No.

22-913

In the Supreme Court of the United States

____________________
RICHARD DEVILLIER, ET AL.,
Petitioners,
v.
STATE OF TEXAS,
Respondent.
____________________
On Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit
____________________
BRIEF AMICUS CURIAE OF PACIFIC LEGAL
FOUNDATION, NATIONAL FEDERATION OF
INDEPENDENT BUSINESS SMALL BUSINESS
LEGAL CENTER, INC., AND MANHATTAN
INSTITUTE IN SUPPORT OF PETITIONERS
____________________
KATHRYN D. VALOIS DEBORAH J. LA FETRA
Pacific Legal Foundation Counsel of Record
4440 PGA Blvd., Suite 307 ROBERT H. THOMAS
Palm Beach Gardens, FL 33410 Pacific Legal Foundation
555 Capitol Mall
ELIZABETH MILITO Suite 1290
ROB SMITH Sacramento, CA 95814
NFIB Small Business Telephone: (916) 419-7111
Legal Center, Inc. [email protected]
555 12th Street, NW
Suite 1001
Washington, DC 20004
Counsel for Amici Curiae
Additional counsel listed on inside cover
ILYA SHAPIRO
TIM ROSENBERGER
Manhattan Institute
52 Vanderbilt Ave.
New York, NY 10017
 i

Question Presented
May a person whose property is taken without
compensation seek redress under the self-executing
Takings Clause even if Congress has not codified a
cause of action?
 ii

Table of Contents

Question Presented...................................................... i
Table of Authorities ................................................... iii
Interest of Amici Curiae ............................................. 1
Introduction and Summary of Argument .................. 2
Argument .................................................................... 5
I. The Text of the Fourteenth Amendment
Binds “the States” ............................................ 5
II. Self-Executing Constitutional Rights Do Not
Need Legislative Recognition of a Remedy ... 11
III. The Fifth Circuit Deprives Property Owners
of Any Forum for Constitutional
Takings Claims .............................................. 16
A. The Takings “Catch-22” Resurrected ......... 16
B. The Constitution Elevates Judicial
Protection of Property Rights Over
Government Gamesmanship ...................... 19
Conclusion ................................................................. 21
 iii

Table of Authorities
Page(s)
Cases
Alden v. Maine,
527 U.S. 706 (1999) ............................................... 7
Allen v. Cooper,
140 S.Ct. 994 (2020) ............................................ 16
Angelle v. State,
34 So.2d 321 (La. 1948) ....................................... 17
Ariyan Inc. v. Sewerage & Water Bd. of
New Orleans,
143 S.Ct. 353 (2022) .......................................... 1−2
Ariyan, Inc. v. Sewerage & Water Bd. of
New Orleans,
29 F.4th 226 (5th Cir. 2022) ................................ 17
Arkansas Game & Fish Comm’n v.
United States,
568 U.S. 23 (2012) ................................................. 1
Arrigoni Enters., LLC v.
Town of Durham,
136 S.Ct. 1409 (2016) ......................................... 19
Barron v. Mayor and City Council of
Baltimore,
32 U.S. (7 Pet.) 243 (1833) ................................ 6−7
Benton v. Maryland,
395 U.S. 784 (1969) ............................................. 11
Biden v. Nebraska,
143 S.Ct. 2355 (2023) .......................................... 19
Blanchette v. Conn. Gen. Ins. Corps.,
419 U.S. 102 (1974) ............................................... 4
 iv

Boom Co. v. Patterson,

98 U.S. 403 (1878) ................................................. 6
Bradshaw v. Rogers,
20 Johns. 103 (N.Y. Sup. Ct. 1822) ....................... 9
Brown & Gay Eng’g, Inc. v. Olivares,
461 S.W.3d 117 (Tex. 2015) ................................. 18
Cedar Point Nursery v. Hassid,
141 S.Ct. 2063 (2021) ............................................ 1
Cent. Va. Cmty. Coll. v. Katz,
546 U.S. 356 (2006) ............................................. 16
Chicago, B. & Q.R. Co. v.
City of Chicago,
166 U.S. 226 (1897) ................................... 9−10, 14
City of Monterey v. Del Monte Dunes at
Monterey, Ltd.,
526 U.S. 687 (1999) ............................................. 16
City of Northglenn v. Grynberg,
846 P.2d 175 (Colo. 1993) .................................... 20
CPS Energy v. Elec. Reliability Council
of Texas,
671 S.W.3d 605 (Tex. 2023) ........................... 17−18
Davis v. Burke,
179 U.S. 399 (1900) ..................................... 2−3, 13
Dolan v. City of Tigard,
512 U.S. 374 (1994) ............................................... 8
Embury v. King,
361 F.3d 562 (9th Cir. 2004) ................................. 5
Esposito v. S.C. Coastal Council,
939 F.2d 165 (4th Cir. 1991) .............................. 15
 v

