Courthouse Steps Oral Argument: Devillier v. Texas

[Music]

 

Jack Capizzi:  Well, hello, everyone, and welcome. My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups with The Federalist Society.  Today, we’re excited to host a “Courthouse Steps” program following oral argument in Devillier v. Texas. We’re delighted today to be joined by Professor Ilya Somin, who is a Professor of Law at the Antonin Scalia Law School at George Mason University and the author of an amicus brief in the case on behalf of the Cato Institute.

 

As always, please note that all expressions of opinion are those of the speakers on the call. After Professor Somin has given his remarks, we will turn to you, the audience, for any questions you might have. If you have a question at any time, please type it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can. With that, thank you all very much for joining us today. Professor Somin, I’ll hand it over to you.

 

Prof. Ilya Somin:  Thank you to The Federalist Society for organizing this event and all of you for attending. As was already noted, I have filed an amicus brief in this case on my own behalf and also that of the Cato Institute. I also have some connections to the Institute for Justice, which is representing the property owner in the case. However, everything I say today is just purely on my own behalf and doesn’t necessarily represent the views of Cato or, indeed, anybody else besides myself.

 

So I’m going to start out by explaining what this case is about and then, what we can expect, based on what we heard in oral argument today. But I think the bottom line is that this is an important Takings Clause property rights case. And it is likely, though perhaps not completely certain, based on the oral argument, that the property rights side will prevail in this case, though, there may be some uncertainty about exactly what the vote in the Court will be and also how the Court will reason a decision.

 

So in this case, the state of Texas repeatedly flooded Mr. Devillier’s land -- ranch land because it happened as a result of a highway construction project that the state undertook, which required the construction of a dam and some other facilities that, then, led to the property being flooded. Devillier then filed a takings claim in state court -- in Texas state court, under both the federal Constitution and the state constitution. Texas, however, then proceeded to remove the case to federal court, under a statute called 28 U.S.C., Section 1441, which allows removal of cases to federal court where there is a federal claim. And then, once it was removed to federal court, they -- Texas then moved to dismiss the claim on the grounds that you could not file a takings claim against the state government in federal court because Congress has not enacted a specific statute which says you can sue state governments in a federal court over Takings Clause violations. You can do it with local governments and with the federal government but not with state government. That’s their position.

 

And the Fifth Circuit, in what I think is a very ill-advised and extremely cursory opinion, ruled in favor of Texas on this claim. The opinion is literally only just a few sentences long and does not even mention most of the major federal precedents that bear on this case. Before I saw this case, I would have thought that this issue had been dealt with by the U.S. Supreme Court’s 2019 decision in Knick v. Township of Scott. In the Knick case, the Supreme Court reversed the 1985 Williamson County case where the Court had held that before you can bring a takings claim in federal court, you first have to go through all possible state court remedies. And then,  when you’re done, it may very well that you can’t bring the case in federal court after that because of various procedural doctrines, and the Supreme Court, in a strongly worded majority opinion by Chief Justice Roberts, said you can’t have a catch-22 like that where you keep a case out of federal court entirely, even though the case is all about a federal constitutional right.

 

And in this case, the catch-22 is even worse, arguably, because under the Williamson County regime that Knick reversed, while you could not go to federal court, at least initially, to file your takings claim against the state or local government, you, at least, could go to state court. But in this case, if you go to state court, Texas pulled this trick of they remove it to federal court, and then, they get the case dismissed. So if any, this is an even worse catch-22. And there would be dangerous consequences to letting this stand because of the fact that if you could do this, then essentially, states could do what Texas did in this case, which is to not allow the case to be brought in either state or federal court and essentially to take property without compensation and, therefore, to completely gut the Takings Clause.

 

And I think, therefore, on this central issue here, this should be a relatively easy case in so far as the whole question is whether you can bring a case in federal court under the federal Constitution. That’s the -- I would think is part of what federal courts are for in the first place, and even more so, at the even least, you should be able to do it in a situation where, otherwise, the state could completely gut the right in question and not even be allowed to be brought in -- the claim to be brought in state court.

