscores that Congress enjoys a range of

options to meet its duty to provide just compensation.

1. To begin, the Takings Clause is not the only

provision in the Constitution that concerns money.

At the founding, the power to take and spend the

People’s money was considered one of the most potent

(and fraught) governmental powers. As James Madison

explained, the “power over the purse” would allow the

government to provide “a redress of every grievance”

and was “the most complete and effectual weapon with

which any constitution can arm” an official. THE

FEDERALIST No. 58, at 357 (James Madison) (Clinton

Rossiter ed., 1961). Accordingly, because the legislative

branch is closest to the People, the Constitution provides

that “[n]o money shall be drawn from the Treasury, but

in Consequence of Appropriations made by Law,” U.S.

Const. art. I, §9, cl. 7; and that Congress “shall have

Power To lay and collect Taxes, Duties, Imposts and

Excises [and] to pay the Debts,” id. §8, cl. 1.

It is highly relevant that Congress alone can draw

money from the treasury, even to pay the nation’s debts.

When the government takes property, the Constitution

imposes a debt—the government must pay just

compensation. Yet Congress still must legislate to pay

that debt. Because other officials could be too stingy or

generous with public funds, the Constitution allows

Congress, if it “thinks proper,” to “retain for itself” the

prerogative to pay just compensation. Williams, 289

U.S. at 580. And this Court’s cases reaffirm that the

framers “provide[d] an explicit rule of decision,” namely

that “[m]oney may be paid out only through an

appropriation made by law,” Off. of Pers. Mgmt. v.

Richmond, 496 U.S. 414, 424 (1990), and no money can

be paid that is not “authorized by a statute,” id.; see also

Cincinnati Soap Co. v. United States, 301 U.S. 308, 321

(1937) (“[N]o money can be paid out of the Treasury

unless it has been appropriated by an act of Congress.”);

Reeside v. Walker, 52 U.S. (11 How.) 272, 291 (1850) (“It

is a well-known constitutional provision, that no money

can be taken or drawn from the Treasury except under

an appropriation by Congress.”).

The Constitution thus precludes courts from

granting “a money remedy that Congress has not

authorized,” because “[a]ny exercise of a power granted

by the Constitution to one of the other branches of

Government is limited by a valid reservation of

congressional control over funds in the Treasury.”

Richmond, 496 U.S. at 425-26. This bedrock principle

holds true even when detrimental to private litigants. Id.

at 429. Indeed, the Court has held that the judiciary

cannot provide compensation even for a taking where

Congress made “no provision by any general law for

ascertaining and paying this just compensation.”

Langford v. United States, 101 U.S. 341, 343 (1879).

The federal government has also enjoyed sovereign

immunity from the founding. See, e.g., United States v.

Sherwood, 312 U.S. 584, 586 (1941); THE FEDERALIST

No. 81, supra, at 487 (Alexander Hamilton). As this

Court has recognized, such immunity extends to takings.

See, e.g., Lynch v. United States, 292 U.S. 571, 579-82

(1934); Schillinger v. United States, 155 U.S. 163, 169-72

(1894). After all, the “prohibition of the taking of private

property for public use without compensation is no more

sacred than that other constitutional provision that no

person shall be deprived of life, liberty, or property

without due process of law,” and to which sovereign

immunity indisputably applies. Schillinger, 155 U.S. at

168. Congress, of course, can waive immunity, but that

power—like the immunity itself—serves to guarantee

Congress’s control of the federal purse.

None of these features of our Constitution is

compatible with an implied cause of action under the

Takings Clause. Instead, each underscores what the text

of the Fifth Amendment provides: When the federal

government takes property, it has a duty to pay just

compensation, but the means by which it does so is a

policy question for Congress to decide. Congress’s power

over the purse thus confirms that the Takings Clause

does not constitutionalize a private cause of action.

2. Two other constitutional elements confirm that

the Takings Clause does not create its own cause of

action.

First, Article III gives Congress discretion to create

lower federal courts, which “includes its lesser power to

‘limit the jurisdiction of those Courts.’” Patchak v.

Zinke, 583 U.S. 244, 252 (2018) (plurality op.) (quoting

United States v. Hudson, 11 U.S. (7 Cranch) 32, 33

(1812)). This Court also has original jurisdiction over

“Cases affecting Ambassadors, other public Ministers

and Consuls, and those in which a State shall be Party”—

but not “controversies to which the United States shall

be a party.” U.S. Const. art. III, §2, cl. 1-2. That omission

is significant because until 1897, the Takings Clause was

understood to apply only against the federal

government. See generally Chi., B. & Q.R. Co. v. City of

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

Accordingly, unless Congress created federal courts

and authorized them to act, there would be no federal

forum in which a Takings Clause claim could be pursued.

That casts considerable doubt on Petitioners’ theory that

the Fifth Amendment has always included an implied

cause of action for just compensation. Nor would those

who ratified the Takings Clause have anticipated suits

against the United States for just compensation

proceeding in state court; then, as now, no sovereign

lightly subjects itself to suit in another sovereign’s

courts. See, e.g., Franchise Tax Bd. of Cal. v. Hyatt, 139

S. Ct. 1485, 1493-95 (2019) (explaining that the founders

“took” this principle “as given”).

Second, upon ratification, the Supremacy Clause left

the States powerless to enact laws in conflict with “the

operations of the constitutional laws enacted by

Congress,” and a state law that does so is “void.”

M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436

(1819); cf. Collins v. Yellen, 141 S. Ct. 1761, 1788-89

(2021) (“[T]he Constitution automatically displaces any

conflicting statutory provision from the moment of the

provision’s enactment.”); Barr v. Am. Ass’n of Pol.