Fin. Oversight and Mgmt. Bd. for Puerto

Rico v. Cooperative de Ahorro y
Credito Abraham Rosa,
143 S.Ct. 774 (2023) .............................................. 2
First English Evangelical Lutheran Church
of Glendale v. Los Angeles Cnty.,
482 U.S. 304 (1987) ............................. 3, 14−15, 19
Fitzpatrick v. Bitzer,
427 U.S. 445 (1976) ....................................... 12, 15
Folsom v. City of New Orleans,
109 U.S. 285 (1883) ............................................. 17
Franklin v. Gwinnett Cnty. Pub.
Schools,
503 U.S. 60 (1992) ............................................... 15
Hall v. McRaven,
508 S.W.3d 232 (Tex. 2017) ................................. 18
Health & Hosp. Corp. of Marion Cnty. v.
Talevski,
599 U.S. 166 (2023) ......................................... 7, 12
Home Tel. & Tel. Co. v. City of Los
Angeles,
227 U.S. 278 (1913) ............................................... 7
Horne v. Dep’t of Agric.,
576 U.S. 350 (2015) ............................................... 1
Johnston v. Rankin,
70 N.C. 550 (1874) ................................................. 9
Kirby Forest Indus., Inc. v.
United States,
467 U.S. 1 (1984) ................................................. 15
 vi

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) ............................ 1, 3, 19, 20
Koontz v. St. Johns River Water Mgmt. Dist.,
570 U.S. 595 (2013) ............................................... 1
Lapides v. Bd. of Regents of Univ. Sys.
of Ga.,
535 U.S. 613 (2002) ......................................... 5, 19
Maine Cmty. Health Options v.
United States,
140 S.Ct. 1308...................................................... 11
Malloy v. Hogan,
378 U.S. 1 (1964) ................................................. 10
Mapp v. Ohio,
367 U.S. 643 (1961) ............................................. 10
Marbury v. Madison,
5 U.S. 137 (1803) ..................................... 12−13, 15
Ex parte Martin,
13 Ark. 198 (1853) ................................................. 9
McDonald v. City of Chicago,
561 U.S. 742 (2010) ......................................... 9−10
Minn. v. Murphy,
465 U.S. 420 (1984) ............................................. 13
Mitchum v. Foster,
407 U.S. 225 (1972) ............................................... 7
In re Mt. Washington Road Co.,
35 N.H. 134 (1857)................................................. 9
Murr v. Wisconsin,
137 S.Ct. 1933 (2017) ............................................ 1
Nollan v. California Coastal Comm’n,
483 U.S. 825 (1987) ........................................... 1, 8
 vii

Pakdel v. City and Cnty. of San Francisco,

141 S.Ct. 2226 (2021) ............................................ 1
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ............................................... 1
Parham v. Justices of the Inferior Court
of Decatur Cnty.,
9 Ga. 341 (1851) ..................................................... 9
Penn Central Transp. Co. v.
New York City,
438 U.S. 104 (1978) ............................................... 8
PennEast Pipeline Co., LLC v.
New Jersey,
141 S.Ct. 2244 (2021) .......................................... 10
People v. Platt,
17 Johns. 195 (N.Y. Sup. Ct. 1819) ....................... 9
Pumpelly v. Green Bay Co.,
80 U.S. 166 (1871) ................................................. 6
Sinnickson v. Johnson,
17 N.J.L. 129 (1839) ............................................ 14
Stop the Beach Renourishment, Inc. v.
Fla. Dep’t of Env. Prot.,
560 U.S. 702 (2010) ............................................... 8
Suitum v. Tahoe Reg’l Plan. Agency,
520 U.S. 725 (1997) ............................................... 1
Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Planning Agency,
535 U.S. 302 (2002) ............................................... 8
Tanzin v. Tanvir,
141 S.Ct. 486 (2020) ............................................ 14
 viii

TrinCo Inv. Co. v. United States,

140 Fed.Cl. 530 (2018)....................................... 6−7
Tyler v. Hennepin Cnty.,
598 U.S. 631 (2023) ............................................... 1
In re Venoco LLC,
998 F.3d 94 (3d Cir. 2021) ................................... 10
Ex parte Virginia,
100 U.S. 339 (1879) ............................................... 7
Wallace v. Jaffree,
472 U.S. 38 (1985) ............................................... 11
Yearsley v. W.A. Ross Constr. Co.,
309 U.S. 18 (1940) ............................................... 11
Constitutions
La. Const. art. XII, § 10(C) ....................................... 17
U.S. Const. amend. V.................2–3, 10–11, 13, 15–16
U.S. Const. amend. XI .......................................... 5, 18
U.S. Const. amend. XIV ...............3–5, 7–10, 12, 14–15
U.S. Const. amend. XIV, § 1 ................................... 3, 7
U.S. Const. amend. XIV, § 5 ........................... 3, 11−12

Statutes
28 U.S.C. § 1491(a)(1) ................................................. 4
Civil Rights Act of 1871,
42 U.S.C. § 1983 ........................................ 4, 12, 18
Other Authorities
Amar, Akhil Reed, The Bill of Rights:
Creation and Reconstruction (1998) ..................... 8
 ix

Beaton, Laura D., & Zinn, Matthew D.,

Knick v. Township of Scott: A Source of
New Uncertainty for State and Local
Governments in Regulatory Takings
Challenges to Land Use Regulation,
47 Fordham Urb. L.J. 623 (2020)........................ 19
Berger, Eric, The Collision of the
Takings and State Sovereign
Immunity Doctrines,
63 Wash. & Lee L. Rev. 493 (2006) ..................... 15
Blackstone, William,
1 Commentaries ..................................................... 9
Cooley, Thomas M., A Treatise on the
Const. Limitations Which Rest upon
the Legislative Power of the States of
the American Union (1868) ................................... 9
Grant, Eric, A Revolutionary View of the
Seventh Amendment and the Just
Compensation Clause,
91 Nw. U. L. Rev. 144 (1996) .............................. 16
Kobach, Kris W., The Origins of
Regulatory Takings: Setting the
Record Straight,
1996 Utah L. Rev. 1211 ......................................... 6
Story, Joseph, 2 Commentaries on the
Constitution of the United States
(Thomas M. Cooley ed., 4th ed.,
Boston, Little, Brown, & Co. 1873)
(1833) ................................................................. 6, 9
Struve, Catherine T., Turf Struggles: Land,
Sovereignty, and Sovereign Immunity,
37 New Eng. L. Rev. 571 (2003) .......................... 15
 x