 

At the oral argument, I think quite a lot of justices, both liberal and conservative, made much the same kinds of points as I just mentioned. The catch-22 issue came up. Even Justice Sotomayor, who is the justice least sympathetic to property rights, she described what Texas as almost a bait-and-switch. I’m not sure which way Sotomayor is going to vote in this case, but if Sotomayor’s vote is even in doubt, then from the standpoint of a state trying to defend a takings claim, that’s not a good place for Texas, or any state in that situation, to be in. Justice Elena Kagan, another prominent liberal justice, she emphasized that there is an ongoing violation of the Constitution in a situation where the state has taken property but not paid for it and that, therefore, as she put it, shouldn’t a court be able to do something about that. If you think about what is the job of the federal courts, one of their jobs is to enforce federal constitutional rights when citizens bring claims, arguing that those rights have been violated.

 

Both Texas and the federal government, they intervene in the case, and a federal lawyer from the Solicitor General’s Office also got oral argument time. They said that maybe you don’t have -- maybe the issue is you don’t have a right to claim a cause of action for damages in federal court, but you can get an injunctive remedy. That is an order from the court but without paying any kind of monetary damages. As Justice Kagan pointed out, in this case, the whole nature of the constitutional right is, in fact, a right to be paid monetary compensation. And the Supreme Court has repeatedly said that in a variety of previous cases.

 

I would add that, in many types of takings, there simply is no injunction that could deal with the situation, including in this case. Even if an injunction is issued, Texas cannot unflood Mr. Devillier’s property. They can’t go back in time and fix that problem. Or if they could, it would be an amazing technological development. That would be really great. But so far as I know, neither Texas, or anybody else, has that kind of time travel technology.

 

Similarly, as various justices pointed out, there is no way to deal with a temporary taking on that basis. If the government has temporarily intruded on your land or damaged your land or the like, then an injunction after the fact cannot fix that. The only way they can fix that is some form of material compensation, which usually takes the form of monetary damages. And this right is different from some other constitutional rights in that the monetary remedy, the payment of compensation, is written right into the Constitution, and in addition, in many cases, there simply is no other remedy that’s available, short of the development of time travel, which, sadly, we do not have.

 

And in addition, several justices raised the issue of what about rogue states, which simply don’t provide for remedy for Takings Clause violations in their state courts, and this is not purely hypothetical. The state of Louisiana, which, like Texas in the Fifth Circuit, is a state which has that very situation where you don’t have a state remedy for takings violations, and as counsel for Devillier pointed out — Mr. McNamara — he noted in the oral argument there are lots of states where state courts have said that the only reason why there is a remedy is because the federal Constitution directly requires it. And if the Court were to uphold what the Fifth Circuit did here, then that requirement would fall away. More generally, I think there are lots of state governments that, if they could, they, at least in some cases, would like to be able to get away with taking property and not paying for it. There are any number of political and economic reasons why they might want to do that.

 

So in looking at the oral argument today, I think there very likely is a majority to overrule what the Fifth Circuit did here, quite possibly even across ideological majority It might be 7-2 or 8-1, or even 9-0 cannot be completely ruled out, but Kagan seemed the most sympathetic of the liberal justices to the Plaintiff’s claims. The question is, I think, exactly how the Supreme Court majority will phrase the decision. They have various options. I think the simplest and best solution is just to say you can bring a case in federal court directly about this, and this would be only, at most, a modest extension of Knick. But they could instead say that you can only bring it if there is no state court remedy.

 

They could also potentially just rule that the removal to federal court was inappropriate, and then, the state court, they could -- it could be heard in the first instance in state court. But notice this would replicate the kind of regime that existed under Williamson County, and that would be problematic, so I don’t think they’re going to do that, but it’s not impossible. I could be proven wrong. So I think those are the major options before the Court. I hope, and I think there’s a good chance, that the Court will simply say these kinds of cases can be brought directly in federal court, in part because of the special nature of the right here, as Justice Kagan explained, but they do have some other potential options. So on that note, I will conclude, but I very much look forward to the questions. Thank you.

 

Jack Capizzi:  Well, thank you, Professor Somin, for that breakdown. As you noted, we are taking questions now, so please do get those in as they come to you. But I guess I’ll just start off with one. Are there any just immediate impacts that you think that an 8-1 or a 9-0 might have, especially just kind of, I guess, in the takings landscape, going forward?