Consultants, Inc., 140 S. Ct. 2335, 2353 (2020) (plurality

op.) (explaining that “an unconstitutional statutory

amendment ‘is a nullity’ and ‘void’ when enacted”). The

Supremacy Clause is thus self-executing; any violation of

it by itself voids state law without need for any further

action by Congress.

That is a separate question, however, from whether

the Supremacy Clause can be enforced in court when

Congress has not authorized private litigation. This

Court has held that the Supremacy Clause, of its own

force, does not create a cause of action against the States.

See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.

320, 326 (2015). “If the Supremacy Clause includes a

private right of action,” the Court explained, “then the

Constitution requires Congress to permit the

enforcement of its laws by private actors, significantly

curtailing its ability to guide the implementation of

federal law.” Id. at 325-26. Because the Necessary and

Proper Clause grants Congress “broad discretion with

regard to the enactment of laws,” and nothing in the

Supremacy Clause deprives Congress of its prerogative

to decide how federal law should be enforced, Congress

may choose “the means by which the powers [the

Constitution] confers are to be carried into execution.”

Id. (quoting M‘Culloch, 4 Wheat. at 421). So too with the

Takings Clause.

C. Historical Practice Confirms that the Takings

Clause Does Not Create a Cause of Action.

If the Constitution’s language and structure left any

doubt that the Takings Clause does not create a cause of

action, history would eliminate it. “A page of history,” of

course, “is worth a volume of logic.” N.Y. Trust Co. v.

Eisner, 256 U.S. 345, 349 (1921). Here, both logic and

volumes of history confirm that Congress may decide

how to satisfy its duty to pay just compensation.

1. Petitioners concede (at 27) that “early takings

claims against the federal government” were not the

subject of litigation at all but rather “were resolved

directly by Congress,” and that there “are few early

federal cases about the Takings Clause because there

was no general federal question jurisdiction until 1875

and no Tucker Act jurisdiction until 1887.” That

concession sinks their entire argument. Given the

significance of property rights in the founding period, if

the Fifth Amendment, ratified in 1791, created a cause of

action, it would not have taken nearly a century for

anyone to make use of it.

Until it enacted the Tucker Act in 1887, Congress

either delegated authority to resolve takings claims to

the Treasury Department or individually resolved claims

for just compensation through private bills. As the Court

has documented, “Congress’ early practice was to

adjudicate each individual money claim against the

United States, on the ground that the Appropriations

Clause forbade even a delegation of individual

adjudicatory functions where payment of funds from the

Treasury was involved.” Richmond, 496 U.S. at 430

(citing Wilson Cowen et al., The United States Court of

Claims, A History, 216 CT. CL. 1, 5 (1978)). Indeed,

“[b]efore 1855 no general statute gave the consent of the

United States to suit on claims for money damages.”

United States v. Mitchell, 463 U.S. 206, 212 (1983). This

meant that “a citizen’s only means of obtaining

recompense from the Government was by requesting

individually tailored waivers of sovereign immunity,

through private Acts of Congress.” Lib. of Cong. v. Shaw,

478 U.S. 310, 316 n.3 (1986).

Providing just compensation through private bills

was no small undertaking. Private bills “account[ed] for

over one-sixth of all the unpublished records of the

House of Representatives of the first seventy-nine

Congresses,” and “[m]ore than 500,000 private claims

were brought before Congress between 1789 and 1909.”

Charles E. Schamel, Untapped Resources: Private

Claims and Private Legislation in the Records of the

U.S. Congress, PROLOGUE, Spring 1995, https://

www.archives.gov/publications/prologue/1995/spring/

private-claims-1.html. Indeed, from “1789 to 1813,

private legislation accounted for 24 percent of the laws

enacted,” and in “ten Congresses, private legislation

accounted for over 75 percent of all legislation passed.”

Id. Congress initially addressed this volume by

delegating to the Treasury Department the power to

investigate claims. Id. But even then, when the

Department “rejected a claim, the claimant’s only

recourse was to appeal directly to Congress.” Id. As a

result, for nearly a century, both the House of

Representatives and the Senate each had an entire

standing committee dedicated to “Private Land Claims.”

Id. Litigation had nothing to do with it.

Numerous framers of the Constitution, moreover,

participated in the enactment of such private bills. For

example, before the Takings Clause was even ratified,

the First Congress enacted a bill compensating a

company whose goods were destroyed when a brig

caught fire. An Act for the relief of Thomas Jenkins and

Company, ch. 20, 6 Stat. 2 (1790). Shortly after

ratification, Congress passed a bill compensating the

trustees of a grammar school for “the use and occupation

of the said school, and the damages done to the same by

the troops of the United States, during the late war,”

with the amount of “compensation [to] be ascertained by

the accounting officers of the treasury.” An Act to

compensate the corporation of trustees of the public

grammar school and academy of Wilmington, in the

state of Delaware, for the occupation of, and damages

done to, the said school, during the late war, ch. 21, 6

Stat. 8 (1792). Congress passed a similar bill during the

Adams Administration, this time to provide

compensation to what would become Brown University.

An Act for the relief of the corporation of Rhode Island

college, ch. 24, 6 Stat. 40 (1800). During the Jefferson

Administration, Congress paid compensation for the loss

of the use of a ship. An Act for the relief of John Coles,

ch. 7, 6 Stat. 51 (1804). And during the Madison

Administration, Congress compensated a group of

property owners for “damages done to their property by

a detachment of troops of the United States, under an

order from the war department.” An Act for the relief of

William Robinson, and others, ch. 26, 6 Stat. 146 (1815).