Thomas, David A., Finding More Pieces for

the Takings Puzzle: How Correcting
History Can Clarify Doctrine,
75 U. Colo. L. Rev. 497 (2004) ............................. 20
 1

Interest of Amici Curiae 1

Pacific Legal Foundation (PLF) is a nonprofit, tax-
exempt corporation organized for the purpose of
litigating matters affecting the public interest in
private property rights, individual liberty, and
economic freedom. Founded 50 years ago, PLF is the
most experienced legal organization of its kind. PLF
attorneys have participated as lead counsel in
numerous landmark United States Supreme Court
cases generally in defense of the right to make
reasonable use of property and the corollary right to
obtain just compensation when that right is infringed.
See, e.g., Tyler v. Hennepin Cnty., 598 U.S. 631 (2023);
Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021);
Pakdel v. City and Cnty. of San Francisco, 141 S.Ct.
2226 (2021); Knick v. Twp. of Scott, 139 S.Ct. 2162
(2019); Murr v. Wisconsin, 137 S.Ct. 1933 (2017);
Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.
595 (2013); Palazzolo v. Rhode Island, 533 U.S. 606
(2001); Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S.
725 (1997); Nollan v. California Coastal Comm’n, 483
U.S. 825 (1987). PLF also routinely participates in
important property rights cases as amicus curiae. See,
e.g., Horne v. Dep’t of Agric., 576 U.S. 350 (2015);
Arkansas Game & Fish Comm’n v. United States, 568
U.S. 23 (2012). Additionally, PLF attorneys have
extensive experience with the question here, having
recently advocated for the Just Compensation
Clause’s self-executing nature several times. See, e.g.,
Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans,

1 No counsel for any party authored this amicus brief in whole or

in part, and no person or entity, other than amici, their members,

or counsel, made any monetary contribution to the preparation
or submission of this brief.
 2

143 S.Ct. 353 (2022); Fin. Oversight & Mgmt. Bd. for
Puerto Rico v. Cooperative de Ahorro y Credito
Abraham Rosa, 143 S.Ct. 774 (2023).
The National Federation of Independent Business
Small Business Legal Center, Inc. (NFIB Legal
Center), is a nonprofit, public interest law firm
established to provide legal resources and be the voice
for small businesses in the nation’s courts through
representation on issues of public interest affecting
small businesses. It is an affiliate of the National
Federation of Independent Business, Inc. (NFIB),
which is the nation’s leading small business
association. NFIB’s mission is to promote and protect
the right of its members to own, operate, and grow
their businesses. NFIB represents, in Washington,
D.C., and all 50 state capitals, the interests of its
members.
The Manhattan Institute for Policy Research (MI)
is a nonpartisan public policy research foundation
whose mission is to develop and disseminate ideas
that foster greater economic choice and individual
responsibility. MI’s constitutional studies program
aims to preserve the Constitution’s original public
meaning. To that end, it has historically sponsored
scholarship regarding quality-of-life issues, property
rights, and economic liberty.
Introduction and Summary of Argument
The courts don’t need Congress’s permission to
enforce the self-executing constitutional right to just
compensation. A civil right is self-executing “if it
supplies a sufficient rule by means of which the right
given may be enjoyed and protected, or the duty
imposed may be enforced.” Davis v. Burke, 179 U.S.
 3

399, 403 (1900). Compensation for a taking is just

such a right. The plain text of the Fifth Amendment
itself supplies the rule for how the right is protected,
and how it is enforced: takings of private property
require compensation. This Court has said so—many
times. See, e.g., First English Evangelical Lutheran
Church of Glendale v. Los Angeles Cnty., 482 U.S. 304,
316 n.9 (1987) (the Just Compensation Clause “of its
own force furnish[es] a basis for a court to award
money damages against the government.”); Knick, 139
S.Ct. at 2172 (citing First English as holding that a
“property owner acquires an irrevocable right to just
compensation immediately upon a taking”).
Congress may enforce the Fourteenth Amendment
by creating causes of action and remedies. U.S. Const.
amend. XIV, § 5 (“The Congress shall have the power
to enforce, by appropriate legislation, the provisions of
this article.”). Because the Fourteenth Amendment’s
plain text applies to the states as states, Congress
could create a statutory cause of action for
deprivations of life, liberty, or property by a state. U.S.
Const. amend. XIV, § 1 (“nor shall any State deprive
any person of … property, without due process of
law”). But Congress need not have done so for Richard
Devillier to seek compensation from Texas for a
taking, because the Fifth Amendment itself specifies
the remedy, and the absence of legislation does not
prohibit courts from enforcing the self-executing
constitutional right to just compensation.
Statutory authorization may be necessary for other
civil rights claimants to sue, but not Just
Compensation claimants, because with one possible
exception, no right listed in the Bill of Rights other
than the right to Just Compensation is self-executing.
 4