 

Prof. Ilya Somin:  So I don’t know for certain, obviously, if the decision would be 8-1 or 9-0. I think there’s a good chance it will cross-ideological and that we won’t simply have a 6-3 split along ideological lines, as we certainly do have ideological splits in many takings cases, but this one, we might not, given particularly what Justice Kagan said. I think the main impact would be sort of, at the very least, to cut off the -- this catch-22 that Texas tried to use where they say we remove this case from state court. When we move it to federal court, we get it dismissed on the basis that’s not a cause of action. I think any decision in favor of the property owners would, at the very least, preclude that. I think the decision could potentially go even a little bit further and say, following the logic of Knick, that you can bring this case in federal court in the first instance, even if there is an alternative state court remedy because part of the point of having federal courts is to have federal court remedies for violations of federal constitutional rights.

 

They could also potentially hold that, here, the distinction between damages and injunctions doesn’t make much sense because, a) as I noted earlier, many -- in many takings situations, there just isn’t an injunction remedy that can help, that can be -- the remedy of compensation is actually directly written into the Constitution.  So while, in some cases, you can argue courts have a choice about what kind of remedies to order and more than one remedy will do, in many takings cases, including this one that Mr. Devillier has brought, short of time travel technology, there is no way to remedy the violation of his rights that he’s suffered, other than by giving the man some sort of material compensation, which would probably take -- have to take a monetary form.

 

Jack Capizzi:  Well, it looks like we have our first question from the audience. This attendee asks if the history of the Devillier decision in the Fifth Circuit was discussed. This person -- that says that they believe the panel initially handed down a longer decision in November of 2022 before a shorter decision in early 2023.

 

Prof. Ilya Somin:  As I understand it, even the initial decision was pretty short. But the initial decision was later modified because the initial decision said the case was dismissed for lack of jurisdiction. And if they had dismissed it for lack of jurisdiction, then they could not have also upheld the substantive dismissal -- or they could not also have ordered a dismissal of the substantive claim here, and therefore, they essentially altered the -- the panel essentially altered its decision to eliminate language about jurisdiction and just simply said that you cannot bring this case in federal court. But amazingly enough, neither the original decision nor the revised one cites Knick v. The Township of Scott, which, in my mind, is the single most relevant Supreme Court case here nor does it discuss any of the other significant issues that I mentioned.

 

So I’ve been a takings scholar for over 20 years. This may be the single worst federal court appellate decision that I’ve ever seen on a significant takings issue, though I would note there is more discussion of the issues and various opinions by Fifth Circuit judges when the -- when Devillier tried to get the case reheard en banc. There’s a strong opinion by Judge Oldham, arguing that the Fifth Circuit should have taken it en banc, and there’s opinions by other judges, defending the decision not to take it en banc. Those opinions are more seriously reasoned than the actual panel decision in this case, but the panel decision is short and cursory.

 

Jack Capizzi:  Thank you. Well, would you be able to, perhaps, go more into -- oh, here we go. We just got another question. This person asks that Justice Jackson seemed the most favorable to the government’s argument. What did you infer was her concern from her questions? How would you respond?

 

Prof. Ilya Somin:  Here, I’m not sure because, unfortunately, we don’t yet have the full transcript available, and while I was able to listen to much of the oral argument, I didn’t -- it was hard for me to tell exactly when Justice Jackson was speaking, when some of the other justices were speaking. And so I’m not entirely sure, but it’s certainly possible that she might go the other way in the case. That said, it makes a difference how she would do it. She might, at the very least, though, say you can’t have this catch-22, where you can remove to federal court and then get it dismissed.

 

Jack Capizzi:  Thank you. On a political and policy level, why is Texas refusing to compensate the Devilliers? It seems odd that a state known for respecting property rights seems to want to find any legal basis it can to refuse to reimburse the Devillier family.

 

Prof. Ilya Somin:  So Texas has a -- actually, a pretty equivocal history about property rights in that, on the one hand, they have a lot of rhetoric about property rights, and certainly, they’re a conservative state, by and large. But they also have a long history of undermining property rights for the benefit of various favorite interests, often interests like oil, and energy companies are, of course, powerful in Texas. And in general, many state governments, Texas included, they would like to at least have the option of seizing property and not paying in at least some instances, and this is a problem that cuts across red versus blue lines.