The views of the First Congress are not lightly

brushed aside. See, e.g., Seila Law, LLC v. CFPB, 140

S. Ct. 2183, 2198 (2020). Here, however, it was not just

the First Congress that recognized the propriety of

using private bills to provide just compensation. It was

every Congress for generations. Neither Petitioners nor

the dissenting judges below explain why it makes sense

for Congress to have spent countless hours resolving

alleged takings—often leaving property owners

unsatisfied but lacking any further recourse—if a cause

of action already existed. See 2 WILSON COWEN ET AL.,

THE UNITED STATES COURT OF CLAIMS: A HISTORY 45

(1978). In assessing Petitioners’ theory, the Court should

not ignore “common sense” or forget the lesson taught

by “Sir Arthur Conan Doyle’s ‘dog that didn’t bark.’”

Church of Scientology of Cal. v. IRS, 484 U.S. 9, 17-18

(1987).

2. In fact, it was not until Congress’s enactment of

the Tucker Act in 1887—almost a full century after the

founding—that Congress waived sovereign immunity

for, and allowed the Court of Claims to hear, cases

“founded upon the Constitution.” Act of Mar. 3, 1887, ch.

359, 24 Stat. 505. As the “business of the Federal

Legislature” grew, congressional resolution of requests

for private bills became impractical. Richmond, 496 U.S.

at 430. “Congress [thus] created the Court of [Federal]

Claims” in 1855, Mitchell, 463 U.S. at 212-13—“not from

the Judiciary Article of the Constitution, article 3, but

from the Congressional power ‘to pay the debts … of the

United States’, article 1, §8,” Sherwood, 312 U.S. at 587.

Even then, Congress did not give the Court of Claims

authority to address takings until the enactment of the

Tucker Act in 1887. 2 It instead required “property

Notably, the Tucker Act was not initially understood to

provide jurisdiction for every claim under the Takings Clause;

rather, the Court determined that “some element of contractual

liability must lie in the foundation of every [Tucker Act] action.”

Schillinger, 155 U.S. at 167. In other words, a “claimant’s cause of

action” had to “arise out of [an] implied contract,” not the

Constitution. United States v. Great Falls Mfg. Co., 112 U.S. 645,

656-57 (1884); see also Hooe v. United States, 218 U.S. 322, 335

owners” to continue petitioning “for private relief,” for

which “Congress was neither compelled to act, nor to act

favorably.” COWEN, supra, at 45. Congress’s refusal to

place takings claims in the Court of Claims prompted

this Court to lament “that Congress has made no

provision by any general law for ascertaining and paying

… just compensation.” Langford, 101 U.S. at 343. Yet

Congress’s determination was respected, and it was free

to “prescribe[] in what tribunal or by what agents the

taking and the ascertainment of the just compensation

should be accomplished.” Kohl v. United States, 91 U.S.

367, 375 (1875).

Mindful of this history, Justice Scalia observed that

“[n]o one would suggest that, if Congress had not passed

the Tucker Act, the courts would be able to order

disbursements from the Treasury to pay for property

taken under lawful authority (and subsequently

destroyed) without just compensation.” Webster, 486

U.S. at 613 (Scalia, J., dissenting) (citing, inter alia,

Schillinger, 155 U.S. at 166-169). The majority did not

disagree, and Petitioners advance no reason why this

Court should do so now.

D. The Fourteenth Amendment Also Does Not

Create a Cause of Action for Takings.

Nothing about the Fourteenth Amendment, which

extended the Takings Clause to the States in 1868,

requires a different conclusion. To start, the

presumption, which the text nowhere rebuts, is that

because there was no cause of action against the federal

government, no cause of action lies against the States.

(1910). Today, the Court recognizes that the Tucker Act provides

jurisdiction for many monetary claims against the government.

Mitchell, 463 U.S. at 212, 216.

This flows from the “well-established rule that

incorporated Bill of Rights protections apply identically

to the States and the Federal Government.” McDonald,

561 U.S. at 766 n.14. At the time of the Fourteenth

Amendment’s ratification—and almost twenty years

thereafter—takings claims continued to be resolved not

by litigation but by private legislation. Indeed, the same

Congress that ratified the Fourteenth Amendment

continued to enact private bills. See, e.g., An Act for the

Relief of Samuel Tibbetts, ch. 391, 15 Stat. 427 (1868).

In fact, not only does the Fourteenth Amendment not

support Petitioners’ theory, it further undercuts it.

Rather than creating a cause of action, §5 of the

Fourteenth Amendment empowers Congress to create

remedies against the States for constitutional violations,

Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976), including,

where appropriate, to “authorize private individuals to

recover money damages against the States,” Bd. of Tr. of

Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001). That §5

is conditional—Congress may subject the States to suit

but doesn’t have to—confirms that the Fourteenth

Amendment neither creates nor incorporates a federal

cause of action for use against the States.

Likewise, as Judge Higginson explained, even were

this Court to conclude that an implied cause of action

should be created to implement the Fifth Amendment as

a matter of judge-made doctrine, it would not follow that

such a cause of action would travel with the Takings

Clause itself through incorporation. Supp.Pet.App.54a.

If the contrary were true, Bivens would be incorporated

against the States in connection with the Fourth

Amendment—a prospect that Petitioners do not

mention, much less defend.

E. Separation-of-Powers Principles Bar Judicial

Creation of a Takings Cause of Action.

Because the Takings Clause does not itself create a

cause of action, much less one enforceable against the

States, the only remaining question is whether the Court

should recognize one anyway. It should not.

