News Release
November 20, 2023
ALF Urges Supreme Court To Reaffirm That Constitution's "Just Compensation" Clause Is Self-Executing

Question Presented:

Whether a takings suit can be filed against a State even though there is no state statute authorizing such a claim
"Rarely do cases present such a palpable constitutional wrong requiring reversal." 

— Atlantic Legal Foundation
Devillier v. Texas, No. 22-913, raises an important question involving an uncompensated physical taking of private property by the State of Texas.

The Fifth Amendment’s Just Compensation Clause (also known as the Takings Clause), applicable to each State and its political subdivisions through the Fourteenth Amendment, recognizes that private property ownership is intrinsic to individual and economic liberty. The question presented in Devillier is whether a person whose property is taken without just compensation can seek redress against a State under the Just Compensation Clause even if the State’s legislature has not affirmatively provided them with a cause of action.

The Supreme Court has granted certiorari, and ALF has filed an amicus brief supporting the landowner plaintiffs. The brief was authored by nationally prominent takings law expert and ALF Advisory Council member Nancie G. Marzulla.

Case Background

To ensure that the south (eastbound) lanes of Interstate 10 are available as an evacuation route in the event of a flood, the Texas Department of Transportation installed a 3-foot high, impenetrable, centerline concrete barrier to block floodwaters from the north reaching the south side of the highway. Following heavy rainfalls due to hurricanes or tropical storms, this deliberately constructed highway dam has repeatedly flooded landowners’ farms and ranches on the north side of the highway.

After the landowners filed state-court inverse-condemnation suits against the State of Texas for the uncompensated (i.e., unconstitutional) physical taking of their property, the State removed the consolidated cases to federal court. There, the State argued in part that the landowners cannot bring their inverse-condemnation claims directly under the Fifth Amendment. According to the State, the Fifth Amendment does not create a private cause of action. The State contends that instead, inverse-condemnation claims can only be brought in federal court under 42 U.S.C. § 1983 (civil action for deprivation of rights), but since a State is not a “person” within the meaning of § 1983, such claims can be brought against a particular State (either in federal or state court) only if a state statute authorizes such suits.

The district court rejected the State’s argument, but on interlocutory appeal, the Fifth Circuit, in a cursory opinion, reversed and remanded. Five judges dissented from the denial of rehearing en banc.

ALF's Amicus Brief

ALF’s amicus brief argues that the Supreme Court in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, California, 482 U.S. 304 (1987), flatly rejected the argument that the Fifth Amendment does not directly provide a cause of action for a State’s uncompensated taking of private property. Instead, numerous Supreme Court and lower court decisions reflect the Fifth Amendment’s self-executing right to just compensation. The amicus brief explains that due to the Fifth Amendment’s self-executing nature, a suit against a State for an uncompensated taking does not have to be brought under § 1983 or a state statute. Thus, a State cannot avoid a state-court taking suit by removing the case to federal court and then arguing that § 1983 does not apply to a State, or by arguing that there is no state statute authorizing such a suit against a State.
Media Contact: Larry Ebner | Tel: 202-349-1421
About the Atlantic Legal Foundation

For more than 46 years, the Atlantic Legal Foundation, a national, nonprofit, nonpartisan, public interest law firm, has advocated in the Supreme Court, federal courts of appeals, and state appellate courts for individual liberty, free enterprise, property rights, limited & responsible government, sound science in judicial & regulatory proceedings, and effective education, including parental rights and school choice.
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