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ARTICLE

Does the Fifth Amendment Create an Implied Constitutional Tort?

Steven Stoehr

Summary

  • The Roberts Court has shown a penchant for broadening access to courts under the Takings Clause. 
  • Arguments in Devillier v. Texas indicate that the Court is poised to continue this trend.
  • Worth noting, however, is that this case lies at the intersection of two priorities of the conservative supermajority in tension with each other: (1) expanding access to courts under the Takings Clause, and (2) limiting implied causes of action.
Does the Fifth Amendment Create an Implied Constitutional Tort?
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The U.S. Supreme Court recently heard oral argument in Devillier v. Texas, in which the Court must determine whether the Fifth Amendment Takings Clause creates an implied cause of action for private parties against states. The petitioners are several Texas citizens who brought inverse condemnation claims in state court after Texas erected a barrier between the eastbound and westbound lanes of a highway to prevent the eastbound lanes from flooding and maintain an evacuation route out of Houston in 2017 during severe rain events. According to the petitioners, the barrier caused their properties to flood repeatedly, resulting in substantial loss of property, including livestock.

The petitioners pleaded claims under the state and the U.S. constitutions. Their 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, itself, create a cause of action and, absent an Act of Congress, a Fifth Amendment takings claim against a state cannot be litigated in federal court. The petitioners argued that First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), provides the right to sue Texas for just compensation. In First English Evangelical Lutheran Church, the Court held that a landowner is entitled to bring an action in inverse condemnation for a temporary regulatory taking as a result of the self-executing character of the takings clause with respect to just compensation. The District Court agreed and denied the motion; however, on interlocutory appeal, the Fifth Circuit reversed and dismissed the Fifth Amendment claim. Certiorari was granted thereafter.

There was little palpable divide among the justices during oral argument. While robust questioning was put to the attorneys of both parties and the United States, it seemed clear that all nine justices were skeptical of Texas’s position, which could create a dangerous catch-22 for states to evade federal takings liability by simply removing to federal court, less than five years after the Court eliminated a different loophole for states in Knick v. Township of Scott, 139 S. Ct. 2162 (2019).

The petitioners’ arguments fell into two parts: distinguishing cause of action from jurisdiction and distinguishing just compensation from damages. On the first point, the petitioners argued First English settled that matter. “The cause of action, the entitlement to relief, flows directly from the Fifth Amendment.” The petitioners argued, “the Fifth Amendment creates an obligation to pay just compensation . . . it’s not a question of damages for a past violation, it’s a question of the government’s obligation as it stands . . . today.” Adoption of Texas’s position could also vitiate a party’s ability to enforce the states’ duty to pay just compensation. The petitioners argued that state courts “look to the Constitution, to this Court’s analysis of the Constitution[,]” when adjudicating takings claims pursuant to the Fifth Amendment; they do not “invoke some special cause of action they have created.”

Texas’s arguments, joined by the U.S. government, centered around the same basic premise: that the petitioners should have brought their claim pursuant to Texas’s cause of action under the federal Takings Clause, as there is no cause of action under the Takings Clause itself. Texas argued “governments must provide just compensation, but the Takings Clause says nothing about how they must do it, whether through commissions, private bills, or litigation.” The respondents argued that the ultimate remedy would be injunctive relief to stop the taking and the U.S. government would not concede that an injunction for the payment of compensation would even be possible. The Court did not appear receptive to this claim. Justices Gorsuch and Barrett envisioned “rogue states” acting with intransigence, refusing to pay compensation, and possibly even acting in concert with other governments to avoid payment for takings, with no remedy available.

The Roberts Court has shown a penchant for broadening access to courts under the Takings Clause in Knick, supra, or more recently in Tyler v. Hennepin County, 598 U.S. 631 (2023). Arguments in this case indicate that the Court is poised to continue this trend here, even though this case lies at the intersection of two priorities of the conservative supermajority in tension with each other: (1) expanding access to courts under the Takings Clause, and (2) limiting implied causes of action.

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