1. For more than 40 years, the Court has refused to

create any new constitutional damages claims, labeling

that a “‘disfavored’ judicial activity,” Hernandez, 140

S. Ct. at 742 (quoting Abbasi, 582 U.S. at 135)—no

matter how sympathetic the facts involved or the policy

arguments advanced, id. at 743. Indeed, the Court has

“gone so far as to observe that if ‘the Court’s three

Bivens cases [had] been … decided today,’ it is doubtful

that [the Court] would have reached the same result.” Id.

at 742-43 (first alteration in original) (quoting Abbasi,

582 U.S. at 134). This is so because courts lack “authority

to recognize any causes of action not expressly created

by Congress.” Id. at 742. In short, the Court has “sworn

off the habit of venturing beyond Congress’s intent” and

has repeatedly and firmly rejected any “invitation to

have one last drink” from that well. Sandoval, 532 U.S.

at 287.

2. Consistent with the Court’s reluctance to

recognize causes of action that Congress has not enacted,

courts should “not recognize an implied constitutional

cause of action if ‘there is any reason to think that

Congress might be better equipped to create a damages

remedy.’” Supp.Pet.App.56a (quoting Egbert, 142 S. Ct.

at 1803). Here, Judge Higginson recognized at least

“four warning signs” that the judiciary “would ‘arrogate

legislative power’ by implying a cause of action against

the states in the Takings Clause of the Fifth Amendment

as incorporated by the Due Process Clause of the

Fourteenth Amendment.” Id.

First, “[a]n alternative remedial structure already

exists in state inverse-condemnation law.” Id. For

example, Texas litigants have long pursued takings

claims—including to enforce the Takings Clause—via

state causes of action. 3 Texas, moreover, is not an outlier

in this regard; every State allows such litigation, either

directly or through mandamus. Supp.Pet.App.49a.

Petitioners do not identify a single State that refuses to

provide just compensation. At most, they point (at 44) to

Louisiana, which—following the pattern used by the

United States for 100 years—apparently still uses

private bills. See, e.g., Ariyan, Inc. v. Sewerage & Water

Bd. of New Orleans, 29 F.4th 226, 228 (5th Cir. 2022)

(“[T]he [Louisiana] Legislature or the political

subdivision must make a specific appropriation in order

to satisfy the judgment.”). If Congress is unhappy with

this state of affairs, it has not said so. Per Occam’s razor,

the States are providing just compensation.

Second, Congress has created a cause of action to

enforce the Takings Clause against local governments,

but not the States. The negative-implication canon thus

applies. See, e.g., Jennings v. Rodriguez, 538 U.S. 281,

300 (2018) (stating that “[t]he expression of one thing

implies the exclusion of others (expressio unius est

Some amici—but not Petitioners—argue that the Fifth Circuit

has created a “Catch-22” by allowing States to remove takings

claims to federal court only for federal courts to dismiss them with

prejudice for lack of a cause of action. If this case had proceeded in

state court, there would still be a merits question of whether a cause

of action exists—under §1983 or otherwise. Cf. Haywood, 556 U.S.

at 735. Jurisdiction is, however, a separate question than whether

Petitioners pleaded a plausible federal claim.

exclusio alterius)” (quoting ANTONIN SCALIA & BRYAN

A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 107 (2012)). Furthermore, the Court has

held that takings claims are governed by the same

“general rule[s]” as “any other claim grounded in the Bill

of Rights.” Knick, 139 S. Ct. at 2172-73. And for any

other claim grounded in the Bill of Rights, this Court

would not recognize an implied cause of action to sue the

States directly under the Constitution. Instead,

“[p]rivate rights of action to enforce federal law must be

created by Congress.” Sandoval, 532 U.S. at 286.

Third, the Court is increasingly reluctant to

recognize Bivens claims against federal officers due to

separation-of-powers concerns, see, e.g., Hernandez, 140

S. Ct. at 741-43, which are only amplified here. At least

Bivens claims concern the same sovereign: A federal

court is recognizing a federal cause of action against a

federal officer. Petitioners, however, want a federal

court to recognize a federal cause of action against a

State. Where the Constitution does not require a cause

of action, and Congress has not enacted one, this Court

cannot disregard the fact that the States are separate

sovereigns. The Court will not construe ambiguous

statutes to apply to the States. See Will, 491 U.S. at 65.

The Court should be even more reluctant to do so when

it comes to the Constitution, especially because the

Takings Clause is not ambiguous. Congress can always

change a statute; because the same cannot be said in the

constitutional context, judicial creation of a cause of

action raises greater separation-of-powers concerns.

Fourth, there is no way to “predict the systemwide

consequences” of Petitioners’ theory. Supp.Pet.App.57a.

State courts have years of experience resolving takings

claims against States; federal courts do not. That is

significant because takings cases often involve mixed

questions of state and federal law. Supp.Pet.App.50a.

Moreover, Petitioners’ theory prompts other questions,

not least of which: What about the federal government?

Will property owners be able to file in federal district

court rather than in the Court of Federal Claims? Or

would sovereign immunity bar such claims—thus casting

insuperable doubt on Petitioners’ theory that the Fifth

Amendment’s framers implicitly intended such a cause

of action in the first place?

Finally, if the Court recognizes a new cause of action,

that will not be the end of it. Without any legislative

guidance, federal courts will next have to decide

additional questions, such as how long the limitations

period should be, whether affirmative defenses like

laches are available (and which ones and under what

circumstances), and what pleading rules apply. And that

is even before getting to questions about sovereign

immunity. Does the Takings Clause’s supposed cause of

action supersede a State’s immunity and, if so, how much

of that immunity and under what circumstances? 4 Texas,

for example, concedes that it waived its immunity from

suit by removing Petitioners’ cases to federal court.