 

Jack Capizzi:  Well, as we wait for other questions, would you be willing to discuss more about the Williamson County framework and --

 

Prof. Ilya Somin:  Sure.

 

Jack Capizzi:  -- your -- you mentioned that earlier. I was wondering if you could expand on what that would look like. Yeah.

 

Prof. Ilya Somin:  Sure. Sure. So in 1985, the Supreme Court issued a decision called -- in the Williamson County case, where they said that, if you want to bring a takings claim against a state or local government, before you could do so -- before you could do so in federal court, you first have to exhaust all possible remedies in state court, potentially all the way up to the state supreme court because the theory is that -- was that until the state had definitively decided that they weren’t going to pay or until state courts had definitively decided they weren’t going to order the state to pay compensation, then maybe there was no Takings Clause violation there. But then, once you did exhaust all remedies in state court, often, for various procedural reasons, you couldn’t even go to the -- to federal court after that because it would be procedurally barred. So there’s a kind of catch-22.

 

As Chief Justice Roberts eventually put it, and as others put it as well, that in order to get to federal court, you had to go to state court first. But when you get -- but once you went to state court first, you were then barred from going to federal court because you went to state court. And this decision was much criticized. Several justices had urged it to be overruled. Finally, in 2019, in the Knick case, the issue came back to the Supreme Court, and in a 5-4 ruling split along ideological lines, the Court did indeed reverse Williamson County and emphasized, among other things, that you cannot have a catch-22, which bars these kinds of takings claims from federal court, and also that the Takings Clause could not be treated differently from other constitutional rights in these kinds of situations.

 

Jack Capizzi:  Well, we have one listener who’s asking about a related question, that -- this person is asking you that the Court will soon hear the case involving Colorado’s decision to ban President Trump from the ballot. One issue is whether the third paragraph in the Fourteenth Amendment is self-executing. Does the issue in that case hang over today’s case?

 

Prof. Ilya Somin:  Maybe a little bit in that, obviously, both involve questions of whether Congress needs to pass enforcement legislation before lower courts, including lower federal courts but also state courts, perhaps can enforce a decision. In my view, both Section 3 and also the Takings Clause are, in fact, self-enforcing. Both are written into the Constitution, and in the case of Takings Clause, the Fourteenth Amendment was what made it applicable against the states. And obviously, the Section 3 is part of the Fourteenth Amendment. I do think there are various ways the Court could potentially distinguish the two cases, so I would not think -- although, I don’t think any of those distinctions ultimately work, but the justices certainly could disagree with me. If they did, it wouldn’t be the first time.

 

So I can certainly see ways in which you could say Section 3 is self-enforcing, but the Takings Clause is not or vice versa. But in general, I think the presumption should be that every part of the Constitution is self-enforcing, unless there’s some kind of statement in the Constitution purely suggesting otherwise or unless there’s some kind of inherent inability, of course, to enforce, neither of which is true in either Section 3 or in the Takings Clause. I think it’s especially not true in the Takings Clause because courts enforce Takings Clause claims all the time, and the mechanism of doing so is well known. With Section 3, there has been relatively little litigation over it since these post-Civil War era. I think courts, nonetheless, can, and should, enforce that and that it doesn’t need an additional Congressional legislation. But you could argue there are practical issues that exist there that are not a big deal when it comes to a Takings Clause.

 

Jack Capizzi:  We have one listener who’s asking for clarity on one point, which is how is it that a state can circumvent the Takings Clause by removing to a federal court and then moving to dismiss. Would you be able to explain that process a little bit more and just how it exactly breaks down that they’re able to do that?

 

Prof. Ilya Somin:  Yeah. So they removed on the basis of Section -- of 28 U.S.C., Section 1441, which is a statute which essentially allows state governments to remove a claim to -- a case to federal court if it raises an issue that’s within the original jurisdiction of federal district courts. And in this case, the argument is that Texas made is that, on the one hand, this is -- because this is the Takings Clause, a part of the federal Constitution, it is within the original jurisdiction of the federal courts, but on the other hand, the federal courts don’t have any jurisdiction to order a remedy. And that, I think, is a contradiction in Texas’s position, but the federal courts, in this case, bought it, and -- or at least, the district court bought the jurisdictional part but didn’t buy the part about how there’s no -- the Court cannot order any remedy; although, the Fifth Circuit, on appeal, bought both.

