November 17th, 2023 2 Minute Read Public Filings by Ilya Shapiro, Tim Rosenberger

Amicus Brief: Devillier v. Texas

This case presents a simple yet vital question of constitutional law: Can a property owner sue a state government directly under the Fifth Amendment’s Takings Clause to get “just compensation”? Richie DeVillier and his family have lived on a farm in Winnie, Texas, since his grandfather purchased the land in the 1930s. For most of that history, the land never flooded. Then, in the early 2000s, the Texas Department of Transportation restructured nearby Interstate 10 to ensure the highway would be available as an evacuation route in a flood. The modified interstate acts like a dam, impounding water on the surrounding land and turning Richie’s farm into a lake every time the area receives heavy rainfall.

Richie and other landowners sued Texas in state court for the damage done to their property. Texas then removed the property owners’ claims to federal court, and, in a single sentence, the Fifth Circuit rejected the landowners’ takings claims on the theory that there is no right of action for takings claims against a state unless there’s a state-provided statutory scheme under which the plaintiff exhausts remedies in the state-court system and then appeals to the U.S. Supreme Court. It is pretty much a Catch-22 given the state’s removal to federal court here.

The Supreme Court took the case, and the Manhattan Institute has now joined the Pacific Legal Foundation and National Federation of Independent Business on an amicus brief. We argue that (1) the text of the Fourteenth Amendment binds the states to enforce constitutional rights, (2) constitutional rights don’t need legislative recognition to be remedied, and (3) the Fifth Circuit deprived property owners of any forum for constitutional takings claims.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

Photo: THEPALMER/iStock


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