Whether it has waived its immunity from liability is a

separate question. See, e.g., Trant v. Oklahoma, 754 F.3d

1158, 1172 (10th Cir. 2014); Stroud v. McIntosh, 722 F.3d

Several amici argue that, in fact, there is no sovereign

immunity for this supposed implied cause of action, and Petitioners

note (at 16 n.4) that they do not concede that sovereign immunity

applies. Because Petitioners do not raise an argument on this issue

and the Fifth Circuit did not address it, Texas also does not address

the issue here, but reserves its rights to do so; the question of state

sovereign immunity is a separate issue with its own history and

precedent that would require separate briefing.

1294, 1301 (11th Cir. 2013); Lombardo v. Pa. Dep’t of

Pub. Welfare, 540 F.3d 190, 198 (3d Cir. 2008); Meyers ex

rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005).

Rather than starting down this path, the Court should

conclude as Judge Higginbotham did: “We have a

Congress. It wrote §1983. It can accomplish what is

proposed, but it is telling that it has not. This move is

above our paygrade.” Supp.Pet.App.50a.

II. Petitioners’ Arguments Are Unpersuasive.

Petitioners insist that to refuse to find a cause of

action that is neither “explicitly” included in, Pet.Br.17,

nor “implied[ly]” provided by, id. at 34, but still somehow

part of the Fifth Amendment would allow the States to

trample on property rights. Their arguments are

unpersuasive. The Takings Clause has functioned for

more than 230 years without such an implied cause of

action. There is no need to fix what is not broken.

A. Petitioners Mistake Texas’s Position.

Petitioners’ theory starts from a mistaken premise:

that Texas’s position has anything to do with the

substance of their right to just compensation under the

Takings Clause. It does not.

Petitioners, for example, spend pages seeking to

prove that the “[Takings] Clause ‘creates a substantive

right to just compensation that springs to life when the

government takes private property.’” Id. at 4 (quoting

Pet.App.15a). Among other things, Petitioners discuss

“the adoption of Magna Carta in 1215” and commentary

from “St. George Tucker to James Madison,” and argue

that “the Takings Clause was specifically invoked as a

reason for adopting the Fourteenth Amendment.” Id. at

But no one disputes that “the Constitution itself

substantively requires compensation.” Id. at 10. Nor

does Texas claim that “the government [can] appropriate

private property without just compensation so long as it

avoids formal condemnation.” Contra id. at 13-14

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

2076 (2021)). 5 And everyone acknowledges “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.’”

Id. at 14-15 (quoting Knick, 139 S. Ct. at 2170). In short,

Texas wholeheartedly agrees that “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.” Id. at 24.

The dispute here, however, is about whether the

Takings Clause itself permits the Court to

constitutionalize a particular method to vindicate that

substance—namely, a federal cause of action against the

States. But this Court has specifically warned not to

conflate “whether a statute confers a private right of

action with the question whether the statute’s

substantive prohibition reaches a particular form of

conduct.” Gomez-Perez v. Potter, 553 U.S. 474, 483

(2008). If anything, the history of the Takings Clause

demonstrates why: A substantive right can be vindicated

through means other than a private suit, and certainly

does not require suit under a federal cause of action. See

supra Part I.C. Recognizing that point does not make

Texas disputes that Petitioners have established a taking. But

that issue has never been litigated.

this case “unnecessarily complicated,” Pet.Br.34, but

rather respects the Constitution’s separation of powers.

It is no response that “federal courts can enforce the

federal Constitution,” id., or that some—or maybe even

all—of the Constitution is “self-executing,” id. at 37.

Texas agrees with those legal truisms as well. But

neither answers the question presented: What does the

Constitution require? Under established case law—

which Petitioners nowhere acknowledge, let alone ask

the Court to overturn—not even a self-executing

constitutional provision requires a private cause of

action. See Armstrong, 575 U.S. at 326 (holding that no

cause of action arises from the Supremacy Clause); see

supra pp. 21-22. And until 1887, there was no private

litigation against the federal government for takings

even though the Fifth Amendment has applied since

1791.

B. Petitioners Misunderstand Precedent.

One of the few questions on which Petitioners do join

issue with the Fifth Circuit’s decision as explained by two

members of the panel is whether this case is controlled

by precedent—First English in particular. Petitioners

are mistaken, however, about what First English

decided.

1. The central focus of Petitioners’ argument is First

English, particularly the Court’s observation that, as

just discussed, the Takings Clause is “self-executing.”

E.g., Pet.Br.11. Petitioners misunderstand what that

means.

Under the state law at issue in First English, the only

available remedy for a regulatory taking was prospective

relief that would force the regulator to initiate

condemnation proceedings or return the property

without any compensation, should the government

choose the latter. 482 U.S. at 308-09. The law provided

no compensation for the period between the taking and

the regulator’s decision whether to pay for the property

or return it. Id. at 312-13. The question before the Court

thus was whether the Takings Claus “require[s]

compensation as a remedy for ‘temporary’ regulatory

takings.” Id. at 310. The Court answered yes based on its

“frequently repeated … view” that, in the event of a

taking, the Constitution requires compensation. Id. at

316.

Given that context, the Court’s statements about “the

self-executing character of the constitutional provision

with respect to compensation,” id. at 315, do not support

Petitioners’ argument. The Court held that the right to

compensation accrues as soon as the government takes

property, rather than when the government chooses not

to institute eminent domain. In other words, the Takings

Clause’s just-compensation requirement applies as soon

as the taking occurs and so does not depend on some

future act. Id.; see also BLACK’S LAW DICTIONARY 1633

(11th ed. 2019) (explaining that a self-executing

instrument is “effective immediately without the need of

any type of implementing action”). Thus, when this

Court described the Takings Clause as “self-executing,”

it was addressing the substantive question of when the

government’s conduct triggers the right to

compensation. First English, 482 U.S. at 315.