That Congress created a general civil cause of action

for “persons” claiming deprivations of “rights,
privileges, or immunities secured by the Constitution
and laws”—Civil Rights Act of 1871, 42 U.S.C.
§ 1983—is of no moment here. For example, Congress
has never legislatively established a cause of action
for just compensation against the federal government,
and owners whose property is alleged to have been
taken seek compensation directly under the
Constitution. The Tucker Act does not create a cause
of action for compensation or money damages; it only
assigns jurisdiction over constitutionally based
takings claims to the Court of Federal Claims and the
Federal Circuit. See 28 U.S.C. § 1491(a)(1) (“The
United States Court of Federal Claims shall have
jurisdiction to render judgment upon any claim
against the United States founded … upon the
Constitution”). In federal takings, the self-executing
Just Compensation Clause recognizes the right and
provides the remedy. Blanchette v. Conn. Gen. Ins.
Corps., 419 U.S. 102, 126 (1974). If the lack of a
statutory cause of action does not stand in the way of
holding the federal government to the Just
Compensation Clause’s requirements, it similarly
does not stand in the way of the same claim against a
state. Our constitutional order cannot countenance
neutering a right and remedy expressly recognized by
the text of the Constitution, on the grounds that
Congress has not acted.
The Fifth Circuit acknowledged Texas’ obligation
to comply with the Fifth and Fourteenth
Amendment’s plain requirements. But by divorcing
liability from the constitutionally mandated remedy,
the court below engaged in a clever, but not
compelling, Texas two-step. First, the Fifth Circuit
 5

acknowledged that states cannot effect

uncompensated takings. Yet the court concluded that
Congress must affirmatively provide a statutory
remedy before property owners may pursue
compensation claims against a state—even in the
state’s own courts. Petitioners sued Texas in a Texas
court, alleging that the state’s deliberate flooding of
their land effected a taking requiring compensation
under the Fifth and Fourteenth Amendments. Texas
eliminated any possible Eleventh Amendment issues
that may have been lurking by removing the case to
federal court. Lapides v. Bd. of Regents of Univ. Sys.
of Ga., 535 U.S. 613, 622–23 (2002); Embury v. King,
361 F.3d 562, 566 (9th Cir. 2004) (“Allowing a State to
waive immunity to remove a case to federal court,
then ‘unwaive’ it to assert that the federal court could
not act, would create a new definition of chutzpah.”)
(citation omitted). By requiring that Congress first
recognize a cause of action for just compensation, the
Fifth Circuit ensured that Devillier’s federal civil
rights cannot be enforced in any court.
This Court should reaffirm that the Just
Compensation Clause is self-executing and hold that
property owners need not rely on a statutory cause of
action where compensation is mandated by the Fifth
and Fourteenth Amendments. The Constitution itself
provides the cause of action, rendering the need for a
statute unnecessary.
Argument
I. The Text of the Fourteenth Amendment
Binds “the States”
Until the ratification of the Fourteenth
Amendment, the Just Compensation Clause
 6

restricted only the federal government. Barron v.

Mayor and City Council of Baltimore, 32 U.S. (7 Pet.)
243 (1833). Property owners seeking compensation for
a taking of their property by a state or its
instrumentalities were forced to look exclusively to
state constitutions for the remedy. Id. at 249 (“Had
the people of the several states, or any of them …
required additional safe-guards to liberty from the
apprehended encroachments of their particular
governments; the remedy was in their own hands”);
see also Pumpelly v. Green Bay Co., 80 U.S. 166, 176–
77 (1871) (“This requires a construction of the
Constitution of Wisconsin; for though the Constitution
of the United States provides that private property
shall not be taken for public use without just
compensation, it is well settled that this is a limitation
on the power of the Federal government, and not on
the States.”); Boom Co. v. Patterson, 98 U.S. 403, 407
(1878) (applying Minnesota’s just compensation
clause to a compensation claim removed to federal
court). The view was that state courts applying state
law were adequate to protect fundamental rights
against intrusion by the state itself. Kris W. Kobach,
The Origins of Regulatory Takings: Setting the Record
Straight, 1996 Utah L. Rev. 1211, 1265. “[M]any
prominent jurists regarded the Takings Clause of the
U.S. Constitution as essentially a reference to the
various notions of compensation, property, and public
use in the common law of takings.” Id. (quoting 2
Joseph Story, Commentaries on the Constitution of the
United States 547 (Thomas M. Cooley ed., 4th ed.,
Boston, Little, Brown & Co. 1873) (1833) (“This is an
affirmance of a great doctrine established by the
common law for the protection of private property.”)).
See also TrinCo Inv. Co. v. United States, 140 Fed.Cl.
 7

530, 534 (2018) (noting that until 1855 there was no

federal judicial forum for trying takings cases.).
But the Civil War laid bare the notion that states
could be entrusted with policing their own protection
of fundamental civil rights. The Fourteenth
Amendment’s Due Process Clause overruled Barron
and held states—in their capacity as states—to the
same standards as the federal government. See U.S.
Const. amend. XIV, § 1 (“nor shall any State deprive
any person of life, liberty, or property, without due
process of law”) (emphasis added). The Amendment
“‘fundamentally altered the balance of state and
federal power’” by “requir[ing] the States to surrender
a portion of the sovereignty that had been preserved
to them by the original Constitution.” Alden v. Maine,
527 U.S. 706, 756 (1999) (citation omitted). Its
provisions “were intended to be, what they really are,
limitations of the power of the States[.]” Ex parte
Virginia, 100 U.S. 339, 345 (1879). “[A] State cannot
disregard the limitations which the Federal
Constitution has applied to her power. Her rights do
not reach to that extent.” Id. at 346. The Fourteenth
Amendment thus worked a “sea change” enhancing
“federal protections for individual rights against state
infringements.” Health & Hosp. Corp. of Marion Cnty.
v. Talevski, 599 U.S. 166, 176 (2023).
Ratification of the Fourteenth Amendment
inherently limited state power over individual rights.
Mitchum v. Foster, 407 U.S. 225, 238–39 (1972)
(recognizing the role of the Amendment in elevating
“the Federal Government as a guarantor of basic
federal rights against state power”); Home Tel. & Tel.
Co. v. City of Los Angeles, 227 U.S. 278, 287 (1913)
(adopting as the “theory of the Amendment” that “the
 8

