Today, the Supreme Court confronts again the modern meaning of that famous declaration of liberty, England’s eight-century-old Magna Carta. A group of 120 Texans and five companies in that state are relying on that ancient document (and one of its echoes in the U.S. Constitution) to try to force their state to pay them compensation for damages from hurricane flooding that they blame on the state. (This will be the second hearing today; the case at issue in the first hearing was discussed in this space yesterday.)
Second hearing today: Devillier (and others) v. Texas The hearing is scheduled for one hour and will begin at about 11:30 a.m., after the first hearing has ended.
Background: Several promises in the Bill of Rights that were added to the U.S. Constitution in 1791 have sturdy roots in Magna Carta, the 1215 document in which the English barons forced King John to respect some aspects of human liberty. England’s colonies in America adopted that guarantee; in 1641, it was put into the Massachusetts Body of Liberties.
In the background of today’s hearing in the Supreme Court is a constitutional right assured to owners of private property, a direct descendant of a guarantee in Magna Carta. The Fifth Amendment mandates that “private property…shall not be taken for public use without just compensation.”
That was originally written as a restriction on Congress, but the Supreme Court in 1897 extended it to apply to state and local governments, too. For nine decades, since 1933, the Court has been laboring over whether the guarantee is something that occurs just because the Constitution says it – in other words, that the protection is “self-executing” – or whether it can only be enforced if Congress or a state legislature enacts some kind of process to carry it out.
In two rulings close together, in 1985 and 1987, the Court sent mixed signals. In the first of those rulings, First English Lutheran Church v. Los Angeles County, the Court reinforced its view that the promise of compensation for property taken over by the government was, indeed, self-enforcing. The Court remarked: “It has been established at least since 1933 that claims for just compensation are grounded in the Constitution itself….Statutory recognition was not necessary.”
But in the second ruling two years later, Williamson County Regional Planning Commission v. Hamilton Bank, the Court took a markedly different approach: it said attempts to sue in federal court to obtain compensation for government taking of property would be “premature” if the property owner had not first sought compensation in some procedure in state court. Any state procedure set up to explore the claim had to be attempted before any lawsuit could be filed in federal court, that ruling specified.
Property owners repeatedly attempted to persuade the Court to reconsider the Williamson County case and failed each time, until four years ago. In Knick v. Township of Scott, Pennsylvania, the Court overruled that 1987 precedent, declaring that the moment the government takes control of property for public use and does not pay compensation, it has violated the Fifth Amendment clause. It makes no difference, that opinion said, that remedies would be available later.
The case being heard by the Justices on Tuesday involves a variation on these past precedents.
The facts of this case: The state of Texas decided to put up a barrier in the median of Interstate Highway 10 near Houston, to act as a dam in case the roadway was threatened with flooding. The aim was to keep one lane of the highway open to prevent flooding, so that there would be a storm evacuation route from the area. The dam was three-feet high.
When the area was hit by exceedingly heavy rains during Tropical Storm Harvey in 2017, water that otherwise would have flowed across the highway and into the Gulf of Mexico stayed on the north side of the highway, flooding a large area of rural land with an enormous lake that took days to drain.
In 2019, as Tropical Storm Imelda was approaching, landowner Richard Devillier asked state officials to take down a part of the barrier, or allow him to do so with his own equipment. The request was denied, and the dam worked again: floods inundated a wide area north of Highway 10. “The problem,” Devillier’s lawyers would later claim, “was not the storms. The problem was the dam.”
Joined by his farmer and rancher neighbors, Devillier sued the state in state court, claiming that their property had been taken without compensation, for the state’s use in the public project of keeping the highway open during storms. The first case sought money damages of $1 million for each property owner. Soon, the same lawyers filed three more cases; all told, 120 private owners and five Texas businesses had sued..
Because the cases raised an issue under federal law – that is, the Fifth Amendment’s Just Compensation Clause — the state opted to have the cases transferred to federal court for trial. The four cases were combined into one. The state sought to have the case dismissed, arguing that none of those affected by the flooding had a right to sue directly under the Fifth Amendment clause.
The federal trial court ruled that the cases could go forward. The Just Compensation Clause, that court concluded, “is self-executing in that it creates a substantive right to just compensation that springs to life when the government takes private property.”
Before a trial on the claims could begin, the state of Texas appealed, and won a ruling against the property owners. States, that appeals court ruled, cannot be sued for money damages, under the Fifth Amendment. It is up to Congress, the appeals court ruled, to create a right to money damages against a state. That court further noted that Texas has set up remedies for such claims under state law, so the Texas Supreme Court would have the last word if the property owners turned to the state remedies.
The property owners appealed to the Supreme Court, arguing that the Fifth Amendment provides its own right to sue for property seizures made without compensation, and that right includes the opportunity to seek money damages from the state. Its appeal relies heavily on the Supreme Court’s 2019 precedent in the Knick case.
The Biden Administration’s Justice Department is taking part in the case, siding with Texas out of concern that federal takeover of property could lead to awards of money damages against the federal government. Only Congress, its brief contended, can create such a Fifth Amendment remedy against the federal government or against a state government. Without such a remedy, property owners only have a right to sue to try to stop the taking of property. The Department’s arguments rely on the concept of “sovereign immunity,” that the federal government and states enjoy unless they choose to surrender it. They have not done so on Just Compensation Clause disputes, it asserts.
The questions before the Court: Do private owners have a right to sue government, state or federal, for taking property without paying compensation? Do they have a right to sue for money damages for such takeovers of their property?
Significance: The legal fight being waged by these Texas property owners comes against a 91-year-long exploration of the Just Compensation Clause by the Supreme Court. The addition to the Texans’ lawsuit of a claim for money damages from the state escalates the importance of the dispute as it unfolds before the Justices, because it implicates government immunity claims.
The federal government, as a sovereign, has always had immunity to being sued without its consent. From time to time, it has given its consent, and there is a special federal court – the U.S. Court of Claims – that processes those claims, and can award money damages. But, up to now, the federal government has not waived its sovereign immunity for claims like those made by Texans in this case.
Texas, as a state, has some degree of sovereignty, but its immunity under that doctrine is not as sweeping as the federal government’s. Congress can take away that immunity but it has not done so for Fifth Amendment claims like those here.
An interesting sidelight of this case focuses on the idea that some parts of the Constitution are self-executing. And in the background of this case is the fact that a significant part of the effort to keep former President Donald Trump off presidential primary ballots this year is based upon the theory that the Fourteenth Amendment ban on office-seeking by insurrections is itself a self-executing power, needing no legislation to enforce it. The Supreme Court would not be inclined to say anything about that particular controversy in the Texas case, because it is outside of what is at issue in that case. But any discussion of what makes a part of the Constitution self-executing might provide some hints of the Justices’ thinking on that point.
The Court will broadcast “live” the audio (no video) of this hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