Whether the Takings Clause contains an implied

cause of action was not at issue in First English. Indeed,

due to the procedural posture of the case, the Court had

no occasion to determine whether the plaintiffs had a

valid cause of action at all. First English came to this

Court through its 28 U.S.C. §1257 jurisdiction to review

a “[f]inal judgment[] or decree[] rendered by the highest

court of [the] State.” The California judgment at issue

did not address whether the Fifth Amendment gave rise

to a cause of action because the plaintiffs in First English

did not mention the Takings Clause in their complaint,

which “invoked only the California Constitution.” 482

U.S. at 313 n.8. And this Court had jurisdiction only to

the extent that “the state court … considered and

decided the constitutional claim” when the issue was

raised in the process of adjudicating that state claim. Id.

That unconventional posture explains why First English

makes no mention of any federal cause of action.

If, moreover, the plaintiff somehow had needed to

invoke a federal cause of action to pursue its state-law

claim, §1983 was available. First English was prosecuted

against Los Angeles County, which is a proper §1983

defendant. See Monell v. Dep’t of Soc. Servs. of City of

N.Y., 436 U.S. 658, 690 (1978). In fact, when the cause-ofaction issue briefly arose during oral argument,

plaintiff ’s counsel invoked §1983—but only after

reiterating that it “hasn’t been brought up” because

“what we’ve been arguing about in this case is the

substantive right to just compensation.” Oral Arg. Tr. 22,

First English, 482 U.S. 304 (No. 85-1199).

For both of those reasons, the issue of causes of

action—and especially a constitutional cause of action

against the States—at most “lurk[ed] in the record” and

was “neither brought to the attention of the court nor

ruled upon.” Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157, 170 (2004). Indeed, because no State was a

party to the litigation, and no one raised any argument

about §1983’s exclusion of States as proper defendants,

the case cannot be read as supporting the notion that a

federal cause of action against States exists whether

Congress wants it or not. Nothing about the issue in this

case was sufficiently addressed (if, indeed, it was

addressed at all) such that First English can “be

considered … to constitute precedent[]” here. Id.

For related reasons, Petitioners are wrong to equate

(at 13) Texas’s position with that of the United States’

amicus argument in First English that “the Constitution

does not, of its own force, furnish a basis for a court to

award money damages against the government.” 482

U.S. at 316 n.9. Given that the defendant was not a State,

the United States unsurprisingly said nothing about

whether a State would be a proper defendant under

§1983, or whether there was some other statute

authorizing takings claims directly against a State.

Rather, it focused on whether the Takings Clause

required monetary, as opposed to merely equitable,

relief in the context of temporary regulatory takings by

an entity subject to suit under §1983. See Br. for the

United States as Amicus Curiae Supporting Appellee,

First English, 482 U.S. 304 (No. 85-1199), at *26. The

Court rejected the United States’ argument because the

Takings Clause “dictates the remedy for interference

with property rights amounting to a taking”—just

compensation. First English, 482 U.S. at 316 n.9

(emphasis added). Nothing about that discussion,

however, speaks to the issue here.

Petitioners’ discussion of stare decisis thus misses

the point: First English does not hold that the Takings

Clause creates a cause of action against States

notwithstanding Congress’s decision not to include

States as defendants under §1983. The case was about

something different—“the California Supreme Court’s

[rule] that damages are unavailable to redress a

‘temporary’ regulatory taking.” Id. at 312.

2. Petitioners’ invocation (at 13-15) of Jacobs v.

United States, 290 U.S. 13, 16 (1933), upon which First

English relied, is equally inapposite. Jacobs addressed

the scope of the just-compensation right and,

specifically, the amount of compensation the Fifth

Amendment requires in a Tucker Act suit against the

United States. See id. When this Court explained that

the suits at issue were “founded on the Constitution of

the United States,” it did so in holding that “[t]he fact

that condemnation proceedings were not instituted and

that the right was asserted in suits by the owners did not

change the essential nature of the claim.” Id. The Court

would not address the availability of a cause of action

against the federal government directly under the Fifth

Amendment for nearly another century—when the

Court recognized that there is no express cause of action

to be found in the Constitution. Me. Cmty. Health

Options, 140 S. Ct. at 13278 n.12

Ignoring that part of the Court’s decision, Petitioners

lean (at 16-17) into Maine Community Health, a case in

which the Court concluded that private parties may sue

the United States where Congress obligated the United

States to pay a certain amount of money. 140 S. Ct. at

1329. Yet there is nothing “odd,” Pet.Br.17, about

concluding that when Congress chooses to impose an

obligation but not to use one of “several blueprints for

conditioning and limiting obligations,” it intended to

subject the government to liability, 140 S. Ct. at 1329,

while also concluding that the Takings Clause does not

create its own cause of action. Again, Texas does not

dispute that the Takings Clause creates a duty to pay

compensation or that Congress could, subject to

principles of sovereign immunity, create a cause of action

to vindicate that right—only whether it has done so. 6

3. Petitioners fare no better with respect to cases

they claim (at 14) “reaffirm[ed]” First English. Knick,

for example, merely reiterated First English’s holding

about the scope of the substantive right: “that a property

owner acquires an irrevocable right to just compensation

immediately upon a taking.” 139 S. Ct. at 2172. Knick

relied on First English to reject the rule that “a taking

does not give rise to a federal constitutional right to just

compensation at that time, but instead gives a right to a

state law procedure that will eventually result in just

compensation.” Id. at 2171 (describing Williamson Cnty.

Reg’l Planning Comm’n v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985)). Indeed, First English stands

for the principle that “the Fifth Amendment right to

compensation automatically arises at the time the

government takes property without paying for it.” Id. at

2171. Once more, Texas does not disagree. But like First

English, there was no reason for Knick to say anything

about whether the Takings Clause gives rise to a federal

cause of action (much less one against the States), as the

plaintiff in Knick brought her case under §1983. Id. at

2168; see also id. at 2174 n.5.