Federal judicial power is competent to afford redress

for [a] wrong” that violates the Fourteenth
Amendment); Akhil Reed Amar, The Bill of Rights:
Creation and Reconstruction 268 (1998) (noting that a
leading proponent of the Amendment stated it was
adopted in part to protect “citizens of the United
States, whose property, by State legislation, has been
wrested from them”).
In the very first case “incorporating” a right
acknowledged in the Bill of Rights against a state
under the Fourteenth Amendment’s Due Process
Clause—the Just Compensation Clause 2—this Court
recognized that the Fourteenth Amendment limits the
states, not just its officials, instrumentalities, and
agencies:
But it must be observed that the prohibitions
of the [Fourteenth] amendment refer to all the
instrumentalities of the state,—to its
legislative, executive, and judicial authorities,
—and, therefore, whoever by virtue of public
position under a state government deprives
another of any right protected by that
amendment against deprivation by the state,
‘violates the constitutional inhibition’ … This
must be so, or, as we have often said, the
constitutional prohibition has no meaning[.]

2See Dolan v. City of Tigard, 512 U.S. 374, 383 (1994); Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 122 (1978);
Nollan, 483 U.S. at 827; Stop the Beach Renourishment, Inc. v.
Fla. Dep’t of Env’t Prot., 560 U.S. 702, 717 (2010). Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302,
306 n.1 (2002) (The Just Compensation Clause “applies to the
States as well as the Federal Government.”).
 9

Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S.

226, 233–34 (1897) (emphasis added). Initially, this
Court in Chicago established that property rights
established the foundation of the Constitution as a
whole:
The requirement that the property shall not
be taken for public use without just
compensation is but “an affirmance of a great
doctrine established by the common law for
the protection of private property. It is
founded in natural equity, and is laid down as
a principle of universal law. Indeed, in a free
government, almost all other rights would
become worthless if the government
possessed an uncontrollable power over the
private fortune of every citizen.”
Id. at 236 (citing 2 Story, Const. § 1790; 1 William
Blackstone, Commentaries 138, 139 (1765); Thomas
M. Cooley, A Treatise on the Const. Limitations Which
Rest upon the Legislative Power of the States of the
American Union *559 (1868); People v. Platt, 17
Johns. 195, 215 (N.Y. Sup. Ct. 1819); Bradshaw v.
Rogers, 20 Johns. 103, 106 (N.Y. Sup. Ct. 1822); In re
Mt. Washington Road Co., 35 N.H. 134, 142 (1857);
Parham v. Justices of the Inferior Court of Decatur
Cnty., 9 Ga. 341, 348 (1851); Ex parte Martin, 13 Ark.
198, 206 (1853); Johnston v. Rankin, 70 N.C. 550, 555
(1874)). More recently, McDonald v. City of Chicago,
561 U.S. 742, 760 (2010), also noted that “in holding
that due process prohibits a State from taking private
property without just compensation, the Court
described the right as ‘a principle of natural equity,
recognized by all temperate and civilized
governments, from a deep and universal sense of its
 10

justice.’” (citing Chicago, B. & Q.R. Co., 166 U.S. at

238). In McDonald, this Court explained that it
“abandoned ‘the notion that the Fourteenth
Amendment applies to the States only a watered-
down, subjective version of the individual guarantees
of the Bill of Rights,’ stating that it would be
‘incongruous’ to apply different standards ‘depending
on whether the claim was asserted in a state or federal
court.’” McDonald, 561 U.S. at 765 (quoting Malloy v.
Hogan, 378 U.S. 1, 10–11 (1964)).
Thus, ratification of the Fourteenth Amendment
reduced state power to the extent necessary to ensure
that all Americans could seek judicial vindication for
violation of constitutional rights. See, e.g., In re Venoco
LLC, 998 F.3d 94, 110 (3d Cir. 2021) (“State sovereign
immunity is a critical feature of the U.S. Constitution,
but it is not absolute. When they ratified the
Constitution, states waived their sovereign immunity
defense in bankruptcy proceedings[.]”). Because the
Fifth Amendment explicitly provides for
“compensation” and the states consented to the
language of the Fifth and Fourteenth Amendments,
the states thus consented to a mechanism that is
“inherent in the constitutional plan.” PennEast
Pipeline Co., LLC v. New Jersey, 141 S.Ct. 2244, 2262
(2021).
Thus, the incorporated Bill of Rights protections
“are all to be enforced against the States under the
Fourteenth Amendment according to the same
standards that protect those personal rights against
federal encroachment.” Malloy, 378 U.S. at 10. Cf.
Mapp v. Ohio, 367 U.S. 643, 655–56 (1961) (“[I]n
extending the substantive protections of due process
to all constitutionally unreasonable searches—state
 11

