The Supreme Court Threads the Needle and Passes the Buck on the Existence of an Implied Cause of Action Under the Fifth Amendment

On April 16, 2024, the U.S. Supreme Court decided Devillier v. Texas, 601 U.S. 285 (2024), a case examining whether the Fifth Amendment Takings Clause creates an implied cause of action for private parties against states. The Court, finding itself in tension between its apparent goals of (1) expanding access to courts for takings claims, and (2) otherwise limiting implied causes of action, instead decided to punt on the issue entirely, remanding the matter for the petitioners to pursue their federal claims pursuant to a state cause of action. The question of an implied cause of action arising directly under the Fifth Amendment remains, accordingly, unanswered.

The petitioners are a group of Texas citizens who brought inverse condemnation claims against the state after the state government erected a barrier between the eastbound and westbound lanes of U.S. Interstate Highway 10. Texas’s goal was to protect the eastbound lanes from flooding so they could be used as an evacuation route out of Houston during severe rain events. The barriers worked quite well—so well, in fact, that the petitioners’ properties, situated north of the highway, were flooded repeatedly, destroying property and killing livestock.

Seeking redress, the petitioners filed suit against the state of Texas, pleading claims under both the state and U.S. constitutions. The cases were consolidated, and Texas removed them to federal court. Texas then moved to dismiss the federal claim, arguing that the Fifth Amendment does not create a cause of action and—somewhat amusingly, since the state itself had removed the case in the first place—that Fifth Amendment claims against states cannot be litigated in federal court, absent an Act of Congress. The petitioners’ counter-argument centered on First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), asserting that “the just-compensation requirement of the Takings Clause is ‘self-executing’ and that ‘[s]tatutory recognition [is] not necessary’ for takings claims because they are ‘grounded in the Constitution itself.’” Devillier, 601 U.S. at 291, quoting First English Evangelical Lutheran Church, 482 U.S. at 315.

At oral argument, the Court was uniformly skeptical of the counter-arguments raised by Texas and by the United States government as amicus curiae. Essentially, Texas argued that there was no cause of action created by the Fifth Amendment itself, as the amendment states that compensation must be provided but not how it is to be provided. Both Texas and the United States argued that the judicial remedy would be injunctive relief to stop the taking, with the United States further arguing that it may not even be possible for an injured party to receive an injunction for the payment of compensation. The Court’s concerns that this interpretation would open the door for “rogue states” refusing to pay compensation and working in concert with other governments to avoid payment for takings did not appear to be at all assuaged by Texas or the United States.

Thus, the Court looked poised to establish that the Fifth Amendment creates an implied cause of action for just compensation as a remedy to a taking. Nevertheless, the Court elected not to decide the issue at all, instead deferring to Texas’s additional argument that Texas “provides a cause of action by which property owners may seek just compensation against the State.” The Court pointed to Texas’s argument that a state-level cause of action “provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause.” Devillier, at 293. While the petitioners had not pleaded this federal claim pursuant to a state cause of action, Texas stated at oral argument that it would not oppose amendment of the complaint to include it. The Court, ever seeking to avoid creating implied causes of action under the U.S. Constitution, saw an out and took it.

Justice Thomas, writing for a unanimous Court, ruled that the question need not be decided at all. Given that Texas already provided a state cause of action to seek just compensation against the state under state and federal constitutions, the petitioners did not need to invoke the extraordinary remedy of an implied cause of action arising specifically from the Fifth Amendment to the U.S. Constitution itself. This allowed the Court to thread the needle, preserving access to the courts for takings claims, while refusing to create any new implied cause of action. Unless a petitioner arrives at the Court with no state law remedy available under the U.S. Constitution, the question of the existence of an implied cause of action under the Fifth Amendment will remain unanswered.