As in Knick, the landowners in City of Monterey v.

Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999),

proceeded under §1983. Id. at 694. The primary issue

was whether the landowners’ cause of action sounded in

tort and was therefore properly submitted to a jury. Id.

And when this Court stated that the Constitution

Petitioners also rely (at 16) on Justice Scalia’s dissent in

Bowen v. Massachusetts, 487 U.S. 879 (1988), but the cause of action

in Bowen came from the Administrative Procedure Act, id. at 902

(applying 5 U.S.C. §704).

requires condemning governments to provide “a forum”

to seek just compensation, it was not mandating a

judicial forum to vindicate that right. Id. at 714. To the

contrary, as early as 1810, the Court acknowledged nonjudicial fora, and for nearly a century Congress resolved

takings claims in a legislative forum. See supra pp. 17,

23-26. Even putting history to one side, this is obviously

not the case to determine whether the Takings Clause

requires a judicial forum. Texas provided one, after all—

complete with a takings cause of action. The only

question in this case is whether, in a judicial forum,

Petitioners may bring a claim under the Fifth

Amendment rather than that state cause of action.

In Seaboard Air Line Railway Co. v. United States,

261 U.S. 299 (1923), moreover, Congress did precisely

what Congress did not do here: provide a federal cause

of action. See id. at 304 (discussing the Lever Act). The

Court’s statement that “[j]ust compensation is provided

for by the Constitution and the right to it cannot be taken

away by statute,” id., is thus correct but irrelevant. No

one disputes that just compensation is required, and no

statute purports to take that right away. The only

dispute is whether that right can be vindicated through

an implied cause of action in the absence of a statute

creating a cause of action against the States.

4. Finally, Petitioners appeal (at 29) to what they

perceive as historical examples of takings claims being

pursued without express mention of §1983. Each case

they cite, however, involved equitable relief. See Dohany

v. Rogers, 281 U.S. 362, 367 (1930); Del., L. & W. R.R. Co.

v. Town of Morristown, 276 U.S. 182, 188, 197 (1928);

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395

(1926); Cuyahoga River Power Co. v. City of Akron, 240

U.S. 462, 463 (1916); Village of Norwood v. Baker, 172

U.S. 269, 292 (1898). Petitioners are correct (at 29) that

these equitable suits were, in a sense, “predicated

directly upon the Constitution.” But that does not mean

that the Constitution created its own cause of action for

damages (the issue here)—only that it provided the

substantive rule of decision for non-monetary relief.

Nor are Petitioners’ citations of other cases involving

injunctive relief convincing. The Court in Free

Enterprise Fund v. Public Company Accounting

Oversight Board, 561 U.S. 477 (2010), for example,

expressly grounded its analysis in equity. Id. at 491 n.2.

Ex parte Young, 209 U.S. 123 (1908), also involved

injunctive relief, which is typically available when

damages are not. Idaho v. Coeur d’Alene Tribe, 521 U.S.

261, 269 (1997). Petitioners here, however, argue that a

putative implied federal cause of action entitles them to

damages. Absent a federal cause of action from

Congress, that remedy is unavailable under federal law

and may be pursued only under a state cause of action.

C. Petitioners Misread the Constitution.

Although relying almost entirely on their faulty view

of precedent, Petitioners also hint at two arguments as

to constitutional structure. Neither is persuasive.

1. Petitioners attempt (at 9, 18) to analogize the

Takings Clause to habeas corpus. The Suspension

Clause, however, is sui generis. It provides that “[t]he

Privilege of the Writ of Habeas Corpus shall not be

suspended” absent certain conditions. U.S. Const. art. I,

§9, cl. 2. Anyone reading the Constitution at the founding

would have recognized that “the Writ of Habeas Corpus”

required judicial proceedings, not some other

mechanism. After all, “writ” is a medieval term for

“court’s written order.” BLACK’S, supra, at 1927 (“bef.

12c”). Yet as far as Texas is aware, there has never been

a “writ of just compensation.” Even if such a thing

existed, the Fifth Amendment did not refer to it, but

instead left the question of how to provide just

compensation to Congress. Furthermore, as the United

States explains (at 29-30), the premise of Petitioners’

argument is flawed because it is far from settled that a

court in fact can issue a writ of habeas corpus without

statutory authorization.

2. Largely based on the role of federal courts,

Petitioners suggest (at 34-37) that for every

constitutional wrong, there is a federal judicial remedy.

Indeed, they claim (at 19) that “[i]f government must pay

just compensation, it follows that courts of competent

jurisdiction may order it to pay when it hasn’t.” But

Texas pays just compensation. Regardless, “of course

the maxim is not true.” Douglas Laycock, How Remedies

Became a Field: A History, 27 REV. LITIG. 161, 169

(2008). For example, the Court “held that Marbury had

a right to his commission, but [it] refused to give

Marbury any remedy.” Id. (citing Marbury v. Madison,

5 U.S. (1 Cranch) 137, 163 (1803)). It thus “is simply

untenable that there must be a judicial remedy for every

constitutional violation.” Webster, 486 U.S. at 613 (Scalia,

J., dissenting) (collecting numerous examples). Instead,

the Constitution often leaves even obligations to pay

money to the political branches, whose members “take

the same oath to uphold the Constitution that [courts] do,

and sometimes … are left to perform that oath

unreviewed, as [courts] always are.” Id.

D. Petitioners Misinterpret History.

As noted above, Petitioners’ brief has much to say

about how the substantive right protected by the

Takings Clause dates all the way back to the Magna

Carta. See supra pp. 32-33. But little if any of it is

relevant to the question here: whether that right must

be enforceable through a supposed cause of action

directly under the Takings Clause against the States.