or federal—it was logically and constitutionally

necessary that the exclusion doctrine … be also
insisted upon … To hold otherwise is to grant the right
but in reality to withhold its privilege and
enjoyment.”); Wallace v. Jaffree, 472 U.S. 38, 49 (1985)
(describing as an “elementary proposition of law” that
“when the Constitution was amended to prohibit any
State from depriving any person of liberty without due
process of law, that Amendment imposed the same
substantive limitations on the States’ power to
legislate that the First Amendment had always
imposed on the Congress’ power.”) (footnote omitted);
Benton v. Maryland, 395 U.S. 784, 795 (1969) (“Once
it is decided that a particular Bill of Rights guarantee
is ‘fundamental to the American scheme of justice,’ the
same constitutional standards apply against both the
State and Federal Governments.”) (citation omitted).
II. Self-Executing Constitutional Rights Do
Not Need Legislative Recognition of a
Remedy
It is not a necessary prerequisite for Congress to
create a cause of action and a judicial remedy when
the Constitution itself recognizes the remedy which is
thus “self-executing.” See Yearsley v. W.A. Ross
Constr. Co., 309 U.S. 18, 21 (1940) (“[I]f the authorized
action ... does constitute a taking of property for which
there must be just compensation under the Fifth
Amendment, the Government has impliedly promised
to pay that compensation and has afforded a remedy
for its recovery….”); Maine Cmty. Health Options v.
United States, 140 S.Ct. 1308, 1328 n.12 (“Although
there is no express cause of action under the Takings
Clause, aggrieved owners can sue through the Tucker
Act under our case law.”). Applied here, this means
 12

that although Congress has the power to enforce the

Fourteenth Amendment, 3 where (as here) it has not
done so and the constitutional right is “self-
executing,” the absence of legislation does not bar a
court from enforcing the right. In short, Devillier does
not need Congress’ permission to sue Texas—in Texas’
own courts, no less—to recover just compensation as
guaranteed by the Fourteenth Amendment. This
Court should hold that property owners have a self-
executing federal constitutional right to just
compensation when government takes their property,
and they may sue to enforce that right against the
State of Texas in a Texas court (or in federal court if
Texas removes it). Notwithstanding Congressional
failure to adopt a statute like section 1983 that creates
a just compensation remedy against the states, Texas
cannot immunize itself from the minimal
requirements of the U.S. Constitution.
This Court has long recognized that the existence
of a right means there must be a remedy: “The
government of the United States has been
emphatically termed a government of laws, and not of
men. It will certainly cease to deserve this high
appellation, if the laws furnish no remedy for the
violation of a vested legal right.” Marbury v. Madison,
5 U.S. 137, 163 (1803). Marbury explains that this
standard traces to English legal tradition, as Lord
Blackstone noted, “it is a general and indisputable

3 See U.S. Const. amend. XIV, § 5 (“The Congress shall have

power to enforce, by appropriate legislation, the provisions of this
article.”). Pursuant to this section, Congress may enforce
constitutional guarantees, notwithstanding sovereign immunity,
by legislating a damages remedy for a state’s violation of the
Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 448–
49, 456 (1976); Health & Hosp. Corp., 599 U.S. at 175.
 13

rule, that where there is a legal right, there is also a

legal remedy, by suit or action at law, whenever that
right is invaded.” Id.
The constitutional provision is “self-executing”
when it “supplies a sufficient rule by means of which
the right given may be enjoyed and protected, or the
duty imposed may be enforced,” as compared with
non-self-executing provisions that “merely indicate[]
principles, without laying down rules by means of
which those principles may be given the force of law.”
Davis v. Burke, 179 U.S. at 403 (citation omitted). 4
Here, the Fifth Amendment explicitly commands
payment of just compensation when government
takes property for public use. It is the only explicit
civil remedy provided in the text of the Constitution.
This is a “sufficient rule” as evidenced by courts’
ability to apply it since the earliest days of the United
States. By contrast, other constitutional provisions
recognizing fundamental rights do not condition the
right on a remedy expressed in the Constitution. For
example, if a government abridges First Amendment
rights, the text of the Constitution doesn’t prescribe

4 This Court does not always require that Constitution explicitly

detail the remedy in order to deem a provision self-executing. For

example, Minn. v. Murphy, 465 U.S. 420, 434–35 (1984), held
that because the Fifth Amendment provides that no person “shall
be compelled in any criminal case to be a witness against
himself,” U.S. Const. amend. V, the provision is self-executing if
the government threatens to penalize someone if he refuses to
speak; the person may rely directly on the Constitution to refuse
to answer questions where the answers might incriminate him
in future criminal proceedings or to seek exclusion of answers
extracted in that circumstance. However, the clause otherwise is
generally considered non-self-executing, although the
“execution” depends on an individual’s affirmative claiming of
the privilege rather than a government waiver. Id. at 425.
 14

what a court can do about it. See, e.g., Tanzin v.