 

But one possible resolution of this case could potentially be that they could agree with Texas that there is no federal court remedy but then also say that Texas is not allowed to remove these cases to federal court. However, if they did that, then you would create a regime similar to the Williamson County regime, which the Court said was unacceptable, at least for cases brought against local governments, and I think much of the reason why it’s unacceptable for local governments also applies to why it’s unacceptable for state governments as well.

 

Jack Capizzi:  Thank you for your answer to that one. Another procedural question or a point of clarity. This person is asking if you can give an example of a non-self-executing or enforcing right or constitutional provision.

 

Prof. Ilya Somin:  Yeah. So there are constitutional provisions that require -- that specifically require Congress to act, like, for instance, in Section 3 itself, there is a provision that on a two-thirds vote of Congress, if someone is disabled under Section 3, Congress can lift the disability. So there are -- lots of powers in the Constitution are specifically allocated to Congress, which, then, if Congress chooses not to act on them, then nobody else can compel it. Similarly, the Take Care Clause of the Constitution may be non-self-executing in that the Take Care Clause is -- says that the President has to take care that the laws be faithfully executed, but it’s unlikely that a federal court can order him to execute the laws, so -- and there’s surely others as well, but those are examples that come to mind.

 

Jack Capizzi:  So now, a question about the effects of this case. Do you foresee a decision in favor of the Devilliers opening the floodgates, pun intended, of various parties with interests allegedly harmed by public projects being opened to litigation? Will a victory for the Devilliers create additional financial burdens and considerations for what are now routine public projects?

 

Prof. Ilya Somin:  I think probably not for two reasons. One is until Texas concocted this argument, I think the general assumption was that you already could bring such cases in federal court, at least after Knick v. The Township of Scott. That was the assumption. Second, the fact that you can bring the case doesn’t necessarily mean that you’ll win, so in many situations, the state could potentially argue that what they did just wasn’t a taking, or alternatively, they could argue that, even if it was a taking, relatively little compensation is owed because little or no damage was inflicted.

 

That said, if you do things as egregious as flooding or destroying property on a large scale, then, yeah, it had been precedent for some time. That can -- at least in many cases, can give rise to takings claims. That’s the whole point of the Takings Clause, that even if there’s a highly desirable public project, if the public project requires seizing property or destroying it, then the government has to pay compensation so that the property owner doesn’t bear the full burden or a disproportionate burden of the public project, that, instead, the cost is spread over society.

 

Jack Capizzi:  Well, we are approaching the half-hour mark. We have no other questions from the audience at the moment, so I guess I wanted to just ask you if you have any general thoughts about the two takings cases this January, Sheetz and Devillier, and maybe if there are any --anything that surprised you from the two or maybe just what your read on both of them has been.

 

Prof. Ilya Somin:  So I think I talked about Sheetz on a previous podcast with FedSoc, and also, I put up a post on The Volokh Conspiracy website hosted by Reason About It. Sheetz also deals with a takings issue but a different one than this case. Full disclosure, the property owner in Sheetz is represented by the Pacific Legal Foundation, which is also my wife’s employer, though she herself is not involved in the case. But that case is whether in some -- the main issue in that case was whether, in some situations, what would otherwise be a taking would not be one because it was enacted by legislation rather than by executive action, administrative decisions, and the like. And interestingly, at the oral argument, it seemed like all, or at least almost all, the Supreme Court justices agree that that by itself cannot immunize the local government or any government from takings liability. But there are some differences about other issues that would arise, such as whether various kinds of exactions qualify as takings or not on other grounds.

 

And I had thought the Court initially took this case simply to deal with the so-called legislative exception issue. And at oral argument, some of the justices, like Thomas and Gorsuch, suggested the Court need not decide anything more than that, but the Court could potentially reach out and make additional rulings on whether this -- the particular exaction in this case qualifies as a taking because this is a case where a property owner was required to pay over $23,000 in traffic mitigation fees in exchange for -- as a consequence of building a single-family home on his property. And while I had thought that the Supreme Court was not going to resolve that issue fully but merely just resolve the legislative exception issue, it now appears that at least some justices may be interested in going further than that, and if so, it’s difficult to predict what they will do.