When Petitioners’ analysis does touch on that issue, it

demonstrates the opposite: Property owners have

historically pursued claims to just compensation in the

way they pursued any other claims—using common-law,

equitable, or statutory causes of action. Petitioners’

historical analysis thus harms more than it helps their

cause.

1. The Tucker Act forms a central piece of

Petitioners’ theory. In their view (at 15-16), it proves that

the Fifth Amendment must create a cause of action

because claimants have brought takings claims using the

Tucker Act even though that Act is “only a jurisdictional

statute” and does not itself “create any substantive right

enforceable against the United States for money

damages.” Pet.Br.15 (quoting United States v. Testan,

424 U.S. 392, 398 (1976)). As the United States explains,

however, the Tucker Act provides jurisdiction and a

waiver of sovereign immunity that allows suit when some

other statute “can fairly be interpreted as mandating

compensation” by the federal government—even if the

statute doesn’t spell out the exact elements of a private

cause of action. U.S.Br.20 (quoting Eastport Steamship

Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967)

(en banc)).

The Tucker Act, moreover, was enacted in 1887, more

than 50 years before Erie Railroad Co. v. Tompkins, 304

U.S. 64 (1938). During that period, federal courts had

greater leeway to create common-law causes of action.

“Congress,” thus, “undoubtedly assumed that the

federal courts would ‘raise up causes of action,’ in the

manner of a common-law court.” Me. Cmty. Health

Options, 140 S. Ct. at 1334 (Alito, J., dissenting) (cleaned

up). The Court has recognized the same with respect to

the Alien Tort Statute, which is also “a jurisdictional

statute creating no new causes of action.” Sosa v.

Alvarez-Machain, 542 U.S. 692, 724 (2004). Because it,

like the Tucker Act, predates Erie, its historical context

suggests that its “jurisdictional grant is best read as

having been enacted on the understanding that the

common law would provide a cause of action.” Id. at 713

(emphasis added).

2. Petitioners also suggest (at 24) that by

referencing the federal courts in his defense of the Bill

of Rights, James Madison understood the Takings

Clause to create a cause of action. They insist (at 25-26)

that Madison understood the Fifth Amendment’s

“affirmative right to just compensation” to be

enforceable by federal courts. Yet the Constitution did

not obligate Congress to create lower federal courts at

all, Patchak, 583 U.S. at 252, and Madison personally

signed private bills. See supra p. 24. There is no basis to

say that his comments—which were not about the

Takings Clause specifically but rather the entire Bill of

Rights 7—are proof of an implied constitutional cause of

action that he apparently never mentioned, would have

been barred by sovereign immunity regardless, and that

(perhaps unsurprisingly) lay dormant for a century even

under Petitioners’ theory. See supra pp. 22-25.

3. Petitioners also discuss (at 30-33) state-court

cases, none of which are relevant. Many relate to state

James Madison, Amendments to the Constitution, June 8,

1789, Founders Online, NAT’L ARCHIVES, https://founders.

archives.gov/documents/Madison/01-12-02-0126.

law and thus have no bearing on the U.S. Constitution’s

Takings Clause. E.g., People ex rel. Utley v. Hayden, 6

Hill 359, 360 (N.Y. Sup. Ct. 1844); Gedney v. Inhabitants

of Tewksbury, 3 Mass. 307, 309 (1807); McClenachan v.

Curwen, 6 Binn. 509, 511 (Pa. 1802). Moreover, many

other cases postdate ratification of the Fourteenth

Amendment—sometimes by many years. Pet.Br.32-33.

As a result, they provide little insight into how the

ratifiers of either the Fifth Amendment or the

Fourteenth Amendment would have understood the

meaning of those Amendments. The historical sources

touching on that question all lead to the conclusion that

when both of those Amendments were ratified, takings

violations were remedied through non-judicial

proceedings, “common law trespass action[s] against the

responsible corporation or government official,” or (in

some circumstances) equitable relief. Knick, 139 S. Ct. at

2176 (citing state court decisions).

E. Petitioners’ Policy Arguments Fail.

Petitioners’ policy arguments—typically couched (at

40-44) as reasons not to overturn First English—should

not sway the Court from the constitutional text because

(among other reasons) they are much ado about nothing.

Petitioners do not point to a single State where just

compensation is being denied—least of all Texas, which

since its inception has been famously protective of

property rights. See, e.g., T.R. FEHRENBACH, LONE

STAR: A HISTORY OF TEXAS AND THE TEXANS 282 (1968)

(“Land was Texas’ great, and only resource; it was

assuming sacred proportions at law.”). Consistent with

that philosophy, Texas courts have heard takings claims

for over a hundred years without this Court finding a

cause of action under the Fourteenth Amendment. Given

that history, it is unsurprising that Petitioners cite

nothing to support their view (at 42-43) that if this Court

were to rule in favor of Texas, its courts would stop

adjudicating such cases—let alone that Texas would

start “seiz[ing] property with impunity.” Pet.Br.41.

That silence is deafening. Because there is no pattern

of constitutional violations, not even Congress could

abrogate Texas’s sovereign immunity, which is

analytically distinct from whether a cause of action

exists. See Allen v. Cooper, 140 S. Ct. 994, 1004-05 (2020).

In the unlikely event that changes, Congress could act.

By any measure, the sky will not fall if the Court holds

that unless and until Congress creates a federal takings

cause of action against the States, there is none.

C O NC LU SIO N

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

DECEMBER 2023

AARON L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

NATALIE D. THOMPSON

KATELAND R. JACKSON

SARA B. BAUMGARDNER

Assistant Solicitors General

J. ANDREW MACKENZIE

Assistant Attorney General

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