Tanvir, 141 S.Ct. 486, 489, 491–92 (2020) (Religious
Freedom Restoration Act of 1993 provides private
right action seeking damages to redress Federal
Government violations of the right to free exercise
under the First Amendment).
Because of the foundational nature of the Just
Compensation Clause’s protection of property rights,
“[t]he legislature may prescribe a form of procedure to
be observed in the taking of private property for public
use, but it is not due process of law if provision be not
made for compensation.” Chicago, B. & Q.R. Co., 166
U.S. at 236 (emphasis added). That is, liability alone
cannot fulfill the constitutional mandate—there must
be compensation: “the right to compensation was an
incident to the exercise of the power of eminent
domain; that the one was so inseparably connected
with the other that they may be said to exist, not as
separate and distinct principles, but as parts of one
and the same principle.” Id. at 238 (citing Sinnickson
v. Johnson, 17 N.J.L. 129, 145 (1839)). After
considering other early federal cases in the same vein,
this Court concluded, “private property is taken for
the state or under its direction for public use, without
compensation made or secured to the owner, is, upon
principle and authority, wanting in the due process of
law required by the fourteenth amendment of the
constitution of the United States[.]” Id. at 241.
When the states were subjected to the Fourteenth
Amendment and thus, the incorporated “self-
executing” Just Compensation remedy, property
owners harmed by a state taking acquired a right to
file a claim for compensation, notwithstanding the
lack of enabling legislation. First English, 482 U.S. at
 15

316 n.9; see also Esposito v. S.C. Coastal Council, 939

F.2d 165, 173 n.3 (4th Cir. 1991) (Hall, J., dissenting);
Catherine T. Struve, Turf Struggles: Land,
Sovereignty, and Sovereign Immunity, 37 New Eng. L.
Rev. 571, 573–74 (2003) (“[T]he Fifth Amendment’s
Just Compensation Clause also appears to furnish an
exception to the prohibition on damages relief.”); Eric
Berger, The Collision of the Takings and State
Sovereign Immunity Doctrines, 63 Wash. & Lee L.
Rev. 493, 519 (2006) (“[T]he straight textual argument
seems to require the government to provide money
damages [for a taking], notwithstanding otherwise
applicable sovereign immunity bars.”). The
Constitution provides that property owners must be
compensated when government takes private
property for public use. 5 It does not say “except for
states.”
Relying on Marbury, this Court in Franklin v.
Gwinnett Cnty. Pub. Schools, 503 U.S. 60, 69 (1992),
held that when a statute authorizes a private right of
action “to enforce a federal right and Congress is silent
on the question of remedies, a federal court may order
any appropriate relief.” The Title IX plaintiffs in that
case could recover monetary damages although the
statute was silent on that point. Id. at 64–65. If
legislation creating remedy against Fourteenth
Amendment-violating states waives sovereign
immunity, id.; Fitzpatrick, 427 U.S. at 456, then a just
compensation remedy embedded directly in the

5 The Constitution itself requires payment of just compensation

for a taking, as distinguished from other payments, say, for out-
of-pocket costs, that may be reimbursed as a matter of legislative
grace. Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 6 and
n.7 (1984).
 16

Fourteenth Amendment itself must have the same

effect. It makes no sense to allow recovery to plaintiffs
with self-executing statutory claims that lack a
mandated remedy while withholding recovery from
plaintiffs with a self-executing constitutional claim
that explicitly describes the remedy owed. See also
Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 373–78
(2006) (Bankruptcy Clause provides a constitutionally
grounded exception to sovereign immunity); Allen v.
Cooper, 140 S.Ct. 994, 1003 (2020) (“the Bankruptcy
Clause itself did the abrogating” because “the States
had already ‘agreed in the plan of the Convention not
to assert any sovereign immunity defense’ in
bankruptcy proceedings”) (quoting Katz, 546 U.S. at
377); City of Monterey v. Del Monte Dunes at Monterey,
Ltd., 526 U.S. 687, 752 (1999) (Souter, J., concurring
in part) (“A State’s untoward refusal to provide an
adequate remedy to obtain compensation, the sine qua
non of an inverse condemnation remedy under
§ 1983, … is not damages for tortious behavior, but
just compensation for the value of the property
taken.”); Eric Grant, A Revolutionary View of the
Seventh Amendment and the Just Compensation
Clause, 91 Nw. U. L. Rev. 144, 199 (1996) (“It is a
proposition too plain to be contested that the Just
Compensation Clause of the Fifth Amendment is
‘repugnant’ to sovereign immunity and therefore
abrogates the doctrine[.]”).
III. The Fifth Circuit Deprives Property
Owners of Any Forum for Constitutional
Takings Claims
A. The Takings “Catch-22” Resurrected
The Fifth Circuit’s approach acknowledges that
property owners asserted a federal constitutional
 17

right but held that they have no remedy—in any court,

state or federal—until Congress first creates one. The
effect on property owners within the Circuit is
devastating—often depriving them of any
compensation even for acknowledged takings. For
example, Louisiana state courts employ the same
distinction between liability for a taking and a claim
for just compensation that the Fifth Circuit applied
below. That is, although a waiver of sovereign
immunity is not necessary to sue Louisiana
governments for takings, Angelle v. State, 34 So.2d
321, 323 (La. 1948) (state constitution’s just
compensation clause is “self-executing” and not
subject to sovereign immunity), Louisiana
governments have not waived immunity from
enforcement of resulting judgments. La. Const.
art. XII, § 10(C). This leaves property owners without
their property and without any way to recover their
owed just compensation, a constitutionally deficient
and unjust result. See Ariyan, Inc. v. Sewerage &
Water Bd. of New Orleans, 29 F.4th 226, 232 (5th Cir.
2022) (“[W]e understand the Plaintiffs’ frustration.
They have succeeded in winning a money judgment.
Without any judicial means to recover, they are
compelled ‘to rely exclusively upon the generosity of
the judgment debtor.’”) (quoting Folsom v. City of New
Orleans, 109 U.S. 285, 295 (1883) (Harlan, J.,
dissenting).
The situation is especially dire in Texas, which
extends sovereign immunity not only to the state, but
to any private corporation deputized as an “arm of the
state” to exercise government functions. In CPS
Energy v. Elec. Reliability Council of Texas, 671
S.W.3d 605, 628 (Tex. 2023), the Texas Supreme
Court held that a private corporation enjoys sovereign
 18