 

But I think both of these cases feature situations where there’s some fairly egregious arguments that were endorsed by the lower courts that go against Takings Clause rights, and it looks like, at least based on the oral argument, that, in the Supreme Court, there’s some cross-ideological agreement in rejecting the fairly egregious reasoning of the lower courts, even though there may be disagreement over some other issues and in how far to go.

 

Jack Capizzi:  Well, I appreciate you sharing your perspective on both of those cases. It looks like we do have another question from the audience. This attendee asks, “In Allen v. Cooper, Justice Thomas is, in a concurrence opinion, saying that he is not sure whether intellectual property and property within the meaning of the Fourteenth Amendment are the same thing,” I presume. “Can you agree?” And the reason for this question is because a decision against Texas in this case can open the door for IP rights owners.

 

Prof. Ilya Somin:  So the Supreme Court has long held that IP rights are protected by the Takings Clause. I think, if you go back to first principles, there is a possible argument for why they might not be, which is that, if you look back at the 19^th century and particularly in the 1860s and, of course, the courts aren’t incorporating Takings Clause, there was a distinction drawn by many people between forms of property, which are a natural right, that is the -- they’re a fundamental human right as opposed to ones that are created purely by positive law. This, in fact, was the argument that abolitionists and many others made against claims that emancipating slaves would be a taking and a taking that was not properly for a public use because, of course, when slaves were freed, then they wouldn’t be transferred to the government. The slave would then -- the former slave would then own him or herself, so the argument was, “Well, this is a taking that’s not for a public use, and it can’t be done,” in a response by advocates by abolition, which I think is correct, is that slavery, to the extent that it could exist legally at all, existed purely by positive law and was not a natural right, and therefore, if the government abolished a property right that it itself created purely by positive law, then it wouldn’t be a taking.

 

With IP, there is a long-standing controversary over whether intellectual property rights are natural rights in the same way that rights to land or rights to personal property are or whether they’re also purely state-created sort of artificial rights. And if you buy this distinction and you buy the distinction that the Takings Clause protects natural property rights but not artificial ones or purely positive ones, then in -- then, potentially, Thomas would be correct in thinking that, at least on first principles of originalism if there’s a distinction.

 

But there’s two caveats. I think it’s very unlikely the Supreme Court will reverse long-standing precedent that does protect IP under the Takings Clause, and second, there is actually a debate whether, under the original meaning, IP rights were seen as natural property rights or not. My colleague at George Mason University, Adam Mossoff, has argued that, in the Founding era, they did see IP rights as natural property rights. And I honestly don’t know whether Adam is right in this debate or whether the opposite side of -- is right. You guys could potentially have a whole separate podcast with Adam and others to deal with that issue, but I do think that issue is not before the Court in Devillier that you’ll hear. You have property right land where the person’s land was flooded and seriously damaged, so we don’t have to address these questions about IP rights here.

 

Jack Capizzi:  Thank you. Another question asks, “In light of the fact that state courts are common law courts and federal courts are not, do you have a different approach to whether a constitutional clause is self-executing between state and federal courts?”

 

Prof. Ilya Somin:  I think there should not be a different approach. I would note also that federal courts do deal with common law issues in some occasions, like in diversity cases and also in areas of so-called federal common law. But in any event, when it comes to constitutional rights, I do not believe that there should be a distinction. I think this constitutional right and all, or most others, should be self-executing in both federal courts and state courts.

 

Jack Capizzi:  Thank you. Well, it looks like we don’t have any more questions from the audience. Is there anything final that you’d like to say about Devillier?

 

Prof. Ilya Somin:  I don’t think so except that I probably will have a post up later today, analyzing the oral argument a bit more in detail, once we finally get a complete transcript that’s available to us.

 

Jack Capizzi:  Sounds good. Well, we’ll make sure to copy a link of that on the Event page for this program. We’ll also link your brief. And I guess, with that, if there are no other questions, I would just like to say thank you, Professor Somin, for your time today, and then, on behalf of The Federalist Society, I also want to thank all of our attendees for being with us. As always, we do welcome listener feedback by email at [email protected]. And please, as always, keep an eye on our website and your emails for announcements about upcoming programs. With that, thank you all very much for being with us today. We are adjourned.

 

[Music]