immunity when authorizing legislation “‘evinces clear

legislative intent’” to vest it with the “‘nature,
purposes, and powers’ of an ‘arm of the State
government’” and because doing so satisfies the
“political, pecuniary, and pragmatic policies
underlying our immunity doctrines.” Id. (footnotes
omitted). The dissenting opinion noted that although
“‘immunity is inherent to sovereignty, unfairness is
inherent to immunity,’ especially when it is extended
to what is not inherently sovereign: purely private
entities.” Id. at 653 (Boyd and Devine, joined by
Lehrmann and Busby, JJ., dissenting) (footnote and
citations omitted). See also Hall v. McRaven, 508
S.W.3d 232, 243 (Tex. 2017) (sovereign immunity from
suit “allows the ‘improvident actions’ of the
government to go unredressed,”) (citation omitted);
Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117,
121–22 (Tex. 2015) (sovereign immunity “places the
burden of shouldering” the “costs and consequences”
of those actions “on injured individuals,” rather than
the entity that caused those consequences) (citation
omitted).
The property owners in this case exercised their
choice of forum to pursue their constitutional takings
claims against Texas in state court. Texas removed
the case to federal court, and the Fifth Circuit refused
to consider the merits, holding there is no enabling
statute and states cannot be sued under section 1983.
Consequently, in the Fifth Circuit, where can a
property owner properly raise takings claims against
the state? If the owner sues the state in federal court
seeking just compensation, the state will invoke
Eleventh Amendment immunity to get it dismissed.
And if the owner sues in state court, as the Petitioners
did here, the state defendant can simply remove the
 19

case to federal court and poof! It disappears. Cf. Biden

v. Nebraska, 143 S.Ct. 2355, 2371 (2023) (rejecting
government’s “sleight of hand” to cancel student
loans). This Court should have little patience with
courts that deprive property owners of any forum to
pursue their constitutional claims.
B. The Constitution Elevates Judicial
Protection of Property Rights Over
Government Gamesmanship
Governments compound the constitutional error of
taking property without just compensation by
engaging in legal tactics designed to thwart property
owners’ attempts to vindicate their constitutional
rights. See Laura D. Beaton & Matthew D. Zinn,
Knick v. Township of Scott: A Source of New
Uncertainty for State and Local Governments in
Regulatory Takings Challenges to Land Use
Regulation, 47 Fordham Urb. L.J. 623, 625 (2020)
(urging local governments to make use of “several
tools” “to try to force claims, in whole or in part, back
into state courts”); Arrigoni Enters., LLC v. Town of
Durham, 136 S.Ct. 1409, 1409 (2016) (Thomas and
Kennedy, JJ., dissenting from denial of certiorari)
(procedural bar from federal court “inspired
gamesmanship”); Lapides, 535 U.S. at 621 (decrying
state’s manipulation of legal doctrine “to achieve
unfair tactical advantages”). In this circumstance, a
property owner’s only recourse in 49 states is to sue
for inverse condemnation. Knick, 139 S.Ct. at 2168;
First English, 482 U.S. at 316 (“the entire doctrine of
inverse condemnation is predicated on the proposition
 20

that a taking may occur without such formal

proceedings.”). 6
Our nation was founded on the idea that the
government has no power to confiscate private
property for public use without compensating the
owner. This Court should treat inverse condemnation
claims as the mirror image equivalents to eminent
domain actions, such that any state’s action in taking
property authorizes litigation in any court. See City of
Northglenn v. Grynberg, 846 P.2d 175, 178 (Colo.
1993) (“Because an inverse condemnation action is
based on the ‘takings’ clause of our constitution, it is
to be tried as if it were an eminent domain
proceeding.”). The fact that governmental agencies
prefer not to pay cannot fairly limit this constitutional
protection. See David A. Thomas, Finding More Pieces
for the Takings Puzzle: How Correcting History Can
Clarify Doctrine, 75 U. Colo. L. Rev. 497, 546 (2004)
(“Predictions of doom for governmental entities
required to carry greater compensation burdens do
not ameliorate the unconstitutionality, illegality, and
moral perfidy of wrongful deprivations of private
property by irresistible public power.”).

6 In Ohio, property owners must seek a writ of mandamus

compelling the government to initiate condemnation

proceedings. Knick, 139 S.Ct. at 2168, n.1.
 21

Conclusion
The decision below should be reversed.

DATED: November 2023.

Respectfully submitted,

DEBORAH J. LA FETRA
Counsel of Record
ROBERT H. THOMAS
PACIFIC LEGAL FOUNDATION
555 Capitol Mall, Suite 1290
Sacramento, CA 95814
Telephone: (916) 419-7111
[email protected]
KATHRYN D. VALOIS
PACIFIC LEGAL FOUNDATION
4440 PGA Blvd., Suite 307
Palm Beach Gardens, FL 33410

ELIZABETH MILITO
ROB SMITH
NFIB SMALL BUSINESS
LEGAL CENTER, INC.
555 12th Street, NW
Suite 1001
Washington, DC 20004

ILYA SHAPIRO
TIM ROSENBERGER
MANHATTAN INSTITUTE
52 Vanderbilt Ave.
New York, NY 10017

Counsel for Amici Curiae